NationStates Jolt Archive

DRAFT: FAIR CRIMINAL TRIAL

[Current Draft]

Category: The Furtherment of Democracy

Strength: Significant

Proposed by: The Narnian Council

REALIZING that the right to a fair trial isn't mandated by international law.

UNDERSTANDING the World Assembly’s responsibility to provide an evenhanded judicial system for all citizens of every member nation.

ESTABLISHING the principles of impartial Criminal Trial legal procedures that each and every member nation will be held answerable to.

PRE-TRIAL RIGHTS

1. A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his/her family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.
2. In the knowledge of the importance of impartiality in Pre-Trial procedures, those responsible for the detainment of the arrested must provide sanitary conditions and basic living needs for the arrested.
i) For the purposes of this section, "basic living needs" includes, but is not limited to, access to toilets/showers, and enough food, water, shelter and rest to keep the arrested in his/her normal healthy state.
4. The arrested has the right to know the reason of the arrest and/or what he/she is charged with upon arrest.
5. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

THE HEARING

1. The accused must be granted, without discrimination, the right of equal access to a court.
2. The accused has the right to a trial without undue delay.
i) For the purposes of this section, ‘undue delay’ is applicable between the time the accused is arrested, and the time when the judgment is passed – and refers to any negligence on the part of the prosecutor(s)/defendant(s) in the gathering of evidence and/or on the part court in administering the case. The assessment of which will depend on the circumstances of a case, which includes, but is not limited to, the case’s complexity, and the conduct of the accused and/or the authorities.
3. The accused has the right to a fair and impartial hearing.
4. The accused has the right to a public hearing.
5. The accused has the right to a competent and impartial tribunal - independent from the involved parties and established by law - that exercises both procedural and adjudicatorial fairness.
6. The accused has the right to a presumption of innocence.
7. The accused has the right to adequate time, that is, enough time to have access to evidence according to the complexity of the case, and adequate facilities, that is, the accused and defense counsel must be granted appropriate information, files and documents necessary for the preparation of a defense and that the defendant must be provided with facilities enabling communication, in confidentiality, with the defense counsel.
8. The accused has the right to defend oneself in person or through legal counsel.
9. The accused has the right to examine, if the witness consents, or to have examined, the witness(es).
10. The accused has the right to understand the proceedings and to be understood through means of an interpreter translating in his/her native form of communication.
11. The accused has the right not to incriminate him/herself.
12. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed
13. The accused may waive any of the above rights.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

Well everyone's hooked in rebuilding the WA - so I thought its time to join the fun!

Please keep in mind that this is but a draft. If you would like to see something tweaked, don't just point it out! Suggest a replacement!

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

REALIZING that after the World Assembly has come into being, the right to a fair trial will be non-existent.I thought Fair Trial was Repealed and never replaced...

Technically it was a bit of a mess in the UN...

Resolution 21: "Fair Trial" was repealed.

Resolution 47: "Definition of Fair Trial" still stood, but did not mandate the use of a fair trial.

Resolution 73: "Habeas Corpus" mandated the use of that particular legal principle, but also: "Habeas Corpus also declares accordingly that once a charge is filed, then the person should be treated as per the Definition of Fair Trial resolution."

Would that seem to actually mandate the use of a fair trial, which is 'defined' in Resolution 47? If so - then obviously it was actually law.

However...if I have misunderstood the operations of things - the pre-amble can always be altered.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

Now I hope it passes... these legal backflips give me a headache.

Personally, I would just tweak the line. "REALIZING that the right to a fair trial isn't mandated by international law..."

As for the rest... the Pre-Trial stuff seems a little omnibus for me, and more towards Human Rights...

Done.

OOC: I've got to run atm - but I'll be sure to review the Pre-trial rights soon - yes I can see what you mean there.

________________

CoN Lord Chancellor
Delegate of the Council of Narnia

REALIZING that the right to a fair trial isn't mandated by international law.

NOTING that for the benefit of every member nation, the notion of a fair trial must be quickly re-established.

Gratuitous back-references kill the credibility of any document.

1 is obvious - if it were, the resolution would not be proposed. I think you can lose this line; the status quo does not need to be explained.

2 is okay but should lose the "quickly" and the "re".

10. Self-incrimination is prohibited.

And if I want to incriminate myself? ;) Really, this clause is usually written as "The defendant has the right not to incriminate herself."

OOC note: This sounds very much like the American legal/ judicial system, but it is not the only system around that results in what society considers a fair trial. France has a much different system, and yet the French aren't besieging their government to change their legal/ judiciary system

There is nothing that makes this resolution into one I would vote for. There are a lot of terms that need definitions of further elucidation upon.

What about the conditions below automatically make a trial a 'fair' trail?
What are 'humane conditions'?
Why a tribunal, not a jury of the accused's peers?
Why can not the accused incriminate himself if he so chooses- why must the accused declare themsleves innocent ?
Why must there be an appeal ? does having just one trial mean that said trial was inherently unfair? what if the defendant does not want to appeal?
Why can not the accused be held incommunicado - what if the safety of the public or individuals might well be compromised by allowing communication.

OOC note: This sounds very much like the American legal/ judicial system, but it is not the only system around that results in what society considers a fair trial. France has a much different system, and yet the French aren't besieging their government to change their legal/ judiciary system

There is nothing that makes this resolution into one I would vote for. There are a lot of terms that need definitions of further elucidation upon.

What about the conditions below automatically make a trial a 'fair' trail?
What are 'humane conditions'?
Why a tribunal, not a jury of the accused's peers?
Why can not the accused incriminate himself if he so chooses- why must the accused declare themsleves innocent ?
Why must there be an appeal ? does having just one trial mean that said trial was inherently unfair? what if the defendant does not want to appeal?
Why can not the accused be held incommunicado - what if the safety of the public or individuals might well be compromised by allowing communication.
I agree with The Militarized Zone. There are many terms in the proposal that need to be defined, such as "humane conditions." After all, one idiotic official in the Dominion who has recently been removed from his position, GW Bush, declared some time ago that sleep is not necessary for humane conditions.

