What are criminal proceedings?

While the presumption of innocence only has application within the context of criminal law and procedure, there is no agreed-upon definition of what constitutes ‘criminal.’ Further, what qualifies as criminal law is not always apparent. For the purposes of the presumption of innocence, criminal law should be understood broadly and not only limited to legitimate or formal criminal procedures. The presumption of innocence applies to criminal proceedings simply because criminal law is the area of law in which guilt or innocence is at issue. While liability or responsibility is determined in other legal procedures, civil liability is not the same as a legal determination of guilt. Thus, findings of civil responsibility do not implicate the presumption of innocence. Therefore it must be determined

Who has the right and when is it operable? 41 whether a proceeding is criminal in order to know whether the presumption of innocence is required.

Generally speaking, individual jurisdictions determine for themselves what sorts of activities will be prohibited as ‘criminal’ and what activities fall under other categories of law. Courts of limited criminal jurisdiction, such as the international and internationalised criminal courts and tribunals, have a clear definition of criminal law as it pertains to their particular context. The jurisdiction of these courts only extends over criminal matters, and those criminal matters are limited to specific crimes set out in their statutes.[1] There is no question, within the context of these courts, as to whether the presumption of innocence applies to the primary matters tailing under their jurisdiction because they are specifically categorised as criminal in nature. Therefore, the presumption of innocence must be upheld when one of these courts or tribunals is adjudicating a matter.

In jurisdictions that hear more than one type of legal matter it can be difficult to determine which acts are criminal in nature and which are not. National jurisdictions may have specialised courts that only adjudicate particular types of cases or more general courts that determine a wide variety of issues falling into any area of law. Moreover, national jurisdictions are free to sort or categorise their own laws in any way they choose. Actions that may be defined as criminal in one jurisdiction may be classified as administrative, disciplinary, or regulatory in another. This is especially troublesome in instances where a law labelled as administrative, disciplinary, or regulator}' result in an outcome that is the same as punishment, such as heavy fines or time in jail. Criminal procedure provides participants withmore rights titan are available in other legal areas and contains time-consuming due process requirements. These additional rights and procedures may motivate some national jurisdictions to reclassify actions that would normally be categorised as criminal in order to streamline the procedure and prevent individuals from exercising their rights. Therefore, how a jurisdiction classifies an activity has a direct bearing on the extent to which a person involved in the matter may exercise their rights. It is possible for the same action to be committed in two different countries, both with identical laws governing that action, with the exception that one country proscribes that activity as part ofits criminal code and the other country classifies it as an administrative or civil matter. In such a situation, the individuals prosecuted in the first country’ would be able to exercise their full due process and fair trial rights while those in the second country’ would not. This discrepancy' is not necessarily negative for the person being charged in the latter country' because if the law is viewed as administrative and not criminal, there is less possibility of stigma arising from conviction or that those found liable will be subjected to harsh punishments. Rather, this highlights how the fair trial rights of the accused can be impacted depending on whether the action is characterised as criminal or not criminal in nature.

An issue arises when activities that appear criminal, and are punishable as if they’ are criminal, are classified under a different category' of law’. Regional human rights courts can help determine whether law's are correctly categorised because they' must reconcile member states’ diverse legal systems. The European Court of Human Rights has developed a method to provide some consistency' between the various legal systems of member states by' looking beyond how the activity is categorised within national law’ to the nature of the particular behaviour under scrutiny' and its possible punishment.[2] This helps allow' the European Court to apply Convention rights more evenly and fairly' between different national jurisdictions. It also assists in preventing countries from denying rights to individuals by' calling activities that can be punished as severely' as crimes something other than ‘criminal.’

In an attempt to provide some consistency' as to what type of activities should be classified as criminal in nature, the European Court of Human Rights has developed three criteria to help determine when a particular member state’s law' should be considered ‘criminal’ within the meaning of the European Convention. Rather than focusing on the severity of the prohibited behaviour, the criteria determine whether the Convention’s autonomous meaning of‘criminal’ has been met. The three criteria necessary' to identify a law' as criminal were first applied by' the European Court in Engel and Others v Netherlands and are (1) the classification given to the law’ by' the applicable state, (2) the nature of the offence,

Who has the right and when is it operable? 43 and (3) the possible punishment.[3] If the European Court determines that a law is criminal in nature, even if it classified differently, the accused is entitled to all of the fair trial rights listed in Article 6.

The first consideration must be about how the national jurisdiction classifies the prohibited activity because the inquiry will end if the forbidden act is already classified as criminal. This is logical because associating the prohibited action with domestic criminal law means that the national jurisdiction is already committed to guaranteeing that the accused will enjoy all of the fair trial protections, including the benefit of the presumption of innocence.

If a national jurisdiction does not identify the action under review as criminal, the European Court of Human Rights considers the second and third criteria, which are considered both alternatively and cumulatively. A law can be considered criminal in nature if either criterion is met; however, it is also possible for these criteria to be considered together, when neither is sufficient on its own, to permit a finding that the law being scrutinised is criminal in nature. To fulfil the second criterion, ‘the nature of the offence,’ the court examines the purpose of the law. Under this prong, a criminal law must apply to the general public and be designed to be punitive and have a deterrent effect, rather than to compensate for some loss. These requirements help clarify what is ‘criminal’ versus ‘civil’ in nature. For the third prong, involving the ‘the possible punishment,’ the court examines how punitive the maximum possible consequence of the law could be.

