citedLNations ACnE 187/3 Tenth Distr general United Nations Congress 14 December 1999 CM on the prevention of crime Original: english and the treatment of Offenders Vienna, 10-17 April 2000 Item 3 of the provisional agenda Promoting the rule of law and strengthening the criminal justice system Promoting the rule of law and strengthening the criminal justice system Working paper prepared by the secretariat A/CONF 187 99-90948(E)
* A/CONF.187/1. V.99-90948 (E) United Nations A/CONF.187/3 Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders Vienna, 10-17 April 2000 Distr.: General 14 December 1999 Original: English Item 3 of the provisional agenda* Promoting the rule of law and strengthening the criminal justice system Promoting the rule of law and strengthening the criminal justice system Working paper prepared by the Secretariat
A/CONF. 187/3 L. Introduction analyse in theory and even more difficult to develop in practice 1. The present paper is intended to inform and stimulate 3. The rule of law in criminal justice systems was discussion about the rule of law, with a focus on issues that largely overlooked in discussions about sustainable are important for the development and maintenance of economic development and was often addressed only effective criminal justice systems. It will be seen that there tangentially in discussions about the protection of human are differing concepts of the rule of law and that taken rights. The idea that rule of law reforms would generally broadly it covers a very wide range of legal and social make criminal justice systems actually work better, by issues. To permit discussion on a uniform basis, the paper making them both more effective as crime-control systems therefore begins with a discussion of the nature of the rule and more just and protective of human rights, has not f law and in particular those elements of greatest impor- figured prominently in the debate thus far. This tance for criminal justice. It then considers the significance prising, since the rule of law is arguably more important in of the rule of law as a goal of sustainable development and criminal matters than in many other areas of the law as a means of supporting the achievement of other "The legality ideal confronts its sternest tests in the development goals. Offences involving terrorism, corruption and organized crime raise unique problems for area of criminal justice. This is true for at least two the rule of law. and these are considered. transnational reasons: First, the implications of arbitrary exertion crime, which may or may not be committed by organized of state power are particularly somber here because criminal groups, also constitutes a new challenge to of the severity of the sanctions administrated by the conventional models of the rule of law because the rule of criminal law and the status-degrading potency of law is based on a traditional framework in which sovereign riminal proceedings. Second, the threat ofcrime and powers, including those to make, enforce and administer the outrage it produces tempt officials to perpetrate the law. are exercised at the national level. the advent of and the public to approve carelessness toward and new transportation and communication technologies sometimes disregard of the legality of their efforts at creates the potential for increases in transnational crime The reaction of the international community, and the 4. To this might be added another more fundamental challenges that it may face in the future are discussed in concern. The very nature of the criminal justice systems erms of the rule of law and sanctions makes them the ultimate instrument for turning the rule of law itself into a mechanism of repres al I. Background 2. Discussion of the rule of occupied criminologists Ill. Nature of the rule of law during much of the latter half of the twentieth century. It was seen as a remedy for human rights abuses and, for a 5. Perhaps the most important point that must be made at the outset of any discussion of this subject is that there and socialism was a battleground of the cold war. Towards is no universal agreement as to what the term"rule of law" the close of the century, the rule of law became a focus for actually means. Much of what follows is a matter of fairly development projects, which saw it as a means of suppor- broad consensus, but by no means unanimous agreement ting the implementation of economic and human rights The rule of law is a system of interrelated principles that reforms and, on occasion, as an end in itself. Practical extend widely into social, economic, cultural and other experience with such development eventually led to a more realistic assessment of the difficulties of developing the structures in present-day societies. For the purposes of rule of law and to the real ization that it is the rule oflaw discussion one must distinguish between those elements or principles which are cen tral to the rule of law and those practice, and not in theory, that matters. It also led to which are ancillary to it. At the same time, any such serious questions about the nature of the rule of law not xercise must to some degree be arbitrary: almost every only as a legal construct, but as a much broader framework element of those structures supports the rule of law or is of social values and cultural beliefs that are difficult to supported by it, or in many cases, both
A/CONF.187/3 2 I. Introduction 1. The present paper is intended to inform and stimulate discussion about the rule of law, with a focus on issues that are important for the development and maintenance of effective criminal justice systems. It will be seen that there are differing concepts of the rule of law and that taken broadly it covers a very wide range of legal and social issues. To permit discussion on a uniform basis, the paper therefore begins with a discussion of the nature of the rule of law and in particular those elements of greatest importance for criminal justice. It then considers the significance of the rule of law as a goal of sustainable development and as a means of supporting the achievement of other development goals. Offences involving terrorism, corruption and organized crime raise unique problems for the rule of law, and these are considered. Transnational crime, which may or may not be committed by organized criminal groups, also constitutes a new challenge to conventional models of the rule of law because the rule of law is based on a traditional framework in which sovereign powers, including those to make, enforce and administer the law, are exercised at the national level. The advent of new transportation and communication technologies creates the potential for increases in transnational crime. The reaction of the international community, and the challenges that it may face in the future, are discussed in terms of the rule of law. II. Background 2. Discussion of the rule of law occupied criminologists during much of the latter half of the twentieth century. It was seen as a remedy for human rights abuses and, for a time, the debate between the legalities of the rule of law and socialism was a battleground of the cold war. Towards the close of the century, the rule of law became a focus for development projects, which saw it as a means of supporting the implementation of economic and human rights reforms and, on occasion, as an end in itself. Practical experience with such development eventually led to a more realistic assessment of the difficulties of developing the rule of law and to the realization that it is the rule of law in practice, and not in theory, that matters. It also led to serious questions about the nature of the rule of law not only as a legal construct, but as a much broader framework of social values and cultural beliefs that are difficult to analyse in theory and even more difficult to develop in practice. 3. The rule of law in criminal justice systems was largely overlooked in discussions about sustainable economic development and was often addressed only tangentially in discussions about the protection of human rights. The idea that rule of law reforms would generally make criminal justice systems actually work better, by making them both more effective as crime-control systems and more just and protective of human rights, has not figured prominently in the debate thus far. This is surprising, since the rule of law is arguably more important in criminal matters than in many other areas of the law. “The legality ideal confronts its sternest tests in the area of criminal justice. This is true for at least two reasons: First, the implications of arbitrary exertions of state power are particularly somber here because of the severity of the sanctions administrated by the criminal law and the status-degrading potency of criminal proceedings. Second, the threat of crime and the outrage it produces tempt officials to perpetrate and the public to approve carelessness toward and sometimes disregard of the legality of their efforts at crime suppression.”1 4. To this might be added another more fundamental concern. The very nature of the criminal justice systems and sanctions makes them the ultimate instrument for turning the rule of law itself into a mechanism of repression for political, social, economic or other purposes. III. Nature of the rule of law 5. Perhaps the most important point that must be made at the outset of any discussion of this subject is that there is no universal agreement as to what the term “rule of law” actually means. Much of what follows is a matter of fairly broad consensus, but by no means unanimous agreement. The rule of law is a system of interrelated principles that extend widely into social, economic, cultural and other structures in present-day societies. For the purposes of discussion, one must distinguish between those elements or principles which are central to the rule of law and those which are ancillary to it. At the same time, any such exercise must to some degree be arbitrary: almost every element of those structures supports the rule of law or is supported by it, or in many cases, both