Respectfully,
The Dominion

OK, this is going to put His Nibs' nose right out of joint, not that that's a bad thing you understand. He's been working on a replacement ever since Fair Trial got stuffed a few weeks ago, and I've got to say it doesn't look much like this laundry list. I'll dig around and see if any of his drafts didn't go up in smoke.

(OOC: or in other words, something about this bothers me a lot, but I can't put my finger on it. Also, I'm at work and all my notes are at home. More later.)

--
Cerys Coch, Permanant Undersecretary

Why must there be an appeal ? does having just one trial mean that said trial was inherently unfair? what if the defendant does not want to appeal?
Why can not the accused be held incommunicado - what if the safety of the public or individuals might well be compromised by allowing communication.

Hayden shifted his weight on his temporary replacement for his destroyed chair, a milkcrate. "I agree with my fellow Fatal Terrean, except on one point. First, an appeal is not automatically mandated by this proposal. It merely establishes a right to appeal the decision to a higher power, should one exist."

"Also, not really a disagreement, but an offer of comprosmise. Holding a prisoner incommunicado is against the basic idea of fair trial, but yes, free communication from an accused cannot be allowed either. A middle ground, monitored communications perhaps."

Fotar believes this is a very well written and clear draft and would support it as it currently stands.

Fotar would also like to make a quick remark about one of the Militarized Zone's questions
Why must there be an appeal ? does having just one trial mean that said trial was inherently unfair? what if the defendant does not want to appeal?
The draft only says the defendant has the right to an appeal...not that one is required. If the defendant does not want to appeal, they are not required to have one.

edit: You beat me to it Catawaba ;)

_________________
Fotar,
~King of the Narnian Kingdom of Fotar
~Vice-Chancellor of the Council of Narnia (http://www.nationstates.net/10639/page=display_region/region=the_council_of_narnia)

This sounds very much like the American legal/ judicial system

OOC: Just so you're aware...I live probably 10000km away from the USA - to be honest I'm in no way biased towards all things American. ;)

What are 'humane conditions'?

Actually, this specification may need to be altered dramatically or even omitted so as not to cross the line into Human Rights - as expressed by MGH.

Why a tribunal, not a jury of the accused's peers?

"Tribunal" is not too restricting:

1 : the seat of a judge or one acting as a judge
2 : a court or forum of justice : a person or body of persons having to hear and decide disputes so as to bind the parties.

A jury of the accused peers would require that I define "peers", and would limit the kind of person that may sit in the jury, and restrict people based upon their standing - which I don't believe is very appropriate.

Why can not the accused incriminate himself if he so chooses- why must the accused declare themsleves innocent ?

Rewritten.

Why can not the accused be held incommunicado - what if the safety of the public or individuals might well be compromised by allowing communication.

Unfortunately, that is the convenient excuse many leaders would be prepared to give so as to hold the arrested incommunicado for outrageous reasons. But as the ambassador of Ermarian pointed out, I can see the need for a middle ground. Rewritten.

He's been working on a replacement ever since Fair Trial got stuffed a few weeks ago

I sincerely apologise for the inconvenience - as you well know that I was fully unaware. I'd expect your criticisms here should be particularly constructive, though.

Ermarian;13576902']
1 is obvious - if it were, the resolution would not be proposed. I think you can lose this line; the status quo does not need to be explained.
2 is okay but should lose the "quickly" and the "re".

You're quite right - the preamble does need a bit of work now that I've modified the first line based upon MGH's suggestions. Its just been re-done.

Changes made to the draft

Preamble:

UNDERSTANDING the World Assembly’s responsibility to provide an evenhanded judicial system for all citizens of every member nation.

DEFINING the particular nature of the fair trial.

ESTABLISHING the principles of impartial legal procedures to hold each and every member nation answerable to.


Pre-trial Rights:

2. Incommunicado detention is prohibited.
i) A detained or imprisoned person shall have the right to be visited by and
to correspond with, in particular, members of his family and shall be given adequate
opportunity to communicate with the outside world, subject to reasonable conditions and
restrictions as specified by law or lawful regulations.

A middle ground?

3. In the knowledge of the importance of impartiality in Pre-Trial procedures, those responsible for the detainment of the arrested must not deprive the arrested of sanitary conditions, and must provide basic living needs for the arrested.
i) For the purposes of this section, "basic living needs" includes access to amenities, and enough food, water, shelter and rest to keep the arrested in his/her normal healthy state.

Longwinded, yes. This particular section attempts to link itself more with “The Furtherment of Democracy” rather than obviously saying “I belong in Human Rights!” This is necessary if we are to actually include this protection for the arrested in the proposal. In any other form, really, it would not be compatible with the appropriate category – even if it is now.

5. The right to legal counsel.
i) That is, all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings

Elaborates on the concept of ‘legal counsel’.

The Hearing:

10. The accused has the right not to incriminate him/herself.

Tweaked this section - makes more sense.

11. The accused may waver any of the above rights.

As was established in 'Definition of Fair Trial' in the UN. Allows the accused more freedom and should cover all bases.


Civil Trial Rights:

1. Must be held before a neutral and detached judge or jury.

Added ‘or jury’.

2. The deliberate intimidation of witnesses is prohibited on the part of the involved party(ies).

Added who exactly is not allowed to deliberately ‘intimidate’ the witness.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

Captain Abagail Hardcastle looked over the rewritten proposal and frowned.

"access to amenities?"

