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Right To a Fair Trial Information

The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided.

Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. There is no binding international law that defines what is or is not a fair trial, for example the right to a jury trial and other important procedures vary from nation to nation.

Contents

Definition in international human rights law

The right to fair trial is enshrined in numerous declarations which represent customary international law, such as the Universal Declaration of Human Rights (UDHR).[1] Though the UDHR enshrines some fair trial rights, such as the presumption of innocence until the accused is proven guilty, in Articles 6, 7, 8 and 11,[2] the key provision is Article 10 which states that:

"Everyone 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."[3]

Some years after the UDHR was adopted it was decided that the right to a fair trial should be defined in more detail in the International Covenant on Civil and Political Rights (ICCPR). The right to a fair trial is protected in Articles 14 and 16 of the ICCPR which is binding in international law on the 72 states that have ratified it.[4] Article 14(1) establishes the basic right to a fair trial, article 14(2) provides for the presumption of innocence, and article 14(3) sets out a list of minimum fair trial rights in criminal proceedings. Article 14(5) establishes the right of a convicted person to have a higher court review the conviction or sentence, and article 14(7) prohibits double jeopardy.[5] Article 14(1) states that:

"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 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."[6]

Geneva Conventions - International right to a fair trial when no crime is alleged

The Geneva Conventions guarantee soldiers the right to not be put on trial for fighting in a war - unless they commit a war crime (a grave breech) or other crime. Most held under the Geneva Conventions are not accused of a crime and therefore it would be a war crime under the Geneva Conventions to give them a trial. This protection against getting a trial is fully consistent with human rights law because human rights law prohibits putting people on trial when there is no crime to try them for. The Geneva Conventions however guarantee that anyone charged with a war crime or other crime must get a fair trial.

Definition in regional human rights law

The right to a fair trial is enshrined in articles 3, 7 and 26 of the African Charter on Human and Peoples' Rights (ACHPR).[7]

The right to a fair trial is also enshrined in articles 5, 6 and 7 of the European Charter on Human Rights and articles 2 to 4 of the 7th Protocol to the Charter.[8]

The right to a fair trial is furthermore enshrined in articles 3, 8, 9 and 10 of the American Convention on Human Rights.[9]

Relationship with other rights

The right to equality before the law is sometimes regarded as part of the rights to a fair trial. It is typically guaranteed under a separate article in international human rights instruments. The right entitles individuals to be recognised as subject, not as object, of the law. International human rights law permits no derogation or exceptions to this human right.[10] Closely related to the right to a fair trial is the prohibition on ex post facto law, or retroactive law, which is enshrined in human rights instrument separately from the right to fair trial and can not be limited by states according to the European Convention on Human Rights and the American Convention on Human Rights.[11]

Fair trial rights

The right to a fair trial has been defined in numerous regional and international human rights instruments. It is one of the most extensive human rights and all international human rights instruments enshrine it in more than one article.[12] The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right.[13] Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms.[14] The aim of the right is to ensure the proper administration of justice. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings:[15]

States may limit the right to a fair trial or derogate from the fair trial rights only under circumstances specified in the human rights instruments.[17]

The right to a fair trial in criminal proceedings

Historically the right to a fair trial was regarded as more important in criminal proceedings, because the consequences for the individual are more severe in criminal proceedings compared to civil proceedings. In criminal proceedings the right to a fair trial include the following fair trial rights:[18]

The right to a fair trial in civil proceedings

The European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies to all types of judicial proceedings, whether civil and criminal. According to the European Court of Human Rights Article 6 of the European Convention on Human Rights and the fair trial rights apply to all civil rights and obligations created under domestic law and therefore to all civil proceedings (see Apeh Uldozotteinek Szovetsege and Others v. Hungary 2000).[20]

The right to a fair trial in administrative proceedings

Both the European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies not only to judicial proceedings, but also administrative proceedings. If a individual's right under the law is at stake, the dispute must be determined through a fair process.[21]

The right to a fair trial in special proceedings

In Europe special proceeding may also be subject to Article 6 of the European Convention on Human Rights. In Mills v. the United Kingdom 2001 the European Court of Human Rights held that a court-martial was subject to Article 6 because of the defendants had been accused of what the court considered to be serious crime, assault with a weapon and wounding.