A/CONF. 187/3 6. This is particularly true of human rights issues. IV. Some elements or requirements of Commentaries are divided as to whether human rights individually or in general, ought to be considered elements the rule of law of the rule of law or something else that may be suppo by the rule of law but that are not essential to it. The A. The law must be comprehensive present paper resolves the issue by considering rights indi- vidually. Some, such as rights relating to access to counsel, 9. The essence of judicial decision-making is that it the courts and effective remedies, are directly essential to involves the application of legal rules and not other the rule of law. Others are not, although many do support less-tangible considerations to whatever facts are at hand the rule of law indirectly. Freedom of expression supports To replace purely ad hoc decision-making, the law must viable, legitimate and self-regulating structures to formulate public policy and develop legislation, for provide rules on which decisions can be based. The details example. It must be emphasized, however, that this is more must exist when called upon. Legal systems commonly a question of degree than of distinction, and the position incorporate legislative mechanisms that develop or adjust taken here should be regarded as the drawing of a line for laws to keep pace with social changes and judicial and purposes of discussion rather than as a fundamental tatement about the nature of the rule of law advisory mechanisms to interpret and apply general rules to specific situations. Underlying these are default rules 7. A second fundamental point is that discussions often that govern situations in which no other rule exists. In focus on elements of the rule of law to the point where the criminal justice systems, the principle nulla poena sine nature of the rule of law itself can be overlooked. The rule lege-that there be no criminal liability or punishment of law is a system of principles that relate to the legal unless the act committed constituted an offence in law governance of societies, but it is not itself primarily a legal when it occurred-is an example of this system In systems where it is well-developed, the rule of law is a much broader and more deeply rooted social and cultural structure. It effectively anchors and stabilizes B. The law must be clear, certain and legality, while maintaining a firm connection to social accessible development and cha ange. ensure ring that laws and legal practices keep pace. This has profound implications for 10. Criminal law must be sufficiently clear to guide both those seeking to develop the rule of law where it is absent, executive and judicial decision-making. It must also be if it has been absent for some time or never existed to understood by the general population, which is generally presumed to know it and expected to comply with it. The 8. The development of legal infrastructure is essential drafting itself may not be clear to the average person, but to the rule oflaw, but also essential, and far more difficult it must be clear and certain enough to form the basis of to develop, are social and cultural traditions of legitimacy, commentary by others, including professional lawyers and acceptance of legal authority and respect for law Building judges. Criminal justice measures can lead to the most new courts of law or law schools and training those who extreme of consequences for those accused of crimes, will work in them may take a few years, but the develop- which requires a high degree of certainty ment of truly solid traditions of legality is apt to be a 11. Most people do not read statutes. They understand process spread over several generations. What might be the laws that are relevant to their activities through com done over the shorter term is to develop social conditions mentaries and publications ranging from government and that will lead to the adoption of a rule of law tradition over professional gazettes to the documents of interest groups time. It is also possible to provide the infrastructure needed and the public media, and the viability of these in pro to make the rule of law both viable and preferable to other viding diverse, accurate and accessible information is an means of governance. One must, however, be realistic in important support structure for the rule of law in civil assessing goals and expectations societies. where more detailed or authoritative information is needed, professional legal counsel may be sought, and the availability and accessibility of counsel is also important, not only in proceedings but in providing general advice as well
A/CONF.187/3 3 6. This is particularly true of human rights issues. Commentaries are divided as to whether human rights, individually or in general, ought to be considered elements of the rule of law or something else that may be supported by the rule of law but that are not essential to it. The present paper resolves the issue by considering rights individually. Some, such as rights relating to access to counsel, the courts and effective remedies, are directly essential to the rule of law. Others are not, although many do support the rule of law indirectly. Freedom of expression supports viable, legitimate and self-regulating structures to formulate public policy and develop legislation, for example. It must be emphasized, however, that this is more a question of degree than of distinction, and the position taken here should be regarded as the drawing of a line for purposes of discussion rather than as a fundamental statement about the nature of the rule of law. 7. A second fundamental point is that discussions often focus on elements of the rule of law to the point where the nature of the rule of law itself can be overlooked. The rule of law is a system of principles that relate to the legal governance of societies, but it is not itself primarily a legal system. In systems where it is well-developed, the rule of law is a much broader and more deeply rooted social and cultural structure. It effectively anchors and stabilizes legality, while maintaining a firm connection to social development and change, ensuring that laws and legal practices keep pace. This has profound implications for those seeking to develop the rule of law where it is absent, if it has been absent for some time or never existed to begin with. 8. The development of legal infrastructure is essential to the rule of law, but also essential, and far more difficult to develop, are social and cultural traditions of legitimacy, acceptance of legal authority and respect for law. Building new courts of law or law schools and training those who will work in them may take a few years, but the development of truly solid traditions of legality is apt to be a process spread over several generations. What might be done over the shorter term is to develop social conditions that will lead to the adoption of a rule of law tradition over time. It is also possible to provide the infrastructure needed to make the rule of law both viable and preferable to other means of governance. One must, however, be realistic in assessing goals and expectations. IV. Some elements or requirements of the rule of law A. The law must be comprehensive 9. The essence of judicial decision-making is that it involves the application of legal rules and not other less-tangible considerations to whatever facts are at hand. To replace purely ad hoc decision-making, the law must provide rules on which decisions can be based. The details of rule-making may vary, but the basic rules themselves must exist when called upon. Legal systems commonly incorporate legislative mechanisms that develop or adjust laws to keep pace with social changes and judicial and advisory mechanisms to interpret and apply general rules to specific situations. Underlying these are default rules that govern situations in which no other rule exists. In criminal justice systems, the principle nulla poena sine lege—that there be no criminal liability or punishment unless the act committed constituted an offence in law when it occurred—is an example of this. B. The law must be clear, certain and accessible 10. Criminal law must be sufficiently clear to guide both executive and judicial decision-making. It must also be understood by the general population, which is generally presumed to know it and expected to comply with it. The drafting itself may not be clear to the average person, but it must be clear and certain enough to form the basis of commentary by others, including professional lawyers and judges. Criminal justice measures can lead to the most extreme of consequences for those accused of crimes, which requires a high degree of certainty. 11. Most people do not read statutes. They understand the laws that are relevant to their activities through commentaries and publications ranging from government and professional gazettes to the documents of interest groups and the public media, and the viability of these in providing diverse, accurate and accessible information is an important support structure for the rule of law in civil societies. Where more detailed or authoritative information is needed, professional legal counsel may be sought, and the availability and accessibility of counsel is also important, not only in proceedings but in providing general advice as well
A/CONF. 187/3 12. Accessibility is also a requirement for legislative and not only on the legitimacy of the rule itself, but also on the judicial proceedings. Openness and transparency in popular belief that those who apply or enforce it do so with legislative proceedings supports the popular legitimacy of fairness, consistency and transparency. This applies to a the legislation that results. The same is true for judicial broad class of public servants who apply legal rules in a proceedings in which precedents are set or law is made. wide range of circumstances, but it is particularly critical Transparency is also important to the integrity and the in the case of elements of criminal justice systems such as perceived integrity or legitimacy ofjudicial proceedings in law enforcement, prosecutors and the criminal courts. In general. This requires the existence of independent and this sense, criminal justice systems are not only supported competent commentators, who must be given access to the by the rule of law, but also support it in turn. Consider, for courts and legislative proceedings, and to media that can example, cases in which the most powerful members of be used to disseminate accurate information about them to society are suspected of crimes. The system relies on rule the general population of law elements such as equality and independence to ensure that they cannot use their power to escape liability At the same time, the ability of the system to deal effec- C. The law must be legitimate: consent and tively with such cases protects the rule of law from undue compliance influences, such as bribery and intimidation. More generally such cases, if successfully concluded, set legal 13. In any society, the rule of law depends on the fact and social precedents that can strengthen the rule of law that the majority of people confronted with legal rules, (d) Legitimacy of support structures. As noted with them, thereby keeping the private life, will comply above, the rule of law is rooted in other elements of the whether in official functions or cases of non-compliance social structure, from which it draws support and stability within manageable levels. This depends to a large degree The legitimacy of legalism itself, therefore, depends to on what has been described as the"legitimacy"of the law, some degree on the popular legitimacy of many of those which in turn depends on several key factors, including: structures as well. For example, the legitimacy of the law (a) Legislative legitimacy. There must be legiti- and judicial proceedings depends to a significant extent on macy on the part of the lawmakers or the law will not be the degree to which they are reported accurately by the respected In