"Can you please define / codify this term, Amenities. As I feel that the 'and enough food, water, shelter and rest to keep the arrested in his/her normal healthy state.' is suffecient

I am not comprehending how access to amenities makes for a fair trial.

Again I bring up the incommunicado -- again how does that make a trial fair or not.

Most of this seems to be centered around treatment of the accused before the trial begins, and while some of it does deal directly with the trial phase, some of it does not and does not seem to have any appreciable impact on the "fairness" quotient of the trial.

Only points 2. and 3. under Pre-Trial rights deal with somewhat more separate, but still relevant, issues. Everything else directly deals with the procedures of trials.

The thing is, we don't believe it very 'just and impartial' for a government to imprison the accused in a dog kennel - even before the trial. Neither do we believe it just for the accused to be locked up in solitary confinement before his trial for most cases.

Points 2 and 3 deal with how 'fairly' the accused must be treated before his trial. The rest specifies exactly how a trial must be conducted in an impartial way.

I had originally written "toilets and showers" instead of "amenities"...couldn't think of the actual phrase to describe this before. But I believe 'basic living standards' should include this.

However, these of course can be....regretfully....omitted if all its going to do is render the proposal illegal.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

OK, I've found some charred envelopes that have some of HRH's scribblings on them. No need to apologise to me, by the way; I have to put up with him all day, unlike you lot. I'll intersperse what's here with comments on the draft so far.

REALIZING that the right to a fair trial isn't mandated by international law.

UNDERSTANDING the World Assembly’s responsibility to provide an evenhanded judicial system for all citizens of every member nation.
People are going to quibble about understanding no such thing, you know. It's not obvious that the WA has such a responsibility, so you're asserting it rather than "understanding" it as such.

DEFINING the particular nature of the fair trial.
STATING the bloody obvious... seriously, lose this. It adds nothing, and it uses up characters that you haven't got spare.

ESTABLISHING the principles of impartial legal procedures that each and every member nation will be held answerable to.
Same goes for this, really. All it's saying is "this is what I'm doing", and preambles are really for "this is why I'm doing it".

This is as good a time as any to say that you've got at least two, and possible as many as four resolutions-worth of stuff here. Custody rights, criminal trial rights, civil trial rights (where civil trials exist), they're all different beasts, and they'll probably benefit from being treated separately.

PRE-TRIAL RIGHTS

1. Arbitrary arrest and detention is prohibited.
Let's be clear here; are you trying to do Habeus Corpus in one sentence? If so, do it in a lot more sentences instead, because that way it'll work. At the moment, all an arresting officer has to do is claim she isn't being arbitrary and it all stops being fun and games.

2. Incommunicado detention is prohibited.
i) A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.
So "2" is the sound-bite and "i" is the actual law? Lose "2" -- sound-bites in law are a Bad Thing. An expensive enough lawyer could argue the absolute prohibition in "2" against the conditional prohibition in "i" to get round almost any restrictions a nation might want to put on someone.

3. In the knowledge of the importance of impartiality in Pre-Trial procedures, those responsible for the detainment of the arrested must not deprive the arrested of sanitary conditions, and must provide basic living needs for the arrested.
i) For the purposes of this section, "basic living needs" includes access to amenities, and enough food, water, shelter and rest to keep the arrested in his/her normal healthy state.

3i doesn't need to be a separate paragraph. Also the first half ("In the knowledge... Pre-Trial Procedures,") sets itself up as being immensely more important than anything else. It isn't. Phrasing it in the negative is also rather loose; the arrested mustn't be deprived of sanitary conditions, but there's no duty to ensure sanitary conditions either.

What do you mean by "amenities"? I'm struggling to think of something that isn't also mentioned (sanitary conditions, food, water, shelter, rest) that isn't a luxury.

4. The right to know the reason of the arrest.
What someone is charged with and the reason for their arrest are two different things. Go for the one that has a legal existence :-)

5. The right to legal counsel.
i) That is, all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.
Again, lose the sound-bite. Who is responsible for the provision of the lawyer? Who is responsible for paying the lawyer? If the defendent doesn't have a lawyer or can't pay them, how should nations make sure this right is upheld?

Things that are missing here:

* Thou shalt not torture the accused for evidence.
* Thou shalt bring the accused to trial reasonably speedily, and not hold them for trial for ten years before dropping the charges.

THE HEARING

1. The arrested has the right to equal access to, and equality before, the courts.
What the hell does this mean? If I'm looking at it and going "WTF?", you can bet that some clever dick will use it in a way you never expected.

2. The right to a fair and impartial hearing.
I really hate this sort of list, where "The arrested has" becomes an implicit prefix to ostensibly stand-alone sentences. It offends my sense of grammar. But that's just me, I suppose.

There are two separate parts of a fair and impartial hearing as a concept. First, there's procedural fairness; having the presiding authority (the judge) run the trial according to law (and for that law to allow for the subsequent rights to be exercised). Second, there's adjudicatorial fairness; having the decision-makers reach their decision impartially and in accordance with the law. These two things are different, even if the president and adjudicator are the same people. It's also different from having the right to a hearing at all, which is something else to protect. You need to say all three things explicitly, or someone will claim that they aren't implicit in this clause.

3. The right to a public hearing.
This is a problem. You do want to allow for closed sessions and sub judice restrictions for strictly limited reasons like the protection of intelligence assets. Unfortunately, this is one of the burnt bits of the ambassador's notes (OOC: or in reality, I never got round to figuring out what the reasons should be. I'm not sure how to make such a list without it being either over-restrictive or useless).

4. The right to a competent, independent and impartial tribunal established by law.
Ah, right, this is where the first two parts of my answer to "2" should be. Sorry, I'm too asleep to edit this competantly at the moment.

5. The right to a presumption of innocence.
Whoops, there goes the Code Napolean. Presumption of innocence isn't a part of all legal systems, particularly not if they front-end the burden of proof in bringing a charge at all.

