UN Human Rights Committee, CCPR General Comment 32 (2007) (excerpts)

UN Human Rights Committee, CCPR General Comment 32 (2007) (excerpts)

(...)

2. The right to equality before the courts and tribunals and to a fair trial is a key element
of human rights protection and serves as a procedural means to safeguard the rule of law. Article
14 of the Covenant aims at ensuring the proper administration of justice, and to this end
guarantees a series of specific rights.

(...)

7. The first sentence of article 14, paragraph 1 guarantees in general terms the right to
equality before courts and tribunals. This guarantee not only applies to courts and tribunals
addressed in the second sentence of this paragraph of article 14, but must also be respected
whenever domestic law entrusts a judicial body with a judicial task.

(...)

9. Article 14 encompasses the right of access to the courts in cases of determination of
criminal charges and rights and obligations in a suit at law. Access to administration of justice
must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice. The right of access to courts and tribunals and
equality before them is not limited to citizens of States parties, but must also be available to all
individuals, regardless of nationality or statelessness, or whatever their status, whether asylum
seekers, refugees, migrant workers, unaccompanied children or other persons, who may find
themselves in the territory or subject to the jurisdiction of the State party. A situation in which an
individual’s attempts to access the competent courts or tribunals are systematically frustrated de
jure or de facto runs counter to the guarantee of article 14, paragraph 1, first sentence.7 This
guarantee also prohibits any distinctions regarding access to courts and tribunals that are not
based on law and cannot be justified on objective and reasonable grounds. The guarantee is
violated if certain persons are barred from bringing suit against any other persons such as by
reason of their race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.

10. The availability or absence of legal assistance often determines whether or not a
person can access the relevant proceedings or participate in them in a meaningful way. While
article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in
paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals
who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so.
For instance, where a person sentenced to death seeks available constitutional review of
irregularities in a criminal trial but does not have sufficient means to meet the costs of legal
assistance in order to pursue such remedy, the State is obliged to provide legal assistance in
accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as
enshrined in article 2, paragraph 3 of the Covenant.

11. Similarly, the imposition of fees on the parties to proceedings that would de facto
prevent their access to justice might give rise to issues under article 14, paragraph 1.10 In
particular, a rigid duty under law to award costs to a winning party without consideration of the
implications thereof or without providing legal aid may have a deterrent effect on the ability of
persons to pursue the vindication of their rights under the Covenant in proceedings available to
them.

12. The right of equal access to a court, embodied in article 14, paragraph 1, concerns
access to first instance procedures and does not address the issue of the right to appeal or other
remedies.

13. The right to equality before courts and tribunals also ensures equality of arms. This
means that the same procedural rights are to be provided to all the parties 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. There is no equality of arms if, for instance,
only the prosecutor, but not the defendant, is allowed to appeal a certain decision. The
principle of equality between parties applies also to civil proceedings, and demands, inter alia,
that each side be given the opportunity to contest all the arguments and evidence adduced by the
other party. In exceptional cases, it also might require that the free assistance of an interpreter
be provided where otherwise an indigent party could not participate in the proceedings on equal
terms or witnesses produced by it be examined.

14. Equality before courts and tribunals also requires that similar cases are dealt with in
similar proceedings. If, for example, exceptional criminal procedures or specially constituted
courts or tribunals apply in the determination of certain categories of cases,16 objective and
reasonable grounds must be provided to justify the distinction.

(...)

16. The concept of determination of rights and obligations “in a suit at law” (de caractère
civil/de carácter civil) is more complex. It is formulated differently in the various languages of
the Covenant that, according to article 53 of the Covenant, are equally authentic, and the travaux
préparatoires do not resolve the discrepancies in the various language texts. The Committee
notes that the concept of a “suit at law” or its equivalents in other language texts is based on the
nature of the right in question rather than on the status of one of the parties or the particular
forum provided by domestic legal systems for the determination of particular rights.18 The
concept encompasses (a) judicial procedures aimed at determining rights and obligations
pertaining to the areas of contract, property and torts in the area of private law, as well as (b)
equivalent notions in the area of administrative law such as the termination of employment of
civil servants for other than disciplinary reasons, the determination of social security benefits
or the pension rights of soldiers, or procedures regarding the use of public land or the taking
of private property. In addition, it may (c) cover other procedures which, however, must be
assessed on a case by case basis in the light of the nature of the right in question.

(...)


