Right to a fair trial

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A trial which is observed by trial judge without being partial is a fair trial. 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 not a fair trial; for example, the right to a jury trial and other important procedures vary from nation to nation. [1]

Contents

Definition in international human rights law

The right to fair trial is very helpful to explore in numerous declarations which represent customary international law, such as the Universal Declaration of Human Rights (UDHR). [2] 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, [3] 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." [4]

Some years after the UDHR was adopted,[ when? ] the right to a fair trial was 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 those states that are party to it. [5] 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. [6] 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." [7]

Geneva Conventions

The Geneva Conventions (GC) and their Additional Protocols (APs) require that any prisoners of war facing a judicial proceeding receive a fair trial. [8] For example, Articles 102–108 of the 1949 Third Geneva Convention detail requirements for the fairness of trials against prisoners of war. [8] Other provisions require a "fair and regular trial"; "safeguards of proper trial and defence"; an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure"; a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples"; and "court offering the essential guarantees of independence and impartiality." [8]

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). [2]

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

The right to a fair trial is furthermore enshrined in articles 3, 8, 9 and 10 of the American Convention on Human Rights. [2]

Relationship with other rights

The right to equality before the law is sometimes regarded as part of the right 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. [9] 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. [2]

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. [10] The right to a fair trial is one of the most litigated human rights and substantial case law that has been established on the interpretation of this human right. [9] 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. [3] 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: [2]

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. [2]

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 or 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). [2]

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 an individual's right under the law is at stake, the dispute must be determined through a fair process. [2]

In special proceedings

In Europe special proceeding may also be subject to Article 6 of the European Convention on Human Rights. [11] 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. [12]

In the United Kingdom

Right to a fair trial in the United Kingdom is guaranteed by the Article 6 of the Human Rights Act 1998. [13]

Between 1971 and 1975, the right to a fair trial was suspended in Northern Ireland. Suspects were simply imprisoned without trial, and interrogated by the British army for information. This power was mostly used against the Catholic minority. The British government supplied deliberately misleading evidence to the European Court of Human Rights when it investigated this issue in 1978. [14] The Irish government and human rights group Amnesty International requested that the ECHR reconsider the case in December 2014. [15] Three court cases related to the Northern Ireland conflict that took place in mainland Britain in 1975 and 1976 have been accused of being unfair, resulting in the imprisonment of the Birmingham Six, Guildford Four and Maguire Seven. These convictions were later overturned, though an investigation into allegations that police officers perverted the course of justice failed to convict anyone of wrongdoing.

The United Kingdom created an act – the Special Immigration Appeals Act in 1997, which then led to the creation of the Special Immigration Appeals Commission (SIAC). [16] It allowed for secret evidence to be stated in court; however, it provides provisions for the anonymity of the sources and information itself. The judge has the power to clear the courtroom of the public and press, and the appellant if need be, if sensitive information must be relayed. The appellant is provided with a Special Advocate, who is appointed in order to represent their interests, however no contact can be made with the appellant after seeing the secret evidence. SIAC is mostly used for deportation cases, and other cases of public interest. [17]

Secret evidence has seen increased use in UK courts. Some argue that this undermines the British criminal justice system, as this evidence may not come under proper democratic scrutiny. Secret evidence can now be used in wide range of cases including deportations hearings, control orders proceedings, parole board cases, asset-freezing applications, pre-charge detention hearings in terrorism cases, employment tribunals and planning tribunals.

In England and Wales, the origin of Right To Fair Trial & Right To Be Heard can be traced back in the Magna Carta Act, 1215. Art. 39 of the Act speaks about fair trial and punishment by a competent court after the trial.

Juries and a fair trial

The rationale for a jury was that it offers a check against state power.[ citation needed ]

Under Article 6 of the ECHR, the right to a fair trial implies that accused and public must be able to understand the verdict. Trials decided by jury, as they do not provide reasons for their decision, therefore do not allow for this. [18] In Taxquet v Belgium [19] a violation of article 6(1) was found. The court also implied a right to a reasoned verdict, irrespective of whether that was given by a judge or a jury.

Under ECHR case law, jury decisions can also be problematic in circumstances where juries draw adverse inferences from trial judges' directions in contravention of Article 6(3) (b) and (c). [20]

See also

Related Research Articles

European Convention on Human Rights International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights (ECHR) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.