democratic systems, this takes the form ofthe media, which depends in turn on the perception that the political accountability afforded by periodic elections, but media are both competent and independent of the State and there may be other legitimizing factors as well. Individuals the proceedings themselves. Support structures from within may sometimes govern successfully because of their criminal justice systems are also important. The openness, personal popularity or religious authority, for example, transparency and effective governance of lawenforcement (b)Legitimacy of policy. Transparency and acces- prosecutorial, judicial and penal structures support not ity of the policy development and legislative process of the rule of law itself. In most societies criminal justice affected by a particular rule had some influence on its be greatly reinforced or badly damaged, depending creation increases the legitimacy of the rule itself. Even those who disagree with a law will usually comply if there whether those structures are seen as fair, independent and is the perception that it was arrived at after full and fair effective consideration of other options. a broader range of input through popular consultation, legislative study and open D. The law must balance stability and debate also tends to mitigate or exclude unnecessarily difficult or cumbersome rules. The open discussion of flexibility issues and options also serves to educate the population, 14. Rule of law elements such as accessibility and leading to better understanding, and hence greater com- pliance, with the new law legitimacy also depend to some degree on a satisfactory balance between stability and flexibility in both laws and the abstract, but in its application to everyday situations policy will be uncertain and laws will lack legitimacy and ordinary people. Compliance depends to a large degree Rules made by short-term Governments tend to be seen as
A/CONF.187/3 4 12. Accessibility is also a requirement for legislative and judicial proceedings. Openness and transparency in legislative proceedings supports the popular legitimacy of the legislation that results. The same is true for judicial proceedings in which precedents are set or law is made. Transparency is also important to the integrity and the perceived integrity or legitimacy of judicial proceedings in general. This requires the existence of independent and competent commentators, who must be given access to the courts and legislative proceedings, and to media that can be used to disseminate accurate information about them to the general population. C. The law must be legitimate: consent and compliance 13. In any society, the rule of law depends on the fact that the majority of people confronted with legal rules, whether in official functions or private life, will comply with them, thereby keeping the cases of non-compliance within manageable levels. This depends to a large degree on what has been described as the “legitimacy” of the law, which in turn depends on several key factors, including: (a) Legislative legitimacy. There must be legitimacy on the part of the lawmakers or the law will not be respected. In democratic systems, this takes the form of the political accountability afforded by periodic elections, but there may be other legitimizing factors as well. Individuals may sometimes govern successfully because of their personal popularity or religious authority, for example; (b) Legitimacy of policy. Transparency and accessibility of the policy development and legislative process is also needed for legitimacy. The perception that those affected by a particular rule had some influence on its creation increases the legitimacy of the rule itself. Even those who disagree with a law will usually comply if there is the perception that it was arrived at after full and fair consideration of other options. A broader range of input through popular consultation, legislative study and open debate also tends to mitigate or exclude unnecessarily difficult or cumbersome rules. The open discussion of issues and options also serves to educate the population, leading to better understanding, and hence greater compliance, with the new law; (c) Legitimacy of application. Law operates not in the abstract, but in its application to everyday situations and ordinary people. Compliance depends to a large degree not only on the legitimacy of the rule itself, but also on the popular belief that those who apply or enforce it do so with fairness, consistency and transparency. This applies to a broad class of public servants who apply legal rules in a wide range of circumstances, but it is particularly critical in the case of elements of criminal justice systems such as law enforcement, prosecutors and the criminal courts. In this sense, criminal justice systems are not only supported by the rule of law, but also support it in turn. Consider, for example, cases in which the most powerful members of society are suspected of crimes. The system relies on rule of law elements such as equality and independence to ensure that they cannot use their power to escape liability. At the same time, the ability of the system to deal effectively with such cases protects the rule of law from undue influences, such as bribery and intimidation. More generally such cases, if successfully concluded, set legal and social precedents that can strengthen the rule of law; (d) Legitimacy of support structures. As noted above, the rule of law is rooted in other elements of the social structure, from which it draws support and stability. The legitimacy of legalism itself, therefore, depends to some degree on the popular legitimacy of many of those structures as well. For example, the legitimacy of the law and judicial proceedings depends to a significant extent on the degree to which they are reported accurately by the media, which depends in turn on the perception that the media are both competent and independent of the State and the proceedings themselves. Support structures from within criminal justice systems are also important. The openness, transparency and effective governance of law enforcement, prosecutorial, judicial and penal structures support not only the credibility of those institutions, but the legitimacy of the rule of law itself. In most societies criminal justice matters have a very high public profile. The rule of law can be greatly reinforced or badly damaged, depending on whether those structures are seen as fair, independent and effective. D. The law must balance stability and flexibility 14. Rule of law elements such as accessibility and legitimacy also depend to some degree on a satisfactory balance between stability and flexibility in both laws and law-making. If Governments change too frequently, public policy will be uncertain and laws will lack legitimacy. Rules made by short-term Governments tend to be seen as
A/CONF. 187/3 driven by partisan politics rather than public policy, and would not necessarily be inconsistent with the rule of law those who disagree may choose not to comply if it seems provided that the discrimination was prescribed by law likely that the Government and its policies may not last. This can be contrasted with cases in which a law that is not Frequent changes also erode the ability of commentators to discriminatory is applied in a manner that doe provide informed assessments of the law and for members discriminate, which would not be consistent with the rule of the public to understand it. Too much stability in of law. Governments or laws. on the other hand. creates the impression that neither legislators nor legislation are still linked to the evolving needs of society This can lead to F. Institutional independence and the pressure for extreme forms of political change and a separation of powers widespread perception that the law is irrelevant. This can in turn lead Governments to use repressive measures to 17. The integrity of the rule of law and legal structures is compel compliance and populations to seek out non-legal commonly protected by distributing powers among dis- structures for governance, dispute settlement and other parate actors or agencies that can then act as controls on one another. This includes judicial independence and structures such as the legislative/executive/judicial separa- tion of powers proposed by Montesquieu and found in E. Equality before the law many modern constitutions. It also includes the separation of more mundane public administration into numerous 15. Originally, equality before the law meant that agencies, preventing any single centre of power from individuals and the State must be equal before the law. achieving dominance. The rule of law is itself a form of This remains an important principle, but modern concepts power dispersion because it sets up legal principles as a have expanded it to encompass the general equality of control on social, economic or other pressures in society everyone concerned with the law. What is important for the and vice versa rule of law is that everyone should be equal before the law, 18. The high degree of independence needed for judicial regardless of power, wealth, individual or corporate status functions makes them something of a special case and or other characteristics not directly relevant to the issues at hand In individual-State matters, the State and its officials warrants specific comment(see below), but it should be should be bound by their own laws, subject to the same borne in mind that judicial independence and other forms scrutiny and sanctions for non-compliance, and stand on an of power dispersal are interdependent. Truly independent equal footing with individuals in legal disputes between the judicial decisions and judge-made laws require inde two. The idea of general equality before the law has pendent judges, but also independent input into the process assumed greater importance in recent decades, as powerful from prosecutors, other lawyers and law enforcement non-State parties, ranging from multinational corporations agencies. The courts cannot deal effectively with cases if and interest groups to transnational organized-crime corruption or other undue influences on law enforcement groups, have emerged. Equality is essential tonsuring that distort evidence or argument once they are there. The legal determinations are made on the basis of legal rules as independence of lawyers and the media is also important opposed to the status of the parties involved. This is for other elements of the rule of law, notably equality in needed not only for basic fairness, but also to ensure the legal proceedings and access to the law through competent predictability of outcomes and independent advice 16. It is important to note that equality as a rule of law concept is much more narrowly drawn than its human 19. The independence of judges themselves involves not rights counterpart. In human rights terms, law is often seen only judicial employment, court and administrative prac- tices and discipline, but also more far-reaching matters remedies for various forms ofdiscrimination. Inrule oflaw such as judicial selection, training and, increasingly, terms, substantive equality can be limited by the law itself, periodic retraining to keep judges abreast of relevant lega and social developments. Reasons given for the higher provided that the other basic requirements of legality are degree of independence accorded Judges include the met. Laws that discriminate on criteria such as race, gender following or religion may infringe basic rights guarantees, but they
