What constitutes a fair trial?
The right to a fair trial has been defined in numerous regional and international human rights instruments. It is one of the most extensive human rights and all international human rights instruments enshrine it in more than one article.[12] The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right.[13] Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms.[14] The aim of the right is to ensure the proper administration of justice. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings:[15]
- the right to be heard by a competent, independent and impartial tribunal
- the right to a public hearing
- the right to be heard within a reasonable time
- the right to counsel
- the right to interpretation[16]
States may limit the right to a fair trial or derogate from the fair trial rights only under circumstances specified in the human rights instruments.[17]
The right to a fair trial in criminal proceedings
Historically the right to a fair trial was regarded as more important in criminal proceedings, because the consequences for the individual are more severe in criminal proceedings compared to civil proceedings. In criminal proceedings the right to a fair trial include the following fair trial rights:[18]
- the right to be notified of charges in a timely manner
- the right to adequate time and means for the preparation of a defense
- the right of the accused to defend him or herself, or the right to a counsel chosen by the accused and the right to communicate privately with the counsel
- the right not to incriminate oneself
- the right to appeal at first instance to a higher court
- the prohibition on double jeopardy.[19]
The right to a fair trial in civil proceedings
The European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies to all types of judicial proceedings, whether civil and criminal. According to the European Court of Human Rights Article 6 of the European Convention on Human Rights and the fair trial rights apply to all civil rights and obligations created under domestic law and therefore to all civil proceedings (see ApehThe right to a fair trial in administrative proceedings
Both the European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies not only to judicial proceedings, but also administrative proceedings. If a individual’s right under the law is at stake, the dispute must be determined through a fair process.[21]
The right to a fair trial in special proceedings
In Europe special proceeding may also be subject to Article 6 of the European Convention on Human Rights. In Mills v. the United Kingdom 2001 the European Court of Human Rights held that a court-martial was subject to Article 6 because of the defendants had been accused of what the court considered to be serious crime, assault with a weapon and wounding.
The African Commission on Human and Peoples’ Rights (ACHPR) frequently deals with instances where civilians are tried by military tribunals for serious crimes. The ACHPR has held that on the face of it military courts to do not satisfy civilians’ right to a fair trial (see Constitutional Rights Project v. Nigeria). In this respect the ACHPR has reaffirmed the right to counsel as essential in guaranteeing a fair trial. The ACHPR held that individuals have the right to choose their own counsel and that giving the military tribunal the right to veto a counsel violates the right to a fair trial.[22]
