2 Right to a Public Trial

This chapter examines the right to a public trial, which protects both the defendant in a criminal trial and the interests of society as a whole in having a fair system of open justice. Under international human rights law, the right requires that a criminal trial should be held in public and that the court’s judgment is pronounced publicly. However, the right to a public trial is not absolute. The right may, for instance, be limited by valid national security concerns, or to protect the interests of a child or victim of sexual assault. This chapter examines the circumstances in which international bodies have found that exceptions to the right to a public trial are justified, and the additional measures that may be required to ensure that a criminal trial remains fair when there are restrictions on the public nature of proceedings. right to fair trial

3 Right to be Presumed Innocent

This chapter focuses on the right to be presumed innocent, one of the most ancient and important principles of criminal justice, and a prerequisite for any system based on the rule of law. The right is absolute and non-derogable and, at its core, prohibits convictions that are predetermined or based on flimsy grounds. International human rights bodies have therefore found that where a conviction is based on non-existent, insufficient, or unreliable evidence, the presumption has been violated and a miscarriage of justice has occurred. More frequently, international human rights bodies have applied the presumption to require specific procedural protections during a trial. These include guarantees that the prosecution bears the burden of proving a defendant’s guilt beyond reasonable doubt, and that the defendant should not be presented or described as a criminal before he has been proved to be one. The chapter concludes that the presumption is protected in similar terms in international human rights treaties, but also highlights divergences in international jurisprudence relating to the standard for finding that a court’s assessment of evidence violates the presumption, the permissibility of reversing the burden of proof, and the extent to which the presumption applies after a trial has been completed.

8 Right to Examine Witnesses

This chapter studies the right to examine witnesses, which is fundamental to an effective defence. Allowing a prosecution witness to submit uncontested testimony, or depriving a defendant of the opportunity to call a witness who can provide exculpatory evidence, can lead to a serious miscarriage of justice. The right also protects the interests of victims, witnesses, and the broader public, because the questioning of witnesses can help to establish the truth and ensure the integrity of the judicial process. Under international human rights law, the right includes two components: the defendant’s right to examine witnesses testifying against them, and the right to call witnesses in their defence. But neither component of the right is absolute. This chapter addresses guidance from international bodies on acceptable limitations to the right, including areas of divergence relating to the use of anonymous witness testimony. It also highlights the challenge of obtaining remedies for such violations from international bodies given their deference to national courts on matters of evidence.

12 Right to Equality

This chapter focuses on the right to equality before courts and tribunals, which requires that all parties to criminal proceedings are treated without discrimination. The right underlies the rule of law. It is codified in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), which provides ‘[a]ll persons shall be equal before the courts and tribunals’. It is also enshrined in Article 14(3), which refers to the minimum guarantees of a fair trial ‘in full equality’. This chapter considers three areas in which the right to equality before courts and tribunals may arise in criminal proceedings: equality of treatment, equality of arms, and equality of access. In terms of equal treatment, Article 26 of the ICCPR provides ‘that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds’. These grounds include ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Equality of treatment applies to all individuals, not just to defendants, and requires equal treatment by all organs of the state, not just judicial authorities. Meanwhile, equality of arms ensures that the same procedural rights are to be provided to all the parties to a case, ‘unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant’. It does not necessarily require mathematical equality between the prosecution and the defence. Equality of access issues may arise in criminal proceedings when a defendant’s access to court is hindered because of his detention, disability, or his foreign nationality, or when a defendant is forced to be tried before a military or special court rather than having access to a regular civilian court. The right to equality before courts and tribunals has been used relatively infrequently to vindicate fair trial violations, which may in part be attributed to the challenges of proving discrimination.

6 Right to be Tried without Undue Delay

This chapter examines the right to be tried without undue delay. The speed of a trial is integral to its overall fairness. The longer a trial takes, the longer that the defendant, still presumed innocent, is in legal jeopardy; the longer that they may be kept in pre-trial detention; and the greater the risk that witnesses may forget details or evidence may disappear. However, despite the importance of efficiency in criminal justice, chronic delays in trials in domestic jurisdictions have been widely reported. In fact, the right to be tried without undue delay is one of the most litigated aspects of the right to a fair trial. Unlike some violations, delayed proceedings are relatively easy to prove; the question is what constitutes a delay that is ‘undue’ under international human rights law. There is no global time limit for a criminal proceeding and each case must be assessed on its facts, taking into account its complexity; the conduct of the defendant, the prosecution, and other state authorities; and—for most international bodies—the prejudice caused to the defendant by the delay.

