Published in July 2018.
This module is a resource for lecturers
Trial and sentencing phase
Trial due process and guarantees
Terrorism trials are often very complex, with considerable amounts of evidence to be considered in respect of events that may have occurred a significant time before the trial takes place. The charges at issue may encompass events alleged to have occurred as part of a wider conspiracy, across borders or over a considerable time span. A variety of complex legal issues may also arise during such a trial including the protection of witnesses, issues of disclosure and the use of sensitive evidence, and whether evidence obtained in violation of human rights guarantees should be excluded. Moreover, given the seriousness of charges commonly associated with terrorism, for those involved in terrorism cases the stakes are high. Ensuring the fairness of proceedings at all stages, through proper protection of human rights standards, is an international law obligation also in terrorism cases.
Many of the same fundamental rights and principles, which are crucial for ensuring a fair trial at the pre-trial stage, examined in the previous section, are equally applicable to the overall fairness of the trial process itself. Therefore, except for the presumption of innocence which is further discussed here, this section focuses on other guarantees not yet considered which apply during trial proceedings and which have been the source of particular concern during counter-terrorism proceedings: judicial independence and impartiality, as well as procedural safeguards during the conduct of trial proceedings.
It should be noted from the outset that, despite their importance, not all of these guarantees are absolute. There are permissible limitations on some of the rights: e.g., a witness' identity may only be disclosed at the last minute to protect her from intimidation, thereby limiting the defence's right to have adequate time and facilities for examination of prosecution witnesses. Nor does the violation of a human rights guarantee in one instance inevitably mean that a trial cannot be fair overall. It will be for the court to decide whether any potential unfairness may be remedied and the fairness of the trial as a whole protected.
For completeness, brief mention should be made here of the existence of other important principles and factors which can influence the fairness of trial proceedings. One is that a trial should be brought within a reasonable period following the accused person's apprehension and/or remand into custody. This requirement can often be problematic in terrorism related cases due to their inherently complex and often transnational character, such as the conduct of multi-jurisdictional investigations and related challenges associated with identifying and securing witness attendance during a trial.
Another potentially significant factor, which is not provided for under the international or regional fair trial provisions considered in this Module, relates to the professional competence of the investigatory, prosecutorial, defense and judicial officials involved in a particular case. Although the notion of 'competence' is referred to within some relevant provisions, this refers to the technical legal competence of the court or tribunal rather than to the professional competence of key officials involved in the criminal justice process. Clearly, factors such as administrative, policing or legal errors, inexperience, or insufficient professional training, can all impact negatively on the availability and effectiveness of procedural rights and guarantees provided for by law. The necessity for high-quality education and the ongoing professional development of judges, prosecutors and lawyers has been a matter repeatedly highlighted by inter alia the United Nations Special Rapporteur on the independence of judges and lawyers (General Assembly report A/71/348; General Assembly, Human Rights Council report A/HRC/35/31). For such reasons, a core function of the United Nations Office on Drugs and Crime (UNODC), including the Terrorism Prevention Branch, is to augment the technical capacity of such State officials when needed through a broad range of capacity-building resources and activities.
Trial by an independent and impartial tribunal
Trial by a competent, independent and impartial tribunal is a fundamental human right. It is guaranteed by article 14(1) International Covenant on Civil and Political Rights (ICCPR), which provides that "[i]n the determination of any criminal charge against him … everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". This right is also protected, in similar terms, by article 6 European Convention on Human Rights (ECHR), article 8(1) of the American Convention, and articles 7 and 26 of the African Charter.
Significantly, the Human Rights Committee has held that the right to an independent, impartial and competent tribunal is absolute and not subject to any exception, even in wartime or during states of emergency (General Comment No. 32 CCPR/C/GC/32, para. 19). Consequently, "any criminal conviction by a body not constituting a tribunal is incompatible with the right to a fair trial. … the notion of a 'tribunal' … designates a body … that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature" (para. 18).
There are two overarching principles:
Independence: Independence requires that courts or tribunals trying criminal cases be structurally and institutionally independent of the executive, including from political interference by the executive branch or legislature. This requires that safeguards are in place, e.g., regarding the procedure and qualifications for the appointment of judges and guarantees relating to their security of tenure.
