UNITED NATIONS
Distr.
GENERAL
E/CN.4/Sub.2/1994/24
3 June 1994
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of
Discrimination and Protection
of Minorities
Forty-sixth session
Item 10 (d) of the Provisional Agenda
Paragraphs
Introduction
Chapter
Chapter
I. PREPARATORY, PRELIMINARY AND PROGRESS REPORTS - COMMENTS AND REVISIONS 13 - 30
II. FUNDAMENTAL SOURCES OF FAIR TRIAL STANDARDS AND NORMS 31 - 70
A. Treaty provisions on the right to a fair trial 33 - 39
B. Other instruments with provisions on fair trial 40 - 46
C. Other provisions relevant to the right to a fair trial 47 - 57
D. General observations regarding the right to a fair trial 58 - 70
III. OTHER DEVELOPMENTS RELATED TO THE STUDY OF THE RIGHT TO A FAIR TRIAL 71 - 84
IV. INTERPRETATIONS OF THE RIGHT TO A FAIR TRIAL 85 - 126
V. THE RIGHT TO A FAIR TRIAL AS A NON-DEROGABLE RIGHT 127 - 140
VII. CONCLUSIONS AND RECOMMENDATIONS 160 - 184
A. Publication and dissemination of the study 163 - 164
B. Draft third optional protocol 165 - 168
C. Draft body of principles 169 - 171
D. Working Group on Arbitrary Detention and other mechanisms for implementation 172 - 173
E. Other recommendations for strengthening the right to a fair trial and a remedy 174 - 183
F. Conclusion 184
Annexes
I. DRAFT THIRD OPTIONAL PROTOCOL TO THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, AIMING AT
GUARANTEEING UNDER ALL CIRCUMSTANCES THE RIGHT TO A FAIR TRIAL AND A
REMEDY
II. DRAFT BODY OF PRINCIPLES ON THE RIGHT TO A FAIR TRIAL AND A REMEDY
III. BIBLIOGRAPHY ON THE RIGHT TO A FAIR TRIAL
AND A REMEDY
1. In its resolution 1989/27 of 1 September 1989,
the Sub-Commission decided to appoint two of its members as
rapporteurs to prepare a report on existing international norms and
standards pertaining to the right to a fair trial. The Sub-Commission
also requested that the rapporteurs recommend which provisions
guaranteeing the right to a fair trial should be made
non-derogable.
2. On 7 March 1990, the Commission on Human Rights in its decision
1990/108 welcomed the decision of the Sub-Commission to appoint Mr.
Stanislav Chernichenko and Mr. William Treat as rapporteurs to
prepare a report on existing international norms and standards
pertaining to the right to a fair trial and requested the
Sub-Commission to consider the report, at its forty-second session,
under agenda item 10(d) entitled "Administration of Justice and the
human rights of detainees: the right to a fair trial".
3. The two members of the Sub-Commission submitted a brief
preparatory report (E/CN.4/Sub.2/1990/34) to provide an overview of
the subject and to indicate the areas where further study was needed.
In their brief preparatory report they also made some general
observations and set forth the principal treaties and other
international human rights standards which provide the strongest
protection for the right to a fair trial. Further, they discussed
considerations relevant to making non-derogable the right to a fair
trial. In addition, they recommended a more comprehensive study of
the right to a fair trial and how that right might be
strengthened.
4. In its resolution 1990/18 of 30 August 1990, the Sub-Commission
recommended to the Commission on Human Rights and the Economic and
Social Council that they endorse the decision to entrust Mr.
Stanislav Chernichenko and Mr. William Treat with the preparation of
a study entitled "The right to a fair trial: current recognition and
measures necessary for its strengthening."
5. The Commission, in resolution 1991/43 of 5 March 1991 and the
Economic and Social Council in its resolution 1991/28 endorsed that
decision and requested the Special Rapporteurs to draft a
questionnaire on the right to a fair trial.
6. The two Special Rapporteurs prepared their preliminary report
(E/CN.4/Sub.2/1991/29) consisting principally of a summary of the
interpretations of the right to a fair trial by the Human Rights
Committee and also including a revised questionnaire relating to
national practices regarding the right to a fair trial.
7. In resolution 1991/14 of the Sub-Commission, resolution 1992/34 of
the Commission, and decision 1992/230 of the Economic and Social
Council, the two Special Rapporteurs were asked to continue their
study of the right to a fair trial.
8. In August 1992 the two Special Rapporteurs submitted to the
Sub-Commission a progress report on the right to a fair trial
(E/CN.4/Sub.2/1992/24). That progress report had three addenda.
Addendum 1 consisted of a study of the interpretations of
international fair trial norms by the European Commission and Court
of Human Rights. Addendum 2 evaluated the interpretations of
international fair trial norms by the Inter-American Commission on
and Court of Human Rights. Addendum 3 consisted of a study of the
right to amparo, habeas corpus, and similar procedures.
9. In its resolution 1992/21 of 27 August 1992 the Sub-Commission
requested the Special Rapporteurs to continue their study, but also
asked Mr. Fisseha Yimer to serve as the principal commentator on the
study without prejudice to the right of all Sub-Commission members to
make comments and express their opinions. By its decision 1993/106 of
5 March 1993 the Commission endorsed the Sub-Commission's request,
which was approved by the Economic and Social Council in its decision
1993/291 of 20 July 1993.
10. In August 1993 the two Special Rapporteurs presented to the
Sub-Commission their progress report on the right to a fair trial
(E/CN.4/Sub.2/1993/24 and Add.1-2). That progress report contained a
preliminary draft of a third optional protocol to the International
Covenant on Civil and Political Rights, aimed at guaranteeing under
all circumstances the right to a fair trial and a remedy. The
progress report had two addenda. Addendum 1 contained a preliminary
draft declaration on the right to a fair trial and a remedy. Addendum
2 contained a summary of the information received by the Special
Rapporteurs from non-governmental organizations concerning national
laws and practices regarding the right to a fair trial and a
remedy.
11. In its resolution 1993/26 of 25 August 1993 the Sub-Commission
requested the Special Rapporteurs to submit to the Sub-Commission at
its forty-sixth session their final report. The Commission, in its
decision 1994/107 of 4 March 1994 endorsed the Sub-Commission's
request. The Commission's decision specifically mentioned that the
final report should include a set of conclusions and recommendations.
The Commission also decided "to consider at its fifty-first session
the final report of the Special Rapporteurs including, if
appropriate, the desirability of a third optional protocol to the
International Covenant on Civil and Political Rights, aimed at
guaranteeing under all circumstances the right to a fair trial and a
remedy, ...".
12. Chapter I of the present and final report summarizes the
discussion of the preparatory, preliminary and progress reports.
Chapter II summarizes fundamental sources of international fair trial
norms identified since the inception of this study. Chapter III
recognizes other developments related to the study of the right to a
fair trial. Chapter IV summarizes interpretations of the right to a
fair trial which have been made recently by the Human Rights
Committee, the Committee on the Elimination of Racial Discrimination,
the Inter-American Commission on and Court of Human Rights, and the
European
Commission and Court of Human Rights. Chapter V identifies the right
to a fair trial as a non-derogable right and Chapter VI discusses the
right to a remedy as a non-derogable right. Chapter VII contains
conclusions and recommendations on strengthening the right to a fair
trial and a remedy. Annex I contains the text of a revised draft
third optional protocol to the International Covenant on Civil and
Political Rights, aiming at guaranteeing under all circumstances the
right to a fair trial and a remedy. Annex II contains a draft body of
principles on the right to a fair trial and a remedy. Annex III
contains a comprehensive bibliography of relevant material identified
since the commencement of the study.
13. This chapter summarizes the findings of the study on the right
to a fair trial since its inception in 1989. This study provides a
unique resource for lawyers, judges and others concerned with the
administration of justice throughout the world on the prevailing
international norms of the right to a fair trial and a remedy.
Through a detailed look at the provisions guaranteeing the right to a
fair trial and a remedy in international instruments and national
laws, and the interpretations of those provisions by international
and regional human rights bodies as well as by individual
Governments, the Special Rapporteurs have brought together a
comprehensive definition of the meaning of the right to a fair trial
and a remedy. By identifying the prevailing meaning of the right to a
fair trial, this study will serve as the cornerstone for the next
task of providing further guarantees and strengthening the right to a
fair trial and a remedy. With the advent of the International
Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law in the Territory of the
Former Yugoslavia since 1991, the need for an international
understanding of the right to a fair trial is more pressing now than
when the Sub-Commission first requested this study. Further, the
efforts of the Special Rapporteurs will also be relevant to the work
of the International Law Commission which appears to be in the
process of concluding its draft statute for an International Criminal
Tribunal. Indeed, the Special Rapporteurs, as will be discussed in
greater detail throughout this report, recommend that the material
gathered in this report and their previous reports be made accessible
to the International Tribunal for the former Yugoslavia and to the
International Law Commission, as well as being distributed more
broadly in a definitive United Nations publication on the right to a
fair trial and a remedy.
14. The foundation for the study on the right to a fair trial was
laid by the brief preparatory report (E/CN.4/Sub.2/1990/34). The
brief preparatory report looked at the treaties and other instruments
defining the attributes of the right to a fair trial and a remedy
which are the most protective of the right. The principal treaties
identified in the brief preparatory report which contain provisions
on the right to a fair trial include the International Covenant on
Civil and Political Rights; the Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment; the African
Charter on Human and Peoples' Rights; the American Convention on
Human Rights; the [European] Convention for the Protection of Human
Rights and Fundamental Freedoms; the four Geneva Conventions of 12
August 1949 for the protection of war victims; and the two Additional
Protocols of 1977 to the Geneva Conventions of 1949. The brief
preparatory report also discussed other instruments with provisions
on the right to a fair trial and a remedy including the Universal
Declaration of Human Rights; the American Declaration of the Rights
and Duties of Man; the Basic Principles on the Independence of the
Judiciary; the Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions; the
Standard Minimum Rules for the Treatment of Prisoners; the Code of
Conduct for Law Enforcement Officials; the Body of Principles for the
Protection of All Persons under Any Form of Detention or
Imprisonment; the Standard Minimum Rules for the Administration of
Juvenile Justice ("The Beijing Rules"); Conclusion No. 44 of the
Executive Committee of the Programme of the United Nations High
Commissioner for Refugees on the detention of refugees and asylum
seekers; and the Concluding Document of the Vienna Follow-up Meeting
of the Conference on Security and Co-operation in Europe.
15. The preliminary report (E/CN.4/Sub.2/1991/29) and the subsequent
progress reports (E/CN.4/Sub.2/1992/24 and Add.1-3 and
E/CN.4/Sub.2/1993/24 and Add.1-2) identified additional sources of
fair trial norms, bearing in mind the previously established
international fair trial norms outlined in the brief preparatory
report. As a result, the reports submitted to the Sub-Commission thus
far include the most comprehensive compilation of existing
international fair trial norms and provide a unique resource for
anyone interested in the right to a fair trial and a remedy.
16. Further, the preparatory, preliminary and progress reports
contained excerpts from the General Comments of the Human Rights
Committee as well as the Committee's interpretations of fair trial
standards under articles of the International Covenant on Civil and
Political Rights relevant to the right to a fair trial and a remedy.
Moreover, addenda 1 and 2 to the 1992 progress report evaluated the
interpretations of relevant international norms by the European
Commission and Court of Human Rights as well as the Inter-American
Commission on and Court of Human Rights. Interpretations of the
recognized fair trial norms are of foremost importance because treaty
rights mean little if they are not applied in practice.
17. In addition to the international and regional interpretations of
the right to a fair trial, the preparatory and preliminary reports
contained a questionnaire on national practices regarding the right
to a fair trial. The 1992 progress report contained initial responses
to the questionnaire and the 1993 progress report summarized the more
detailed government responses to the questionnaire. The 1993 progress
report also contained an addendum summarizing the information
received by the Special Rapporteurs, principally from
non-governmental organizations and bar associations, concerning
national laws and practices relating to the right to a fair trial and
a remedy (E/CN.4/Sub.2/1993/24/Add.2). The compilation of
governmental interpretations provide an insight into a very extensive
body of law and practice. These national interpretations, along with
the international interpretations discussed above, form the basis for
the draft third optional protocol to the International Covenant on
Civil and Political Rights contained in the 1993 progress report, a
revised version of which is contained in Annex I of the present final
report. The Special Rapporteurs firmly believe that the third
optional protocol, if adopted, would significantly strengthen the
right to a fair trial and a remedy by making it a non-derogable
right.
18. The preparatory, preliminary, and progress reports were discussed
at the forty-second, forty-third, forty-fourth and forty-fifth
sessions of the Sub-Commission and several useful comments were
received. Sub-Commission members suggested that certain aspects of
the right to a fair trial, for example, the right to petition for
habeas corpus or amparo, should be made non-derogable even during
periods of emergency. In this regard, the Sub-Commission in its
resolution 1991/15 of 28 August 1991 on habeas corpus, recommended to
the Commission to call on all States that had not yet done so "to
establish a procedure such as habeas corpus by which anyone who is
deprived of his or her liberty by arrest or detention shall be
entitled to institute proceedings before a court, in order that the
court may decide without delay on the lawfulness of his or her
detention and order his or her release if the detention is found to
be unlawful ... [and] to maintain the right to such a procedure at
all times and under all circumstances, including during states of
emergency.". In further response to the Sub-Commission members'
comments regarding habeas corpus and amparo, addendum 3 to the 1992
progress report studied these and other similar procedures in greater
detail, defining these procedures, identifying sources of
international habeas corpus/amparo norms, and discussing the
derogability of these procedures. The Special Rapporteurs noted that
articles 2 (3), 9 (3) and 9 (4) of the International Covenant on
Civil and Political Rights embody the essence of habeas corpus and
amparo and should be made non-derogable.
19. Comments of the Sub-Commission members also reflected the need
for coordination in regard to recommendations arising from the
Sub-Commission studies on the right to a fair trial, states of
emergency, and the independence of the judiciary and the protection
of practising lawyers.
20. The two Special Rapporteurs welcomed the substantive comments and
suggestions made by members and alternates of the Sub-Commission as
well as by representatives of Governments and non-governmental
organizations.
21. Pursuant to Sub-Commission resolution 1992/21 of 27 August 1992,
which authorized Mr. Fisseha Yimer (Ethiopia) to serve as principal
commentator for the study, Mr. Yimer submitted his comments and
observations on the 1993 progress report to the 1993 session of the
Sub-Commission. The Special Rapporteurs welcomed and found valuable
Mr. Yimer's comments which focused almost entirely on the 1993
progress report.
22. Mr. Yimer began his observations by noting that the actual
practice of the right to a fair trial was of paramount importance and
that the Special Rapporteurs had paid special attention to the actual
practice of States in the implementation of the right to a fair
trial. Mr. Yimer focused on chapter I of the 1993 report, observing
that the Special Rapporteurs should continue to place special
emphasis on the institutions of amparo and habeas corpus and that the
issue of the independence of the judiciary and practising lawyers
should form an important component of the entire study. Mr. Yimer
commented that the Special Rapporteurs' classification of chapter II
as "additional sources of fair trial norms" appeared to be misleading
because the norms identified were actually restatements of
internationally recognized human rights and fundamental freedoms. Mr.
Yimer's comments accurately reflect the 1993 report standing alone,
yet the previous reports had summarized the principal international
fair trial norms and, rather than republish the entire list of fair
trial norms, due to space limitations, the 1993 report simply
identified those "additional" sources which had recognized and
adopted existing international fair trial standards.
23. Mr. Yimer commented that the governmental responses in chapter
III were not extensive enough to warrant some of the general
conclusions on national practices on the right to a fair trial. He
further commented that, in the light of the importance of chapter III
of the 1993 progress report, he found it to be more descriptive than
analytical. The Special Rapporteurs share Mr. Yimer's concern with
the completeness of the national material made available to them for
chapter III regarding 65 nations. The Special Rapporteurs believe,
however, that the usefulness of chapter III and the overall strength
of the study has been to collect the international interpretations on
the right to a fair trial. The Special Rapporteurs have collected
sufficient international and national materials to serve as the basis
for drafting a third optional protocol to the International Covenant
on Civil and Political Rights and a draft body of principles on the
right to a fair trial and a remedy. The Special Rapporteurs concur
with Mr. Yimer that further study of national practices might be
undertaken by a later study.
24. Mr. Yimer commented that the proposed third optional protocol to
the International Covenant on Civil and Political Rights would, if
adopted, be a significant measure to strengthening the right to a
fair trial.
25. Mr. Yimer questioned, however, whether the proposed draft
declaration was necessary in light of the fact that the right to a
fair trial has been provided for in article 10 of the Universal
Declaration of Human Rights and article 14 of the International
Covenant on Civil and Political Rights. Mr. Yimer believed that the
proposed declaration was simply a restatement of the fundamental
provisions on the right to fair trial in existing human rights
instruments. The Special Rapporteurs accept Mr. Yimer's concerns and,
rather than preparing a draft declaration, the present final report
contains in Annex II a draft body of principles which is intended to
be a restatement of the existing international norms and not a new
"declaration".
26. Mr. Yimer concluded his comments by questioning whether the issue
of the death penalty came within the purview of the topic of the
study of a right to a fair trial. The Special Rapporteurs agree that
the death penalty is not an aspect of the right to a fair trial but,
as recognized in the safeguards guaranteeing protection of the rights
of those facing the death penalty (Economic and Social Council
resolution 1984/50), the administration of the death penalty may
raise particular fair trial concerns. States employing the death
penalty, due to its finality, will want to ensure that those facing
the punishment have first received a fair trial.
27. The Special Rapporteurs are grateful for the thoughtful comments
of Mr. Yimer and have attempted to address many of his concerns in
this final report.
28. The Special Rapporteurs also sought comments from Governments
concerning the fourth report. Many Governments responded and the
Special Rapporteurs would like to thank the Governments of
Bangladesh, Canada, Chad, China, Egypt, Germany, Iraq, Italy, Jordan,
Kuwait, Myanmar, Nepal, Niger, the Republic of Korea, Senegal and
Turkey for their very thoughtful and helpful comments. The
Governments of Canada, China, Egypt, Germany, Nepal, Niger and
Senegal provided comments and corrections to the 1993 report, while
the Governments of Bangladesh, Chad, Iraq, Italy, Jordan, Kuwait,
Myanmar and the Republic of Korea responded to some of the
non-governmental reports regarding national practices on the right to
a fair trial contained in addendum 2 to the 1993 report. The Special
Rapporteurs indicated that they would seek to reflect the comments
received from Governments in further addenda to the 1993 progress
report. Accordingly, the Special Rapporteurs anticipate the
circulation of a future document (E/CN.4/Sub.2/1994/25) containing
the comments received from Governments - particularly in regard to
the information contained in addendum 2. The Special Rapporteurs also
expect that these comments will be reflected in a publication in the
United Nations Study Series which will embody an updated and
corrected compilation of the present report and the previous reports
of this study on the right to a fair trial and a remedy.
29. One member of the Sub-Commission expressed the view that the
draft protocol recommended by the Special Rapporteurs should be
preceded by a declaration as had been the usual United Nations
practice with regard to United Nations conventions. Indeed, for
example, the International Convention on the Elimination of All Forms
of Racial Discrimination and the Convention on the Rights of the
Child were both preceded by declarations. The Special Rapporteurs
would like respectfully to point out, however, that while
declarations have preceded conventions, they do not typically precede
protocols. The two Optional Protocols to the International Covenant
on Civil and Political Rights, for example, were not preceded by
declarations. Moreover, the new optional protocol to the Torture
Convention being drafted by the Commission on Human Rights, the draft
protocols being drafted by the two open-ended working groups for the
Convention on the Rights of the Child, the Additional Protocols of
1977 to the Geneva Conventions of 1949, the Additional Protocol to
the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights, the Protocol to the American Convention
on Human Rights to Abolish the Death Penalty, and the 10 Protocols to
the European Convention were all not preceded by a draft
declaration.
30. Instead of the delay which typically accompanies the drafting of
a declaration, the Special Rapporteurs recommend that the Commission
on Human Rights establish an open-ended working group to complete the
drafting of the third optional protocol and to permit Governments to
provide their input as to the protocol.
31. This chapter identifies and summarizes the fundamental
standards of the right to a fair trial and a remedy identified in the
first brief report (E/CN.4/Sub.2/1990/34) and updates those
standards. The Special Rapporteurs recommend that a compilation of
existing fair trial standards and norms be included in a publication
in the United Nations Study Series. The compilation should contain a
structural and textual summary of the principal treaties, other
instruments, and interpretations of those instruments and treaties by
international and regional human rights bodies relating to the right
to a fair trial and a remedy, the original full text of those
treaties and instruments, and a topical index which would permit the
reader to find both the original text of the relevant instruments and
the interpretations of those instruments by the various international
and regional human rights bodies. The need of lawyers, judges,
legislators and lay people worldwide for a more comprehensive review
of existing fair trial standards and norms is one of the most
compelling reasons to adopt the Special Rapporteurs' recommendation
that a United Nations Study Series publication be issued.
32. This chapter begins with treaty provisions on the right to a fair
trial and continues by identifying other instruments with provisions
on and relevant to the right to a fair trial and a remedy. The
chapter concludes with some general observations about these
standards.
A. Treaty provisions on the right to a fair
trial
33. Article 14 of the International Covenant on Civil and Political
Rights recognizes the right to "a fair trial and public hearing by a
competent, independent and impartial tribunal established by law".
Every person is "equal before the courts and tribunals" under article
14 (1). Article 14 also distinguishes between the sort of fair
hearing required for civil and criminal cases; most of article 14
deals with the "minimum guarantees" required in the determination of
any criminal charge. Article 14 embodies the most comprehensive and
important provisions protecting the right to a fair trial and thus
needs to be made non-derogable even in times of emergency.
