This module is a resource for lecturers  

 

Investigative phase

 

Pre-trial due process and guarantees

 

Presumption of innocence

The presumption of innocence is fundamental to fair criminal proceedings. It must be respected not only during the trial but throughout the investigation of a criminal offence. The presumption of innocence is enshrined, either expressly or implicitly in the major universal and regional human rights treaties as an aspect of the right to a fair trial. Article 14(2) International Covenant on Civil and Political Rights (ICCPR) provides that "everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law". 

Addressing the presumption of innocence in General Comment No. 32 (CCPR/C/GC/32), the Human Rights Committee states that the presumption of innocence:

  • Is fundamental to the protection of human rights;
  • Imposes on the prosecution the burden of proving the charge;
  • Guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt;
  • Ensures that the accused has the benefit of doubt; and
  • Requires that persons accused of a criminal act must be treated in accordance with this principle.
 

Media coverage

A difficult issue arises with regard to media coverage portraying a suspect or accused as guilty before the matter has been decided by a court. On the one hand, media campaigns prejudging the outcome of criminal proceedings may create a climate in which the objective, detached collection and examination of the evidence in favour and against a suspect's guilt becomes very difficult. This is particularly so where a case is to be tried before lay judges or a jury. On the other hand, media coverage of criminal justice, and particularly of an issue as important to the life of a nation as terrorism investigations and trials, is protected by the right to freedom of expression.

As highlightedby the Krause case study below, public officials must be very careful in speaking to the media regarding an ongoing terrorism case to avoid statements that could be seen as violating the presumption of innocence. To some extent, there is also a positive obligation on the authorities to ensure that, even in the absence of prejudicial statements from public officials, media coverage does not become as inflammatory as to prejudge the possibility of a fair trial taking place. Where a court is trying an accused in relation to whom there has been sustained highly damaging media coverage, the court must consider first whether it is possible to ensure a fair trial, notwithstanding such publicity. The authorities may consider measures, including imposing appropriately tailored and proportionate reporting restrictions on the trial, ensuring that witnesses, lay judges or jurors have not seen, or been unduly influenced by, adverse media coverage, as well as considering a change of venue for the trial. If, despite such measures, a fair trial is not possible then it will be necessary, as a last resort, to stay proceedings.

From the above case studies on the right to be presumed innocent, the approach of the European Court of Human Rights (ECtHR), which is similarly mirrored by other regional human rights courts, is unequivocal in its protection of the presumption of innocence as the fundamental basis of criminal justice proceedings, even against a suspected terrorist.

 

Equality of arms   

There are a number of procedural guarantees designed to ensure that a suspect, and later an accused, has a fair opportunity to prepare his or her defence and to ensure that the defence can be presented properly at trial. A fundamental principle guiding the pre-trial and trial stage of criminal proceedings is that of equality of arms. This principle requires that an accused person be placed in a position to defend himself on an equal footing to that of the prosecution. It implies a number of further specific rights which seek to ensure that equality of arms between prosecution and defence is established in practice. This section examines core procedural guarantees, which should be adhered to in all cases, including terrorism-related cases.

Essential elements of equality of arms

In particular, equality of arms necessitates the following protections in the course of pre-trial proceedings:

  • Accused persons must be adequately informed of the charge(s) they face in a language they understand.
  • Accused persons must be informed of their right to legal assistance. In addition, if desired, they must be able to obtain practical and effective legal assistance of their own choosing, if necessary free of charge (e.g., in circumstances where the interests of justice so require it).
  • Accused persons and their lawyers must be able to communicate freely and in confidence.
  • Accused persons must be afforded adequate time and facilities in the preparation of the defence.
 

Access to legal advice

The right of access to legal counsel is protected by all major universal and regional human rights treaties: e.g. article 14(3)(d) ICCPR, article 7(1)(c) African Charter, article 6(3)(c) European Convention on Human Rights (ECHR), and article 8(2)(d) American Convention.

The right of access to legal counsel is often triggered by the arrest of a terrorism suspect. It applies, however, also where a terrorism suspect is not apprehended or released from detention while awaiting trial. Moreover, it is an essential guarantee for equality of arms and the right to a fair trial. It is in this last context that the right is enshrined in the international human rights treaties.

The first important requirement is that an arrested person must be afforded access to legal assistance promptly upon his arrest. (See further, OHCHR, 1990(a), pp. 1 and 5). International human rights bodies have insisted that:

The right to the presence of a lawyer when making a statement to the police is an important safeguard. However, the core of the notion of access to legal assistance for persons in police custody is the possibility for a detainee to consult in private with a lawyer, and in particular during the period immediately following his loss of liberty. (Council of Europe, CPT, 1996, para. 50).

