International Standards Guaranteeing the Right to Fair Trial Prepared by Asian Institute for Human Rights Right to Fair Trial – its significance Effective protection of human rights depends on the ability of every person to access competent, independent, impartial courts of law, which can administer justice fairly. A system, which gives confidence to aggrieved persons or other legal entities to freely approach the courts in order to claim their rights helps to entrench the principles of rule of law in society. It also helps to manage conflicts between different groups in society peacefully as people have faith in the administration of justice.
Right to Fair Trial: Fundamental Principles, Article 14(1), 14(2) Article 14 (1) of the International Covenant for Civil Political Rights (ICCPR) 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.” Some fundamental principles enshrined in Article 14 (1) are: 1. Equality before the courts of law: Every person is equal before the courts of law. It implies that: a. In all proceedings during pre-trial and trial stage, every suspected or accused person has the right not to be discriminated against in the way the investigations or trials is conducted or in the way the law is applied to them. b. All persons must have equal access to the courts. The right of equal access to the courts means that no one must be hindered either by law, administrative procedures or material resources from accessing a court or tribunal for the purpose of vindicating his or her rights. The right of access to courts and tribunals must be available to all individuals, regardless of nationality or statelessness, or their status – whether asylum seekers, refugees, migrant workers, who may find themselves in the territory or subject
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to the jurisdiction of the State Party1. The right is violated when an individual’s attempt to access competent courts and tribunals is systematically frustrated de jure or de facto. The principle of equal access to the courts is violated when: •
There is absence of legal assistance: The Human Rights Committee has observed that in cases where a convicted person seeking Constitutional review of irregularities in a criminal trial does not have sufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and in cases where the interests of justice so require – legal assistance should be provided by the State. Absence of legal aid denies the accused the opportunity to test the regularities of his criminal trial in the Constitutional Court in a fair hearing and is thus a violation of Article 14 (1)2.
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High legal costs: The Committee has observed that if administrative, prosecutorial or judicial authorities imposed such a cost burden on an individual that his access to courts is de-facto prevented, then the principle of equal access to courts under Art 14(1) is violated. The Committee has also observed that a rigid duty under law to award costs to a winning party without consideration of its implications, or without provision of legal aid may have a deterrent effect on the ability of persons to pursue the vindication of rights under the Covenant in proceedings available to them3.
These principles apply to both civil and criminal proceedings. Further these rights are not limited to citizens but should also be available to all individuals, regardless of their nationality or statelessness, who may find themselves in the territory or subject to the jurisdiction of the State. 2. Notion of ‘fairness’ The notion of ‘equality of arms’ is an essential feature of a fair trial. It means that at all times there must be a fair balance between the prosecution/plaintiff and the defense. At no stage of the proceedings must any party be placed at a disadvantage vis-à-vis his or her opponent. The accused person must at all times be given a genuine possibility of answering charges, challenging evidence, cross 1 General Comment No. 32, Human Rights Committee 2 Currie v. Jamaica (377/89) 3 Aarela and Nakkalajarvi v. Finland (779/97)
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examining witness and doing so in a dignified manner. Further, failures and shortcomings at the stage of criminal investigations may seriously jeopardize the right to fair trial proceedings and thereby also prejudice the right to be presumed innocent. The principle of fairness is violated when: • Hostile atmosphere and pressure of public in courtroom: The trial court failed to control the hostile atmosphere and pressure created by the public in the courtroom, which made it impossible for defense counsel to properly cross-examine the witness and present the defence of the accused. •
Lack of adequate and effective investigation: The Inter-American Court of Human Rights concluded that there was a violation of the right to fair trial as the State had failed to comply with the obligation to carry out an effective and adequate investigation of the corresponding facts4. The case known as the ‘street children’ case concerned the abduction, torture and murder and killing of five street children in Guatemala. Criminal proceedings had been instituted but nobody had bee punished for the crimes committed. The Court noted that there were two types of serious defects, first: “investigation of the crimes of abduction and torture was completely omitted” and second, “evidence that could have been important for the due clarification of the homicides was not ordered, practiced or evaluated”. The Court noted that the principles of fair trial implied that “the victims of human rights violations or their next of kin should have substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek due reparation.
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Lack of expeditiousness: an important aspect of the fairness of a trial is its expeditiousness. Where undue delays are caused because of lack of resource and chronic underfunding, States should allocate budget for administration of justice.
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Witnesses are detained with a view to obtaining their testimony. The Human Rights Committee has held that witnesses can be detained only in exceptional circumstances and such detention must be regulated by strict criteria in law and in practice5.
