Carmen, Cagayan de Oro City

Graduate School of Criminology and Criminal Justice

Graduate Program

Rights of the Accused and Victim’s Rights

In Partial Fulfillment of the Requirements for the Subject

Victimology

Submitted to:

DR. GERRY J. CAÑO

Submitted by:

Virginia M Tura
INTRODUCTION

The right to life is the most fundamental human right and cannot be subject to
derogation even in war or in states of emergency. Unlike the prohibition of torture or
slavery, however, the right to life is not an absolute right. The death of a combatant as
The International Covenant on Civil and Political Rights, adopted in 1966, commits
States Parties to respect and protect the civil and political rights of individuals and
groups, including the right to freedom of religion, freedom of opinion and expression,
freedom of assembly, participation in public affairs, and the right to due process of
law and a fair trial. Similarly, if law enforcement agents take a person’s life, that act
may not violate the right to life either – for example if the death results from a use of
force that was absolutely necessary for such legitimate purposes as self-defense or
the defense of a third person, or from a lawful arrest. Only a competent judicial or
quasi-judicial body, on a case-by-case basis, taking into account the principle of
proportionality, can determine such absolute necessity. In addition, the right to life
cannot be considered absolute in legal systems that authorize capital punishment.

FRAMEWORK

Respect for all rights is a prerequisite to sustainable peace and development. It is

here that the rights of an accused person is equally important as with the rights of the
victim. In the following context, the legal grounds shall be discussed in support to this
as well as precautionary measures upon the enjoyment of the protection of the
by-laws.( Inter-Parliamentary Union and, 2016)

Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel. Under no circumstances will the
accused person detained shall be subjected to torture, force, violence, threat,
intimidation, or any other means which vitiate his free will against him. Secret
detention places, solitary, incommunicado, or other similar forms of detention are
prohibited as well. Moreover, any confession or admission obtained in violation of this
or Section 17 hereof shall be inadmissible in evidence against him. Any violator of this
law will be penalized with civil sanctions for violations of these sections as well as
compensation to and rehabilitation of victims of torture or similar practices, and their
families. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas corpus
is suspended. Excessive bail shall not be required. This is clearly summarized on
Section 14 of the Bill of Rights where it is written that no person shall be held to answer
for a criminal offense without due process of law. In all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the accused provided that he has
been duly notified and his failure to appear is unjustifiable. The privilege of the writ of
habeas corpus shall not be suspended except in cases of invasion or rebellion when
the public safety requires it. All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative bodies no person shall
be compelled to be a witness against himself. In terms of personal opinions and
beliefs, no as per Section 18 no person shall be detained solely by reason of his
political beliefs and aspirations and no involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall have been duly convicted.
Excessive fines are highly prohibited, nor cruel, degrading or inhuman punishment to
be inflicted on an accused person neither shall the death penalty be imposed, unless,
for compelling reasons involving heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be reduced to reclusion perpetua. The
employment of physical, psychological, or degrading punishment against any prisoner
or detainee or the use of substandard or inadequate penal facilities under subhuman
conditions shall be dealt with by law. (Panaligan, 2018)

The rule for prosecution after mistrials depends on who sought the mistrial. If the
defendant moved for a mistrial, there is no bar to retrial, unless the prosecutor acted in
bad faith. For example, the prosecutor goads the defendant into moving for a mistrial
because the government specifically wanted a mistrial. If the prosecutor moves for a
mistrial, there is no bar to retrial if the trial judge finds “manifest necessity” for granting
the mistrial. The same standard governs mistrials granted sua sponte. The assistance
of counsel clause includes, as relevant here, five distinct rights: the right to counsel of
choice, the right to appointed counsel, the right to conflict-free counsel, the effective
assistance of counsel, and the right to represent oneself, in legal terms known as pro
se. Criminal defendants have a right to be represented by counsel of their choice.
The remedy for erroneous deprivation of first choice counsel is automatic reversal.
When a citizen accused has the right to be legally represented by a legal defense.
(Law Library, 2019)