The African Commission on Human and Peoples' Rights (ACHPR) frequently deals with instances where civilians are tried by military tribunals for serious crimes. The ACHPR has held that on the face of it military courts to do not satisfy civilians' right to a fair trial (see Constitutional Rights Project v. Nigeria). In this respect the ACHPR has reaffirmed the right to counsel as essential in guaranteeing a fair trial. The ACHPR held that individuals have the right to choose their own counsel and that giving the military tribunal the right to veto a counsel violates the right to a fair trial.[22]

Impeding a fair trial

A fair trial might be impeded by:

See also

References

  1. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  2. ^ Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a common standard of achievement. Martinus Nijhoff Publishers. pp. 225. ISBN 9789041111685. http://books.google.com/books?id=FmuoB-BlMvEC&dq=%22right+to+property%22.
  3. ^ "Universal declaration of Human Rights". United Nations. http://www.un.org/en/documents/udhr/index.shtml.
  4. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 107. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  5. ^ Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a common standard of achievement. Martinus Nijhoff Publishers. pp. 225–226. ISBN 9789041111685. http://books.google.com/books?id=FmuoB-BlMvEC&dq=%22right+to+property%22.
  6. ^ "International Covenant on Civil and Political Rights". Office of the United Nations High Commissioner for Human Rights. http://www2.ohchr.org/english/law/ccpr.htm.
  7. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  8. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  9. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  10. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 110. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  11. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  12. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 107–108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  13. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 110. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  14. ^ Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a common standard of achievement. Martinus Nijhoff Publishers. pp. 225. ISBN 9789041111685. http://books.google.com/books?id=FmuoB-BlMvEC&dq=%22right+to+property%22.
  15. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  16. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  17. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  18. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 109. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  19. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 109. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  20. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  21. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 108. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.
  22. ^ Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 109. ISBN 9780974357027. http://books.google.com/books?id=mQ61oCPJ1GEC&pg=PA108&dq=right+to+fair+trial#v=onepage&q=right%20to%20fair%20trial&f=false.

External links

· · Articles of the Universal Declaration of Human Rights
General principles

Article 1: Freedom, Egalitarianism, Dignity and Brotherhood Article 2: Universality of rights
International Covenant on Civil and Political Rights

Article 1 and 2: Right to freedom from discrimination · Article 3: Right to life, liberty and security of person · Article 4: Freedom from slavery · Article 5: Freedom from torture and cruel and unusual punishment · Article 6: Right to personhood · Article 7: Equality before the law · Article 8: Right to effective remedy from the law · Article 9: Freedom from arbitrary arrest, detention and exile · Article 10: Right to a fair trial · Article 11.1: Presumption of innocence · Article 11.2: Prohibition of retrospective law · Article 12: Right to privacy · Article 13: Freedom of movement · Article 14: Right of asylum · Article 15: Right to a nationality · Article 16: Right to marriage and family life · Article 17: Right to property · Article 18: Freedom of thought, conscience and religion · Article 19: Freedom of opinion and expression · Article 20.1: Freedom of assembly · Article 20.2: Freedom of association · Article 21.1: Right to participation in government · Article 21.2: Right of equal access to public office · Article 21.3: Right to universal suffrage
International Covenant on Economic, Social and Cultural Rights

Article 1 and 2: Right to freedom from discrimination · Article 22: Right to social security · Article 23.1: Right to work · Article 23.2: Right to equal pay for equal work · Article 23.3: Right to just remuneration · Article 23.4: Right to join a trade union · Article 24: Right to rest and leisure · Article 25.1: Right to an adequate standard of living · Article 25.2: Right to special care and assistance for mothers and children · Article 26.1: Right to education · Article 26.2: Human rights education · Article 26.3: Right to choice of education · Article 27: Right to science and culture ·
Context, limitations and duties

Article 28: Social order · Article 29.1: Social responsibility · Article 29.2: Limitations of human rights · Article 29.3: The supremacy of the purposes and principles of the United Nations Article 30: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Category:Human rights · Human rights portal
· · Substantive human rights
Note: What is considered a human right is controversial and not all the topics listed are universally accepted as human rights.
Civil and political

Freedom from discrimination · Right to life · Right to die · Security of person · Liberty · Freedom of movement · Freedom from slavery · Personhood · Right to bear arms · Right to equality before the law · Freedom from arbitrary arrest and detention · Freedom from torture · Freedom from cruel and unusual punishment · Right to a fair trial · Presumption of innocence · Right of asylum · Nationality · Freedom from exile · Privacy · Freedom of thought and conscience · Freedom of religion · Freedom of expression · Freedom of information · Freedom of assembly · Freedom of association · Right to protest · Universal suffrage · Marriage · Family life · Same-sex sexual relations
Economic, social and cultural

Labor rights · Fair remuneration · Equal pay for equal work · Trade union membership · Right to social security · Right to rest and leisure · Right to work · Right to property · Right to science and culture · Right to public participation · Right to education · Right to adequate standard of living · Right to housing · Right to development · Right to health · Right to healthcare · Right to water · Right to food · Right of return · Right to Internet access
Reproductive

Family planning · Reproductive health · Abortion · Freedom from involuntary female genital mutilation
War and conflict

Civilian · Combatant · Freedom from genocide · Prisoner of war · War rape
Related philosophy

Negative and positive rights · Claim rights and liberty rights · Freedom versus license · Desert claim · Social contract · Meritocracy · Equality before the law

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