International human rights
The word “right” has been defined to include all the inherently moral rights that a human being has acquired by virtue of his birth and ought to have at all times for his own existence as a human being and for his personal development. These Natural Rights have been recognized by all International Instruments and broadly include the right to life, liberty, equality and dignity. These rights, now known as Human Rights became sacrosanct, inviolable and immutable and no government had the power to abridge or take away these rights.
Various countries have attempted to include and define these inherent rights in the various declarations adopted by them. Post the second world war, the United Nations in the year 1948, with a view to ensure international acceptance of these rights adopted the Universal Declaration of Human Rights. The Universal Declaration of Human Rights was basically an international instrument that formed the basis of all other international and regional instruments on Human Rights. The United Nations urged the different countries to ratify the Declaration and to adopt and implement the provisions therein.
However, there was a divide on the kind of rights that were given importance by various countries. It was seen that Capitalist countries gave more importance to civil and political rights embodied in the Declaration, while Communist countries gave importance to the economic, social and cultural rights. This divide gave rise to the declaration of two different covenants, namely, the International Convenant on Civil and Political Rights and the International Convenant on Economic, Social and Cultural Rights.
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Various regional human rights instruments sprung from these two main Convenants. Right to fair trial, which forms the basis of this essay is found in the International Convenant on Civil and Political Rights (ICCPR). For the purposes of this essay, two regional instruments namely, American Convention on Human Rights and the European Convention on Human Rights is being compared and contrasted vis a vis their provision on “Right to fair trial”. Article 14 of the International Covenant on Civil and Political Rights states that all persons shall be equal before the courts and tribunals.
It further goes on to state that all persons before any court must be accorded a fair, independent and impartial hearing by the court. Also that any person accused of a crime has a right to be assumed innocent until proven guilty and that certain minimum guarantees embodied in this Article shall be ensured to all persons so charged. The Article further goes on to elaborate upon details of juveniles who are accused of any crime and also the possibilities regarding appeal of sentences, compensation as against miscarriage of justice and double jeopardy .
This Article forms the basis on which other regional instruments have developed their own laws on fair trial. We shall now look at the details regarding the provisions as embodied in the American Convention and the European Convention. In this essay we shall first consider the provisions as embodied in the two Conventions, then understand the differences or similarities between the provisions and then look at the case law that reflects the attitude of the respective Courts. Article 8 of the American Convention on Human Rights entitles all persons right to a fair trial.
A brief reading of the provision states that it provides for all proceedings to be conducted in public unless it is against the interests of justice. According to this provision, all persons have the right to a hearing that is to be conducted with reasonable time by a Tribunal or Court established by law that will ensure competence, independence and impartiality in judgment. It also lays stress on the presumption of innocence of all persons accused of a criminal offense until proven guilty. The Convention also provides for certain basic guarantees that all persons are entitled to during any Court proceeding.
Impartiality in judgment, as mentioned in the American Convention, means that the jury or judge deciding a particular case must not have any prior knowledge regarding the case or the persons involved. Notions or biases formed before the hearing create impediments in establishing the fairness of trial. This provision of fair trial is included by the Constitution makers in the Sixth Amendment. However, there has been a debate over the conflict that this provision has with the First Amendment.
The First Amendment deals with the freedom of expression while this Article limits that freedom in terms of not allowing certain cases from being made public (Standler, 2003). However, despite this constant conflict, it is an established fact that the right to fair trial is a necessity today. The case of Shepherd v. Florida, 341 U. S. 50 (1951), brings forth this problem faced by the American Courts where the press on the basis of the First Amendment creates biases and notions in the minds of the jury members during the trial that hampers their judgment.
In this case the accused was convicted for rape and this conviction was based on confession supposedly obtained from the accused. However, neither the defense nor the prosecution brought this fact out in Court. Instead the news regarding this confession was published in the newspapers and the jury members read about it and were influenced by it. Giving due importance to the confession, the jury members convicted the accused without considering other aspects of the case. The Judge also with a view to complete a controversial case did not stress on the need for the jury to maintain complete fairness in judgment.
The Supreme Court of Florida stating the principles laid down by the Court in Cassell v. Texas stated that there has been an infringement of the right to fair trial. In the European Convention, however, there is an explicit clause which states that if publicity will affect the due process of justice then the trial must be held in-camera and no members of the press or any outsider be allowed to view it. With regard to Clause 2 of the American Convention on Human Rights, the basic guarantees embodied therein include 1. The right to an interpreter or translator in case of non comprehension of the language of the Court.
This right is provided to the persons before the Court without any charge, absolutely free of cost. 2. Correct and exact details regarding the charges leveled against the individual should be made known to the individual and also the person should be given adequate time and facility to prepare for his/ her defense. Knowledge regarding the charges being leveled is very important and plays an important role in determining the course of action that will be taken by the person in his defense. This reflects the future course of the trial. 3.
Accused persons have the right to defend themselves either through legal counsel or personally and in case of inability to engage a legal counsel, they have the right to be provided with legal assistance by the State. The State will provide legal assistance only in cases where the accused is unable to provide one for himself and this legal counsel shall be provided within the reasonable time established by law. 4. Sub clause (f) and (g) of Clause 2 of Article 8 states that all persons have the right to examine witnesses and also the right not to be forced to be a witness against oneself.
The Convention also provides for protection against any compulsion exerted by the State to become a witness against oneself or to plead guilty of the offense being tried. 5. The Article also states that any confession so made by the accused shall be considered only if it is made without any force or coercion and also provides for appeal. 6. It also provides for double jeopardy stating that no person can be tried for the same offense twice if he/she is acquitted by a non-appealable judgment .
Provisions in the European Convention also find root in the International Covenant and hence are quite similar to the American Convention. Article 6 of the European Convention on Human Rights deals with the Right to a Fair Trial. This Article very clearly states that when there is a question of determining a person’s civil rights or obligations or any criminal charge then the same should be determined through a fair and public hearing conducted by an independent and impartial Court or Tribunal established by law.
It goes on to specify that the time taken for the trial should be reasonable and also the judgment pronounced must be made public unless the case falls under the exceptions provided. These exceptions include cases where the question is one of morals or national security and public order or where the person accused or the victim is a juvenile or where such publicity would adversely affect the process of justice. Reasonableness and impartiality again form the basis of this provision in the European Convention.