Impartiality: There are several requirements imposed by the idea of impartiality. First, judges must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them. Impartiality requires that any conviction is based solely on the evidence before the court and the facts it finds proven. In addition, not only must a tribunal be impartial, it must also appear to a reasonable observer to be impartial.
These two principles are interrelated. For example, in Campbell and Fell v. UK the European Court of Human Rights (ECtHR) found that the requirement of independence entails safeguards relating to "the manner of appointment of judges, the duration of their office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence" (1984, para. 78; see also Council of Europe, Committee of Ministers, 1994). Significantly too, with objective and subjective elements, both the appearance, as well as actual existence, of impartiality and independence are crucial ( Kleyn and others v. Netherlands, 2003, para. 194). Therefore, even when there is no evidence of actual unfairness having occurred, a trial may still be found to have been unfair on the grounds of lacking the appearance of impartiality and/or independence. (See also Findlay v. UK, 1997, paras. 75-80, for a military courts material context).
Challenges have arisen in relation to these principles in the context of counter-terrorism where persons charged with terrorist offences have been tried by special or military courts or commissions which, in most circumstances, will violate one or both principles. Significantly, consecutive Special Rapporteurs on the independence of judges and lawyers have expressed concern "in relation to judicial independence in states of emergency, noting that decrees instituting states of emergency were often followed by mass dismissals of judges, the creation of special courts and the restriction or suspension of the judicial review function (see E/CN.4/1995/39, para. 59)" (General Assembly, Human Rights Council report A/HRC/35/31, para. 55).
Other factors may be at play also, making it more difficult for State officials involved in terrorist criminal justice proceedings to abide by such high standards. This may take many forms. Notably, in some States, judges who try terrorism-related cases can face significant threats to their job security or very lives: sometimes from other State officials even though all officials are expected to operate within their State's legal framework; or on other occasions from external sources such as the terrorist group to which the person(s) being tried belongs. In some instances, to prevent retaliatory attacks, judges trying terrorist cases have been 'faceless' by having their identity concealed from the defendant and from the public by a screen. For example, this was a common practice in Peru during the 1990s and was greatly criticized, including by the Inter-American Court of Human Rights (IACtHR) and Human Rights Committee. As the Committee noted in its General Comment No. 32 (CCPR/C/GC/32, para. 23):
Such courts, even if the identity and status of such judges has been verified by an independent authority, often suffer not only from the fact that the identity and status of the judges is not made known to the accused persons but also from [various procedural] irregularities such as exclusion of the public or even the accused or their representatives from proceedings ... Tribunals with or without faceless judges, in circumstances such as these, do not satisfy basic standards of fair trial and, in particular, the requirement that the tribunal must be independent and impartial.
Other factors may play a role too, especially anything which may call into question the impartiality or independence of the judiciary and therefore the fairness of the proceedings, including threats to their safety arising from judicial decisions, or possible corruption of members of the judiciary, and/or law enforcement officials.
Notably, consecutive mandate holders acting as the Special Rapporteur on the independence of judges and lawyers have discerned a concerning upward trend in this regard. As was noted in the 2017 annual report (General Assembly, Human Rights Council report A/HRC/35/31):
53. In 1998, the Special Rapporteur noted an increase in complaints of Governments' non-compliance with internationally accepted standards of due process particularly in terrorist-related crimes, raising questions concerning the integrity, independence and impartiality of the courts (see E/CN.4/1998/39, para. 182). Following the terrorist attacks in the United States on 11 September 2001, the Special Rapporteur announced that he would give careful attention to the effects any measures taken by Governments might have on the respect for the rule of law and the proper administration of justice (see E/CN.4/2002/72, para. 28).
54. The Special Rapporteur later indicated that complaints concerning the failure of Governments to respect internationally accepted judicial guarantees in terrorism-related crimes were constantly increasing. Concerns about the repercussions of counter-terrorism measures on respect for legality were also increasing (see E/CN.4/2004/60, para. 58).