34. The African Charter on Human and Peoples' Rights (arts. 7 and
26), the Inter-American Convention on Human Rights (art. 8) and the
[European] Convention for the Protection of Human Rights and
Fundamental Freedoms (art. 6) all contain fair trial provisions. The
African Commission on Human and Peoples' Rights has adopted a
Resolution on the Right to Recourse Procedure and Fair Trial which
elaborates on article 7 (1) of the African Charter and guarantees
several additional rights, including: notification of charges,
appearance before a judicial officer, right to release pending trial,
presumption of innocence, adequate preparation of the defence, speedy
trial, examination of witnesses and the right to an interpreter (Doc.
No. ACHPR/COMM/FIN(XI)/Annex VII, 9 March 1992). The African Charter
does not contain a provision allowing States to derogate from their
obligations under the treaty in times of public emergency.
35. Although article 27 of the Inter-American Convention authorizes
the suspension of guarantees in "times of war, public danger, or
other emergency that threatens the independence or security of" the
Government, and does not make article 8 (the right to a fair trial) a
non-derogable right, article 27 does extend non-derogable status to
"judicial guarantees essential for the protection of such rights" as
the right to life, humane treatment and the other rights identified
in article 27. Hence, a certain aspect of the right to a fair trial
and a remedy has been made non-derogable by the Inter-American
Convention.
36. Common article 3 of the four Geneva Conventions of 12 August 1949
for the protection of war victims and article 6 of Additional
Protocol II of 1977 contain fair trial guarantees for timeu of
non-international armed conflict. Articles 96 and 99-108 of the Third
Geneva Convention prescribe the rights of prisoners of war in
judicial proceedings, essentially creating a fair trial standard.
Articles 54, 64-74 and 117-26 of the Fourth Geneva Convention contain
provisions relating to the right to fair trial in occupied
territories. Additional Protocol I (art. 75) extends fair trial
guarantees in an international armed conflict to all persons,
including those arrested for actions relating to the conflict. The
Geneva Conventions and the two Additional Protocols assure the right
to a fair trial even during periods of armed conflict.
37. The right to an effective remedy either by national tribunals or
another national authority for violation of an individual's
fundamental rights is an aspect of the right to a fair trial and is
guaranteed by the International Covenant on Civil and Political
Rights (arts. 2 (3), 9 (3), and 9 (4)), the American Convention
(arts. 10, 25), and the European Convention (art. 13). For a more
detailed discussion of the right to a remedy as a fundamental aspect
of the right to a fair trial, see chapter VI, infra.
38. The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment provides in article 15 "that any
statement which is established to have been made as a result of
torture shall not be invoked as evidence in any proceedings ...".
Also, article 7 guarantees fair treatment at all stages of the
proceedings brought against a person charged with having engaged in
or attempted torture. Article 2 (2) makes this convention
non-derogable by providing that "[n]o exceptional circumstances
whatsoever ... may be invoked as a justification of torture". Under
this treaty, therefore, the accused person possesses a non-derogable
right to be free from torture at all times during the criminal
process, including interrogation, detention, trial, sentencing and
punishment.
39. The Convention on the Rights of the Child contains several
provisions relevant to the right to a fair trial for children.
Article 37 (b) provides, for example, that "[n]o child shall be
deprived of his or her liberty unlawfully or arbitrarily".
Furthermore, article 37 (d) provides that "[e]very child deprived of
his or her liberty shall have the right to prompt access to legal and
other appropriate assistance, as well as the right to challenge the
legality of the deprivation of his or her liberty before a court or
other competent, independent and impartial authority, and to a prompt
decision on any such action".
B. Other instruments with provisions on fair
trial
40. Article 10 of the Universal Declaration of Human Rights provides,
"[e]veryone 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) protects 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".
41. The Basic Principles on the Independence of the Judiciary,
endorsed by the General Assembly in its resolutions 40/32 of 29
November and 40/146 of 13 December 1985, help assure the right to a
fair trial by preserving the independence and impartiality of the
judiciary.
42. The Principles on the Effective Prevention and Investigation of
Extra-legal, Arbitrary and Summary Executions, adopted by the
Economic and Social Council in its resolution 1989/65 of 24 May 1989,
require the "thorough, prompt and impartial investigation of all
suspected cases of extra-legal, arbitrary and summary executions
(principle 9)". To that end there are several principles relevant to
the right to a fair trial, including principle 10 which indicates
that the investigative authority shall have the power to oblige
witnesses to appear and testify.
43. The Concluding Document of the Vienna Follow-Up Meeting of the
Conference on Security and Cooperation in Europe (CSCE), issued 17
January 1989, indicates that the participants will "ensure effective
remedies" and defines those remedies. The parties to the Vienna
Concluding Document have also undertaken to observe the United
Nations Standard Minimum Rules for the Treatment of Prisoners, to
observe the United Nations Code of Conduct for Law Enforcement
Officials, to prohibit torture and other ill-treatment, to protect
individuals from psychiatric and other medical practices that violate
human rights, and to limit the use of the death penalty. In June 1990
the Copenhagen Meeting of the Conference on the Human Dimension of
the CSCE adopted a document containing several provisions relating to
the right to a fair trial. The Charter of Paris for a New Europe
issued in November 1990 pursuant to a meeting of the CSCE states that
everyone has the right "to know and act upon his rights [and] to fair
and public trial if charged with an offence ...". The Concluding
Document of the Moscow Meeting of the CSCE in 1991 stated that the
participating States "will respect the internationally recognized
standards that relate to the independence of the judges and legal
practitioners ... which, inter alia, provide for (i) prohibiting
improper influence on judges ... [and] (v) guaranteeing tenure and
appropriate conditions of service ...".
44. Article 19 of the Declaration of Human Rights in Islam, adopted
on 5 August 1990 at the Nineteenth Islamic Conference of Ministers of
Foreign Affairs in Cairo, provides for equality of all individuals
before the law, the right to a judicial remedy for each person,
individual penal responsibility, no penalties except as prescribed by
the Shariah, the presumption of innocence, and an honest trial in
which the rights of defence are fully guaranteed. Article 20 forbids
arrests, restraints on liberty, exile or punishment without
legitimate reasons as well as torture and cruel, inhuman or degrading
treatment. Article 21 forbids the taking of hostages. Article 24
states that all the rights in the declaration are subordinate to
principles of the Shariah.
45. Representatives of non-governmental organizations met in Tunis
from 29 November to 2 December 1991 for the Arab-African Seminar on
Criminal Justice and Penal Reform, held under the auspices of the
Centre for Human Rights, the Tunisian League for Human Rights, Penal
Reform International and the Arab Institute for Human Rights. The
Seminar recommended that no person should be subjected to detention
garde à vue for more than 24 hours; that any person placed in
detention should immediately be permitted to contact his/her family
and doctor; that interrogations should take place in the presence of
a lawyer who may consult his/her client in private; that detention
garde à vue should be permitted only in locations prescribed
by law; that persons under detention garde à vue should not be
subjected to pressure to incriminate themselves; that no one should
be subject to torture, arbitrary arrest or preventive detention for
his/her beliefs or religious convictions; that provisional detention
should not be imposed as a sanction; and that public authorities
should not make contact with persons in provisional detention prior
to their appearance in court. The Seminar made a number of other
recommendations in regard to the independence of the judiciary, the
rights of the defence, penal reform and other related issues.
46. The attention of the Special Rapporteurs has been drawn to a very
useful document entitled "Executive Action and the Rule of Law"
prepared by the International Commission of Jurists as a result of a
conference in Brazil in 1962. The document sets forth fundamental
principles for a fair trial in administrative cases, including the
requirement of adequate notice to interested parties; adequate
opportunity for them to prepare the case, including access to
relevant data; their right to be represented by counsel or other
qualified person; adequate notice of the decision and the reasons;
and their right to recourse to a higher administrative authority or
court. The document indicates that it would be advisable for
administrators to promulgate regulations after having secured expert
advice, consult organizations or interested groups and give an
opportunity to interested individuals to present their views.
C. Other provisions relevant to the right to a
fair trial
47. Provisions prohibiting arbitrary arrest and detention may be
found in the Universal Declaration (art. 9), the Civil and Political
Covenant (art. 9), the African Charter (art. 6), the American
Convention (art. 7), and the European Convention (art. 5).
48. Provisions against torture or other cruel, inhuman, or degrading
treatment or punishment are contained in article 5 of the Universal
Declaration, article 7 of the Civil and Political Covenant, articles
2-4 of the Convention against Torture, articles 2-4 of the
Declaration against Torture, article 5 of the African Charter,
article 5 of the American Convention and article 3 of the European
Convention. During international armed conflicts, torture is
forbidden by the First Geneva Convention, article 12; the Second
Geneva Convention, article 12; the Third Geneva Convention, articles
17 and 87; the Fourth Geneva Convention, article 32; and article 75
of Additional Protocol I. During non-international armed conflicts,
torture is forbidden by common article 3 of the four Geneva
Conventions and article 4 of Additional Protocol II.
49. The United Nations Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment (General Assembly
resolution 43/173 of 9 December 1988) establishes an obligation to
inform detainees of their rights (principle 13), to bring detainees
before a judicial or other authority promptly after arrest (principle
11) and to provide access to legal counsel (principle 17).
50. The Standard Minimum Rules for the Treatment of Prisoners contain
several provisions which are relevant to the right to a fair trial,
including the right to receive visits from a legal adviser (art. 93)
within sight but not within the hearing of prison officials.
51. The Code of Conduct for Law Enforcement Officials (General
Assembly resolution 34/169 of 17 December 1979) requires in article 2
that law enforcement officials respect and protect the human rights
of all persons, which would apparently include the right to a fair
trial.
52. The Safeguards guaranteeing protection of the rights of those
facing the death penalty (Economic and Social Council resolution
1984/50 of 25 May 1984) state that "[c]apital punishment may only be
carried out pursuant to a final judgement rendered by a competent
court after legal process which gives all possible safeguards to
ensure a fair trial, at least equal to those contained in article 14
of the International Covenant on Civil and Political Rights,
including the right ... to adequate legal assistance at all stages of
the proceedings". In addition, the Council, in resolution 1989/64 of
24 May 1989, Implementation of the safeguards guaranteeing protection
of the rights of those facing the death penalty, recommended that
member States afford "special protection to persons facing charges
for which the death penalty is provided by allowing time and
facilities for the preparation of their defence", and provided "for
mandatory appeals or review with provisions for clemency or pardon in
all cases of capital offence".
53. Provisions which prohibit use of ex post facto laws and
retroactive punishment exist in the Universal Declaration (art. 11),
the Civil and Political Covenant (art. 15), the African Charter (art.
7), the American Convention (art. 9) and the European Convention
(art. 7).
54. Provisions prohibit imprisonment solely for breach of contract in
the Civil and Political Covenant (art. 11), the American Convention
(art. 7) and the Fourth Protocol to the European Convention.
55. The United Nations Standard Minimum Rules for the Administration
of Juvenile Justice ("The Beijing Rules") contain provisions (rule
14.1) for a "fair and just trial" relating to juvenile offences.
56. Article 16 of the Convention relating to the Status of Refugees
provides refugees with free access to courts of law and the same
treatment as a national in regards to legal assistance in the
refugee's country of habitual
residence. Article 1 (1) of the Protocol relating to the Status of
Refugees applies article 16 of the Convention, inter alia, without
geographical or time limitations.
57. There are numerous other provisions related to the right to a
fair trial. Some of those other provisions may be found in the United
Nations Rules for the Protection of Juveniles Deprived of their
Liberty; the Basic Principles on the Role of Lawyers; the Guidelines
on the Role of Prosecutors; the United Nations Standard Minimum Rules
for Non-custodial Measures ("The Tokyo Rules"); the United Nations
Guidelines for the Prevention of Juvenile Delinquency ("The Riyadh
Guidelines"); the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power; and the International Labour
Organisation's Worker Tribunal Standards.
D. General observations regarding the right to
a fair trial
58. The concept of "a fair trial" concerns both criminal and civil
proceedings. Each type of proceeding has its own character. None the
less, certain principles can be applied in any court - whether it be
an emergency court, a military tribunal, a juvenile court, etc. If
those principles are not observed in accordance with a modern concept
of justice, the trial cannot be fair. Moreover, some of the
principles of fairness also apply to cases in international courts
and arbitration tribunals.
59. It is evident that general principles of law include principles
of a procedural nature. Since the question of the right to a fair
trial is examined in the context of human rights, particular
attention should be given to procedural principles found in the
domestic practices of Governments. Such principles may also be
applied by international courts dealing with cases related to human
rights, for example, the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of Former Yugoslavia
since 1991, the International Law Commission's proposed International
Criminal Tribunal, the Nürnberg and Tokyo Tribunals, the
European Court of Human Rights and the Inter-American Court of Human
Rights. The ILC's draft statute for the proposed International
Criminal Tribunal contains protection for the accused including the
right to remain silent with no adverse consequences being drawn from
the exercise of that right before any investigation by the prosecutor
(art. 30 (4) (a)) and the right not to have evidence used against the
accused which was obtained by illegal means constituting a serious
violation of internationally protected human rights (art. 48).
60. Justice principally requires that a trial must be objective.
Objectivity may have philosophical, moral and juridical aspects.
Objectivity cannot solely be achieved by juridical measures. Certain
economic, political and other conditions may be required in order for
juridical protection to achieve an objective trial. Particular
societies may have different ideas of objectivity and fairness.
Differences in economic, social and cultural levels of development
together with historical, religious and other factors may influence a
society's understanding of objectivity and fairness. None the less,
sufficiently clear views of fairness and objectivity have emerged
such that juridical criteria for an objective trial can be
established. Such juridical criteria cannot provide a complete
assurance, but they do contribute to the achievement of fair and
objective trials.
61. It is widely believed that an objective trial is the same as a
fair trial. There is, of course, a direct link, but there are
different shades of meaning within the two concepts. Fairness relates
to a sense that justice has been both accomplished and appeared to be
accomplished. Objectivity considers whether the facts have been
adduced, assessed according to the relevant law and appropriate
procedures followed. It is difficult to draw a precise line between
objectivity and fairness. In any case, it is necessary to define with
precision what juridical measures will help to ensure the objectivity
and hence, the fairness of a trial.
62. Possible juridical measures to ensure fairness may be very
broadly categorized as (a) those measures relating to the
organization of adjudicative bodies and (b) procedural guarantees for
the conduct of the trial. Organizational matters are concerned with
the procedures for appointing judges and other competent decision
makers, etc. Procedural guarantees may also help to ensure the
objectivity of court proceedings.
63. Essentially, all aspects of the organization of the judiciary
should help create conditions for conducting judicial proceedings
that exclude any outside influence on the court's evaluation of the
facts and application of the law. Organizational measures for
achieving fairness ultimately ensure the independence of judges as
individuals and of the judiciary as a whole. Without these
organizational measures, procedural guarantees of fairness will not
be effective.
64. Means of guaranteeing the independence of the judiciary are
closely linked to means for assuring the independence of lawyers and
other representatives. Different approaches to independence may be
appropriate for civil and criminal cases; but unless lawyers and
other representatives are guaranteed independence, a fair trial
cannot be ensured, even if the judges are independent. The
independence and impartiality of judges, lawyers, assessors, and
other participants in the judicial process have already been studied
by the Sub-Commission on Prevention of Discrimination and Protection
of Minorities (see E/CN.4/Sub.2/1993/25 and Add.1). None the less, it
is appropriate to recall the importance of this issue - particularly
in the preliminary investigation of criminal cases - as an essential
requirement of a fair trial.
65. Procedural guarantees of the objectivity of courts can be
characterized as conditions, methods, measures, etc. The commonly
used term "guarantee" may give the misleading impression that a
particular procedural right will assure objectivity. In fact,
however, some procedures can help to ensure fairness while others may
be less effective. None the less, each procedural right should not be
assessed separately, because all procedural rights must combine to
achieve fairness and objectivity. Procedural guarantees may be
broadly divided into methods of conducting a trial and approaches to
the submission and examination of evidence.
66. The relationship between the objectivity and impartiality of a
trial deserves attention. These two concepts are closely related, but
they may be distinguished in certain respects. Impartiality relates
to the course of the trial and indicates that the judge or trier of
fact will not favour one party or other during the trial and the
parties will have equal opportunity to present their positions.
Impartiality also describes the appropriate attitude of the court to
the case being tried and that there will be an unbiased assessment of
the evidence. Objectivity relates to the correctness of a trial's
procedures, in other words, the way evidence is evaluated so as to
select the most effective juridical approach to discover the
truth.
67. The concepts of independence, impartiality, objectivity, and
fairness of a trial are interrelated: independence is a prerequisite
and essential condition for the impartiality of a trial, although it
is not a complete guarantee of impartiality. Impartiality is the
best, albeit incomplete, guarantee of objectivity. In almost all
cases, the objectivity of a trial indicates its fairness. Fairness
may not be achieved in certain situations, however, if the court
applies outdated or otherwise inappropriate legislation, laws, or
precedents.
68. Another important prerequisite of a fair trial is the competence
of the judges, who should possess a high level of professional
training and experience. Judges should also possess high moral
integrity, which, although difficult to measure precisely, is as
important as other requirements of a fair trial. In addition, lawyers
participating in the trial should be competent and independent.
69. Impartiality and objectivity are two criteria for a fair trial
and these criteria must be fulfilled by specific procedural
guarantees. Countries have adopted various procedures for assuring a
fair trial, including a public hearing, proceedings in which all
parties are permitted to participate, the right of the parties and of
witnesses to use their own language (including the provision of
translation), prohibition of any kind of influence on the court to
undermine its independence (for example, attempts to exert pressure,
infringement on the secrecy of deliberations, etc.), and the right to
counsel or other representative. These procedures provide the minimum
guarantees for an objective trial in both civil and criminal
proceedings, although the procedures may be applied in different ways
as required by the type of proceeding. These procedural guarantees
are found in the principal international standards for the
administration of justice. None the less, the incorporation of
guarantees in international standards cannot assure that the
procedures will be implemented successfully at the national level.
Therefore, it is desirable to consider means of strengthening
implementation.
70. Accordingly, the Special Rapporteurs recommend that the draft
third optional protocol contained in annex II to this report be
adopted. Adoption of this protocol will certainly strengthen the
right to a fair trial and a remedy by making it a non-derogable right
during periods of public emergency. Moreover, by compiling the
reports of this study and publishing them in the United Nations Study
Series, the resources gathered by the Special Rapporteurs can serve
as a valuable resource for anyone interested in protecting the right
to a fair trial and a remedy.
A. Developments within the United
Nations
71. In January 1993 the Working Group on Arbitrary Detention of the
Commission on Human Rights issued its second report (E/CN.4/1993/24)
in which it rendered its first decisions in regard to communications
which had been submitted. The Working Group considered several
communications which stated that a person had been imprisoned without
a trial or after a trial failing to comport with international fair
trial standards. Accordingly, the Working Group determined whether
procedures followed in particular cases violated international fair
trial norms and could thus be considered to be "arbitrary" within its
mandate.
72. The Working Group on Arbitrary Detention also commented on the
practice of several countries in establishing special courts,
including emergency courts, revolutionary courts, military courts,
people's courts, or courts of State security. The Working Group
observed,
"Admittedly, courts of this kind do not seem to be strictly inconsistent with international rules. However, experience unfortunately proves (and the examples of many cases submitted to the Group shows) that in many States they are being used more and more, or even being established for the purpose, to try dissidents and opponents who are then denied any guarantee to the right to be heard by an independent and impartial tribunal. The Working Group therefore shares the Commission's concern, reflected in resolution 1992/31, about respect for the protection of all persons in the administration of justice, and it considers that the human right to be heard by an independent and impartial tribunal is the very essence of the human right to justice (E/CN.4/1993/24, para. 34)."
73. Furthermore, the Working Group on Arbitrary Detention
recommended "strengthening the institution of habeas corpus". The
Commission on Human Rights responded to this recommendation in its
resolution 1993/36 of 5 March 1993. In that resolution the Commission
encouraged States, in accordance with its resolution 1992/35 of 28
February 1992 "to establish a procedure such as habeas corpus and
maintain it in all circumstances, including during states of
emergency". In its resolution 1994/32 of 4 March 1994 the Commission
reiterated its encouragement of States "to establish a procedure such
as habeas corpus or a similar procedure as a personal right not
subject to derogation, including during states of emergency".
74. In its 1994 report (E/CN.4/1994/27) the Working Group on
Arbitrary Detention continued its practice of deciding cases relevant
to the right to a fair trial. The Working Group also reported (para.
36) that, regrettably, in many countries habeas corpus procedures did
not exist, had been suspended, were not readily available or had not
been used. The Working Group also indicated (para. 75) its support
for the efforts of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities to elaborate a declaration on habeas
corpus with a view to arriving at an additional protocol to the
International Covenant on Civil and Political Rights.
75. In this regard, the Chilean delegation's comments at the fiftieth
session of the Commission on Human Rights are relevant. The Chilean
delegate stated that his delegation supported the need for an
additional protocol to assure the right to habeas corpus. Although
articles 2 (3), 9 (2) and (3) of the International Covenant on Civil
and Political Rights already contained the substance of the habeas
corpus procedure without using the term "habeas corpus", there was
still a need for a protocol to the Covenant making articles 2 (3), 9
(3), and 9 (4) non-derogable. The Chilean delegation further
expressed its support for the work of the two Sub-Commission experts,
Stanislav Chernichenko and William Treat, to draft a third optional
protocol to the International Covenant on Civil and Political Rights
making non-derogable the rights to a fair trial under article 14 and
habeas corpus under articles 2 (3), 9 (3) and 9 (4). The Chilean
delegation stated that it looked forward to considering their draft
optional protocol when it was submitted to the Commission at its
fifty-first session.
76. In June 1993, Mr. Leandro Despouy (Argentina) presented his sixth
annual report on states of emergency to the Sub-Commission
(E/CN.4/Sub.2/1993/23). Mr. Despouy identified 83 countries which had
declared states of emergency since 1985. Mr. Despouy also identified
those countries in which exceptional measures had been adopted
without an official proclamation of a state of emergency, that is de
facto states of emergency. Mr. Despouy has received valuable and
pertinent observations concerning the draft guidelines for the
development of legislation on states of emergency, including the
question of non-derogable rights.
