Right to a Fair Trial

11 Key excerpts on "Right to a Fair Trial"

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  The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights

  • Alastair Mowbray(Author)
  • 2004(Publication Date)
  • Hart Publishing

    (Publisher)

  5 Article 6: Right to a Fair Trial T his elaborate provision specifies that: (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pro-nounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special cir-cumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and causes of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the atten-dance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Article 6 is the source of the largest number of complaints made to the Court. 1 This can be explained, in part, by the scope of the provision which seeks to guar-antee fair trials for both civil and criminal cases.

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  Human Rights and Civil Liberties

  • Howard Davis(Author)
  • 2013(Publication Date)
  • Willan

    (Publisher)

  Article 6. Right to a Fair Trial

  1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life 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.
  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
  3. Everyone charged with a criminal offence has the following minimum rights:
     1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
     2. to have adequate time and facilities for the preparation of his defence;
     3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given free when the interests of justice so require;
     4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
     5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

  The Right to a Fair Trial is absolute in the sense that a trial in violation of Article 6 is unlawful. A criminal conviction, for example, should be set aside.16

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  A Commentary on the International Covenant on Civil and Political Rights

  The UN Human Rights Committee's Monitoring of ICCPR Rights

  • Paul M. Taylor(Author)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  David Weissbrodt, The Right to a Fair Trial (Springer, 2011), provides a detailed survey comprising specialist contributions addressing the implications of all facets of the fair trial principle in criminal proceedings. For a thorough analysis of Art. 6 of the European Convention for consistency, predictability, coherence and guidance, similarly in criminal proceedings, see Ryan Goss, Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights (Bloomsbury, 2016). European coverage is also provided by Sarah J Summers, Fair Trials: the European Criminal Procedural Tradition and the European Court of Human Rights (Bloomsbury, 2007). 2 David Weissbrodt examines the origins of the Right to a Fair Trial in the Universal Declaration and the Covenant in The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights: Background (Springer, 2001). A shorter overview is offered by Beth Simmons, ‘Civil Rights in International Law: Compliance with Aspects of the International Bill of Rights’, (2009) 16 Ind. J. Global Legal Stud., p. 437, at p. 470. Richard Clayton and Hugh Tomlinson, Fair Trial Rights (Oxford University Press, 2010), combines European Convention jurisprudence with a survey of the common law principles and practice from the United Kingdom, Canada, New Zealand, South Africa and other jurisdictions. Article 14: Fair Trial Rights 371 Even full compliance with Article 14, before and at trial, would be valueless if the resulting decision, such as an award of compensation, may not be enforced. 3 In its application to criminal matters Article 14 offers overlapping guarantees, both general (Article 14(1)) and particular (Article 14(2)–(7)).

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  European Fundamental Rights and Freedoms

  • Dirk Ehlers, Ulrich Becker, Et al., Dirk Ehlers(Authors)
  • 2011(Publication Date)
  • De Gruyter

    (Publisher)

  121 c) The Right to a Fair Trial The right to a “fair hearing” expresses the principle of fair trial . It includes a multitude of partial guarantees focussing on a course of proceedings in which the parties can represent their point of view under basically equal conditions. 122 This right particularly demands that the affected individual can represent his legal position effectively. First, partial guarantees , like the principle of equality of arms, the right of access to the file, the right to adversarial proceedings and the obligation to state reasons for a deci-sion belong to the principle of a fair trial. Moreover, the rights of the defendant em-bodied both in Article 6(3) and (2) of the ECHR and developed by the case-law, eg the principle of nemo tenetur , are regarded as being an expression of the principle of fair hearing. In some cases, the Court is satisfied with the finding that the procedure in ques-Fundamental Judicial and Procedural Rights § 6 II 1 113 ECtHR Ashingdane (1985) 7 EHRR 528, para 57; Lithgow (1986) 8 EHRR 329, para 194; Philis (1991) 13 EHRR 741, para 59; Villiger (note 7) para 431. 114 ECtHR Ashingdane (1985) 7 EHRR 528, para 57; Lithgow (1986) 8 EHRR 329, para 194; Philis (1991) 13 EHRR 741, para 59; Villiger (note 7) para 431. 115 ECtHR Ashingdane (1985) 7 EHRR 528, para 58. 116 ECtHR Lithgow (1986) 8 EHRR 329, para 197. 117 ECtHR Fayed (1994) 18 EHRR 393, para 70. 118 ECtHR Ashingdane (1985) 7 EHRR 528, para 59. 119 ECtHR Kreuz App No 28249/95, paras 61 ff (Imposition of a fee for lodging an action to the amount of an average annual salary as an excessive impediment of the access to the court). 120 ECtHR Waite (2000) 30 EHRR 261, paras 59 ff. 121 Cf Matscher [1980] ÖZÖR 20–21. 122 Miehsler/Vogler in: Golsong/Karl (eds) Internationaler Kommentar zur Europäischen Menschen-rechtskonvention (loose-leaf, Cologne et al) Art 6, para 341. 163 38

