Reconciling Due Process and Victims' Rights: Towards a Power Balance Model of Criminal Process in International Human Rights Law

82 Pages Posted: 23 Jan 2009 Last revised: 15 Apr 2009

Mykola Sorochinsky

University of Notre Dame Law School

Date Written: January 19, 2009

Abstract

Traditionally, human rights law used to be concerned almost exclusively with the rights of criminal defendants. This article argues that international human rights law has recently developed an extensive case-law protecting victims' rights which has become incompatible with this traditional orientation. The article argues that the underlying model of criminal process in international human rights law has shifted from the due process model to the punitive victims' rights model. The article traces these developments to the recent predominance of victims' rights in a number of Western nations and the challenge of impunity for grave human rights violations in Latin America. The article argues that such developments are dangerous to the overall mission of international human rights law. The article then urges that human rights law must develop a model of criminal process that would be compatible with both due process values and the protection of victims' rights. As a way of addressing this challenge, a power balance model of criminal process is proposed. The underlying value of the model is the prevention of excessive disbalances of power in the criminal justice system. Such disbalances exist not only between the state and the individual accused, in ordinary criminal cases, but also between the state and the victim, where the accused is a state official. The model seeks not only to prevent such disbalances by upholding traditional due process constraints on prosecution in common crime cases but also to create institutional incentives to prosecution in cases involving state officials.

Keywords: human rights, victims' rights, due process model, criminal law, criminal process, criminal justice, power balance, European Court of Human Rights, Inter-American Court of Human Rights

JEL Classification: K33, K14

Suggested Citation

Sorochinsky, Mykola, Reconciling Due Process and Victims' Rights: Towards a Power Balance Model of Criminal Process in International Human Rights Law (January 19, 2009). Michigan Journal of International Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1330104 or http://dx.doi.org/10.2139/ssrn.1330104

Mykola Sorochinsky (Contact Author)

University of Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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