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AMNESTY INTERNATIONAL

FAIR TRIALS MANUAL

Amnesty International Publications

1 Easton Street

London WC1X 8DJ

United Kingdom

http://www.amnesty.org

© Amnesty International Publications 1998

Amnesty Internationalis a worldwide voluntary activist movement working towards the observance of all human rights as enshrined in the Universal Declaration of Human Rights and other international standards.

Amnesty International promotes respect for human rights, which it considers interdependent and indivisible, through campaigning and public awareness activities, as well as through human rights education and pushing for ratification and implementation of human rights treaties.

Amnesty International takes action against some of the gravest violations by governments of people's civil and political rights. The focus of its campaigning against human rights violations is to:

- free all prisoners of conscience. These are people detained for their political, religious or other conscientiously held beliefs or because of their ethnic origin, sex, colour, language, national or social origin, economic status, birth or other status – who have not used or advocated violence;

- ensure fair and prompt trials for all political prisoners;

- abolish the death penalty, torture and other ill-treatment

of prisoners;

- end political killings and "disappearances";

Amnesty International seeks to support the protection of human rights by other activities, including its work with the United Nations and regional intergovernmental organizations, for refugees, on international military, security and police relations, and on economic and cultural relations.

Amnesty International also calls on armed political groups to respect human rights and to halt abuses such as the detention of prisoners of conscience, hostage-taking, torture and unlawful killings.

Amnesty International is independent of any government, political persuasion or religious creed. It does not support or oppose any government or political system, nor does it support or oppose the views of the victims whose rights it seeks to protect. It is concerned solely with the impartial protection of human rights.

Amnesty International seeks to disclose the reality about human rights violations anywhere in the world and to respond quickly and persistently. The organization systematically and impartially uncovers the facts about individual cases and patterns of human rights abuses. The findings are publicized and members, supporters and staff around the world mobilize public pressure on governments and others with influence to stop the abuses. Activities range from public demonstrations to letter-writing, from human rights education to fundraising concerts, from targeted appeals on a single individual to global campaigns on a specific issue, from approaches to local authorities to presentations at intergovernmental organizations.

Amnesty International is an international movement with around one million members and supporters in more than 150 countries spread over all regions of the world. To ensure the organization's impartiality and objectivity, Amnesty International members work on specific cases of human rights violations in countries other than their own.

Amnesty International is a democratic, self-governing movement. It is funded largely by its worldwide membership and by donations from the public. No funds are sought or accepted from governments for Amnesty International's work in documenting and campaigning against human rights violations.Amnesty International Fair Trials Manual

First published December 1998

AI Index: POL 30/02/98

CONTENTS

Preface

Introduction

International human rights standards and bodies

Standards and bodies cited in this manual

Use of terms

Abbreviations

A. PRE-TRIAL RIGHTS

Chapter 1 The right to liberty

1.1 The right to liberty

1.2 When is an arrest or detention lawful?

1.2.1 European Convention

1.3 When is an arrest or detention arbitrary?

1.4 Who can lawfully deprive a person of their liberty?

1.5 The presumption of release pending trial

Chapter 2 The rights of people in custody to information

2.1 Right to be informed immediately of the reasons for arrest or detention

2.2 Right to notification of rights

2.2.1 Notification of the right to legal counsel

2.3 Right to be informed promptly of any charges

2.4 Notification in a language the person understands

2.5 Foreign nationals

Chapter 3 The right to legal counsel before trial

3.1 Right to the assistance of a lawyer

3.1.1 The right to a lawyer in pre-trial stages

3.2 Right to choose a lawyer

3.3 Right to have a lawyer assigned free of charge

3.3.1 Right to competent and effective counsel

3.4 Right of detainees to have access to counsel

3.4.1 When does a detainee have the right of access to counsel?

3.5 Right to time and facilities to communicate with counsel

3.6 Right to confidential communication with counsel

Chapter 4 The right of detainees to have access to the outside world

4.1 Right to communicate and receive visits

4.1.1 Incommunicado detention

4.2 Right to inform family of arrest or detention and place of confinement

4.3 Right of access to family

4.4 Rights of access of foreign nationals

4.5 Right of access to doctors

4.5.1 When should access to doctors start?

Chapter 5 The right to be brought promptly before a judge or other judicial officer