6. The right to adequate time and facilities for the preparation of a defense.
i) For the purposes of this section, "adequate time" means enough time to have access to evidence, according to the complexity of the case. Enough time to gather evidence from domestic law, being a prime example.
ii) For the purposes of this section, "adequate facilities" means that the accused and defense counsel must be granted access to appropriate information, files and documents necessary for the preparation of a defense and that the defendant must be provided with facilities enabling communication, in confidentiality, with the defense counsel.
A slightly more difficult sound-bite to eliminate, this one. It can be done, though, and it might help to notice that there are two different things going on. First, having time and access to evidence and information; second, having private (unmonitored?) discussions with the defense counsel.

7. The right to defend oneself in person or through legal counsel.
Since we're just talking about criminal cases here, this is fine.

8. The right to examine witnesses.
This is a big can of worms. Does the accused have the right to confront witnesses in person? It could be read that way, and that would be a bad idea. There are many situations in which the anonymity of an accuser is important; an intelligence source, for example, or a witness in fear of the accused. There needs to be some right of cross-examination, but it's got to be tempered by protection of the witnesses where that's needed.

9. The right to an interpreter.
This never occurred to me, but it should have. It's actually a right to understand the proceedings, i.e. get things interpreted into the defendent's native language if a foreigner, or their sign language if deaf, and so on. Add the "why" to this, or some bugger will provide a Kawaiian interpreter for a Narnian in trouble some day.

10. The accused has the right not to incriminate him/herself.
The accused has the right not to be forced to incriminate himself, maybe (and why the sudden concern about inclusive language when it hasn't arisen before?).

11. The accused may waver any of the above rights.
You mean "waive".

Things His Nibs wanted to see:

* A recommendation to use juries of the defendent's peers, because they're Really Good (in some cases).
* Allowing verdicts of "not proven", which most nations don't ever seem to think of.
* Trials should be held reasonably locally to the crime, where possible; ideally in the same town, would need a very good reason not to be in the same country.

There's also a whole pile of sentencing stuff that you're wisely steering clear of.

POST - TRIAL RIGHTS

1. The condemned has the right to appeal.
Condemned? Strong language there.

2. The right to compensation for miscarriage of justice.
i) For the purposes of this section, a miscarriage of justice is defined as one where a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered that punishment shall be compensated according to law.
Bad definition. Someone who has been pardoned is by definition still guilty as charged, they've just been let off. Someone whose conviction has been quashed is the innocent one. Even allowing for that, it's a circular definition: a miscarriage of justice is apparently one (sic) which is shown to be a miscarriage of justice.

Even allowing for that, it's a meaningless clause. Someone who has been subject to a miscarriage of justice will be compensated according to law, which is entirely at liberty to define such compensation as a letter from the judge's secretary saying "Oops, sorry." The whole area is complicated enough that I'd be tempted to put it in a separate resolution and give it some real teeth.

CIVIL TRIAL RIGHTS
I'd be tempted to do this separately too.

1. Must be held before a neutral and detached judge or jury.
Oh, and you were doing so well. Why mention judge and jury now when you didn't for criminal trials? This should be a cut-and-paste of the relevant section of the criminal trial rules anyway.

2. The deliberate intimidation of witnesses is prohibited on the part of the involved party(ies).
Why is this in the civil part and not in the criminal part? Are criminals allow to intimidate witnesses, then?

3. There must be a level playing field in regards to legal representation.
Careful, this is a bit too vague. It could mean that either both sides or neither get representatives, or it could mean that both sides get equally expensive representatives, or a few other things I'm too tired to invent right now. Better to be a bit more specific.

4. Awards compensation to one party if a predominance of evidence supports this.
I.e. decision can be "on balance of probabilities" rather than "beyond reasonable doubt", which wasn't explicit for criminal cases anyway. On the other hand, this doesn't say that the compensation has to be proportionate to the crime, and that's one of the few sentencing issues it's worth being explicit about here.

His Nibs really wants "not proven" verdicts allowed in civil cases, especially if the judge thinks that both parties need a good slapping.

(OOC: my notes are a bit more formalised than this rambling implies, but they are in no way ready for me to have a crack at a resolution, and I don't have the time to work on them this month. Hope this helps.)

--
Cerys Coch, Permanent Undersecretary

Well Gobbannium, I'm appreciative of the fact that you've taken it upon yourself to, in addition to the criticisms, add weight to them by making suggestions. Some of which are a little picky (understandably, this was a project you were originally working on yourself) - but to your credit - much of what you have said makes sense.

As I don't have a great lot of time to compose my reply - I'll just pick out the things of greater interest (in other words - what I take issue with). Tomorrow I may have sufficient time to tackle the other issues, and the tweaking.

This is as good a time as any to say that you've got at least two, and possible as many as four resolutions-worth of stuff here. Custody rights, criminal trial rights, civil trial rights (where civil trials exist), they're all different beasts, and they'll probably benefit from being treated separately.

I believe so. However, this would be a revolutionary approach to the writing of such resolutions in the The World Assembly...rarely are issues taken with such detail - even the new proposals. But then again, we've just experienced a great upheaval as it is...I don't have a problem with setting an example...

If I'm still of the same mind tomorrow, I might even drop the Civil Trial in favour of expanding upon the Criminal.

3i doesn't need to be a separate paragraph.

Quite simply, 3i defines a term used in 3. - therefore it is more correct to use the separation.

Also the first half ("In the knowledge... Pre-Trial Procedures,") sets itself up as being immensely more important than anything else.

Check on page 1. This was worded so as to squeeze better into "The Furtherment of Democracy" rather than having to be omitted by being more appropriate in a "Human Rights" proposal...even though this is a very important part of the procedures of a 'fair trial'.