The right to a jury has always depended on the nature of the offense with which
the defendant is charged. Petty offenses are those punishable by imprisonment for not
more than six months and are not covered by the jury requirement. Even where
multiple petty offenses are concerned, the total time of imprisonment possibly
exceeding six months, the right to a jury trial does not exist. Also, in majority of the
countries, except for serious offenses (such as murder), minors are usually tried in a
juvenile court, which lessens the sentence allowed, but forfeits the right to a jury. The
Section 6 of this bill requires juries to be impartial. Impartiality has been interpreted as
requiring individual jurors to be unbiased. At voir dire, each side may question
potential jurors to determine any bias, and challenge them if the same is found; the
court determines the validity of these challenges for cause. Defendants may not
challenge a conviction on the basis that a challenge for cause was denied incorrectly if
they had the opportunity to use peremptory challenges. (DDB) The jury panel must
represent a fair cross-section of the community; the defendant may establish that the
requirement was violated by showing that the allegedly excluded group is a
“distinctive” one in the community, that the representation of such a group in venires is
unreasonable and unfair in regard to the number of persons belonging to such a
group, and that the under-representation is caused by a systematic exclusion in the
selection process. (Eagan, n.d.)

The Miranda warning (also referred to as Miranda rights) is a warning given by

police officers/ arresting person of authority to criminal suspects in police custody (or
in a custodial interrogation) before they are interrogated to preserve the admissibility
of their statements against them in criminal proceedings. In other words, a Miranda
warning is a preventive criminal procedure rule that law enforcement is required to
administer to protect an individual who is in custody and subject to direct questioning
or its functional equivalent from a violation of his or her Section 5 of Article III right
against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held
that the admission of an elicited incriminating statement by a suspect not informed of
these rights violates the Fifth and the Sixth Amendment right to counsel. (Bell, 2017)

Miranda refers to Ernesto Miranda. In 1963, Miranda was arrested in Phoenix and
charged with rape, kidnapping, and robbery. Miranda was not informed of his rights
prior to the police interrogation. During the two-hour interrogation, Miranda allegedly
confessed to committing the crimes, which the police apparently recorded. Miranda,
who had not finished ninth grade and had a history of mental instability, had no
counsel present. At trial, the prosecution’s case consisted solely of his confession.
Miranda was convicted of both rape and kidnapping and sentenced to 20 to 30 years
in prison. Miranda appealed to the U.S. Supreme Court and won his case. The
Supreme Court devised a statement that must be read to those who are arrested.
Thus in theory, if law enforcement officials decline to offer a Miranda warning to an
individual in their custody, they may still interrogate that person and act upon the
knowledge gained, but may not use that person’s statements to incriminate him or her
in a criminal trial. However, in the pragmatic interactions between police and citizens,
this is rarely true. In Berghuis v. Thompkins, the court held that unless a suspect
actually states that he is relying on this right, his subsequent voluntary statements can
be used in court and police can continue to interact with or question him. The Miranda
rule applies to the use of testimonial evidence in criminal proceedings that is the
product of custodial police interrogation. The Miranda right to counsel and right to
remain silent are derived from the self-incrimination clause of the Section 5 of Article
III. It is important to note that immigrants who live in the country illegally are also
protected and should receive their Miranda warnings as well when being interrogated
or placed under arrest. Aliens receive constitutional protections when they have come
within the territory of the Philippines and have developed substantial connections with
this country. (Bell, 2017)
 If in case the defendant asserts his right to remain silent all interrogation must
immediately stop and the police may not resume the interrogation unless the police
have “scrupulously honored” the defendant’s assertion and obtain a valid waiver
before resuming the interrogation. In determining whether the police “scrupulously
honored” the assertion the courts apply a totality of the circumstances test. The most
important factors are the length of time between the termination of the original
interrogation and commencement of the second and a fresh set of Miranda warnings
before resumption of interrogation. The consequences of assertion of Section 5 of
Article III right to counsel are stricter. The police must immediately cease all
interrogation and the police cannot reinitiate interrogation unless counsel is present
since merely consulting with counsel is insufficient or the defendant contacts the
police on his own volition. If the defendant does reinitiate contact, a valid waiver must
be obtained before interrogation may resume. In Berghuis v. Thompkins, the Court
ruled that a suspect must clearly and unambiguously assert right to silence. Merely
remaining silent in face of protracted questioning is insufficient to assert the right.