5.1 The right to be brought promptly before a judge or other judicial officer

5.1.1 Officers authorized to exercise judicial power

5.2 What does 'prompt' mean?

Chapter 6 The right to challenge the lawfulness of detention

6.1 Right to challenge the lawfulness of detention

6.2 Procedures allowing challenges to lawfulness of detention

6.3 Continuing review

6.4 This right should always apply

6.5 Right to reparation for unlawful arrest or detention

Chapter 7 The right to trial within a reasonable time or to release from detention

7.1 Right to trial within a reasonable time or release pending trial

7.2 What is a reasonable time?

7.2.1 Risk of flight

7.2.2 Are the authorities acting with the necessary diligence?

Chapter 8 The right to adequate time and facilities to prepare a defence

8.1 Adequate time and facilities to prepare a defence

8.2 What is adequate time?

8.3 Access to information

8.4 Right to information about charges

8.4.1 When must information about charges be given?

8.4.2 Language

8.5 Access to experts

Chapter 9 Rights during interrogation

9.1 Safeguards for people undergoing interrogation

9.2 Prohibition against coerced confessions

9.3 The right to silence

9.4 Right to an interpreter

9.5 Records of interrogation

9.6 Review of interrogation rules and practices

Chapter 10 The right to humane conditions of detention and freedom from torture

10.1 The right to humane conditions of detention

10.1.1 The right to be held in a recognized place of detention

10.1.2 Records of detention

10.1.3 The right to adequate medical care

10.2 Additional safeguards for people in pre-trial custody

10.3 Women in custody

10.4 Freedom from torture and ill-treatment

10.4.1 Prolonged solitary confinement

10.4.2 Use of force

10.4.3 Physical pressure during interrogation

10.4.4 Use of restraints

10.4.5 Body searches

10.4.6 Medical or scientific experimentation

10.4.7 Disciplinary offences

10.4.8 Right to reparation for torture or ill-treatment

B. RIGHTS AT TRIAL

Chapter 11 The right to equality before the law and courts

11.1 The right to equality before the law

11.2 The right to equality before the courts

11.2.1 The right to equal access to the courts

11.2.2 The right to equal treatment by the courts

Chapter 12 The right to trial by a competent, independent and impartial tribunal established by law

12.1 The right to trial by a competent, independent and impartial tribunal

12.2 The right to be heard by a tribunal established by law

12.3 The right to be heard by a competent tribunal 12.4 The right to be heard by an independent tribunal

12.4.1 Separation of powers

12.4.2 Appointment and conditions of employment of judges

12.4.3 Assignment of cases

12.5 The right to be heard by an impartial tribunal

12.5.1 Challenges to the impartiality of a tribunal

Chapter 13 The right to a fair hearing

13.1 The right to a fair hearing

13.2 'Equality of arms'

Chapter 14 The right to a public hearing

14.1 The right to a public hearing

14.2 Requirements of a public hearing

14.3 Permissible exceptions to a public hearing

14.4 Violations of the right to a public hearing

Chapter 15 The presumption of innocence

15.1 The presumption of innocence

15.2 The burden of proof

15.3 Procedures impinging on the presumption of innocence

15.4 After acquittal

Chapter 16 The right not to be compelled to testify or confess guilt

16.1 The right not to be compelled to testify against oneself or confess guilt

16.2 The right to silence

16.3 Allegations of coercion

240

Chapter 17 Exclusion of evidence elicited as a result of torture or other compulsion

17.1 Exclusion of evidence elicited by torture or ill-treatment

17.2 Exclusion of evidence elicited under duress

17.2.1 Article 8(3) of the American Convention

Chapter 18 The prohibition of retroactive application of criminal laws and of double jeopardy

