Ninth Conference on the Future of Adversarial Systems
rights and remedies in criminal procedures: examining the nature of the relationship
Chapel Hill, NC, U.S.A., April 7-8, 2017
Friday Morning, 10:00 a.m. - 12:00 p.m.
Transnational Rights and Remedies: Extraterritorial Jurisdiction over Foreign Companies?
Sabine Gless, Faculty of Law, University of Basel
Sara Beale, Charles L. B. Lowndes Professor of Law, Duke University
Krista Nadakavukaren Schefer, Acting Director, Centre for Human Rights Studies, University of Zurich
This panel focuses on the relationship between rights and
remedies in transnational criminal cases in which non-state actors play a
particular role. The Ruggie Principles, that is, the “Protect, Respect, Remedy”
framework, highlights the propensity of corporate and non-state actors to
violate human rights, and sets a standard for corporations to respect them. In
this panel we look at remedies when non-national actors have the capacity to
affect or exercise substantive or procedural rights, which may implicate issues
of jurisdiction, venue and punishment. For example, the US Supreme Court
decision in Daimler AG v. Bauman et al. declined to apply aspects of agency
theory in rejecting a claim by Argentian residents against Californian contacts
of a Daimler subsidiary, that Daimler’s Argentinian subsidiary has collaborated
with state security forces to detain, kidnap and kill the plaintiffs or those
closely related to them in Argentina’s ‘Dirty War’ of 1976-83. In contrast,
German courts have accepted jurisdiction in a tort claim against a German
retailer for alleged victims of human rights violations from third states,
granting legal aid to the families of those killed in a burning factory of its
12:00 - 1:30 p.m.
Networking Lunch (Included)
Friday Afternoon, 1:30 p.m. to 3:30 p.m.
Comparative Approaches to Rights and Remedies in a Time of Austerity
Jacqueline Hodgson, Professor and Director, Criminal Justice Centre, School of Law, University of Warwick
Michele Caianiello, Professor, Department of Legal Studies, University of Bologna
Silvia Allegrezza, Director of the Master in European Law, University of Luxembourg
Raphäele Parizot, Professor, Paris Nanterre University
In this panel, we consider the different approaches of
adversarial and inquisitorial procedural traditions to the guaranteeing of
rights, and how the rise of managerialism and reduced budgets has impacted
these guarantees in theory and in practice.
Rights are protected in different ways. In a party-based adversarial procedural model, (positive) fair trial rights are an integral part of equality of arms for the defence. Inquisitorially rooted models have relied historically on the more neutral ideology of judicial officers responsible for investigation and prosecution, and this has created tensions with the recent strengthening of positive rights through EU Directives (such as those implementing the so-called Roadmap) and ECtHR decisions such as Salduz v Turkey. Some jurisdictions, such as France, regard the imposition of the right to counsel at the first stages of the investigation as rooted in the Anglo-Saxon tradition and so inappropriate for French criminal justice.
The constant push for cheaper and speedier processes of criminal justice undercuts the protection of rights in both procedural models – from the resourcing of legal aid; to the time available to prepare the defence; to the ability of public prosecutors to oversee case preparation and the disposal of cases through alternatives to trial.
Saturday Morning, 10:00 a.m. to 12:00 p.m.
The Comparative Rationale of Prophylactic Rules – the
exclusion of evidence through mandatory and discretionary rules, judicially created
or enshrined in legislation and codes.
Richard Myers, Henry Brandis Distinguished Professor of Law, University of North Carolina
School of Law
David Gray, Professor of Law, Francis King Carey School of Law, University of Maryland
Michele Panzavolta, Professor of Criminal Law, University of Leuven
Charles Weisselberg, Shannon C. Turner Professor of Law, Boalt Hall School of Law, University of California Berkeley
In this panel, we will consider the different approaches to
the exclusion of evidence including the role of the legislator and of the
judiciary; whether exclusion seeks to remedy a harm (in which case some
prejudice must be shown) or deter behavior (in which case harmless error may
result in exclusion); and the effectiveness of exclusion as a remedy in systems
dominated by guilty pleas and so lacking in opportunity to challenge aspects of
the state’s case. It will also consider the appropriate role of judicially-crafted
prophylactic remedies in a system of separated powers. In the United
States, for example, the Court ruled in the landmark case Miranda v. Arizona,
that the police must inform the defendant of their right to remain silent, that
anything they say can and will be used against them in a court of law, that
they have the right to an attorney, and that if they cannot afford an attorney,
one will be appointed for them. These warnings appear nowhere in the
Constitution, but the Court required them to protect the defendant’s right
against compulsory self-incrimination. The courts now ban statements that
were taken in violation of the prophylaxis, even where there was no evidence
that the statement was compelled. This panel will consider the question
in comparative perspective.