The Miranda rule would apply unless the prosecution establish that the statement
falls within an exception to the Miranda rule. The three exceptions are (1) the routine
booking question exception (2) the jailhouse informant exception and (3) the public
safety exception. Arguably only the last is a true exception–the first two can better be
viewed as consistent with the Miranda factors. For example, questions that are
routinely asked as part of the administrative process of arrest and custodial
commitment are not considered “interrogation” under Miranda because they are not
intended or likely to produce incriminating responses. Nonetheless, all three
circumstances are treated as exceptions to the rule. (Boundless Political Science,
2008)

Taking the Anthony case as an example, the prosecution's theory was that
Casey Anthony used chloroform to suffocate her daughter. Unfortunately for the
prosecution, though, the state of decomposition of Caylee's body prohibited a
definitive determination on the cause of death. Moreover, the prosecution had no
“smoking gun” for the chloroform theory such as a bottle of the organic compound
with Casey Anthony's fingerprints on it. That could have been strong circumstantial
evidence of guilt, but it just didn't exist. What the prosecution did have was Internet
searches for information on chloroform from a computer in the Anthony house and
traces of the substance in the trunk of her car. While the jury could have drawn an
inference that these taken together, along with the fact that Anthony didn't report that
her child was missing for a month, proved that Casey Anthony used chloroform to
suffocate her daughter—but they just didn't feel they could find as such beyond a
reasonable doubt. At least one jury member has stated that the prosecution's failure
to definitively establish a created doubt in their minds. Moreover, regarding the
chloroform specifically, Casey's mother testified that it was she who had performed
the searches, and an expert forensic witness for the defense refuted the prosecution's
experts' testimony that claimed “shockingly high” levels of chloroform in the trunk by
saying he only found low levels of it. Accordingly, the jury concluded it was left with
reasonable doubt regarding Anthony's guilt of the most serious crimes charged and
had no choice but to find her “not guilty.” Whether this decision was reasonable is
likely to be debated for years to come.

Under this Bill, any accused person have the right to refuse to answer
questions, or make statements, that might incriminate them. This applies at any
stage of a criminal investigation or prosecution. At the same time, it also
contains the Due Process Clause, which protects the accused from suffering
certain consequences without due process of law. As the judicial interpretation
of the Due Process Clause has evolved, it has been subdivided into two
guarantees: substantive due process and procedural due process. Substantive
due process refers to specific rights, such as rights related to free speech,
voting, and association. Procedural due process ensures that the adjudication
process, the way an accused are tried for a crime, is fair and impartial. In
addition this bill sets forth for specific rights for any criminal defendants,
including: the right to trial by jury; the right to trial in a timely manner; the right to be
informed of the nature and cause of all accusations against you; the right to confront
witnesses against you; the right to have legal counsel available to you; and the right
to compel witnesses to testify on your behalf.

In an expansion on the rights set forth in the Constitution, the Supreme

Court established that anyone taken into custody be provided with notice of the
following: that they have the right to remain silent; that anything they say can and will
be used against them in a court of law; that they have the right to be represented by
counsel; and that, if they cannot afford an attorney, one will be appointed for them.
Though some of the provisions of Miranda have been weakened, it remains the
law of the land. Human rights are both rights and obligations, according to the UN.
The state – or the government – is obliged to “respect, protect, and fulfill” these rights.
They are liable to act and oversee the fulfillment and protection human rights in the
country. In the Philippines, the Commission on Human Rights (CHR) primarily
handles the investigations of human rights violations. However, it has no power to
resolve issues as stated in the Supreme Court decision in 1991. Established in 1986
during the administration of President Corazon Aquino, CHR is an independent body
which ensures the protection of human rights guaranteed by the Bill of Rights. Aside
from investigations, it also provides assistance and legal measures for the protection
of human rights guided by Section 18 Article XIII of the Philippine Constitution.