18.1 The prohibition of prosecution for offences which were not crimes when committed

18.2 The prohibition of double jeopardy

18.2.1 The prohibition of double jeopardy under the American Convention

18.3 International tribunals

Chapter 19 The right to be tried without undue delay

19. 1 The right to trial without undue delay

19.2 What is a reasonable time?

19.2.1 Complexity of the case

19.2.2 Conduct of the accused

19.2.3 Conduct of the authorities

Chapter 20 The right to defend oneself in person or through counsel

20.1 The right to defend oneself

20.2 The right to defend oneself in person

20.3 The right to be defended by counsel

20.3.1 Notice of the right to counsel

20.3.2 Right to choose defence counsel

20.3.3 Right to have defence counsel assigned; right to free legal assistance

20.4 Right to confidential communications with counsel

20.5 Right to experienced, competent and effective defence counsel

20.6 The prohibition of harassment and intimidation of counsel

Chapter 21 The right to be present at trial and appeal

21.1 The right to be present at trial

21.2 Trials in absentia

21.3 The right to be present at appeals

Chapter 22 The right to call and examine witnesses

22.1 Witnesses

22.2 The right of the defence to question witnesses against the accused

22.2.1 Anonymous witnesses

22.2.2 Limitations on the examination of prosecution witnesses

22.3 The right to call and examine defence witnesses

22.4 The rights of victims and witnesses

Chapter 23 The right to an interpreter and to translation

23.1 Interpretation and translation

23.2 The right to a competent interpreter

23.3 The right to have documents translated

Chapter 24 Judgments

24.1 The right to a public judgment

24.2 The right to know the reasons for the judgment

24.3 Judgment within a reasonable time

Chapter 25 Punishments

25.1 When can punishments be imposed?

25.2 What penalties can be imposed?

25.3 Punishments must not violate international standards

25.4 Corporal punishment

25.5 Conditions of imprisonment

25.6 Prohibition of collective punishments

Chapter 26 The right to appeal

26.1 The right to appeal

26.2 Review by a higher tribunal

26.3 Genuine review

26.4 Fair trial guarantees during appeals

C. SPECIAL CASES

Chapter 27 Children

27.1 Children's rights to a fair trial

27.2 Definition of a child

27.3 Guiding principles for the treatment of children in conflict with the law

27.3.1 Separate systems for juvenile justice

27.3.2 Procedures short of trial

27.3.3 Cases involving children must be dealt with speedily

27.3.4 Privacy

27.4 Arrest and pre-trial detention

27.5 Trial

27.6 Judgments

27.7 Punishments

27.7.1 Prohibited punishments

27.8 Imprisoned children

Chapter 28 Death penalty cases

28.1 Abolition of the death penalty

28.2 No retroactive application, but the benefits of reform

28.3 Scope of crimes punishable by death

28.4 People who may not be executed

28. 4. 1 Juveniles

28.4.2 The elderly

28.4.3 The mentally disabled

28.4.4 Pregnant women and new mothers

28.5 Strict compliance with all fair trial rights

28.5.1 Right to effective counsel

28.5.2 Right to adequate time and facilities to prepare a defence

28.5.3 Right to completion of proceedings without undue delay

28.5.4 Right to appeal

28.6 Right to seek pardon and commutation

28.7 No executions while appeals or clemency petitions are pending

28.8 Adequate time between sentence and execution

28.9 Conditions of imprisonment for prisoners under sentence of death

Chapter 29 Special courts and military courts

29.1 Special or extraordinary courts or tribunals

29.2 Specialized courts

29.3 Right to fair trial in all courts

29.4 Jurisdiction established by law

29.5 Independence and impartiality

29.6 Military courts

29.6.1 Competence, independence and impartiality

29.6.2 Trials of military personnel in military courts

29.6.3 Trials of civilians by military courts

Chapter 30 The right to compensation for miscarriages of justice

30.1 The right to compensation for miscarriages of justice

30.2 Miscarriages of justice

Chapter 31 Fair trial rights during states of emergency

31.1 Derogation

31.2 Necessity and proportionality

31.2.1 Is there a state of emergency?

31.3 Rights that may never be restricted

31.3.1 Judicial guarantees under the Inter-American system

31.4 Standards that do not allow suspension of fair trial rights

31.4.1 Human rights treaties

31.4.2 Non-treaty standards

31.4.2 Humanitarian law

31.6 Compliance with international obligations

Chapter 32 Fair trial rights in armed conflict

32.1 International humanitarian law

32.1.1 International armed conflict

32.1.2 Non-international armed conflict

32.1.3 Non-discrimination

32.1.4 Duration of protection

32.1.5 Fair trial rights

32.2 Before the trial hearing

32.2.1 Notification

32.2.2 Presumption of innocence

32.2.3 Right to be free from compulsion to confess

32.3 Rights in pre-trial detention

32.3.1 Women in detention

32.3.2 Children in detention

32.4 Rights at trial

32.4.1 Competent, independent and impartial tribunal

32.4.2 Trial within a reasonable time

32.4.3 Defence rights

32.4.4 Protection against double jeopardy

32.4.5 Protection against retrospective prosecutions or punishments

32.5 Sentencing in non-death penalty cases

32.5.1 Prohibition of collective punishments

32.6 Death penalty cases

Appendix I General Comments adopted by the Human Rights Committee

Appendix II Resolution on the Right to Recourse Procedure and Fair Trial of the African Commission on Human and Peoples' Rights

