This Chapter covers international human rights standards on fair trail and techniques related to another possible function of HROs of a UN field operation - that of observing trials to assess their consistency with such standards. It also underlines how trial observation may serve as a tool to appraise the functioning of the system for the administration of justice of the country of operation and identify needs for reform to be discussed with the host Government and possibly become the object of United Nations or other assistance to this effect.

B. International standards for fair trials

1. The right to a fair and open trial has been established in several international human rights instruments. Article 10 of the Universal Declaration of Human Rights provides that "[e]veryone is entitled in full equality to a fair and public hearing . . . of any criminal charge against him." Article 11 adds that "[e]veryone charged with a personal offence has the right to be presumed innocent until proven guilty according to law in a public trial . . .." Further, Article 14 of the International Covenant on Civil and Political Rights provides that:

[I]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

2. In addition, regional treaties guarantee the right to a fair and open trial. Article 8(5) of the American Convention on Human Rights provides that criminal proceedings shall be public, while article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms establishes the right to public hearing for everyone in the "determination of his civil rights and obligations or of any criminal charge against him. . . ." Further, Article 7 of the African (Banjul) Charter on Human and Peoples' Rights guarantees that every individual has the right to have his or her cause heard.

3. Pursuant to Article 14(3) of the International Covenant on Civil and Political Rights, in the determination of any criminal charge, every person shall be equally entitled to the following minimum guarantees necessary for defence:

(a) To be informed promptly and in detail in a language the person understands of the nature and cause of the charge against him/her;

(b) To have adequate time and facilities for the preparation of a defence, and to communicate with counsel of his/her own choosing;

(c) To be tried without undue delay;

(d) To be tried in his/her presence, and to defend him/herself in person or through legal assistance of his/her own choosing; to be informed, if s/he does not have legal assistance, of this right; and to have legal assistance assigned to him/her in any case where the interests of justice so require, and without payment by him/her in any such case where the interests of justice so require, and without payment by him/her in any such case if s/he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him/her and to obtain the attendance and examination of witnesses on his/her behalf under the same conditions as witnesses against him/her;

(f) To have the free assistance of an interpreter if s/he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against him/herself or to confess guilt. ⁽¹⁾

4. The right to a fair trial should be seen as only an aspect of the rights which will permit the effective functioning of the administration of justice. Rights relevant to the administration of justice are discussed more fully in Chapter IV - E "Rights in the Administration of Justice".

C. Objectives of trial observation and monitoring the administration of justice

5. There are six primary objectives of trial observation. The first objective is firsthand monitoring in order to prepare an independent and impartial report on the proceedings. Second, a HRO's presence makes the participants -- particularly the judge and prosecutor -- aware that they are under scrutiny; this awareness may then influence them to be fair. Third, the HRO represents the UN, and therefore expresses international concern about the fairness of the proceedings. Fourth, the HRO's presence gives the defendant, the defence attorney, and the defendant's supporters a sense of international assistance and renewed confidence. Fifth, the HRO's presence should help to assure that justice is both done and seen to be done.

6. These objectives may substantially affect the choice of trial, the selection of the HRO, and other steps in the process of trial observation. Further, these objectives may conflict. For example, if the HRO overtly attempts to influence the conduct of the trial or openly comforts the defendant, his or her impartiality and independence become suspect.

7. If the HRO consciously attempts to fulfill all five of these objectives, s/he must carefully consider each step in the trial observation process so as to minimize the potential for conflict. Because of the inherently contradictory functions of HROs, and because it is impossible to predict the precise situation in which they may be placed, past experience teaches that they should use their own judgement in the situations which they encounter.

8. The fifth objective requires further explanation. Historically, trial observers have largely been sent to assure fairness -- principally out of concern for the rights of the defence. More recently there has been an increasing need for trial observers to assure that justice is done and that impunity is not afforded human rights abuses. Perpetrators of human rights abuses are, of course, entitled to a fair trial. But equally, the society needs to be assured that human rights violators are brought to justice. See Chapter IV- Q "Impunity Principles". Hence, trial observers have a new function, to assure that justice is done and that impunity is not given perpetrators of human rights abuses.

9. Trials, however, are only a very small, albeit usually more visible part of the functioning of the system of justice. Accordingly, a sixth more general objective would be for HROs to view trial observation as part of a much more complete review and description of all the functions and structures in the administration of justice. For example, trial observations may be a means for assessing the needs of the legal system. A broader assessment would require a knowlegde and description of all the various courts at each governmental or regional level, the prosecutor's office, the police, prison officials, etc. and their role in each step of court procedure from arrest or filing of a complaint, through investigation, court decision, and appeal. What sorts of academic and professional training have the various personnel in the legal system received? What are their working conditions? What are their material resources? To what extent is the system actually functioning? How do the various actors in the legal system perceive their roles and what assistance/training do they believe would be useful?

