The right to a fair and effective remedy and Alternative Dispute Resolution in Criminal cases

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The right to justice implies that any victim can assert his or her rights and receive a fair and effective remedy, including the expectation that the person or persons responsible will be held accountable by judicial means and that reparations will be forthcoming. It also entails the obligation on the part of the State to investigate violations, to arrest and to prosecute the perpetrators and, if their guilt is established, to punish them.[1] In the determination of any criminal charge against him/her, everyone shall be entitled “To be tried without undue delay” [Article 14(3)(c)] of ICCPR. International Covenant on Civil and Political Rights. The article will refer the process of Alternate Dispute Resolution or ADR in criminal law as Criminal ADR.

Chapter- Criminal ADR and Justice/ Jurisprudence?

The authors are not working on the assumptions that Criminal ADR is good, or appropriate. As such an assumption about criminal case settlements reached through Criminal ADR would make the need to identify the meaning of Criminal ADR redundant. In civil contracts, A settlement is societal efficient. If both the parties end up in better positions, society does not interfere in who gets the better of the deal.[2] In contrast, Pleas in criminal cases give an all or nothing choice between accepting guilt and establishing innocence.[3] Thus, there is inherent bias in Criminal ADR as the prosecution can exercise unilateral coercion for the purpose of encouraging a settlement.[4] Thus, in a limited sense, Criminal ADR is inherently unequal. These observations are not intended too suggest that Criminal ADR is inappropriate. They instead suggest simply that one cannot make an assumption that the process of Criminal ADR will bring about an appropriate, perhaps even an optimal, result as measured by the traditional purpose of criminal prosecution and punishment.[5] Justifying Criminal ADR: With an ambivalent assumption that Criminal ADR is the need of the time and can be an appropriate mode of dispute resolution in Criminal law. Let us identify the justness of such procedures. Since, Plea-bargaining is a form of Criminal ADR. The justification for Plea Bargaining will also serve as a justification for Criminal ADR. In this regard, justifications for Criminal ADR can be divided into two categories. First, some justifications assume that the Criminal ADR process will bring the same result as given by the traditional criminal prosecution and punishment. Some proponents of Criminal ADR argue that the system reflects the likely results of the trial system, but at a lower cost.[6] The second category of justification rests on notion of efficiency or resource preservation. It focuses on the comparative costs of convictions obtained through pleas and convictions obtained after trial. In economic terms, it is a utilitarian approach, because it both saves judicial resources and makes all participants better off than they would be if they had taken the risk of losing at trial.[7] Jean Sternlight, in his Article has questioned whether ADR contributes to justice and the answer to best describe it is that is not an “end in and of itself” but rather a “means to end.”[8] It is also argued that plea-bargaining is biased towards the prosecution. The prosecution, being in a dominating position, decides the term of bargain. It should be noted that a prosecutor’s failure to plea bargain does not deprive the defendants of the option of pursuing the alternative. Justice, in some form, is available no matter what the agency decrees.[9] In a sense, Criminal ADR helps produce reasonable, efficient, and consistent results in criminal cases, which is missing from criminal trial process. In the complicated world of criminal process, perhaps that is the closest to justice that we can come.[10]

Types of Criminal ADR

There are various alternate modes in which a criminal case can be handled. The most prominent: Plea-bargaining. Apart from Plea-bargaining, there is another kind of a Criminal ADR, known as abbreviated trials, which is more formal and operates under standardized procedures. These procedures are sometimes referred to with the singular term “Consensual processes.”[11] Not only India but also most countries in the world face overloaded criminal court dockets and need to efficiently handle large numbers of cases. It is indeed inevitable and a necessity, to introduce alternatives procedures. Plea-bargaining and abbreviated trials are the two most widely adopted forms to shortcut the procedure of formal trials.[12] The terms are used inter-changeably.[13] There is, however, a significant difference between the two procedures. The difference is whether the system is based on informal negotiations between the prosecutor and defense, or on a more formalized procedure that includes standard statutory sentence deductions in exchange for guilty pleas.[14] The authors have done a detailed study of the both forms of procedure in the next two chapters. Plea-bargaining has a very important role as it has found acceptance in India and is in an evolutionary stage. Abbreviated Trials are also a developing concept and can be a successful ADR in India.