Preface

by David Weissbrodt

Fredrikson & Byron Professor of Law, University of Minnesota Law School

When a government charges a person with having committed or having been implicated in a criminal offence, the individual is placed at risk of deprivation of liberty or other sanction. The right to a fair trial is a fundamental safeguard to assure that individuals are not unjustly punished. It is indispensable for the protection of other human rights of particular concern to Amnesty International, such as the right to freedom from torture and the right to life, and, especially in political cases, the right to freedom of expression.

The monitoring of trials is therefore an important part of the international effort to protect human rights. The right to observe a trial follows on from the right to a fair and public trial. The right to a public trial is an established principle, enshrined in numerous international and regional human rights instruments. The Universal Declaration of Human Rights provides that ''[e]veryone is entitled in full equality to a fair and public hearing... of any criminal charge'' and ''[e]veryone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial.''

The right to a public trial is primarily intended to help ensure a fair trial and protect the accused from abuse of criminal process. A public trial also helps ensure the integrity of the judicial process. Public monitoring influences both judge and prosecutor to carry out their duties with impartiality and professionalism. A public trial may facilitate accurate fact-finding -- encouraging witnesses to tell the truth. In addition, there is a public interest in an open trial beyond the rights of the accused. The public has a right to know how justice is administered, and what decisions are reached by the judicial system.

Amnesty International and other human rights organizations have for many years sent observers to significant political trials. The acceptance of international trial observers (whether sent by foreign governments or by non-governmental organizations) has arguably become an international legal norm. The practice is well established and accepted within the international community.

Whether assessing a trial after direct observation of the proceedings, or on the basis of written transcripts or other reports, the standards of fairness by which the trial may be judged are numerous. The assessment seeks to establish whether the practice in the particular case is consistent with the laws of the country where the trial is held, and whether those laws and the practice in the case conform to international standards, enshrined in treaties to which the state is a party and other non-treaty standards.

This Fair Trials Manual provides a guide to international and regional standards for fair trial which are incorporated in human rights treaties and non-treaty standards. It will assist Amnesty International's staff and other human rights defenders around the world seeking to protect the right to a fair trial. It will also help lawyers, judges, and others to understand international standards for the protection of the right to a fair trial.

Introduction

''Injustice anywhere is a threat to justice everywhere.''

Martin Luther King

Justice is based on respect for the rights of every individual. As the Universal Declaration of Human Rights puts it, ''recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world''.

When an individual stands trial on criminal charges, he or she is confronted by the whole machinery of the state. How the person is treated when accused of a crime provides a concrete demonstration of how far that state respects individual human rights. Every criminal trial tests the state's commitment to respect for human rights; the test is even more severe when the accused is a political prisoner – when the authorities suspect the person of being a threat to those in power.

Every government has the duty to bring to justice those responsible for crimes. However, when people are subjected to unfair trials, justice cannot be served. When people are tortured or ill-treated by law enforcement officials, when innocent individuals are convicted, or when trials are manifestly unfair or are perceived to be unfair, the justice system itself loses credibility. Unless human rights are upheld in the police station, the interrogation room, the detention centre, the court and the prison cell, the government has failed in its duties and betrayed its responsibilities.

The risk of human rights abuse starts at the first moment that officials raise suspicions against a person, through the moment of arrest, in pre-trial detention, during the trial, during all appeals, right through to the imposition of any punishment. The international community has developed fair trial standards which are designed to define and protect people's rights through all these stages.

The right to a fair trial is a basic human right. It is one of the universally applicable principles recognized in the Universal Declaration of Human Rights, adopted 50 years ago by the world's governments and still the cornerstone of the international human rights system. In the years since 1948, the right to fair trial recognized in the Universal Declaration of Human Rights has become legally binding on all states as part of customary international law.

The right to fair trial has been reaffirmed and elaborated since 1948 in legally binding treaties such as the International Covenant on Civil and Political Rights, adopted by the United Nations (UN) General Assembly in 1966. It has been recognized and specified in numerous other international and regional treaties and non-treaty standards, adopted by the UN and by regional intergovernmental bodies. These human rights standards were drafted to apply to all legal systems in the world and take into account the rich diversity of legal procedures -- they set out the minimum guarantees that all systems should provide.