What do you mean by "amenities"?

OOC: Is my culture the only one to use that term? Refers to toilets and showers. Can be better defined, if I'm the only one here that is familiar with the word's definition.

What someone is charged with and the reason for their arrest are two different things. Go for the one that has a legal existence :-)

Ah...but is it law that one must first be charged before being arrested? If not, it must be made law here first, or in another resolution, before we go about altering this section.

Things that are missing here:

* Thou shalt not torture the accused for evidence.

And risk the proposal's legality by crossing the line into Human Rights? This would need to be extremely carefully worded so as not to be the reason for the proposal's deletion. Which is why I steered clear - it probably better belongs in a separate resolution. Or Civil Trial needs to be dropped to allow for a great heap of mumbo jumbo explaining why the prohibition of torture suits this better than Human Rights.

Well...I didn't get around to answering half of what I wanted to...I've run out of time for now - but I'll be present tomorrow morning to resume this. Thanks for spending time on this.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

A total ban on "incommunciado detention" would seriously hinder some investigations, because it would let captured criminals warn their accomplices -- and captured spies warn their masters -- that those investigations were underway.
Looking at clause '2.i' by itself, could the "reasonable conditions" that this would allow to limit the prisoners' rights of communication cover such situations? Personally I'd say "Yes", but I realise that other people might disagree....

If the defendent doesn't have a lawyer or can't pay them, how should nations make sure this right is upheld?

A tough question and requiring a comprehensive answer, never before answered by the UN. Quite worthy of a seperate resolution.

* Thou shalt bring the accused to trial reasonably speedily, and not hold them for trial for ten years before dropping the charges.

Undue delay. Really needs a lengthy definition. Might be realistically possible if Civil Trial is dropped.

What the hell does this mean? If I'm looking at it and going "WTF?", you can bet that some clever dick will use it in a way you never expected.

Quite simply - this means that everyone has the right to equal access to the courts. It is not legal to establish seperate courts for different groups of people based upon their race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. "All persons must be granted, without discrimination, the right of equal access to a court" may be a better way of saying it.

I really hate this sort of list, where "The arrested has" becomes an implicit prefix to ostensibly stand-alone sentences. It offends my sense of grammar. But that's just me, I suppose.

To be honest, I was at a loss - keep it dull and repetitive, or a little more orderly? For legal reasons you may be right, but I can bet that the other half of us loathe having to wade through 'the arrested has the right'...'the arrested has the right'....'the arrested has the right'...'the arrested has the right'....'the arrested has the right'.....'the arrested has the right'...you get the idea.

There are two separate parts of a fair and impartial hearing as a concept. First, there's procedural fairness; having the presiding authority (the judge) run the trial according to law (and for that law to allow for the subsequent rights to be exercised). Second, there's adjudicatorial fairness; having the decision-makers reach their decision impartially and in accordance with the law. These two things are different, even if the president and adjudicator are the same people. It's also different from having the right to a hearing at all, which is something else to protect. You need to say all three things explicitly, or someone will claim that they aren't implicit in this clause.

Good call. I'll be working on it.

This is a problem. You do want to allow for closed sessions and sub judice restrictions for strictly limited reasons like the protection of intelligence assets. Unfortunately, this is one of the burnt bits of the ambassador's notes (OOC: or in reality, I never got round to figuring out what the reasons should be. I'm not sure how to make such a list without it being either over-restrictive or useless).

OOC: Same here. It would be difficult to present an exception without providing a Stalinized government the opportunity to do ill. But I'll give it further consideration.

Whoops, there goes the Code Napolean. Presumption of innocence isn't a part of all legal systems, particularly not if they front-end the burden of proof in bringing a charge at all.

Well I'm fully aware of that - but for the benefit of impartiality, this presumption goes a long way. If the accused walks in and the judge sits there already imagining how he's going to phrase the 'this court finds you guilty of...' then his procedural fairness is more than likely to be biased - whether or not the outcome seems obvious. This strengthens that 'fairness' by defining how exactly the judge/jury must be 'fair'.

A slightly more difficult sound-bite to eliminate, this one. It can be done, though, and it might help to notice that there are two different things going on. First, having time and access to evidence and information; second, having private (unmonitored?) discussions with the defense counsel.

Hmm...I think for valid purposes of definition - this should be kept as it is. 'Unmonitored' discussions with the defense counsel? How would that be a dangerous thing? It is not the court's duty, or anyone else's, for that matter, to sit in on a private discussion between the accused and his defense counsel - that would cause more problems than it would solve.

This is a big can of worms. Does the accused have the right to confront witnesses in person? It could be read that way, and that would be a bad idea. There are many situations in which the anonymity of an accuser is important; an intelligence source, for example, or a witness in fear of the accused. There needs to be some right of cross-examination, but it's got to be tempered by protection of the witnesses where that's needed.

Yes, its in need of expansion. I'll be working on this later today.

This never occurred to me, but it should have. It's actually a right to understand the proceedings, i.e. get things interpreted into the defendent's native language if a foreigner, or their sign language if deaf, and so on. Add the "why" to this, or some bugger will provide a Kawaiian interpreter for a Narnian in trouble some day.

Eh? Whats that? Sorry...I don't speak fluent idiot. No - actually you're correct - should be re-stated.

You mean "waive".

Whoops! Had borrowed directly from the UN's 'Definition of Fair Trial' - yes I do mean that.

Bad definition. Someone who has been pardoned is by definition still guilty as charged, they've just been let off. Someone whose conviction has been quashed is the innocent one. Even allowing for that, it's a circular definition: a miscarriage of justice is apparently one (sic) which is shown to be a miscarriage of justice..

Actually...it says that a miscarriage of justice is one where a newly discovered fact shows conclusively that it is so.

