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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 main supplier.

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. 

  1. 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.
  2. 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.

UNC School of Law | Van Hecke-Wettach Hall | 160 Ridge Road, CB #3380 | Chapel Hill, NC 27599-3380 | 919.962.5106


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