Abstract
‘Law should govern’ reads Aristotle’s apodictic phrase in Politics 3.16 – a phrase which has gone on to form a core aspect of the rule of law. Consequently, justice systems abide by the maxim that disputes are to be settled by impartial and independent courts following predefined procedures and thereby ensuring equality before the law. To abide by these principles is particularly important in the field of criminal justice, because criminal proceedings affect the individual – be it the alleged wrongdoer or the supposed victim – as well as the wider society. Criminal investigations, prosecutions and subsequent trials must closely follow precise procedures, balancing the different interests at stake whilst adhering to general principles of law. This is crucial not only for the protection of the interests of the individuals involved but also necessary in order to safeguard the common interest in securing adherence to the law by government officials and thus upholding political and judicial accountability. These explanations might sound mundane to a community accustomed to the achievements of well-established national criminal justice systems based on coherent procedural rules and their efficient application.
Highlights
‘Law should govern’ reads Aristotle’s apodictic phrase in Politics 3.16 – a phrase which has gone on to form a core aspect of the rule of law
Prosecutions and subsequent trials must closely follow precise procedures, balancing the different interests at stake whilst adhering to general principles of law. This is crucial for the protection of the interests of the individuals involved and necessary in order to safeguard the common interest in securing adherence to the law by government officials and upholding political and judicial accountability. These explanations might sound mundane to a community accustomed to the achievements of well-established national criminal justice systems based on coherent procedural rules and their efficient application
Due to the widespread ratification of various human rights treaties and their supervision by monitoring bodies and courts, certain procedural rules and fair trial guarantees do apply in the legal order of states and, form part of an increasing consensus on international human rights law (IHRL)
Summary
It could be defined as the sum of existing laws applying to transnational crime These encompass mainly provisions on transnational offences, their constitutive elements on actus reus and mens rea and the applicable range of penalties, and rules on jurisdiction and on mutual legal assistance in criminal matters (hereinafter: MLA rules). Besides the deductive-normative or the empirical-inductive approach, a third approach is conceivable: For the suspect or the victim transnational criminal justice could mean criminal proceedings if they are transnationally active when investigating (the gathering of evidence, the arrest of persons, the freezing of assets) or prosecuting (the choice of jurisdiction) or executing sanctions (transnational confiscation, the transfer of prisoners) This means that transnational criminal justice could refer to domestic criminal cases, but with a transnational criminal justice activity that could affect the rights and obligations of suspects, victims, etc. In which transnational situations do they risk losing rights and which general principles could remedy this? That is the point of departure for our analysis
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