These international human rights standards on fair trial constitute a collective agreement by the community of nations on the criteria for assessing how governments treat people accused of crimes. This manual is a guide to these standards.

Amnesty International's work for fair trials

Amnesty International is a worldwide voluntary movement that works to promote all the human rights enshrined in the Universal Declaration of Human Rights and other international standards, including the right to a fair trial. It intervenes in trials of political prisoners or where a death penalty may be imposed.

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Article 1(b) of the Statute of Amnesty International calls upon the organization to work for prompt and fair trials for political prisoners under ''internationally recognized norms''. Amnesty International has pursued this goal by sending trial observers to many countries in every region of the world, preparing reports on fair trial problems in particular countries, and mobilizing its membership to seek prompt and fair trials for political prisoners. Amnesty International has also raised particular concerns about unfair trials for prisoners of conscience and people facing charges punishable by the death penalty. It has submitted cases in which it has had fair trial concerns to the UN Working Group on Arbitrary Detention and to the UN Special Rapporteur on extrajudicial, summary and arbitrary executions. The organization has also campaigned for the highest possible fair trial standards for the International Criminal Tribunals for the former Yugoslavia and Rwanda as well as for the International Criminal Court.

In the course of its work, Amnesty International has developed a 12-point Program for the Prevention of Torture, a 14-point Program for the Prevention of ''Disappearances'' and a 14-point Program for the Prevention of Extrajudicial Executions. These programs are based on Amnesty International's many years of practical experience in countries around the world. They summarize many of the rights relevant to the protection of the individual during the criminal justice process and represent Amnesty Inter-national's view on the standards that should be adopted by all governments.

The purpose of this manual

This manual seeks to provide a guide to the relevant human rights standards for anyone involved in examining how far a criminal trial or a justice system meets international standards of fairness. It is intended for the use of trial observers and others assessing the fairness of an individual case, and for anyone seeking to evaluate whether a country's criminal justice system guarantees respect for international standards of fair trial.

Assessing the fairness of a criminal trial is complex and multi-faceted. Each and every case is different, and must be examined on its merits and as a whole. The assessment normally focuses on whether the conduct of the proceedings complies with national laws, whether those national laws are consistent with international guarantees of fairness, and whether the manner in which those laws are implemented are consistent with international standards. Sometimes a trial is flawed in one aspect alone, but often trials fail to meet international standards in several ways.

The international standards against which the fairness of a trial is judged are numerous, are found in many different instruments and are constantly evolving. This manual sets out the international and regional human rights standards for the various stages of the criminal trial process. While some standards apply to all forms of detention (including administrative detention) and trials of any nature, including non-criminal (civil) cases, this manual focuses on standards applicable to criminal proceedings. In order to assist in clarifying what the standards require in practice, the manual includes interpretations of particular standards by authoritative UN and regional bodies. (See International human rights standards and bodies).

This is Amnesty International's first handbook on fair trials, and we would welcome any suggestions or comments on its content. Please send any such comments to the Legal and International Organizations Program, Amnesty International, International Secretariat, 1 Easton Street, London WC1X 8DJ, United Kingdom.

How this manual is organized

The manual is divided into three parts: introductions, main text and appendices.

The introductory section includes a detailed table of contents; a brief explanation of relevant international and regional human rights standards and bodies; a list of the standards and bodies cited in the manual; a note on the use of terms; and a list of abbreviations used in citing standards, bodies, and cases.

The main text of the manual is arranged in three sections. Section A covers pre-trial rights, including the rights of detainees. Section B covers rights at trial, including judgment, appeal, sentencing and punishment. Section C deals with fair trial issues in death penalty cases, in proceedings involving juveniles, and during states of emergency and armed conflict.

There are two appendices. One contains selected excerpts from the General Comments adopted by the Human Rights Committee, which provide authoritative guidance on interpreting the ICCPR.The second contains the African Commission Resolution on the Right to Recourse Procedure and Fair Trial. These two documents have been reproduced because they may not be as readily accessible as other standards.

The manual has been constrained by the limited space available: cross-references have been used rather than repeating sections, and selected articles from standards have been reproduced, rather than the full texts.