Some governments argue that in serious criminal cases such as terrorism it is necessary, in the interests of the police investigation, to delay an arrested person's access to a lawyer of his own choice. This may be acceptable from an international human rights law perspective, provided the following safeguards are fulfilled:

  • The limitation of the right to consult with a lawyer of one's own choice is not automatic, but ordered by a judge on grounds relating to the specific circumstances of the arrested suspect and the terrorist group he is alleged to belong to;
  • A government-appointed lawyer is promptly assigned and made available to the detained suspect (within a few hours of arrest);
  • The other aspects of the right to prompt access to a lawyer (particularly the right to consult in private with the lawyer before any interview by the police), as set forth above, are fully respected; and
  • Access to a lawyer of the accused person's choosing is not delayed for more than the time reasonably necessary to achieve the objectives of this measure, e.g., to protect the investigation.

A related key principle of equal importance is the principle that the access to a lawyer can be confidential. Article 8(2)(d) of the American Convention expressly provides for the right of every person accused of a criminal offence to "communicate freely and privately with his counsel". While this is not stated expressly in ICCPR, the Human Rights Committee has made it clear that "[c]ounsel 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" (General Comment No. 32 CCPR/C/GC/32, para. 34). This has been re-iterated within the African system. In its Resolution on the Right to Recourse and Fair Trial (ACommHPR, 1992), the African Commission on Human and Peoples' Rights (ACommHPR) stated that, as part of the right to a fair trial, individuals are entitled to "communicate in confidence with counsel of their choice" (para. 2(i)). Similarly, ECtHR has stated that "the right of the accused to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society … If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective" ( S v. Switzerland, 1991, para. 48; similarly see Erdem v. Germany, 2001, paras. 61 and 65).

There is some acceptance, reflecting the concerns of some States, for the fact that in certain circumstances it may be appropriate to exercise surveillance or censorship over communications between a detained terrorism suspect and his or her defence counsel due to risk to the integrity of the criminal justice process or to national security. This possibility is reflected within, e.g., Human rights and the fight against terrorism: The Council of Europe Guidelines (2005, Guideline XI).

Those suspected of having committed criminal offences may not be able to afford a lawyer. This is all the more likely in the case of potentially complex and lengthy criminal proceedings, which are frequent where charges connected with terrorism are brought. In order to ensure that the right of access to legal assistance is practical and effective and not merely illusory, it will often be necessary for individuals to be provided with legal aid to obtain assistance from a competent and experienced lawyer. This is required by article 14(3)(d) ICCPR and further clarified in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.

 

Right to be informed of the nature and cause of the charge(s)

The right to be informed of the charge one is facing is crucial for fair pre-trial and trial procedure. It is a requirement imposed, expressly or implicitly, by all the major universal and regional human rights mechanisms providing for the right to a fair trial. Article 14(3)(a) ICCPR provides that in the determination of any criminal charge against him, everyone shall be entitled "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him". The purpose of this obligation is to ensure that suspects have the information they need to prepare and put forward their defence, thereby ensuring its fairness.

There is a separate right (as part of the right to liberty) to be informed of reasons for the arrest and of the charges brought which is triggered as soon as someone is deprived of liberty. (See Module 10).

There are several important elements associated with the right to be informed:

Promptly: The requirement of promptness is addressed in the Human Rights Committee's General Comment No. 32 (CCPR/C/GC/32, para. 31) which states that: 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 , or the individual is publicly named as such".

Cause of the accusation:The cause of the accusation consists of the acts the accused is alleged to have committed and on which the accusation is based. ECtHR has stated that the accused must be told of "the material facts that form the basis of the accusation against him" and that he "must at any rate be provided with sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence" ( Mattoccia v. Italy, 2000, para. 60).

Nature of the charge:The "nature" of the charge is the offence on which the charge is based; "in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterization that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair" ( Pélissier and Sassi v. France, 1999, para. 52).

In a language, which the accused understands: Language barriers must, if necessary, be overcome, by means of an interpreter to ensure that accused persons understand the information they have been given. Article 14(3)(f) of the ICCPR enshrines the right of every accused person to "have the free assistance of an interpreter if he cannot understand or speak the language used in court".

 

Right to adequate time and facilities in the preparation of a defence

A further key human rights guarantee during the investigation of crime is the right to adequate time and facilities in the preparation of a defence. This is indispensable to the overall right to a fair trial, which would prove illusory if a defendant is not granted sufficient time and facilities to prepare. It is an essential aspect of the requirement of equality of arms between prosecution and defence.

