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Fair Trial (Right to a)

The right to a fair trial is a fundamental safeguard to ensure that individuals are protected from unlawful or arbitrary deprivation of their human rights and freedoms, most importantly of the right to liberty and security of person. It is an important aspect of the rights which enable effective functioning of the administration of justice.Set forth by the Universal Declaration of Human Rights (UDHR) in 1948, the right to a fair trial has since then been further elaborated and is recognized by several international and regional human rights standards, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The right to a fair trial applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law. In addition, international standards provide for a number of minimum guarantees which apply to the determination of criminal charges against persons. In this regard, it is important to bear in mind that the applicability of the right to a fair trial on a criminal charge does not start when charges are actually presented, but from the first contact between the person concerned and the State on the case. This means that the right to a fair trial should be observed through every phase of the criminal justice process from the moment when the investigation is launched to the actual trial to any appeal. This allows to loosely group fair trial rights into pre-trial rights, rights during the trial, and post-trial rights. However, in reality the distinction between these categories can be blurred.

Pre-trial rights. International standards provide for a number of guarantees at the pre-trial stage. An important guarantee is the right to liberty and security of person and the prohibition on arbitrary arrest and detention, set forth in Article 9(1) of the ICCPR and Article 5(1) of the ECHR. The principle of legality is embodied in these provisions both substantively and procedurally.

The right to know the reasons for arrest is another essential guarantee which means that anyone who is arrested or detained must be immediately informed of the reasons why he is deprived of his liberty, and subsequent information, containing accusations in the legal sense, must be furnished “promptly.” Such information must be furnished in a language which the detained person understands. The legislations of the countries of the OSCE region provide for a range of maximum periods of time for which the suspects may be detained without official charges, however, over the recent years a number of countries have reviewed their laws effectively reducing the maximum periods of custody of suspects.

The right to legal counsel is central to protecting the detained individual’s rights at the pre-trial stage, however, it remains relevant throughout all stages of criminal proceedings. The international standards provide that individuals are entitled to the assistance of a lawyer of their choice (Rule 1, Basic Principles on the Role of Lawyers) and, furthermore, where the interests of justice so require, the accused who cannot afford his or her own counsel are entitled to the free assistance of "a lawyer of experience and competence commensurate with the nature of the offence" (Rule 6, Basic Principles on the Role of Lawyers). The international standards mandate for prompt (under the Basic Principles on the Role of Lawyers, within 48 hours from the moment of arrest or detention) access to legal counsel for all persons arrested or detained, with or without criminal charges.

International standards provide for the right to a prompt appearance before a judge and to trial within reasonable time for all individuals under arrest or detention. It is made clear that detention pending trial “shall not be the general rule,” but “release may be subject to guarantees to appear for trial” (ICCPR, Article 9(3)).However, in practice release on bail or other guarantee to secure the defendant’s appearance at trial is still problematic in a number of countries in the OSCE region. To address this, a number of countries have introduced provisions prohibiting pre-trial detention on charges for crimes carrying a sentence lower than the specified minimum limit, unless the defendant poses a demonstrable flight risk.

If the trial does not occur within a reasonable period of time, the detained individual must be released. The practical observation of this guarantee requires particular attention against the backdrop of an enormous backlog of cases pending trial as well as where there is overreliance on pre-trial detention as a means to secure the defendant’s appearance. The understanding of what period of time should be considered “reasonable” also varies considerably across the OSCE region. Many countries have provided in their criminal laws that the time spent in detention, as well as any other deprivation of liberty due to a criminal offense, shall be included in the pronounced sentence of imprisonment.

A guarantee closely connected to the right to a prompt appearance before a judge is the right of all detained persons to speedy proceedings to challenge the lawfulness of their detention. The victims of unlawful arrest or detention have a right to compensation

The prohibition of torture during detention pending trial is an essential pre-trial guarantee. In addition to a general prohibition of torture, international standards impose a positive obligation on the states to treat all persons deprived of their liberty humanely and with respect for human dignity.

Rights during the trial. International standards mandate that all persons shall be entitled to equality before the courts (to include also equal access to courts). The right of equal access to courts is interpreted to mean that no separate courts shall be established for the different groups of people based on their race, religion, gender or other status. The establishment of special courts for categories of persons such as the military personnel is not prohibited as long as the procedural guarantees are observed, however, the practice of establishing such courts is often disputed, particularly in the light of the Basic Principles on the Independence of Judiciary, which state that “[e]veryone shall have the right to be tried by ordinary courts or tribunals using established legal procedures.” (Emphasis added.)Over the recent decade, a number of countries in the region have seen abolition of specialized military courts.

Individuals are entitled to fair and public hearing held by a competent, independent and impartial tribunal established by law. The publicity of the trial is understood to include both the public nature of the hearings and the publicity of the final judgment. It should be noted that in exceptional circumstances press and public may be excluded from all or part of the trial “in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice” (ECHR, Article 6(1)).

An underlying principle of justice is that there shall be no punishment without law (ECHR, Article 7(1); ICCPR, Article 15). In a narrow sense, it contains a prohibition on retroactive application of criminal laws. In addition to the general prohibition on retroactive application of criminal laws, the criminal legislations in the region have included provisions that laws decriminalizing the act or mitigating liability for the offense shall have retroactive effect.

The right to a presumption of innocence is a central component of the right to a fair trial, which means that the burden of proof in a criminal trial lies on the prosecution and that the accused has the benefit of the doubt.

International standards provide for the right to prompt notice of the nature and cause of the criminal charges (in a language which the person concerned understands); the right to adequate time and facilities for the preparation of a defense; the right to defend oneself in person or through legal counsel; the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; the right to a free assistance of an interpreter; the prohibition on double jeopardy (the prohibition of liability to be tried or punished again for an offence for which the person concerned has already been finally convicted or acquitted); and the prohibition on self-incrimination(the right not to be compelled to testify against oneself or to confess guilt).

Post-trial rights. International standards mandate that everyone convicted of a crime shall have the right to appeal to a higher authority (Protocol 7 to ECHR, Article 2; ICCPR, Article 14(5)), i.e. the right to have the conviction decision reviewed by a higher tribunal to ensure at least two levels of the judicial scrutiny of the case. The guarantees of fair trial must be observed throughout the review proceedings.

The right to compensation extends to individuals who suffered punishment as a result of a final conviction which is subsequently reversed or who are pardoned on facts which show that there has been a miscarriage of justice (Protocol 7 to ECHR, Article 3; ICCPR, Article 14(6)).It should be borne in mind that the non-disclosure of the pertinent facts on time must not be attributable to the person in question.

It should be noted that for the efficient enforcement of the right to a fair trial it is not sufficient to have all relevant laws in place but these laws have to be actually implemented. In particular, the role of civil society in promoting fair trial standards through, inter alia, trial observation is vital to ensure that trials comply with these standards.

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