CEU Electronic Theses and Dissertations, 2018
| Author | Jabauri, Ana |
|---|---|
| Title | Preserving Criminal Justice during a State of Emergency: Derogations from Fair Trial and Due Process Rights under the ICCPR, ECHR and the ACHR |
| Summary | Due to threats to national security in past decades, many states, including well-established democracies, have resorted to the use of emergency powers either by declaring a state of emergency and derogating from human rights obligations, or by adopting counter-terrorism legislation having an effect similar to derogation. Due process (the right to liberty and security of a person) and fair trial rights of individuals suspected or accused of terrorism are particularly targeted by such measures. During the fight against terrorism, international judicial human rights bodies have been trying to balance these fundamental values against the national security interest. However, in doing so, they rely on a traditional approach of giving states a certain level of discretion when dealing with emergencies. The aim of this paper is to assess the level of deference given to States in cases of derogation from the right to a fair trial and due process and suggest that international judicial and quasi-judicial bodies should develop and apply a stricter scrutiny when examine alleged violations. It will argue that, if such a scrutiny is clearly established, ex officio application of the derogation clause by human rights bodies might be beneficial for upholding the principles of criminal justice, which are often altered by counter-terrorism legislation. Comparative analysis will be provided based on three multilateral human rights treaties - the International Covenant on Civil and Political Rights, Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights. The paper focuses on derogations due to the threat of terrorism in particular, and does not address states of emergency declared on other grounds. |
| Supervisor | Károly Bárd |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2018/jabauri_ana.pdf |
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