In here, it is clearly stated that criminals or those in conflict with the law are still
protected by rights as indicated in many legal documents such as the Philippines’
Criminal Code and UN’s Standard Minimum Rules for the Treatment of Prisoners.
Specific human rights, however, may be removed, provided they go through due
process beforehand. All in all, the rights of the accused are: the right to a fair trial;
due process; to seek redress or a legal remedy; and rights of participation in civil
society and politics such as freedom of association, the right to assemble, the right to
petition, the right of self-defense, and the right to vote. The civil and political rights
form the original and main part of international human rights comprises the first
portion of the 1948 Universal Declaration of Human Rights with economic, social and
cultural rights comprising the second portion. Currently, in many countries with a
democratic system and the rule of law, criminal procedure puts the burden of proof on
the prosecution – that is, it is up to the prosecution to prove that the defendant is
guilty beyond any reasonable doubt.

The civil and political rights are a class of rights based upon birthright into a polity
or designation otherwise of human rights. They ensure a citizen’s ability to fully
participate in the civil and political life of the state without discrimination or political
repression, and protect the freedom of classes of persons and individuals from
unwarranted infringement into those rights by governments, private organizations,
and other entities. The First-generation human rights, often called “blue” rights, deal
essentially with liberty and participation in political life. They are fundamentally civil
and political in nature, as well as strongly individualistic: They serve negatively to
protect the individual from excesses of the state. First-generation rights include,
among other things, freedom of speech, the right to a fair trial, freedom of religion and
voting rights. The idea of three levels of human rights dates to 1979 and is primarily
used in European law. Upon accusation, a person undergoes criminal procedure as a
legal process for adjudicating claims that someone has violated criminal law.

On the other side, every victim has the right to reparation. It is an essential
element of the right to an effective remedy. Where the State is responsible for a
human rights violation through its acts or omissions, it is under an obligation to
provide adequate, effective and prompt reparation to the victim(s). Indeed, where
reparation is not provided, “the obligation to provide an effective remedy is not
discharged.” The basic principles and guidelines on the right to remedy and
reparation for victims of gross violations of human rights law and serious violations of
international humanitarian law provide for the following forms of reparation. Every
victim is entitled of their right to reparation after experiencing gross human rights
violations. In accordance with domestic and international law, and taking account of
individual circumstances, victims of gross violations of international human rights law
and serious violations of international humanitarian law should, as appropriate and
proportional to the gravity of the violation and the circumstances of each case, be
provided with full and effective reparation, which includes the forms of Restitution. It
entails, where appropriate and desirable, restoring the victim to the situation existing
before the occurrence of the human rights violation concerned. Restitution may
include restoration of liberty, return to one’s place of residence, restoration of
employment and return of property. Rehabilitation includes legal, medical,
psychological and social measures to help victims recover for instance, setting up
rehabilitation centers for torture victims. Compensation refers to indemnification for
financial or non-financial damages, including physical or mental harm; lost
opportunities such as employment, education or social benefits; material damages;
loss of earnings or earning potential; and moral damage. Satisfaction refers to public
apologies; acceptance of responsibility; victim commemorations and tributes;
verification of facts with full and public disclosure of the truth where possible and
appropriate; an official declaration or judicial decision; judicial and administrative
sanctions against the perpetrators of gross human rights violations; search for
disappeared persons; identification and reburial of bodies in accordance with victim
and family wishes; and inclusion of an accurate account of gross human rights
violations in educational material at all levels. Guarantee of non-recurrence entails
measures to help prevent future human rights violations. These may include
legislative and institutional reforms such as to strengthen the independence of the
judiciary; programs to vet the integrity and suitability of individuals for public
employment; and efforts to improve the observance of codes of conduct by public
servants.

Article 10 of the ICCPR guarantees the right of all persons deprived of their liberty
to be treated with humanity and respect for their inherent dignity. According to the
Human Rights Committee, people deprived of their liberty may not be “subjected to
any hardship or constraint other than that resulting from the deprivation of their
liberty”. A number of soft law instruments specify minimum standards applicable to
detention. The right to personal liberty and security provides protection against
arbitrary or unlawful arrest and detention and against the intentional infliction of bodily
or mental injury regardless of whether the victim is detained or not. These basic
guarantees apply to everyone, including persons held in prison or remand on criminal
charges or on such grounds as mental illness, vagrancy, institutional custody of
children or for the purposes of immigration control. Other restrictions on freedom of
movement, such as confinement to a certain region of a country, curfews, expulsion
from a country or prohibition to leave a country, do not constitute interference with
personal liberty or security, although they may violate other human rights, such as
freedom of movement and residence.

