Main Directions in the Scholarly Literature on the Rule of Criminal Investigation and its Role in the Protection of Human Rights and Freedoms
Introduction
Both common and civil law traditions acknowledge the criminal investigation process as a crucial part of the wider framework of criminal justice. Therefore, in civil and criminal cases, international law advocates for a fair trial with factors such as human rights being observed in all circumstances. Moreover, criminal investigations and supporting proceedings much uphold impartiality, competence, and independence as the foundation for ensuring justice is administered fairly. Cherif Bassiouni explains that the rule of criminal investigation acts as a legal pillar of a democratic society, and those involved are obliged to be respectful of the statute of law. Braga notes that today, in multiple fundamental elements, the criminal investigation process has relatively been uninfluenced by the crucial alterations in policing, technological developments, and the introduction of new crimes. Even so, the lack of sufficient changes and innovations on the subject should not hinder compliance with the rule of law, especially on crucial matters such as the protection of human rights and freedoms.
This literature review aims to utilise relevant primary and secondary sources concerning the rule of criminal investigation and its role in the protection of human rights and freedoms.
Basic Elements and Tools of Criminal Investigation
According to Robin P. Bryant, the criminal investigation process involves a series of proceedings and practices that have been historically supported by international law. The comprehensive investigation process includes acquiring evidence, evaluating information, formulating theories and validation, defining a justifiable ground, and eventually arresting and prosecuting the perpetrator. Rod Gehl and Darryl Plecas insist that understanding these factors is crucial since criminal incidences are unpredictable and vigorous. Therefore, the application of supple general laws and rules and structured responses is definitive. In their book, Gehl and Plecas elaborate that the criminal investigation process requires trained thinking and response, which can be complex to incorporate into individuals' ranges due to the conditioning that makes humans less evidence-driven and formal in their daily lives. Nonetheless, participation in a criminal investigation should prove sufficient incentive for exploiting the diverse analytical skills possessed by everyone.
Further elaboration of the necessity of these elements and tools of criminal investigation utilises the concept of constructivism. Gehl and Plecas state that people's capacity to formulate knowledge in their daily lives helps functionality in a perpetual state of evaluating the information available to them. The interpretation of perceptions based on things seen and heard enables conclusions about their environs. In a criminal investigation, these constructs are imperative based on critical analysis and acquiring evidence to confirm beliefs. Consequently, the United Nations Office on Drugs and Crime details that criminal investigations procedures must acknowledge and follow the key elements and philosophies, despite the dissimilarities characterising circumstances. These include the acquisition of data, formulating hypotheses and corroboration, identifying the perpetration, and developing sufficient grounds for an arrest and comprehensive searches for underlying charges.
The nature of criminal investigations necessitates the use of tools. Gehl and Plecas explain that criminal investigations have been imprecise processes since they are often done to respond to unanticipated and still-evolving occasions with partial information available to guide the process. Therefore, the relevant processes, concepts, and rules have a mutual objective of giving practical tools that ascertain effective investigative practices and processes. As discussed by Gehl and Plecas, and Mcbride, some of the primary tools of criminal investigations include interviews, information, and interrogation. Striving to gather all accessible information, interviewing any observers, and interrogating the key suspects are among the efficient tools used to guide criminal investigations.
The Rule of Criminal Investigation
Bassiouni explains that the rule of criminal investigation is a key part of the multifaceted framework of criminal justice, which influences its relation to several assumptions based on the fundamentals and provision of the rule of law in democratic societies. The primary focus is to balance the securities and rights of the involved parties, for instance, the victim and the perpetrator. The first of these assumptions is that public authorities should conduct valid investigations of a crime utilising the correct avenues such as law enforcement and the judicial systems. Brants and Franken are adamant that under this assumption, a criminal investigation should prevent unwarranted intrusion of people's autonomy and well-being as it conducts a procedural analysis of crime or involves the apprehension and prosecution of criminals. The second assumption present is that the realisation of these predefined goals, based on the rule of law, can only be done through a criminal process focused on producing truth through fair means and without unnecessary interference with individual freedoms and rights. Third, Jeremy McBride adds that preserving the desired levels of justice and fairness requires criminal investigations to adopt a framework that upholds consistency and sophistication based on checks and balances. Additionally, the scholarly text also fixates that those involved should target optimal levels of fairness, which means there should not be any mistakes as they aim to acquire the authentic truth. According to Brants and Franken, "legitimate truth requires fairness in the way it is established, while procedural fairness is in itself a guarantee, albeit not an absolute one, that the truth will be found". Consequently, while the criminal investigation guarantees fairness and justice, it is not the outright element of the process, given the primary objective is acquiring the truth.