Human rights Inalienable and fundamental rights to which a human is inherently entitled

Human rights are moral principles or norms for certain standards of human behaviour and are regularly protected in municipal and international law. They are commonly understood as inalienable, fundamental rights "to which a person is inherently entitled simply because she or he is a human being" and which are "inherent in all human beings", regardless of their age, ethnic origin, location, language, religion, ethnicity, or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone. They are regarded as requiring empathy and the rule of law and imposing an obligation on persons to respect the human rights of others, and it is generally considered that they should not be taken away except as a result of due process based on specific circumstances.

European Court of Human Rights Supranational court in Strasbourg, France, established by the European Convention on Human Rights

The European Court of Human Rights, also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the Convention or its optional protocols to which a member state is a party. The European Convention on Human Rights is also referred to by the initials "ECHR". The court is based in Strasbourg, France.

International Covenant on Civil and Political Rights Treaty adopted by United Nations General Assembly in 1966

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966, and in force from 23 March 1976 in accordance with Article 49 of the covenant. Article 49 allowed that the covenant would enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession. The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of September 2019, the Covenant has 173 parties and six more signatories without ratification. Notable holdouts are People's Republic of China and Cuba. North Korea tried to withdraw.

International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.

The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.

Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. In absentia is Latin for "in (the) absence". Its meaning varies by jurisdiction and legal system.

Non bis in idem which translates literally from Latin as 'not twice in the same [thing]', is a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action. It is a legal concept originating in Roman civil law, but it is essentially the equivalent of the double jeopardy doctrine found in common law jurisdictions, and similar peremptory plea in some modern civil law countries.

The right to property or right to own property is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically heavily constrained insofar as property is owned by legal persons and where it is used for production rather than consumption.

Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters. There are nine enumerated rights protected in section 11.

The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine is an international instrument aiming to prohibit the misuse of innovations in biomedicine and to protect human dignity. The Convention was opened for signature on 4 April 1997 in Oviedo, Spain and is thus otherwise known as the Oviedo Convention. The International treaty is a manifestation of the effort on the part of the Council of Europe to keep pace with developments in the field of biomedicine; it is notably the first multilateral binding instrument entirely devoted to biolaw. The Convention entered into force on 1 December 1999.

United Kingdom administrative law

United Kingdom administrative law is part of UK constitutional law that is designed through judicial review to hold executive power and public bodies accountable under the law. A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest", within three months of the grounds of the cause of action becoming known. By contrast, claims against public bodies in tort or contract are usually limited by the Limitation Act 1980 to a period of 6 years. Almost any public body, or private bodies exercising public functions, can be the target of judicial review, including a government department, a local council, any Minister, the Prime Minister, or any other body that is created by law. The only public body whose decisions cannot be reviewed is Parliament, when it passes an Act. Otherwise, a claimant can argue that a public body's decision was unlawful in five main types of case: (1) it exceeded the lawful power of the body, used its power for an improper purpose, or acted unreasonably, (2) it violated a legitimate expectation, (3) failed to exercise relevant and independent judgement, (4) exhibited bias or a conflict of interest, or failed to give a fair hearing, and (5) violated a human right. As a remedy, a claimant can ask for the public body's decisions to be declared void and quashed, or it could ask for an order to make the body do something, or prevent the body from acting unlawfully. A court may also declare the parties' rights and duties, give an injunction, or compensation could also be payable in tort or contract.

Article 6 of the European Convention on Human Rights is a provision of the European Convention which protects the right to a fair trial. In criminal law cases and cases to determine civil rights it protects the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, right to silence and other minimum rights for those charged in a criminal case.

Benthem vNetherlands was a European Court of Human Rights case on the right to a fair trial. It concerned the grant of a permit by a municipal authority, with which the Dutch Government, then referred to as the Crown in legal cases, disagreed. Several legal proceedings were brought in respect of this permit, which were ultimately decided by the Government itself, under the Kroonberoep procedure.