On the other hand, every victim has the right to participate in the process of
justice, including the right to attend criminal proceedings and to be heard at various
points in the criminal justice process. They have the right to be informed about the
defendant’s release on bond or whether anyone was arrested and to be informed
about the date of the earliest possible release from incarceration and to know the
decision about the defendant’s release on bond. Moreover, the victim must be
involved in the decision to drop the case and to discuss matters with the prosecutor’s
office. Upon filing of plea, the victim must be involved in the discussion whether the
defendant’s plea to a lesser charge should be accepted. The victim is entitled of the
right to be present during the grand jury hearing and to make a victim’s impact
statement during the defendant’s parole hearing and before sentencing. In terms of
rescheduling, the victim must be informed about such postponement of grand jury
hearings. Finally, the victim must be involved in the decision about what sentence
should be given. Crime victims not only need to be notified about events and
proceedings in the criminal justice process, they also need to be informed of their
legal rights. They need to know, for example, not only that the trial has been
scheduled, but also that they have a right to discuss the case with the prosecutor.
Notifying crime victims in advance of events and proceedings in the criminal justice
process, and informing them of their rights to participate in that process, are
prerequisites to the exercise of the rights to participate. Researchers asked crime
victims who indicated they had received such information whether they had in fact
exercised their rights to attend, make statements at, or otherwise participate in the
criminal justice process. While the strength of the legal protections of victims’ rights to
participate did appear to influence the numbers of victims who exercised some rights
to participate, victims in both groups of States were more likely to exercise some
rights than others. (About Victim's Right, 2019)

ANALYSIS

Some of the worst human rights violations have resulted from discrimination
against specific groups. The right to equality and the prohibition of discrimination,
explicitly set out in international and regional human rights treaties, are therefore
central to the protection of all human rights. The right to equality obliges States to
ensure observance of human rights without discrimination on any grounds, including
sex, race, color, language, religion, political or other opinion, national, ethnic or social
origin, membership of a national minority, property, birth, age, disability, sexual
orientation and social or other status. Moreover, it is important to note that
discrimination is constituted not simply by an unjustifiable “distinction, exclusion or
restriction” but also by an unjustifiable “preference” in respect of certain groups. The
fight against discrimination remains a struggle for many people around the globe
today. Not every differentiation constitutes discrimination. Factual or legal distinctions
based on reasonable and objective criteria may be justifiable. The burden of proof
falls on governments: they must show that any distinctions that are applied are
actually reasonable and objective.
Torture is a serious human rights violation, as it constitutes a direct attack on the
personality and dignity of the human being. The prohibition of torture and other forms
of physical and mental ill treatment, i.e. the right to personal integrity and dignity, 130
is an absolute human right and is therefore not subject to derogation under any
circumstances. This also means that no one may invoke an order from a superior as a
justification of torture. Any accused or arrested persons have the right to be informed
promptly of the reasons for their arrest and detention and of their right to counsel.
They must be promptly informed of any charges brought against them in order to be
able to challenge the lawfulness of their arrest or detention and, if indicted, to prepare
their defense. Persons alike who are facing a possible criminal charge have the right
to be assisted by a lawyer of their choice. If they cannot afford a lawyer, they should
be provided with a qualified and effective counsel. Adequate time and facilities should
be made available for communication with their counsel. Access to counsel should be
immediate and while in legal custody, they still have the right to communicate with the
outside world and, in particular, to have prompt access to their family, lawyer,
physician, a judicial official and, if the detainee is a foreign national, consular staff or a
competent international organization. Communication with third parties is an essential
safeguard against such human rights violations as secret and incommunicado
detention, enforced disappearances, torture and ill-treatment and is vital to obtaining
a fair trial. Persons arrested on suspicion of a criminal offence have the right to be
brought promptly before a judge or other judicial officer, who must (a) assess whether
there are sufficient legal grounds for the arrest, (b) assess whether detention before
trial is necessary, (c) safeguard the well-being of the detainee and (d) prevent
violations of the detainee’s fundamental rights while accused persons in pre-trial
detention have the right to be tried within a reasonable time or else be released. In
accordance with the presumption of innocence, people awaiting trial on criminal
charges should not be held in custody, as a general rule. Persons deprived of their
liberty on whatever grounds have the right to habeas corpus, i.e. they may challenge
the lawfulness of their detention before a court and have their detention regularly
reviewed. The court must decide without delay, normally within a few days or weeks,
on the lawfulness of the detention and order immediate release if the detention is
unlawful. If detention for an unspecified period of time is ordered , for instance, in a
psychiatric hospital, the detainee has a right to periodic review, normally every few
months. Finally, any victim of unlawful arrest or detention has an enforceable right to
compensation.

