Handbook on Criminal Justice Responses to …

1 Handbook onCriminal Justice Responses to TerrorismUnited nations publicationISBN 978-92-1-130270-7 Sales No. Justice Handbook SERIESUNITED nations office ON DRUGS AND CRIMEV iennaHandbook on Criminal Justice Responses to TerrorismCRIMINAL Justice Handbook SERIESUNITED NATIONSNew York, 2009 AcknowledgementsThe Handbook on Criminal Justice Responses to terrorism was fi nalized drawing on texts prepared by Yvon Dandurand (Dean of Research and Industry Liaison, University of the Fraser Valley, Canada; and Senior Associate, International Centre for Criminal Law Reform and Criminal Justice Policy) under a consultancy contract for the united nations Offi ce on Drugs and crime (UNODC).

2 The draft text was reviewed at an expert group meeting held at UNODC headquarters in Vienna on 1 and 2 October 2007. UNODC wishes to acknowledge the valuable contributions received from the following experts who participated in that meeting: Christian Ahlund, Andrea Bianchi, Marvin Carvajal Perez, Anne Charbord, Michael De Feo, Helen Duffy, Anton du Plessis, Mark Ellis, John Grieve, Tiyanjana Maluwa, Joanne Mariner, Veronica Milinchuk, Vivienne O Connor, Robin Palmer, Andrew Powell, Cathy Powell, Colette Rausch, Rachid Sadouk, Mark Shaw, Masamba Sita and Jayampathy Wickramaratne.

3 This publication was fi nanced drawing on funds provided by the following countries, having made voluntary contributions to the UNODC Global Project on Strengthening the Legal Regime against terrorism : Austria, Belgium, Canada, Colombia, Denmark, France, Germany, Greece, Italy, Japan, Liechtenstein, Monaco, Neth-erlands, New Zealand, Norway, Spain, Sweden, Switzerland, Turkey, united Kingdom of Great Britain and Northern Ireland and united States of nations PUBLICATIONS ales No. ISBN 978-92-1-130270-7iiiContentsPart OneIntroduction and legal context I.

4 INTRODUCTION .. 3 II. IMPORTANCE OF AN EFFECTIVE RULE OF LAW-BASED Criminal Justice response TO terrorism .. 5 III. terrorism AND INTERNATIONAL LAW .. 9 A. Universal legal regime against terrorism .. 10 B. Importance of international cooperation .. 15 C. International human rights law .. 17 D. International refugee law .. 24 E. International humanitarian law .. 27 F. terrorism and transnational organized crime .. 28 Part TwoKey components of an effective Criminal Justice response to terrorism I.

5 INTRODUCTION .. 33 II. ROLE OF POLICYMAKERS AND LEGISLATORS .. 35 A. Legislative incorporation of international obligations .. 35 B. Criminalization .. 36 C. Procedural law .. 40 III. ROLE OF LAW ENFORCEMENT .. 49 A. Methods of investigation .. 50 B. Arrest and detention .. 54 C. Interrogation and interviewing of suspects .. 57 D. Preventing obstructions of Justice .. 58 E. Witness protection measures and programmes .. 60 F. Gathering of fi nancial information.

6 61 G. Community engagement .. 63 H. International law enforcement cooperation .. 63 I. Extraordinary measures .. 69 IV. ROLE OF PROSECUTORS .. 73 A. Independence of the prosecution .. 73 B. Role of prosecutors in upholding the rule of law .. 74iv C. Obligation to extradite or prosecute .. 75 D. Extradition .. 75 E. Mutual legal assistance .. 78 F. Increasing a system s capacity for international cooperation .. 81 V. ROLE OF DEFENCE COUNSEL.

7 83 A. Principle of equality of arms .. 84 B. Right to legal assistance .. 85 C. Exceptional measures .. 86 VI. ROLE OF THE JUDICIARY .. 89 A. Independence, impartiality and integrity of the judiciary .. 90 B. Independence and impartiality of tribunals .. 91 C. Security of the courts .. 93 VII. ISSUES AND CHALLENGES CONCERNING DETENTION .. 95 A. Detention prior to adjudication or during investigation .. 96 B. Conditions of detention and custody.

8 97 C. Cruel or inhuman treatment or punishment .. 97 D. Security and safety of prisoners .. 101 E. Transfer of detainees and prisoners .. 102 F. Preventive detention .. 103 G. Complaint procedures .. 104 VIII. ROLE OF THE Criminal Justice SYSTEM IN PROTECTING THE RIGHTS OF VICTIMS OF TERRORIST CRIMES .. 107 A. Victims in international law .. 108 B. Defi nition of the term victims .. 109 C. Responding to the needs of victims of terrorism .. 109 D.

9 Improving the Criminal Justice system s response to victims .. 110 Part ThreeCriminal Justice accountability and oversight mechanisms I. OVERSIGHT OF LAW ENFORCEMENT .. 115 II. OVERSIGHT OF LAWYERS AND PROSECUTORS .. 119 III. OVERSIGHT OF THE JUDICIARY .. 123 IV. PRISON OVERSIGHT AND INSPECTIONS .. 125 Conclusion .. 126 Annex. Useful tools and resources .. 127 Part oneIntroduction and legal context3I. IntroductionAn effective and prevention-focused response to terrorism should include a strong Criminal Justice element: one that is guided by a normative legal framework and embedded in the core principles of the rule of law, due process and respect for human rights.

10 Perpetrators of terrorist acts as defi ned in the universal legal instruments against terrorism are crimi-nals, and they should therefore be dealt with by the Criminal Justice process as it is the most appro priate and fair mechanism to ensure that Justice is achieved and that the rights of the accused are protected. In addition to this core function, Criminal Justice approaches to terrorism also provide for effective prevention mechanisms, including interventions that target the funding of terrorists and terrorist organizations and allow for the interception of conspiracies to commit attacks and the prohibition of incitement to terrorism .