Right to a Fair Trial

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Contents

Background

Every defendant has the right to a fair trial under international law. However, in many developing countries criminal justice systems have yet to realize the promise of a fair trial. Many factors contribute to this global failure.

Although criminal justice systems vary greatly around the globe, there are common features of every fair justice system.

The presumption of innocence is the cornerstone of any fair criminal justice system. This right gaurantees that the defendant is considered innocent during the entire period of suspicion, investigation. This period lasts until the defendant is either convicted or aquitted. This right may be violated by adverse public comments by a judge in charge of the trial, the use of anonymous judges and the refusal to consider a change of venue.

The right to be treated with humanity and the right to freedom from torture is also crucial for the fair administration of justice.

A defendant has a right to notice of charges so he or she can adequately prepare a defense. Notice must be in writing and should include both the law and the facts which form the basis for the charge. Furthermore, notice must be given in a language the defendant understands.

A defendant has a right to legal counsel under many international treaties. Defendant must be able to communicate freely and privately with counsel of his or her choice. A defendant may also waive his or her right to counsel and elect to represent themsleves pro se.

A defendant has the right not to be forced to testify against oneself. In some jurisdictions this may be called the the right to remain silent. A defendant has the right to have access to records of any interrogation that might occur.

A defendant must be permitted a fair and reasonable amount of time to prepare and defend their case. The amount of time necessary to defend a case depends on all the circumstances in a case.

International Sources

International Convenant on Civil and Political Rights

Article 14 -

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

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

(c) To be tried without undue delay;

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

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

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

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Article 15 -

1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Regional Instruments

European Convention on Human Rights

Article 6 -

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

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

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

American Convention on Human Rights

Article 8 -

1.Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

  • 2.Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
    • a.the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;
    • b.prior notification in detail to the accused of the charges against him;
    • c.adequate time and means for the preparation of his defense;
    • d.the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
    • e.the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;
    • f.the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;
    • g.the right not to be compelled to be a witness against himself or to plead guilty; and
    • h.the right to appeal the judgment to a higher court.
  • 3.A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.
  • 4.An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.
  • 5.Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

African [Banjul] Charter on Human and Peoples' Rights

Article 7 -

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.

Examples of Right to fair trial

Cambodia

  • No prosecution or arrest is allowed that is not in accordance with the law (art.38 Constitution)

India

  • The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. (art.14 Constitution)
  • For a trial to be fair, it must be an open court trial (s.327 CPC)
  • An accused shall be informed that he is entitled to have his case tried by another court. However, he has no right to select or determine by which other court the case is to be tried (s.191 CPC)

Kenya

Constitution

The right to a fair trial is guaranteed under Article 50 of the Constitution. The right incorporates many procedural guarantees given to the accused in criminal proceedings. The guarantees enumerated in Article 50 of the Constitution are the right: a) to be presumed innocent until the contrary is proved; b) to be informed of the charge, with sufficient detail to answer it; c) to have adequate time and facilities to prepare a defense; d) to a public trial before a court established under this Constitution; e) to have the trial begin and conclude without unreasonable delay; f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; g) to choose, and be represented by, an advocate, and to be informed of this right promptly; h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise i) result, and to be informed of this right promptly j) to remain silent, and not to testify during the proceedings; K) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; l) to adduce and challenge evidence; m) to refuse to give self-incriminating evidence; n) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; o) not to be convicted for an act or omission that at the time it was committed or omitted was not—an offence in Kenya; or a crime under international law; p) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted; q) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and r) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

  • 77(1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. (2) Every person who is charged with a criminal offence-(a) shall be presumed to be innocent until he is proved or has pleaded guilty.

Kenya Criminal Procedure Code (2009)

  • 81. (1) Whenever it is made to appear to the High Court - (a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto . . . it may order - (i) that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence; (ii) that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction; (iii) that an accused person be committed for trial to itself.

Tanzania

Constitution

  • (6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely:
    • (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned;
    • (b) no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence�etc

Criminal Procedure Act, 1985

  • 191(l) Whenever it is made to appear to the High Court
    • (a) that a fair and impartial inquiry or trial cannot be had in any court subordinate thereto, it may order
  • (i) that any offence be inquired into or tried by any court not empowered under the preceding. sections of this Part but in other respect competent to inquire into or try such offence,
  • (ii) that any particular criminal case or class of cases be transferred from court subordinate to its authority to any other court of equal or superior jurisdiction,
  • (iii) that an accused person be committed for trial to itself.

Uganda

Constitution

  • 28. Right to a fair hearing
  • (1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.
  • (3) Every person who is charged with a criminal offence shall� (a) be presumed to be innocent until proved guilty or until that person has pleaded guilty�etc

Zimbabwe

  • Every person is entitled to a fair hearing within a reasonable time by an independent and impartial court (s (18)(9) Constitution)

See Rights of the Accused