The evolution of criminal justice and the transition from personal revenge and arbitrary justice to modern legal and penal systems is one of the signs of the civilization of human societies. Today, resorting to arbitrary justice is in clear contradiction with the right to a fair trial and human rights and in conflict with the values ​​of a modern society; something that can lead to the disruption of public order and chaos in society and is a sign of the lack of an adequate, efficient and powerful state. Human history shows that wherever legal mechanisms have been ineffective or absent, personal revenge and violence have replaced justice and endangered individual and collective security. In this article, the evolution of penal systems, international and human rights documents, and ultimately the responsibility of states regarding the personal administration of justice are examined.

Transition from personal revenge to the modern penal system

The history of the foundations of criminal law begins with the idea of ​​revenge, then reaches a relative adjustment, and today it is moving towards a general adjustment in order to limit revenge and expand developments for the benefit of society. In primitive societies and in the period of private revenge, due to the lack of a state as a powerful political and executive institution, there were two characteristics regarding punishments: first, collective responsibility, meaning that if an individual committed a crime, his family or tribe had to pay the penalty. Second, there was injustice in punishment, because a specific punishment was not defined for each criminal act and the rule of proportionality between crime and punishment – which is one of the important rules of criminal law today – was not observed. (1) In the civilizations of Egypt, Babylon, and ancient Iran, revenge was not only not a reprehensible act, but was also recognized as a manifestation of justice. Later, with the emergence of centralized and powerful governments and the entry of governments to explain the principles and rules of punishment and establish social order, the method of revenge and punishment of criminals and the determination of compensation became more limited, and a relative adjustment in private revenge was formed.

The emergence of modern criminal justice began with the Age of Enlightenment, a period when philosophers such as Jean-Jacques Rousseau, Beccaria, and Jeremy Bentham founded the school of social utilitarianism. Rousseau believed that because humans live in society, they delegate their powers to society—including the right to punish—and therefore, if a crime is committed against an individual, it is society that punishes, not the individual. Beccaria also emphasized the principles of proportionality of punishment to the crime, certainty of punishment rather than severity, and the elimination of extreme punishments. Beccaria proposed the development of criminal laws that people should be aware of in advance so that their fate was not solely in the hands of the judge (with broad powers). This was later accepted as the principle of “legality of crime and punishment” in modern penal systems. With gradual developments in penal systems, governments took on the main role in punishing criminals. In today’s world, the law is not a means of personal revenge for individuals, and the main goals of governments in criminal matters are based on preventing crime, administering justice (for the criminal and the victim), establishing public order, and reforming the criminal and reinstating him or her into society.

Arbitrariness in justice in light of international documents and human rights

A review of international and related human rights documents shows that arbitrary justice and personal revenge are clear violations of human rights. Although this title is not directly mentioned in international documents, through the interpretation of the fundamental principles of human rights and the emphasis on the right to access to justice and fair trial, the prohibition of arbitrary punishments, the prohibition of torture and the right to life, it can be concluded that arbitrary justice is accepted in complete contradiction with these principles and rights. Article 3 of the Universal Declaration of Human Rights emphasizes respect for the right to life and security of person, and Article 9 of this Declaration states that no one shall be arbitrarily arrested, imprisoned or exiled. Articles 8 and 10 of the aforementioned Declaration declare that individuals have the right to appeal to competent, independent and impartial tribunals to have their cases heard in a fair and public manner. Article 11 of the Declaration also states the principle of the presumption of innocence and states that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Article 14 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in December 1996, also states that everyone is equal before the courts and tribunals. Everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal according to law, in the determination of any criminal charge against him or of any dispute concerning his civil rights and obligations. In 2007, in General Comment No. 32, (2), the Human Rights Committee, while explaining and interpreting Article 14 of the Covenant, stated that the right to equality before courts and tribunals and the right to a fair trial are essential elements of the protection of human rights and serve as a means of ensuring the rule of law.

All of the above articles are rights that the international community has agreed on in the field of human rights and that modern penal systems have also respected. Respecting these rights is the duty of all human beings, and creating the infrastructure and mechanisms for implementing these rights is the duty of all governments. In the matter of arbitrariness in justice and personal revenge, since the individuals who are punished do not have the right to freely defend themselves and their charges are not heard in an independent and impartial court, and they generally face severe and inhuman punishments such as deprivation of life or torture, a gross violation of human rights occurs.

The role of governments and their responsibility in preventing arbitrariness in justice

Governments have a key role in preventing personal revenge and arbitrariness in justice. Governments must enact clear, precise, and enforceable laws and establish an impartial, sound, and independent judiciary and a strong and systematic police force. It is very important to expedite the process of handling a crime, including: prosecuting the accused, conducting preliminary investigations, hearings in court, and issuing and enforcing sentences. The law should not include things that individuals feel they can use for revenge. Although respecting the rights of the accused is very important, sometimes strict rules and procedures for proving a crime discourage individuals from reaching a conclusion, or even some individuals abuse these strictures and commit crimes that they know will be difficult to prove. These are all things that failure to pay attention to can lead society to arbitrariness in justice.

General Comment No. 36 of the United Nations Human Rights Committee (3), interpreting article 6 of the International Covenant on Civil and Political Rights on the right to life, emphasizes that the right to life is not limited to the prohibition of direct killing by the State, but also includes the active protection of the life of individuals, meaning that the State has a duty to prevent arbitrary deprivation of life (including for personal revenge, honor killings and punishment by arbitrary groups). The Committee states that States have a responsibility to prevent arbitrary killings, to effectively investigate them, to prosecute and punish the perpetrators and to provide reparation to the victims. States must have effective judicial structures so that individuals can resort to the law rather than to personal revenge. Weak judicial systems, delays in proceedings and public distrust all contribute to arbitrary justice. If governments fail to take effective action in this regard, they will have violated their international obligations and blatantly violated human rights.

Footnotes:

1- Reza Noorbaha, The Field of General Criminal Law, 24th edition, Tehran: Ganj Danesh Library, 2008, p. 67.

2- UN Doc. CCPR/C/GC/332, 23 August 2007.

3- UN Doc. CCPR/C/GC/36, 30 October 2018.