Right to a fair trial

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.

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). 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, 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."

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. 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. 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."

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).

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.

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

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. 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.

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. 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. 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. 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:

• the right to be heard by a competent, independent and impartial tribunal
• the right to a public hearing
• the right to be heard within a reasonable time
• the right to counsel
• the right to interpretation

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.

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:

• the right to be notified of charges in a timely manner
• the right to adequate time and means for the preparation of a defense
• the right of the accused to defend him or herself, or the right to a counsel chosen by the accused and the right to communicate privately with the counsel
• the right not to incriminate oneself
• the right to appeal at first instance to a higher court
• the prohibition on double jeopardy.

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).

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.

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.

Impeding a fair trial

A fair trial might be impeded by:

• Contempt of court (typically by the media or jurors)
• Witness intimidation
• Non-disclosure of evidence, through malice or through abuse of State Secrets Privilege (in the USA/) or Public interest immunity (in the UK)

See also

• Change of venue
• Legal aid

External links

• Doswald-Beck, Louise. Fair Trial, Right to, International Protection, Max Planck Encyclopedia of Public International Law
• Fair Trials International, a London based human rights charity