Presumption of innocence at trial
The presumption of innocence is a crucial guarantee during both the investigation of terrorist offences as well as during a trial itself. During a trial one of the most important implications of the presumption of innocence concerns the burden and standard of proof. As the Human Rights Committee set out in General Comment No. 32 (CCPR/C/GC/32), in all criminal trials the presumption of innocence requires that the burden of proof is placed on the prosecution to prove all the essential elements of the crime. The standard of proof to which the prosecution must establish its case is "beyond reasonable doubt".
In some legal systems, however, certain presumptions of fact or law may operate against an accused person. For example, in the context of the possession of explosive substances, some legal systems impose a rebuttable presumption that an individual has knowledge of such items when found in his or her possession.
Procedural safeguards at trial
Several procedural guarantees exist during the trial itself to ensure due process.
Justice is administered openly
This principle is of equal importance to the accused and the public in general (as well as to victims of terrorist acts and their relatives) so that both parties can be reassured as to the standards of justice applied. Openness to scrutiny by the public will act as an additional safeguard to protect against improper procedure. This right is guaranteed by article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) as well as by article 6(1) of the European Convention on Human Rights (ECHR) and article 8(5) of the American Convention. Although no mention of this safeguard is made within the text of the African Charter, this guarantee is specified in the African Commission on Human and Peoples' Rights (ACommHPR) publication Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) (principle 3).
The requirement of publicity is, however, not absolute. Where this is necessary for the protection of a witness (and the witness protection needs cannot be achieved by other means), hearings may be conducted in sessions closed to the public. More generally, the press and the public may be excluded from all or part of a trial only where this serves a legitimate aim. Under article 14 ICCPR, such aims are limited to the protection of morals, public order, national security, the interests of the parties' private lives or the interests of justice. Restrictions for any other purpose are not generally permissible. Any such restriction must be proportionate and in pursuit of a legitimate aim, mindful of the importance of the principle of open justice.
Right of an accused person to be tried in his or her presence
This safeguard is provided for by article 14(3)(d) ICCPR. At the regional level, this right is contained in article 6(3)(c) ECHR and article 8(2)(d) of the American Convention. Once again, though no express provision is made within the text of the African Charter, this right is included within the ACommHPR's Principles and Guidelines on the Right to a Fair Trial (principle 2). The right to participate in one's own trial is clearly essential to the fairness of trial proceedings. The accused person is best able to adequately instruct defence lawyers, to identify points on which prosecution witnesses and evidence can be challenged, and to suggest appropriate lines of enquiry to be pursued. Indeed, many jurisdictions, particularly common law countries, do not allow trial in the absence of the accused. That said, under international law "[p]roceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present." (Human Rights Committee General Comment No. 32 CCPR/C/GC/32, para. 36; see also, e.g., Human Rights Committee communication CCPR/C/OP/2).
Witness attendance and examination
Article 14(3)(e) ICCPR provides that, in the determination of any criminal charge, everyone shall be entitled to "examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". Article 6(3)(d) ECHR contains an identically worded provision, while article 8(2)(f) of the American Convention provides for the "right of the defence to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts". Although the African Charter does not expressly provide for the right to call and cross-examine witnesses as part of the right to a fair hearing, its article 7 implies this requirement and it is expressly provided for within the ACommHPR's Principles and Guidelines on the Right to a Fair Trial (principle 2). Particular issues relating to victims are discussed further in Module 14.
As European Court of Human Rights (ECtHR) has explained, exceptions to this principle are possible but must not infringe the rights of the defence to be given an adequate and proper opportunity to challenge and question a witness against him ( Al-Khawaja and Tahery v. UK, 2011, para. 119). Commonly, due to the transboundary nature of terrorism offences, it can be difficult for both the prosecution and defence to secure witness statements as well as actual witness attendance in court during trial proceedings.
Exclusion of evidence on grounds of public interest
A particular issue that has regularly (though not exclusively) arisen in the context of terrorism trials, due to the inherently sensitive nature of at least some of the information gathered against the suspect, has been applications by the prosecution for the exclusion of evidence on grounds of public interest.