77. In July 1993, Mr. Louis Joinet (France) presented his final
report on the independence of the judiciary and the protection of
practising lawyers to the Sub-Commission (E/CN.4/Sub.2/1993/25 and
Add.1) pursuant to Sub-Commission resolution 1992/38. The report
provided detailed information on measures and practices adopted by
various countries which had either strengthened or weakened
safeguards for judicial independence, and discussed reinforcement of
cooperation between United Nations programmes to guarantee the
independence and impartiality of the judiciary and the establishment
of a monitoring mechanism. Accordingly, in its resolution 1994/41 of
4 March 1994 the Commission established a thematic Special Rapporteur
on the independence and impartiality of the judiciary, jurors and
assessors and the independence of lawyers.
78. In August 1993, the Sub-Commission's Working Group on Detention
convened and reported on developments concerning human rights of
persons subjected to detention or imprisonment, habeas corpus, the
death penalty, juvenile justice, etc.
79. In July 1993, Special Rapporteur Theo van Boven presented his
final report concerning the right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and
fundamental freedoms (E/CN.4/Sub.2/1993/8). Mr. van Boven discussed
State responsibility, relevant decisions and views of international
human rights organs, national laws and practices, the issue of
impunity in relation to the right to reparation for victims of gross
violations of human rights, and proposed basic principles and
guidelines concerning reparation to victims of gross violations of
human rights.
B. Establishment of the International
Tribunal for Violations of Humanitarian Law Committed in the
territory of the former Yugoslavia since 1991
80. On 22 February 1993 the Security Council adopted resolution 808
(1993) in which it decided that an international tribunal should be
established for the prosecution of persons responsible for serious
violations of international humanitarian law committed in the
territory of the former Yugoslavia since 1991, and requested the
Secretary-General to submit a report to the Council on all aspects of
the matter including specific proposals for the effective and
expeditious implementation of the decision.
81. On 3 May 1993 the Secretary-General issued a report (S/25704 and
Add.1) proposing the establishment of an international tribunal as
requested by the Security Council in its resolution 808 (1993) and
recommending a Statute for the tribunal. On 25 May 1993 the Security
Council adopted resolution 827 (1993) in which it approved the
Secretary-General's report and established "an international tribunal
for the sole purpose of prosecuting persons responsible for serious
violations of international humanitarian law committed in the
territory of the former Yugoslavia between 1 January 1991" and a
later date to be determined by the Security Council. Article 15 of
the Statute of the International Tribunal authorizes the judges of
the International Tribunal to "adopt rules of procedure and evidence
for the conduct of the pre-trial phase of the proceedings, trials and
appeals, the admission of evidence, the protection of victims, and
witnesses and other matters". Article 20 of the Statute provides that
the Trial Chambers of the International Tribunal "shall ensure that a
trial is fair and expeditious and that proceedings are conducted in
accordance with the rules of procedure and evidence, with full
respect for the rights of the accused and due regard for the
protection of victims and witnesses". Articles 20 through 26 contain
more specific provisions relating to the right to a fair trial,
judgement and appeal. In particular, most of the fair trial
provisions in article 14 of the International Covenant on Civil and
Political Rights are reproduced in article 21 of the Statute,
although the Covenant is not mentioned as such.
82. The International Tribunal adopted rules of procedure and
evidence on 11 February 1994. The rules provide many of the same
protections which are found in the Body of Principles contained in
annex II of this report, although phrased in much more general terms.
The rules contain safeguards designed to ensure the impartiality of
the tribunal (rules 14-36), ensure the suspect's right to free
counsel and the assistance of an interpreter (42), provide for the
video- or audio-taping of all suspect questioning (43), contain
procedural safeguards for all indictments and arrest warrants
(47-61), require that all accused be brought promptly before the
tribunal (62), do not allow the suspect to be questioned without
counsel present (63), require the prosecution to disclose all
exculpatory evidence to the accused (68), allow the judges to close
the proceedings to the public in certain circumstances (79), and
provide for appeal (107-122) and pardon (123-125) procedures. The
rules also provide, however, for the pre-trial release of a suspect
only in exceptional circumstances - thus making pre-trial detention
the rule rather than the exception.
83. The Rules of Procedure and Evidence for the International
Tribunal fail to address, however, some important components of the
right to a fair trial. There is no mention, for example, of the
treatment of pre-trial detainees, such as the right to immediate
notice to families of one's detention or prompt access to one's
family (rule 92, United Nations Standard Minimum Rules for the
Treatment of Prisoners), the right not to be tortured or subjected to
other cruel, inhuman or degrading treatment or punishment (art. 7 of
the Civil and Political Covenant). In all fairness to the
International Tribunal, however, in his report on the Statute of the
Tribunal the Secretary-General made clear that the enumeration of
rights in the Statute did not exclude any other internationally
recognized right so that the Tribunal could take into account other
concepts of fairness. Presumably, then, the International Tribunal
will adhere to the well-established international safeguards not
specifically enumerated in its Statute or Rules of Procedure and
Evidence.
84. With the advent of the International Tribunal for the former
Yugoslavia, the need for an international understanding of the right
to a fair trial is more pressing than ever before. The eyes of the
world will be watching and it is vital that the defendants are
afforded a fair trial. The International Tribunal will need to assure
the observance of at least the procedural safeguards afforded by the
International Covenant on Civil and Political Rights and the other
international instruments discussed in this study, even if they are
not specifically enumerated in the Tribunal's rules and governing
statute. The International Tribunal will also focus more clearly on
the need for adopting a draft third optional protocol on the right to
a fair trial and a remedy.
85. The right to a fair trial has been a norm of international human rights law for over 40 years and a substantial body of interpretation has developed elaborating and construing this right. The three principal sources of interpretation of the right to a fair trial have been the Human Rights Committee, the European Commission and Court of Human Rights, and the Inter-American Commission on and Court of Human Rights. More recently, however, the Committee on the Elimination of Racial Discrimination has also undertaken a role in interpreting the right to a fair trial. Previous reports in this study contained extensive summaries of interpretations of the right to a fair trial by these bodies. This chapter continues that practice by providing a summary of the more recent interpretations of the right to a fair trial. The chapter organizes the summaries based on the outline of the final publication of this study. All subjects do not have a corresponding interpretation since these interpretations reflect only recent cases. The final publication will contain, however, fair trial interpretations for every outline entry, based on the materials collected in the previous reports under this study as updated by the most recent developments. The chapter begins with summaries of recent decisions on standards applicable to all adjudicative proceedings by the European Commission and Court of Human Rights. It then continues with summaries of recent decisions relating to further standards applicable in criminal cases by the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, the Working Group on Arbitrary Detention, the Inter-American Commission on and Court of Human Rights, and the European Commission and Court of Human Rights.
I. Standards in All Adjudicative Proceedings
A. Introduction
B. Notice
C. Fair hearing
D. Public hearing
E. Independent and impartial tribunal
86. In Demicoli v. Malta (decision of 27 August 1991), the European Court of Human Rights held unanimously that there had been a breach of article 6 (1) of the European Convention since the applicant had not received a fair and public hearing for the charge of breach of privilege concerning alleged defamation of members of the Maltese House of Representatives. The proceedings against the applicant were conducted by the members of the Maltese House of Representatives, which found the applicant guilty of defamation as editor of a political satirical periodical. The Court took the view that the House of Representatives could not be considered to be a court and did not fulfil the requirements of the Convention as to independence or impartiality.
F. Methods of conducting a trial
G. Approaches to the submission and evaluation of evidence
87. In Kraska v. Switzerland (decision of 19 April 1993), the European Court of Human Rights ruled that the failure of a member of the Federal Court of Switzerland to read thoroughly the whole file concerning a public law appeal did not prejudice that Court's later decision. The applicant possessed a medical diploma and wished to practise medicine in the private sector. Article 6, section 1, of the European Convention on Human Rights places a competent court under the duty to conduct a proper examination of submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision. Certain remarks made by a Federal Court judge left the applicant's lawyer with the impression that the judge did not have sufficient knowledge of the file. The importance of appearances in the administration of justice was acknowledged, but the Court stated that misgivings of individuals must be objectively justified. The applicant's complaint was unfounded, on account, inter alia, of the active part played by the judge in question during the deliberations.
H. Interpreter
I. Counsel
88. In Megyeri v. Germany (decision of 12 May 1992), the European Court of Human Rights held unanimously that there had been a violation of article 5 (4) of the European Convention because the applicant had not been assisted by a lawyer in proceedings concerning his possible release from detention in a psychiatric hospital. The Court stated that a person confined in a psychiatric institution for the commission of acts constituting criminal offences as to which he was not responsible on account of mental illness should, unless there are special circumstances, receive legal assistance in subsequent proceedings reviewing his detention.
J. Adequate time and facilities for the defence
K. Witnesses
L. Appeal
M. Remedy
II. Standards in Criminal Cases
A. Introduction
B. Notice
1. Right to be informed promptly of charges
89. Brannigan and McBride v. UK (decision of 26 May 1993) involved
the arrest of suspected Irish Republican Army members who were
believed to be involved in terrorist activities against the
Government of the United Kingdom in Northern Ireland. The European
Court of Human Rights grappled with the issue of the detention for
over six and four days respectively of the suspected terrorists
before being brought before a tribunal. The Court reasoned that
derogation from guarantees under article 5 was in conformity with
article 15 of the European Convention. Having regarded the nature of
the terrorist threat in Northern Ireland, the limited scope of the
derogation and the reasons advanced in support of it, as well as the
existence of basic safeguards against abuse, the Court took the view
that the Government did not exceed its margin of appreciation in
considering that the derogation was strictly required by the
exigencies of the situation.
90. In decision No. 4/1993 (Philippines) (E/CN.4/1994/27 at 46), the
Working Group on Arbitrary Detention held that the practice of
arresting persons without a warrant, not informing them of the
reasons for their arrest, and not filing charges against them within
a reasonable period of time would render their detention arbitrary in
contravention of articles 8, 9, 10, and 11 of the Universal
Declaration of Human Rights and articles 9 and 14 of the
International Covenant on Civil and Political Rights. In this
particular communication, five Philippine nationals were arrested
without warrant in 1990 and 1991 and none have had formal charges
filed against them nor have they been informed individually of the
reasons for their arrest. The Philippine Government failed to provide
any information concerning the communication. The Working Group
requested that the Government take the necessary steps to remedy the
situation, so as to comply with the provisions and principles
incorporated in the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights.
91. In decision No. 45/1992 (Ethiopia) (E/CN.4/1994/27 at 28), the
Working Group on Arbitrary Detention held that the detention of three
Ethiopians without charge and without the ability to challenge their
detention through any judicial or administrative procedure was
arbitrary and deprived them of their right to use judicial procedure
for appealing against their detention and of their right to a fair
trial, as guaranteed by articles 9 and 10 of the Universal
Declaration of Human Rights and articles 9 and 14 of the
International Covenant on Civil and Political Rights. The three
detainees are former high government officials reportedly being held
for war crimes and human rights violations under the former
Government. The Working Group requested that the Government of
Ethiopia take the necessary steps to remedy the situation, so as to
comply with the provisions and principles incorporated in the
Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
92. In Henry Kalenga v. Zambia (comm. No. 326/1988), the author of
the communication, a Zambian citizen, was arrested and detained for
over nine months for political offences. He was not formally informed
about the reasons for his arrest for over a month after his arrest.
During detention, he was frequently deprived of food, access to
recreation as well as medical assistance, and subjected to various
forms of psychological torture. The Human Rights Committee, in its
views of 27 July 1993, was of the opinion that the uncontested
response of the Zambian authorities to Mr. Kalenga's attempts to
express his opinions freely and to disseminate the tenets of the
People's Redemption Organisation constituted a violation of his
rights under article 19 of the International Covenant on Civil and
Political Rights. The Committee was also of the opinion that Mr.
Kalenga's right under article 9 (2) to be promptly informed about the
reasons for his arrest and of the charges against him had been
violated, as it took the authorities almost one month to inform him.
Similarly, the Committee found a violation of article 9 (3), as Mr.
Kalenga was not brought promptly before a judge or other officer
authorized by law to exercise judicial power. Additionally, the
Committee considered that the State party violated Mr. Kalenga's
right under article 10 (1) to be treated with humanity and respect
for the inherent dignity of his person by its occasional deprivation
of food and failure to provide needed medical assistance.
93. In Glenford Campbell v. Jamaica (comm. No. 248/1987), Mr.
Campbell was convicted of murder. The Human Rights Committee, in
views adopted 30 March 1992, found violations of the International
Covenant on Civil and Political Rights because the author had not
been promptly informed of the charges against him upon his arrest,
nor was he brought promptly before a judge or other officer
authorized by law to exercise judicial power. In addition, the
author's legal aid representative had failed to raise objections to
the prosecution's case, despite specific instructions from the author
to this effect. Mr. Campbell was also unable to instruct his
representative for the appeal. In addition, the Committee found a
violation of Mr. Campbell's right to life, since the final sentence
of death had been imposed in violation of his right to a fair trial.
1. Rights relating to the bringing of charges
94. L.K. v. the Netherlands (comm. No. 4/1991) involved de facto housing discrimination by members of the neighbourhood where a foreign-born man wished to reside. The Committee on the Elimination of Racial Discrimination, in its opinion of 16 March 1993, found that the mere existence of a law making discrimination a criminal act was insufficient and thus decided that the State's obligation to treat instances of racial discrimination with particular attention was missing. The police and judicial proceedings in the case did not afford the applicant effective protection and remedies within the meaning of article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee ordered the Netherlands to compensate the author and report back to the Committee on measures taken to remedy the situation.
C. Presumption of innocence
95. Articles 1, 2, 4 (1), 5 (2), 7 (1), 7 (2), 7 (3), 25 (1), and 25 (2) of the American Convention on Human Rights were cited as being violated in Gangaram-Panday v. Suriname (case No. 10.274), in which the author complained that his brother, Mr. Asok Gangaram-Panday, was detained by the Military Police when he arrived at Zanderij Airport in Paramaribo. The Military Police at Fort Zeeland, where Mr. Gangaram-Panday was later detained, subsequently reported that he hanged himself. The Inter-American Court, in its decision of 4 December 1991, rejected the preliminary objections interposed by the Government of Suriname of: (1) abuse of the rights conferred by the Convention; (2) non-exhaustion of domestic remedies; and (3) non-compliance of the provisions contained in articles 47 to 51 of the Convention. The Court decided to proceed with consideration of the case, postponing its decision on costs until such time as it renders judgement on the merits.
D. Right to humane treatment during detention
96. In the cases of Randolph Barrett v. Jamaica (comm. No.
270/1988) and Clyde Sutcliffe v. Jamaica (comm. No. 271/1988), both
of whom were sentenced to death for murder, the Human Rights
Committee had to determine whether prolonged judicial proceedings and
concomitant prolonged periods of detention on death row may in
themselves amount to cruel, inhuman and degrading treatment within
the meaning of article 7 of the International Covenant on Civil and
Political Rights. The Committee held, in views adopted 30 March 1992,
that prolonged judicial proceedings did not constitute that kind of
treatment per se, even if it might be a source of mental strain and
tension for detained persons. This holding also applied to appeal and
review proceedings in cases involving capital punishment, although an
assessment of the particular circumstances of each case would be
necessary.
97. The Committee further found that even prolonged periods of
detention on death row under a severe custodial regime could not
generally constitute cruel, inhuman or degrading treatment if the
convicted person was merely availing himself of appellate remedies.
The Committee found, however, that the beatings and injuries Mr.
Sutcliffe suffered on death row violated his rights under the
Covenant and recommended that he be awarded an appropriate remedy,
including adequate compensation. No finding of violations of the
Covenant was made in respect of Mr. Barrett.
98. In the murder case of Willard Collins v. Jamaica (comm. No.
240/1987), the author of the communication was a Jamaican citizen
under sentence of death who alleged various irregularities in the
course of the judicial proceedings against him, such as inadequate
legal representation, unavailability of witnesses, and undue
prolonging of the judicial procedures - all in violation of the
rights found in the International Covenant on Civil and Political
Rights. Mr. Collins also alleged that the judge presiding over his
retrial should have been disqualified, in light of remarks
prejudicial to the author's case he was said to have made at an
earlier stage in the proceedings. Mr. Collins further alleged that
there had been unlawful attempts at influencing the verdict of the
jury. The Human Rights Committee, although not entertaining the
allegations of judicial bias and attempts at jury tampering, none the
less found violations of the author's right not to be subjected to
cruel, inhuman and degrading treatment (arts. 6 and 10 (1)), on
account of ill-treatment he had been subjected to on several
occasions during his detention on death row. The Committee, in views
adopted 1 November 1991, urged the State party to take measures to
secure Mr. Collins' physical integrity, and to grant him an
appropriate remedy for the violations suffered.
99. Articles 1, 2, 4 (1), 5 (2), 7 (1), 7 (2), 7 (3), 25 (1), and 25
(2) of the American Convention on Human Rights provide the rights of
obligation to respect rights, domestic legal effects, life, humane
treatment, personal liberty, and judicial protection. The
Inter-American Court considered the case of Aloeboetoe et al. v.
Suriname (case No. 10.150), wherein the author complained that more
than 20 unarmed males were detained by government soldiers under
suspicion that they were members of the Jungle Commando. Some of the
detained men were seriously wounded with bayonets and knives and all
were forced to lie face-down on the ground while the soldiers stepped
on their backs and urinated on them. Seven detainees were blindfolded
and dragged to a military vehicle and driven to an area where they
were later killed. The Court, in its decision of 4 December 1991,
accepted Suriname's acknowledgment of responsibility and postponed
judgement on reparations and costs.
E. Right to release pending trial
100. W. v. Switzerland (decision of 26 January 1993) involved the
detention of a suspect whom authorities presumed would take flight at
the first opportunity, as he had previously fled after an earlier
arrest and release. The European Court of Human Rights determined
that the dangers of absconding and collusion by the accused justified
a period of pre-trial detention of over four years. The period did
not exceed the "reasonable time" required under article 5 (3) of the
European Convention. The dissent argued that there is a presumption
of innocence and that protection of personal liberty is the rule,
while detention should be the exception.
101. In Letellier v. France (decision of 26 June 1991), the European
Court of Human Rights held that there had been a violation of article
5 (3) of the European Convention due to the excessive length of the
applicant's pre-trial detention based on suspicion of her being an
accessory to her husband's murder. The Court stressed the necessity
of judicial authorities to establish with diligence the grounds for
refusal to release a detained suspect. These grounds include the risk
of pressure being brought to bear on witnesses, the danger of
absconding, the inadequacy of court supervision, and the preservation
of public order.
F. Methods of conducting a trial
1. Right to a trial without undue delay
102. Article 9 (3) of the International Covenant on Civil and Political Rights provides, inter alia, that anyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time or to release. Article 14 (3) (c), entitles everyone faced with a criminal charge to be tried without delay. In Fillastre v. Bolivia (comm. No. 336/1988), Mr. Andre Fillastre and Mr. Pierre Bizouarn, French citizens, were arrested on 3 September 1987 by the Bolivian police. On 12 September 1987, criminal proceedings were initiated against them on several charges, including the attempted kidnapping of a minor on behalf of the mother. When the Human Rights Committee considered the case, Mr. Fillastre and Mr. Bizouarn were still in detention, four years after their arrest, awaiting the decision of the court at first instance. Bolivia informed the Committee that if found guilty, the two detainees would face a sentence of up to five years' imprisonment. It pointed out that the delays in the judicial proceedings were due to the written procedure commonly followed in Bolivian criminal investigations and to budgetary problems facing the administration of justice. In finding a violation of the Covenant, the Committee, in its decision of 5 November 1991, considered that the information forwarded by Bolivia did not justify the unreasonable delay in arriving at a decision at first instance. The Committee requested Bolivia to release Mr. Fillastre and Mr. Bizouarn immediately.103. In Angelucci v. Italy (decision of 19 February 1991), the European Court of Human Rights decided unanimously that there had been a violation of article 6 (1) of the European Convention because the prosecution of a businessman involved in a police raid of suspected illegal business activities was discharged more than eight years after the raid. The Court stated that the applicant's case had not been examined within a "reasonable time" as required under the Convention. The Court pointed out that under its case law on the subject, the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case. The case was undoubtedly of some complexity owing to the number of accused. The Court, however, noted that there were very long periods of inactivity in the proceedings - at least as far as the applicant was concerned. Further, the accused did nothing to slow down the progress of the case. It followed that the Court could not regard as "reasonable" in the instant case a lapse of time of at least eight years and two months.
2. Right to be tried by an independent and impartial tribunal
104. In decision No. 40/1993 (Djibuti) (E/CN.4/1994/27 at 125),
the Working Group on Arbitrary Detention held that the fact that the
majority of judges at the trial consisted of government officials,
was contrary to the requirement in article 14 of the International
Covenant on Civil and Political Rights that the tribunal be
independent. The Working Group further found that the Security
Tribunal of the Republic of Djibouti's refusal to examine allegations
that the confession of 14 individuals had been extracted under
torture contravened internationally recognized standards relating to
the right to a fair hearing and that non-observance of those
provisions is such that it confers on the deprivation of freedom of
the accused an arbitrary manner. The Government of the Republic of
Djibouti failed to respond to the communication. The Working Group
found that the arbitrary detention of the 14 individuals was in
contravention of articles 5, 9 and 10 of the Universal Declaration of
Human Rights and articles 7, 9 and 14, paragraphs 1, 2, 3 (d) and
(e), of the International Covenant on Civil and Political Rights. The
Working Group requested that the Government of the Republic of
Djibouti take the necessary steps to remedy the situation, so as to
comply with the provisions and principles incorporated in the
Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
105. In Pfeifer and Plankl v. Austria (decision of 25 February 1992),
the correspondence between two detainees awaiting trial was read by
the judges involved in their case. The letter was read by the same
judges performing judicial and investigative functions. The European
Court of Human Rights considered the investigating judge's censorship
of a letter containing "jokes of an insulting nature against prison
officers" as a violation of the right to an impartial tribunal. The
Court decided that the right to have one's case heard by an impartial
tribunal is established by law in article 6 (1) of the European
Convention, and the right to respect for correspondence is
established by article 8 of the Convention.