A/CONF.187/3 5 driven by partisan politics rather than public policy, and those who disagree may choose not to comply if it seems likely that the Government and its policies may not last. Frequent changes also erode the ability of commentators to provide informed assessments of the law and for members of the public to understand it. Too much stability in Governments or laws, on the other hand, creates the impression that neither legislators nor legislation are still linked to the evolving needs of society. This can lead to pressure for extreme forms of political change and a widespread perception that the law is irrelevant. This can in turn lead Governments to use repressive measures to compel compliance and populations to seek out non-legal structures for governance, dispute settlement and other matters. E. Equality before the law 15. Originally, equality before the law meant that individuals and the State must be equal before the law. This remains an important principle, but modern concepts have expanded it to encompass the general equality of everyone concerned with the law. What is important for the rule of law is that everyone should be equal before the law, regardless of power, wealth, individual or corporate status or other characteristics not directly relevant to the issues at hand. In individual-State matters, the State and its officials should be bound by their own laws, subject to the same scrutiny and sanctions for non-compliance, and stand on an equal footing with individuals in legal disputes between the two. The idea of general equality before the law has assumed greater importance in recent decades, as powerful non-State parties, ranging from multinational corporations and interest groups to transnational organized-crime groups, have emerged. Equality is essential to ensuring that legal determinations are made on the basis of legal rules as opposed to the status of the parties involved. This is needed not only for basic fairness, but also to ensure the predictability of outcomes. 16. It is important to note that equality as a rule of law concept is much more narrowly drawn than its human rights counterpart. In human rights terms, law is often seen as the means of achieving substantive equality or providing remedies for various forms of discrimination. In rule of law terms, substantive equality can be limited by the law itself, provided that the other basic requirements of legality are met. Laws that discriminate on criteria such as race, gender or religion may infringe basic rights guarantees, but they would not necessarily be inconsistent with the rule of law, provided that the discrimination was prescribed by law. This can be contrasted with cases in which a law that is not discriminatory is applied in a manner that does discriminate, which would not be consistent with the rule of law. F. Institutional independence and the separation of powers 17. The integrity of the rule of law and legal structures is commonly protected by distributing powers among disparate actors or agencies that can then act as controls on one another. This includes judicial independence and structures such as the legislative/executive/judicial separation of powers proposed by Montesquieu and found in many modern constitutions. It also includes the separation of more mundane public administration into numerous agencies, preventing any single centre of power from achieving dominance. The rule of law is itself a form of power dispersion because it sets up legal principles as a control on social, economic or other pressures in society and vice versa. 18. The high degree of independence needed for judicial functions makes them something of a special case and warrants specific comment (see below), but it should be borne in mind that judicial independence and other forms of power dispersal are interdependent. Truly independent judicial decisions and judge-made laws require independent judges, but also independent input into the process from prosecutors, other lawyers and law enforcement agencies. The courts cannot deal effectively with cases if corruption or other undue influences on law enforcement or prosecutors prevent them from coming into court or distort evidence or argument once they are there. The independence of lawyers and the media is also important for other elements of the rule of law, notably equality in legal proceedings and access to the law through competent and independent advice. 19. The independence of judges themselves involves not only judicial employment, court and administrative practices and discipline, but also more far-reaching matters such as judicial selection, training and, increasingly, periodic retraining to keep judges abreast of relevant legal and social developments. Reasons given for the higher degree of independence accorded judges include the following:
A/CONF. 187/3 (a) Independence helps to ensure fairness and (d) The right not to be subject to arbitrary arrest, consistency in dispute settlement and criminal prosecutions detention, search or seizure in the course of criminal by eliminating irregular or undue influences on the proceedings, (e) The right of access to independent courts (b) Independence distances the judges who inter- interim proceedings, at trial and while incarcerated,in pret laws from the legislative bodies that enact them and order to question actions taken by the State he executive bodies that administer them (f The right to effective remedies, including (c) Independence is needed to ensure that the meaningful appeals, against the State, in interim and final courts can be effective in holding other branches of proceedings and while incarcerated government accountable for their actions and in correcting heir interpretations of the law (g) The right to have proceedings dealt with expeditiously, in particular if liberty or other significant (d) Independence from other branches of govern- interests are prejudiced or curtailed while proceedings are ment is needed for objectivity in applying constitutional pending or ongoing rules related to the separation of powers 21. All of the foregoing are rights exercised primarily by (e) Independence is essential for ensuring the those suspected or charged in criminal cases and their popular legitimacy of courts, both as decision makers in major significance for the rule of law is that, if there is settling disputes and, where judges make law, as law- access to independent courts, they function as a form of makers independent control on the quality of the proceedings. The rights of victims and witnesses, a growing concern in our societies. sometimes serve a similar function. These G. Legal rights as elements of the rule of law include the following (a) The right of victims or other private parties 20. Human rights in general can be distinguished from lay and prosecute criminal the rule of law, but some legal rights are necessary cannot or will not do sg.charges in cases where the State elements. Laws can govern behaviour and settle dispute only if those who have legal concerns have meaningful (b) The right of victims to monitor and to some access to accurate information and competent advice about degree to participate in proceedings such as criminal trials, the law. Individuals can use the rule of law as a control on plea negotiations and decisions concerning the release of State acts only if those affected have meaningful access to suspects or convicted offenders on bail or parole the courts and effective remedies against the state. This is (c) The right to security and protection from inti- true of law in general, but it is particularly critical in the midation or retribution for having initiated or assisted in case of criminal law and proceedings be cause criminal proceeding severity of the sanctions that can be imposed and the degree to which they can interfere with otherwise established basic human rights. Legal rights that are V. The rule of law and development important to ensuring the rule of law in criminal justice systems include the following 22. Strengthening the rule of law has emerged as a focus (a) The right not to be prosecuted for offences that of development efforts in recent years. Projects have did not exist in law when committed or that are too vague tended to focus on the relatively concrete goals of streng- or uncertain to inform individuals as to what is a crime and thening legal infrastructure rather than underlying social or cultural reforms. When projects have addressed crimina (b) The right to be informed about the nature and Justice systems, they have dealt with areas such as the substance of any criminal charges and the status of training of Police officials, lawyers, prosecutors and criminal proceedings; judges, the equipping of those officials with resources and materials ranging from uniforms and computers to court- (c) The right to competent and independent houses and law libraries; the enhancement of capacity to counsel and, more generally, the right to mount a full and develop public policy and to formulate, draft and enact fair defence to criminal charges legislation; and the enhancement of State and
