15 Right to Fair Trial under Article 14 of the ICCPR

Prof. Abhishek Sudhir

Table of Contents

1. Learning Outcomes

2. Introduction

3. General Protections under Article 14

3.1 Equality before Courts and Tribunals

3.2 Fair and Public hearing by a Competent, Independent and Impartial Tribunal

4. Special Protections in Criminal Proceedings

4.1 Presumption of Innocence

4.2 Rights of Persons Charged with Criminal Offences

4.3 Compensation

4.4 Ne Bis in Idem

5. Conclusion

1. Learning Outcomes

The purpose of this chapter is:

• To help the student understand the scope and content of Article 14 of the International Covenant on Civil and Political Rights (ICCPR);
• To give students an overview of the interpretation of and protection offered by Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

2. Introduction

Article 14 of the ICCPR is the most significant provision addressing the right to fair trial among all the major international instruments. Article 14 broadly deals with general protections and certain special protections in criminal proceedings. This module will introduce you to the concepts of “equality before courts and Tribunals” and “fair and public hearing” by a competent, independent and impartial tribunal. The module will also focus on other Article 14 guarantees dealing with the presumption of innocence, the basic rights of the accused and double jeopardy.

3. General Protections under Article 14

Article 14 (1) states: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

3.1 Equality before Courts and Tribunals

Article 14 encompasses the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law. According to the United Nations’ Human Rights Committee, access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice.

The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status. The guarantee is violated if certain persons are barred from bringing suit against any other persons such as by reason of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status In Ato del Avellanal v. Peru, Article 168 of the Peruvian Civil Code, which exclusively accorded the right to represent matrimonial property before courts to the husband, thereby excluding married women from suing in court, was in question. The Committee found that the application of article 168 of the Peruvian Civil Code to the complainant resulted in denying her equality before the courts and constituted discrimination on the ground of sex and therefore violated article 3, 14, paragraph 1 and 26 of the Covenant.

The right to equality before courts and tribunals also ensures equality of arms. According to the Committee, this means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.

In Weiss v. Austria the complainant was tried on numerous charges of fraud, racketeering and money laundering. He was represented throughout the trial by counsel of his choice. As jury deliberations were about to begin, the complainant fled the courtroom and escaped. The complainant was found guilty on all charges and, the Court ultimately sentenced him in absentia on to 845 years’ imprisonment. The complainant’s counsel lodged a notice of appeal within the ten-day time limit stipulated by law.

The United States Court of Appeals for the Eleventh Circuit rejected the motion of the complainant’s counsel to defer dismissal of the appeal, and dismissed it on the basis of the ‘fugitive disentitlement’ doctrine. Under this doctrine, a court of appeal may reject an appeal lodged by a fugitive on the sole grounds that the appellant is a fugitive. With that decision, the criminal proceedings against the complainant were concluded in the United States.

The complainant was arrested in Vienna, Austria, and United States submitted a request to the Austrian Authorities for the complainant’s extradition. The Upper Regional Court in Austria made a decision that was adverse to the complainant Weiss.

As human rights scholar Anne Bayefsky has pointed out, before the HRC the complainant claimed a violation of his right to “equality before the law” as only the State Prosecutor has the ability to lodge an appeal to the Supreme Court against a decision of the Upper Regional Court, as per the ‘fugitive disentitlement’ doctrine.

Concerning this claim the Committee observed that the complainant’s inability to appeal an adverse decision of the Upper Regional Court, while the Prosecutor was so able, amounted to a violation of the complainant’s right under article 14 to equality before the Courts.

The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.

3.2 Fair and Public hearing by a Competent, Independent and Impartial Tribunal

The right to a fair and public hearing by a competent, independent and impartial tribunal established by law is guaranteed, according to the second sentence of article 14, paragraph 1, in cases regarding the determination of criminal charges against individuals or of their rights and obligations in a suit at law.

Criminal charges relate in principle to acts declared to be punishable under domestic criminal law. The notion may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity.

The notion of a “tribunal” in article 14, paragraph 1 designates a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature. Article 14, paragraph 1, second sentence, guarantees access to such tribunals to all who have criminal charges brought against them. This right cannot be limited, and any criminal conviction by a body not constituting a tribunal is incompatible with this provision.

Similarly, whenever rights and obligations in a suit at law are determined, this must be done at least at one stage of the proceedings by a tribunal within the meaning of this sentence. The failure of a State party to establish a competent tribunal to determine such rights and obligations or to allow access to such a tribunal in specific cases would amount to a clear violation of article 14. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14 is an absolute right that is not subject to any exception.

As the Human Rights Committee has pointed out, the notion of fair trial includes the guarantee of a fair and public hearing. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence.

Further all trials in criminal matters or related to a suit at law must in principle be conducted orally and publicly. The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large.

The Committee has also observed that courts must make information on time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, e.g., the potential public interest in the case, the duration of the oral hearing and the time the formal request for publicity has been made.