G. Right to defend himself/herself
106. In F.C.B. v. Italy (decision of 28 August 1991), the European
Court held unanimously that the decision to try the applicant in his
absence had violated section 1 in conjunction with section 3 (c) of
article 6 of the European Convention. The accused was released from
custody, then tried in absentia on appeal while subsequently in
custody for other reasons in the Netherlands. He did not expressly
(or at least in an unequivocal manner) waive his right to appear and
defend himself. The Court reasoned that an applicant's indirect
knowledge of his trial date does not meet the strict requirements for
the State's diligence in following the provisions of article 6,
sections 1 and 3, of the Convention.
H. Counsel
1. Right to free, effective legal representation
107. In decision No. 2/1992 (Lao People's Democratic Republic)
(E/CN.4/1993/24 at 29), the Working Group on Arbitrary Detention held
that detention of two Lao nationals in complete isolation with no
charge, trial or access to a lawyer and with no ability to challenge
the lawfulness of their detention, and the failure to provide the
medical care their state of health required was arbitrary. The
official media announced that the two individuals were to be
questioned and tried under article 51 of the Criminal Code which
prohibits treason, yet the Lao People's Democratic Republic failed to
respond to the Working Group's communication. Accordingly, the
Working Group found that the individuals' detention was in
contravention of articles 9, 10, 11 and 19 of the Universal
Declaration of Human Rights and articles 9, 14 and 19 of the
International Covenant on Civil and Political Rights. The Working
Group requested that the Government of the Lao People's Democratic
Republic take the necessary steps to remedy the situation, so as to
comply with the provisions and principles incorporated in the
Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
108. In Delroy Quelch v. Jamaica (comm. No. 292/1988), the Human
Rights Committee noted with concern that the State party in its
submission confined itself to issues of admissibility (Committee
views adopted on 23 October 1992). Its failure to investigate in good
faith all the allegations made against it had rendered the
Committee's examination of the communication unduly difficult. With
regard to the author's claim that he was not represented by counsel
during the appeal proceedings, the written judgement of the Court of
Appeal showed that his counsel was present during the hearing. The
Committee was therefore of the view that the facts before it did not
disclose a violation of article 14 of the International Covenant on
Civil and Political Rights.
2. Right to communicate with counsel and have adequate time and facilities for the preparation of the defence
109. In decision No. 50/1993 (Peru) (E/CN.4/1994/27 at 144), the
Working Group on Arbitrary Detention held that the incommunicado
detention, torture, failure to specify reasons for their detention,
or the inability to communicate with counsel of 13 Peruvian citizens
accused of plotting to assassinate the President of the Republic of
Peru constituted violations of the rules of due process of law and
that such contraventions made the deprivation of freedom during the
first 15 days arbitrary. The Working Group noted, however, that
planning armed conspiracy cannot be regarded as legitimate exercise
of the right to freedom of association, expression or opinion or
participation in political life, and that it constitutes an offence
in all legislation and political systems. Accordingly, the detention
beyond the 15 day incommunicado period cannot be considered
arbitrary. The Working Group therefore transmitted the information on
the presumed ill-treatment to the Special Rapporteur of the
Commission on Human Rights on the question of torture.
110. In Dieter Wolf v. Panama (comm. No. 289/1988), Mr. Wolf, a
German citizen who had been detained and convicted on charges of
cheque fraud in Panama, claimed that he was not heard personally in
any of the judicial proceedings against him; that he was never served
a properly motivated indictment and was not brought promptly before a
judge; that the proceedings against him were unreasonably prolonged;
that he was at all times denied access to legal counsel; and that he
was forced to perform hard labour in an island penitentiary. The
Human Rights Committee, in views adopted on 26 March 1992, found
violations of the articles in the International Covenant on Civil and
Political Rights relating to: the right to be brought promptly before
a judge or other officer authorized by law to exercise judicial
power; the right to be treated in detention with respect for the
inherent dignity of the human person; the right of unconvicted
prisoners to be segregated from convicted prisoners; the right to a
fair trial by an independent and impartial tribunal; the right to
adequate time and facilities for the preparation of the defence; and
the right to legal representation. The Committee recommended that Mr.
Wolf be provided a remedy.
111. In Campbell v. UK (decision of 25 March 1992), the European
Court found that the control of a prisoner's correspondence with his
solicitor and with the European Commission of Human Rights was
incompatible with article 8 of the European Convention. Letters to
and from a lawyer are privileged under article 8. Prison authorities,
however, may open a letter from a lawyer to a prisoner where they
have reasonable cause to believe that it contains an illicit
enclosure, as long as suitable guarantees preventing the reading of a
letter are provided, and that the reading of correspondence should
only be permitted in exceptional circumstances. The Court stated that
there is no pressing social need for the opening and reading of an
applicant's correspondence with his solicitor. This kind of
interference, the Court continued, is not necessary in a democratic
society since the risk of abuse is so negligible that it must be
discounted.
112. In S. v. Switzerland (decision of 28 November 1991), the
European Court of Human Rights held unanimously that there had been a
violation of article 6 (3) (c) of the European Convention because the
applicant, while in pre-trial detention, had not been allowed to
communicate freely with his lawyer for over seven months. A
concurring opinion emphasized that the freedom and inviolability of
communications between a person charged with a criminal offence and
his counsel are among the fundamental requirements of a fair trial,
inherent in the right to legal assistance, essential for effective
exercise of that right, and that there can be no exception to this
principle. The dissent stressed that while in principle a defendant
is allowed to communicate freely with his defence counsel, there are
exceptional situations where surveillance of the defendant's
communications with his counsel may be necessary and hence compatible
with the principle. This exception is evidenced, according to the
dissent, by the not so infrequent cases of serious collusion between
lawyers and persons in custody which have occurred in several
countries in recent years.
I. Right to free assistance of an interpreter
J. Rights during trial
113. In decision No. 36/1993 (Indonesia) (E/CN.4/1994/27 at 116), the
Working Group on Arbitrary Detention held that the Indonesian
Government's reliance on tainted testimony vitiates the trial and
renders the continued detention of Fernando de Araujo, a member of
the National Resistance of East Timorese Students, arbitrary. Mr. de
Araujo's conviction, based on the testimony of witnesses who could
not be cross-examined on account of their absence and whose
statements were relied on, despite the fact that they were made in
the presence of police and other investigatory authorities, suggests
that the testimony itself is tainted. The Working Group also found
that the fact that Mr. de Araujo was subjected to beating and
solitary confinement further points to the arbitrary nature of his
detention and found that Mr. de Araujo's detention and ultimate
conviction is in violation of articles 5, 9, 19, and 20 of the
Universal Declaration of Human Rights and articles 7, 9, 10, 14, 19,
and 21 of the International Covenant on Civil and Political Rights.
The Indonesian Government failed to respond to the communication and
the Working Group requested that the Government take the necessary
steps to remedy the situation, so as to comply with the provisions
and principles incorporated in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political
Rights.
114. N.A.J. v. Jamaica (comm. No. 351/1989) concerned a Jamaican
citizen under sentence of death for murder. The author claimed that
his trial was unfair and that a number of irregularities had occurred
in its conduct. The Human Rights Committee, in its decision on
admissibility of 6 April 1992, decided that the communication was
inadmissible under article 3 of the Optional Protocol to the
International Covenant on Civil and Political Rights. It found that
the allegations did not come within the scope of the Covenant under
the right to a fair trial, as they related primarily to the judge's
instructions to the jury and the evaluation of evidence, which are
beyond the Committee's competence unless there is manifest partiality
or arbitrariness on the part of the judge.
115. Article 14 (3) (e) of the Civil and Political Covenant provides
that everyone charged with a crime has the right to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him. The Human Rights Committee
considered the case of Delroy Prince v. Jamaica (comm. No. 269/1987),
wherein the author complained that witnesses on his behalf had been
subjected to intimidation and therefore had failed to testify. He had
not raised this matter, however, during trial. In the absence of
further evidence, the Committee, in views adopted on 30 March 1992,
found no violation of this article. The Committee also found that Mr.
Prince's claim that he was severely beaten upon his arrest was not
substantiated; this allegation had been raised during the trial and
rejected by the jury.
116. In Carlton Linton v. Jamaica (comm. No. 255/1987), the author
claimed that he did not receive a fair trial because the judge
improperly summarized the legal requirements of common design in
relation to murder and manslaughter. The Human Rights Committee, in
views adopted on 22 October 1992, noted with regret the absence of
cooperation from the State party in not making any submissions
concerning the substance of the matter under consideration. In
respect of the claim of unfair trial, the Committee concluded that
there had been no violation of article 14 of the International
Covenant on Civil and Political Rights, as the material before it did
not reveal that the jury instructions had been clearly arbitrary or
amounted to a denial of justice, or that the judge had violated his
obligation of independence and impartiality. In the absence of
refutation by the State party, however, the physical abuse inflicted
on the author while on death row, the mock execution set up by the
prison warders, and the denial of adequate medical care after an
aborted escape attempt constituted cruel and inhuman treatment under
articles 7 and 10 of the Covenant. The Committee urged the State
party to take effective steps to investigate the treatment to which
Mr. Linton was subjected, to prosecute any persons responsible for
his ill-treatment, and to grant him compensation.
117. In Denroy Gordon v. Jamaica (comm. No. 237/1987), the author
claimed to be innocent of the verdict of murder and alleged that
because the jurors were sympathetic to the deceased and his
relatives, they did not base their decision on the facts of the case.
The Human Rights Committee, in views adopted on 5 November 1992,
could not conclude that the author's lawyers had been unable to
prepare properly the case for the defence, found that the
International Covenant on Civil and Political Rights does not provide
an unlimited right to obtain the attendance of any witness requested
by the accused or his counsel, and held that it would have been
incumbent upon the author's counsel to raise on appeal the question
of whether a verdict of manslaughter should have been left open to
the jury. The facts before the Committee therefore disclosed no
violation of any of the articles of the Covenant.
118. In S. v. UK (application No. 16757/90), the applicant complained
that he did not receive a fair trial since he was unable to hear the
witnesses giving evidence against him as a result of a glass screen
in front of the dock. He invoked article 6 (1) of the European
Convention, which entitles all to a "[f]air and public hearing . . ..
" The Government submitted that the applicant's legal representatives
were able to follow the proceedings and that the inability of the
applicant to follow the proceedings was not brought to the attention
of the trial court. The Government contended that it cannot be held
responsible for the failure of the accused's legal representatives to
raise the matter. The European Commission on Human Rights, in its
decision of 10 February 1992, considered that the application raised
serious issues of law and fact under the Convention, the
determination of which should depend on an examination of the merits.
The application was therefore declared admissible.
119. In Isgro v. Italy (decision of 19 February 1991), the European
Court held unanimously that the applicant's criminal conviction,
which had been based in part on the statements made by a witness
before an investigating judge and read at the trial, had not
infringed paragraph 3 (d) of article 6 of the European Convention,
taken in conjunction with paragraph 1 thereof. The applicant's
conviction was based essentially on records of statements made by a
witness in the absence of the applicant and his lawyer during the
investigative stage of the proceedings. Later, during trial, the
witness was summoned to appear, but proved to be untraceable. The
applicant complained that neither he nor his lawyer was able to
examine the witness against him in order to establish a fair hearing
by an impartial tribunal. The Court found that the evidence produced
did not disclose any negligence on the part of the national
authorities in seeking to secure the witness's appearance in court.
The witness was not an anonymous witness - he was questioned by the
investigating judge, who organized a confrontation between him and
the applicant, and with a co-accused. The Court further found that
the District Court and Court of Appeal did not base their decisions
solely on the witness's statements, but also on other testimony and
on the applicant's observations. Additionally, the applicant's lawyer
had the possibility to challenge, during trial, the accuracy of the
witness's allegations and the latter's credibility.
K. Right not to be held guilty of any criminal offence for an act or
omission not constituting a criminal offence
120. In decision No. 18/1993 (Israel) (E/CN.4/1994/27 at 75), the
Working Group on Arbitrary Detention held that the detention of Walid
Zakut, a member of the Democratic Front for the Liberation of
Palestine (DFLP), simply on the fact that he is a member of an
organization provides no legal basis for the detention of a person.
Even though the DFLP advocates violence and carries out acts of
violence, the Working Group found that for such detention to be
upheld as a preventive measure it must be shown that the person
concerned has committed, or is in the process of committing acts in
furtherance of the objectives of the organization of which he is a
member. The Israeli Government failed to address the communication.
Accordingly, the Working Group found that Walid Zakut's detention was
in contravention of article 9 of the Universal Declaration of Human
Rights and article 9 of the International Covenant on Civil and
Political Rights. The Working Group requested that the Government of
Israel take the necessary steps to remedy the situation, so as to
comply with the provisions and principles incorporated in the
Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
L. Right to an appeal
121. In Leroy Simmonds v. Jamaica (comm. No. 338/1988), a prisoner,
who had been sentenced to death, claimed that he was not informed
about either the date or outcome of his appeal from a sentence of
death until two days after it had been dismissed. The Human Rights
Committee, in views adopted on 23 October 1992, found a violation of
article 14 of the International Covenant on Civil and Political
Rights because the delay in notification of the hearing date
jeopardized his opportunities to prepare his appeal and to consult
with his court-appointed lawyer. It considered that the imposition of
a sentence of death upon the conclusion of a trial in which the
provisions of the International Covenant on Civil and Political
Rights had not been respected, if no further appeal against the
sentence was available, would be a violation of article 6 concerning
the right to life. The Committee was of the view that Mr. Simmonds
was entitled to a remedy and requested the State party to provide
information within 90 days on any relevant measures taken in respect
of the Committee's wishes.
122. In G.J. v. Trinidad and Tobago (comm. No. 331/1988), a prisoner,
who had been sentenced to death for murder, complained of
irregularities during the conduct of his trial in the court of first
instance. The Court of Appeal, although acknowledging that there had
been irregularities during the trial at first instance, concluded
that these defects had not affected the outcome of the trial and
dismissed the prisoner's appeal. The Human Rights Committee (decision
on admissibility of 5 November 1991), after examining the case,
recalled that it is generally for the appellate courts of States
parties to the International Covenant on Civil and Political Rights,
and not for the Committee, to evaluate the facts and evidence and to
review the interpretation of domestic law. Similarly, it is for
appellate courts and not for the Committee to review the judge's
attitude during the trial, unless it is apparent that the judge
manifestly violated his obligations of impartiality.
123. In Alrick Thomas v. Jamaica (comm. No. 272/1988), Mr. Thomas,
who had been sentenced to death for murder by the court of first
instance, was informed about the date of the appeal hearing only
after it had taken place. He was unable, therefore, to communicate
with his legal representative, who withdrew the original ground of
appeal without consulting his client. The Human Rights Committee, in
views adopted on 31 March 1992, taking into account the combined
effect of these circumstances, found that the appeal proceedings in
this case did not meet the requirements of a fair trial under the
International Covenant on Civil and Political Rights and requested
Jamaica to offer Mr. Thomas an appropriate remedy.
124. In the murder cases of Raphael Henry v. Jamaica (comm. No.
230/1987), and Aston Little v. Jamaica (comm. No. 283/1988), the
authors of the communications were Jamaican citizens under sentence
of death who alleged various irregularities in the course of the
judicial proceedings against them, such as inadequate legal
representation, unavailability of witnesses, and undue prolonging of
the judicial procedures - all in violation of the rights found in the
International Covenant on Civil and Political Rights. In the former
case the Human Rights Committee, in views adopted on 1 November 1991,
due to the absence of a written judgement from the Court of Appeal of
Jamaica, found a violation of the author's right to have his sentence
reviewed by a higher tribunal as provided in article 14 (5) of the
International Covenant on Civil and Political Rights. It found a
similar violation, in views adopted on 1 November 1991, in the case
of Mr. Little, who had also been unable to obtain a reasoned
judgement from the Court of Appeal for many years. In Mr. Little's
case, the Committee further found violations of the author's right to
have sufficient time for the preparation of the defence (art. 14 (3)
(b)), and because the witnesses on his behalf were not heard under
the same conditions as the witnesses against him (art. 14 (3) (e)).
In both cases, the Committee also found a violation of the author's
right to life (art. 6), since the final sentence of death had been
imposed in violation of their right to a fair trial.
M. Right not to be tried again for the same offence
125. In Juan Terán Jijón v. Ecuador (comm. No.
277/1988), Mr. Terán an Ecuadorian citizen who had been
arrested in March 1986 in connection with an armed robbery, claimed
to have been kept incommunicado after his arrest, to have suffered
ill-treatment, and to have been forced to sign blank sheets of paper.
He further alleged that he was not promptly brought before a judge
and that after his release in March 1987, he was re-arrested and
re-indicted for the same offence. The Human Rights Committee, in
views adopted on 26 March 1992, considered the evidence sufficiently
compelling to find a violation of the articles 7 and 10 (1) of the
International Covenant on Civil and Political Rights. Regarding the
re-arrest, re-indictment, and incommunicado detention, the Committee
found further violations of the Covenant and recommended that the
author be given an appropriate remedy, including compensation. It
also called upon Ecuador to investigate the use to which papers
signed by Mr. Terán under duress had been put, and to see that
these documents were either returned to the author or destroyed. A
Committee member appended an individual opinion on this point,
finding a violation of article 14 (3)(g), which provides that no one
may be compelled to testify against himself or confess guilt.
N. Juvenile procedures
O. Concluding remarks
126. The final publication of this study will update this chapter
with the latest available interpretations on the right to a fair
trial at the time the publication is compiled. Moreover, the final
publication will categorize the interpretations by subject matter as
indicated in the proposed outline contained in the recommendations
section of chapter VII. This ordering will better facilitate the use
of the interpretations as a reference tool for those interested in
the substantive interpretations of the right to a fair trial and a
remedy.
127. Under the International Covenant on Civil and Political
Rights, the right to a fair trial and a remedy may at present be the
subject of derogation and therefore the right to a fair trial and a
remedy may be suspended in certain circumstances, such as times of
public emergency.
128. Article 4 of the Civil and Political Covenant provides that in
situations threatening the life of the nation, a Government may issue
a formal declaration suspending most human rights as long as (1) the
exigencies of the situation strictly require such a suspension, (2)
the suspension does not conflict with the nation's other
international obligations, and (3) the Government informs the United
Nations Secretary-General immediately. The only rights that are not
subject to suspension in this situation are those specified in
article 4 of the Civil and Political Covenant as protected from
derogation. These rights include freedom from discrimination based on
race, colour, sex, language, religion, or social origin. The Civil
and Political Covenant also does not permit any derogation from the
rights to be free from arbitrary killing; torture or other cruel,
inhuman or degrading treatment or punishment; slavery; imprisonment
for debt; retroactive penalties; or failure to recognize a person
before the law. It should be noted that the right to a fair trial and
a remedy is not included in this provision.
129. Accordingly, in the 128 countries that have ratified the
International Covenant on Civil and Political Rights as of 11 May
1994, some of the most important human rights would be protected as
non-derogable rights. Such protection would encompass prohibitions
against torture, inhuman treatment, and extrajudicial executions.
Other rights, however, including the right to a fair trial and
freedom from arbitrary arrest and detention, can provide effective
safeguards of these non-derogable rights already included in article
4.
130. The Human Rights Committee has observed, "If States parties
decide in circumstances of a public emergency as contemplated by
article 4 to derogate from normal procedures required under article
14, they should ensure that such derogations do not exceed those
strictly required by the exigencies of the actual situation, and
respect the other conditions in paragraph 1 of article 14" (A/39/40,
p. 144, para. 4).
131. Probably at no other time will the right to a fair trial and a
remedy be as important as it is during a time of civil or
international conflict. Yet it is precisely at this time that the
right to a fair trial becomes vulnerable under article 4 of the
International Covenant on Civil and Political Rights.
132. The Convention against Torture does not permit derogation: "No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any other public
emergency, may be invoked as a justification of torture." (art. 2
(2)). Under this treaty the accused person possesses a non-derogable
right to be free from torture at all times during the criminal
process, including interrogation, detention, trial, sentencing, and
punishment. Accordingly, evidence obtained as a result of
torture can never be permitted to be introduced. Also, persons
accused of torture are guaranteed fair treatment at all stages of the
proceedings under article 7.
133. The African Charter does not contain a provision allowing States
to derogate from their obligations under the treaty in times of
public emergency. Hence, it appears that derogation would not be
permitted under the African Charter. Some commentators have suggested
that the African Charter's use of broadly-worded limitation clauses
in several provisions made it unnecessary for the African Charter to
include the concept of derogation. Article 7 of the African Charter
does not, however, contain any limitations:
"1. Every individual shall have the right to have his cause heard. This comprises:(a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
(b) The right to be presumed innocent until proved guilty by a competent court or tribunal;
(c) The right to defence, including the right to be defended by counsel of his choice;
(d) The right to be tried within a reasonable time by an impartial court or tribunal."2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender."
134. Similarly, article 26 of the African Charter, which
guarantees the independence of the Courts, does not allow for either
derogation or limitation in times of public emergency.
135. Article 27 of the American Convention authorizes the suspension
of guarantees in "times of war, public danger, or other emergency
that threatens the independence or security of the State Party ...".
Article 27, however, does not authorize the suspension of several
significant rights including the "Right to Life" (art. 4), "Right to
Humane Treatment" (art. 5), "Freedom from Ex Post Facto Laws" (art.
9), "or of the judicial guarantees essential for the protection of
such rights". Although article 27 does not make article 8 (the right
to a fair trial) a non-derogable right, article 27 does extend
non-derogable status to "judicial guarantees essential for the
protection of such rights" as the right to life, humane treatment,
and the other rights identified in article 27. Hence, a certain
aspect of the right to a fair trial has been made non-derogable by
the American Convention.