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The accused is denied the opportunity to attend the proceedings
4 I-‐A Court HR, Villagran Morales et al, v. Guatemala, Judgment of November 19, 1999, Series C, No. 63, p. 198, para. 233 5 Communication No. 307/1988, J. Campbell v. Jamaica
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The accused in unable to have proper consultation with his legal representatives
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The accused is not served a properly motivated indictment or charge-sheet.
3. Public Hearing Every person charged with a criminal offence has the right to public proceedings in the court of first instance and at all levels of appeal proceedings if the appeal concerns an assessment of both facts and law including the question of guilt. The press and the public may be excluded from a trial only for specified reasons such as interests of morals, public order or national security, in the interest of the parties’ private lives or where the interest of justice so requires. A judgment in a criminal case must be made public except in exceptional circumstances.
4. Competent, independent, impartial tribunal The requirement of a competent, independent and impartial tribunal is an absolute right and is not subject to any exception. The requirement of independence refers to the procedure and qualifications for the appointment of judges and guarantees relating to their security of tenure, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature6. States have a duty to take specific measures guaranteeing the independence of the judiciary, and to protect the judges from any form of political influence in their decision-making. Laws should be adopted that establish clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary actions taken against them. A situation where the functions and competencies of the judiciary and executive are not clearly distinguishable or where the executive is able to control or direct the judiciary may lead to violations of this right. The requirement of impartiality has two aspects. First, judges must not allow their judgment to be influenced by personal bias or prejudice, or have preconceptions about a particular case before them or act in ways that improperly promote the interests of one of the parties to the disadvantage of the other. Second, the tribunal 6 General Comment 32, Human Rights Committee
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must also appear to a reasonable observer to be impartial. A trial would be considered impartial if the judge participating in it should have been disqualified from doing so under the domestic statutes7. 5. Right to Presumption of innocence Article 14(2) of the ICCPR states that, “Everyone charged with a criminal office shall have the right to be presumed innocent until proved guilty according to law”. An accused person is entitled to the right to be presumed innocent until proven guilty through out the period of criminal investigations, and trial proceedings up to the end of the final appeal. The principle of presumption of innocence imposes the burden of proving the charge on the prosecution. It guarantees that no guilt can be presumed until the charge is proved beyond reasonable doubt8. The principle of presumption of innocence also implies a right to be treated in accordance with this principle. It imposes a duty on the public authorities to refrain from pre-judging the outcome of a trial9. The principle is violated when: • The accused or defendants are shackled or kept in cages during trial hearings or otherwise presented to the Court in a manner indicating that they may be dangerous criminals10. • When public authorities pre-judge the outcome of a trial such as when law enforcement officers announce in public meetings that the accused is the murderer even before the beginning of the trial11. • The accused has to undergo an excessive period of preventive detention. In this case the accused was repeatedly denied bail. The Human Rights Committee noted that while the denial of bail did not a priori affect the right to be presumed innocent, excessive period of detention, exceeding nine years, does affect the right to be presumed innocent and is violation of Article 14(2)12. • The accused is not given the benefit of doubt in criminal proceedings against him. In this case, the Committee observed that by reason of the principle of presumption of evidence, the burden of proof for any criminal charge is on the prosecution and the accused must have the benefit of doubt. Incriminating 7 ibid 8 General Comment No. 13, Human Rights Committee, para 7 9 ibid 10 General Comment 32, HRC; Karimov and Nursatov v. Tajikistan in 2007 11 Gridin v Russian Federation (770/97); General Comment 32 HRC 12 Cagas v. Philippines (788/97)
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evidence against a person provided by an accomplice charged with the same crime should be treated with caution, particularly in circumstances, when the accomplice changes his account of facts on several occasions. If it is ascertained that the charges and evidence against the accused left room for considerable doubt and the Court does not give adequate consideration to these facts, then the principle of presumption of evidence is violated13.
Rights of persons charged with criminal offences The right to fair trial in a criminal charge starts running from the moment the investigation against the accused person commences until the criminal proceedings, including any appeal have been completed. The right to fair trial can be broadly divided into three categories: pre-trial rights, during trial and post trial rights.
Pre-trial stage 6. Right not to be subjected to arbitrary arrest or detention: Article 9 of the ICCPR: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested, shall be informed at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The procedural requirements of paragraphs 2 through 5 of article 9 apply in connection with article 14 proceedings when actual arrest or detention occurs.14 13 Arutyuniantz v. Uzbekistan (2005) 14
263/1987, González del Río v. Peru, para. 5.1; 1758/2008, Jessop v. New Zealand, para. 7.9-7.10.
