Hukum & HAM S1 Reguler 2014 - Right to a Fair Trial

Right to A Fair Trial in International Human Rights Instruments

Rangga Dachlan, LL.M.

Department of International Law

Faculty of Law

Universitas Gadjah Mada

Outline

General observations the right to a fair trial

Scope international human rights instruments

Generally applicable fair trial guarantees

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General observations

The right to a fair trial is aimed at the proper administration of justice. HRC, General Comment 13 Freedom from arbitrary detention the Habeas Corpus in

Magna Carta 1512

Enforced disappearance Security of the person Right to a fair trial

Two aspects of right to a fair trial: 1. There must be rules specifying how court proceedings are

conducted focus not on outcome of judicial proceedings, but on process

2. There must be rules on structural organization of domestic court system whatever the court system, there has to be separation of powers between executive and judiciary

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UDHR, ICCPR, ICESCR the principal treaties; UN Human Rights Treaty System

1. ICERD 1965

2. CEDAW 1979

3. CAT 1984

4. CRC 1989

5. Migrant Workers Convention 1990

6. CRPD 2006

7. Enforced Disappearance Convention 2006

Regional human rights instruments: ECHR ACHR ACHPR

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Article 10 UDHR:

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.

Article 14.1 ICCPR:

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.

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Article 6.1 ECHR

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and

public hearing within a reasonable time by an independent and

impartial tribunal established by law. []

Article 8.1 ACHR

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and

impartial tribunal, previously established by law, in the

substantiation of any accusation of a criminal nature made

against him or for the determination of his rights and obligations

of a civil, labor, fiscal, or any other nature

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Equality before the court

Hearing by a competent, independent, and impartial tribunal

Fair and public hearing

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Equal access to court

Agreement of human rights institutions: there must be right to access court of first instance in determination of criminal charge or rights and obligations in suit at law.

HRC, General Comment 32: [a]ccess to administration of justice must be effectively guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice.

States play the primary role: there must be guarantee that judicial systems are organized so as to allow all individuals to access the court.

Article 14.1 ICCPR elimination of legal impediments: legal assistance pro bono.

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Equality of arms and treatment without discrimination Equality of arms: all parties to a legal dispute before a court

should be provided with same procedural rights, unless there is an objective and reasonable justification not to do so.

In a criminal trial, the prosecutor is allowed to appeal; so the defendant must also be allowed the same right.

HRC, Gridin v. Russian Federation: a convicted rapist was tried in a courtroom filled with people shouting that he should be sentenced to death

HRC: Failure of court to control hostile atmosphere, which made the defense unable to properly defend = violation of right to fair trial

No differential treatment of persons during court proceedings like cases should be treated alike.

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Courts and tribunals to hear a suit at law must be competent, independent, and impartial and established by law basic rules on jurisdiction, organization etc. of the court must be contained in legislation

Indonesia:

UUD 1945: Article 24 Judicial powers administered by a Supreme Court and a Constitutional Court

UU 48/2009: Judicial powers

UU 14/1985 jo. UU 5/2004 jo. UU 3/2009: Supreme Court

UU 8/2011 jo. UU 24/2003: Constitutional Court

UU 18/2011 jo. UU 22/2004: Judicial Commission

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Competent, independent, and impartial

Competent empowered to make legally binding decisions.

Independent institutionally set up so as to not allow any interference with activities judicial activities.

Independence from executive and from parties to the dispute

Existence of safeguards to preserve independence of judiciary: clear procedures and criteria for

appointment, remuneration, promotion etc. of the

judiciary

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Impartial

Judges must be subjectively impartial:

No personal bias toward either party to the dispute

No prejudice and uninfluenced by media and public

Courts must be objectively impartial: court must appear to impartial observer as free from bias

ECHR, Piersack v. Belgium:

Judge in Piersacks case was head of public prosecutor during investigation of the case

Piersack claimed against Belgium violation of his

right to fair trial ECHR held Belgian court not objectively impartial

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Fair

HRC General Comment 32, principle of fairness: absence of any direct or indirect influence, pressure or

intimidation or intrusion from whatever side and for

whatever motive.

Focus is on process (court proceedings); not result (judgment).

Aspects of fairness

Right to attend hearings

Right to expeditious disposal of proceedings

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Fair

Right to attend hearings: all individuals have right to monitor administration of justice, especially that

concerning their interests

However, this is not absolute guarantee

1. Individual may waive his right to appear at trial

2. If authorities have diligently tried but failed to inform

the individual of trial date

3. Absence in evasion of justice is not violation of fair

hearing principle

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Fair

Right to expeditious disposal of proceedings

There should be no excessive delay in resolution of dispute by a court delays put the effectiveness of a judicial system at stake

Article 14.3(a) ICCPR: In the determination of any criminal charge against him, everyone shall be entitled [] to be tried without undue delay.

Any delay must be reasonable:

Length of each stage of proceedings

Complexity of legal issues

Detrimental effect of delay on the individual

concerned

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Public

Trial must be conducted publicly and orally

Information regarding a hearing and future proceedings should be available sufficient facilities to allow press and members of the public to observe

However, Article 14.1 ICCPR exceptions: public moral, public order, national security in a democratic society, interest of private lives, or necessary

Judgments should be made available to public

Possible exception Article 14.1 ICCPR:

[w]here the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children

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Conclusion

Right to a fair trial has been recognized by all international human rights instruments

In international law most human rights instruments have been considered customary international law; some even norms of jus cogens.

Especially the principal treaties / the international bill of rights UDHR, ICCPR, ICESCR

Therefore States must universally accept these rights as inherent in human beings addressee of human rights obligations States must fulfill the rights of humans in their respective jurisdiction.

Enactment of national law protecting human rights

Adherence to ratified human rights treaties

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Conclusion

If States failed to fulfill human rights violation, ideally the human whose right has been violated will have recourse National remedies

Domestic courts Non-judicial remedies

International remedies human rights courts: upon exhaustion of national remedies, individual may claim against State to international court

European Court of Human Rights American Court of Human Rights African Court of Human Rights ASEAN? UN?

Hukum & HAM S1 Reguler 2014 - Right to a Fair Trial

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