136. It is unclear what are the required "judicial guarantees"
protected by article 27 as non-derogable, but presumably they include
fair trial guarantees included in the American Convention (art. 8) -
most of which relate to criminal trials:
(a) The right to a hearing "within a reasonable time, by a competent, independent and impartial tribunal" (art. 8 (1));
(b) The "right to be presumed innocent" (8 (2));
(c) The right to assistance by a translator or interpreter (8 (2) (a));
(d) "Prior notification in detail to the accused of the charges against him" (8 (2) (b));
(e) "Adequate time and means for the preparation of his defence" (8 (2) (c));
(f) The right to defend himself or assistance of "counsel of his own choosing, and to communicate freely and privately with his counsel" (8 (2) (d));
(g) The inalienable right to be assisted by counsel provided by the State" (8(2)(e));
(h) The right to examine and obtain appearance of witnesses in court (8 (2) (f));
(i) The "right not to be compelled to be a witness against himself or to plead guilty" (8 (2) (g));
(j) The "right to appeal the judgment to a higher court" (8 (2) (h));
(k) Confession of guilt by the accused must be "made without coercion of any kind" (8 (3));
(l) The right not to be subjected to double jeopardy (8 (4)); and
(m) A public trial, except to protect the interests of justice 8 (5)).
137. It is also important to note that the Geneva Conventions and
the two Additional Protocols assure the right to a fair trial even
during periods of armed conflict. For example, article 129 of the
(Third) Geneva Convention relative to the treatment of Prisoners of
War states, "In all circumstances, the accused persons shall benefit
by safeguards of proper trial and defence, which shall not be less
favourable than those provided by article 105." Article 105 includes
the right to counsel, the calling of witnesses, the services of an
interpreter when needed, the advising of these rights in due time
before trial, the right to have competent counsel appointed for the
accused, necessary time for preparation of the defence, right to
consult with counsel, the right to be notified of the particulars of
charges, and the right to have observers from the protecting
Government present, unless there are exceptional circumstances.
Article 130 of the Third Geneva Convention makes "depriving a
prisoner of war of the rights of fair and regular trial" a "grave
breach". Under these provisions the right to a fair trial appears to
be non-derogable, at least in times of international armed
conflict.
138. As to non-international armed conflicts, common article 3 to the
four Geneva Conventions prohibits a party to such a conflict from
"the passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples." The judicial guarantees are not
specified but presumably reflect the safeguards identified by article
105 of the Third Geneva Convention, article 6 of Additional Protocol
II, and evolving standards relating to the right to a fair trial and
a remedy.
139. Article 6 of Additional Protocol II to the Geneva Conventions
sets forth a number of fair trial rights applicable to
non-international armed conflicts as defined in Protocol II:
(a) The right to be informed without delay of the particulars of the offence alleged and the right to "all necessary rights and means of defence";
(b) Individual penal responsibility;
(c) Punishment only on the basis of existing laws and the right to benefit from later laws which may reduce the penalty;
(d) Presumption of innocence;
(e) The accused's right to be present at trial;
(f) The right not to be compelled to testify or confess guilt;
(g) The right to be advised on conviction of rights and available remedies;
(h) The death penalty may not be imposed on persons who are under the age of 18 at the time of the offence; also pregnant women or mothers of young children may not be executed; and
(i) At the end of hostilities, the authorities shall grant the broadest possible amnesty.
140. Therefore, while the right to a fair trial has not been recognized as a non-derogable right in article 4 of the International Covenant on Civil and Political Rights, the African Charter, the American Convention, and the Geneva Conventions and Protocols indicate that aspects of the right to a fair trial have been accepted as non-derogable. Moreover, the broad framework of international standards related to fair trial which are not in the form of treaties, such as the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles on the Independence of the Judiciary, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the Basic Principles on the Role of Lawyers, and the Guidelines on the Role of Prosecutors, are intended to apply at all times. The right to a fair trial, and as the next chapter makes clear, the ability to challenge the legality of one's detention, especially in times of public emergency, are essential to guaranteeing the right to a fair trial. For this very reason, it is essential that the draft third optional protocol to the International Covenant on Civil and Political Rights be adopted. This optional Protocol, if adopted, would make the provisions of the International Covenant on Civil and Political Rights guaranteeing a fair trial and a remedy non-derogable in all situations.
141. The right to an effective remedy is a fundamental aspect
necessary to ensure the right to a fair trial. If habeas corpus and
amparo are going to be effective remedies to protect other
non-derogable rights, not only should they be non-derogable under all
situations, but they should be in practice an efficacious means at
all times, including periods of emergency, to challenge the legality
of detention.
142. This view was expressed by members of the Sub-Commission during
the discussions of the previous reports. Pursuant to these
discussions and the request of the Sub-Commission contained in its
resolution 1991/15, the Commission on Human Rights in its resolution
1992/35 called upon all States which had not yet done so to establish
a procedure such as habeas corpus by which anyone who is deprived of
his or her liberty by arrest or detention shall be entitled to
institute proceedings before a court so that the court may decide
without delay on the lawfulness of his or her detention and order his
or her release if the detention is found to be unlawful. The
Commission also called upon all States to maintain the right to such
a procedure at all times and under all circumstances, including
during states of emergency. The Commission in its resolution 1994/32
reiterated its encouragement of States "to establish a procedure such
as habeas corpus or a similar procedure as a personal right not
subject to derogation, including during states of emergency".
143. Other human rights bodies have recommended that remedies such as
habeas corpus and amparo be made non-derogable. The Sub-Commission
Working Group on Detention, for example, in its August 1993 report
(E/CN.4/Sub.2/1993/22) discussed habeas corpus as a non-derogable
right and as one of the requirements for the right to a fair trial.
The members of the Working Group were of the opinion that the
guarantees provided by habeas corpus should be incorporated into
every country's national legislation as a non-derogable right. They
also shared the view that States should maintain the right to habeas
corpus at all times and under all circumstances, even in a state of
emergency. The Working Group on Arbitrary Detention made similar
observations in its 1994 report (E/CN.4/1994/27). Moreover, various
other human rights bodies identified in the 1992 progress report
(E/CN.4/Sub.2/1992/24/Add.3) also recognized the need for the
non-derogability of these procedures.
144. When considering the requirements of a fair trial, both in civil
and criminal cases, the court should apply those standards which are
the most protective of the rights of the individual. Principal among
the basic fair trial standards recognizing the right to a remedy are
article 8 of the Universal Declaration of Human Rights, articles 2
(3) (b), 9 (3) and 9 (4) of the International Covenant on Civil and
Political Rights, article 5 (4) of the European Convention, articles
7 (5) and 7 (6) of the American Convention on Human Rights, and
articles 6 and 7 of the African Charter on Human and Peoples'
Rights.
145. Article 8 of the Universal Declaration of Human Rights states,
"[e]veryone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted
him by the constitution or by law."
146. Article 2 (3) (b) of the International Covenant on Civil and
Political Rights provides that each State party undertakes "[t]o
ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided
for by the legal system of the State, and to develop the
possibilities of judicial remedy."
147. Article 9 (3) of the International Covenant on Civil and
Political Rights indicates that anyone "arrested or detained on a
criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release."
148. Article 9 (4) of the International Covenant on Civil and
Political Rights provides:
"Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
149. Articles 2 (3), 9 (3), and 9 (4) embody the essential
characteristics of amparo and habeas corpus even though the words "in
the nature of habeas corpus" from earlier drafts of the Covenant were
deleted to allow States the freedom to fashion remedies through their
own legal systems.
150. A provision similar to article 9 (4) of the International
Covenant on Civil and Political Rights may be found in European
Convention article 5 (4):
"Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release
ordered if the detention is not lawful."
151. The equivalents of amparo/habeas corpus are also found in the
American Convention on Human Rights. Article 7 (5) provides:
"Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial."
Article 7 (6):
"Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies."
152. Unique to the Inter-American system is the provision of
amparo, which incorporates the habeas corpus right in some cases.
Article 25 of the American Convention sets forth the procedural
institution of amparo, which is a simple, prompt remedy for
protecting all constitutional rights and laws recognized by the State
parties and by the Convention.
153. The Inter-American Court of Human Rights decided in 1987 that
habeas corpus should be non-derogable. Article 27 of the American
Convention on Human Rights permits a State party to derogate from its
obligations "in time of war, public danger, or other emergency that
threatens the security" of the State party, but only "to the extent
and for the period of time strictly required ... provided that such
measures are not inconsistent with its other obligations under
international law and do not involve discrimination ... ." Article 27
explicitly prohibits a State party from suspending 11 articles of the
Convention, as well as "the judicial guarantees essential for the
protection of such rights".
154. Two Advisory Opinions issued by the Inter-American Court of
Human Rights held that habeas corpus and amparo - the legal remedies
guaranteed in articles 7 (6) and 25 (1) - may not be suspended, even
in emergency situations, because they are among the "judicial
guarantees essential" to protect the rights whose suspension article
27 (2) prohibits. (Advisory Opinion of 9 May 1986, Inter-Am. C.H.R.,
13 OEA/Ser.L/III.15, doc. 13 (1986) and Advisory Opinion of 6 October
1987, Inter-Am. C.H.R., 13 OEA/Ser.L/V/III.19, doc. 13 (1988). In the
first opinion, the Court pointed out that habeas corpus performs a
vital role in ensuring that a person's life and physical integrity
are respected, in preventing his disappearance or the keeping of his
whereabouts secret, and in protecting against torture or other cruel,
inhuman, or degrading punishment or treatment. The Court buttressed
this conclusion by reference to bitter realities in recent decades,
particularly disappearances, torture, and murder committed or
tolerated by some Governments. Such experience has demonstrated that
the right to life and to humane treatment are threatened whenever the
right to habeas corpus is partially or wholly suspended.
155. In finding that habeas corpus is an essential judicial guarantee
of the non-derogable rights enumerated in article 27, and therefore
is itself non-derogable, the Court cited the special role that habeas
corpus plays in any system governed by the rule of law. The
"suspension of guarantees" under article 27 does not imply a
temporary suspension of the rule of law. Even in a state of
emergency, when guarantees are suspended, a Government does not
acquire absolute powers that go beyond the circumstances justifying
the state of emergency.
156. The Court also linked habeas corpus to the "effective exercise
of representative democracy" referred to in article 3 of the OAS
Charter. Any suspension of guarantees under article 27 lacks all
legitimacy whenever it is resorted to for the purpose of undermining
the democratic system. In the context of a democratic system, habeas
corpus is essential to protect the non-derogable rights and freedoms
listed in article 27 and therefore may not be suspended.
157. In its second Advisory Opinion, the Inter-American Court stated
that the "essential" judicial guarantees that are not subject to
derogation according to article 27 include habeas corpus, amparo, and
any other effective remedy before judges or competent tribunals which
is designed to guarantee respect for the rights and freedoms whose
suspension are not authorized by the American Convention. The Court
also stated that the judicial guarantees should be exercised within
the framework and the principles of due process of law expressed in
article 8. Furthermore, the Court emphasized that the judicial nature
of the guarantees implies "the active involvement of an independent
and impartial judicial body having the power to pass on the
lawfulness of measures adopted in a state of emergency."
158. An effective remedy in the nature of habeas corpus can also be
inferred from the African Charter on Human and Peoples' Rights,
article 6:
"Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained."
Similarly, article 7 (1) (a) can be read to provide relief against violations of fundamental rights, such as liberty:
"Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force."
159. Although habeas corpus and related procedures for challenging detention were not expressly made non-derogable under article 4 of the International Covenant on Civil and Political Rights, habeas corpus/amparo should now be seen as non-derogable. Without the ability to challenge the legality of one's detention, especially in times of public emergency, one will never be guaranteed of receiving a fair trial. For this very reason, it is essential that the draft third optional protocol to the International Covenant on Civil and Political Rights be adopted. This optional protocol, if adopted, would make the provisions of the International Covenant on Civil and Political Rights guaranteeing a fair trial and a remedy non-derogable in all situations. The relevant provisions to be made non-derogable are articles 2 (3), 9 (3), and 9 (4) of the International Covenant on Civil and Political Rights. Only upon adoption and ratification of the optional protocol will the right to a fair trial and a remedy be effectively protected and made available to everyone.
160. The Special Rapporteurs have reviewed the treaties and other
international instruments protecting the right to a fair trial and a
remedy. They have studied the interpretations of the right by the
Human Rights Committee, the African Commission on Human and Peoples'
Rights, the European Commission and Court of Human Rights, and the
Inter-American Commission on and Court of Human Rights. They have
also prepared a study of the right to habeas corpus, amparo, and
similar procedures.
161. The Special Rapporteurs have gathered materials about national
constitutions, laws, rules, and practices relating to the right to a
fair trial from more than 65 nations. In this regard, they have very
much appreciated the information they have received from Governments,
as well as intergovernmental organizations, non-governmental
organizations, bar associations, and individuals.
162. The Special Rapporteurs have found that several of the States
studied appear to operate dual systems of trial procedures. Some
States deviated from standard procedures in emergency situations
which threaten national security or when the offence is political in
nature. In some States, jurisdiction is lodged in special or military
courts, while in others regular criminal courts try the cases but
with remarkable deviation from the State's fair trial norms. While
these problems do not exist in many countries, the problems indicate
the need for greater international protection for the right to a fair
trial and a remedy - particularly during periods of public
emergency.
A. Publication and dissemination of the
study
163. The Special Rapporteurs view each preparatory, preliminary, and
progress report in this study as not only an update of the previous
report, but also as a separate chapter in the entire study, each
focusing on particular aspects of the right to a fair trial and a
remedy. In order to avoid unnecessary repetition of the earlier
chapters and to produce a relatively compact document for the
Sub-Commission, they have chosen not to assemble all the chapters
into their final report which would have been quite lengthy. Instead,
the Special Rapporteurs recommend that the entire study be compiled
in one document to be published under the United Nations Study
Series. In preparation for publication by the United Nations, the
Special Rapporteurs will undertake, without financial implications,
to compile the full study with all its chapters in light of the
comments received from Governments, Sub-Commission members and
others, as well as the most recent developments up to the date on
which the report is ready for publication. This comprehensive
document will provide an invaluable source of fair trial norms and
remedies, interpretations of those norms, areas where the right can
be strengthened, and recommendations to Governments, non-governmental
organizations and individual judges, lawyers and lay people of how to
implement and protect the basic human right to a fair trial and a
remedy. In order to best appreciate this study, it should be
published as one comprehensive document which would be translated and
be given broad dissemination. The published report should be
particularly useful to the International Law Commission in its
efforts to draft a statute for an International Criminal Tribunal and
to the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of Former Yugoslavia since 1991. It should
also be submitted to the Governments, intergovernmental
organizations, non-governmental organizations, bar associations and
individuals that provided information for this study. In addition,
the United Nations should encourage book reviews about the published
study on the right to a fair trial and a remedy, so as to disseminate
its contents. (Indeed, all United Nations studies should be the
subject of such book reviews.)
164. The outline for the final United Nations publication is as
follows:
Study on the Right to a Fair Trial and a Remedy: Current Recognition
and Measures Necessary for its Strengthening
I. Introduction
A. Authorization of the study
B. Need for the study
C. How the study was preparedII. Treaties and Other Standards on the Right to a Fair Trial and a Remedy
A. Introduction
B. United Nations-based standards1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political Rights(a) General comments
(b) Interpretations by the Human Rights Committee
(c) Comments on States parties' reports
1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
2. Convention on the Elimination of All Forms of Racial Discrimination(a) Decisions of CERD
1. Other United Nations standards
(a) Basic Principles on the Independence of the Judiciary
(b) Guidelines on the Role of Prosecutors
(c)Basic Principles on the Role of Lawyers
(d) Code of Conduct for Law Enforcement Officials
(e) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
(f)Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
(g) Standard Minimum Rules for the Treatment of Prisoners
(h) Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(i) Safeguards guaranteeing protection of the rights of those facing the death penalty
(j) Declaration on the Protection of All Persons from Enforced Disappearance
(k) United Nations Rules for the Protection of Juveniles Deprived of their Liberty
(l)United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")
(m) United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)
(n) United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)
(o)Convention and Protocol relating to the Status of RefugeesC. African Charter on Human and Peoples' Rights
1. Declaration of Fair Trial
D. [European] Convention for the Protection of Human Rights and Fundamental Freedoms
1. Interpretations of the Commission of Human Rights
2. Interpretations of the European Court of Human Rights(a) Civil rights and obligations
(b) Criminal chargesE. Inter-American Standards
1. Inter-American Convention on Human Rights
2. American Declaration on the Rights and Duties of Man
3. Interpretations by the Inter-American Court of Human Rights
4. Interpretations by the Inter-American Commission on Human RightsF. Humanitarian law standards
G.International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991
H.International Law Commission Draft Statute for an International Criminal Tribunal
I.Nürnburg and Tokyo Tribunals
J. International Labour Organisation standards and interpretations
K. Standards under the Conference on Security and Cooperation in Europe (CSCE)
L. Other standards
M. General observationsIII. Standards in All Adjudicative Proceedings
A. Introduction
B. Notice
C. Fair hearing
D. Public hearing
E. Independent and impartial tribunal
F. Methods of conducting a trial
G. Approaches to the submission and evaluation of evidence
H. Interpreter
I. Counsel
J. Adequate time and facilities for the defence
K. Witnesses
L. Appeal
M. RemedyIV. Further Standards in Criminal Cases
A. Introduction
B. Notice1. Right to be informed promptly of charges
2. Rights related to the bringing of chargesC. Presumption of innocence
D. Right to humane treatment during detention
E. Right to release pending trial
F. Methods of conducting a trial1. Right to a trial without undue delay
2. Right to be tried by an independent and impartial tribunalG. Right to defend himself/herself
H. Counsel1. Right to free, effective legal representation
2. Right to communicate with counsel and have adequate time and facilities for the preparation of the defenceI. Right to free assistance of an interpreter
J. Rights during trial
K. Right not to be held guilty of any criminal offence for an act or omission not constituting a criminal offence
L. Right to an appeal
M. Right not to be tried again for the same offence
N. Juvenile proceduresV. Right to a Remedy; Amparo and Habeas Corpus
A. Introduction
B. Amparo
C. Habeas corpusVI. Right to a Fair Trial and a Remedy as a Non-Derogable Right
VII. Recommendations: Strengthening the Right to a Fair Trial and a Remedy
Appendices:
A. Draft third optional protocol to the International Covenant on
Civil and Political Rights, aiming at guaranteeing under all
circumstances the right to a fair trial and a remedy
B. Compilation of international instruments and documents relating to
the right to a fair trial and a remedy
C. Body of principles
D. Methodology of study
E. Questionnaire
F. Bibliography
B. Draft third optional protocol
165. In order to provide greater protection to the right to a fair
trial and a remedy during periods of public emergency, the Special
Rapporteurs recommend the development of a third optional protocol to
the International Covenant on Civil and Political Rights, aiming at
guaranteeing under all circumstances the right to a fair trial and a
remedy. The Special Rapporteurs have prepared a revised draft of such
a third optional protocol, which is contained in annex I to this
final report. As discussed in paragraph 29 above, there is no need to
precede the draft third optional protocol with a declaration.
Although it is customary to precede a convention with a declaration,
it is not necessary to precede a protocol with a declaration. None
the less, the Special Rapporteurs believe that the Sub-Commission
should consider drafting a separate declaration on the right to
habeas corpus, amparo, and similar procedures. Such a declaration
could amplify and further define the international meaning of the
right to habeas corpus, amparo, and similar procedures. The drafting
of that declaration could proceed in the Sub-Commission at the same
time that the already drafted third optional protocol on the right to
a fair trial and a remedy is being considered by the Commission.
166. The draft third optional protocol makes non-derogable in periods
of public emergency both the right to a fair trial and the right to a
remedy. The Special Rapporteurs recommend that the right to a fair
trial and the right to a remedy be included within the third optional
protocol, because these two rights are very much related. During the
past several years, the Commission on Human Rights and the
Sub-Commission have reiterated their view that the right to habeas
corpus or similar procedures should be made non-derogable and thus
should be applicable even during periods of public emergency. The
International Covenant on Civil and Political Rights does not
specifically guarantee the right to habeas corpus or amparo, because
those precise procedures are not available in some countries. None
the less, the Covenant in articles 2 (3), 9 (3) and 9 (4) provide the
essential remedy for violations of human rights available through
habeas corpus, amparo, or similar procedures. Accordingly, the
Special Rapporteurs recommend that the draft third optional protocol
make non-derogable not only the right to a fair trial guaranteed by
article 14 of the Civil and Political Covenant, but also articles 2
(3), 9 (3) and 9 (4).
167. The Special Rapporteurs recommend that this final report,
including particularly the third optional protocol in annex I, be
sent to all Governments and non-governmental organizations for their
comments, so that their comments can be considered by the Commission.
The previous draft was sent to Governments and non-governmental
organizations in 1993, and the optional protocol was revised in the
light of the comments received. It would be useful to send the
revised draft for further comments. Also, the draft should be
submitted for technical review before the drafting process begins in
the Commission on Human Rights.
168. Pursuant to its decision 1994/107, the Commission expects to
consider the Special Rapporteurs' recommendations on the third
optional protocol at its fifty-first session in 1995. The Special
Rapporteurs recommend that the Commission establish an open-ended
working group to complete the drafting of the third optional
protocol. There exist already, however, a number of open-ended
working groups established by the Commission including the working
group preparing the draft declaration on the right and responsibility
of individuals, groups and organs of society to promote and protect
universally recognized human rights and fundamental freedoms (also
known as the declaration on human rights defenders), the working
group drafting the optional protocol to the Convention against
Torture, the two working groups drafting protocols to the Convention
on the Rights of the Child, and the inter-sessional working group on
the organization of the work of the Commission session. In addition,
it is expected that the Commission at its fifty-first session will
want to establish a new working group to draft a declaration on
indigenous rights. Further, the Commission may be asked to consider
draft principles on human rights and a healthy environment.
Consequently, there exists a real danger of an administrative
overload for both the United Nations and the Governments which need
to participate in these groups. The Special Rapporteurs believe that
a queuing system should be established by the Commission to alleviate
this potential overburden of United Nations and government resources.