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The Human Rights Committee has explained that the notion of ‘arbitrariness’ is not to be understood in the limited sense of being ‘against the law’. It should be understood more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law15. The substantive grounds for arrest or detention must be prescribed by law, and should be defined with sufficient precision to avoid overly broad or arbitrary application 16 . Such grounds must not be ‘manifestly un-proportional, unjust or unpredictable and the manner in which the arrest is made must be appropriate and proportional in view of the circumstances of the case17. A decision to keep a person in detention should be open to periodic review and should not continue beyond the period for which a State party can provide appropriate justification18. 7. Every person has the right to be free from torture and cruel, inhuman or degrading treatment of punishment. In the course of criminal investigations and judicial proceedings, a person shall not be subjected to torture and other inhuman or degrading treatment or punishment. Any confession extracted through torture or inhuman treatment is unlawful under international human rights law. The domestic law must prohibit statements or confessions obtained through torture or other prohibited treatment to be admitted as evidence in judicial proceeding19. Judges, prosecutors and lawyers have a duty to be particularly alert for any sign of torture or ill treatment and take necessary action. Article 16 of the Guidelines on the Role of Prosecutors, 1990 stipulates that: When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the court accordingly, and shall take all necessary steps to ensure that those responsible 15
1134/2002, Gorji-Dinka v. Cameroon, para. 5.1. See, e.g., Concluding observations Sudan 1998, para. [124] (“national security” vague), Philippines 2004, para. 14 (vagrancy law vague), Mauritius 2005, para. 12 (terrorism law vague), Russian Federation 2010, para. 25 (“extremist activity” vague), United Republic of Tanzania 2009, para. 12 (terrorism law vague), Honduras 2007, para. 13 (“unlawful association” vague). 17 Manfred Nowak, U.N, Covenant on Civil and Political Rights, CCPR Commentary (N.P. Engel, Arlington: 1993) at 173 18 1324/2004, Shafiq v. Australia, para. 7.2. 16
19 General Comment 20, Human Rights Committee
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for using such methods are brought to justice. 8. Prohibition on incommunicado detention Principle 16 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment20 (hereinafter called Body of Principles), states that the family of any arrested or detained person must be notified promptly of the arrest and the location of their family member. The same principle also requires that if the detainee is moved to another facility the family must be notified of that change. Principle 19 of the Body of Principles states that a detained or imprisoned person has the right to be visited by members of his/her family and to correspond with them. These rights can be subjected to reasonable conditions and restrictions as specified by law or lawful regulations. 9. Every person who is detained has the right to be promptly brought before a judge or other officer authorized by law Article 9(3) of ICCPR provides that: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. This right provides the detainee an opportunity to request for bail. It also provides opportunity to the Judges to have an oversight on whether the detained person has been subjected to torture or inhuman and degrading treatment or not. 10. Pre-trial detention should not be the rule. He/she should be released on bail or some other guarantee ensuring appearance during trial hearings Article 9(3) of the International Covenant on Civil Political Rights states that if a trial does not occur within a reasonable period of time then the accused person must be released from pre-trial detention pending trial. The period of time that is considered to be reasonable depends upon the circumstances of the case. The relevant factors include the rights of flight, the complexity of a case, the nature of the offence and the diligence of the investigating and prosecutorial authorities in pursuing a case.
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UN General Assembly resolution 43/173, December 9, 1988
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11. Every person has the right to assistance of legal counsel during pre-trial stage including at the time of arrest/detention An individual’s right to legal counsel begins to run when a suspect or accused is first taken into custody regardless of whether he/she is formally charged at the moment. If the accused cannot afford his/her counsel, the relevant authority must provide a lawyer free if charge in case the interest of justice so requires. The interest of justice depends primarily on the seriousness of the offence and the severity of the potential penalty. Principle 18 of the Body of Principles provides that: 1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel. 2. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel. 3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order. 4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official. 5. Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime. 12. Every person shall have the right to be informed promptly and in detail, in a language the person understands, of the nature and cause of charge against him/her Article 14(3a) of the ICCPR states that: Everyone has the right to be informed promptly and in detail in a language, which he understands of the nature and cause of the charges against him. This right applies to all cases of criminal charges. Detailed information about the charges must be given as soon as the charge is first made by the competent authority21. 21
General Comment No. 13, para 8
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The charge must be stated orally or in writing and should include both the law and the alleged facts on which it is based22. The information must be given in good time before the trial so as to allow the accused person to effectively challenge the legality of his/her detention or prepare his/her defense. The right to be informed of charges in a language one understands implies that the authorities must provide adequate interpreters and translators so that the suspect is able to defend himself or herself adequately.