FINDINGS

As international law currently stands, States are the primary duty-bearers of

human rights obligations. In principle, however, human rights can be violated by any
person or group, and in fact, human rights abuses committed by non-State actors
(such as business enterprises, organized criminal groups, terrorists, guerrilla and
paramilitary forces and intergovernmental organizations) are on the increase.
International human rights treaties and customary law impose three obligations on
States: the duty to respect; the duty to protect; and the duty to fulfil. While the balance
between these obligations may vary according to the rights involved, they apply to all
civil, political, economic, social and cultural rights. Moreover, States have a duty to
provide a remedy at the domestic level for human rights violations. The human rights
monitoring bodies have received numerous complaints regarding torture and ill
treatment that have occurred during police custody. The procedural that safeguards
and limit considerably the exposure of arrested persons to that risk are as follows:
notification of custody: the right of arrested persons to have the fact of their detention
notified to a third party of their choice (family member, friend or consulate); the right of
detainees to have access to a lawyer and his/her presence during interrogation; the
right of detainees to request a medical examination by a physician of their choice (in
addition to any medical examination carried out by a physician called by law
enforcement authorities); availability of centralized registers of all detainees and
places of detention; exclusion of evidence elicited through torture or other forms of
coercion; and, audio- or videotaping of all police interrogations.
These prohibited forms of torture and ill-treatment may include restraining a
person in a painful position, hooding, prolonged exposure to loud music or sleep
deprivation, threats, violent shaking or use of cold air to chill the detainee. The
absolute prohibition of torture and ill-treatment is founded on the premise that if any
exceptions are permitted, the use of torture is likely to increase. States have an
obligation to prevent, investigate, prosecute and punish any act of torture. They must
provide reparation to victims, including medical and psychological rehabilitation and
compensation for material and moral damages.
At most points in the criminal justice process, from arrest through the parole
hearing, victims in strong-protection States were much more likely to receive advance
notification than those in weak protection States.
On the other hand, legal protections per se, regardless of their relative strength in
State law or State constitutions, are not always enough to ensure victims’ rights. As
the study revealed, even in States where victims’ rights were protected strongly by
law, many victims were not notified about key hearings and proceedings, many were
not given the opportunity to be heard, and few received restitution.
In general rule the standard of proof in criminal trials is “beyond a
reasonable doubt.” That is, the prosecution must prove that the defendant is guilty of
the crime(s) charged to the extent that no reasonable person could have a
reasonable doubt that the defendant is guilty. The prosecution can prove guilt beyond
a reasonable doubt by building a case through direct and/or circumstantial evidence.
Direct evidence “directly” shows the defendant's guilt, for example, a witness who
testifies he saw the defendant committing a crime. Circumstantial evidence, on the
other hand, is indirect evidence that may lead to the inference that the defendant
committed a crime even though there is no direct proof, for example, a washcloth with
the murder victim's DNA found at the defendant's house if the two didn't live together.
Not all circumstantial evidence is created equal; some is stronger or weaker than
others, and this is where jury discretion comes in. It is up to the individual members to
weigh the importance of each piece of evidence and then come to a conclusion
together as to whether the prosecution has proven guilt beyond a reasonable doubt.
One other important fact about circumstantial evidence: you may have heard
somewhere that "there's only circumstantial evidence," implying that such proof isn't
enough to support a conviction, but that simply isn't true. A defendant may be found
guilty of a crime based solely on direct or circumstantial evidence, or a combination of
the two. As noted above, a jury's job is to weigh all the evidence presented at trial.
The jury is permitted to draw inferences from evidence, so long as they arise from
proven facts and are logical and reasonable—they cannot be based on speculation.
Indeed, juries are instructed that legally speaking, there is no distinction between
direct and circumstantial evidence.
CONCLUSIONS