Accordingly, the Special Rapporteurs recommend that the Commission
establish the open-ended working group on the draft third optional
protocol at such time as one of the present open-ended working groups
has completed its drafting efforts. It is understood that the working
group on the third optional protocol will not, therefore, begin
drafting until after the Commission's fifty-second session or a year
or so later. This delay will provide time for the Commission to
solicit more comments on the draft third optional protocol and to
obtain a technical review of the present draft.
C. Draft body of principles
169. The Special Rapporteurs have also sought to derive from
international interpretations of the right to a fair trial and a
remedy as well as from national laws and practices those common
elements which might serve as the basis for a Body of Principles on
the Right to a Fair Trial and a Remedy. Bodies of principles or
declarations are valuable when developing new international
standards, such as the United Nations Declaration on the Protection
of All Persons from Enforced Disappearance, the Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials, the
Guidelines on the Role of Prosecutors and the Basic Principles on the
Role of Lawyers. They may also have some value when attempting to
improve an interpretation by a treaty body of ill-defined or
inadequately defined rights in a regional instrument, such as the
resolution on the right to a fair trial adopted by the African
Commission on Human and Peoples' Rights. When a body of principles or
declaration attempts to summarize a voluminous, well-developed,
complex and rapidly changing area of law and standards, such as the
right to a fair trial, however, it is questionable whether the
formulation of a declaration is advisable for an intergovernmental
organization. Such codifications or restatements risk overlooking
subtleties and long-established interpretations. Rewording inevitably
gives rise to questions whether a different meaning is intended. The
draft body of principles contained in annex II simply restates and
clarifies existing international fair trial norms and
interpretations; it is not expected to serve as the basis for the
Sub-Commission, the Commission, or the General Assembly to draft a
new norm-setting declaration; and it should in no way weaken present
fair trial standards.
170. Accordingly, the Special Rapporteurs have prepared the draft
body of principles on the right to a fair trial and a remedy, which
is contained in annex II to this final progress report. The Special
Rapporteurs encourage the Sub-Commission to view this draft body of
principles as a succinct summary of the materials and interpretations
collected in this study.
171. Since most of the information gathered by the Special
Rapporteurs related to criminal trials, the study focuses
principally, but not exclusively, on trial procedures in such cases.
The Special Rapporteurs have been able to gather sufficient material
to provide a basis for drafting a body of principles relating to all
aspects of the right to a fair trial and a remedy, including
administrative, civil, and criminal proceedings. None the less, the
Special Rapporteurs recommend that further study of administrative,
civil, and other procedures should be undertaken. The massive volume
of the material already collected by the Special Rapporteurs,
however, indicates that such additional study should be considered
separately by the Sub-Commission at some later time.
D. Working Group on Arbitrary Detention and
other mechanisms for implementation
172. The Special Rapporteurs are encouraged by the efforts of the
Working Group on Arbitrary Detention which has for two years rendered
decisions in regard to communications which had been submitted. The
Working Group has considered several communications which stated that
a person had been imprisoned without a trial or after a trial failing
to comply with international fair trial standards. Accordingly, the
Working Group determined whether procedures followed in particular
cases violated international norms with respect to the right to a
fair trial and could thus be considered to be "arbitrary" within its
mandate. The Special Rapporteurs believe that the Working Group on
Arbitrary Detention possesses great potential for implementing the
right to a fair trial and a remedy in specific cases.
173. The Working Group on Arbitrary Detention can determine in an
expeditious manner whether individuals have been afforded their right
to a fair trial and a remedy in the context of administrative
detention or criminal prosecution. The Working Group cannot, however,
respond to problems of unfair trials in cases which do not result in
detention. None the less, the Working Group can respond more promptly
to cases of arbitrary detention and thus can supplement the work of
the Human Rights Committee, the Inter-American Commission on and
Court of Human Rights, the European Commission and Court of Human
Rights, and eventually the African Commission on Human and Peoples'
Rights. Those latter institutions may consider all fair trial issues
- whether civil, criminal, military, or administrative - but only in
regard to Governments that have ratified their authorizing treaties
and instruments. In that regard, the Working Group on Arbitrary
Detention can respond effectively to violations in all countries of
the world. Similarly, by its resolution 1994/41 of 4 March 1994, the
Commission on Human Rights established the Special Rapporteur on the
independence and impartiality of the judiciary, jurors and assessors
and the independence of lawyers, which can respond effectively to
certain issues relevant to the right to a fair trial and a
remedy.
E. Other recommendations for strengthening the
right to a fair trial and a remedy
174. Pursuant to the Sub-Commission's resolutions 1992/21 of 27
August 1992 and 1993/26 of 25 August 1993, in which this final report
was anticipated, the Special Rapporteurs make the following
additional recommendations, aimed at Governments and international
organizations, for strengthening the implementation of the right to a
fair trial and a remedy.
175. It should be noted at the outset that the Special Rapporteurs
recognize that it is very difficult to identify globally applicable
methods for strengthening the right to a fair trial and a remedy.
None the less, there exist nine pragmatic steps to strengthen the
implementation of the right which could be pursued to assure that it
is strengthened. Those steps are discussed more fully in the
paragraphs below, but could be summarized as follows:
(a) The Government should assure that its constitution, laws, rules, and other written procedural norms comport with international instruments and prevailing international interpretations guaranteeing the right to a fair trial and a remedy;
(b) The Government should provide or facilitate the training of its judges, lay assessors, other decision makers, court administrators, prosecutors, lawyers, law enforcement officers, prison officials, and other personnel involved in the administration of justice, so as to assure that they are fully qualified to protect the right to a fair trial and a remedy. The training should include the principles of national and international law protecting the right to a fair trial and a remedy;
(c) The Government should assure the independence of the judges, lay assessors, other decision makers, prosecutors, and lawyers, so they can protect the right to a fair trial and remedy and can play their appropriate role in the administration of justice. In particular, Governments should take
steps to comply with the Basic Principles on the Independence of the Judiciary, the Guidelines on the Role of Prosecutors, the Basic Principles on the Role of Lawyers, and related United Nations standards;
(d) The Government should assure that its legal provisions guaranteeing the right to fair trial and a remedy are applied in practice in criminal, civil, administrative, and other proceedings at all times, including during any states of emergency;
(e) The Government should establish adequate mechanisms for assuring that national and international provisions guaranteeing the right to a fair trial and a remedy are applied in practice. Among the mechanisms which the Government should use to assure the implementation of the right to a fair trial and a remedy are: appeal or similar review in higher courts or tribunals; habeas corpus, amparo or similar procedures; ombudsmen and independent oversight mechanisms; national and local human rights institutions; etc.;
(f) The Government should ratify those treaties which contain provisions protecting the right to a fair trial and a remedy, including, for example, the International Covenant on Civil and Political Rights and relevant regional human rights treaties. Similarly, the Government should ratify the first Optional Protocol to the International Covenant on Civil and Political Rights and participate in the relevant optional review mechanisms in the human rights treaties;
(g) The Government should adopt and ratify a third optional protocol to the International Covenant on Civil and Political Rights, aiming at guaranteeing under all circumstances the right to a fair trial and a remedy (annex I);
(h) The Government should cooperate with international mechanisms which have been established to monitor compliance with the right to a fair trial and a remedy, including the Human Rights Committee; the relevant regional human rights bodies; the Working Group on Arbitrary Detention; the Special Rapporteur on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers; international trial observers sent by intergovernmental organizations, Governments and non-governmental organizations; etc.;
(i) The Government should consider seeking advisory services and technical assistance from the United Nations, other intergovernmental organizations and non-governmental organizations to assist with the drafting of national laws and procedures so as to comply with international standards on the right to a fair trial and a remedy; with establishing national and local mechanisms for assuring compliance with national laws and international standards relating to the right to a fair trial and a remedy; and with training of judges, prosecutors, lawyers and other personnel in standards, procedures and practices necessary to protect the right to a fair trial and a remedy.
176. The most fundamental aspect of guaranteeing and strengthening
the right to a fair trial and a remedy on the domestic level is to
have adequate written procedures and laws which comport with articles
2 (3), 9 (3), 9 (4) and 14 of the International Covenant on Civil and
Political Rights as well as the other instruments and international
interpretations of the right to a fair trial and a remedy. Various
provisions guaranteeing the right to a fair trial and a remedy may
exist in a country's constitution, statutory laws, or other
procedural rules. Hence, the first step in guaranteeing and
strengthening the right to a fair trial and a remedy would be to
review those written rules and procedures to assure that they comport
with international standards. For instance, are there established
written procedures guaranteeing the right to a fair trial for
criminal proceedings as well as similar laws and procedures
applicable to administrative and civil proceedings?
177. In addition to ensuring adequate laws and procedures to
guarantee and strengthen the right to a fair trial and a remedy,
there is an equally pressing need for adequate personnel to implement
the laws and procedures. Judges, court administrators, prosecutors,
lawyers, lay assessors, law enforcement personnel and prison
officials need to receive the highest level of training available
with a special emphasis on the procedures necessary to protect the
right to a fair trial and a remedy not only in the courtroom, but
throughout the entire judicial process, be it civil, criminal or
administrative. After all, the right to a fair trial means little if
the persons responsible for protecting that right are unable or
unwilling to understand the mechanisms necessary to implement the
right. Ideally, all decision makers should be trained as lawyers but
where that is not possible or practicable, they should receive as
much training as possible with a special emphasis on fair trial
procedures. Once again, the Special Rapporteurs recognize that
training needs to be adjusted to conform with the legal traditions of
the individual countries. In those countries where training is
inadequate or unavailable, technical assistance might be appropriate
to ensure at the very least the minimum level of competency of the
judiciary and the legal profession.
178. Another important component necessary to strengthen the concrete
implementation of the right to a fair trial and a remedy is to
guarantee the independence of the judiciary from undue influence.
Governments should take steps to comply with the Basic Principles on
the Independence of the Judiciary, the Guidelines on the Role of
Prosecutors, and the Basic Principles on the Role of Lawyers. These
instruments contain provisions guaranteeing that judges, prosecutors,
and lawyers are allowed to perform their essential duties without
intimidation, hindrance, harassment, or improper influence. The
Special Rapporteurs are especially encouraged by the establishment of
the Special Rapporteur on the independence and impartiality of the
judiciary, jurors and assessors and the independence of lawyers, who
will be able to act effectively in regard to certain aspects of the
right to a fair trial and a remedy, that is, particularly in cases
relating to the independence of judges and lawyers.
179. Closely related to adequate laws and procedures designed to
protect the right to a fair trial and a remedy and the competence of
the individuals responsible for implementation of these laws is the
degree to which those laws are implemented. There needs to be
domestic implementation of these laws and procedures at every level
of proceedings and in every context where the right to a fair trial
and a remedy exists, even during states of emergency. The
Special Rapporteurs recommend that the right to a fair trial and a
remedy be thoroughly implemented in every context at the domestic
level in order to protect more fully and strengthen the right.
180. After identifying the laws and procedures necessary to protect
the right to a fair trial and a remedy, the requisite level of
training for those individuals responsible for implementing the
right, and the necessary degree of domestic implementation of the
right, there still exists the need for mechanisms to monitor the
implementation of the right. These mechanisms include adequate appeal
procedures or other forms of revision, the availability of remedies
such as habeas corpus and other similar procedures, and the creation
of an ombudsman to receive and respond to complaints regarding
deprivation of the right to a fair trial and a remedy. These
mechanisms can safeguard the right and adequately check those
individuals responsible for implementing the right to ensure that
they are satisfactorily complying with their duties. For those
countries unable to develop their own internal safeguards, technical
assistance such as country visits might be appropriate to help
monitor the basic principles necessary to guarantee the right to a
fair trial and a remedy.
181. The Government should ratify those treaties which contain
provisions protecting the right to a fair trial and a remedy,
including, for example, the International Covenant on Civil and
Political Rights and relevant regional human rights treaties.
182. Notwithstanding the aforementioned recommendations, the
necessary domestic laws and procedures may not exist or may prove to
be inadequate to protect the right to a fair trial and a remedy. In
those situations, Governments may need technical assistance to draft
the appropriate legislation. Model legislation could be drafted to
provide the basic laws and procedures necessary for guaranteeing and
strengthening the right to a fair trial and a remedy. It should be
noted, however, that there are many ways to achieve the basic
international standards of this right; none the less, if model
legislation is drafted, it may need to be adjusted to accompany the
different judicial traditions throughout the world such as the Civil
Law, Islamic Law, and Common Law. There exists a pressing need for
adequate substantive laws as well, because courts cannot function
absent substantive laws. In many countries, substantive laws are
lacking with respect to civil and administrative areas.
183. In addition to implementation of the right to a fair trial and a
remedy at the domestic level, the Special Rapporteurs recommend that
international monitoring of the right continue through such bodies as
the Human Rights Committee, the Working Group on Arbitrary Detention,
the Special Rapporteur on the independence and impartiality of the
judiciary, jurors and assessors and the independence of lawyers, the
European Commission and Court of Human Rights, the Inter-American
Commission on and Court of Human Rights, the African Commission on
Human and Peoples' Rights and international trial observers sent by
intergovernmental organizations, Governments and non-governmental
organizations. These mechanisms have already played an invaluable
role in identifying and protecting the right to a fair trial and a
remedy and their continued involvement is necessary to achieve the
optimal level of implementation of the right throughout the world.
F. Conclusion
184. In conclusion, the two Special Rapporteurs note that the task
they have undertaken covers a vast and complex subject. The right to
a fair trial and a remedy has a greater importance today than it had
when the Special Rapporteurs began their work. Many Governments are
taking a fresh look at how they can develop institutions which will
provide enduring protection for human rights. Governments should
recognize that judicial and administrative structures necessary to
guarantee the right to a fair trial and a remedy are indispensable
for the protection of all other human rights. The two Special
Rapporteurs wish to express their appreciation for the cooperation
and assistance they have received from Governments, the Centre for
Human Rights, non-governmental organizations, and from the many
others who have assisted with this study. The Special Rapporteurs
would like to underscore the spirit of cooperation which has reigned
between them throughout their period of collaboration on the study
and view this spirit of cooperation as a triumph over the political
and ideological competition of the cold war years in which this study
was begun as well as a harbinger of continuing cooperation between
their respective nations and all other countries.
ANNEXES
Annex I
DRAFT THIRD OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS, AIMING AT GUARANTEEING UNDER ALL CIRCUMSTANCES
THE RIGHT TO A FAIR TRIAL AND A REMEDY
Elaboration of a third optional protocol to the International
Covenant on Civil and Political Rights, aiming at guaranteeing under
all circumstances the right to a fair trial and a remedy
The General Assembly,
Recalling articles 8, 10 and 11 of the Universal Declaration
of Human Rights, adopted in its resolution 217 A (III) of 10 December
1948, which affirm the right of every individual to a fair and public
hearing by an independent and impartial tribunal, the right to be
presumed innocent until proven guilty and the right to an effective
remedy,
Recalling also article 14 of the International Covenant on
Civil and Political Rights, adopted in its resolution 2200 A (XXI) of
16 December 1966, which reaffirms the right of every individual to a
fair and public hearing,
Recalling further articles 9.3 and 9.4 of the International
Covenant on Civil and Political Rights which require States Parties
to that Convention to ensure that an arrested or detained person is
brought promptly before a judge or similar officer and provide that
anyone who is deprived of liberty is entitled to take proceedings
before a court in order that the court may without delay determine
the lawfulness of the detention and order release if the detention is
not lawful,
Recalling in addition article 2.3 of the International
Covenant on Civil and Political Rights and article 8 of the Universal
Declaration of Human Rights, which assure the right to an effective
remedy for violations of human rights,
Noting that the fair trial provisions in articles 5, 6, 7 and
26 of the African Charter on Human and Peoples' Rights are
non-derogable,
Noting also that the "judicial guarantees for the protection
of [the rights made non-derogable by article 27]" of the American
Convention on Human Rights are also non-derogable,
Noting further the guarantees of a fair trial and a remedy
incorporated in articles 5, 7, 12, 13 and 15 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
Noting that articles 96 and 99 to 108 of the Geneva Convention
(III) relative to the Treatment of Prisoners of War prescribe the
rights of prisoners of war in judicial proceedings; and that articles
54, 64 to 74, and 117 to 126 of the Geneva Convention (IV) relative
to the Protection of Civilian Persons in Time of War provide for the
right to a fair trial and a remedy in occupied territories, and
extend fair trial guarantees in international armed conflicts to all
persons, including those arrested for actions relating to the
conflict,
Noting also that common article 3 of the four Geneva
Conventions relative to the protection of victims of armed conflicts
and article 6 of Additional Protocol II to the Geneva Conventions
contain indispensable judicial guarantees for the protection of the
right to a fair trial during non-international armed conflicts,
Aware of the Standard Minimum Rules for the Treatment of
Prisoners, the Basic Principles on the Independence of the Judiciary,
the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment, the Basic Principles on the Role
of Lawyers, and the Guidelines on the Role of Prosecutors, which are
intended to apply at all times,
Having examined the preparatory report (E/CN.4/Sub.2/1990/34),
the preliminary report E/CN.4/Sub.2/1991/29), the progress reports
(E/CN.4/Sub.2/1992/24 and Add.1-3, and E/CN.4/Sub.2/1993/24 and
Add.1-3) and the final report (E/CN.4/Sub.2/1994/24 and Add.1)
submitted by the Special Rapporteurs,
Mindful of its resolution 41/120 of 4 December 1986 on the
setting of international standards in the field of human rights,
Wishing to give States parties to the International Covenant
on Civil and Political Rights that choose to do so the opportunity to
become parties to a third optional protocol to that convention,
Adopts the third optional protocol to the International
Covenant on Civil and Political Rights,
Third Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at guaranteeing under all circumstances the
right to a fair trial and a remedy
The States Parties to the present Protocol,
Guided by articles 8, 10 and 11 of the Universal Declaration
of Human Rights, which affirm the right of every individual to a fair
and public hearing by an impartial tribunal and an effective
remedy,
Recalling articles 2.3, 9.3, 9.4 and 14 of the International
Covenant on Civil and Political Rights,
Concerned that the right to a fair trial and a remedy may be
most threatened during a time of public emergency,
Desiring to undertake an international commitment to protect
in all circumstances the right to a fair trial and a remedy by adding
articles 2.3, 9.3, 9.4 and 14 to the rights which are non-derogable
under article 4 of the International Covenant on Civil and Political
Rights,
Have agreed as follows:
Article 1
No derogation from articles 2.3, 9.3, 9.4 or 14 of the International
Covenant on Civil and Political Rights may be made under the
provisions of article 4 of the Covenant.
Article 2
No reservation is admissible to the present Protocol.
Article 3
The States Parties to the present Protocol shall include in the
reports they submit to the Human Rights Committee, in accordance with
article 40 of the Covenant, information on the measures that they
have adopted to give effect to the present Protocol.
Article 4
With respect to the States Parties to the Covenant that have made a
declaration under article 41, the competence of the Human Rights
Committee to receive and consider communications when a State Party
claims that another State Party is not fulfilling its obligations
shall extend to the provisions of the present Protocol, unless the
State Party concerned has made a statement to the contrary at the
moment of ratification or accession.
Article 5
With respect to the States Parties to the first Optional Protocol to
the International Covenant on Civil and Political Rights adopted on
16 December 1966, the competence of the Human Rights Committee to
receive and consider communications from individuals subject to its
jurisdiction shall extend to the provisions of the present
Protocol.
Article 6
The provisions of the present Protocol shall apply as additional
provisions to the Covenant.
Article 7
1. The present Protocol is open for signature by any State that has
signed the Covenant.
2. The present Protocol is subject to ratification by any State that
has ratified the Covenant or acceded to it. Instruments of
ratification shall be deposited with the Secretary-General of the
United Nations.
3. The present Protocol shall be open to accession by any State that
has ratified the Covenant or acceded to it.
4. Accession shall be effected by the deposit of an instrument of
accession with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all
States that have signed the present Protocol or acceded to it of the
deposit of each instrument of ratification or accession.
Article 8
1. The present Protocol shall enter into force three months after the
date of the deposit with the Secretary-General of the United Nations
of the tenth instrument of ratification or accession.
2. For each State ratifying the present Protocol or acceding to it
after the deposit of the tenth instrument of ratification or
accession, the present Protocol shall enter into force three months
after the date of the deposit of its own instrument of ratification
or accession.
Article 9
The provisions of the present Protocol shall extend to all parts of
federal States without any limitations or exceptions.
Article 10
The Secretary-General of the United Nations shall inform all States
referred to in article 48, paragraph 1, of the Covenant of the
following:
(a) Statements made under article 4 of the present Protocol;
(b) Signatures, ratifications and accessions under article 7 of the present Protocol;
(c) The date of entry into force of the present Protocol under article 8 thereof.
Article 11
1. The present Protocol, of which the Arabic, Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be
deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit
certified copies of the present Protocol to all States referred to in
article 48 of the Covenant.
Annex II
DRAFT BODY OF PRINCIPLES ON THE RIGHT TO A FAIR TRIAL AND A
REMEDY
CONTENTS
Introduction
Draft body of principles on the right to fair trial and a remedy
Provisions applicable to all adjudicative proceedings
Fair hearing
Public hearing
Independent tribunal
Impartial tribunal
Right to a remedy
Provisions applicable to arrest and detention
Right to humane treatment
Provisions applicable to proceedings relating to criminal charges
Notice
Right to counsel
Right to free legal assistance
Right to adequate time and facilities for preparation of a defence
Right to an interpreter
Right to trial without undue delay
Rights during a trial
Right to benefit from a lighter sentence or administrative sanction
Second trial for same offence prohibited
Sentencing and punishment
Appeal
General clauses
Use of terms
Introduction
1. The Special Rapporteurs have reviewed treaties and other
international instruments protecting the right to a fair trial. They
have studied interpretations of the right to a fair trial by the
Human Rights Committee, the Committee on the Elimination of Racial
Discrimination, the African Commission on Human and Peoples' Rights,
the European Commission and Court of Human Rights, and the
Inter-American Commission on and Court of Human Rights. They have
also prepared a study of the right to habeas corpus, amparo, and
similar procedures.
