Source: Amnesty International, 2014.
National legal systems and international standards define terms related to fair trials in various ways. The following definitions seek to clarify the meanings of some terms as used in this Manual. These definitions are not always the same as those used in international standards or national laws.
Amparo
Amparo is a simple, prompt procedural remedy designed to give everyone recourse to a competent court for protection against acts that violate his or her fundamental rights.
Arrest
An arrest is “the act of depriving a person of liberty under governmental authority for the purpose of taking that person into detention and charging the person with a criminal offence”. It covers the period from the moment the person is placed under restraint up to the time the individual is brought before a competent authority that orders release or continued custody.
Commutation
When a sentence is commuted it means that the penalty has been replaced with a lighter or no penalty.
Courts and tribunals
Courts and tribunals are bodies that exercise judicial functions. They are established by law to determine matters within their competence on the basis of rules of law and in accordance with proceedings conducted in a prescribed manner. A tribunal is a broader concept than a court, but the terms are not used consistently in human rights instruments.
Criminal charge
A criminal charge is the official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence. Criminal charges may be formalized into a complaint or an indictment.
Criminal offence
For the purposes of the application of international fair trial standards, whether an act constitutes a criminal offence is determined independently of national law. The decision depends on both the nature of the act and the nature and severity of the possible penalty.
The classification of an act under national law is a consideration; however, whether the offence is classified as “criminal” in national law is not decisive. States cannot avoid applying international fair trial standards to a case by failing to classify an offence as criminal or by transferring jurisdiction from courts to administrative authorities.
Customary international law
Customary international law is a primary source of international legal obligations that are binding on all states, independent of their treaty obligations. The rules of customary international law come from “a general practice accepted as law”.
Deprivation of liberty
Deprivation of liberty is distinguished in international human rights law from restrictions on liberty or restrictions on the right to freedom of movement. The distinction between a restriction on freedom of movement and deprivation of liberty may be narrow or fluid, for
example, under an order assigning a person to live in a particular place (assigned residence).
In determining whether a person has been deprived of their liberty, the European Court has focused on the degree and intensity of the restriction. It has considered the type, duration, effects and manner of implementation of the measure in question and the context. Relevant factors include the possibility of leaving the restricted area, the degree of supervision and control over the individual’s movements, and the extent of the person’s isolation. When the facts indicate that a person has been deprived of liberty, a relatively short duration does not affect this conclusion.
Detention and remand detention
The term detention is used in this Manual when a person has been deprived of his or her liberty by a state authority (or with the state’s consent or acquiescence) for any reason other than being convicted of an offence. The person may be held in a public or private setting that they are not free to leave, including a police station, a pre-trial detention facility or under house arrest.
In criminal cases, there are different forms of pre-trial detention, including detention in a police station before being presented to a judge and remand detention. The term remand detention is used in this Manual to describe detention ordered by a judge before trial. It does not include deprivation of liberty for questioning by a police officer or other person authorized by law.
Habeas corpus
The writ of habeas corpus is a judicial remedy designed to protect personal liberty or physical integrity by means of a judicial decree ordering the appropriate authorities to bring the detained person before a judge so that the lawfulness of the detention may be determined and, if appropriate, the release of the detainee ordered. It is one of the procedures through which the legality of an individual’s detention may be challenged.
Imprisonment
The term imprisonment is used when a person has been deprived of his or her liberty as a result of being convicted of an offence. Imprisonment refers to deprivation of liberty following trial and conviction, while detention, in the context of the criminal justice process, refers to deprivation of liberty before and during trial.
Pardon
When a person receives a pardon it usually means that a prosecution, conviction and any enforceable penalty is voided in full, restoring the rights and privileges of a person. The power of pardon is usually held by the head of state.
Peremptory norm of international law (jus cogens)
The Vienna Convention on the Law of Treaties (Article 53) defines a peremptory norm of international law as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. Peremptory norms are also known by the Latin term jus cogens.
Torture and other cruel, inhuman or degrading treatment or punishment
Torture is defined in the Convention against Torture, for the purpose of applying the treaty, as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Such sanctions must, however, be lawful under both national and international standards. The Declaration against Torture states: “Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”
Human rights instruments do not set out a definition of cruel, inhuman or degrading treatment or punishment. This is consistent with the intent to provide the greatest possible protection for individuals against violations of their right to physical and mental integrity and respect for their inherent dignity.
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that the term “cruel, inhuman or degrading treatment or punishment” should be interpreted “so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time”.
