Extrajudicial punishment is a punishment for an alleged crime or offense which is carried out without legal process or supervision by a court or tribunal through a legal proceeding.
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Youth Criminal Justice Act - Extrajudicial Measures & Sanctions
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Rights of a person arrested, detained, or under custodial investigation; Extrajudicial confession
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Explained: Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA)
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PUNISHED AFTER THE FACT: EX POST FACTO | Constitutional Law
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31st Annual McDonald Lecture in Constitutional Studies with Professor Jacob T. Levy
Transcription
EXTRAJUDICIAL MEASURES NARRATOR: The majority of youth crimes involve non-violent activities such as shoplifting, possession of stolen property, breach of probation, or relatively minor assaults that do not involve bodily harm. Experience in Canada and other countries shows that measures outside the formal court process can provide an effective response to youth crime, and one of the key objectives of the Youth Criminal Justice Act is to encourage the use of non-court responses in appropriate cases. These Extrajudicial Measures can provide meaningful consequences, such as requiring the young person to repair the harm done to the victim. They also allow early intervention with young people and provide the opportunity for the broader community to play an important role in developing community-based responses to youth crime. COMMUNITY PROGRAMS OFFICER RHONDA STAIRS: The Act does give police officers the discretion to use pre-charge options and in fact it requires them to give first consideration to the use of extrajudicial measures as a means of addressing offending behaviour. The police officer can choose to verbally warn the youth, or issue a formal caution, where the youth is actually formally warned that they could be charged if that type of offending behaviour continues. The police officer can convene a conference to call together our community partners for the purpose of making recommendations related to appropriate extrajudicial measures. NARRATOR: Extrajudicial sanctions are the most formal type of extrajudicial measure and must be applied through a program approved by the Attorney General. These sanctions, such as volunteer work, compensating or paying back the victim, or attending a specialized program, can be applied where the young person takes responsibility for the offence. If the young person fails to comply with the terms and conditions of the sanction, the case may proceed through the court process. DIRECTOR OF SPECIALIZED SERVICES MICHELLE GOYETTE: As far as extrajudicial sanctions go, we have a 95% success rate, meaning that in 95% of cases, even if the measure is voluntary, the young offender will choose to do it, and that is a very positive sign. SERGEANT MARIE-FRANCE CÔTÉ: First of all they work because the youth is willing. So that's one of the criteria, they also need a good support system, and then they can come to understand the consequences of their actions. When they get to speak to the victim, that's when they realize, Oh I really caused some pain, cause often they do the act but don't think about all the consequences. So that's why it works. It's a whole cooperative process, everyone agrees and most of the time, the youth doesn't reoffend. YOUNG OFFENDER: Oh it was just before Halloween, and me and my friend Mike were just out on Main Street walkin' around and he told me about this bike and he told me he wanted it and just asked me to go get it for him. It was right by the step of the house. I just grabbed it, and we started bikin' through the trail in the woods. YOUNG VICTIM: Well it was like right before Halloween and I was just goin' to go out for trick or treatin' and then I got, I went outside and I was goin' to put my bike in the shed and I went out and it wasn't there. NARRATOR: In this case, the youth was referred to a rural New Brunswick program offering youth who've committed less serious crimes an alternative to going to court. The program encouraged young people to take responsibility for their actions and make amends by facing the community and the victim. YOUNG OFFENDER: I just felt really bad, really guilty. I didn't really want to meet them because I didn't know what was going to happen. YOUNG VICTIM: Well I was mad that he stole my bike and he probably was pretty upset at what he did too and he's probably not goin' to do it again cause he doesn't want to be known as a thief. Jennifer and clerk in Zellers "Is it this one or is it this one here?" (Answer) "It's the bright yellow one." (First woman) "The bright yellow one, the Scorcher, the stunt bike." NARRATOR: The program helped the young man who stole the bike realize the impact the theft had had on other people. He decided to make up for it by buying the 10-year old a brand new bike to replace the one that had been stripped for parts. It was an expensive lesson... but a very important one! YOUNG OFFENDER: It's not right to steal. And I'll never do it again and if I ever do see somebody doin' it then I'm goin' to let them know that it's not right.
Politically motivated
Extrajudicial punishment is often a feature of politically repressive regimes, but even self-proclaimed or internationally recognized democracies have been known to use extrajudicial punishment under certain circumstances.