2. In addition, the Special Rapporteurs have gathered materials about
national constitutions, laws, rules and practices relating to the
right to a fair trial and a remedy from more than 65 countries. In
this regard, they have very much appreciated the information they
have received from 36 Governments, as well as from intergovernmental
organizations, non-governmental organizations, bar associations and
individuals.
3. In its resolutions 1992/21 of 27 August 1992 and 1993/26 of 25
August 1993, the Sub-Commission anticipated the preparation by the
Special Rapporteurs of this final report, containing recommendations
for strengthening the implementation of the right to a fair trial in
the light of interpretations of the right by international bodies and
contemporary national practices.
4. The Special Rapporteurs have sought to derive from international
interpretations of the right to a fair trial and a remedy, as well as
from national laws and practices, those common elements which might
serve as the basis for a draft body of principles on the right to a
fair trial and a remedy. Accordingly, the Special Rapporteurs have
prepared a draft Body of Principles on the Right to a Fair Trial and
a Remedy, which is contained in this annex II to the present report.
In this regard the Special Rapporteurs have sought to ensure that the
present fair trial standards in existing international law are not
weakened in the process of elaborating and delineating the draft body
of principles.
5. In order to provide a relatively succinct summary of the norms
identified by the Special Rapporteurs, they submit the following
draft body of principles on the right to a fair trial and a
remedy.
DRAFT BODY OF PRINCIPLES ON THE RIGHT TO A FAIR TRIAL AND A
REMEDY
Provisions applicable to all adjudicative proceedings
1. In the determination of any criminal charge against a person, or
of the person's 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. Any judgement
rendered in a criminal case or in
a suit at law shall be made public, except where the interests of
juvenile persons otherwise require or the proceedings concern
matrimonial disputes or the guardianship of children.
Fair hearing
2. A "fair ... hearing" requires respect for the principle of
equality of arms between parties to the proceedings, whether they be
civil, criminal, administrative or military.
3. All persons shall be equal before the courts and tribunals. The
right of every individual to a fair trial is recognized without any
distinction whatsoever as regards race, colour, sex, language,
religion, political or other convictions, national or social origin,
means or other circumstance.
4. If a person's rights and obligations may be adversely affected in
a suit at law or by particularized actions or inactions taken or
proposed by a public authority, the court or the public authority
shall give the person adequate notice of the nature and purpose of
the proceedings and shall give the person a fair and public hearing
by a competent, independent and impartial tribunal established by
law.
5. A fair hearing requires that a person entitled to adequate notice
of the nature and purpose of proceedings shall have the right to:
(a) Be afforded an adequate opportunity to prepare a case;
(b) Present arguments and evidence, and to meet opposing arguments and evidence, either in writing, orally or by both means;
(c) Consult and be represented by counsel or other qualified persons of his or her choice during all stages of the proceedings;
(d) Consult an interpreter during all stages of the proceedings, if he or she cannot understand or speak the language used in the court or tribunal;
(e) Have his or her rights and obligations affected only by a decision based solely on evidence known to parties to public proceedings;
(f) Have his or her rights and obligations affected only by a decision rendered without undue delay and as to which the parties are provided adequate notice thereof and the reasons therefor;
(i)Factors relevant to what constitutes undue delay include: the complexity of the case, the conduct of the parties, the conduct of other relevant participants, whether an individual is detained pending proceedings, and the interest of the persons in the proceeding.
(g) Appeal decisions to a higher administrative authority, a judicial tribunal, or both.
Public hearing
6. In order to hold a "public hearing", the court or tribunal shall
make information about the time and venue of the public hearing
available, and provide adequate facilities for attendance by
interested members of the public.
7. In a public hearing, the court or tribunal may not limit
attendance to only a particular category of people and should allow
local, national and international observers to attend, so as to
verify that justice is done and seen to be done. Representatives of
the press and of other media may be present at a public hearing.
8. Exceptions to a public hearing shall be narrowly construed. In
regard to each exception, the tribunal shall determine whether the
strong public and individual interest in seeing that justice is done
would be substantially outweighed by the rationale for the exception
which is proposed for closure from public attendance. If some degree
of closure is found to be justified as an exception, the tribunal
should also consider closing only portions of the proceedings or
should consider taking evidence in camera so as to implement to the
greatest extent possible the right to a public hearing.
9. The press and the public may be excluded from all or part of a
trial for reasons of morals, public order or national security in a
democratic society; when the interest of the private lives of the
parties so requires; or to the extent strictly necessary in the
opinion of the court or tribunal in special circumstances where
publicity would prejudice the interests of justice.
10. To define further these exceptions to the right to a public
hearing: the public may be excluded from hearings on the grounds of
morals, where the testimony will have such a corrupting or
intimidating influence on the observers or participants as to
outweigh the strong public and individual interest in a public
hearing. Moral grounds for excluding the public may be asserted
primarily in the trial of cases involving sexual offences. The public
may be excluded from hearings on the grounds of a grave threat to
public order; such a threat may outweigh the strong public and
individual interest in a public hearing for cases of disciplinary
proceedings in prisons. The public may be excluded from hearings
because of national security concerns when hearings involve state
defence secrets in a democratic society. Privacy interests may merit
excluding the public from hearings relating to family issues, such as
divorce and guardianship, and from juvenile proceedings involving
sexual offences, in so far as public proceedings would constitute a
clearly unwarranted invasion of personal privacy outweighing the
strong public and individual interest in a public hearing.
11. A public hearing shall occur where the merits of the case are
being examined - either at the trial or appellate level, but not
necessarily at both levels.
12. An individual party may waive his or her right to a public
hearing if consent is given freely, if it is given in an unequivocal
manner and preferably in writing, and if it does not infringe any
important public interest in seeing that justice is done.
Independent tribunal
13. Every person has the right to a fair hearing of his or her case
by a legally constituted competent, independent and impartial court
or tribunal.
14. In order to be "independent", a tribunal shall be established by
law to have adjudicative functions to determine matters within its
competence on the basis of rules of law and in accordance with
proceedings conducted in a prescribed manner. A tribunal may be
established by legislative, executive, or judicial power.
15. The judiciary shall have jurisdiction over all issues of a
judicial nature and shall have exclusive authority to decide whether
an issue submitted for decision is within the tribunal's competence
as defined by law.
16. A tribunal's jurisdiction may be determined, inter alia, by
considering where the events involved in the dispute or offence took
place, where the property in dispute is located, the place of
residence or domicile of the parties, and the consent of the
parties.
17. Tribunals that do not use the duly established procedures of the
legal process shall not be created to displace the jurisdiction
belonging to the ordinary courts or judicial tribunals.
18. There shall not be any inappropriate or unwarranted interference
with the judicial process, nor shall judicial decisions by the courts
be subject to revision. This provision is without prejudice to
judicial review or to mitigation or commutation by competent
authorities of sentences by the judiciary, in accordance with the
law.
19. A court shall be independent from the executive branch. The
executive branch in a State shall not be able to interfere in a
court's proceedings and a court shall not act as an agent for the
executive against an individual citizen.
20. The term of office of judges and members of a tribunal, their
independence, security, adequate remuneration, conditions of service,
pensions and the age of retirement shall be adequately secured by
law.
21. Judges or members of a tribunal, whether appointed or elected,
shall have guaranteed tenure until a mandatory retirement age or the
expiry of their term of office, where such exists.
22. Promotion of judges and members of tribunals, where such a system
exists, should be based on objective factors, in particular ability,
integrity and experience.
23. It is essential that a judge or member of a tribunal should not
be subject to any authority in the performance of his or her duties,
aside from duly registered appeals after judgement has been
announced.
24. A tribunal shall be independent from the parties in the case.
Impartial tribunal
25. A tribunal shall be "impartial"; it shall base its decision only
on objective arguments and evidence presented. The judiciary shall
decide matters before them without any restrictions, improper
influence, inducements, pressure, threats or interference, direct or
indirect, from any quarter or for any reason.
26. The impartiality of a tribunal may be subject to challenge if the
public is entitled to question, on the basis of ascertainable facts,
that the fairness of the judge or tribunal was capable of appearing
open to doubt. Three relevant factors should be considered in
determining impartiality: whether the trial judge's position allows
him or her to play a crucial role in the proceedings; whether the
judge may have a preformed opinion which would weigh heavily on the
decision-making; and whether a judge would have to rule on an action
taken in a prior capacity.
27. A tribunal lacks impartiality if, inter alia, a former public
prosecutor or counsel sits as a judge on a case in which he or she
prosecuted or served as counsel to a party; a trial judge actively
participated in the secret, preparatory investigation of a case; or a
judge has some other connection with the case which might bias the
decision.
28. In the circumstances identified in the paragraphs just above and
in other cases where impartiality appears open to doubt, judges and
members of a tribunal have the obligation to recuse themselves.
29. A judge may not consult a higher authority before rendering a
decision in order to ensure that his or her decision will be
upheld.
Right to a remedy
30. Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the rights granted by the
constitution, by law, or by the present Body of Principles,
notwithstanding that the acts were committed by persons acting in an
official capacity.
31. Any person claiming such a remedy shall have such a right
determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the
legal system of the State, which may include judicial remedy.
32. Any person claiming such a remedy shall have the right to have
the remedy enforced by competent authorities.
Provisions applicable to arrest and detention
33. Everyone has the right to liberty and security of the person. No
one shall be subjected to arbitrary arrest or detention. No one shall
be deprived of his or her liberty except on such grounds and in
accordance with such procedures as are established by law.
34. A person may be detained only for probable cause or pursuant to a
warrant from a competent authority.
35. Anyone who is arrested shall be informed, at the time of arrest,
of the reasons for his or her arrest and shall be promptly informed
of any charges against him or her.
36. Anyone who is arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody, but release may
be subject to guarantees to appear for trial, at any other stage of
the judicial proceedings, and, should occasion arise, for execution
of the judgement.
37. Anyone who is deprived of his or her liberty by arrest or
detention shall be entitled to take proceedings before a court, in
order that that court may decide without delay on the lawfulness of
his or her detention and order release if the detention is not
lawful.
(a) Any person arrested or detained has the right to be brought within 24 hours before a judge or authorized judicial officer who shall review the lawfulness of his or her detention and shall order release if the detention is not lawful. The judge or judicial officer shall be authorized by law to exercise judicial power.
(b) Any person arrested or detained shall have prompt access to a lawyer, and in any case not later than 24 hours from the time of arrest or detention. Access to a lawyer includes the attributes of the right to counsel prescribed in the paragraphs below relating to that subject.
38. States shall ensure the right to habeas corpus, amparo or
similar procedures. The courts shall at all times hear and act upon
petitions for habeas corpus, amparo or similar procedures. No
circumstances whatever may be invoked as a justification for denying
the right to habeas corpus, amparo or similar procedures.
39. Detention shall be administered by competent authorities
established by law and duly identified.
40. Detainees shall be housed in places established by law for that
purpose and duly identified.
41. The court with judicial control over the detainee shall be
promptly informed that a person has been detained. The court with
judicial control over the detainee shall have authority over the
officials detaining an individual.
42. The authorities which arrest a person, keep him or her under
detention, or investigate the case shall exercise only the powers
granted to them under the law, and the exercise of these powers shall
be subject to a judicial or other authority.
43. The judiciary shall at all times have authority over executive
action resulting in detention.
44. Military courts do not have legal authority over civilians except
in narrowly defined circumstances, for example, when the civilian has
committed an offence in a military facility.
Right to humane treatment
45. All persons under any form of detention or imprisonment shall be
treated in a humane manner and with respect for the inherent dignity
of the human person. Persons under any form of detention or
imprisonment shall not be subjected to torture or cruel, inhuman or
degrading treatment or punishment. In particular, such persons shall
not be subjected to the following cruel, inhuman or degrading
treatment:
(a) No detainee shall be subjected to incommunicado detention. Communication of the detained or imprisoned person with the outside world shall not be denied for more than a matter of days.
(b) No detainee shall be denied prompt and adequate medical care including necessary medication. No detainee shall be subjected to compulsory medical experimentation.
(c) Accused persons shall be segregated from convicted persons and have the right to separate treatment appropriate to their status as unconvicted persons.
(d) Accused juvenile persons shall be segregated from adults and from juvenile persons whose guilt has been adjudicated. States shall set a minimum age below which a juvenile may not be deprived of his or her liberty.
(e) All detainees have the right to write, send and receive correspondence. Correspondence of detainees with their counsel shall not be delayed, intercepted or censored and shall be in full confidentiality. Other restrictions on correspondence shall not constitute an arbitrary or unlawful interference with the detainee's correspondence.
(f) All detainees have the right to receive visits from counsel, persons assisting counsel, family, friends and others at regular intervals under necessary supervision.
46. All detainees have the right to trial within a reasonable time
or release. Pretrial detention is justified only to prevent flight,
interference with evidence or the recurrence of crime.
47. Pretrial release may be made subject to guarantees, such as bail,
to assure appearance at trial.
Provisions applicable to proceedings relating to criminal charges
Notice
48. Any person charged with a criminal offence shall be informed
promptly, in detail, and in a language which he or she understands,
of the nature and cause of the charge against him or her.
(a) The accused has the right to be informed as soon as a charge is first made by a competent authority. A person suspected of a crime shall be notified as soon as a court or the prosecution decides to take procedural steps against him or her, or publicly names him or her as a suspect.
(b) The purpose of notice is to inform the accused in a manner that would allow him or her to prepare a defence. The notice shall be provided in time to allow the accused a fair opportunity to examine or have examined the witnesses against him or her and to secure the attendance of witnesses on his or her behalf. The notice shall be provided before the accused is required to make any statement.
(c) The purpose of notice is also to enable a person to take immediate steps to secure his or her release; hence, the notice shall include details of the charges or applicable law and the alleged facts on which the charge is based sufficient to indicate the substance of the complaint against the accused. The arresting authorities shall have sufficient evidence to show that the detention falls within the law on which the charge is based.
(d) The accused has the right to translation of the notice of charges into a language which he or she understands. The notice of charges shall actually be communicated to the accused and not only to a representative or agent; notice in a language understood only by the defence counsel is insufficient.
Right to counsel
49. The accused has the right to defend him or herself in person or
through legal assistance of his or her own choosing. Legal
representation is regarded as the best means of legal defence against
infringements of human rights and fundamental freedoms.
(a) The accused has the right to be informed, if he or she does not have legal assistance, of the right to defend him or herself through legal assistance of his or her own choosing.
(b) This right applies during all stages of any criminal prosecution, including preliminary investigations in which evidence is taken, periods of administrative detention, trial and appeal proceedings.
(c) The accused has the right to choose his or her own counsel freely. This right begins when the accused is first detained or charged. A court may not assign counsel for the accused if a qualified lawyer of the accused's own choosing is available.
Right to free legal assistance
50. The accused has a right to have legal assistance assigned to him
or her in any case where the interests of justice so require, and
without payment by the accused in any such case if he or she does not
have sufficient means to pay for it.
(a) The interests of justice in a particular case should be determined by consideration of the seriousness of the offence of which the defendant is accused and the severity of the sentence which he or she risks.
(b) The interests of justice always require counsel for an accused in any capital case. An accused person in a capital case has the right to choose his or her own legal representative at all stages of the case. An accused person in a capital case may contest the choice of his or her court-appointed lawyer. A prisoner sentenced to death shall have the right to appointed counsel for petition for post-conviction judicial relief, executive clemency, commutation of sentence, amnesty or pardon.
(c) An accused person may not be denied counsel on the ground that he or she has or has had the opportunity to defend him or herself, but does not wish to defend him or herself.
51. An accused person has a right to an effective defence. Lawyers appointed by the court shall provide effective defence counsel.
(a) When legal assistance is provided by the court, the lawyer appointed shall be qualified to represent and defend the accused.
(b) A lawyer appointed by the court to represent and defend the accused shall have the necessary training and experience corresponding to the nature and seriousness of the matter.
(c) When legal assistance is provided by the court, the lawyer shall be free to exercise his or her professional judgement in an independent manner, free of influence from the State or the court.
(d) When legal assistance is provided by the court, the lawyer shall actually advocate in favour of the accused. The lawyer representing the accused may exercise professional judgement in choosing the strategy of the defence.
(e) Lawyers appointed to defend the accused shall be sufficiently compensated to provide an incentive to accord the accused adequate and effective representation.
Right to adequate time and facilities for the preparation of a
defence
52. The accused has the right to communicate with counsel and have
adequate time and facilities for the preparation of his or her
defence.
(a) The accused has a right to see a lawyer during all stages of any criminal proceeding, including any preliminary investigation in which evidence is taken, any period of administrative detention, trial and any appeal.
(b) The accused may not be tried without his or her counsel being notified of the trial date and of the charges in time to allow adequate preparation of a defence.
(c) The accused has a right to adequate time for the preparation of a defence appropriate to the nature of the proceedings and the factual circumstances of the case. Factors which may affect the adequacy of time for preparation of a defence include the complexity of the case, the defendant's access to evidence, the length of time provided by rules of procedure prior to particular proceedings, and prejudice to the defence.
(d) The accused has a right to facilities which assist or may assist the accused in the preparation of his or her defence. The essential elements of the right to adequate facilities are the right to communicate with defence counsel and the right to materials necessary to the preparation of a defence.(i) All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate with a lawyer, without delay, interception or censorship and in full confidentiality.
(ii) The right to confer privately with one's lawyer and exchange confidential information or instructions is a fundamental part of the preparation of a defence. Facilities shall be provided such that communications with counsel shall be made under circumstances in which the confidentiality of the communications is preserved.
(iii) Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
(iv) The accused or the accused's defence counsel has a right to all relevant information held by the prosecution that could help the accused exonerate him or herself.
(v) It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
(vi) The accused has a right to consult legal materials reasonably necessary for the preparation of his or her defence.
(vii) Before judgement or sentence is rendered, the accused and his or her defence counsel shall have the right to know all the evidence which may be used to support the decision. All evidence submitted must be considered by the court.
(viii) Following a trial and before any appellate proceeding, the accused or the defence counsel has a right to access to
(or to consult) the evidence which the court considered in making a decision and the court's reasoning in arriving at the judgement.
The right to an interpreter
53. The accused has the right to the free assistance of an
interpreter if he or she cannot understand or speak the language used
in court.
(a) The right to an interpreter applies when the accused or a defence witness has difficulty understanding or expressing him or herself in the court's language.
(b) The right to an interpreter does not extend to the right to express oneself in the language of one's choice if the accused or the defence witness is sufficiently proficient in the language of the court.
(c) The right to an interpreter applies to both nationals and aliens.
(d) The right to an interpreter applies at all stages of the proceedings, including pretrial proceedings.
(e) The right to an interpreter applies to written as well as oral proceedings. The right extends to translation or interpretation of all documents or statements necessary for the defendant to understand the proceedings or assist in the preparation of a defence.
(f) The interpretation or translation provided shall be adequate to permit the accused to understand the proceedings and for the tribunal to understand the testimony of the accused or defence witnesses.
(g) The right to interpretation or translation cannot be qualified by a requirement that the accused pay for the costs of an interpreter or translator. Even if the accused is convicted, he or she cannot be required to pay for the costs of interpretation or translation.
Right to trial without undue delay
54. Every person charged with a criminal offence has the right to a
trial without undue delay.
(a) The right to a trial without undue delay means the right to a trial which produces a final judgement and, if appropriate, a sentence without undue delay. (b) In assessing whether there has been undue delay, the period of review of any conviction or sentence shall be included in the assessment.
(c) The right to a trial without undue delay does not depend upon assertion of that right by the accused. The accused is not required to demand a trial without undue delay in order to preserve his or her right in this regard.
(d) Factors relevant to what constitutes undue delay include the complexity of the case, the conduct of the parties, the conduct of other relevant authorities, whether an accused is detained pending proceedings, and the interest of the person at stake in the proceedings.
Rights during a trial
55. In criminal proceedings, the principle of equality of arms
imposes procedural equality between the accused and the public
prosecutor.
(a) The prosecution and defence shall be allowed equal time to present evidence.
(b) Prosecution and defence witnesses shall be given equal treatment in all procedural matters.
(c) Evidence obtained by illegal means constituting a serious violation of internationally protected human rights shall not be used as evidence against the accused or against any other person in any proceeding.
56. The accused is entitled to a hearing in which an
individualized consideration of culpability is afforded. Group trials
in which many persons are involved may violate the person's right to
a fair hearing.
57. In criminal proceedings, the accused has the right to be tried in
his or her presence.
(a) The accused has the right to appear in person before the court.
(b) The accused may not be tried in absentia.
(c) If an accused is tried in absentia, the accused shall have the right to petition for a reopening of the proceedings upon a showing that inadequate notice was given, that the notice was not personally served on the accused, or that his or her failure to appear was for exigent reasons beyond his or her control. If the petition is granted, the accused is entitled to a fresh determination of the merits of the charge.
(d) The accused may voluntarily waive the right to appear at a hearing, but such a waiver shall be established in an unequivocal manner and preferably in writing.
58. The accused has the right not to be compelled to testify against him or herself or to confess guilt.
(a) Any confession or other evidence obtained by any form of coercion or force may not be admitted into evidence or considered as probative of any fact at trial or in sentencing. Any confession or admission obtained during incommunicado detention shall be considered to have been obtained by coercion.
(b) Silence by the accused may not be used as evidence to prove guilt and no adverse consequences may be drawn from the exercise of the right to remain silent.
59. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
(a) The presumption of innocence places the burden of proof during trial in any criminal case on the prosecution. The criminal charge shall be proved to the intimate conviction of the trier of fact or beyond a reasonable doubt, whichever standard of proof provides the greatest protection for the presumption of innocence under national law.
(b) Public officials shall maintain a presumption of innocence. This provision applies to the judge presiding over the trial and to any other public official who deals with the case in any way. The accused is entitled to the benefit of the doubt during the trial. Public officials, including prosecutors, may inform the public about criminal investigations or charges, but shall not express a view as to the guilt of any suspect.