D. Selection of trials

10. It is obviously impossible to observe all trials. In general, UN HROs will be sent to observe those trials which raise the greatest human rights concerns. They will also observe trials in which it would be appropriate to express UN concern in a visible way. In developing a regular monitoring of the administration of justice in the country, the human rights field operation may need to establish a pattern of regularly attending court proceedings and maintaining contacts with judges, prosecutors, lawyers, etc.

11. The UN presence lends credibility to a proceeding; hence, if the UN is considering the possibility of observing a proceeding, the UN must determine independently whether human rights overall would be benefited. In any event, these decisions are usually made by the field operation or other sending organization and not by the individual HRO.

E. Selection of HROs to serve as trial observers and qualifications

12. The factors to be considered in the selection of a HRO to serve as an observer include expertise or professional experience, for example, as judges, prosecutors, lawyers, and others with experience in the administration of justice. The HRO should also have knowledge of the legal system in which the trial will occur, as well as knowledge of international fair trial standards. HROs generally come from a different country than from the location of the trial, which comports with the general practice for preserving the independence and impartiality of the observer. In regard to particularly important trials in which an observer might be specially requested to attend the proceedings and even come from abroad, the observer's qualifications should also include prestige, credibility, language abilities, visibility, reputation for fairness, and impartiality.

13. The HRO should conduct him/herself with impartiality and seriousness. The HRO should keep in mind the sensitive nature of trials in general, and the UN's objectives regarding this particular trial.

F. Informing the authorities about the observation

14. In the case of field operations, the HROs will ordinarily be present in the country before they observe a trial, but it may be useful to notify the Government of the operation's intent to send an observer to the proceeding. In the case of observers coming from abroad, rather than asking permission to send an observer, a general practice has developed of notifying the authorities in the country which is holding the trial that an observer will attend. The observer does not need to wait for permission to enter since the trial would generally be public and since the Government's silence is taken as an assent. Often the Government is informed about the observation right before the observer departs.

G. Briefing and research prior to observation

15. The HRO who serves as a trial observer should be as informed as possible of the history, politics, economics, law, and human rights conditions of the locality of the trial. The observer should also obtain background information about the specific events which led to the trial. If possible, the observer should review past observer reports, the criminal procedure code, criminal code, relevant constitutional provisions, legal documents, and press reports. In addition, the observer should receive the names of people who can serve as contacts and informants in the location where the trial will occur.

H. Translators/interpreters

16. Ideally the HRO should speak the local language used at trial. As this language ability is not always possible, observers often need translators or interpreters to aid in observation, interviews, etc. It is generally best to find a translator/interpreter before arrival in the locality of the trial.

17. The considerations made in Chapter VIII - Infterviewing on the use of interpreters are generally applicable here too. Because the choice of a translator/interpreter will substantially affect the independence, impartiality, and impact of the observer, the translator/interpreter should be selected with great care. The translator/interpreter should be knowledgeable, trustworthy, and familiar with legal terminology. He or she should also be impartial and perceived as such. When a translator/interpreter comes from an organization, political party, or group to which the defendant belongs, the observer (1) may appear biased and (2) may be unable to verify the translations. In addition, the selection of a translator sympathetic to the defendant may place the translator (and possibly the observer) at considerable risk. Conversely, the observer should not rely on the services of a Government translator.

I. Public statements before, during, and after the observation

18. In general, no public statements should be made regarding the observer's findings before the end of the trial. In some situations, however, a public statement may be needed at the beginning of a visit to explain the purpose of the trial observation. The human rights field operation may decide that a public statement may also be necessary at the end of an observation to report on the findings and announce the next steps to be taken. A public statement made during the appeal process may have the effect of keeping international attention on the case. In every case, the expected usefulness of a public statement must be weighed against the potential consequences.

19. Most public statements are made by the field human rights operation based on information provided by observers, but they are not identified with the observers themselves.

J. Travel and living arrangements

20. If the HRO must travel to the locality of the trial, the officer must be circumspect when making travel and living arrangements. So far as possible, for example, the HRO should avoid visibly identifying with either side, for example, by staying at the same hotel.