Although the legal use of capital punishment is generally decreasing around the world, individuals or groups deemed threatening—or even simply "undesirable"—to a government may nevertheless be targeted for punishment by a regime or its representatives. Such actions typically happen quickly, with security forces acting on a covert basis, performed in such a way as to avoid a massive public outcry and/or international criticism that would reflect badly on the state. Sometimes, the killers are agents outside the government. Criminal organizations, such as La Cosa Nostra, have reportedly been employed for such a purpose.
Another possibility is for uniformed security forces to punish a victim, but under circumstances that make it appear as self-defense or suicide. The former can be accomplished by planting recently fired weapons near the body, the latter by fabricating evidence suggesting suicide. In such cases, it can be difficult to prove that the perpetrators acted wrongly. Because of the dangers inherent in armed confrontation, even police or soldiers who might strongly prefer to take an enemy alive may still kill to protect themselves or civilians, and potentially cross the line into extrajudicial murder.
A forced disappearance (or enforced disappearance) occurs when a person is secretly abducted or imprisoned by a state or political organization or by a third party with the authorization, support, or acquiescence of a state or political organization, followed by a refusal to acknowledge the person's fate and whereabouts, with the intent of placing the victim outside the protection of the law.[1]
Extrajudicial punishment may be planned and carried out by a particular branch of a state, without informing other branches, or even without having been ordered to commit such acts. Other branches sometimes tacitly approve of the punishment after the fact. They can also genuinely disagree with it, depending on the circumstances, especially when complex intragovernmental or internal policy struggles also exist within a state's policymaking apparatus.
In times of war, natural disaster, societal collapse, or in the absence of an established system of criminal justice, there may be increased incidences of extrajudicial punishment. In such circumstances, police or military personnel may be unofficially authorised to punish severely individuals involved in looting, rioting and other violent acts, especially if caught in flagrante delicto. This position is sometimes itself corrupted, resulting in the death of merely inconvenient persons, that is, relative innocents who are just in the wrong place at the wrong time.
Around the world
Historically
Wyatt Earp led a federal posse, in the Earp Vendetta Ride, during the spring of 1882 which was implicated in the murder of four outlaw "Cowboys" they believed had ambushed his brothers Virgil and Morgan Earp, maiming the former and killing the latter.[2]
The NKVD troika and Special Council of the NKVD are examples from the history of the Soviet Union, where extrajudicial punishment "by administrative means" was part of the state policy. Other Soviet Bloc secret police organizations like the East German Stasi, Romanian Securitate have also used it from time to time.
Most Latin American dictatorships have regularly instituted extrajudicial killings of their enemies; for one of the better-known examples, see Operation Condor.[3]
The deaths of the leaders of the leftist urban guerrilla group, the Red Army Faction, Ulrike Meinhof, Andreas Baader, Gudrun Ensslin and Jan-Carl Raspe in West Germany are regarded by some of those in the radical left movements as extrajudicial killings, a theory partly based on the testimony of Irmgard Möller.
During the apartheid years (from 1948 until the early 1990s), South Africa's security forces were also accused of using extrajudicial means to deal with their political opponents.[citation needed][4] After his release, Nelson Mandela would refer to these acts as proof of a Third Force. This was denied vehemently by the administration of F.W. de Klerk. Later the South African Truth and Reconciliation Commission, led by Archbishop Desmond Tutu would find that both military and police agencies such as the Civil Cooperation Bureau and C10 based at Vlakplaas were guilty of gross human rights violations. This led the International Criminal Court to declare apartheid a crime against humanity.
Present day
In Mainland China, a system of administrative detentions called Re-education through labor (láodòng jiàoyǎng 劳动教养, abbreviated láojiào 劳教) was used to detain persons for minor crimes such as petty theft, prostitution, and trafficking illegal drugs for periods of up to four years. Re-education through labor sentences were given by the police, rather than through the judicial system.[citation needed]
In the Netherlands, prosecutors and tax inspectors can procure punishments without due process (Strafbeschikking), a practice that has been increasingly criticised by members of the Dutch Second Chamber, such as Michiel van Nispen. [5]
For many years, the Jamaican Constabulary Force has been noted for its extrajudicial killings.[6][7] With 140 police killings in a population of 3 million, "Jamaica’s police force [is] among the deadliest in the world".[8]
It has been discussed[who?] that the use of psychiatric treatments to reduce unwanted behaviors can be seen as extrajudicial punishments, due to many side-effects associated to these treatments.[9]
The US has been known to employ extrajudicial tactics including extraordinary rendition. Some critics use the term "torture by proxy" to describe situations in which the CIA[10][11][12][13] and other US agencies have employed rendition techniques to transfer suspected terrorists to countries known to utilize torture. While denied by the US, where it is a crime to transfer anyone to any location for the purpose of torture, critics claim that torture has been employed with the knowledge or acquiescence of US agencies. Condoleezza Rice (then the United States Secretary of State) stated:[14]
...the United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.