A/CONF.187/3 6 (a) Independence helps to ensure fairness and consistency in dispute settlement and criminal prosecutions by eliminating irregular or undue influences on the process; (b) Independence distances the judges who interpret laws from the legislative bodies that enact them and the executive bodies that administer them; (c) Independence is needed to ensure that the courts can be effective in holding other branches of government accountable for their actions and in correcting their interpretations of the law; (d) Independence from other branches of government is needed for objectivity in applying constitutional rules related to the separation of powers; (e) Independence is essential for ensuring the popular legitimacy of courts, both as decision makers in settling disputes and, where judges make law, as lawmakers. G. Legal rights as elements of the rule of law 20. Human rights in general can be distinguished from the rule of law, but some legal rights are necessary elements. Laws can govern behaviour and settle disputes only if those who have legal concerns have meaningful access to accurate information and competent advice about the law. Individuals can use the rule of law as a control on State acts only if those affected have meaningful access to the courts and effective remedies against the State. This is true of law in general, but it is particularly critical in the case of criminal law and proceedings because of the severity of the sanctions that can be imposed and the degree to which they can interfere with otherwise established basic human rights. Legal rights that are important to ensuring the rule of law in criminal justice systems include the following: (a) The right not to be prosecuted for offences that did not exist in law when committed or that are too vague or uncertain to inform individuals as to what is a crime and what is not; (b) The right to be informed about the nature and substance of any criminal charges and the status of criminal proceedings; (c) The right to competent and independent counsel and, more generally, the right to mount a full and fair defence to criminal charges; (d) The right not to be subject to arbitrary arrest, detention, search or seizure in the course of criminal proceedings; (e) The right of access to independent courts, in interim proceedings, at trial and while incarcerated, in order to question actions taken by the State; (f) The right to effective remedies, including meaningful appeals, against the State, in interim and final proceedings and while incarcerated; (g) The right to have proceedings dealt with expeditiously, in particular if liberty or other significant interests are prejudiced or curtailed while proceedings are pending or ongoing. 21. All of the foregoing are rights exercised primarily by those suspected or charged in criminal cases and their major significance for the rule of law is that, if there is access to independent courts, they function as a form of independent control on the quality of the proceedings. The rights of victims and witnesses, a growing concern in our societies, sometimes serve a similar function. These include the following: (a) The right of victims or other private parties to lay and prosecute criminal charges in cases where the State cannot or will not do so; (b) The right of victims to monitor and to some degree to participate in proceedings such as criminal trials, plea negotiations and decisions concerning the release of suspects or convicted offenders on bail or parole; (c) The right to security and protection from intimidation or retribution for having initiated or assisted in criminal proceedings. V. The rule of law and development 22. Strengthening the rule of law has emerged as a focus of development efforts in recent years. Projects have tended to focus on the relatively concrete goals of strengthening legal infrastructure rather than underlying social or cultural reforms. When projects have addressed criminal justice systems, they have dealt with areas such as the training of police officials, lawyers, prosecutors and judges; the equipping of those officials with resources and materials ranging from uniforms and computers to courthouses and law libraries; the enhancement of capacity to develop public policy and to formulate, draft and enact legislation; and the enhancement of State and
A/CONF. 187/3 non-governmental capacity to disseminate legislation and several ways. Legal rights that can be asserted by suspects informed comment on legislation. A number of lessons and offenders against the system protect other basic right have already been learned from such efforts sometimes at the cost of crime control, but such pro- 23. One lesson is that coherence or coordination is ceedings also support the system by identifying problems essential in developing individual reforms. Piecemeal and generating solutions. Ways are found to conduct the reforms that alter only one element of a justice system may business of crime control effectively within a framework of distort others, and in many cases no benefits can be basic rule of law and human rights. The rule of law also achieved by reforms in one area without correspondi increases the certainty and legitimacy of the law, which improvements in others. Ill-conceived re form packages brings benefits in the form of greater compliance and more may actually do more harm than good by damaging courts. Perhaps the greatest benefit, however, is that rule confidence in the system and future reform attempts Expandinglaw-enforcement and prosecutorial capacity, for of law reforms, by treating like cases alike, result in example, will simply generate backlogs in the courts and standardization in areas such as law-making, adminis hardship conditions in prisons without corresponding trative and judicial interpretation of the law, enforcement and other areas, which can greatly increase both effectiveness and efficiency 24. When considered as comprehensive packages, the magnitude of development efforts also suggests that rule of 27. Development efforts of recent years have also law reforms are important as a goal in themselves and not established that changes in legal systems alone will not Just because they are needed to support other objectives. bring about the rule of law in societies where the trad Rule of law projects during the 1980s and early 1990s itional or cultural values necessary to support it are not tended to develop rule of law measures in support ofeither present Legitimacy, legality and popular support for the economic "sustainable development programmes rule oflaw must be developed to the point where those who (including World Bank, Organization for Economic are adversely affected by legal rules are unable or Cooperation and Development and nd bilateral development unwilling to resort to non-legal means. This requires open- projects)or as a mechanism for the protection of basic ness and transparency in the formulation of public policy human rights(such as United Nations projects ). This raises the legislative process, the administration of the law and the possibility that those involved in such projects will Judicial proceedings. If these are present, popular confi- overlook or underemphasize aspects of the rule oflaw that dence in the law will be established over time. Ultimately are not essential to their own objectives civil society, including its most powerful members, that 25. Rule of law development for its own sake or reform their best interest lies with the advantages of public of other areas such as criminal law may in some cases be security, social stability, economic prosperity and general seen as secondary to economic development, or even as an quality of life generated by rule of law reforms impediment to it. Human rights projects have a greater interest in criminal iustice reform because of the need to 28. The lessons learned thus far suggest several con- protect rights in the course of criminal proceedings, but siderations for future efforts. Firstly, those invol ved in that relationship may also sometimes be an uneasy one. human rights or economic projects should also be con- There is generally some tension between human rights and cerned about the criminal justice effects of proposed the effectiveness of criminal justice systems because the reforms. Development projects attract corrupt influences, rights of criminal suspects are often protected by imposing and re forms that increase economic activity or attract investment may also increase criminal opportunities, in substantive or procedural requirements on police and some cases to an even greater extent than legitimate ones prosecutors, supported by some form of remedy for the suspect whose rights are infringed upon. In this context Crime control elements can often be"built in"to such references to"strengthening of the rule of law"by the programmes, but only if the necessary rule of law infra- United Nations would probably not be seen by some in the structure is there to support them. Changing crime patterns criminal justice professions as the strengthening of crimi- brought about by such reforms may also place added pressure on underdeveloped justice systems to protect the new interests while maintaining adequate standards in 26. In a larger sense, however, strengthening the rule of other areas. Changes that strengthen human rights law does indeed strengthen criminal Justice systems in protections should do so where possible without reducing
A/CONF.187/3 7 non-governmental capacity to disseminate legislation and informed comment on legislation. A number of lessons have already been learned from such efforts. 23. One lesson is that coherence or coordination is essential in developing individual reforms. Piecemeal reforms that alter only one element of a justice system may distort others, and in many cases no benefits can be achieved by reforms in one area without corresponding improvements in others. Ill-conceived reform packages may actually do more harm than good by damaging confidence in the system and future reform attempts. Expanding law-enforcement and prosecutorial capacity, for example, will simply generate backlogs in the courts and hardship conditions in prisons without corresponding changes in those systems. 24. When considered as comprehensive packages, the magnitude of development efforts also suggests that rule of law reforms are important as a goal in themselves and not just because they are needed to support other objectives. Rule of law projects during the 1980s and early 1990s tended to develop rule of law measures in support of either economic “sustainable development” programmes (including World Bank, Organization for Economic Cooperation and Development and bilateral development projects) or as a mechanism for the protection of basic human rights (such as United Nations projects). This raises the possibility that those involved in such projects will overlook or underemphasize aspects of the rule of law that are not essential to their own objectives. 25. Rule of law development for its own sake or reform of other areas such as criminal law may in some cases be seen as secondary to economic development, or even as an impediment to it. Human rights projects have a greater interest in criminal justice reform because of the need to protect rights in the course of criminal proceedings, but that relationship may also sometimes be an uneasy one. There is generally some tension between human rights and the effectiveness of criminal justice systems because the rights of criminal suspects are often protected by imposing substantive or procedural requirements on police and prosecutors, supported by some form of remedy for the suspect whose rights are infringed upon. In this context references to “strengthening of the rule of law” by the United Nations would probably not be seen by some in the criminal justice professions as the strengthening of criminal justice systems themselves. 26. In a larger sense, however, strengthening the rule of law does indeed strengthen criminal justice systems in several ways. Legal rights that can be asserted by suspects and offenders against the system protect other basic rights, sometimes at the cost of crime control, but such proceedings also support the system by identifying problems and generating solutions. Ways are found to conduct the business of crime control effectively within a framework of basic rule of law and human rights. The rule of law also increases the certainty and legitimacy of the law, which brings benefits in the form of greater compliance and more cooperation by witnesses and others with the police and courts. Perhaps the greatest benefit, however, is that rule of law reforms, by treating like cases alike, result in standardization in areas such as law-making, administrative and judicial interpretation of the law, law enforcement and other areas, which can greatly increase both effectiveness and efficiency. 