Published in July 2018.
This module is a resource for lecturers
International legal framework
The right to a fair trial is such a fundamental right that it is embedded within all of the legal frameworks underpinning the UN Global Counter-Terrorism Strategy, introduced in Modules 3 and 4, namely international human rights law, international humanitarian law, international criminal law (including the universal instruments against terrorism, such as article 17 of the International Convention for the Suppression of the Financing of Terrorism) and refugee/immigration law. The principal focus here is on international human rights law principles, which form the benchmark of internationally agreed standards and also inform the fair trial and due process principles reflected and embedded within other legal regimes.
The starting position for identifying international recognized standards and obligations is article 14 of the International Covenant on Civil and Political Rights (ICCPR), which aims to ensure the proper administration of justice through the guarantee of a series of specific rights. This is captured within the text of article 14(1) ICCPR, which states that:
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.
There are a number of other accompanying legal principles, notably here:
- Presumption of innocence (article 14(2)).
- Equality of arms (article 14(3)).
- Right to appeal a conviction and sentence to a higher tribunal (article 14(5)).
- Right not to be tried or punished again for an offence for which there has already been a conviction or acquittal (article 14(7)).
Respect for these principles by all engaged parties (notably the police or other investigators, the prosecution, the defence, the judiciary and public officials) is crucial both during the investigative and trial phases of proceedings if the trial is to be considered fair and any resultant conviction 'safe'. For instance, any failure to provide an individual with prompt access to a lawyer puts at risk the fundamental fairness of the eventual proceedings against the individual. Similarly, prejudicial comments by, e.g., members of the judiciary or other public officials implying that a suspect is guilty before that suspect has faced trial may call into question the fairness of any proceedings eventually brought. Though not examined in any detail here, it is important to note that States are also under an obligation to protect the human rights of not only the terrorist suspect, but also victims and witnesses during the investigation of terrorism cases. (See further Module 14).
A number of the elements associated with the right to fair trial, which were codified into article 14 of ICCPR, exist as customary international law obligations and are also found in other international treaties, including those governing armed conflict situations (see section on " Armed conflict") (General Assembly report A/63/223, para. 9). More specifically, a number of the universal counter terrorism instruments expressly provide for adherence to fair trial principles and upholding the rule of law. For example, article 17 of the 1999 International Convention for the Suppression of the Financing of Terrorism requires that "[a]ny person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law." Similarly, article 67(1) of the 1998 Rome Statute of the International Criminal Court (Rome Statute) makes provision for the basic requirements of a fair trial. More specifically, these comprise: the presumption of innocence; privilege against self-incrimination; the right to communicate with legal representatives freely and in confidence; the right to remain silent without such silence being a consideration in the determination of innocence or guilt; the right not to make an unsworn oral or written statement in one's own defence; and the right not to have imposed upon the accused any reversal of the burden of proof or onus of rebuttal. The combined effect of this international framework comprising international and regional treaties together with customary norms means that no State can claim that the due process guarantees associated with the right to fair trial do not apply within their jurisdiction.
Another significant quality of the right to fair trial is that although it is technically derogable under article 4(2) ICCPR, in practice it is considered to be non-derogable where this would circumvent the protection of non-derogable rights. Where derogation is allowed under article 4, it must still adhere to the fundamental requirements of a fair trial, notably the principles of legality and the rule of law. In terms of what this means in practice, the Human Rights Committee has articulated the following minimum requirements applicable during times of emergency: only a court of law may try and convict a person for a criminal offence; the presumption of innocence must always be respected; and the right to take proceedings before a court to decide without delay on the lawfulness of detention must not be diminished by any derogation from the Covenant (General Comment No. 29 CCPR/C/21/Rev.1/Add.11, para. 16; General Comment No. 32 CCPR/C/GC/32, paras. 6 and 59). Furthermore, if a trial can result in the death penalty being imposed, no derogation can be made from any fair trial safeguards. A distinguishing feature of the Arab Charter of Human Rights (adopted 22 May 2004, entered into force 15 March 2008) is that it expressly includes the right to fair trial among the rights that cannot be derogated from even in time of "public emergency which threatens the life of the nation".
Principles and guidelines governing the right to a fair trial
In 2014, the United Nations Counter-Terrorism Implementation Task Force (CTITF) Working Group on Protecting Human Rights while Countering Terrorism developed twelve guiding principles and guidelines governing the right to a fair trial and due process in the context of countering terrorism.* Whilst these do not replace or fully articulate specific legally binding treaty provisions or customary international law obligations, nonetheless they provide a helpful starting point for identifying the essence of fundamental fair trial and due process rights for suspected terrorists.
1. Regardless of nationality, statelessness, or other status, all individuals must have effective access to justice.
2. Criminal charges, or a person's rights and obligations in a suit at law, must be determined by a competent, independent and impartial tribunal established by law. Trial by military or special tribunals must comply with human rights standards in all respects, including legal guarantees for the independent and impartial functioning of such tribunals.
3. The right to a fair trial involves the right to a public hearing. Any restrictions on the public nature of a trial, including for the protection of national security, must be both necessary and proportionate, as assessed on a case-by-case basis. Any such restrictions should be accompanied by adequate mechanisms for observation or review to guarantee the fairness of the hearing.
4. Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to the law.
5. Anyone charged with a criminal offence cannot to be compelled to testify against herself or himself, or to confess guilt.
6. The right to a fair hearing, in both criminal and non-criminal proceedings, involves the right to a trial "without delay" of "within a reasonable time". The right to a timely hearing includes the right to a timely judgment.
7. Everyone charged with a criminal offence, including a terrorist offence, has the right to be tried in his or her presence. Trials in absentia should occur only in exceptional circumstances and only if all due steps have been taken to inform the accused of the proceedings sufficiently in advance.
8. All persons have the right to representation by competent and independent legal counsel of their choosing, or to self-representation. The right to representation by legal counsel applies to all stages of a criminal process, including the pre-trial phase. Any restrictions on the right to communicate privately and confidentially with legal counsel must be for legitimate purposes, must be proportional, and may never undermine the overall right to a fair hearing.
9. In criminal proceedings and other proceedings initiated by the State, every person shall have the right to adequate time and facilities to prepare his or her case. In criminal proceedings, the prosecution must disclose any relevant material in its possession, or to which it may gain access, including exculpatory material. Restrictions on the disclosure of information may be justified in certain cases and subject to conditions that sufficiently guarantee the right of the person to respond to the case.
10. Every person shall have the right to call and examine witnesses, including expert witnesses. The use of anonymous witnesses must be restricted to cases where this is necessary to prevent intimidation of witnesses or to protect their privacy or security and must in all cases be accompanied by sufficient safeguards to ensure a fair trial.
11. Any person convicted of a terrorist offence shall have the right to a genuine review of the conviction and/or sentence by a higher tribunal established by law.
12. Violation of fair trial rights must result in the provision of effective remedies to the person whose rights have been violated. Compensation must be provided where a conviction has resulted from a miscarriage of justice.
* Counter-Terrorism Implementation Task Force (CTITF) (2014). Basic Human Rights Reference Guide: Fair Trial and Due Process in the Context of Countering Terrorism . New York: CTITF Publication Series, United Nations.