Fair Trial
Cecilia M. Bailliet
Background
• English Magna Carta Libertatum of 1215
prohibited imprisonment without a lawful
judgment
• Habeus Corpus Act of 1679 No subject may be
taken into custody without due process of law
• Bill of Rights of 1689
Larry May Global Justice and Due
Process (Cambridge 2011)
• Habeas Corpus
• Body must be produced to demonstrate that the
person has not been killed
• Bringing the body into the light of day allows one to
see if there are marks on the body indicating torture or
other forms of physical abuse
• Public reading of the charges against the prisoner is
meant to act as a deterrent against arbitrary or
unlawful incarceration
• Principle of Visibleness- counter to secrecy that marks
the arbitrary exercise of power
• Calls for the establishment of a World Court of Equity
Civil and Administrative Proceedings
• Access to an independent and impartial tribunal
established by law and a fair and public hearing
both in the determination of criminal charges and
in cases of determination of rights and
obligations in a suit at law or disputes regarding
civil rights and obligations.
• ICCPR Article 14, See HRC General Comment 32
(Core guarantees also apply in War)
• ECHR Art. 6
• ACHR Art. 8
Rights of a Civil Nature
• Pecuniary or proprietary entitlements or contracts
between parties of equal status and not to a
relationship in which the individual is subject to the
state’s authority.
• Administrative entitlements, such as social security,
pension of civil servants or soldiers, authorizations to
carry on a business or to practise a profession and
property matters such as land sales and expropriation.
• NO PROTECTION for taxes, customs duties, the right to
stand for election, or asylum or deportation
Arbitrary Arrest, Detention, or
Deprivation of Liberty
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Persons may be arrested, detained or deprived of liberty:
Only on grounds established by law
Be informed promptly of the reasons for their arrest
Be brought promptly before a judicial authority to
determine the lawfulness of the deprivation of liberty
• Anyone arrested or detained on suspicion of having
committed a criminal offence must be charged and brought
to trial or must be released.
• Anyone who has been the victim of unlawful deprivation of
liberty has a right to compensation.
• ICCPR, Art. 9, ACHR Art. 7, ACHPR , Art. 6, ArCHR, Art. 14,
ECHR, Art. 5
Deprivation of Liberty
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Arrest
Pre-trial detention
Imprisonment on conviction
Coercive internment in locked wards of psychiatric hospitals
Detention of foreigners as illegal immigrants or pending extradition
or deportation
Obligation for asylum seekers to await decision in airport transit
area
Arrest as a disciplinary penalty in military service
Internal exile to a small island where there is no opportunity for
normal social contact
Enforced Disappearances
Look at ground invoked and place and condition of detention
ICCPR Art. 9
• No one shall be deprived of his liberty except
on such grounds and in accordance with such
procedure as are established by law
• Deprivation must be lawful- compatible with
substantive and procedural guarantees, such
as warrant, legal order of confinement, in
prompt, timely accordance with court order
for release or after serving sentence
ECHR Article 5
• Permissible grounds for deprivation of liberty:
• Execution of a sentence after conviction by a competent court
• Arrest or Detention of a person for non-compliance with the lawful order
of a court or in order to secure the fulfillment of any obligation prescribed
by law
• The arrest of suspected offenders and pre-trial detention where there is a
risk of flight or where it is necessary to prevent the commission of further
offences
• Detention of a minor for the purpose of educational supervision or for the
purpose of bringing him before the competent legal authority
• Detention for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants
• Detention of foreigners to prevent their unauthorized entry into the
country or with a view to ensuring their deportation or extradition.
• Preventive detention of persons suspected of terrorism is a violation
according to ECHR (but not ICCPR) Lawless v. Ireland, ECTHR (1961) except
in public emergency
Arbitrary Detention
• Unreasonableness (arrest for expression of political
opinion)
• Injustice
• Unpredictability
• Unfairness (held longer than necessary)
• ICCPR does not prohibit preventive detention, but must be
necessary to protect public security or rights or others and
must comply with procedural guarantees (such as periodic
review by independent authority, see Rameka v. New
Zealand).
• ECtHR calls for periodic review of
preventive/lengthy/indefinite detention of aggressive,
dangerous, mentally ill. (Rutten v. Netherlands, X. v. U.K.,
Musial v. Poland)
Asylum seekers
• Automatic detention of asylum seekers
without release until granted asylum or
deported considered illegitmate A. v. Australia
HRC 1999
• But can detain asylum seeker who has
attempted to abscond. Jalloh v. The
Netherlands HRC 1998
Right to be informed promptly of the
reasons for deprivation of liberty
• Criminal and other forms of deprivation of
liberty
• Information must be given in a language that
the person understands
• Without an inexcusable delay (not
immediately)
• ICCPR Art. 9, ECHR, Art. 5
Right to Review the Lawfulness of the
Deprivation of Liberty
• Persons who are suspected of having committed a criminal
offence upon arrest or detention must be brought promptly
before a judge or other officer authorized to exercise
judicial power
• Must be automatic in order to ensure that arbitrary
deprivation of liberty does not last long (no more than a
few days/48 hours), and to prevent torture and enforced
disappearance.