18. The notion of a “tribunal” in article 14, paragraph 1 designates a body, regardless of
its denomination, that is established by law, is independent of the executive and legislative
branches of government or enjoys in specific cases judicial independence in deciding legal
matters in proceedings that are judicial in nature. Article 14, paragraph 1, second sentence,
guarantees access to such tribunals to all who have criminal charges brought against them. This
right cannot be limited, and any criminal conviction by a body not constituting a tribunal is
incompatible with this provision. Similarly, whenever rights and obligations in a suit at law are
determined, this must be done at least at one stage of the proceedings by a tribunal within the
meaning of this sentence. The failure of a State party to establish a competent tribunal to
determine such rights and obligations or to allow access to such a tribunal in specific cases
would amount to a violation of article 14 if such limitations are not based on domestic
legislation, are not necessary to pursue legitimate aims such as the proper administration of
justice, or are based on exceptions from jurisdiction deriving from international law such, for
example, as immunities, or if the access left to an individual would be limited to an extent that
would undermine the very essence of the right.

19. The requirement of competence, independence and impartiality of a tribunal in the
sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.29 The
requirement of independence refers, in particular, to the procedure and qualifications for the
appointment of judges, and guarantees relating to their security of tenure until a mandatory
retirement age or the expiry of their term of office, where such exist, 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 legislature. States should
take specific measures guaranteeing the independence of the judiciary, protecting judges from
any form of political influence in their decision-making through the constitution or adoption of
laws establishing clear procedures and objective criteria for the appointment, remuneration,
tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary
sanctions taken against them.30 A situation where the functions and competencies of the judiciary
and the executive are not clearly distinguishable or where the latter is able to control or direct the
former is incompatible with the notion of an independent tribunal.31 It is necessary to protect
judges against conflicts of interest and intimidation. In order to safeguard their independence, the
status of judges, including their term of office, their independence, security, adequate
remuneration, conditions of service, pensions and the age of retirement shall be adequately
secured by law.

(...)

21. The requirement of impartiality has two aspects. First, judges must not allow their
judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the
particular case before them, nor act in ways that improperly promote the interests of one of the
parties to the detriment of the other. Second, the tribunal must also appear to a reasonable
observer to be impartial. For instance, a trial substantially affected by the participation of a
judge who, under domestic statutes, should have been disqualified cannot normally be
considered to be impartial.

22. The provisions of article 14 apply to all courts and tribunals within the scope of that
article whether ordinary or specialized, civilian or military. The Committee notes the existence,
in many countries, of military or special courts which try civilians. While the Covenant does not
prohibit the trial of civilians in military or special courts, it requires that such trials are in full
conformity with the requirements of article 14 and that its guarantees cannot be limited or
modified because of the military or special character of the court concerned. The Committee also
notes that the trial of civilians in military or special courts may raise serious problems as far as
the equitable, impartial and independent administration of justice is concerned. Therefore, it is
important to take all necessary measures to ensure that such trials take place under conditions
which genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military
or special courts should be exceptional,i.e. limited to cases where the State party can show that
resorting to such trials is necessary and justified by objective and serious reasons, and where
with regard to the specific class of individuals and offences at issue the regular civilian courts are
unable to undertake the trials.

(...) 

25. The notion of fair trial includes the guarantee of a fair and public hearing. Fairness of
proceedings entails the absence of any direct or indirect influence, pressure or intimidation or
intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the
defendant in criminal proceedings is faced with the expression of a hostile attitude from the
public or support for one party in the courtroom that is tolerated by the court, thereby impinging
on the right to defence, or is exposed to other manifestations of hostility with similar effects.
Expressions of racist attitudes by a jury that are tolerated by the tribunal, or a racially biased
jury selection are other instances which adversely affect the fairness of the procedure.

26. Article 14 guarantees procedural equality and fairness only and cannot be interpreted
as ensuring the absence of error on the part of the competent tribunal. It is generally for the
courts of States parties to the Covenant to review facts and evidence, or the application of
domestic legislation, in a particular case, unless it can be shown that such evaluation or
application was clearly arbitrary or amounted to a manifest error or denial of justice, or that the
court otherwise violated its obligation of independence and impartiality. The same standard
applies to specific instructions to the jury by the judge in a trial by jury.