Even allowing for that, it's a meaningless clause. Someone who has been subject to a miscarriage of justice will be compensated according to law, which is entirely at liberty to define such compensation as a letter from the judge's secretary saying "Oops, sorry." The whole area is complicated enough that I'd be tempted to put it in a separate resolution and give it some real teeth.

Then 'compensation' needs to be defined. I've more space now - so this shouldn't be a problem.

I'd be tempted to do this separately too..

I'd prefer to tackle this one here.

(OOC: my notes are a bit more formalised than this rambling implies, but they are in no way ready for me to have a crack at a resolution, and I don't have the time to work on them this month. Hope this helps.).

Actually it did. I will drop Civil Trial in favour of exanding upon Criminal Trials (there you go...something to work on). Good gracious! You've had me sitting here writing this reply for nearly an hour! I must run. I'll have to begin making the necessary changes later on today.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

Updated the draft. The main things thats been changed:

*Dropped Civil Trial and Post Trial Rights.

The latter mainly for the reason that the term 'compensation' for judicial miscarriage requires too many sentences...that I don't have spare. It would need to examine independent assessors, financial losses, non-pecuniary losses and a whole new nightmare of legal ramifications.

*Dropped clause 1 of Pre-Trial: "Arbitrary arrest and detention is prohibited." Same reason as given for Post Trial Rights.

*Edited Pre-Trial 4. to give the accused the right to know what he/she has been charged with.

*Edited the sound-bite out of the former clause 2.

*Slightly edited clause 2 to refer to the 'positive'.

*Altered the wording of The Hearing: clause 1.

*Established the concept of 'undue delay': clause 2.

*Added "procedural and adjudicatorial fairness" to clause 5.

*Edited sound-bite out of clause 7, mainly for lack of space.

*Slightly edited the wording of clause 9.

*Slightly edited the wording of clause 10.

*Established the prohibition on retroactive application of criminal laws: clause 12.


This is far more meatier and hopefully covers more ground more sufficiently than the previous draft - let me know what you think.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

4. The arrested has the right to know the reason of the arrest and/or what he/she is charged with.
"upon arrest." Otherwise, I foresee dictators holding arrestees indefinitely without establishing the cause for arrest. A time frame must be established.

4. The accused has the right to a public hearing.
"except where a public hearing may endanger the security of others." or perhaps, "except where a public hearing may endanger national or international security."

5. The accused has the right to a competent, independent and impartial tribunal established by law, which must exercise both procedural and adjudicatorial fairness.
Independent--from whom?

10. The accused has the right to understand the proceedings and to be understood through means of an interpreter translating in his/her native form of communication.
And if understanding is not able to be established? Will the case be infinitely stalled?


Respectfully,
The Dominion

Your first suggestion is absolutely correct. The second, I'm seriously considering steering clear from. As with Gobbanium, its terribly hard to find a middle ground for this, and I don't have much space left over - your suggestions will allow those same dictators to take advantage again.

The third - 'independent from the involved parties' would be suitable.

The fourth - if the accused cannot be understood in any way, and cannot understand the procedures, it logically follows that it is simply not possible to conduct the trial. Very rare - and being the NSWA and its damn character limits - its just not possible to cover every single possibility in one resolution.

_______________

CoN Lord Chancellor
Delegate of The Council of Narnia

Your first suggestion is absolutely correct. The second, I'm seriously considering steering clear from.
However, it would completely inappropriate to call a public hearing if the hearing would involve confidential materials of the government. In fact, if such materials might be used against an accused, the accused may simply call a public hearing so as to put the prosecutor into such a position as to have no choice but not to divulge the above mentioned evidence. Perhaps if a public hearing is allowed, unless a party interjects with a claim that a public hearing may endanger others or national security, at which point an Assembly investigative arm may validate or reject the request for a public hearing.

The fourth - if the accused cannot be understood in any way, and cannot understand the procedures, it logically follows that it is simply not possible to conduct the trial.
I believe it would be more clear if that was explicitly provided for.


Respectfully,
The Dominion

Ahem. My name isn't "Gobbannium", Lord Chancellor. Even the Ambassador can't claim that one -- if you want to be all formal like that with him, he's "Segontium", but I'm pretty sure only the other Princes and Princesses can get away with that.

Out of curiosity, why do you think this is a Furtherment of Democracy proposal rather than a Human Rights? I don't necessarily disagree, but I think it does need settling, and it seems to be causing some very self-important phrasing at the moment.

Undue delay. Really needs a lengthy definition.
And here was me thinking that "undue delay" would be reasonable for once. I really hate your habit of attaching sub-paragraphs for these definitions, by the way. It makes the main "paragraph" look like a sound-bite, as I've said before.

Well I'm fully aware of that - but for the benefit of impartiality, this presumption goes a long way. If the accused walks in and the judge sits there already imagining how he's going to phrase the 'this court finds you guilty of...' then his procedural fairness is more than likely to be biased - whether or not the outcome seems obvious. This strengthens that 'fairness' by defining how exactly the judge/jury must be 'fair'.
But this argument only demonstrates that you can't have a fair trial. Flip it round; if the accused walks in and the judge sits there already imagining how he's going to phrase the "this court finds you innocent of..."... You see the problem? If the judge is unbiased -- and you already demand this -- then the presumption is irrelevant.

Hmm...I think for valid purposes of definition - this should be kept as it is. 'Unmonitored' discussions with the defense counsel? How would that be a dangerous thing? It is not the court's duty, or anyone else's, for that matter, to sit in on a private discussion between the accused and his defense counsel - that would cause more problems than it would solve.
I wasn't saying that it should be dropped, I was saying that they were two different things. Given the way you give everything else its own line, whether it deserves it or not, telescoping these two together looks odd.

Can you tell I'm not loving the laundry list approach, still?