27. Development efforts of recent years have also established that changes in legal systems alone will not bring about the rule of law in societies where the traditional or cultural values necessary to support it are not present. Legitimacy, legality and popular support for the rule of law must be developed to the point where those who are adversely affected by legal rules are unable or unwilling to resort to non-legal means. This requires openness and transparency in the formulation of public policy, the legislative process, the administration of the law and judicial proceedings. If these are present, popular confidence in the law will be established over time. Ultimately, establishing a new rule of law culture involves convincing civil society, including its most powerful members, that their best interest lies with the advantages of public security, social stability, economic prosperity and general quality of life generated by rule of law reforms. 28. The lessons learned thus far suggest several considerations for future efforts. Firstly, those involved in human rights or economic projects should also be concerned about the criminal justice effects of proposed reforms. Development projects attract corrupt influences, and reforms that increase economic activity or attract investment may also increase criminal opportunities, in some cases to an even greater extent than legitimate ones. Crime control elements can often be “built in” to such programmes, but only if the necessary rule of law infrastructure is there to support them. Changing crime patterns brought about by such reforms may also place added pressure on underdeveloped justice systems to protect the new interests while maintaining adequate standards in other areas. Changes that strengthen human rights protections should do so where possible without reducing
A/CONF. 187/3 the effectiveness of crime control and, where such effec- goals. There are many examples of cases in which tiveness is reduced or seen to be reduced, it is important conventional organized criminal groups have committed that those involved understand the benefits that accrue in violent acts for political ends or to interfere with the course other areas. The ultimate objective should not be to of justice. There are also many cases in which groups achieve specific goals in terms ofrights protection or crime generally regarded as terrorist in nature have committed control. but a viable balance between the two, having conventional crimes in order to finance their activities or regard for the needs of the society involved further their goals 29. Secondly, it is incumbent on all of those who press 32. Upholding the rule of law and strengthening the for the strengthening of the rule of law in any context to integrity of criminal justice systems are major elements of step back and consider the rule of law as an important State responses to terrorism and high-profile symbols of social and legal structure in its own right. This is needed to State authority. This makes individuals such as judges or ensure that elements of the rule of law are developed in prosecutors potential targets for terrorist groups seeking to balance with one another in the context of the society for disrupt operations or discredit the moral authority of the hich they are proposed and that nothing is left out law. More generally, random violence against other targets 30. Finally, as noted in the discussion about the nature of is used to demonstrate that the State cannot protect its the rule of law above, It is important to recognize that the citizens everywhere and all of the time or to provoke a rule of law is much more than a legal construct. reaching harsh reaction from the State. The inability of the into social and cultural foundations of a society for the Government to cope with terrorism through law enforce- strength needed to support the framework of the law itself. ment procedures within the rule of law may strengthen the The very utility of the rule of law as a mechanism for voice of those who advocate the use of martial law or other structuring laws and social conduct and for stabilizing extralegal methods to do so. If the Government cannot legality against counter-forces depends on the depth of its effectively stop a terrorist campaign, there is also the foundation and the care with which it is developed. In danger that groups of citizens will take the law into their taking a comprehensive approach to rule of law projects, it is important to take into account the magnitude of the 33. Organized-crime and high-level corruption offences task and the fact that the reforms underlying the rule of law tend to be crimes of the powerful. Those involved often take time to take root in developing societies, whose have both the motivation and the means to manipulate or nembers must internalize them and acquire a sense of distort the application of law, legal proceedings and even ownership. It is necessary for both donor and developing the making of laws to gain unfair advantage or to avoid countries to be realistic in their expectations regarding criminal liability for their offences. Where these activities such efforts. As one recent commentary puts it"Rewriting are pervasive or present at the highest levels in a society, constitutions, laws and regulations is the easy part. they can neutralize or disrupt the rule of law to the point Far-reaching institutional reform, also necessary, is where it could be said that legalism exists in name only, if arduous and sle at all. Those with sufficient power or resources find it unnecessary to actually engage in corrupt interventions because those in the justice system, having come to VI. The rule of law terrorism understand that there is no point in attempting to apply the organized crime and corruption law in such cases, do not pursue investigations or lay or prosecute charges. Victims, who normally press the State 31. Most conventional criminal offences do not raise to take action, may be intimidated to the point where they significant concerns for the rule oflaw, but those involving instead refuse to cooperate organized crime, terrorism and corruption are exceptions 34. This erodes the rule oflaw by eroding equality before for several reasons. Terrorism is of concern because acts the law and the ability of the system to treat the powerful are generally directed against the State or civil society and and the powerless on the same legal basis. In high-profile its institutions, which makes it a threat to the rule of law cases, the erosion goes beyond the individual case at hand and many of the other social structures that support it. Acts and comes to represent a threat to basic legitimacy. Faced of terrorism are not confined to" political groups: they are with the avoidance of law by the powerful, the rest of the also sometimes used as a tactic in support of criminal population either does not comply with the law or complies
A/CONF.187/3 8 the effectiveness of crime control and, where such effectiveness is reduced or seen to be reduced, it is important that those involved understand the benefits that accrue in other areas. The ultimate objective should not be to achieve specific goals in terms of rights protection or crime control, but a viable balance between the two, having regard for the needs of the society involved. 29. Secondly, it is incumbent on all of those who press for the strengthening of the rule of law in any context to step back and consider the rule of law as an important social and legal structure in its own right. This is needed to ensure that elements of the rule of law are developed in balance with one another in the context of the society for which they are proposed and that nothing is left out. 30. Finally, as noted in the discussion about the nature of the rule of law above, it is important to recognize that the rule of law is much more than a legal construct, reaching into social and cultural foundations of a society for the strength needed to support the framework of the law itself. The very utility of the rule of law as a mechanism for structuring laws and social conduct and for stabilizing legality against counter-forces depends on the depth of its foundation and the care with which it is developed. In taking a comprehensive approach to rule of law projects, it is important to take into account the magnitude of the task and the fact that the reforms underlying the rule of law take time to take root in developing societies, whose members must internalize them and acquire a sense of ownership. It is necessary for both donor and developing countries to be realistic in their expectations regarding such efforts. As one recent commentary puts it “Rewriting constitutions, laws and regulations is the easy part. Far-reaching institutional reform, also necessary, is arduous and slow.”2 VI. The rule of law, terrorism, organized crime and corruption 31. Most conventional criminal offences do not raise significant concerns for the rule of law, but those involving organized crime, terrorism and corruption are exceptions for several reasons. Terrorism is of concern because acts are generally directed against the State or civil society and its institutions, which makes it a threat to the rule of law and many of the other social structures that support it. Acts of terrorism are not confined to “political” groups: they are also sometimes used as a tactic in support of criminal goals. There are many examples of cases in which conventional organized criminal groups have committed violent acts for political ends or to interfere with the course of justice. There are also many cases in which groups generally regarded as terrorist in nature have committed conventional crimes in order to finance their activities or further their goals. 32. Upholding the rule of law and strengthening the integrity of criminal justice systems are major elements of State responses to terrorism and high-profile symbols of State authority. This makes individuals such as judges or prosecutors potential targets for terrorist groups seeking to disrupt operations or discredit the moral authority of the law. More generally, random violence against other targets is used to demonstrate that the State cannot protect its citizens everywhere and all of the time or to provoke a harsh reaction from the State. The inability of the Government to cope with terrorism through law enforcement procedures within the rule of law may strengthen the voice of those who advocate the use of martial law or other extralegal methods to do so. If the Government cannot effectively stop a terrorist campaign, there is also the danger that groups of citizens will take the law into their own hands. 33. Organized-crime and high-level corruption offences tend to be crimes of the powerful. Those involved often have both the motivation and the means to manipulate or distort the application of law, legal proceedings and even the making of laws to gain unfair advantage or to avoid criminal liability for their offences. Where these activities are pervasive or present at the highest levels in a society, they can neutralize or disrupt the rule of law to the point where it could be said that legalism exists in name only, if at all. Those with sufficient power or resources find it unnecessary to actually engage in corrupt interventions because those in the justice system, having come to understand that there is no point in attempting to apply the law in such cases, do not pursue investigations or lay or prosecute charges. Victims, who normally press the State to take action, may be intimidated to the point where they instead refuse to cooperate. 34. This erodes the rule of law by eroding equality before the law and the ability of the system to treat the powerful and the powerless on the same legal basis. In high-profile cases, the erosion goes beyond the individual case at hand and comes to represent a threat to basic legitimacy. Faced with the avoidance of law by the powerful, the rest of the population either does not comply with the law or complies
