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

• 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

• 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)

• 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".

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• 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 Cantoral-Huamani & 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.