Plea Bargaining

Abbreviated Trials

Abbreviated trials can be defined as a shortened procedure whereby the judge reviews evidence, in addition to the defendant’s guilty plea, and gives the defendant a statutorily determined reduced sentence upon a finding of guilt.[15] This procedure is prevalent in Italy, If the defendant requests this procedure, Giudizio Abbreviato and the prosecutor does not object, the judge will review the evidence including the written record of the case and hears oral arguments from the defense and prosecution. The defendant is not required to plead guilty. If the judge finds the defendant guilty, he reduces the sentence by one-third. The benefit of abbreviated trials is two-fold. It does not suffer from the criticism of “Negotiating with justice” unlike plea-bargaining where the law requires negotiation between the prosecutor and the defense regarding either the charge or the sentence.[16] In addition, under most forms of abbreviated trials, the law clearly states the length of the sentence reduction in exchange for the defendant agreeing to waive his right to a full trial.[17] The countries in which it is prevalent like Russia and Italy, specifically limit the use of abbreviated trials to less serious crimes.[18] The most buoyant example is of Russia, which is thriving in dispute resolution through abbreviated trials.[19] The 2001 Criminal Procedure Code limited abbreviated trials in cases with five years of imprisonment.[20] In 2003, it was amended by the Russian legislature and the limit was expanded to include cases with a maximum punishment of up to ten years imprisonment.[21] Another important inclusion in the Russian CPC is that it allows a judge to sentence the defendant to a maximum of two thirds of the sentence allowable under law if the case is resolved through an abbreviated trial.[22] The most important aspect, which gives primacy to rule of law, is the fact that if the defendant, prosecutor, victim or judge objects to an abbreviated trial it will not proceed.[23] Thus, all the parties getting affected by the judgment have a say in the procedure. If any party thinks that the abbreviated trials will not serve justice, the conventional trial process can be followed.
[1] http://www.swisspeace.ch/topics/dealing-with-the-past/about/right-to-justice.html [2] Andrew F. Daughety & Jennifer F. Reinganum, Settlement Negotiations with Two- Sided Asymmetric Information: Model Duality, Information Distribution, and Efficiency, 14 INT’L REV. L. & ECON. 283, 286 (1994). [3] Fred C. Zacharias, Reconceptualizing Ethical Roles, 65 GEO. WASH. L. REV. 169, 179-80 (1997) [4] Welsh S. White, A Proposal for Reform of the Plea Bargaining Process, 119 U. PA. L. REV. 439, 440 (1971) [5] Fred C. Zacharias, Justice in Plea Bargaining, 1136, 39 Wm. & Mary L. Rev. 1121 (1998), http://scholarship.law.wm.edu/wmlr/vol39/iss4/4. [6] Robert B. Gordon, Private Settlement as Alternative Adjudication: A Rationale for Negotiation Ethics, 18 U. MICH. J.L. REFORM 503, 504 (1985) [7] United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir. 1980). [8] Jean Sternlight, Is Alternative Dispute Resolution Consistent with the Rule of Law? Lessons from Abroad, 56 DEPAUL L. REV., 569 (2007) [9] Albert W. Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 YALE L.J. 1179, 1313-14 (1975) [10] Fred C. Zacharias, Justice in Plea Bargaining, 1189, 39 Wm. & Mary L. Rev. 1121 (1998), http://scholarship.law.wm.edu/wmlr/vol39/iss4/4. [11] Stephen C. Thaman, Plea Bargaining, Negotiating Confessions, and Consensual Resolution of Criminal Cases, vol. 11.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW at 50 (December 2007), available at http://www.ejcl.org/113/article113-34.pdf (last visited January 29, 2014). [12] Stephen C. Thaman, Plea-Bargaining, Negotiating Confessions and Consensual Resolution of Criminal Cases, vol. 11.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW at 50 (December 2007), available at http://www.ejcl.org/113/article113-34.pdf (last visited February 14, 2014). [13] Yue Ma, A Comparative View of Judicial Supervision of Prosecutorial Discretion, 44 No. 1 Crim. Law Bulletin 2 (2008). [14] Cynthia Alkon, Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?, (April 1, 2010), Transnational Law and Contemporary Problems, Vol.19, p.355, 2010. Available at SSRN: http://ssrn.com/abstract=1660469. [15] Rachel VanCleave, Italy, 245, 273, CRIMINAL PROCEDURE: A WORLDWIDE STUDY, 459 (Craig M. Bradley, ed., 1999). C. CRIM. PRO. art. 438, 440, 442 (Italy) [16] C. Crim. Pro. art. 438, 440, 442 (Italy) and C. Crim. Pro. art. 314 (Russia), English language translation in The Russian Federation Code of Criminal Procedure (U.S. Department of Justice, 2004). [17] C. Crim. Pro. art. 438, 440, 442 (Italy) and C. Crim. Pro. art. 314 (Russia), English language translation in The Russian Federation Code of Criminal Procedure (U.S. Department of Justice, 2004). [18] Mirjan Damas, Negotiated Justice in International Criminal Courts, 2 J. Int’l Crim. Just. 1018 at 1023 (2004). [19] Catherine Newcombe, Russia, Criminal Procedure: A Worldwide Study, 459 (Craig M. Bradley, ed., 2007). [20] Catherine Newcombe, Russia, Criminal Procedure: A Worldwide Study, 459 (Craig M. Bradley, ed., 2007). [21] C. Crim. Pro. art. 314(1) (Russia), English language translation in The Russian Federation Code of Criminal Procedure (U.S. Department of Justice, 2004). [22] C. Crim. Pro. art. 314 (7) (Russia), English language translation in The Russian Federation Code of Criminal Procedure (U.S. Department of Justice, 2004). [23] C. Crim. Pro. art. 314(6) (Russia), English language translation in The Russian Federation Code of Criminal Procedure (U.S. Department of Justice, 2004).
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