Specific Judicial Rights

It is suggested that a modern constitution should include specific judicial rights such as the right to a natural judge, the presumption of innocence, the principles of nullum crimen sine lege, nulla poena sine lege and ne bis in idem, in addition to the general judicial rights of an effective remedy and a fair trial. The right to a natural judge is essential to combat external and internal interference and, above all, corruption. The procedure must be predetermined, and no one should be able to influence the assignment or composition of an ordinary court. The role of special courts, such as military or other extraordinary courts, must be clearly defined, while ad hoc and emergency courts must be prohibited. The author leaves open whether a Chief Justice should be able to assign a judge from his court to a particular case or whether this is already predetermined. The presumption of innocence is one of the fundamental rights and is subdivided into principles such as the principle of objectivity, the right against self-incrimination (and the corresponding right to remain silent), the burden of proof (on the prosecution), a high epistemic standard of proof (i.e. beyond reasonable doubt), and the obligation to acquit the accused if the standards are not met (in dubio pro reo). The principles of “no crime without law” and “no punishment without law” are defined as fundamental principles of justice. The prohibition of punishment without law is indispensable as a basis for legal certainty and predictability of the law, as well as for the exclusion of state arbitrariness. Moreover, no punishment may be imposed on the basis of a law that was in force prior to the act or that is not sufficiently defined. The principle of “ne bis in idem” means that a defendant should not be tried more than once for the same offence. Examples of different constitutional formulations are given.