How to obtain copies of the standards

You can obtain copies of UN treaty and non-treaty standards from:

bookshops, the UN Information Office in your country, or by writing to:

Office of the UN High Commissioner for Human Rights, United Nations,

New York, NY 10017, USA;

or

Office of the UN High Commissioner for Human Rights, United Nations Office at Geneva, 8-14 avenue de la Paix, 1211 Geneva 10, Switzerland;

http://www.unhchr.ch

There is a guide to finding human rights information on the Internet and elsewhere at http://www.derechos.org/human-rights/manual.htm

or by e-mail: the autoresponder at manual@desaparecidos.org

You can obtain copies of regional standards from:

Organization of African Unity, POB 3243, Addis Ababa, Ethiopia

Organization of American States, Instituto Interamericano de Derechos Humanos, Apartado Postal 10081- 1000, San José, Costa Rica; http://www.oas.org

Council of Europe, F-67075, Strasbourg cedex, France; http://stars.coe.fr

Further information

The following texts may be of particular assistance to those seeking additional information on fair trial guarantees enshrined in international standards:

A study on the right to a fair trial for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, prepared by Stanislav Chernichenko, William Treat and David Weissbrodt. (UN Doc. E/CN.4/Sub.2/1990/34, 1990; E/CN.4/Sub.2/1991/29, 1991; E/CN.4/Sub.2/1992/24 & Add.1-3, 1992; E/CN.4/Sub.2/1993/24 & Add.2, 1993; E/CN.4/Sub.2/1994/24, 1994)

UN Centre for Human Rights, Crime Prevention and Criminal Justice Branch, Human Rights and Pre-Trial Detention, 1994. (UN Sales No. E.94.XIV.6)

Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, NP Engel, 1993.

D.J. Harris, M. O'Boyle, C. Warbrick, Law of the European Convention on Human Rights, Butterworths, 1995.

Nigel S. Rodley, The Treatment of Prisoners Under International Law, Clarendon Press, Oxford, 1987, (new edition forthcoming).

David Weissbrodt, ''International Trial Observers'', Stanford Journal of International Law, Volume 18, Issue 1, Spring 1982.

David Weissbrodt and Rüdiger Wolfrum (eds), The Right to a Fair Trial, Beiträge zum Ausländischen Recht öffentichen und Völkerrecht, Vol. 129, Springer, Berlin 1998.

Lawyers Committee for Human Rights, What is a Fair Trial? A Basic Guide to Legal Standards and Practice, 1995.

Norwegian Institute of Human Rights, Manual for Trial Observation, March 1996.

William A. Schabas, The Abolition of the Death Penalty in International Law, second edition, Cambridge, UK, Cambridge University Press, 1997.

Amnesty International, International standards on the death penalty, AI Index: ACT 50/06/97, 1997.

Daniel O'Donnell, Protectión internacional de los derechos humanos, Comisión Andina de Juristas, Lima 1988.

Comision Interamericana de Derechos Humanos - Diez años de actividad 1971 - 1981, Secretaría General de la Organización ede los Estados Americanos, Washington D.C., 1982.

Thomas Buergenthal, Dinah Shelton,Protecting Human Rights in the Americas, Cases and Materials, N.P. Engel, Publisher, Kehl, Strasbourg, Arlington, 1995.

Alto Comisionado para los Derechos Humanos, Centro de Derechos Humanos,Derechos Humanos y aplicación de la ley, Serie de capacitación profesional No. 5, Naciones Unidas, Ginebra, 1997.

Alto Comisionado para los Derechos Humanos, Centro de Derechos Humanos,Derechos Humanos y la detención provisional, Serie de capacitación profesional No. 3, Naciones Unidas, Ginebra, 1994.

Comité de Derechos Humanos,Selección de decisiones adoptadas con arreglo al Protocolo Facultativo,Naciones Unidas, Volumen 1, CCPR/C/OP/1, Nueva York, 1988.

Comité de Derechos Humanos,Selección de decisiones adoptadas con arreglo al Protocolo Facultativo, Naciones Unidas, Volumen 2, CCPR/C/OP/2, Nueva York, 1992.

Centro para la Independencia de Jueces y Abogados, CIJA, La independencia de Jueces y Abogados: una compilación de normas ionternacionales, Boletín del CIJA, Numero 25-26, Ginebra 1990.