Article 12 of the European Convention on Human Rights (ECHR) provides for two constituent rights: the right to marry and the right to found a family. With an explicit reference to ‘national laws governing the exercise of this right’, Article 12 raises issues as to the doctrine of the margin of appreciation, and the related principle of subsidiarity most prominent in European Union Law. It has most prominently been utilised, often alongside Article 8 of the Convention, to challenge the denial of same sex marriage in the domestic law of a Contracting state.

In criminal law, the right to a speedy trial is a human right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely. Otherwise, the power to impose such delays would effectively allow prosecutors to send anyone to jail for an arbitrary length of time without trial.

Justice and Security Act 2013 United Kingdom legislation

The Justice and Security Act 2013 is an Act of the Parliament of the United Kingdom, firstly to provide for oversight of the Security Service (MI5), the Secret Intelligence Service (MI6), the Government Communications Headquarters (GCHQ), and other parts of the UK intelligence community, on intelligence or security matters; secondly to provide for the establishment of closed material procedures (CMP) in relation to certain civil proceedings; and thirdly to prevent the making of court orders for the disclosure of what the government deems to be sensitive information.

Ganna Yudkivska

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The right to family life is the right of all individuals to have their established family life respected, and to have and maintain family relationships. This right is recognised in a variety of international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights.

Human rights in the Kingdom of Denmark are protected by the state's Constitution of the Realm (Danmarks Riges Grundlov); applying equally in Denmark proper, Greenland and the Faroe Islands, and through the ratification of international human rights treaties. Denmark has held a significant role in the adoption of both the European Convention on Human Rights and in the establishment of the European Court of Human Rights (ECHR). In 1987, the Kingdom Parliament (Folketinget) established a national human rights institution, the Danish Centre of Human Rights, now the Danish Institute for Human Rights.

References

  1. Doswald-Beck, Louise. Fair Trial, Right to, International Protection, Max Planck Encyclopedia of Public International Law
  2. 1 2 3 4 5 6 7 8 9 10 Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. p. 108. ISBN   978-0-9743570-2-7.
  3. 1 2 Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a common standard of achievement. Martinus Nijhoff Publishers. p. 225. ISBN   978-90-411-1168-5.
  4. "Universal declaration of Human Rights". United Nations.
  5. Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. p. 107. ISBN   978-0-9743570-2-7.
  6. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a common standard of achievement. Martinus Nijhoff Publishers. pp. 225–226. ISBN   978-90-411-1168-5.
  7. "International Covenant on Civil and Political Rights". Office of the United Nations High Commissioner for Human Rights. Archived from the original on 2008-07-05.
  8. 1 2 3 Nehal Bhuta, Joint Series on International Law and Armed Conflict: Fair Trial Guarantees in Armed Conflict, EJIL: Talk! Blog of the European Journal of European Law (September 22, 2016).
  9. 1 2 Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. p. 110. ISBN   978-0-9743570-2-7.
  10. Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. pp. 107–108. ISBN   978-0-9743570-2-7.
  11. The immunity could not be an obstacle: on the one hand , following a immunity resolution of the Senate, the judicial proceeding may raise jurisdictional dispute before the Constitutional Court ( ... ); on the other side (….) the citizen may submit an appeal to the European Court of Human Rights Buonomo, Giampiero (2002). "L'Italia "difende" il Regno Unito in nome del procuratore Cordova". Diritto&Giustizia Edizione Online.[ dead link ]
  12. Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. p. 109. ISBN   978-0-9743570-2-7.
  13. "Article 6: Fair trials". Liberty. 31 August 2010. Retrieved 17 August 2019.
  14. 'British ministers sanctioned torture of NI internees' (5 June 2014)
  15. "Bid to reopen NI 'torture' case". 2 December 2014. Retrieved 3 April 2018 via www.bbc.com.
  16. "Special Immigration Appeals Commission Act 1997". legislation.gov.uk. Retrieved 20 September 2015.
  17. "Apply to the Special Immigration Appeals Commission". justice.gov.uk. Retrieved 20 September 2015.
  18. Lemmens, P. (2014). The right to a fair trial and its multiple manifestations. In E. Brems & J. Gerards (Eds.), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (pp. 294-314). Cambridge Books Online: Cambridge University Press.
  19. "HUDOC - European Court of Human Rights". coe.int. Retrieved 20 September 2015.
  20. "HUDOC - European Court of Human Rights". coe.int. Retrieved 20 September 2015.