A/CONF. 187/3 only when credibly threatened with sanctions. Either way, 37. Organized efforts to subvert or corrupt justice broad-based compliance based on the legitimacy of social systems, if successful, represent a direct threat to rule of consensus and acceptance of legal rules is lost law elements such as equality, judicial independence and poses a threat ofa different sort. Low-level corruption, left macy also arise when individual organized crime cases unchecked, can spread throughout government. Here the erode the credibility of criminal justice systems. Inextreme ule of law is eroded because individua -State interactions cases organized crime can also threaten legitimacy by are no longer conducted in accordance with clear and infiltrating the political or legislative process itself Members of organized crime may run for elective office determined by unofficial and often ad hoc rules for the for example, in order to take advantage of parliamentary or exchange of bribes or other considerations. This is incon- legislative immunity or to place themselves in a positionto sistent with many elements of the rule of law: compre- block criminal investigations or legislation hostile to hensiveness, clarity and certainty are lost because the rules organized crime. Perhaps more common are cases in which being applied are no longer legal ones, but ones dete- undue influences ranging from bribery to murder are used against otherwise legitimate legislators or officials to rmined on a case-by-case basis. There is no equality distort the formulation of public policy or the making of because outcomes are governed by the ability to pay bribes rather than the law as it applies to each case. Procedural laws. All of these situations erode the legitimacy of laws legitimacy is lost because the rules applied are no longer and legal systems because policy is made in response to the those created by the legislative process, and substantive interests oforganized crime rather than those of the publ legitimacy is lost because there is no longer a connection between the formulation of public policy and the rules that vil. The rule of law and transnational actually apply Judicial independence is lost either because judges are susceptible to corruption by the parties crime litigation or because the information they receive from other officials in the justice system, such as police or court 38. Transnational crime represents a challenge to the rule officials, is corrupted, or both. Finally, those legal rights of law because the volume and diversity of such crime that are necessary elements of the rule of law(and other increasing and because the nature of the international human rights as well) tend to be eroded because corrupt community poses obstacles to the rule of law that do not public officials, in extending the rights to those who can exist at the domestic level. Transnational crime operations pay, usually withhold them from those who cannot are supported by the same new technologies and other 36. Organized crime represents additional threats to the developments that have supported the globalization of rule of law. It often uses corruption to distort the legal legitimate activities. Operations such as drug-trafficking, system to its own advantage, but has other means at its dis- money-laundering and illegal migration are now supported posal as well. It resorts to intimidation or violence either to by telephones, facsimile(fax)machines, the Internet and induce officials to do its bidding or to remove them as high-speed, affordable travel, in much the same ways as obstacles. Crime that is"organized"tends to be both crea- their legitimate counterparts tive and coordinated in such approaches. Those who refuse 39. The usefulness of such technologies and present-day bribes may be targeted with violence, either to influence dependence on them for legitimate purposes pose an addi their conduct or to set examples that will make others less tional crime control problem. While equipment or likely to resist. Multiple elements of the justice system may substances--such as certain drugs or firearms--used be targeted. If law enforcement investigations cannot be primarily by criminals can be targeted for prohibition from subverted, for example, prosecutors, judges, jurors, or restrictions on general use, any such measures applied witnesses and anyone else who can affect the outcome of against more widespread technologies, such as modern criminal proceedings may be targeted. Increasingly, telephones and fax machines, high-speed broad-band organized criminals have also taken advantage of the same telecommunications and the Internet, or policies such as conditions that support global commerce to move free trade or open borders cannot be used as crime control endangered elements of their operations from jurisdictions measures because the cost to legitimate interests would be where the rule of law cannot be avoided to places where too higl conditions are less unfavourable
A/CONF.187/3 9 only when credibly threatened with sanctions. Either way, broad-based compliance based on the legitimacy of social consensus and acceptance of legal rules is lost. 35. Corruption at lower levels of public administration poses a threat of a different sort. Low-level corruption, left unchecked, can spread throughout government. Here the rule of law is eroded because individual-State interactions are no longer conducted in accordance with clear and certain legal rules. Instead, interactions and outcomes are determined by unofficial and often ad hoc rules for the exchange of bribes or other considerations. This is inconsistent with many elements of the rule of law: comprehensiveness, clarity and certainty are lost because the rules being applied are no longer legal ones, but ones determined on a case-by-case basis. There is no equality because outcomes are governed by the ability to pay bribes rather than the law as it applies to each case. Procedural legitimacy is lost because the rules applied are no longer those created by the legislative process, and substantive legitimacy is lost because there is no longer a connection between the formulation of public policy and the rules that actually apply. Judicial independence is lost either because judges are susceptible to corruption by the parties in litigation or because the information they receive from other officials in the justice system, such as police or court officials, is corrupted, or both. Finally, those legal rights that are necessary elements of the rule of law (and other human rights as well) tend to be eroded because corrupt public officials, in extending the rights to those who can pay, usually withhold them from those who cannot. 36. Organized crime represents additional threats to the rule of law. It often uses corruption to distort the legal system to its own advantage, but has other means at its disposal as well. It resorts to intimidation or violence either to induce officials to do its bidding or to remove them as obstacles. Crime that is “organized” tends to be both creative and coordinated in such approaches. Those who refuse bribes may be targeted with violence, either to influence their conduct or to set examples that will make others less likely to resist. Multiple elements of the justice system may be targeted. If law enforcement investigations cannot be subverted, for example, prosecutors, judges, jurors, witnesses and anyone else who can affect the outcome of criminal proceedings may be targeted. Increasingly, organized criminals have also taken advantage of the same conditions that support global commerce to move endangered elements of their operations from jurisdictions where the rule of law cannot be avoided to places where conditions are less unfavourable. 37. Organized efforts to subvert or corrupt justice systems, if successful, represent a direct threat to rule of law elements such as equality, judicial independence and basic legality. Indirectly the same threats to basic legitimacy also arise when individual organized crime cases erode the credibility of criminal justice systems. In extreme cases organized crime can also threaten legitimacy by infiltrating the political or legislative process itself. Members of organized crime may run for elective office, for example, in order to take advantage of parliamentary or legislative immunity or to place themselves in a position to block criminal investigations or legislation hostile to organized crime. Perhaps more common are cases in which undue influences ranging from bribery to murder are used against otherwise legitimate legislators or officials to distort the formulation of public policy or the making of laws. All of these situations erode the legitimacy of laws and legal systems because policy is made in response to the interests of organized crime rather than those of the public. VII. The rule of law and transnational crime 38. Transnational crime represents a challenge to the rule of law because the volume and diversity of such crime is increasing and because the nature of the international community poses obstacles to the rule of law that do not exist at the domestic level. Transnational crime operations are supported by the same new technologies and other developments that have supported the globalization of legitimate activities. Operations such as drug-trafficking, money-laundering and illegal migration are now supported by telephones, facsimile (fax) machines, the Internet and high-speed, affordable travel, in much the same ways as their legitimate counterparts. 39. The usefulness of such technologies and present-day dependence on them for legitimate purposes pose an additional crime control problem. While equipment or substances—such as certain drugs or firearms—used primarily by criminals can be targeted for prohibition from or restrictions on general use, any such measures applied against more widespread technologies, such as modern telephones and fax machines, high-speed broad-band telecommunications and the Internet, or policies such as free trade or open borders cannot be used as crime control measures because the cost to legitimate interests would be too high