The more punitive the possible outcome, the more likely it is to be considered punishment and therefore criminal in nature. Thus, the repayment of funds or compensation for harm would be civil, while payment of a fine would indicate that the law is closer to being criminal.[4] Of course, if the punishment could result in imprisonment, the law would almost necessarily be criminal in nature, as imprisonment is exclusively a criminal law sanction and is the most severe punishment that member states of the European Convention on Human Rights can employ for criminal convictions. Taking the three criteria into account, a law not originally classified as ‘criminal’ in a national jurisdiction must be both criminal in nature and punitive in its effect in order to require the Convention’s Article 6 fair trial rights provisions.

The application of this process does not result in the reclassification of the domestic law but merely requires that the accused be given the full benefit of their fair trial rights during the proceedings. The European Court of Human Rights introduced this approach to stop countries from classifying laws that would normally be criminal or cany criminal penalties as administrative, disciplinary, or regulatory violations. The court felt that this sort of classification is contrary to the purpose of the European Convention. Further, by establishing criteria to determine when a law is ‘criminal,’ the European Court is able to reconcile the diverse legal systems of the member states in an effort to allow for consistency and fairness, at least with regard to the application of the European Convention on Human Rights, between the different countries.

This approach is consistent with the presumption of innocence. If the prohibited activity tends to be criminal in nature or if the outcome of the hearing could result in sanctions that resemble criminal punishment, then the presumption of innocence should be applicable regardless of whether the state classifies it as such. Ensuring that laws are properly classified prevents individuals from being punished without a conviction.

  • [1] See ICC Statute arts 5-8 (providing the issues that the Court has jurisdiction over genocide, crimes against humanity, war crimes); ICTY Statute arts 1-5 (providing the issues that the Court has jurisdiction over grave breaches of the Geneva Conventions of 1949, violations of law or customs of war, genocide, crimes against humanity). ICTR Statute arts 1-4 (providing issues over which the Court has jurisdiction - genocide, crimes against humanity, violations of article 3 common to the Geneva Conventions and of Additional Protocol II); SCSL Statute arts 1-5 (Providing issues over which the court has jurisdiction - crimes against humanity, violations of article 3 common to the Geneva Conventions and of Additional Protocol II, other serious violations of humanitarian law, certain crimes under Sierra Leonean Law); ECCC Statute arts 1-8 (providing jurisdiction over crimes - certain crimes under Cambodian law, genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, destruction of cultural property, crimes against internationally protected persons). 2 At the European Court of Human Rights, for example, member states are able to criminalise whatever behaviour they want so long as there is no interference with another right contained in the Convention. Engel and Others v Netherlands (1976) Series A no 22; Sec also Schabas, The European Convention on Human Rights (n 28) 278-279. 3
  • [2] Engel and Others (n 31). 2 Engel and Others (n 31); Öztürk (n 32) para 53; van Dijk and Viering (n 32) 546.
  • [3] Engel and Others (n 31). For commentary on this case see Harris, O’Boyle, Bates, Buckley (n 32) 373; van Dijk and Viering (n 32) 543 et seq. 2 Minelli v Switzerland (1983) series A no 62, para 28, Campbell and Fell v United Kingdom (1984) Series A no 80, para 70; Öztürk (n 32) para 51; Demicoli i> Malta (1991) Series A no 210, para 32; Harris, O’Boyle, Bates, Buckley (n 32) 373-374; van Dijk and Viering (n 32) 544. 3 Öztürk (n 32) para 53; Bendenoun v France (1994) Series A no 284, para 47; Lutz v Germany (1987) Series A no 123, s 55; Jussila v Finland ECHB.2006-XTV 1; van Dijk and Viering (n 32) 546, 548-549; Schabas, The European Convention on Human Rights (n 28) 277. 4 Öztürk (n 32) para 53; Lauko v Slovakia ECHR 1998-VI, para 58; van Dijk and Viering (n 32) 546. 5 Lauko (n 38) (Law must apply to the general public); Bendenoun (n 37) (the law should not be directed at a particular group); Weber v Switzerland (1990) Series A no 177, para 33 (‘Disciplinary sanctions are generally designed to ensure that the members of particular groups comply with the specific rules governing their conduct.’); Janosevic v Sweden ECHR 2002-VII 1 s 104, para 68 (law must be punitive); Porter v United Kingdom App No 15814/02 (ECtHR, 8 April 2003) (providing that surcharges are not punitive); Öztürk (n 32); EL, RL, and JO-L v Switzerland App No 20919/92 (ECtHR, 29 August 1997) paras 42, 46 (a finding of guilt is not necessary to determine whether the law is punitive in character); Tre Traktörer Aktiebolag v Sweden (1989) Series A no 159, para 46; Pierre-Bloch v France ECHR 1997-VI para 58 (both of these later cases state that even if the end result is severe, if it is compensatory or correcting in nature it does not qualify as punitive); van Dijk and Viering (n 32) 544-547; Harris, O’Boyle, Bates, Buckley (n 32) 374; Schabas, The European Convention on Human Rights (n 28) 277-278. 6
  • [4] Lauko (n 38); Morel v France ECHR 2003-IX 297; Matyjek v Poland App No 38184/03 (ECtHR, 24 April 2007) (lustration proceedings); Malige v France ECHR 1998-VII; Hamer v Belgium ECHR2007-V 45; A fine is not: Inocencio i> Portugal ECHB. 2001-1435; Pre Traktörer Aktiebolag (n 39). Cf Porter (n 39). 2 Engel and Others (n 31) para 82; Ezeh and Connors i> United Kingdom ECHR 2003-X 101, para 126; van Dijk and Viering (n 32) 549. 3 van Dijk and Viering (n 32) 544. 4 Engel and Others (n 31); van Dijk and Viering (n 32) 543; David J Harris, Harris, O’Boyle, Bates, Buckley (n 32) 373. 5 Harris, O’Boyle, Bates, Buckley (n 32) 373.
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