Utrecht Law Review (Oct 2009)
Special procedural measures and the protection of human rights<br> General report
Abstract
The aim of the general report is to conduct a comparative analysis of the national reports in order to trace transformation processes in domestic criminal justice systems, in particular criminal process, as special procedural measures are introduced to deal with terrorism and organised crime, and to map whether this has led countries to depart from their own fundamental rules, procedures, principles and applicable human rights standards. Starting from the premise that the integrated system of criminal law has three dimensions – the protection of individuals (the shield dimension), the provision of instruments of law enforcement (the sword dimension), and of checks and balances/trias politica (the constitutional dimension) – the report provides a comprehensive overview of interrelated transformations, mostly in the pre-trial setting, that have affected all three in three waves of ‘war’ (on drugs, organised crime and terrorism). In many countries, procedural guarantees and principles that protect against the infringement of fair trial rights are considered a burden to the efficiency of serious crime enforcement. These reforms have resulted in a clear expansion of the punitive state and a blurring of classic distinctions, and do not favour the rule of law. The focus on public security and preventive coercive investigation undermines the criminal justice system. With the criminal justice system increasingly used as an instrument to regulate the present and/or the future rather than to punish past behaviour, and a criminal process in which pre-trial investigation is not about truth-finding related to committed crime, but about the construction and de-construction of social dangerousness, the interests of national security may be said to be prevailing over justice and to be threatening due process and the protection of human rights – notwithstanding that general principles of criminal procedure seem to have become more important in the reporting countries, also where organized crime and terrorism are concerned, and are designed to conform with constitutional and human rights standards.
Keywords