The principles of equality, universality and non-discrimination do not preclude

recognizing that members of specific groups may need particular protection. Specific
human rights instruments and mechanisms have been designed to protect the rights
of women as well as certain groups, such as aliens, stateless persons, refugees,
displaced persons, minorities, indigenous peoples, children, persons with disabilities,
lesbian, gay, bisexual and transgender persons, persons with albinism, migrant
workers and detainees.
The rights of the accused, include the right to a fair trial; due process; the right to
seek redress or a legal remedy; and rights of participation in civil society and politics
such as freedom of association, the right to assemble, the right to petition, the right of
self-defense, and the right to vote. Currently, in many countries with a democratic
system and the rule of law, criminal procedure puts the burden of proof on the
prosecution – that is, it is up to the prosecution to prove that the defendant is guilty
beyond any reasonable doubt, as opposed to having the defendant prove that s/he is
innocent; any doubt is resolved in favor of the defendant. Similarly, all such
jurisdictions allow the defendant the right to legal counsel and provide any defendant
who cannot afford their own lawyer with a lawyer paid for at the public expense which
is in some countries called a “court-appointed lawyer”.

Minimum standards for the prohibition of cruel, inhuman or degrading treatment

or punishment vary from country to country. However, according to rulings by
numerous bodies – the UN Human Rights Committee, the Committee on Economic,
Social and Cultural Rights, the Committee Against Torture, the Committee on the
Rights of the Child, the European Court of Human Rights, the Inter-American Court of
Human Rights and the African Court of Human and Peoples’ Rights – corporal
punishment in all its forms constitutes cruel, inhuman or degrading punishment and is
therefore prohibited under contemporary human rights law. Most of the world also
treats capital punishment as cruel, inhuman and degrading punishment.

RECOMMENDATIONS

The “obligation to protect” requires States to protect individuals against abuses by

non-State actors, foreign State agents, or State agents acting outside of their official
capacity. The obligation entails both a preventative and remedial dimension. A State
is thus obliged to enact legislation protecting human rights; to take action to protect
individuals when it is aware (or could have been aware) of threats to their human
rights; and also to ensure access to impartial legal remedies when human rights
violations are alleged (see below). Once again, the right to education can serve as an
example. The right of children to education must be protected by the State from
interference and indoctrination by third parties, including parents and the family,
teachers and the school, religions, sects, clans and business firms. States enjoy a
margin of discretion with respect to the obligation to protect. For instance, the right to
personal integrity and security obliges States to combat the widespread phenomenon
of domestic violence against women and children. States have a responsibility to take
positive measures – in the form of pertinent criminal, civil, family or administrative
laws, police and judiciary training or general awareness raising – to reduce the
incidence of domestic violence. The obligation of the State to protect against
violations committed by non-State actors is particularly pertinent in the area of
women’s rights. For many years, rampant violence against women was not
considered a human rights violation if committed by private actors within the “private
sphere” of the home, in the form of domestic violence – even where the nature of the
violence might be tantamount to torture – or, if occurring in the public sphere, even
though its scale might rise to the level of a public emergency. This early neglect of
women’s experience reflected a male bias in the development of human rights law
and contributed to impunity for such human rights violations against women. Since
then, over the past 20 years, the State’s obligation to protect women’s human rights
has been well established. This includes the duty to protect women from violations
committed by third parties – in the public or private sphere – and to take positive
steps to fulfil their human rights.

According to the “obligation to fulfil”, States are required to take positive action to
ensure that human rights can be realized. The extent of the obligation to fulfil varies
according to the right concerned and the State’s available resources. Generally
speaking, however, States should create “the legal, institutional and procedural
conditions that rights holders need in order to realize and enjoy their rights in full.” In
terms of the State’s obligation in the promulgation of human rights specifically for
those accused is to respect their individual rights. The state should take legislative
and other measures against domestic violence in order to protect and person in
authority such as the police should be knowledgeable and well-trained with
acceptable methods of obtaining evidences to support any criminal offenses

The principle of progressive realization applies to the positive State obligations to fulfil
and to protect human rights, in particular economic, social and cultural rights. As with
all human rights, the right to life not only protects individuals against arbitrary
interference by government agents, but also obliges States to take positive measures
to provide protection from arbitrary killings, enforced disappearances and similar
violent acts committed by paramilitary forces, criminal organizations or any private
individual. States must therefore criminalize these acts and implement appropriate
any private individual. States must therefore criminalize these acts, and implement
appropriate measures to prevent, protect and remedy violations of the right to life.