Height Insoles: Hi, I do believe this is an excellent site. I stumbledupon …
http://fishinglovers.net: Appreciate you sharing, great post.Thanks Again. Keep writi…
Achilles Pain causes: Every weekend i used to pay a quick visit this site, as i w…
May 12, 2014
FAIR TRIAL MANUAL (1) – TERMS AND DEFINITIONS
by HR Defender • [Human Rights]
Source: Amnesty International, 2014.
Amparo
Amparo is a simple, prompt procedural remedy designed to give everyone recourse to a competent court for protection against acts that violate his or her fundamental rights.
Arrest
An arrest is “the act of depriving a person of liberty under governmental authority for the purpose of taking that person into detention and charging the person with a criminal offence”. It covers the period from the moment the person is placed under restraint up to the time the individual is brought before a competent authority that orders release or continued custody.
Commutation
When a sentence is commuted it means that the penalty has been replaced with a lighter or no penalty.
Courts and tribunals
Courts and tribunals are bodies that exercise judicial functions. They are established by law to determine matters within their competence on the basis of rules of law and in accordance with proceedings conducted in a prescribed manner. A tribunal is a broader concept than a court, but the terms are not used consistently in human rights instruments.
Criminal charge
A criminal charge is the official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence. Criminal charges may be formalized into a complaint or an indictment.
Criminal offence
For the purposes of the application of international fair trial standards, whether an act constitutes a criminal offence is determined independently of national law. The decision depends on both the nature of the act and the nature and severity of the possible penalty.
The classification of an act under national law is a consideration; however, whether the offence is classified as “criminal” in national law is not decisive. States cannot avoid applying international fair trial standards to a case by failing to classify an offence as criminal or by transferring jurisdiction from courts to administrative authorities.
Customary international law
Customary international law is a primary source of international legal obligations that are binding on all states, independent of their treaty obligations. The rules of customary international law come from “a general practice accepted as law”.
Deprivation of liberty
Deprivation of liberty is distinguished in international human rights law from restrictions on liberty or restrictions on the right to freedom of movement. The distinction between a restriction on freedom of movement and deprivation of liberty may be narrow or fluid, for
example, under an order assigning a person to live in a particular place (assigned residence).
In determining whether a person has been deprived of their liberty, the European Court has focused on the degree and intensity of the restriction. It has considered the type, duration, effects and manner of implementation of the measure in question and the context. Relevant factors include the possibility of leaving the restricted area, the degree of supervision and control over the individual’s movements, and the extent of the person’s isolation. When the facts indicate that a person has been deprived of liberty, a relatively short duration does not affect this conclusion.
Detention and remand detention
The term detention is used in this Manual when a person has been deprived of his or her liberty by a state authority (or with the state’s consent or acquiescence) for any reason other than being convicted of an offence. The person may be held in a public or private setting that they are not free to leave, including a police station, a pre-trial detention facility or under house arrest.
In criminal cases, there are different forms of pre-trial detention, including detention in a police station before being presented to a judge and remand detention. The term remand detention is used in this Manual to describe detention ordered by a judge before trial. It does not include deprivation of liberty for questioning by a police officer or other person authorized by law.
Habeas corpus
The writ of habeas corpus is a judicial remedy designed to protect personal liberty or physical integrity by means of a judicial decree ordering the appropriate authorities to bring the detained person before a judge so that the lawfulness of the detention may be determined and, if appropriate, the release of the detainee ordered. It is one of the procedures through which the legality of an individual’s detention may be challenged.
Imprisonment
The term imprisonment is used when a person has been deprived of his or her liberty as a result of being convicted of an offence. Imprisonment refers to deprivation of liberty following trial and conviction, while detention, in the context of the criminal justice process, refers to deprivation of liberty before and during trial.
Pardon
When a person receives a pardon it usually means that a prosecution, conviction and any enforceable penalty is voided in full, restoring the rights and privileges of a person. The power of pardon is usually held by the head of state.
Peremptory norm of international law (jus cogens)
The Vienna Convention on the Law of Treaties (Article 53) defines a peremptory norm of international law as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. Peremptory norms are also known by the Latin term jus cogens.
Torture and other cruel, inhuman or degrading treatment or punishment
Torture is defined in the Convention against Torture, for the purpose of applying the treaty, as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Such sanctions must, however, be lawful under both national and international standards. The Declaration against Torture states: “Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”
Human rights instruments do not set out a definition of cruel, inhuman or degrading treatment or punishment. This is consistent with the intent to provide the greatest possible protection for individuals against violations of their right to physical and mental integrity and respect for their inherent dignity.
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that the term “cruel, inhuman or degrading treatment or punishment” should be interpreted “so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time”.