A/CONF. 187/3 40. Another problematic crime trend brought about by 43. Few if any countries could accept the erosion of many of these technologies is the fact that transnational national sovereignty inherent in applying the conventional activities are no longer limited to"organized crime"in the rule of law elements on an international basis, but there traditional sense. New technologies are generally limited have been some attempts to move in that direction. Recent to large and affluent organizations at first, but usage agreements for the transnational control of drug-trafficking becomes more widespread as the technologies become and the ongoing negotiations on a convention against established and the costs decrease. This will make it easier transnational organized crime are attempts to ensure that for individuals to commit transnational crimes. This can pre-existing, clear, comprehensive legal rules will be already be seen in the use of telephones, fax machines and available to deal with transnational offenders. The goal is the Internet to commit fraud and other economic crimes. to ensure that, in dealing with a particular transnational Computers and the Internet have also made it possible to crime problem, all jurisdictions have effective offences create, conceal and transmit information that is the subject that offenders cannot avoid liability and that rules are of domestic criminal offences because of its offensive sufficiently consistent in all places to deter offenders from content. Some of these crimes involve traditional choosing jurisdictions on the basis of the lowest risks or organized crime" but many do not, and this trend is likely highest potential rewards. International standards and to continue in the future norms for law enforcement, prosecutors and judges also 41. These trends in transnational crime are problematic represent an attempt to ensure that all States adopt because new opportunities for such crime have been relatively consistent practices with respect to the created and the costs and risks to offenders have generally independence ofjudges and other officials, equality before decreased, although the costs and obstacles facing trans- the law and the protection of legal and other rights in the national investigations and prosecutions have not. The criminal p of new technologies by large organized crime groups can 44. These efforts are a significant step forward, but the be dealt with, albeit at some cost, by committing additional are likely to face several major challenges in the future investigative resources to the problem and forging better Firstly, while transnational crime control mechanisms such systems for international cooperation in major cases. The as legal assistance and extradition are being modernized commission of larger numbers of less serious transnational they are based on the assumption that caseloads will be offences by individuals and smaller groups could pose a small compared with purely domestic prosecutions. These more serious problem because countries and agencies may systems may be difficult to adjust if in future a larger be unwilling or unable to commit the resources required for proportion ofcrime involves transnational elements. There such things as mutual legal assistance and extradition in are compelling reasons why formal cooperation must go hose cases through central authorities, for example, but this adds to 42. This raises a number of implications for the rule of delays and limits the volume of cases that can be dealt with law in criminal justice systems. In the strict sense outlined without increasing resources. As new technologies make above, the rule of law does not exist as a crime control the commission of transnational crimes by bothindividuals mechanism at the international level 3 there is no inter- and groups easier, an increase in volume is likely to occur national legislation that creates conventional offences and 45. Secondly, technological development tends to create criminal procedures applicable to individuals in the same new criminal opportunities, and hence new forms ofcrime sense as domestic criminal laws do. International agree- quickly and unpredictably. The fast evolution of crime has lents perform a legislative function to some degree, but already generated pressure on domestic legislators to this is generally directed only at individual criminality ensure that criminal laws keep pace, and the same pres- after interpretation and implementation by domestic legal sures will arise in the international community. Interna authorities. Governments retain the ultimate right to repu- tionally, however, the logistical and political difficulties diate agreements and have the choice, subject to negotia- are greater. Where domestic legislatures usually have clear tion of reservations, to opt out of provisions they find and reasonably efficient powers, making international law particularly problematic. In individual cases, such things requires achieving near consensus on new measures among as extradition and mutual legal assistance are also a large number of disparate countries. The amendment of generally subject to State discretion, which is ultimately existing measures is also more difficult and time- ercised on political, not legal ground consuming at the international level. These factors will make it much more difficult for the international com-
A/CONF.187/3 10 40. Another problematic crime trend brought about by many of these technologies is the fact that transnational activities are no longer limited to “organized crime” in the traditional sense. New technologies are generally limited to large and affluent organizations at first, but usage becomes more widespread as the technologies become established and the costs decrease. This will make it easier for individuals to commit transnational crimes. This can already be seen in the use of telephones, fax machines and the Internet to commit fraud and other economic crimes. Computers and the Internet have also made it possible to create, conceal and transmit information that is the subject of domestic criminal offences because of its offensive content. Some of these crimes involve traditional “organized crime” but many do not, and this trend is likely to continue in the future. 41. These trends in transnational crime are problematic because new opportunities for such crime have been created and the costs and risks to offenders have generally decreased, although the costs and obstacles facing transnational investigations and prosecutions have not. The use of new technologies by large organized crime groups can be dealt with, albeit at some cost, by committing additional investigative resources to the problem and forging better systems for international cooperation in major cases. The commission of larger numbers of less serious transnational offences by individuals and smaller groups could pose a more serious problem because countries and agencies may be unwilling or unable to commit the resources required for such things as mutual legal assistance and extradition in those cases. 42. This raises a number of implications for the rule of law in criminal justice systems. In the strict sense outlined above, the rule of law does not exist as a crime control mechanism at the international level.3 There is no international legislation that creates conventional offences and criminal procedures applicable to individuals in the same sense as domestic criminal laws do. International agreements perform a legislative function to some degree, but this is generally directed only at individual criminality after interpretation and implementation by domestic legal authorities. Governments retain the ultimate right to repudiate agreements and have the choice, subject to negotiation of reservations, to opt out of provisions they find particularly problematic. In individual cases, such things as extradition and mutual legal assistance are also generally subject to State discretion, which is ultimately exercised on political, not legal grounds. 43. Few if any countries could accept the erosion of national sovereignty inherent in applying the conventional rule of law elements on an international basis, but there have been some attempts to move in that direction. Recent agreements for the transnational control of drug-trafficking and the ongoing negotiations on a convention against transnational organized crime are attempts to ensure that pre-existing, clear, comprehensive legal rules will be available to deal with transnational offenders. The goal is to ensure that, in dealing with a particular transnational crime problem, all jurisdictions have effective offences, that offenders cannot avoid liability and that rules are sufficiently consistent in all places to deter offenders from choosing jurisdictions on the basis of the lowest risks or highest potential rewards. International standards and norms for law enforcement, prosecutors and judges also represent an attempt to ensure that all States adopt relatively consistent practices with respect to the independence of judges and other officials, equality before the law and the protection of legal and other rights in the criminal process. 44. These efforts are a significant step forward, but they are likely to face several major challenges in the future. Firstly, while transnational crime control mechanisms such as legal assistance and extradition are being modernized, they are based on the assumption that caseloads will be small compared with purely domestic prosecutions. These systems may be difficult to adjust if in future a larger proportion of crime involves transnational elements. There are compelling reasons why formal cooperation must go through central authorities, for example, but this adds to delays and limits the volume of cases that can be dealt with without increasing resources. As new technologies make the commission of transnational crimes by both individuals and groups easier, an increase in volume is likely to occur. 45. Secondly, technological development tends to create new criminal opportunities, and hence new forms of crime, quickly and unpredictably. The fast evolution of crime has already generated pressure on domestic legislators to ensure that criminal laws keep pace, and the same pressures will arise in the international community. Internationally, however, the logistical and political difficulties are greater. Where domestic legislatures usually have clear and reasonably efficient powers, making international law requires achieving near consensus on new measures among a large number of disparate countries. The amendment of existing measures is also more difficult and timeconsuming at the international level. These factors will make it much more difficult for the international com-