Rights during Trial 13. Right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; Article 14(3b) ICCPR This right is an important element of the guarantee of fair trial and an application of the principle of equality of arms. Adequate facilities: must include access to all materials that the prosecution will use in court against the accused23. Such materials also include exculpatory materials such as those evidence which could assist in the defence, for example indications that a confession was not voluntary. Adequate time: What constitutes “adequate time” depends on the circumstances of each case. The Courts have an obligation to grant reasonable requests for adjournment, in particular, if the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed24. Communication with the counsel: The counsel should be able to communicate with the accused in conditions that respect the confidentiality of their communications (See Principle 18 of the Body of Principles mentioned earlier). Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgment without any restrictions, influences, pressures or undue interference from any quarter. In cases where necessary, a free interpreter must be provided to the accused during the pre-trial and trial phase so that the accused can effectively communicate with counsel and prepare the defence25. 22 ibid 23 General Comment 32, Human Rights Committee 24 Chan v. Guyana, Communications No. 913/2000, Para 6.3; Phillip v. Trinidad and Tobago, Communications No. 913/2000, Para. 7.2 25 Harward Vs. Norway, Communication No. 45/1991, Para 9.5
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A State party would not be held responsible for the conduct of a defence lawyer, unless it is manifestly clear to the judge that the lawyer’s behavior was incompatible with the interests of justice26. 14. Right to be tried ‘without undue delay’ or ‘within a reasonable time’; Article 14 (3c) ICCPR Article 14(3)(c) of the ICCPR states that - every person has the right to be tried without ‘undue delay’. This right is guaranteed such that persons do not remain uncertain about their fate for too long a time. Also if a person is held in detention during the trial, then such deprivation does not last longer than necessary in the circumstances of the specific case. This right imposes an obligation on States to organize their judiciary in such a way that all stages of a trial can be finished within a reasonable time. In General Comment No. 13, the Human Rights Committee has stated that the right to be tried without undue delay not only relates to the time by which a trial should commence, but also the time by which it should end and judgment be rendered. All stages – commencement of trial, completion of trial and delivery of judgment, must take place ‘without undue delay’. Reasonable time: What is reasonable time, has to be assessed in the circumstances of each case, taking into account – the complexity of a case and the manner in which the matter was dealt with by the administrative and judicial authorities27.
15. The right to defend oneself in person or through a lawyer of one’s own choice; to be assigned legal assistance in case the interests of justice so require and without payment, if the person does not have sufficient means to pay for it; Article 14 (3d) ICCPR Trial in absentia: Accused persons are entitled to be present during their trial. When accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to 26 Marques de Morais v. Angola, Communication No. 1128/2002, Para. 5.4 27 Communication No. 818/1998, Sextus v Trinidad and Tobago, para 7.2: a delay of 22 months between the charging of the accused with a crime carrying the death penalty and the beginning of the trial without specific circumstances justifying the delay was held to be a violation; Communication No. 938/2000, Siewpersuad, Sukhram and Persaud v. Trinidad and Tobago, para 6.2:total duration of criminal proceedings of almost 5 years in the absence of any explanation from the State party justifying the delay was held to be a violation.