K. Contacts and interviews after arrival at the place of trial

21. Before the trial observation starts, the HRO should make contact with and interview a number of people who can provide information and details necessary for his/her understanding of the case and the surrounding situation. Before arrival to the site of the trial the HRO should have an idea of whom to interview. The observing HRO should try to maintain a balance by making contact with the prosecutor, judge, Government officials, and others who can provide useful information, as well as the accused and defence counsel. As always, the observer must remain impartial, independent, and a bit aloof.

22. The observing HRO should take the opportunity to interview Government officials as such discussions may help inform the observer of all the circumstances surrounding the trial. Contacts with Government officials may also increase the observer's impact on the trial process. The observer, however, should not overstep his or her mandate.

23. When interviewing the defendant, the HRO should attempt to do so in a location that would permit maximum confidentiality while allowing the officer to ascertain the defendant's mental and physical state and the conditions of confinement. The HRO should decide whether to conduct the defendant's interview alone or, if necessary, with defence counsel present.

L. Access to the trial file (dossier)

24. The HRO should obtain the key documents that will be used in the courtroom and that will be essential to a full understanding of the trial. It is critical, especially in civil law countries, that the observer obtain access to the defendant's trial file. Also, the defence counsel should have access to the file and should be able to make available the necessary documents. The court clerks should also make sure the trial file is available to the observing HRO. Even if the dossier is not publicly accessible, trial observers have sought and received the right to review the file because their quasi-judicial task is to verify that the proceedings are being fairly pursued. Similarly, trial observers have been admitted to closed military or security proceedings from which the public is ordinarily excluded.

M. Seating in the courtroom, introduction in court, and taking notes

25. The HRO has the right to enter the courtroom because the trial is public. Also, the agreement between the field operation and the Government will ordinarily contain a provision for HROs to enter any building or facility to assure or monitor human rights protection. If the HRO must extraordinarily obtain permission to enter and get a seat in the courtroom, the observer may need to present his or her Order of Trial Observation to the Ministry of Foreign Affairs, the Ministry of Justice, or to the presiding judge. Having entered the courtroom, the HRO must decide where to sit. Because every courtroom has its own architecture and configuration, the HRO must be very sensitive to the importance of seating and should, if necessary, seek some accommodation to preserve an appearance of impartiality and to facilitate observation of the trial. The observer should choose to sit in a prominent, neutral location in the courtroom.

26. Trial observers sometimes ask to be introduced in open court so that their presence is officially recognized by the participants and the public. This tactic may increase the observer's impact. The HRO must take care to preserve the appearance of impartiality by arranging to be introduced by a neutral party, such as the president of the local bar association. If the HRO only intends to remain for part of the trial, an introduction would underscore the later absence and might be unwise.

27. One of the best ways for a HRO to make an impact is to take copious notes during the trial. The HRO should be aware, however, that a few countries forbid anyone from taking notes except for participating lawyers and the press. Another difficulty with taking notes, particularly after talking with informants, is that notes may be subject to seizure or surreptitious review by the police or other authorities. Hence, HROs in less secure settings should take very sketchy notes and begin preparing their reports only after reaching a secure location.

N. Timing, preparation, and substance of the observer's report

28. After observation, the principal responsibility of the HRO is to produce a report promptly. If the HRO's observation is to be effective, a report must be received while the prosecuting Government is still sensitive to authoritative, independent criticism and to public opinion. While promptness is vital, the observer should for security reasons generally not begin writing the report until the HRO is in a secure location. The report should be written in a language which can be used by the field operation.

29. To the extent that time permits, HROs should include the following information in their reports:

(1) the HRO's instructions or terms of reference;

(2) background of the case;

(3) facts of the case as revealed at trial and by independent monitoring with particular emphasis on the prosecution and defence evidence, charges, applicable laws, pretrial procedures, trial process, judgement (if any), and subsequent proceedings;

(4) the mental and physical condition of the accused and the conditions of confinement;

(5) an evaluation of the fairness of the proceedings, applicable laws, and treatment of the accused under national and international standards; and

(6) a conclusion (with recommendations).

30. The report might append:

(1) a copy of the Order of Trial Observation or similar instructions showing the terms of reference for the HRO undertaking the observation;

(2) copies of relevant procedural rules, court decisions, and laws;

(3) copies of charges, transcripts, and the court's judgement;

(4) a description of the HRO's methodology of observation, including materials studied and persons interviewed (to the extent consistent with security concerns);

(5) sensitive material such as the names, addresses, and telephone numbers of contacts who might be endangered by public disclosure (this material should be omitted from any published report);

(6) copies of newspaper articles referring to the trial and to the HRO's presence, with the names of the newspapers and the dates of publication;

(7) additional information not strictly within the HRO's terms of reference (such as information about other prisoners, forthcoming trials, changes in the law, etc.); and

(8) practical observations for the guidance of future HROs who will serve as observers.