There are certain exceptions to the principle that all materials which the prosecution will rely on at trial must be disclosed to the defence to assist their case, though much caution must be exercised in this regard. The High Commissioner for Human Rights has noted that "[w]hile the legitimate use of a State secrets privilege - as in cases where it is invoked to exclude specific evidence, the exposure of which would necessarily harm national security - can be critical to considerations of national security, its overly broad application by some States has resulted in a lack of accountability including for serious human rights violations", and further that "[s]erious concerns have been raised in the course of legal proceedings regarding the broad use of State secrecy in several countries." (General Assembly, Human Rights Council report A/HRC/16/50, para. 37).
In the context of trials concerning terrorism, a State may, in certain very limited circumstances, decline to provide information or evidence to the defence if to do so would jeopardize the rights of others (for instance, place the life of an informant in danger) or where revealing certain evidence would otherwise endanger an important public interest such as the protection of national security, or reveal the investigative methods of the police or intelligence services.
Once again, the court will be guided by the overall fairness of the trial, including the ability of a defendant to fully make his or her defence without the disclosure and examination of certain evidence or information, and whether the evidence gathered from non-disclosed evidence is the primary or only partial basis of the prosecution case against the defendant (see e.g. Bykov v. Russia, 2009). It may conclude that the fairness of the trial and the rights of the defence require the disclosure of certain evidence, albeit with accompanying safeguards to protect the public interest.
The right to review by a Higher Tribunal
Article 14(5) of the International Covenant on Civil and Political Rights (ICCPR) provides that "everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law". Further clarification of this principle has been given by the case-law of the Human Rights Committee, as are summarized in its General Comment No. 32 (paras. 45-51), notably that:
- The right to review by a higher tribunal is violated not only if the decision by the court of first instance is final, but also where, following acquittal by a lower court, an accused is found guilty at the appeals stage and cannot obtain review of the conviction by a higher court.
- The review by a higher tribunal must be substantive, covering both sufficiency of the evidence and the law, the conviction and sentence. A review that is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts is not sufficient. However, no full retrial or a 'hearing' is required, if the tribunal carrying out the review can look at the factual dimensions of the case.
- The right to have one's conviction reviewed can only be exercised effectively if the convicted person is entitled to have access to a duly reasoned, written judgment of the trial court.
- The right of appeal is of importance in death penalty cases. Legal aid cannot be denied to an indigent convicted person seeking review of the death penalty.
The right to review of a conviction by a higher tribunal is not expressly provided for within regional human rights instruments. That said, the principle has now become enshrined within the scope of article 6 of the European Convention on Human Rights (ECHR) and article 8 of the American Convention, especially through the case law of their respective courts. Furthermore, this right is reflected within the Principles and Guidelines on the Right to a Fair Trial (principle 1) of the African Commission on Human and People's Rights (ACommHPR) as well as within its own jurisprudence. The African Commission has held that to "foreclose any avenue of appeal to 'competent national organs' in criminal cases bearing such penalties [imprisonment or the death penalty] clearly violates article 7.1(a) of the African Charter, and increases the risk that even severe violations may go unredressed". The African Commission considered that only a judicial remedy would satisfy the requirements of the article 7(1)(a) of the African Charter.
The principle 'no punishment without law'
Closely associated with fair trial due process is the principle of 'no punishment without law', which is a fundamental principle of criminal justice and an essential safeguard against arbitrariness. Its importance is such that no derogation from it is allowed even "in time of public emergency which threatens the life of the nation" (article 4(2) International Covenant on Civil and Political Rights (ICCPR), article 15 of the European Convention on Human Rights (ECHR) and article 27(2) of the American Convention). The principle prohibits the prosecution and punishment for conduct that is not proscribed as an offence, as well as the retroactive creation or expansion of offences. It also requires criminal laws to be written in an accessible and foreseeable way that gives 'fair notice' of what conduct is prohibited.
The principle of 'no punishment without law' also prohibits retroactive changes to the criminal sanctions for offences, including terrorist offences. As stated in article 15(1) ICCPR, no heavier penalty may be imposed than the one that was applicable at the time when the criminal offence was committed. If, however, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
Retroactive changes to the criminal law in violation of the principle of 'no punishment without law' can be the result of new legislation. They also can, and possibly more frequently are, the result of a change in judicial practice (see e.g. Del Río Prada v. Spain, 2013).