Actually...it says that a miscarriage of justice is one where a newly discovered fact shows conclusively that it is so.
Let's try that again, less subtly:

...it says that a miscarriage of justice is one [SIC] where...

In other words, a miscarriage of justice is a miscarriage of justice where newly discovered facts show conclusively that it is a miscarriage of justice. It's still a circular definition.

(OOC: Now skipping back to the post I forgot about when I started replying...)

What do you mean by "amenities"?
OOC: Is my culture the only one to use that term? Refers to toilets and showers. Can be better defined, if I'm the only one here that is familiar with the word's definition.
OOC: No, yours isn't the only one to use the word. The trouble is, I've heard "amenities" used for toilets and washing facilties (not necessarily even a bath or shower), shopping complexes, leisure complexes... unqualified, it's got enough meanings to be positively dangerous. Thanks for fixing that one.

What someone is charged with and the reason for their arrest are two different things. Go for the one that has a legal existence :-)
Ah...but is it law that one must first be charged before being arrested? If not, it must be made law here first, or in another resolution, before we go about altering this section.
No, you're missing the point. A person can be charged with "Drunk and Disorderly." The reason for their arrest can be that the policeman wanted revenge for them throwing up over his shoes.

(OOC: and now the OP again)

11. The accused has the right not to incriminate him/herself.
This still isn't the right, and I'm not the only one to have told you this.

9. The accused has the right to examine, if the witness consents, or to have examined, the witness(es).
Something about this phrasing is very not right, but I'm too tired to figure out what. Something other than the brackets, that is, which together with all the "and/or" and "him/her" guff here would have got my knuckles severely rapped if I'd ever presented them to my English teacher.

--
Cerys Coch, Permanent Undersecretary

Ahem. My name isn't "Gobbannium", Lord Chancellor. Even the Ambassador can't claim that one -- if you want to be all formal like that with him, he's "Segontium", but I'm pretty sure only the other Princes and Princesses can get away with that.

My apologies, I too was suffering from late-night fatigue while I attempted to write the response.

Out of curiosity, why do you think this is a Furtherment of Democracy proposal rather than a Human Rights? I don't necessarily disagree, but I think it does need settling, and it seems to be causing some very self-important phrasing at the moment.

Both terms can be used alongside 'Fair Trial', however 'increasing democratic freedoms' and 'fairness' are more easily married (and was also the predecessor's category, mind you) than 'improving human and civil rights' and 'fairness' is. Close - but the first is more suitable.

As for the rest... the Pre-Trial stuff seems a little omnibus for me, and more towards Human Rights...

The mod has spoken. Hence the reason for my caution.

And here was me thinking that "undue delay" would be reasonable for once. I really hate your habit of attaching sub-paragraphs for these definitions, by the way. It makes the main "paragraph" look like a sound-bite, as I've said before.

OOC: Again, this is being a bit picky. Its not a sound-bite, its not altering anything, and it allows for ease of reading - which for most NationStaters is an awesome plus...most really just want something that will take them less than 2 minutes to read before they vote.

But this argument only demonstrates that you can't have a fair trial. Flip it round; if the accused walks in and the judge sits there already imagining how he's going to phrase the "this court finds you innocent of..."... You see the problem? If the judge is unbiased -- and you already demand this -- then the presumption is irrelevant.

This does make sense - something doesn't feel right about this though...I'll give it more thought before deciding on that.

Can you tell I'm not loving the laundry list approach, still?

Please. Lose the complaints. And the patronizing. You've already told us before that this was your project - don't come here whining about it again and again.


It's still a circular definition.

Well we're safe. I dropped that section entirely, anyway.

No, yours isn't the only one to use the word. The trouble is, I've heard "amenities" used for toilets and washing facilties (not necessarily even a bath or shower), shopping complexes, leisure complexes... unqualified, it's got enough meanings to be positively dangerous. Thanks for fixing that one.

No problems - I see what you mean. And less aggressive words such as these will get you much further with me.

No, you're missing the point. A person can be charged with "Drunk and Disorderly." The reason for their arrest can be that the policeman wanted revenge for them throwing up over his shoes.

Yes, but in a particular country it may perfectly acceptable to arrest someone without laying a charge first. In that case, the arrested would be terribly bewildered as to what was happening, because there is no 'charge' that the authorities can inform him of. For this reason - I've included both.

This still isn't the right, and I'm not the only one to have told you this.

? This sentence was altered to how it is upon the suggestion of another. How exactly would you have it?

Something other than the brackets, that is, which together with all the "and/or" and "him/her" guff here would have got my knuckles severely rapped if I'd ever presented them to my English teacher.

Hmm - are you asking for the use of 'them' or 'they', instead? Thats legally ineffective and certainly not as grammatically correct.

We find it quite irritating, ambassador, that you still cannot bring it upon yourself to behave in a more decent, civil manner. Whether or not it is in the nature of the Gobbannium inhabitants to forever act as if they suffering from a splitting migraine - that is besides the point.

We appreciate that you have taken it upon yourself to conduct your behavior in a milder, more professional fashion (as opposed to our last engagement), but you still show signs of that unexplained animosity you threw upon us when we first met...if you wish for progress with we Narnians, I seriously suggest the use of better social graces.

____________

CoN Lord Chancellor
Delegate of The Council of Narnia

4. The arrested has the right to know the reason of the arrest and/or what he/she is charged with."upon arrest." Otherwise, I foresee dictators holding arrestees indefinitely without establishing the cause for arrest. A time frame must be established.I disagree. A short delay should be allowed, with that delay codified; probably a limit of 24 or 48 hours. Being able to detain someone before officially charging them can have its uses, and can also be used for minor infractions.

The classic "drunk tank" was simply arresting someone and holding them overnight (with no charge as 'Public Intoxication' only carried a fine) and releasing them in the morning when they had sobered up.