An individual may be deprived of his or her liberty only on legal grounds and under
a procedure established by law. The procedure must conform not only to domestic law
but also to international standards. The relevant domestic law must not be arbitrary,
i.e. it must not be tainted by inappropriateness, injustice or unpredictability. Moreover,
law enforcement in any given case must not be arbitrary or discriminatory, but should
be proportionate to all of the circumstances surrounding the case. The right to equality
before the courts and tribunals is a key element of human rights protection and serves
as a procedural means to safeguard the rule of law. The right to equality before the law
means that laws must not be discriminatory and that judges and officials must not
discriminate when enforcing the law. The right to equality before the law means that all
persons must have equal access to legal and judicial systems and the right to equal
treatment by legal and judicial authorities. Court hearings and judgments must in
general be public: not only the parties to the case, but also the general public, must
have a right to be present. The idea behind the principle of a public hearing is
transparency and oversight by the public, a key prerequisite for the administration of
justice in a democratic society: “Justice must not only be done; it must be seen to be
done”. It follows that, as a general principle, trials must not be conducted by a purely
written procedure in camera, but by oral hearings to which the public has access. Not
all stages of the proceedings, in particular at the appeal level, require public hearings;
and the public, including the media, may be excluded for reasons of morals, public
order, national security, private interests and, in exceptional cases, interests of justice.
However, every judgment must be made public, by full oral delivery or by written
announcement. In addition to the right to “equality of arms” and to a public hearing,
international human rights law provides for a number of specific rights that persons
charged with a criminal offence should enjoy the right to be presumed innocent. The
prosecution must prove the person’s guilt, and, in case of doubt, the accused should
not be found guilty, but must be acquitted. The right not to be compelled to testify or to
confess guilt will also act as a prohibition in line with the presumption of innocence,
which places the burden of proof on the prosecution, and with the prohibition of torture
and ill-treatment. Evidence elicited by torture or ill-treatment may not be used in court
and the right to defend oneself in person or through counsel of one’s own choosing,
and the right to be provided with legal assistance free of charge the right to have
adequate time and facilities for one’s defense, and the right to communicate with one’s
counsel. The accused has still the right to be tried without undue delay, as “justice
delayed is justice denied”. In principle, criminal proceedings must be conducted more
speedily than other proceedings, particularly if the accused is in detention, the right to
be present at one’s trial, the right to call and examine witnesses, the right to be
provided with language interpretation free of charge if the accused cannot understand
or speak the language used in court; the right to appeal to a higher tribunal; the right
not to be tried and sentenced twice for the same offence; the right to receive
compensation in the event of a miscarriage of justice; the principles of nullum crimen
sine lege and nulla poena sine lege prohibit the enactment of retroactive criminal laws
and ensure that convicted persons benefit from lighter penalties if they are enacted
after the commission of the offence.

Crime victims need to have confidence in the criminal justice process. Crime
victims experience a variety of losses relating to the crime. They may sustain physical
or psychological injuries, with some victims requiring counseling. They may lose
money or suffer property destruction, loss, or damage. Victims may lose time from
work or school as a result of their injuries or as a consequence of time spent
consulting with law enforcement or prosecutors, or attendance at court proceedings.
In view of these considerations, our criminal justice system can take several steps, on
a variety of fronts, to strengthen victim protection. It should keep victims informed,
provide them with opportunities for input, and consider that input carefully for, as the
study revealed, informed victims, and those who thought their input had influenced
criminal justice decisions, were more likely to be satisfied with the criminal justice
system; make changes to ensure that restitution is ordered, monitored, paid, and
received; offer criminal justice officials and crime victims additional education about
victims’ rights and their legal mandates; take steps to seek and ensure adequate
funding for victims’ services and the implementation of victims’ rights and institute
mechanisms to monitor the provision of victims’ rights by criminal justice officials
whose duty is to implement the law, and provide a means by which victims who are
denied their rights can enforce those rights.

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