Failure of the court to make large courtrooms available does not constitute a violation of the right to a public hearing, if in fact no interested member of the public is barred from attending an oral hearing.

4. Special Protections in Criminal Proceedings

4. 1 Presumption of Innocence

According to article 14, paragraph 2 everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.

The Human Rights Committee has emphasised that the presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle.

In the case of Gridin v. Russian Federation, the complainant alleged that during the trial the court room was crowded with people who were screaming that the he should be sentenced to death. He also stated that the prosecutors and the victims were threatening the witnesses and the defence and that the judge did not do anything to stop them.

In the present case, the Committee held that the authorities failed to exercise the restraint that article 14, paragraph 2, requires of them and that the complainant’s rights were thus violated. The Committee held that there was a duty for all public authorities to refrain from prejudging the outcome of a trial.

4.2 Rights of Persons Charged with Criminal Offences

The right of all persons charged with a criminal offence to be informed promptly and in detail in a language which they understand of the nature and cause of criminal charges brought against them, enshrined in paragraph 3 (a), is the first of the minimum guarantees in criminal proceedings under article 14. In the case of trials in absentia, article 14, paragraph 3 (a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings.

The right to be informed of the charge “promptly” requires that information be given as soon as the person concerned is formally charged with a criminal offence under domestic law. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally – if later confirmed in writing – or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based. In the case of trials in absentia, article 14, paragraph 3 (a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings.

Subparagraph 3 (b) provides that accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. The right of the accused to be tried without undue delay, provided for by article 14, paragraph 3 (c), is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice.

Article 14, paragraph 3 (d) contains three distinct guarantees. First, the provision requires that accused persons are entitled to be present during their trial; Second, the right of all accused of a criminal charge to defend themselves in person or through legal counsel of their own choosing and to be informed of this right. Third, article 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it.

Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. The right to have the free assistance of an interpreter if the accused cannot understand or speak the language used in court as provided for by article 14, paragraph 3 (f) enshrines another aspect of the principles of fairness and equality of arms in criminal proceedings.

Finally, article 14, paragraph 3 (g), guarantees the right not to be compelled to testify against oneself or to confess guilt. This safeguard must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt.

4.3 Compensation

According to paragraph 6 of article 14 of the Covenant, compensation according to the law shall be paid to persons who have been convicted of a criminal offence by a final decision and have suffered punishment as a consequence of such conviction; if their conviction has been reversed or they have been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.

However, no compensation is due if the conviction is set aside upon appeal, i.e. before the judgement becomes final, or by a pardon that is humanitarian or discretionary in nature, or motivated by considerations of equity, not implying that there has been a miscarriage of justice.

In Muhonen v. Finland, criminal proceedings were then initiated against Mr. Muhonen for refusal to do military service and an ordinary court of first instance sentenced him to 11 months’ imprisonment. The higher court confirmed that verdict and Mr. Muhonen started to serve his sentence on 4 June 1980. It was stated on his behalf that a number of persons then requested a presidential pardon in his case and as a result Mr. Muhonen was pardoned on 27 March 1981 and released from prison two weeks later. However he was not allowed any monetary relief for the wrongs which he has allegedly suffered.

In this case the Human Rights Committee was of the view that since Mr. Muhonen’s sentence had not been reversed neither had he been pardoned on the ground that a new or newly discovered fact showed conclusively that there has been a miscarriage of justice no right to compensation had been failed to be honoured and that consequently there has been no breach of article 14 (6) of the Covenant.

4.4. Ne Bis in Idem

Article 14, paragraph 7 of the Covenant, providing that no one shall be liable to be tried or punished again for an offence of which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country embodies the principle of ne bis in idem. Ne Bis in Idem, known as autrefois acquit and autrefois convict in India, is both a constitutional and procedural right. The purpose of this provision is to prevent those who have already been acquitted from being re-tried by the State, which would be arbitrary and unfair.

5. Conclusion

This module has sought to break down Article 14 of the ICCPR. Article 14 is a comprehensive statement of the protections guaranteed to individuals before, during and after the completion of criminal proceedings. This module has discussed the general protections under Article 14, which mandates that all individuals must be treated equally before judicial bodies and all trials must be open to the public (subject to certain exceptions) so that justice is seen to be done. The chapter has also dealt with certain cardinal principles such as the presumption of innocence and the duty of the State to inform the accused of what they have been charged with. Thus, it can be seen that Article 14, be it the award of compensation to those wrongly convicted or protecting those already acquitted from being tried again, enjoins parties to the ICCPR from violating an individual’s right to a fair trial.

Reference

• The Right to a Fair Trial Under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights by David Wiessbrodt (Publisher: Brill, Year: 2001)
• The International Covenant on Civil and Political Rights: Cases, Materials and Commentary by Sarah Joseph et al. (Publisher: OUP, Year: 2004)
• http://ccsenet.org/journal/index.php/jpl/article/view/4502/3855
• http://www.bayefsky.com/
• http://www.ohchr.org/EN/HRBodies/Pages/TBGeneralComments.aspx