Putting a solid limit in the law won't cause the same problems as setting fines would ($20 is a pittance for some, a fortune for others), and would give police some much needed leeway.

OOC: Oh, for fuck's sake. Narnian Council, please read what I damn well wrote, including all those times the three letters "O", "O" and "C" occur at the start of a paragraph, and all the times they don't. And the pre-signature, come to that. If you want to bitch in-character about my bitchy character being bitchy, that's fine. If you want to bitch to me out of character about my bitchy character being bitchy, I'm going to laugh. If you want to try to do both in a sorry mish-mash of not-quite-in-character, and can't even get right which character you're talking to, I as a player am not interested in wasting any more time on you.

I disagree. A short delay should be allowed, with that delay codified; probably a limit of 24 or 48 hours.

OOC: You're quite right - a middle ground would probably be more suitable. I'll work on the changes when I return in a few hours time.

[This is still OOC] ~

Alright Gobbannium, you've just brought this out of character. Everything I said, including the reprimand, was said IC from the mouth of the Lord Chancellor of the Narnians, directed to Cerys Coch of Gobbannium - that was implied multipletimes.

Now, I appreciate criticism. Especially if it will help refine and polish up the necessary bits. Which alot of what you said did. See above if you want further evidence.

BUT I will not, nor will I ever, tolerate correction with one who bears a haughty attitude and who thinks it appropriate to patronize me over and over again. Totally unacceptable. Never before have I spoken ill of you - that wasn't in retaliation, or even given you reason to speak to me the way you do. I have no idea what your damn problem is - but if you have one then don't you dare take it out on me.

I am still prepared to accept better behavior, and I am by no means kicking you out of this thread - you will have to do that of your own accord. You are still welcome to post. Just lose the tone m8.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

Replying OOC to IC comments and IC to OOC comments does not make me love your approach, mate. And yes, you have spoken ill of me before, or do you forget our last clash over the difference between IC and OOC?

Just an initial comment: the latter section really suffers from tl;dr. If you can afford the character space, it'd be helpful to insert clear line breaks between at least some of the clauses. Obviously, it's content that matters, but you want to make sure everyone can clearly read the content.

Otherwise we think this looks very promising and a vast improvement on UN-era legislation, but we'll have another look over for specifics.

-- Samantha Benson
Congressional Liaison, Department of Confusion & Uncertainty
Quintessence of Dust, Delegate of Wysteria

Thats something we wish we could spare - but it would really require the omission of important things. We love neatness and clarity, but we've found that its painfully difficult to combine that with this particular draft! We'll do what we can, though.

Much appreciation to your support! Inter-regional matters has slowed down our concentration on the issue a little, but we're hoping to submit it very soon.

________________

CoN Lord Chancellor
Delegate of The Council of Narnia

4. The accused has the right to a public hearing.
The Popotan does not believe this should necessarily be granted. We would accept a similar proposal, but with an exception if the hearing would:
a> jeopardize security (national, state/province or local)
b> be used as a publicity stunt, for either side, to get public opinion on their side and possibly influence the trial currently or any appeals.

6. The accused has the right to a presumption of innocence.
We do not condone this sentance at all.

Also The Popotan does not condone the forced usage of a jury system. We do not necessarily say we like or dislike that system, but it has flaws and a flawed system, especially when it comes to justice, should not be mandated.

You're really pushing the limits here by trying to force one type of court system on all nations. Fortunately you only give them "the right" to all these things.

Rights, can be ignored.

All OOC:

Alright Gobbannium, you've just brought this out of character. Everything I said, including the reprimand, was said IC from the mouth of the Lord Chancellor of the Narnians, directed to Cerys Coch of Gobbannium - that was implied multipletimes.
Finally I see my mistake, having calmed down somewhat. I shouldn't have assumed that the Lord Chancellor was paying attention.

Cerys isn't the ambassador. She's said so to you in this thread, and I list her as "Permanent Undersecretary" above Prince Rhodri "speaking for the Gobbannaen Principalities" just to make that abundantly clear. She isn't the same person that the Lord Chancellor was tying himself in knots with last year. She isn't even the same sex as that person, and they haven't spoken to each other before this thread.

When you started in with "You've already told us before that this was your project - don't come here whining about it again and again" and "you still show signs of that unexplained animosity you threw upon us when we first met..." I carelessly assumed that the Lord Chancellor couldn't possibly be that dense, and that you were therefore talking to me. He couldn't be talking to Cerys after all, because she'd already told him it wasn't her project, and they first met a couple of days ago.

To reinforce this impression, compare this:

No, yours isn't the only one to use the word. The trouble is, I've heard "amenities" used for toilets and washing facilties (not necessarily even a bath or shower), shopping complexes, leisure complexes... unqualified, it's got enough meanings to be positively dangerous. Thanks for fixing that one.
No problems - I see what you mean. And less aggressive words such as these will get you much further with me.

with what I actually wrote:

OOC: No, yours isn't the only one to use the word. The trouble is, I've heard "amenities" used for toilets and washing facilties (not necessarily even a bath or shower), shopping complexes, leisure complexes... unqualified, it's got enough meanings to be positively dangerous. Thanks for fixing that one.
(The "OOC" wasn't bolded in the original.) The Lord Chancellor couldn't have been responding to that, because the comment doesn't exist in his world. Therefore you had to be getting snippy with me, which I wasn't about to put up with having gone to all the effort of casting my scrappy notes into RP for you.

I am at the stage where I can't be bothered to repair reality around you. When I said I didn't have the time to deal with this this month I wasn't exaggerating, and going through and trying to micro-edit reality until your misreadings make sense isn't something I'm prepared to even try. If you think you can unstick this, good luck. I have more urgent things to do.