The CIA has been accused of operating secret detention and interrogation centres known as black sites. These are allegedly located in countries other than the US, thus evading US laws as they are outside US jurisdiction.[citation needed]
Human rights groups
Many human rights organisations like Amnesty International are campaigning against extrajudicial punishment.[15][16][17][18][19]
See also
- Administrative detention
- Arbitrary arrest and detention
- Assassination
- Charivari
- COINTELPRO
- Death squad
- Extrajudicial prisoners of the United States
- Extrajudicial killing
- Extraordinary rendition
- Frontier justice
- Human rights
- Human Rights Watch
- Law without the state
- Lynching
- Martial law
- Non-judicial punishment
- Outlaw
- Police encounter
- Posse
- Presumption of guilt
- Prison rape
- Purge
- State of emergency
- Summary execution
- Targeted killing
- Tarring and feathering
- Terrorism
- Torture
- Vigilante
- Vigilantism in the United States of America
- Whitecapping
Sources
- Miethe, Terance D.; Lu, Hong (2005). Punishment: A Comparative Historical Perspective. Cambridge University Press. ISBN 978-0-521-60516-8.
- Adam Possamai; James T Richardson; Bryan S Turner (4 December 2014). The Sociology of Shari'a: Case Studies from around the World. Springer. pp. 40–41. ISBN 978-3-319-09605-6.
- Collective Punishment. Human Rights Watch. GGKEY:9K4181KYTQU.
References
- ^ Jean-Marie Henckaerts; Louise Doswald-Beck; International Committee of the Red Cross (2005). Customary International Humanitarian Law: Rules. Cambridge University Press. p. 342. ISBN 978-0-521-80899-6.
- ^ WGBH American Experience: Wyatt Earp, Complete Program Transcript. January 25, 2010. Archived from the original on January 30, 2017.
- ^ Stanley, Ruth (2006). "Predatory States. Operation Condor and Covert War in Latin America/When States Kill. Latin America, the U.S., and Technologies of Terror". Journal of Third World Studies. Archived from the original on 2011-06-16. Retrieved 2007-07-08.
- ^ Merwe, Hugo van der (2009). "Transitional Justice and DDR: The case of South Africa" (PDF). ICTj. Retrieved 19 December 2019.
- ^ "Tweede Kamer ongeduldig over problemen met strafbeschikking".
- ^ "Jamaica:Killings and Violence by Police: How many more Victims?". Amnesty International. Archived from the original on 2009-08-02.
- ^ Summers, Chris (2004-05-14). "Jamaica wrestles with police violence". BBC news.
- ^ "Island of music and murder". Retrieved 18 February 2015.
- ^ "Coercive psychiatry a torture system". Archived from the original on 12 April 2010. Retrieved 18 February 2015.
- ^ Charlie Savage (17 February 2009). "Obama's War on Terror May Resemble Bush's in Some Areas". The New York Times. Archived from the original on 2016-08-13. Retrieved 2 January 2010.
- ^ "Background Paper on CIA's Combined Use of Interrogation Techniques". 30 December 2004. Retrieved 2 January 2010.
- ^ "New CIA Docs Detail Brutal 'Extraordinary Rendition' Process". Huffington Post. 28 August 2009. Retrieved 2 January 2010.
- ^ Fact sheet: Extraordinary rendition, American Civil Liberties Union. Retrieved 29 March 2007 (in English)
- ^ "Remarks of Secretary of State Condoleezza Rice Upon Her Departure for Europe, 5 Dec 2005". U.S. State Department. Retrieved 17 August 2012.
- ^ "Project on Extrajudicial Executions". Archived from the original on 2011-10-31. Retrieved 2007-07-07.
- ^ UN independent expert on extrajudicial killings urges action on reported incidents
- ^ Document Information | Amnesty International Archived 2007-07-05 at the Wayback Machine
- ^ Dickey: Iraq, Salvador and Death-Squad Democracy - Newsweek The War in Iraq - MSNBC.com Archived 2005-11-01 at the Wayback Machine
- ^ Special Forces May Train Assassins, Kidnappers in Iraq - Newsweek The War in Iraq - MSNBC.com Archived 2005-01-14 at the Wayback Machine
External links
- Monitoring organizations
- Amnesty International
- Ansar Burney Trust (Pakistan and the Middle East)
- Human Rights Watch