Rights in Criminal Proceedings under the ECHR and the ICTY Statute—A Precarious Comparison

Stefan Trechsel

in The Legacy of the International Criminal Tribunal for the Former Yugoslavia

Published in print May 2011 | ISBN: 9780199573417
Published online September 2011 | e-ISBN: 9780191728822 | DOI:
Rights in Criminal Proceedings under the ECHR and the ICTY Statute—A Precarious Comparison

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This chapter takes as a starting point the fact that the rights of the accused are formulated in almost identical terms in the International Bill of Human Rights and in the Statutes of International Criminal Tribunals. This raises the question as to whether they are interpreted in a uniform way by bodies called upon to implement the human rights' treaties and the International Criminal Courts. In order not to complicate matters, the focus is on the case-law of the ECtHR and the ICTY which are the richest. The analysis shows that there are differences. In a rough generalisation, it can be said that the Criminal Tribunal has a more ‘generous’ approach than the European Court. How is this to be explained? The chapter attempts to show that the basic vantage point differs; in Strasbourg, the Court is an organ of control, it does not apply the rules itself as it is not involved in criminal proceedings. The International Criminal Tribunal, on the other hand, is itself an actor in the field of human rights. It lacks, as it were, the ‘distance from the battlefield’ which the Strasbourg Court enjoys. The rights examined include the right to personal liberty, the right to be tried within reasonable time, and the right to counsel; the chapter criticizes the practice of the ICTY with regard to so-called ‘self-representation’ of the accused.

Keywords: human rights; ECtHR; ICTY; European Court; personal liberty; right to counsel; self-representation

Chapter.  22601 words. 

Subjects: Public International Law

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