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  Combating Economic Crimes

  Balancing Competing Rights and Interests in Prosecuting the Crime of Illicit Enrichment

  • Ndiva Kofele-Kale(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  innocent, the right to be tried without undue delay, the right to prepare a defense, the right to defend oneself in person or through counsel, the right to call and examine witnesses and the right to protection from retroactive criminal laws. An essential element of a fair hearing is the principle of “equality of arms” (egalité des armes) between the parties in a case 155 which means that both parties are to be treated in a manner ensuring that they have a procedurally equal position during the course of the trial, and are in an equal position to make their case. 156 Equality of arms requires that the prosecution as well as the accused is afforded a reasonable opportunity to present its case, under conditions that do not place it at a substantial disadvantage vis-à-vis the opposing party. 157 This is particularly important in criminal trials where the prosecution has all the machinery of the state behind it; the principle of equality of arms is an essential guarantee of the right to defend oneself. It ensures that the defense has a reasonable opportunity to prepare and present its case on a footing equal to that of the prosecution. Its requirements include the right to adequate time and facilities to prepare a defense, including disclosure by the prosecution of material information. 158 The presumption of innocence principle would be violated if, for example, the accused was not given access to information necessary for the preparation of the defense, if the accused was denied access to expert witnesses, or if the accused was excluded from an appeal hearing where the prosecutor was present

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  Obstacles to Fairness in Criminal Proceedings

  Individual Rights and Institutional Forms

  • John D Jackson, Sarah J Summers, John D Jackson, Sarah J Summers(Authors)
  • 2018(Publication Date)
  • Hart Publishing

    (Publisher)

  Some rights have been added by additional protocols. This leads me to the question as to their relationship to the ‘general’ Right to a Fair Trial. I think that it is legitimate to ask this question in view of the fact, that the accused, according to the title of Article 6 ECHR, has the ‘Right to a Fair Trial’, even if this title, as I have already mentioned, has no normative value. I shall deal with these rights in the order in which I examined them in my book, 21 namely the right to be tried by an independent and impartial court, the right to adversarial proceedings, the principle called ‘equality of arms’, the right to a rea-soned judgment, the right to a public hearing, the right to be tried within a reason-able time, the right to be presumed innocent, the protection against any pressure to incriminate oneself, the right to appeal, the right to compensation for wrongful conviction and the protection from double jeopardy. ii. Fair Trial and the Right to an Independent and Impartial Tribunal In my view, the right to be tried by an independent and impartial tribunal is the most important procedural guarantee; it is the very pillar stone of the rule of law. Unless The Character of the Right to a Fair Trial 27 22 Ergin v Turkey (No 6) , no 47533/99, ECHR 2006-VI [55]. 23 See, eg, Demicoli v Malta (1992) 14 EHRR 47 [43]; Findlay v United Kingdom (1997) 24 EHRR 211 [80]; Incal v Turkey [GC] (2000) 29 EHRR 449 [74]; Özertikoglu v Turkey , no 48438/99, 22 Jan 2004 [25]. 24 For example, when Judge Harhoff was declared to have been biased, the trial against Vojislav Šešelj had to be started again from scratch. this prerequisite is fulfilled, there will be no reliable control of the executive, no dam to the arrogance of power. However, this evaluation is not linked in any way to the question whether a trial before a deficient tribunal is unfair. In everyday language one might say: ‘My trial was not fair, the judge was biased’.

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  Fair Trial Rules of Evidence

  The Case Law of the European Court of Human Rights

  • Jurkka Jämsä(Author)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  The fairness of a trial cannot – and perhaps should not – be defined in absolutely clear terms. Overall assessment of fairness must be based on multiple factors. It may clarify the notion of fair trial to some degree, however, to point out that fairness generally requires that the defendant is given an opportunity to participate effectively in the proceedings against them. Furthermore, there should be a fair balance between the parties, and the defence should not be placed in a disadvantageous position in relation to the prosecution. There seems to be a close connection between these requirements, although the Court has traditionally made a distinction between them.

  According to the Court, “the right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party”.2 This might be seen as the positive definition of effective participation. On the other hand, “under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent”.3 Here, the concept of fairness is approached negatively, by describing what would not allow effective participation.4

  1. 1     Ibrahim and Others v. the United Kingdom [GC], 13.9.2016, § 250.
  2. 2     See e.g. Murtazaliyeva v. Russia [GC], 18.12.2018, § 91.
  3. 3     See e.g. Öcalan v. Turkey [GC], 12.5.2005, § 140.
  4. 4     The principles are sometimes mentioned together, see e.g. Rowe and Davis v. the United Kingdom [GC], 16.2.2000, § 60: “It is a fundamental aspect of the Right to a Fair Trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence.”