O. Trial observation combined with other monitoring

31. Besides reporting what they see at trial, HROs who serve as trial observers often need to make factual determinations as to events which occurred out of their presence. Frequently, observers function as fact-finders who assess the evidence presented at trial, add outside information, and reach an overall decision as to the fairness of the proceedings, which may necessarily require a judgement on the guilt or innocence of the accused.

32. While the trial is a source of formally presented evidence, the HRO cannot personally question the witnesses in open court, nor assure the fairness of the fact-finding procedure. Hence, whenever possible the HRO should observe the proceedings while conducting a parallel, informal monitoring inquiry. For example, the HRO should gather relevant information if s/he suspects that the judge is prejudiced, the defence lawyers are under governmental pressure not to pursue a vigorous defence, or the prosecution is giving impunity to perpetrators of human rights abuses by not adequately seeking justice for past abuses. Observer inquiries outside of the trial should resemble interviews rather than adjudicative hearings. See Chapter VIII "Interviewing".

33. International monitoring is not restricted by jury-oriented evidentiary rules. Instead of using the exclusionary approach of a common-law court, the HRO should consider all available evidence and weigh that evidence carefully. The observing HRO should assure the reliability of the fact-finding process by using techniques such as cross-checking information from different sources and carefully questioning individuals who provide information.

34. As mentioned above, assessments of the fairness of trials, as well as visits to places of detention, constitute only two ways of checking to see whether the system of justice is functioning adequately. Human rights field operations often are given a mandate to monitor the administration of justice and to provide technical assistance. An understanding of the strengths and weaknesses of the justice system as it is actually functioning can assist the human rights field operation not only in identifying those responsible for violations, but more importantly in working with the host Government to identify technical assistance projects which will have a chance of improving the administration of justice -- even after the field operation has departed the country.

35. A broad analysis of the administration of justice requires a review not only of trial observation, but also an assessment of the actual functioning, qualifications, and training of the judges, court clerks, prosecutors, lawyers, other court personnel, police, prison officials, and other law enforcement personnel, etc. in each locality of the country. It also requires a review of the court rules, penal code, code of penal procedure, and other dispute resolution mechanisms to analyse whether reforms might be useful in light of international standards. In addition, regular meetings with officials from the Ministry of Justice may be useful in helping them to develop programmes for improvement of the administration of justice, such as training of judges, police, etc. ⁽²⁾ The human rights field operation may further be able to help seek or identify external resources for supporting such efforts.

36. If such is the mandate of the human rights field operation, the operation should not only report on specific trials in which concerns arise and prepare a broad analysis of the functioning of the administration of justice with recommendations for improvement, but should also prepare periodic updates on the functioning of the legal system, which can then be the subject of regular meetings with the Ministry of Justice as well as relevant local officials and judges. See Chapter XVIII "Following-Up and Seeking Corrective Action". Some of the issues which might be discussed in the broad analysis and then might be updated in periodic reports from area offices include: ⁽³⁾

(a) Numbers of judges, prosecutors, etc.; needs for training of judicial officials, training received, improvements, and difficulties.

(b) Presence or lack of materials necessary for functioning of judges, clerks, etc. (Without basic equipment of a prosecutor's or judge's office -- typewriters, paper, pens, tables, chairs, a vehicle, etc. - they cannot operate and thus cannot protect the rights of others.)

(c) Lack of the will to pursue tasks, appear for work, conduct investigations, create dossiers, etc.

(d) Interference or threats by administrative officials, military, police, and others.

(e) Instances of corruption, bribes, etc.

(f) Frequency of or statistics on arrests, filing of charges, hearings, trials, etc.

(g) Assessments of whether arrests are legally authorized.

(h) Assessments of whether police or judicial inquiries are actually occurring.

(i) Assessment of the fairness of trials which are held.

(j) What efforts at management and improvement are being undertaken by the leadership of the courts, the Ministry of Justice, etc.

(k) What efforts at reform have been undertaken and with what effect?


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Appendix 1 to Chapter XII: Checklist: The Elements of a Fair Trial ⁽⁴⁾

1. All persons shall be equal before the courts ⁽⁵⁾.

2. In the determinations of any criminal charge, or rights and obligations in a suit at law, everyone shall be entitled to a fair hearing ⁽⁶⁾.

3. Trials shall be public ⁽⁷⁾.

4. Trials shall be conducted by a competent, independent and impartial tribunal ⁽⁸⁾.

5. Trials shall be conducted only by tribunals established by law ⁽⁹⁾.

6. Everyone charged with a criminal offence shall have the right to be presumed inocent until proven guilty according to law ⁽¹⁰⁾.

