|Rights of Individuals: Civil and Political|
|Detention and Criminal Trial|
|Arbitrary Detention, Right Not to Be Subject to||Accused Persons, Rights of, Including Right to a Fair Trial||Right to a Trial by Jury||Arrested and Detained Persons (Not Yet Charged), Rights of||Double Jeopardy, Prohibition of||Ex Post Facto Criminal Laws, Prohibition of|
|South African Constitution||§12(1)||§35. See de Waal et al., at 548-88.||(none)||§35. See de Waal et al., at 540-48.||§35(2)(m)||§35(2)(l) and (n) (no punishment for acts that were not criminal at the time committed, and no punishment more severe than at the time the crime was committed)|
|French 1958 Constitution||Art. 66 (prohibiting arbitrary detention and providing that the courts shall ensure the observance of this prohibition), 1798 Declaration Art. 7.||
The Conseil Constitutionnel has held that the right to various forms of due process in legal proceedings is a "fundamental principle" of constitutional status, pursuant to ¶1 of the Preamble to the 1946 Constitution. SeeBell, at 71, 193-96.
|(no provision)||1798 Declaration Art. 9 prohibits any unnecessarily harsh treatment of arrested persons ("toute rigueur qui ne serait pas nécessaire pour s'assurer de sa personne").||(no provision found)||1798 Declaration Art. 8. The Conseil Constitutionnel has held that the elements of a criminal offense must be specified by law in a "sufficiently clear and precise" manner. See Bell, at 146-47.|
|Canadian Charter of Rights and Freedoms||§9, subject to limitation under §33 by express act of Parliament or a provincial legislature. § 9 has been applied narrowly by the courts as not requiring probable grounds for arrest. See Meehan et al., at 421.||§§11, 13 (self-incrimination), 14 (where a hearing is guaranteed, right to interpretation), each subject to the § 33 limitation noted under arbitrary detention.||§11(f) (except in military trials, whenever the maximum punishment is 5 years in prison or more severe). Subject to the § 33 limitation noted under arbitrary detention.||§10, subject to limitation under §33 by express act of Parliament or a provincial legislature. Subject to the § 33 limitation noted under arbitrary detention.||§11(h), subject to the § 33 limitation noted under arbitrary detention.||§11(g) (right not to be found guilty unless at the time of the act or omission, it constituted an offense under Canadian or international law), and §11(i) (as to severity of punishment). Subject to the § 33 limitation noted under arbitrary detention.|
|Constitution of Argentina||Art. 18 (no arrest without written warrant issued by a competent authority).||Art. 18 (due process in defense of rights is inviolable, no trial by special committees [comisiones especiales], no self-incrimination).||No explicit guarantee, but Art. 24 requires Congress to promote the establishment of this right.||Art. 43, ¶4 (non-derogable right to a habeus corpus hearing). This article was added by the 1994 Amendments.||(no provision)||Art. 18.|
|United States Constitution||4th Amend. ("The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated," and the Warrants Clause which follows). A large body of caselaw has interpreted the Warrants Clause. E.g. Gerstein v. Pugh, 420 U.S. 103 (1975) (persons arrested without a warrant have the right to a "prompt" judicial determination of whether "probable cause" existed.) There are also underlying due process concerns here. See Rotunda, §17.4, at 28-30.||
Amend. (the right to a grand jury indictment for all capital crimes,
prohibition of self-incrimination, the right not to "be deprived of life,
liberty, or property, without due process of law").
6th Amend. (in criminal actions, rights of defendant to be informed of the charges, to be confronted by the witnesses against him, to "compulsory process for obtaining witnesses in his favor," and to counsel). Caselaw interpreting these provisions is voluminous. See also Art. I, §9 (no bills of attainder, applied to the States in Art. I, §10).
Amend. (the right to criminal trial by "impartial jury of the State and
district wherein the crime shall have been committed…").
7th Amend. (right to a jury in civil proceedings based on causes of action existing in law, and not in equity, at the time the Constitution was drafted).
|6th Amend. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"). This right has been applied with a balancing of interests test, e.g. Barker v. Wingo, 407 U.S. 514 (1972), that is difficult for defendants to meet in practice. Art. I, §9 establishes that the "privilege of the writ of habeus corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."); see also Eighth Amend. (no "excessive bail").||5th Amend. ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"). Note that principles of U.S. federalism permit criminal trials at both federal and State level based on the same underlying acts. E.g. United States v. Lanza, 260 U.S. 377 (1922).||Art. I, §9, also prohibited to the States as well in Art. I, §10.|
|Constitution of India||Art. 21 (no deprivation of liberty except "according to procedure established by law"). Note that the drafters explicitly avoided the phrase "due process of law" to avoid creating too broad a power of judicial review. Tope, at 172-76. For a review of relevant caselaw, see Tope, at 180-94.||There is no full version of these rights, only Art. 20(3) (no self-incrimination).||(no provision)||Art. 22 (must be informed of grounds for arrest, freedom to consult counsel, must be brought before a magistrate within 24 hours), as limited by Art. 22(3) (rights do not apply to enemy aliens or to preventive detention). See also Art 22(4)-(7) (complex provisions relating to preventive detention).||Art. 20(2)||Art. 20(1) (prohibition of both retroactive criminal laws, and retroactive increase in severity of a penalty).|
|Würzburg Key System||(Key has not yet been developed)||(Key has not yet been developed)||(Key has not yet been developed)||(Key has not yet been developed)||(Key has not yet been developed)||(Key has not yet been developed)|
|Universal Declaration of Human Rights||Art. 3 (includes arbitrary exile)||Art. 10 (fair and public hearing), Art. 11(1) (presumption of innocence, right to public trial with "all the guarantees necessary" for the defense).||(no provision)||(no provision)||(no provision)||Art. 11(2) (including prohibition of a retroactive increase in the severity of a criminal penalty).|
|Int’l Covenant on Civil and Political Rights||ICCPR Art. 9(1) (deprivation of liberty only in accordance with law)||ICCPR Art. 9(2) (right to be informed promptly of the charges), Art. 10(2) (separate treatment from convicted persons, and for juveniles), Art. 14 (presumption of innocence and the rights to public trial by an independent tribunal, to appeal, to seven specified guaranties for the defense, to compensation for wrongful conviction, etc.).||(no provision)||ICCPR Art. 9 (the rights to be informed promptly of reasons for arrest and any charges, to trial within a reasonable time, to judicial review of the lawfulness of detention, and to compensation for unlawful detention), Art. 10(1) (right of detained persons to be treated with humanity).||ICCPR Art. 14(7)||ICCPR Art. 15 (including the provision noted under the Universal Declaration). There is no prohibition of trial for crimes recognized under customary international law.|