Acknowledgements

This manual could not have been produced without the support of many people who gave freely of their time and expertise to help Amnesty International in its preparation. Jill Heine, a staff member at the International Secretariat of Amnesty International, prepared, organized and drafted the manual. Many other members of staff (including Christopher Hall, who wrote the chapter on fair trial rights in armed conflict) provided guidance, expert comment and assisted in its production. Special thanks are due to the staff of the Legal and International Organizations Program, the Publications Program, Mervat Rishmawi and Josef Szwarc. Among the non-staff members who participated in this project, Amnesty International would especially like to thank Miyako Abiko, Jelena Pejic, Lina Philipson and David Weissbrodt for their invaluable assistance.

International human rights standards and bodies

This section explains the various types of international human rights standards relevant to fair trials, and some of the bodies that give authoritative guidance on how to interpret the standards.

1. Human rights standards

1.1 Treaties

1.2 Non-treaty standards

2. International treaty standards

2.1 The International Covenant on Civil and Political Rights

2.2 Other UN human rights treaties

2.3 The laws of armed conflict

3. International non-treaty standards

4. Regional standards

4.1 Africa

4.2 Americas

4.3 Europe

5. UN thematic mechanisms

6. International criminal tribunals

1. Human rights standards

The standards cited in this manual have differing legal status. Some are treaties which are legally binding on those states which have agreed to be bound by them. Others (non-treaty standards) represent the consensus of the international community on standards to which states should aspire. Together they constitute an international framework of fundamental safeguards against unfair trials. They have been developed over the second half of the twentieth century as a common standard of achievement for all peoples and all nations.

Amnesty International, as a human rights organization, cites the most protective standards that apply to a state. Generally, it will cite the relevant part of a treaty which sets out a right which the state is obliged to guarantee. However, sometimes a treaty is not applicable because the state has not agreed to be bound by it, and sometimes the issue of concern is covered in more detail in non-treaty standards. In all cases, Amnesty International promotes adherence to internationally recognized and agreed norms.

1.1 Treaties

The standards called Covenants, Conventions, Charters and Protocols are reaties which are legally binding on the states that have agreed to be bound by them. Some treaties, such as the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are open to ratification by countries all over the world. Other treaties are open only to states that belong to a particular regional organization.1

Footnotes

1. These include the African Charter on Human and Peoples' Rights, the American Convention on Human Rights and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms

States can agree to be bound by these treaties in one of two ways. They can use the two-step process of signature and ratification, or they can take the single step of accession. When a state signs a treaty, it formally declares its intention to ratify that treaty in the future. Once it has signed, the state may not engage in acts inconsistent with the object and purpose of the treaty. When it ratifies or accedes to the treaty, the state becomes a party to that treaty. A state party to a treaty promises to abide by all the provisions contained in the treaty and to fulfil its obligations under the treaty.

A protocol is a treaty attached to another treaty as an addendum. It generally adds extra provisions to the original treaty, extends its scope of application or establishes a complaints mechanism. A protocol becomes legally binding on a state when it has ratified or acceded to it.

Guidance to interpreting the provisions contained in international treaties is provided by the comments, decisions and findings of treaty monitoring bodies and human rights courts. These are bodies established by the treaties or by the UN or regional bodies to monitor implementation of the treaty and to investigate complaints that the provisions of the treaty have been violated. Interpretations by other intergovernmental bodies such as the UN Working Group on Arbitrary Detention, and special rapporteurs of the UN Commission on Human Rights (see UN thematic mechanisms, below), also provide authoritative guidance.2

Footnotes

2. Also relevant are decisions of national courts, commentaries by legal scholars and non-governmental organizations such as the International Committee of the Red Cross.

1.2 Non-treaty standards

There are many human rights standards relevant to fair trials which are contained in non-treaty standards. Non-treaty standards are usually called Declarations, Principles, Rules and so on. The Universal Declaration of Human Rights, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Standard Minimum Rules for the Treatment of Prisoners are examples of non-treaty standards which set out important fair trial guarantees. Although they do not technically have the legal power of treaties, they have the persuasive force of having been negotiated by governments over many years, and of having been adopted by political bodies such as the UN General Assembly, usually by consensus. Because of this political force they are often considered to be as binding on states as treaties. Non-treaty standards sometimes reaffirm principles that are already considered to be legally binding on all states under customary international law.

2. International treaty standards

The following international treaties, which are legally binding on states parties, contain fair trial guarantees and are cited in this manual.