This right is guaranteed in the major universal and regional human rights treaties dealing with the right to a fair hearing. Article 14(3)(b) ICCPR provides that in the determination of any criminal charge, each accused shall be entitled "to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing". It is also guaranteed to varying degrees within regional human rights treaties. (See, e.g., articles 6(3)(b) and (c) of ECHR; article 8(2)(c) and (d) of the American Convention on Human Rights). For example, whereas ECHR (articles 6(3)(b) and (c)) and American Convention (article 8(2)(c) and (d)) fully reflect this right, it is only partially reflected within the African Charter, which refers to the "right to defence, including the right to be defended by counsel of his choice" (article 7(1)(c)).

Adequate time: What counts as "adequate time" depends on the circumstances of each case. Generally, the adequacy of time depends on factors such as the complexity of the case, any logistical constraints, and the workload of the accused's lawyer.

Adequate facilities: "Adequate facilities" must include access to documents and other evidence;this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory. There are several factors common to many counter-terrorism cases, which tend to create difficulties with regard to respecting the requirement of "adequate facilities" for the preparation of the defence. These include the volume of evidence and other material to be considered; the need to initiate and scrutinize expert forensic or other scientific evidence; and the sensitive nature of some of the evidence (e.g., coming from intelligence sources) the disclosure of which may, according to the prosecution, affect the security interests of a State and, therefore, cannot be partially/fully disclosed to the accused.

 

Right against self-incrimination/right to silence

Article 14(3)(g) ICCPR enshrines the right of each individual "not to be compelled to testify against himself or to confess guilt". Article 8(2)(g) of the American Convention provides for the right of everyone "not to be compelled to be a witness against himself or to plead guilty", a provision that is reinforced by article 8(3), which states that "a confession of guilt by the accused shall be valid only if it is made without coercion of any kind". No similar provision is included expressly in either ECHR or African Charter. However, the right to a fair trial has been interpreted in these instruments as including the right against self-incrimination. In many national legal systems, this principle is known as the 'right to remain silent'.

The Human Rights Committee has explained that the safeguard must be understood broadly "in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt" (General Comment No. 32 CCPR/C/GC/32, para. 41). I.e. it is not limited to evidence obtained through prohibited means such as torture.

As the case study of Heaney and McGuinness below illustrates, the right against self-incrimination does not merely prevent the extraction of incriminating statements through coercion. It also restricts the extraction of such statements using other forms of compulsion, direct or indirect.

 

Treatment of suspects during an investigation

In the aftermath of a terrorist attack, the authorities, particularly the police and other investigating agencies, often are under enormous pressure - from the public and from political leaders - to identify those responsible and bring them to justice without delay. The plot will often have been carried out by a highly sophisticated and secretive organization, making the identification and arrest of those responsible particularly challenging. Quickly identifying those responsible and gathering evidence against them can be exceedingly difficult.

Under these circumstances, the use of coercion against suspects or persons suspected of being otherwise in possession of valuable information might appear the most effective way to ensure quick success to the investigation. It is, however, of crucial importance that human rights guarantees, including those relating to the prohibition against torture or other forms of ill-treatment, are adhered to in the course of a criminal investigation, including in terrorism cases. Not only are torture and other ill-treatment in violation of a universally established rule of law (see Module 9). Such conduct can also fundamentally undermine the investigation since, as will be seen, evidence obtained by torture must not be relied upon during a criminal trial and may render trial proceedings unfair, resulting in a conviction being overturned.

On occasion, it may be legitimate for the investigating authorities, following the apprehension of a person suspected of terrorist offences, to hold that person incommunicado (i.e. withholding information about the fact and location of the person's detention) for a brief period. This will involve reaching a proper balance between investigative requirements and the interests of detainees. (See Module 10).

 

Exclusion of unlawfully obtained evidence

Closely related to issues of self-incrimination are ones regarding the way evidence against an accused person has been obtained. A critical aspect of any trial is the fairness of the evidence relied upon in court. Where any issues arise of potential unfairness, such as that any evidence was obtained unlawfully, pre-trial proceedings may be initiated by the defence or prosecution to seek its exclusion as evidence from the trial.

One repeated practice of concern has been the obtaining of evidence through unlawful means that the accused person may not even have been aware of, e.g., through warrantless surveillance, which may be contrary to the domestic law of the country in which it was obtained. In a counter-terrorism context, due to the significant role played by the intelligence community and the accompanying secrecy of the methods of intelligence gathering employed (see Module 12), the risk exists of modifications being made to due process procedures regarding the admissibility of evidence during terrorism-related cases to secure convictions or, for instance, of unlawful interrogation methods being used. Consequently, a former United Nations Special Rapporteur on the protection of human rights while countering terrorism, Martin Scheinen, warned judicial organs to remain vigilant to such possibilities, expressing concern that "the use of evidence obtained in breach of human rights or of domestic law renders the trial unfair" (General Assembly report 63/223, para. 34).

