Right to a fair trial
Encyclopedia
The right to fair trial is an essential right in all countries respecting the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

. 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
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

, the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...

 to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, 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
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

 that defines what is or is not a fair trial, for example the right to a jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...

 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
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...

, such as the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

 (UDHR). Though the UDHR enshrines some fair trial rights, such as the presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...

 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
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...

 (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
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...

, 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
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...

. 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
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...

 guarantee soldiers the right to not be put on trial for fighting in a war - unless they commit a war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...

 (a grave breech) or other crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

. 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
African Charter on Human and Peoples' Rights
The African Charter on Human and Peoples' Rights is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent....

 (ACHPR).

The right to a fair trial is also enshrined in articles 5, 6 and 7 of the European Charter on Human Rights
European Charter on Human Rights
European Charter on Human Rights may refer to:*The European Convention on Human Rights adopted by the Council of Europe which came into force in 1950, protected by the European Court of 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
American Convention on Human Rights
The American Convention on Human Rights is an international human rights instrument.It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969...

.

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
International human rights instruments
International human rights instruments are treaties and other international documents relevant to international human rights law and the protection of human rights in general...

. 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
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 and the American Convention on Human Rights
American Convention on Human Rights
The American Convention on Human Rights is an international human rights instrument.It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969...

.

Fair trial rights

The right to a fair trial has been defined in numerous regional and international human rights instruments
International human rights instruments
International human rights instruments are treaties and other international documents relevant to international human rights law and the protection of human rights in general...

. 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
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...

 and criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 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
    Right to counsel
    Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...

  • 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
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 proceedings, because the consequences for the individual are more severe in criminal proceedings compared to civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...

 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
    Double jeopardy
    Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...

    .

The right to a fair trial in civil proceedings

The European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 and the Inter-American Court of Human Rights
Inter-American Court of Human Rights
The Inter-American Court of Human Rights is an autonomous judicial institution based in the city of San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it makes up the human rights protection system of the Organization of American States , which serves to uphold and...

 have clarified that the right to a fair trial applies to all types of judicial proceedings, whether civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...

 and criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

. According to the European Court of Human Rights Article 6 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 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
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 and the Inter-American Court of Human Rights
Inter-American Court of Human Rights
The Inter-American Court of Human Rights is an autonomous judicial institution based in the city of San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it makes up the human rights protection system of the Organization of American States , which serves to uphold and...

 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

. In Mills v. the United Kingdom 2001 the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 held that a court-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...

 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
African Commission on Human and Peoples' Rights
The African Commission on Human and Peoples' Rights is a quasi-judicial body tasked with promoting and protecting human rights and collective rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of...

 (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
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...

 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
    Contempt of court
    Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...

     (typically by the media
    News media
    The news media are those elements of the mass media that focus on delivering news to the general public or a target public.These include print media , broadcast news , and more recently the Internet .-Etymology:A medium is a carrier of something...

     or jurors)
  • Witness intimidation
    Witness intimidation
    Witness intimidation involves witnesses crucial to court proceedings being threatened in order to pressure or extort them not to testify. The refusal of key witnesses to testify commonly renders a case with inadequate physical evidence void in a court of law...

  • Non-disclosure of evidence, through malice or through abuse of State Secrets Privilege
    State Secrets Privilege
    The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...

     (in the USA/) or Public interest immunity
    Public Interest Immunity
    Public-interest immunity is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest...

    (in the UK)

External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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