(c) Legal presumptions of fact or law are permissible in a criminal case only if they are rebuttable, allowing a defendant to prove his or her innocence.
(d) In applying the presumption of innocence, a State is not required to reimburse a person who has been found not guilty the cost of his or her defence.
(e) In applying the presumption of innocence, the State may not require a person who has been found not guilty of a criminal offence to pay any portion of the costs of prosecution.
60. The accused has a right to examine, or have examined, witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.
(a) The adversary or contentious nature of a trial is regarded as one effective means of ensuring its fairness.
(b) The accused's right to obtain the attendance and examination of witnesses on his or her behalf may be waived by counsel if such a waiver is properly within the professional judgement of the counsel.
(c) The prosecution shall provide the defence with the names of the witnesses it intends to call at trial within a reasonable time prior to trial which allows the defendant sufficient time to prepare his or her defence.
(d) The accused's right to examine witnesses may be limited to those witnesses whose testimony is relevant and likely to assist in ascertaining the truth.
(e) The accused has the right to be present during the testimony of a witness. This right may be limited only in exceptional circumstances such as when a witness reasonably fears reprisal by the defendant, when the accused engages in a course of conduct seriously disruptive of the proceedings, or when the accused repeatedly fails to appear for trivial reasons and after having been duly notified.
(f) A trial may also be conducted in the absence of an individual accused of any offences against the peace and security of humanity, if that individual is a fugitive from justice or has died before the commencement of such a trial but when the consequences of the offences of which the person stands accused are still extant and the court examination is necessary for the protection of human rights and fundamental freedoms and to prevent perpetration of such offences in the future.
(g) If the defendant is excluded or if the presence of the defendant cannot be ensured, the defendant's counsel shall always have the right to be present to preserve the defendant's right to examine the witness.
(h) If the presence of the defendant or any party cannot be ensured when the sentence or decision is announced, measures shall be taken to ensure that the defendant or any other party is informed as quickly as possible concerning the substance of the verdict or decision and the possibility of appeal against it.
(i) If national law does not permit the accused to examine witnesses during pretrial investigations, the defendant shall have the opportunity to cross-examine the witness at trial.
(j) The use of testimony of anonymous witnesses during a trial is a violation of the defendant's right to examine witnesses against him or her.
Right to benefit from a lighter sentence or administrative
sanction
61. No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal 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 when the criminal offence was committed.
If, subsequent to the commission of the offence, provision is made by
law for the imposition of a lighter penalty, the offender shall
benefit thereby.
62. A lighter penalty created any time before an accused's sentence
has been fully served should be applied to any offender serving a
sentence under the previous penalty.
63. Administrative tribunals conducting disciplinary proceedings
shall not impose a heavier penalty than the one that was applicable
at the time when the
offending conduct occurred. If, subsequent to the conduct, provision
is made by law for the imposition of a lighter penalty, the person
disciplined shall benefit thereby.
Second trial for same offence prohibited
64. No one shall be liable to be tried or punished again for an
offence for which he or she has already been finally convicted or
acquitted in accordance with the law and penal procedure of each
country.
Sentencing and punishment
65. Punishments constituting a deprivation of liberty shall have as
an essential aim the reform and social readaptation of the
prisoners.
Appeal
66. Everyone convicted in a criminal proceeding shall have the right
to review of his or her sentence by a higher tribunal.
(a) The right to appeal shall provide a genuine and timely review of the case. If exculpatory evidence is discovered after a person is tried and convicted, the right to appeal or some other post-conviction procedure shall permit the possibility of correcting the verdict if the new evidence would have been likely to change the verdict, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to the accused.
(b) A court shall stay execution of any sentence while the case is on appeal to a higher tribunal, unless the accused voluntarily accepts the earlier implementation of sentence.
67. Anyone sentenced to death shall have the right to appeal to a
court of higher jurisdiction, and steps should be taken to ensure
that such appeals become mandatory.
68. When a person has by a final decision been convicted of a
criminal offence and when subsequently his or her conviction has been
reversed or he or she has been pardoned on the ground that a new or
newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a
result of such conviction shall be compensated according to law,
unless it is proved that the non-disclosure of the unknown fact in
time is wholly or partly attributable to him or her.
69. Every person convicted of a crime has a right to seek pardon,
amnesty or commutation of sentence. Clemency, commutation of
sentence, amnesty or pardon may be granted in all cases of capital
punishment.
General clauses
70. There shall be no restriction upon or derogation from any element
of the right to a fair trial and a remedy recognized or existing in
any State
pursuant to law, conventions, regulations or custom on the pretext
that this Body of Principles does not recognize such rights or that
it recognizes them to a lesser extent.
71. Nothing in this Body of Principles shall be construed as
restricting or derogating from any right defined in the International
Covenant on Civil and Political Rights or any other relevant treaty
or international instrument.
72. While this Body of Principles is not principally intended to
apply to proceedings for juvenile offenders, there are certain
protections that relate specifically to juvenile offenders. Juvenile
offenders should be entitled to procedures no less protective of
their rights than the rights provided in this Body of Principles and
other international instruments, including the Convention on the
Rights of the Child, General Assembly resolution 44/25 of 20 November
1989; the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, adopted by the General Assembly
in resolution 40/33 of 29 November 1985; and the United Nations Rules
for the Protection of Juveniles Deprived of their Liberty, adopted by
the General Assembly in resolution 45/113 of 14 December 1990.
73. No circumstances whatsoever, whether a threat of war, a state of
international or non-international armed conflict, internal political
instability or any other public emergency, may be invoked to justify
derogations from the right to a fair trial or a remedy.
Use of terms
74. For the purposes of the Body of Principles:
(a) A "criminal charge" is defined by the nature of the offence and the nature and degree of severity of the penalty incurred. An accusation may constitute a criminal charge although the offence is not classified as criminal under national law.
(i) Criminal charges relate to all offences with penalties involving a serious deprivation of liberty. Imprisonment is always a serious deprivation of liberty. Expulsion from one's country by administrative decree is also a serious deprivation of liberty which requires the guarantees of a fair criminal trial.
(ii) Criminal charges do not constitute actions by disciplinary bodies when the penalty imposed is only a reprimand or warning.(b) The "determination of rights and obligations in a suit at law" is defined by the character of the rights at issue. Civil rights and obligations include all proceedings that are decisive for private rights and obligations, including proceedings before administrative tribunals.
(i) Civil rights and obligations may be determined in proceedings involving such matters as bankruptcy, commitment to a mental institution, compensation claims against domestic authorities, contractual rights and obligations, drivers' licences, family-related issues, health insurance benefits, labour disputes, land consolidation issues, libel, personal injury claims, professional employment qualifications and rights, property rights, and scope and ownership of patents, as well as other proceedings in which a person has the right to appear and present evidence.
(ii) Proceedings as to civil rights and obligations do not require that both parties to the proceedings be private persons; hence, such proceedings encompass hearings before administrative tribunals where one of the parties is a public authority and the other is a private person.(c) "Arrest" means the act of apprehending a person for the alleged commission of an offence or by the action of an authority.
(d) "Detained person" means any individual deprived of personal liberty except as a result of conviction for an offence.
(e) "Imprisoned person" means any individual deprived of personal liberty as a result of conviction for an offence.
(f) "Detention" means the condition of detained persons as defined above.
(g) "Imprisonment" means the condition of imprisoned persons as defined above.
Annex III
BIBLIOGRAPHY ON THE RIGHT TO A FAIR TRIAL AND A REMEDY
Abraham, H. The Judicial Process: An Introductory Analysis of the
Courts of the United States, England and France. 5th ed., 1986.
Alderson, J. Human Rights and the Police. Strasbourg, Council of
Europe, Directorate of Human Rights, 1984. 207 p.
Amnesty International. "Disappearances" and Political Killings, Human
Rights Crisis of the 1990s, A Manual for Action. Amsterdam, Amnesty
International, 1994.
Amodio, E. and Selvaggi, E. "An accusatorial system in a civil law
country: the 1988 Italian Code of Criminal Procedure". Temple Law
Review 62:1211, 1989.
Ankumah, E. The Right to Counsel and the Independence of Judges
Against the Background of the African Charter on Human and Peoples'
Rights. Maastricht, Netherlands, undated (1990), unpublished. 33
p.
Ascher, T. A Study of the European Jurisprudence on the Right to a
Fair Trial as Evidenced by the Case Law Developed by the European
Court of Human Rights. Undated, unpublished.
Attacks on Justice: The Harassment and Persecution of Judges and
Lawyers. Geneva, Centre for the Independence of Judges and Lawyers,
1992.
Bakken, T. "International law and human rights for defendants in
criminal trials", 25 Indian Journal of International Law 411
(1985).
Bassiouni, M. Draft Statute of the International Criminal Tribunal.
Pau: Association Internationale de Droit Penal, 1992. 182 p.
Bassiouni, M. "Human rights in the context of criminal justice:
identifying international procedural protections and equivalent
protections in national constitutions", 3:2 Duke Journal of
Comparative and International Law 235 (1993).
Bassiouni, M. "The time has come for an international criminal
court", Indiana International and Comparative Law Review 1:1,
1991.
Bettocchi. "Human rights and inquisitorial procedures in Latin
America", 42 International Commission of Jurists Review 57
(1989).
Buergenthal, T. and Kewenig, W. Zum Begriff der Civil Rights. In
Artikel 6 Absatz 1 der Europaischen Menschenrechtskonvention. 1966-67
Archiv des Vokerrechts 393.
Byfield, B. "The right to a fair trial: Article 6 of the European
Convention". In A.D. Byre and B.Y. Byfield (eds.), International
Human Rights Law in the Commonwealth Caribbean, Dordrecht, 76,
1991.
Cappelletti, M. and Tallon, D., eds. Fundamental Guarantees of the
Parties in Civil Litigation. (Milan, Dott. A. Guiffre Editore, 1973).
821 p.
Carpi, F. Responsabilita del Giudice e Pubblicita Processuale, 78
Rivista Trimestrale di Diretto e Procedura Civile 1464, 1980.
The Casement Trials: A Case Study on the Right to a Fair Trial in
Northern Ireland. Belfast, Committee on the Administration of
Justice, 1992.
Commission Justice Penale et Droit de l'Homme. La Mise en Etat des
Affaires Penales. Paris, 1989.
Cremona, J.J. The public character of trial and judgment in the
jurisprudence of the European Court of Human Rights. In F. Matscher
and H. Petzhold (eds.) Protecting Human Rights: The European
Dimension; Studies in Honour of Gerard J. Wiarda. 107, 1988.
Danelius, H. "Europeandomstolens Domar 1961-1990 - en
Rattsfallsoversikt", Svensk Jurist Tidning 76:257, 1991.
Danelius H. Manskliga Rattigheter. Lund: Norstedts, 4th ed. 1989.
Davis, D. "The Delmas trial and danger of political trials for the
legitimacy of a legal system", South African Journal on Human Rights
6:79, 1990.
Determinants of the Independence and Impartiality of the Judiciary:
The Role of the Judicial System in One African and Three Asian
Countries: Burkina Faso (or Mali), India, Sri Lanka and the
Philippines. Leiden, The Netherlands, PIOOM/COMT, undated.
Ellert, R. NATO Fair Trial Safeguards: Precursor to an International
Bill of Procedural Rights. Hague, Martinus Nijhoff Pub., 1963. 89
p.
Fassler, L. "The Italian Penal Procedure Code: an adversarial system
of criminal procedure in continental Europe", 245 Columbia Journal of
Transnational Law 216, 1991.
Ferencz, B. "An international criminal code and court: where they
stand and where they're going", Columbia Journal of Transnational Law
30:375, 1992.
Fix Zamudio, H. "Latin American procedures of the protection of
employees", Journal of International Commission of Jurists 9:60,
1968.
Fitzpatrick, J. Human Rights in Crisis: The International System for
Protecting Rights During States of Emergency. Philadelphia,
University of Pennsylvania, 1994.
Frase, R. "Comparative criminal justice as a guide to American law
reform: how do the French do it, how can we find out, and why should
we care?", Californian Law Review 78:539, May l990.
Gomien, D. "The future of fair trial in Europe: the contribution of
international human rights legal and political instruments",
Netherlands Quarterly of Human Rights 9:263, 1991.
Grotrian, A. Article 6 of the European Convention on Human Rights:
The Right to a Fair Trial. Strasbourg, Council of Europe, Human
Rights Information Centre, Directorate of Human Rights, 1992. 45
p.
Gyandoh, S. "Tinkering with the criminal justice system in common law
Africa", Temple Law Review 62:1131, 1989.
Hall, A. Second Convention on Judicial Accountability. Delhi, Hardev
Singh on behalf of the Sub-committee on Judicial Accountability,
1992. 14 p.
Hannum, H. Materials on International Human Rights and U.S. Criminal
Law and Procedure (Washington, D.C.; Procedural Aspects of
International Law, 1989).
The Independence of the Judiciary and the Legal Profession in
English-Speaking Africa. Geneva, International Commission of Jurists,
1988, 184 p.
Inquiry into the Israeli Military Court System in the Occupied West
Bank and Gaza. Geneva, International Commission of Jurists, 1989, 74
p.
International Commission of Jurists. Executive Action and the Rule of
Law. Geneva, International Commission of Jurists, l962. 187 p.
International Commission of Jurists. The Independence of Judges and
Lawyers in the Commonwealth Caribbean. Geneva, International
Commission of Jurists, 1988, 66 p.
International Commission of Jurists. "Preventive detention under
different legal systems", Journal of International Commission of
Jurists 3:1, 1961.
International Commission of Jurists. The Rule of Law and Human
Rights: Principles and Definitions. Geneva, International Commission
of Jurists, 1966. 83 p.
International Criminal Procedure Symposium. Temple Law Review
62:1087, Winter 1989.
Jung, H. "Droits de l'homme et sanctions penales", 18 Revue
Trimestrielle des Droits de l'Homme, 164 (1994).
Kidd, C. "Disciplinary proceedings and the right to a fair criminal
trial under the European Convention on Human Rights", 36
International and Comparative Law Quarterly 856 (1987).
Klecatsky, H. "Reflections on the rule of law and in particular on
the principle of administrative action", Journal of the International
Commission of Jurists 4:205, 1963.
Kohl, A. "Implications de l'article 5 de la Convention europeenne des
droits de l'homme en procedure penale", 108 Journal des Tribunaux 468
(1989).
Kopetzki, C. "Neue Aspekte des Art. 6 MRK fuer Osterreich"
Juristische Blatter 103:468, 1981.
Korff, D. The Diplock Courts in Northern Ireland: A Fair Trial?
(Utrecht: Studie-en Informatiecentrum Mensenrechten: Netherlands
Institute of Human Rights, 1984). 115 p.
Lassalle, J.-Y. "Les Delais de la Convention Europeenne des Droits de
L'homme et le Droit Penal Francais", Revue Trimestrielle des Droits
de l' Homme 263 (1993).
Linke, R. "Die Rechtsprechung der Strassburger Instanzen auf Grund
von Menschenrechtsbeschwerden im strafrechtlichen Bereich",
Osterreichishe Juristen-Zeitung 34:309, 1979.
Luther, H. Public hearing in the Absence of the Accused Person.
International Academy of Comparative Law 969, 1978.
Mandler, J. "Habeas corpus and the protection of human rights in
Argentina", Yale Journal of International Law 16:1, 1991.
"The maze of paragraph 1 of Article 6 of the European Convention on
Human Rights: New Openings or Dead Ends?", Hague Yearbook of
International Law 1:141, 1988.
McGoldrick, D. The Human Rights Committee, Its Role in the
Development of the International Covenant on Civil and Political
Rights. Oxford, Clarendon Press, 1991. 576 p.
Miller, M. and Guggenheim, M. "Pretrial detention and punishment",
Minn. L. Rev. 75:335, December 1990.
Moitry, J.-H. "Right to a Fair Trial and the European Convention on
Human Rights: Some Remarks on the Republique de Guinee Case", Journal
of International Arbitration 6 (2):115, June 1989.
Murdoch, J. Article 5 of the European Convention on Human Rights: The
Protection of Liberty and Security of Person. Strasbourg, Council of
Europe, Human Rights Information Centre, Directorate of Human Rights,
1992. 59 p.
Natali, L. and Ohlbaum, E. "Redrafting the due process model: the
preventive detention blueprint", Temple Law Review 62:1225, 1989.
Newman, F. and Weissbrodt, D. Bibliography for Research on
International Human Rights: Law, Policy, and Process, 733-61.
(Cincinnati: Anderson Publishing Co. 1990 and Supp. 1994).
Newman, F. "Natural justice, due process and the new international
covenants on human rights: Prospectus 1967", Public Law 274
(1967).
O'Donnell, D. Proteccion Internacional de los Derechos Humanos 151-90
(Lima: Commission Andina de Juristas, 1989). 752 p.
Okresek, W. "Die EMRK und ihre Auswirkungen auf das Osterreichishe
Strafverfahrensrecht", Europaishe Grunrechte Zeitschrift 14:497,
1987.
Pouget, P. "Les delais en matière de retention, garde à
vue et détention provisoire au regard de la Convention de
sauvegarde des droits de l'homme", Revue de science criminelle et de
droit penal comparé, 78 (1989).
Raeburn, W. "The Right to an Effective Remedy and a Fair Trial Under
Common Law", Journal of the International Commission of Jurists 9:19,
1968.
Rannat, M. "Study in the administration of justice"
E/CN.4/Sub.2/296/Rev.1 (New York, United Nations, 1972). 270 p.
Rasenack, C. "Civil Rights and Obligations" or "Droits et Obligations
de Caractere Civil" - Two Crucial Legal Determinations in Article 6
(1) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms. R.D.H. 3:51, 1970.
Reynaud, A. Human Rights in Prisons. Strasbourg, Council of Europe,
Directorate of Human Rights, 1986. 218 p.
Rodley, N. The Treatment of Prisoners in International Law, 256-77.
(Oxford: Clarendon Press, 1987).
Sampath, D. Mediation: Concept and Technique in Support of Resolution
of Disputes. Bangalore, Legal Services Clinic, National Law School of
India University, 1991. 95 p.
Singhvi, L.M. "The administration of justice and the human rights of
detainees: Study on the independence and impartiality of the
judiciary, jurors and assessors and the independence of lawyers,
(E/CN.4/Sub.2/1985/18 and Add.1-6) (Geneva, United Nations,
1985).
Starkey, "Trial in absentia", St. John's Law Review 53:721, 1979.
Stavros, S. The Guarantees for Accused Persons Under Article 6 of the
European Convention on Human Rights: An Analysis of the Application
of the Convention and a Comparison with other Instruments. Dordrecht,
Martinus Nijhoff, 1993.
Steytler, N. The Undefended Accused on Trial. Cape Town, Juta and Co.
Ltd., 1988. 266 p.
Sturner, R. "'Fair trial' und offentliche Meinung", Juristenzeitung
35:1, 1980.
Treat, W. "East meets West in fair trial study", Human Rights Tribune
12, Winter 1993.
Trechsel, S. "Strassburger rechtsprechung zum Strafverfahren",
Juristische Rundschau 135 (1988).
Trechsel, S. "The right to liberty and security of the person -
Article 5 of the European Convention on Human Rights in the
Strasbourg case-law", 14 HRLJ 88 (1980).
United Nations Centre for Social Development and Humanitarian
Affairs, Compendium of United Nations Standards and Norms in Crime
Prevention and Criminal Justice. United Nations Publication, Sales
No. E.92.IV.1, New York, United Nations, 1992. 278 p.
United Nations Centre for Social Development and Humanitarian
Affairs. Manual on the Effective Prevention and Investigation of
Extra-legal, Arbitrary and Summary Executions. United Nations
Publication, Sales No. E.91/IV.l, New York, United Nations, 1991. 71
p.
The United Nations and Crime Prevention. New York, United Nations,
1991. 144 p.
United Nations Department of Economic and Social Affairs. "Study of
the right of everyone to be free from arbitrary arrest, detention and
exile" (E/CN.4/826/Rev.l). New York, United Nations, 1964. 219 p.
United Nations Centre for Human Rights. Handbook of International
Standards Related to Pre-Trial Detention. New York, United Nations,
1994.
Valu, J. Le Probleme de l'Application aux Juridictions
Administratives, des Regles de la Convention Europeene des Droits de
l'Homme Relatives a la Publicite des Audiences et des Jugements.
R.D.I.D.C. 129:159, 1961.
van Dijck, P. "Access to court". In R.St.J. Macdonald and others
(eds.) The European System for the Protection of Human Rights 345
(1993).
van Dijk, P. The Interpretation of "Civil Rights and Obligations" by
the European Court of Human Rights: One More Step to Take. In F.
Matscher and H. Petzhold (eds.) Protecting Human Rights: The European
Dimension; Studies in Honour of Gerard J. Wiarda. 131, 1988.
van Dijk, P. Right of the Accused to a Fair Trial Under International
Law (Utrecht: Studie-en Informatiecentrum Mensenrechten: Netherlands
Institute of Human Rights, 1983).
van Dijk, P. and van Hoof, G.J.H. Theory and Practice of the European
Convention on Human Rights. Deventer, The Netherlands, Kluwer Law and
Taxation Publishers, 2nd ed., 1990.
von Mangoldt, H. Independence of Judges and Lawyers Under German Law
and
Under the European Convention on Human Rights. Tidskrift, utgiven
av Juridiska Foreningen 117:101, 1981.
Weissbrodt, D. "International Trial Observers", Stanford Journal of
International Law 18:27, 1982.
Weissbrodt, D. "A note on Amnesty International's work for fair
trials in political cases", 5 AIUSA Legal Support Network Newsletter
105 (Fall 1988).
Weissbrodt, D. "The right to a fair trial: Amnesty International's
work and developing standards", AIUSA Legal Support Network
Newsletter 8:1, Fall 1991.
Weissbrodt, D. "The right to a fair trial: Amnesty International's
work and developing standards", Amnesty International Lawyers
Newsletter 3:6, Summer 1992.
Whyatt, J. The Citizen and the Administration of Justice: The Redress
of Grievances. London, Justice, 1961. 104 p.