27. An important aspect of the fairness of a hearing is its expeditiousness. While the issue
of undue delays in criminal proceedings is explicitly addressed in paragraph 3 (c) of article 14,
delays in civil proceedings that cannot be justified by the complexity of the case or the behaviour
of the parties detract from the principle of a fair hearing enshrined in paragraph 1 of this
provision.Where such delays are caused by a lack of resources and chronic under-funding, to
the extent possible supplementary budgetary resources should be allocated for the administration
of justice.

28. All trials in criminal matters or related to a suit at law must in principle be conducted
orally and publicly. The publicity of hearings ensures the transparency of proceedings and thus
provides an important safeguard for the interest of the individual and of society at large. Courts
must make information regarding the time and venue of the oral hearings available to the public
and provide for adequate facilities for the attendance of interested members of the public, within
reasonable limits, taking into account, inter alia, the potential interest in the case and the duration
of the oral hearing. The requirement of a public hearing does not necessarily apply to all
appellate proceedings which may take place on the basis of written presentations,54 or to pre-trial
decisions made by prosecutors and other public authorities.

29. Article 14, paragraph 1, acknowledges that courts have the power to exclude all or
part of the public for reasons of morals, public order (ordre public) 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 be prejudicial to the interests of justice. Apart from such exceptional circumstances, a
hearing must be open to the general public, including members of the media, and must not, for
instance, be limited to a particular category of persons. Even in cases in which the public is
excluded from the trial, the judgment, including the essential findings, evidence and legal
reasoning must be made public, except where the interest of juvenile persons otherwise requires,
or the proceedings concern matrimonial disputes or the guardianship of children.

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31. The right of all persons charged with a criminal offence to be informed promptly and
in detail in a language which they understand of the nature and cause of criminal charges brought
against them, enshrined in paragraph 3 (a), is the first of the minimum guarantees in criminal
proceedings of article 14. This guarantee applies to all cases of criminal charges, including those
of persons not in detention, but not to criminal investigations preceding the laying of charges.60
Notice of the reasons for an arrest is separately guaranteed in article 9, paragraph 2 of the
Covenant.61 The right to be informed of the charge “promptly” requires that information be given
as soon as the person concerned is formally charged with a criminal offence under domestic
law,62 or the individual is publicly named as such. The specific requirements of subparagraph 3
(a) may be met by stating the charge either orally - if later confirmed in writing - or in writing,
provided that the information indicates both the law and the alleged general facts on which the
charge is based. In the case of trials in absentia, article 14, paragraph 3 (a) requires that,
notwithstanding the absence of the accused, all due steps have been taken to inform accused
persons of the charges and to notify them of the proceedings.

32. Subparagraph 3 (b) provides that accused persons must have adequate time and
facilities for the preparation of their defence and to communicate with counsel of their own
choosing. This provision is an important element of the guarantee of a fair trial and an
application of the principle of equality of arms.64 In cases of an indigent defendant,
communication with counsel might only be assured if a free interpreter is provided during the
pre-trial and trial phase.65 What counts as “adequate time” depends on the circumstances of each
case. If counsel reasonably feel that the time for the preparation of the defence is insufficient, it
is incumbent on them to request the adjournment of the trial.66 A State party is not to be held
responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to
the judge that the lawyer’s behaviour was incompatible with the interests of justice.67 There is an
obligation to grant reasonable requests for adjournment, in particular, when the accused is
charged with a serious criminal offence and additional time for preparation of the defence is
needed.

(...)

34. The right to communicate with counsel requires that the accused is granted prompt
access to counsel. Counsel should be able to meet their clients in private and to communicate
with the accused in conditions that fully respect the confidentiality of their communications.71
Furthermore, lawyers should be able to advise and to represent persons charged with a criminal
offence in accordance with generally recognised professional ethics without restrictions,
influence, pressure or undue interference from any quarter.

35. The right of the accused to be tried without undue delay, provided for by article 14,
paragraph 3 (c), is not only designed to avoid keeping persons too long in a state of uncertainty
about their fate and, if held in detention during the period of the trial, to ensure that such
deprivation of liberty does not last longer than necessary in the circumstances of the specific
case, but also to serve the interests of justice. What is reasonable has to be assessed in the
circumstances of each case, taking into account mainly the complexity of the case, the conduct
of the accused, and the manner in which the matter was dealt with by the administrative and
judicial authorities. In cases where the accused are denied bail by the court, they must be tried as
expeditiously as possible. This guarantee relates not only to the time between the formal
charging of the accused and the time by which a trial should commence, but also the time until
the final judgement on appeal. All stages, whether in first instance or on appeal must take place
“without undue delay.”

