14 Right to Fair Trial under International and Regional Instruments

Prof. Abhishek Sudhir

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1. Learning Outcomes

The purpose of this chapter is:

  • To give the students an overview of the internationally recognised components of an individual’s right to fair trial;
  • To help the students understand the manner in which the right to fair trial is protected by some of the major international and regional instruments that have been passed by a majority of nations around the world.

2. Introduction (Voice Over)

The right to a fair trial is the single most important right in any democratic society based on the rule of law. The standards against which a trial is to be assessed in terms of fairness are numerous, complex, and constantly evolving. More often than not, they constitute binding obligations that are included in human rights treaties to which the state is a party. This chapter will introduce you to the five such important international and regional documents that guarantee an individual’s right to a fair trial: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights (ACHPR), the American Convention on Human Rights and European Convention on Human Rights (ECHR).

3. International Instruments on Fair Trial

3.1 Universal Declaration of Human Rights (UDHR)

The right to a fair trial, which is a widely recognised norm in international human rights law, is designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of certain basic rights and freedoms, the most prominent of which is the right to life and liberty of the person.

The provisions of the UDHR, adopted and passed by the United Nations General Assembly on December 10, 1948, are for the most part considered declarative of customary international law. Customary international law is often used as a supplementary source of a state’s obligations in ensuring the right to a fair trial. The provisions of the UDHR are therefore of great relevance for our purposes.

Article 10 of the UDHR, which was mainly drafted by the United Kingdom and India, guarantees an individual’s right to fair trial and reads as follows:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11(1) of the UDHR deals with the presumption of innocence and reads as follows:

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Article 11(2) of the UDHR deals with ex post facto laws i.e. laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal. Article 11(2) reads as follows:

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Illustration 1: A is arrested on July 1, 2014, for defaming B in Country Z. Defamation is only a civil wrong and not a crime in Country Z on July 1. On August 1, the Parliament of Country Z passes a law making defamation a criminal offence. A cannot be tried for criminal defamation as it was not a crime on July.

Illustration 2: A was arrested for raping B on June 1, 2014. The punishment for rape is increased from life to death in Country Z on July 1, 2014. A is convicted of raping B on July 2, 2014. The maximum punishment that A can be subjected to is life and not death.

The provisions of the UDHR are of paramount importance if a state has not ratified or acceded to the International Covenant on Civil and Political Rights, which is the significant international instrument guarantying an individual’s right to fair trial.

3.2 International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is a key international human rights treaty, providing a range of protections for civil and political rights. The ICCPR reiterates the provisions of the UDHR with regards to right to a fair trial and equality before law and presumption of innocence and also contains further detailed provisions on the elaboration of the right to fair trial. The ICCPR compels governments to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy. The ICCPR was adopted by the U.N. General Assembly in 1966 and came into force in 1976. As of December 2013, 167 countries have ratified the ICCPR.

Under ICCPR, in the determination of any criminal charge, everyone shall be entitled to the following minimum guarantees, in full equality:

  • To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
  • To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
  • To be tried without undue delay;
  • To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
  • To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
  • To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
  • Not to be compelled to testify against himself or to confess guilt.

Article 14 of the ICCPR also guarantees special protection to juveniles, the right to appeal, the right of compensation in case of miscarriage of justice and protection against double jeopardy.

4. Select Regional Instruments on Fair Trial

4.1 African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights entered into force on 21 October 1986. The Charter has been ratified by 53 countries. Article 30 of the Charter makes provisions for setting up an African Commission on Human and Peoples’ Rights which was then established in 1987. The purpose of the Commission, according to the Charter, is “to protect human and peoples’ rights and ensure their protection in Africa.” The Commission however “can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.”

Article 7 of the Charter provides every individual with the right to a fair trial. The right to fair trial under the Charter includes:

  1. The right to an appeal to competent national organs against acts violating an individual’s fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
  2. The right to be presumed innocent until proved guilty by a competent court or tribunal;
  3. The right to defence, including the right to be defended by counsel of his choice;
  4. The right to be tried within a reasonable time by an impartial court or tribunal.

Article 7 also protects against retrospective application of criminal laws and provides that a punishment is “personal” and can only be imposed on the offender.