  Article 6 § 2 contains a right known as the presumption of innocence

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  Unlocking Human Rights

  • Peter Halstead(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  7

  Right to a Fair Trial

  AIMS AND OBJECTIVES At the end of this chapter you should be able to:

    Appreciate the role the common law plays in ensuring fair treatment in criminal trials and civil litigation

    Understand the importance of fair process to people arrested on suspicion (although note that the chapter does not deal with the Police and Criminal Evidence Act (PACE) and codes which are covered in Chapter 6.3 )

    Be aware of the full scope of Article 6 of the ECnHR with its fundamental assumption of innocence until proved guilty and the minimum rights available under Article 6(3) to everyone charged with a criminal offence

    Appreciate the importance of the principle of no punishment without law established by Article 7 of the Convention

  7.1 Trials and hearings

  It should be noted that although the rubric of Article 6 refers to ‘Right to a Fair Trial’ this is something of a misnomer because the Article deals with determination of civil rights and obligations as well as criminal charges, and in the civil context it is more appropriate to refer to ‘hearings’ rather than ‘trials’. The ‘Right to a Fair Trial’ is part and parcel of the broader rights requirement of fair process, and includes Article 7 which deals with the principle of no punishment without law and other aspects of due process such as rules of natural justice.

  7.2 Background

  The ways in which English law has dealt with trials over the centuries would comprise a study in itself, but two brief examples can be shown to provide an indication of how some of these ancient provisions still have resonance in the twenty-first century.

  7.2.1 Magna Carta (1215)

  This seminal constitutional document was concerned with privileges conceded by the Crown, mostly to earls and barons and less so to freemen, but it is often assumed nowadays to be the origin of a variety of rights and privileges enjoyed by everyone subject to English law, even though the bases upon which the Charter’s provisions were made are long gone. It may be argued from Clause 28 that one of the fundamental requirements of fair process is that evidence should be provided by ‘faithful witnesses’, although the original purpose of producing witnesses was not directly to do with the alleged wrongful actions of an accused person.

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  Criminal Law Handbook, The

  Know Your Rights, Survive the System

  • Paul Bergman, Sara J. Berman(Authors)
  • 2024(Publication Date)
  • NOLO

    (Publisher)

  This philosophy is reflected in a number of fundamental trial rights that defendants enjoy. Most of these rights trace their pedigree to the U.S. Constitution’s Bill of Rights, and they act as an important restraint on governmental power over private citizens. This chapter describes these fundamental trial rights, which, taken together, form a large part of the “due process of law” guaranteed by the 5th and 14th Amendments to the U.S. Constitution. The Defendant’s Right to Due Process of Law The Fifth Amendment to the U.S. Con- stitution provides in part that a person can’t “be deprived of life, liberty or property without due process of law.” This Due Process Clause is the basis for many of the rights afforded criminal defendants and procedures followed in criminal courts. What is meant by the term “due process”? “Due process” is an abstract term meaning nothing more nor less than what judges and lawmakers say it means. They generally have interpreted it to mean that criminal procedures are supposed to be fair and just. The term has two general dimensions: • Procedural due process. This means that before criminal defendants can be punished, they must be given a legitimate opportunity to contest the charges against them. For example, they are entitled to notice of the charges long enough before trial to have a chance to prepare a defense, and they are entitled to be tried by fair and impartial judges and juries. • Substantive due process. This means that any actions the government takes must further a legitimate governmental objective. No matter how fair the process, people can’t be punished for reading books or making statements that government officials don’t like. Another consequence of substantive due process is that the government can’t prosecute people based on their status alone. For example, a person can’t be prosecuted for being a sex worker, an alcoholic, or a drug addict.

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  Criminal Procedure

  Law and Practice

  • Rolando del Carmen, , Craig Hemmens, , Rolando del Carmen, Craig Hemmens(Authors)
  • 2016(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him. United States v. Cronic (1984) Strickland v. Washington (1984) Lockhart v. Fretwell (1993) Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Basic Constitutional Rights of the Accused during Trial 385 Instead, Gary must specify the errors the defense lawyer committed that contributed to his conviction. Likewise, a mere error of law in advising a defendant to enter a guilty plea does not in itself constitute the denial of effective counsel. The test is whether the mistake was “within the range of competency” of most criminal defense lawyers. However, if the lawyer fails to follow state procedural rules, resulting in the dismissal of the appeal, this represents ineffective assistance of counsel. Claims of Ineffective Counsel in Death Penalty Cases In recent years, the Court has had to decide a number of cases involving claims of ineffective counsel, particularly in death penalty cases. Some of these claims have suc-ceeded, others have failed. It is difficult to identify a common standard whereby the Court decides these challenges.

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  Fair Trial Rights of the Accused

  A Documentary History

  • Ronald Banaszak(Author)
  • 2001(Publication Date)
  • Greenwood

    (Publisher)

  We have not previously been called upon to decide whether the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment. At one time, it was thought that the Sixth Amendment had no application to state criminal trials. That view no longer prevails, and, in recent years, we have increasingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law. We have held that due process requires that the accused have the assistance of counsel for his defense, that he be confronted with the witnesses against him, and that he have the right to a speedy and public trial. The right of an accused to have compulsory process for obtaining wit Page 165 nesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States. This Court had occasion in In re Oliver to describe what it regarded as the most basic ingredients of due process of law. It observed that: “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence, and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury, so it may decide where the truth lies.

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