9 Right to an Interpreter

This chapter examines the right to an interpreter. The frequent movement of people around the world and the multicultural make-up of many countries mean that interpretation and translation services are required and used to a great extent in certain jurisdictions. The right to an interpreter does not mean that defendants are entitled to an interpreter simply because their native language is different from the language used in court, as long as they sufficiently understand and speak that language. Similarly, when interpretation is required, this does not per se have to be provided in the native language of the defendant. And if defendants feel there are any issues with the quality of the interpretation provided to them, and this is not apparent to the court, they are required to put the authorities on notice as they cannot later complain about their rights being violated if they failed to inform the authorities. The judge must ensure that the absence of an interpreter does not prejudice the defendant. Ultimately, the challenging issues that national courts confront when attempting to give effect to this right include assessing the defendant’s level of understanding; considering whether the right belongs to the defendant or the defence as a whole; determining the scope of the related right to translation of documents; and balancing the right to interpretation or translation against the right to be tried without undue delay.

1 Right to a Competent, Independent and Impartial Tribunal Established by Law

This chapter discusses the right to a competent, independent, and impartial tribunal established by law, a right that is absolute and non-derogable, and a necessary precondition for the legitimacy of the judicial function in any state. In assessing whether a defendant’s rights to an independent tribunal has been respected, international human rights bodies have focused on key indicators such as how judges are appointed, promoted, assigned to cases, and removed from office. When it comes to impartiality, international bodies have considered whether the judge or juror had a relationship with a party in the case, had previously expressed a view on an issue to be determined in the case, had revealed a prejudice against the defendant, or had participated in the case at an earlier stage.

4 Right to Prepare a Defence

This chapter assesses the right to prepare a defence, a necessary guarantee for fairness in any criminal trial. The right requires that a defendant be adequately informed of the charges against him and have adequate time and facilities to mount a defence to those charges. The right to prepare a defence is not absolute and can be limited in certain circumstances.

10 Right to Silence

This chapter discusses the right of anyone accused of a criminal offence not to be compelled to ‘testify against himself or confess guilt’. This right helps to protect the defendant from torture and other forms of ill-treatment by prohibiting the use of evidence obtained through those methods. It aims to reduce the risk that unreliable evidence will be produced, and seeks to ensure the equality of arms between the prosecution and defence. The right not to be compelled to testify against himself or confess guilt provides defendants with two distinct but overlapping rights: the right to silence and the right not to incriminate oneself. The right not to incriminate oneself is narrower than the right to silence in that it only allows a defendant to refuse to provide answers that may be incriminating, whereas the right to silence means he may refuse to answer any question at all. On the other hand, whereas the right to silence only protects oral statements, the right not to provide incriminating evidence also applies to documents and other material. Although the right not to be compelled to testify against himself or confess guilt is recognised in many domestic jurisdictions, many aspects of the right are either undefined or inconsistently defined at the international level by human rights bodies and criminal courts.

11 Right to Appeal

This chapter examines the right to appeal, which is a safeguard against wrongful conviction, ensuring that a defendant has at least one review of their conviction and sentence. The right to appeal is not absolute and states may place restrictions on the right, such as imposing conditions on access to courts of appeal by requiring defendants to apply for leave. The test is whether the conditions impair the very essence of the defendant’s right to appeal. Once an appeal is granted, the review by the higher tribunal does not necessarily involve the full range of guarantees that are required for a fair trial at first instance. An appeal may not always require an oral hearing, the presence of the defendant, the examination of witnesses, the presentation of new evidence, or detailed reasons for dismissal of the appeal. Among international human rights bodies, the European Court has taken a particularly narrow approach to the right to appeal, allowing for a number of exceptions to the enjoyment of the right and limiting the standard of review to points of law or the sentence only. The key issues regarding the right to appeal concern the stage of proceedings from which the defendant can appeal, the question of who can bring an appeal, and in what types of criminal cases the right must be provided.