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39. Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or
have examined, the witnesses against them and to obtain the attendance and examination of
witnesses on their behalf under the same conditions as witnesses against them. As an application
of the principle of equality of arms, this guarantee is important for ensuring an effective defence
by the accused and their counsel and thus guarantees the accused the same legal powers of
compelling the attendance of witnesses and of examining or cross-examining any witnesses as
are available to the prosecution. It does not, however, 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, and to be given a proper opportunity to
question and challenge witnesses against them at some stage of the proceedings. Within these
limits, and subject to the limitations on the use of statements, confessions and other evidence
obtained in violation of article 7,85 it is primarily for the domestic legislatures of States parties to
determine the admissibility of evidence and how their courts assess it.

40. The right to have the free assistance of an interpreter if the accused cannot understand
or speak the language used in court as provided for by article 14, paragraph 3 (f) enshrines
another aspect of the principles of fairness and equality of arms in criminal proceedings.86 This
right arises at all stages of the oral proceedings. It applies to aliens as well as to nationals.
However, accused persons whose mother tongue differs from the official court language are, in
principle, not entitled to the free assistance of an interpreter if they know the official language
sufficiently to defend themselves effectively.

(...)

45. Article 14, paragraph 5 of the Covenant provides that anyone convicted of a crime
shall have the right to have their conviction and sentence reviewed by a higher tribunal according
to law. As the different language versions (crime, infraction, delito) show, the guarantee is not
confined to the most serious offences. The expression “according to law” in this provision is not
intended to leave the very existence of the right of review to the discretion of the States parties,
since this right is recognised by the Covenant, and not merely by domestic law. The term
according to law rather relates to the determination of the modalities by which the review by a
higher tribunal is to be carried out,92 as well as which court is responsible for carrying out a
review in accordance with the Covenant. Article 14, paragraph 5 does not require States parties
to provide for several instances of appeal.93 However, the reference to domestic law in this
provision is to be interpreted to mean that if domestic law provides for further instances of
appeal, the convicted person must have effective access to each of them.

(...)

47. Article 14, paragraph 5 is violated not only if the decision by the court of first
instance is final, but also where a conviction imposed by an appeal court97 or a court of final
instance,98 following acquittal by a lower court, according to domestic law, cannot be reviewed
by a higher court. Where the highest court of a country acts as first and only instance, the
absence of any right to review by a higher tribunal is not offset by the fact of being tried by the
supreme tribunal of the State party concerned; rather, such a system is incompatible with the
Covenant, unless the State party concerned has made a reservation to this effect.

48. The right to have one’s conviction and sentence reviewed by a higher tribunal
established under article 14, paragraph 5, imposes on the State party a duty to review
substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and
sentence, such that the procedure allows for due consideration of the nature of the case.100 A
review that is limited to the formal or legal aspects of the conviction without any consideration
whatsoever of the facts is not sufficient under the Covenant. However, article 14, paragraph 5
does not require a full retrial or a “hearing”,102 as long as the tribunal carrying out the review can
look at the factual dimensions of the case. Thus, for instance, where a higher instance court looks
at the allegations against a convicted person in great detail, considers the evidence submitted at
the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence
to justify a finding of guilt in the specific case, the Covenant is not violated.


49. The right to have one’s conviction reviewed can only be exercised effectively if the
convicted person is entitled to have access to a duly reasoned, written judgement of the trial
court, and, at least in the court of first appeal where domestic law provides for several instances
of appeal,104 also to other documents, such as trial transcripts, necessary to enjoy the effective
exercise of the right to appeal.105 The effectiveness of this right is also impaired, and article 14,
paragraph 5 violated, if the review by the higher instance court is unduly delayed in violation of
paragraph 3 (c) of the same provision.

50. A system of supervisory review that only applies to sentences whose execution has
commenced does not meet the requirements of article 14, paragraph 5, regardless of whether
such review can be requested by the convicted person or is dependent on the discretionary power
of a judge or prosecutor.

(...)

65. Procedural laws or their application that make distinctions based on any of the criteria
listed in article 2, paragraph 1 or article 26, or disregard the equal right of men and women, in
accordance with article 3, to the enjoyment of the guarantees set forth in article 14 of the
Covenant, not only violate the requirement of paragraph 1 of this provision that “all persons shall
be equal before the courts and tribunals,” but may also amount to discrimination.