7. In the determination of any criminal charges against him or her, everyone shall be entitled to the following minimum guarantees, in full equality ⁽¹¹⁾:

(a) to be informed promptly and in detail of the nature and cause of any charges in a language which he or she understands ⁽¹²⁾;

(b) to have adequate time and facilities for the preparation of a defense ⁽¹³⁾;

(c) to communicate directly with counsel of his or her own choosing ⁽¹⁴⁾;

(d) to be tried without undue delay ⁽¹⁵⁾;

(e) to be tried in his or her own presence, and to defend him or herself in person or through legal assistance of his or her own choosing ⁽¹⁶⁾;

(f) to be informed, if he or she does not have legal assistance, of the right to legal assistance ⁽¹⁷⁾;

(g) to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by him or her if he or she does not have sufficient means to pay ⁽¹⁸⁾;

(h) to examine the witnesses against him or her, and to examine the witnesses on his or her behalf under the same conditions ⁽¹⁹⁾;

(i) to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court ⁽²⁰⁾;

(j) not to be compelled to testify against him or herself or to confess guilt ⁽²¹⁾.

8. Everyone convicted of a crime shall have the right to have the conviction decision and sentence reviewed by a higher tribunal according to law ⁽²²⁾.

9. If someone is convicted by a final decision, but the conviction is subsequently reversed, or a pardon granted on the ground that a new or newly discovered fact shows conclusively that their has been a miscarriage of justice, the person who has suffered punishment as a result of the conviction is to be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partially attributable to the person convicted ⁽²³⁾.

10. No one shall be liable to be tried or punished again for an offence for which he or she has already been convicted or acquitted in accordance with the law and penal procedure of the country ⁽²⁴⁾.

11. 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 it was committed ⁽²⁵⁾.

12. A penalty heavier than the one that was applicable at the time when the criminal offence was committed shall not be imposed ⁽²⁶⁾.

13. 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 ⁽²⁷⁾.

14. No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation ⁽²⁸⁾.

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1. For a more detailed discussion of international fair trial standards, see the report submitted by Sub-Commission members Stanislav Chernichenko and William Treat, U.N. Doc. E/CN.4/Sub.2/1994/24 (1994).

2. ² These observations are based principally upon William G. O'Neill, Monitoring the Administration of Justice in Human Rights Field Operations in Hege Araldsen and Øyvind W. Thiis eds., Manual on Human Rights Monitoring (Norwegian Institute of Human Rights 1997).

3. Id.

4. OHCHR Internal document (1995). See also the sections on arrest and detention, in the Chapter .... on visits to places of detention, for additional information relevant to rights before trial.

5. ICCPR, Art. 14(1).

6. Id.

7. The press and public may be excluded from part or all of the trial, only for reasons of morals, public order, or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly required in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. The judgement, however, shall always be made public, except where the interests of juvenile persons otherwise requires or where the proceedings concern matrimonial disputes or the guardianship of children. ICCPR, Art. 14(1).

8. ICCPR, Art. 14(1).

9. Id.

10. ICCPR, Art. 14(2).

11. ICCPR, Art. 14(3).

12. ICCPR, Art. 14(3)(a).

13. ICCPR, Art. 14(3)(b).

14. Id.

15. ICCPR, Art. 14(3)(c).

16. ICCPR, Art. 14(3)(d).

17. Id.

18. Id.

19. ICCPR, Art. 14(3)(e).

20. ICCPR, Art. 14(3)(f).

21. ICCPR, Art. 14(3)(g).

22. ICCPR, Art. 14(5).

23. ICCPR, Art. 14(6).

24. ICCPR, Art. 14(/). This is known as the principle of ne bis in idem, or "double jeopardy".

25. ICCPR, Art. 15(1). this does not prejudice the trial or punishment of a person for acts committed which were criminal under general international law, including violations of customary international law such as war crimes, toture, slavery, genocide, etc. (see ICCPR Arti. 15(2)).

26. ICCPR, Art. 15(1). this does not prejudice the trial or punishment of a person for acts committed which were criminal under general international law, including violations of customary international law such as war crimes, toture, slavery, genocide, etc. (see ICCPR Arti. 15(2)).

27. ICCPR, Art. 15(1). this does not prejudice the trial or punishment of a person for acts committed which were criminal under general international law, including violations of customary international law such as war crimes, toture, slavery, genocide, etc. (see ICCPR Arti. 15(2)).

28. ICCPR, Art. 11.