Published in July 2018.
This module is a resource for lecturers
Exercise 1: National fair trial and due process rights
- Are the core legal principles of fair trial and due process articulated in the international and regional human rights instruments outlined above protected within your own national legal system in the context of criminal justice processes (whether during the investigative, trial and/or sentencing phases). Are there any noticeable omissions or areas of ambiguity? Or does your own legal system (e.g., penal code or constitution) offer more extensive rights?
- Have there been occasions in trials of terrorist charges when the right to fair trial has not been given fully, whether within your country and/or geographical region? What impact did this have, including from a rule of law perspective?
Exercise 2: Presumption of innocence
The following case study is fictitious but is based upon an amalgamation of real cases of commonly recurring violations of the right to a fair trial, focusing especially here on the presumption of innocence. The case study could be used as the basis of a group discussion exercise, and readily adapted to your own domestic context.
On 16 April 2013 at about 7pm, Mr Citizen was apprehended by police near his house. He was not charged under any offence at the time of his apprehension. He was brought to the police station of jurisdiction and was locked in a room for the night. In the morning, police officers and army officials came to his room and took him to an unknown location and started to threaten him, pressurizing him to confess to the killing of a senior police officer who had been murdered on 1 April 2013. The accused was presented before the Area Magistrate on 18 April 2013 at 10:30am. On the same day, a forensic-medical examination was performed on him. No injuries were found on his body. On the night from 19 to 20 April 2013, four unknown officers came to his cell. He was hand-cuffed and his head was covered with a hood/chaader. He was offered a "last chance" to confess guilt, otherwise he would be killed. The officers started beating him, and he was punched and pushed and fell several times on the floor, injuring his head and knees in the process. The officers further threatened to kill his wife and daughter.
On 28 April 2013, the Magistrate ordered another forensic-medical examination after a lawyer alleged that the accused had been tortured. The examination was carried out on 17 May 2013. According to the record of the forensic examination, only a small, already healing wound was found on the complainant's head. According to the record, the wound in question could have been caused accidently during sleep. No further action was taken based on the report from either the accused or the Magistrate.
Upon its own motion, on 16 April 2013, the Supreme Court of Arcadia, the Chief Justice of Arcadia demanded an inquiry report into the murder of the senior police officer within 24 hours and the arrest of the suspected culprits. The relevant Inspector General of Police (IGP) presented the report before the Bench the next day. He informed the Bench in open court that the investigating agency had already arrested Mr Citizen who had confessed to the crime, was formerly a member of a proscribed organization, and previously had been charged with and convicted of funding terrorist activities. These details were published in the media, together with Mr Citizen's pictures holding an AK47 in company of a renowned leader of a criminal group. The Chief Justice of Arcadia congratulated the IGP in a statement in a newspaper for the progress made so far in the criminal justice proceedings, directing the IGP to complete the investigation of all relevant matters within a few days so that the trial court could complete the murder trial within 'one week'.
One leading media house obtained a copy of Mr Citizen's alleged confession and published it in the newspaper. Another media house showed an interview of Mr Citizen's former neighbour who told the reporter that accused was a man of bad character and once stole his chicken. A third media house invited a lawyer to discuss the maximum punishment Mr Citizen could get at trial, and the chances of the accused's conviction.
In small groups (e.g. 4-7 people) discuss, with reference to article 14 International Covenant on Civil and Political Rights (ICCPR) principles of fair trial and due process, the following questions:
- Whether and, if so how, Mr Citizen's right to the presumption of innocence was violated on these facts.
- What impact any violation of the presumption of innocence would have on Mr Citizen's right to a fair trial.
- If you were his defence attorney, how would you advise your client regarding future legal steps?
- Would it still be possible for Mr Citizen to have a fair trial?
What are the rules regarding a suspect's right to be informed of the charges against him or her in your own national legal system? Compare them to the international norms outlined above. Are these rules fully applied in practice in terrorism cases? What are, in your legal system, the consequences of a failure to inform a suspect of the charges against him or her?
Exercise 4: Debate on the trial of civilians charged with terrorist offences by 'ordinary' or 'special'/military courts or commissions (see Teaching Guide)
Hold a debate. Put the class into two groups: (1) representatives of the Ministry of Justice (of your own, another or a fictitious country, as is most appropriate to your context) who are in favour of civilian terrorists being tried by 'special' or military courts or commissions which generally do not offer full fair trial rights as have been examined in this Module; and (2) representatives of national and/or international human rights non-governmental organizations who are strongly opposed to such a proposition and are of the view that even civilian terrorists must be tried by 'ordinary' civilian criminal courts to ensure article 14 ICCPR fair trial rights and guarantees.
By way of assistance in further clarifying their thoughts, it may be helpful for students to have time to read (or to have read prior to the class) the following two short articles:
- Mukasey, Michael (2009). " Civilian Courts Are No Place To Try Terrorists." The Wall Street Journal, 19 October.
- Feinstein, Dianne (2010). " Civilian Courts Can Prosecute Terrorists ." The Wall Street Journal, 31 March.
Allow time (e.g., 10-15 minutes) for groups to consider their key arguments and then make a short presentation (e.g. for 5 minutes each).