Confession evidence obtained under any form of duress, such as prohibited interrogation methods, can violate due process and other human rights protections in several ways. One is that it can result in an unfair trial and an eventual wrongful conviction, which not only violates the fundamental rights of the person concerned, but generally serves no useful purpose, including in terms of preventing future terrorist acts if the wrong people are convicted. Additionally, any such practice violates article 7 of the International Covenant on Civil and Political Rights prohibition against torture, inhuman and degrading treatment.

For such reasons, article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that "each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings" (Committee Against Torture General Comment No. 2, CAT/C/GC/2, para. 6). This is an absolute rule that may not be balanced against other interests, however pressing they might be. It cannot be derogated from, even in time of emergency that threatens the life of the nation. This is made clear in, for instance, General Comment No. 2 (at para. 6) of the Committee Against Torture, in which the Committee further clarified that this prohibition also applies in relation to inhuman and degrading treatment and that no limitation may be placed on this prohibition in any circumstances (CAT/C/GC/2).

This principle is reflected within other documents articulating agreed international standards and obligations, including The United Nations Guidelines on the Role of Prosecutors (OHCHR, 1990(b), Guideline 16), and the Basic Principles on the Independence of the Judiciary (OHCHR, 1985).

Cases in which it is alleged that statements being relied upon by the prosecution were obtained by torture or inhuman or degrading treatment as evidence in criminal proceedings can raise many difficult and complex issues for the courts to deal with, as the following case studies illustrate.

Exclusion of evidence obtained in violation of human rights laws

One issue that can raise important rule of law issues and challenges concerns situations in which the outcome of an investigation or a trial against a person suspected of having committed a serious terrorist crime - which may have resulted in the murder of and significant injury to many innocent people - depends on the use of evidence obtained in violation of human rights law.

Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is clear and absolute regarding the exclusion of evidence of statements made because of torture. Beyond this clear rule, however, many difficult questions arise, such as:

  • What if statements obtained under torture or inhuman or degrading treatment lead the investigators to other evidence (sometimes referred to as 'real evidence' or 'derivative evidence'), which the prosecution then seeks to introduce at trial?
  • What if statements made to an investigator under torture or inhuman or degrading treatment are then confirmed before a prosecutor or investigating judge?
  • What if evidence is obtained in violation of other, less absolute and peremptory human rights guarantees, such as the right to assistance by legal counsel, or safeguards relating to surveillance measures and other special investigative techniques?

Based on case law concerning the evidence allegedly obtained under torture or inhuman or degrading treatment, together with fair trial and due process principles, it may be possible to reach the following conclusions in terms of what evidence may or may not be admissible in court:

  • Statements that have been made as a direct result of torture or inhuman or degrading treatment can never be admitted at trial without rendering the whole proceeding unfair.
  • Where statements made under torture have led the investigators to other evidence ('real evidence' or 'derivative evidence'), the use of such evidence will still taint the integrity of the proceedings so seriously that it should not be relied on as evidence, irrespective of its probative value.
  • Where statements made under torture are subsequently confirmed under circumstances that do not, on their face, suggest any coercion, judges should still exercise great caution, both because the torture suffered may influence the statements of the victim long after the ill-treatment ended, and because the risk of tainting the integrity of the criminal justice process remains.
  • Evidence that has been obtained in violation of human rights guarantees other than the prohibition on torture or inhuman or degrading treatment is not necessarily rendered inadmissible at trial because of that violation (except by application of a strict 'fruits of the poisonous tree' rule in domestic law). It only becomes inadmissible, by operation of the right to a fair trial, if the illegality or violation is such as to risk the fairness of the proceedings against an accused.
  • In ensuring that the rights of the accused and the fairness of proceedings are given due consideration, regard must be had to:
    • Whether the accused is afforded meaningful opportunity to challenge the authenticity and reliability of any evidence offered in contravention of human rights standards.
    • Whether the trial proceedings are made unfair by the introduction of illegally obtained evidence into the proceedings.
    • Whether there is other evidence to corroborate that which has been illegally obtained. In this regard, where illegally obtained evidence is the main evidence against an accused, there needs to be a high degree of assurance as to the reliability and authenticity of the material, with very strong procedural safeguards.
 

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