• Independent judge (not public prosecutor, or commanding
officer)-review circumstances, refer to legal criteria, and
order release if no grounds for detention.
• ICCPR Art. 9, ACHR Art. 7, ArCHR Art. 14, ECHR Art. 5
Right to Review the Lawfulness of the
Deprivation of Liberty
• Deprivation of liberty on grounds not based in
criminal law, the person has the right at any
time to demand review of the lawfulness of
the detention by a court, which must decide
without delay or speedily on the application
for release.
• Independent Court (few days)
• ICCPR Art. 9, ACHR, Art. 7, ArCHR, Art. 14,
ECHR Art. 5
Right to Review the Lawfulness of the
Deprivation of Liberty
• Where the deprivation of liberty continues for
some time, the grounds that originally warranted
detention may subsequently cease to exist.
• Periodic review of long term detention (examine
cases of dangerous and potentially recidivist
offenders)
• Short interval review of pre trial detention
• ICCPR Art. 9, ACHR Art. 7, ArCHR Art. 14, ECHR
Art. 5
Entitlement to Trial within a
Reasonable Time or to Release
• When a persons is arrested on suspicion of
having committed an offence, legal
proceedings must be brought against him
within a reasonable time.
• Look at complexity of case, conduct of
detainee, and other circumstances, risk of
absconding, reoffending, etc.
• ICCPR Art. 9, ECHR, Art. 5, ACHR, Art. 7
Right to compensation in the event of
unlawful deprivation of liberty
• Not enough to be aquitted, pre trial detention
may be lawful
• Violation where person is detained after judge
orders release
• ICCPR Art. 9, ACHR, Art. 10, ArCHR, Art. 14,
ECHR, Art. 5
Right to Equality before Courts and to
Fair and Public Hearing
• Equal access to first instance procedures (not
appeal or remedies)
• Equality of arms (same procedural rights unless
distinction is based on law and can be justified on
objective and reasonable grounds) Violation
where only the prosecutor can appeal, defendent
cannot comment on brief, or court faild to take
important evidence into account
• Parties are treated without discrimination
Right to be Tried by a Competent, Independent
and Impartial Tribunal established by law
• No ad hoc courts
• Tribunals may not take instructions from the legislature
or the executive
• Tribunal must be free from outside influence
• Judges should be appointed for a specific term of office
• Judge must not harbor preconceptions regarding case,
must remain uninfluenced by public opinion or other
external pressure, must refrain from treating one of
the parties favorably or unfavorarly (kinship,
friendship, or enmity)
• Judge must be impartial
The Right to a Fair and Public Hearing and to
Public Pronouncement of the Judgment
• Absence of direct or indirect influence, pressure, or intimidation or
intrusion from whateverside or for whatever motive
• Look at hostile attitude from public, or support for one party in the
courtroom that is tolerated by the court, racial bias of jury
• No secrecy, judges must be under public scrutiny
• Public character of hearings and pronouncements of judgments,
first instance proceedings should be conducted orally with a public
hearing (but not at appeal level)
• Media and public may be excluded for reasons of morals, public
order, or national security in a democratic society, or when the
interest of the private lives of the parties so requries, or to the
extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice. (protection of witnesses)
Presumption of Innocence
• Everyone charged with a criminal offence shall have
the right to be presumed innocent until proven guilty
according to the law.
• Officials must refrain from acts that may influence
outcome of proceedings, such as declartion of guilt at
press conference
• Burden of proof rests on the prosecution
• Court must make every effort to uncover the truth until
charge has been provedn beyond a reasonable doubt
• Where doubt exists, the adjudicating body must decide
in favor of the accused.
• HRC states that presumption of innoncence and right
to defence are non-derogable even in war
Rights of the defendent during the trial
• Right to be informed of the charge- for preparation of
defence and exercise of rights in proceedings, prompt
information (on nature/category of offence, cause of
charge/elements) , without inexcusable delay, in detail,
in a language that he or she understands.
• Right exists from the time person is charged or publicly
named as an accused persons
• The right is not applicable while the persons is only
under investigation
• ICCPR Art. 14, ACHR Art. 7, ArCHR Art. 16, ECHR Art. 6
Rights of the defendent during the trial
• Defendents have a right to adequate time and facilities
for the preparation of a defence
• Material requirements such as access to relevant
documents, the opportunity to choose and to contact a
lawyer, right of counsel to communicate freely and
confidentially with the defendent. Look at complexity
of case to determine amount of time.
• Violation when accused is held incommuniccado,
deprived of all contact with outside world, or does not
meet counsel until first day of trial.
• ICCPR Art. 14, ACHR, Art. 8, ArCHR Art. 13, ECHR, Art. 6
Rights of the defendent during trial
• Right to be tried without undue delay- all
stages of proceedings must be expeditious.