In addition to this the African Commission on Human and Peoples’ Rights meeting in its Eleventh Ordinary Session, in Tunis, Tunisia, from 2 to 9 March 1992 also adopted the Resolution on the Right to Recourse and Fair Trial. The resolution stated that the right to fair trial under Article 7 includes:

  • The right to have their cause heard and shall be equal before the courts and tribunals in the determination of their rights and obligations;
  • Persons who are arrested shall be informed at the time of arrest, in a language which they understand of the reason for their arrest and shall be informed promptly of any charges against them;
  • Persons arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released;
  • Persons charged with a criminal offence shall be presumed innocent until proven guilty by a competent court;
  • In the determination of charges against individuals, the individual shall be entitled in particular to:
    • Have adequate time and facilities for the preparation of their defence and to communicate in confidence with counsel of their choice;
    • Be tried within a reasonable time;
    • 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;
    • Have the free assistance of an interpreter if they cannot speak the language used in court;
    • Persons convicted of an offence shall have the right of appeal to a higher court;

The African Commission on Human and Peoples’ Rights under its mandate under Article 45(c) of the Charter “to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African states may base their legislation” has laid down Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.

The African Commission is severely hampered by lack of resources. The African Commission is therefore able to meet only twice a year for 10 days each time, a very limited period during which to undertake protection of human rights. While funding for promotional work has been made available to the African Commission by donors, Commissioners have failed to undertake adequate promotional visits to countries for which they have responsibility.

4.2 American Convention on Human Rights

The American Convention on Human Rights, also known as the Pact of San José, was adopted on 22 November 1969. The Inter-American Court of Human Rights is an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights. The Court was set up by Resolution No.448 adopted by the General Assembly of the Organization of American States at its Ninth Regular Session, held in La Paz Bolivia, October 1979. The court exercises its functions in accordance with the provisions of the Convention. The Convention also sets up an Inter-American Commission on Human Rights, the main function of the Commission being the promotion of respect for and defence of human rights.

Article 8 of the Convention guarantees the right to a fair trial:

  • Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
  • Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
    • the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;
    • prior notification in detail to the accused of the charges against him;
    • adequate time and means for the preparation of his defense;
    • the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
    • the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;
    • the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;
    • the right not to be compelled to be a witness against himself or to plead guilty; and
    • the right to appeal the judgment to a higher court.
  • A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.
  • An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.
  • Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.”

Further Article 9 provides freedom form ex-post facto laws and Article 10 guarantees the right to compensation where a person has been sentenced by a final judgment through a miscarriage of justice.

4.3 European Convention on Human Rights (ECHR)

Article 6 of the ECHR guarantees the right to a fair trial. As per Article 6:

  • In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
  • Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
  • Everyone charged with a criminal offence has the following minimum rights:
    • to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
    • to have adequate time and facilities for the preparation of his defence;
    • to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
    • to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    • to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
  • Article 7 of the ECHR guarantees protection against imposition of criminal penalties by ex post facto laws. This provision however does not prejudice the trial and punishment of a person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

QUADRANT II (E-Tutorial)

Storyboard to be Prepared; Eleanor Roosevelt addresses the United Nations on the ratification of the Universal Declaration of Human Rights http://www.youtube.com/watch?v=2rDoS7XErcw

 

Fair Trial Concerns of officials who worked under the Gadhafi Regime in Libya; Claims that African Charter is being violated

 

Nations that have ratified American Convention on Human Rights

 

QUADRANT III

(Learn more / Source for Further reading / Web Resources)

you can view video on Right to Fair Trial under International and Regional Instruments

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 African Charter on Human and People’s Rights: The System in Practice 1986-2006 edited by Malcolm Evans and Rachel Murray (Publisher: Cambridge University Press, Year: 2008)
  • Law of the European Convention on Human Rights by D.J. Harris et al. (Publisher: Oxford University Press, Year: 2009)
  • The American Convention on Human Rights: Crucial Rights and Their Theory and Practice by Cecilia Medina (Publisher: Intersentia, Year: 2014)
  • https://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf
  • http://www.fairtrials.org/about-us/the-right-to-a-fair-trial/
  • http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf
  • http://www.csvr.org.za/index.php/media-articles/latest-csvr-in-the-media/2210-celebrating-two-decades-of-the-african-charter-on-human-and-peoples-rights.html
  • http://www.nytimes.com/learning/general/onthisday/big/1210.html