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be present, trial proceedings in the absence of the accused may be permissible in the interest of proper administration of justice28. The right to access legal assistance must be effectively available. In the case where the person did not access to legal assistance for the first ten months of his detention, the Human Rights Committee held there was a violation of Art 14 3(d). The right to choose legal counsel does not include the right of the accused to choose legal counsel when it is provided free of charge. But however in such cases, measures must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice29. The Inter American Court of Human Rights held that there was a violation of this right, when the victim had been held in incommunicado detention for 36 days, during which time he was unable to consult with any lawyer. After the end of the incommunicado detention he was allowed to receive visits from his lawyer although he was ‘unable to communicate with him freely and privately’ since the interviews were held in the presence of police officers30. ‘ Legal aid in constitutional proceedings: The Human Rights Committee has observed that in cases where a convicted person seeking constitutional review of irregularities in a criminal trial has insufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interests of justice so require, legal assistance should be provided by the State. If the absence of legal aid denied the accused the opportunity to test the irregularities of his criminal trial in the Constitutional Court, then there was a violation of Art 14. Interest of justice: The European Court of Human Rights has observed that there are several criteria to determine whether the interest of justice require the granting of free legal aid, such as; the seriousness of offence committed, the severity of the sentence, the risks of the accused person and the complexity of the case31. In this case, the maximum sentence was three years’ imprisonment for a drug offence and the Court concluded that ‘free legal assistance should have been afforded by reason of the mere fact that so much was at stake’. 28 Communication no. 16/1977, Mbenge v. Zair, para. 14.1; Communication No. 699/1996, Maleki v. Italy, Para. 9.3 29 T Collins v. Jamaica, Communication No. 356/1989 30 I-‐A Court HR, Suarez Rosero Case v. Ecuador, Judgment of November 1997 31 European Court of Human Rights, Case of Quaranta v. Switzerland, judgment of 24 May 1991, Series A, No 205
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16. Right 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; Article 14 (3e) ICCPR As an application of the principle of equality of arms, this provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or crossexamining any witnesses as are available to the prosecution. The right tries to ensure an effective defence by the accused and their counsel. However, this does not provide an unlimited right to obtain the attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defence. The right imposes an obligation on the Courts to give the accused and his or her lawyer adequate time to prepare for the questioning of witnesses. 17. Right to have the free assistance of an interpreter if he cannot understand or speak the language used in court; Article 14 (3f) ICCPR Article 14(3f) ICCPR provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge, including translation of all documents in the proceedings. This right applies to citizens as well as non-citizens. In the words of the Human Rights Committee in its General Comment 13, the free assistance of an interpreter is a right that is “of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence”.
18. Right not to be compelled to testify against himself or to confess guilt; Article 14 (3g) ICCPR Article 14 (3g) ICCPR guarantees the right of an accused not to be compelled to testify against himself or herself. This right should be respected all through out the trial proceedings. It implies that there must be an absence of both direct and indirect physical or psychological pressure from the investigating authorities for the purposes of obtaining a confession of guilt. It is important that the law must prohibit the admissibility in judicial
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proceedings of statements or confessions obtained through torture or other prohibited treatment 32. Guideline 16 of the Guidelines on the Role of Prosecutors provides that prosecutors shall refuse evidence that is obtained by recourse to unlawful methods. The Committee has found violations of Article 14(3)(g) in cases where the persons accused have been compelled to sign statements incriminating themselves or where attempts have been made through recourse to torture or duress – to compel them to do so33. 19. Freedom from ex post facto laws/ The principle of nullum crimen sine lege Article 15(1) of the International Covenant guarantees the right not to be held guilty on account of any act or omission that did not constitute a criminal offence at the time it was committed. The prohibition on retroactivity of criminal law is fundamental in a society governed by the rule of law, one aspect of which is to ensure legal predictability or foreseeability, and thus, legal security for individuals.
Rights post trial 20. Every person convicted of an offence has the right to seek review of such conviction by a higher court of law, Article 14(5) ICCPR A violation occurs whenever: o a person condemned by a judicial sentence is prevented from presenting an appeal as provided under law before a judge or superior, impartial and independent tribunal, or o the judge or court does not admit such appeal for unlawful reasons. 21. Every person has the right to seek compensation for miscarriage of justice A violation occurs whenever a person is prevented from demanding and/or receiving compensation after his/her conviction is revoked following the presentation of conclusive evidence indicating that there was a miscarriage of justice.
32 General Comment No. 20, Human Rights Committee. 33 Communications No. R.12/52, S.R. Lopez Burgos v Uruguay; Communication no. R.18/73, M.A. Teti Izquierdo v. Uruguay; Communication No. 74/1980 M.A. Esterella v. Uruguay, Communication No. 328/1988, R.Z. Blanco v. Nicaragua
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22. A person acquitted of an offence shall not be tried for the same offence again Article 14(7) of the International Covenant contains the prohibition of double jeopardy, or the principle of ne bis in idem, according to which “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”.
Right to Fair Trial and situation of Emergency According to Article 4, ICCPR, there can be no derogation from the following articles even in state of emergency: Article 6(Right to life), Article 7(Prohibition of torture or cruel, inhuman or degrading treatment), Article 15 (the principle of legality in the field of criminal law), Article 16(the recognition of every person as a person before the law), article 18 (freedom of thought, conscience and religion), right to equality and non-discrimination. As the rights to fair trial protects these non-derogable rights, thus the right to fair trial cannot be derogated from, even in state of emergency.
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