• Commences from notification of person of
allegation, time of arrest or preliminary
questioning
• Look at complexity of case and condut of
accused
• ICCPR Art. 14, ACHR, Art. 8, ACHPR Art. 7,
ECHR Art. 6
Rights of the defendent during trial
• The right to a defence
• Accused is able to attend proceedings
• Accused may choose whether to defend
themselves personally or through counsel of their
own choosing, must be informed of right if they
have no legal assistance
• If accuses has insufficient means to pay for legal
assistance, a defence counsel must be assigned
free of charge where the interests of justice so
require- look at gravity of the offence, severity of
the penalty, and complexity of the case
Rights of the defendent during the trial
• Right of accused to examine or have examined
the witnesses against him and to obtain the
attendence and examination of witnesses on
his behalf under the same conditions as
witnesses against him
• Cross examination of the witnesses of the
prosecution and right to examine one’s own
witnesses
Rights of the defendent during trial
• Right to the assistance of an interpreter
• At every stage of proceedings
• Right to have all statements and documents of
relevance to the trial translated
• Applciable to foreigners and nationals
• Free assistance
Rights of the defendent during trial
• Right not to be compelled to tesitify against
oneself
• Protects defendent, not witnesses
• Prohibits psychological pressure, threat of
punishment, ill-treatment, and torture
Rights of the defendents during trial
• Right to have a conviction and sentence reviewed by a
higher tribunal
• ICCPR Art. 14, ACHR, Art. 8, ArCHR Art. 16.
• Right to compensation for a miscarriage of justice
• ICCPR Art. 14, ACHR, Art. 10, ArCHR Art. 19, p7ECHR, Art. 3
• Ne bis in idem- No one may be prosecuted again for an
offence for which he or she has already been convicted or
acquitted in accordance with the law of that country (does
not preclude reopening case based on new facts or if defect
in previous proceeding that affected case)
• ICCPR Art. 14, ACHR, Art. 8, ArCHR Art. 19, ACHPR Art. 7,
P7ECHR Art.4)
No penalty without Law and Prohibition of
Retrospective Criminal Legislation
• Liability for punishment is confined to acts taht were prohibited by
law and punishable at the time of their commission
• Non-derogable
• Applies also where law is so vague that person could not have
known what was prohibited even by exercising due care.
• No law may be applied to an offence that was committed before
the law came into force. Nullem crimen sine lege.
• Stiffer penalties introduced after the commission of a punishable
act are not applicable to that act. Nulla poena sine legel.
• There is no retroactive effect if it was a war crime, crime against
humanity or any other crime under international law.
• There is no retrospective effect if a criminal provision is repealed
and replaced by another provision that is the same (with no heavier
penalty).
Military Courts
• Inter-American Commission of Human Rights- Military Courts
can only recieve claims against military personnel for crimes
committed while in service
• ECTHR military courts lack independence and impartiality in
relation to civilians
• Human Rights Committee- Trials must conform with
requirements of Art. 14, concern for equitable, impartial, and
independent administration of justice- trial should be
necessary and justified by objective and serious reasons, and
where with regard to the specific class of individuals and
offences at issue the regular civilian courts are unable to
undertake the trials.
Inter-American Court of Human Rights Durand &
Ugarte Case (2001)
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On July 15, 1986 the First Correctional Tribunal of the Superior Court of Justice of Callao issued liberty
deprivation imposed on Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera "to make mention to a
detention warrant issued within the proceeding on charges of terrorism" confirmed that the decision was
appealed and considered the habeas corpus recourse on behalf of said persons baseless. On August 13,
1986 the First Hall of the Penitentiary of the Supreme Court stated "no nullity" of the application issued by
the Correctional Tribunal. Finally, on October 28, 1986 the Constitutional Tribunal of Guarantees, in view
of the recourse of nullification filed, declared the decision of the Supreme Court of Justice “unalterable".
The Court has interpreted Articles 7(6) and 27(2) of the Convention. In advisory opinion OC-8 of January
30, 1987 it has sustained that "habeas corpus and protection proceedings are those judicial guarantees
indispensable for the protection of some rights whose suspension is forbidden by Article 27(2) besides
they are aimed at preserving legality in a democratic society".
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In advisory opinion OC-9, this Tribunal has stated that
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Indispensable judicial guarantees for the protection of human rights not capable of suspension, according
to Article 27(2) of the Convention, are those particularly referred to explicitly in Articles 7(6) and 25(1),
considered within the context and according to Article 8 principles, and also inherent to the preservation
of the Government of Laws, even under the exceptional legality resulting from the suspension of
guarantees.
Military Courts can only address proceedings which incolve crimes that violate military interests
Inter-American Court of Human Rights CantoralHuamani & Garcia- Santa Cruz v. Peru (2007)
• The Court recalls that, as a result of the
protection granted by Articles 8 and 25 of the
Convention, the States are obliged to provide
effective judicial recourses to the victims of
human rights violations that must be
substantiated according to the rules of due
process of law.