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, t