Theory Development in Criminal Investigation
The development of theory has characterised efforts to reform and improvement the criminal investigation process. Robin Bryant states that varying models and approaches have been adopted in criminal investigation, which has led to the recognition and integration of substantial knowledge over the years. Therefore, there is no singular, globally adopted model of a criminal investigation, but the development of investigative theory has been affected by identifiable and interrelated approaches. First, Bryant recognises that researching the work of successful investigators and defining the knowledge and aptitudes that influenced their expertise has been integral to the formulation of investigative theory. Second, cultural borrowing is widely utilised by both professionals and scholars from different disciplines. Therefore, investigative theory has primarily resulted from an amalgamation of these approaches and the assessment of lessons from the past, which Bryant likens to the evaluation conducted by armed forces following military engagement or a war. Two of the investigative models based on the subject approach to developing criminal investigation theory are ACCESS and SARA. ACCESS stands for assessing, collecting, collating, evaluating, scrutinising, and summarising, while SARA is an acronym for scanning, analysis, response, and assessment. While different, these models have been applied in depicting the fundamental of investigation. The implementation and review of the models inform the process and execution of criminal investigations.
Role of Criminal Investigation in the Protection of Human Rights and Freedoms
Bergsmo and Wiley admit that fundamental human rights are increasingly included in criminal investigation deliberations, particularly in dictating how those participating in the processes should conduct themselves and ought to be treated. Consequently, similar to other prevalent issues in legal texts, international law implements have facilitated the maintenance of human rights and freedoms in criminal investigations worldwide. Brants and Franken provide examples of treaties such as the globally popular U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which have been instrumental in ensuring human rights and freedoms are preserved during criminal investigations. Additionally, instruments such as the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) are also highlighted as key facilitators of incorporating humanitarian values regarding the human rights of those involved in criminal investigations. Among the inherent rights encompassed by the humanitarian values of these conventions are self-determinations, physical integrity, and freedom. Bassiouni supports that these instruments under the international legal framework are imperative in defining how countries conduct themselves when leading processes such as prosecuting, trying, convicting, and punishing criminals, as part of the rule of criminal investigation.
John Vervaele argues that the primary assumptions conveyed by criminal investigation provide security to society. While its framework and constructs persist that the nations are only bound by the boundaries of the laws they set, the rule of criminal investigation and the supporting treaties and conventions guarantee human rights and freedoms protection. Brants and Franken present similar arguments stating that the human rights conventions give assurance that, in the final event, nations that infringe upon the inherent rights of individuals through their criminal investigation are held accountable. For instance, the ECHR and ICCPR conventions contend that nations alleged to have infringed human rights should be evaluated by an impartial and autonomous tribunal for their deprivation of liberty (habeas corpus).
Even though these principles have customarily applied for general activities that infringe human rights, articulate principles focus solely on criminal trials and the comprehensive investigation process. Both conventions have fair trial paragraphs that reckon the right to a public trial in front of an independent and impartial court and other procedural rights concerning the rule of criminal investigation. For instance, Brants and Franken used Article 6 of the ECHR as a clear illustration stating that the European Court of Human Rights (ECtHR) standard interpretation is that the assessment of infringement applies to the whole procedure. Additionally, other fundamental rights guaranteed by similar or relative instruments also encourage fairness in the different phases of criminal investigation. For example, the popular supposition of innocence and right to silence can be infringed by degrading and humiliating treatment of the suspect by the law enforcers involved. Therefore, these instruments under international law supplement the rule of criminal investigation and its protection of human rights.
Conclusion
The review has presented literature that focuses on the rule of criminal investigation and depicted that it provides a concrete foundation for safeguarding human rights. Additionally, the review shows that realising the protection is enabled by key elements and tools that define how a crime should be investigated. The review also highlights the theories of criminal investigation as primary drivers of reforms through effective models and approaches. Finally, the review shows that the relationship between criminal investigation and international law is facilitated by multiple treaties, conventions, and relative instruments that encompass humanitarian values and set boundaries that nations must observe when prosecuting, trying, convicting, and punishing criminals.