2.1 The International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1966 by the UN General Assembly and entered into force in 1976. There were 140 states parties as of October 1998. The ICCPR codifies civil and political rights in a treaty which is binding on states which ratify or accede to it, expanding upon the civil and political rights recognized in the Universal Declaration of Human Rights. The ICCPR protects fundamental rights including those precepts at the core of Amnesty International's work: the right to life; the right to freedom of expression, of conscience, and of assembly and association; the right to be free from arbitrary arrest or detention; the right to freedom from torture and ill-treatment; and the right to a fair trial.

The ICCPR establishes a monitoring body of 18 experts -- the Human Rights Committee. The General Comments of the Human Rights Committee provide authoritative guidance on interpretation of the ICCPR. Some are cited in this manual and reproduced in Appendix I. The Human Rights Committee monitors the implementation of the ICCPR and its two optional protocols (see below). States parties are required under Article 40 of the ICCPR to submit periodic reports to the Human Rights Committee on their implementation of the ICCPR, as well as special reports on request.

The Human Rights Committee may review complaints made by one state party against another, provided that the state parties concerned have officially recognized the competence of the Committee to do so, by making a declaration under Article 41 of the ICCPR. (States have very rarely used such a procedure to complain about other states, found in many UN and regional human rights treaties.)

The (first) Optional Protocol to the International Covenant on Civil and Political Rights, which came into force in 1976, gives the Human Rights Committee the competence to consider complaints submitted by or on behalf of an individual claiming that a state party to the Protocol has violated rights guaranteed by the ICCPR. There were 92 states parties as of October 1998. The views of the Human Rights Committee on some individual cases submitted pursuant to the Optional Protocol are cited in this manual.

The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Second Optional Protocol to the ICCPR) was adopted by the UN General Assembly in 1989 and entered into force in 1991. States parties to this protocol agree to make sure that nobody is executed within their jurisdiction in peacetime and that they will take all necessary measures to abolish the death penalty. There were 33 states parties as of October 1998.

2.2 Other UN human rights treaties

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) was adopted by consensus by the UN General Assembly in 1984 and entered into force in 1987. As of October 1998, there were 109 states parties. States parties to the Convention are obliged to stop and prevent torture in their jurisdictions, to make it a criminal offence, to investigate all allegations of torture and bring to justice suspected torturers while ensuring that anyone suspected of torture receives fair treatment throughout proceedings, to exclude evidence obtained through torture as evidence in trials and to ensure redress for victims. The Committee against Torture monitors the implementation of the Convention, by, among other things, considering periodic reports by states parties on their implementation of the Convention, by making inquiries and issuing findings, and, when its competence to do so has been recognized, by considering individual cases.

The Convention on the Rights of the Child was adopted by the UN General Assembly in 1989 and entered into force in 1990.3 By October 1998, 191 states – all UN member states except Somalia and the USA – were states parties. The Convention on the Rights of the Child contains fair trial guarantees for children accused of having infringed penal law. The Convention establishes the Committee on the Rights of the Child, which examines the progress of states parties in fulfilling their obligations under the Convention. States are required to submit periodic reports to the Committee.

Footnotes

3 See Amnesty International, The Convention on the Rights of the Child, AI Index: IOR 51/09/94, October 1994, for a discussion of the Convention.

The Convention on the Elimination of All Forms of Discrimination against Women (Women's Convention) was adopted by the UN General Assembly in 1979 and entered into force in 1981. As of October 1998, there were 162 states parties. The Convention aims to provide effective protection for women against acts of discrimination. Articles 2 and 15 provide that women shall have full equality with men before the law. The Committee on the Elimination of Discrimination against Women, established by Article 17, monitors implementation of the Convention, by, among other things, considering periodic reports of states parties.

The International Convention on the Elimination of All Forms of Racial Discrimination (Convention against Racism) was adopted by the UN General Assembly in 1965 and entered into force in 1969. As of October 1998, there were 151 states parties. States parties to this Convention are obliged to condemn racial discrimination and to take all measures to eradicate it, including in the judicial system. The Committee on the Elimination of Racial Discrimination monitors implementation of this treaty.

2.3 Laws of armed conflict

The four Geneva Conventions of 1949, which protect civilian populations and those fighting in hostilities, principally during international armed conflicts but also during internal conflicts such as civil wars, contain provisions to ensure a fair trial. There were 188 states parties as of February 1998. The Conventions have been supplemented by Additional Protocol I (150 states parties) which increases the scope of protection for civilians and others during international armed conflict, and Additional Protocol II (142 states parties) which protects civilians and others during internal armed conflicts.

3. International non-treaty standards

Some international non-treaty standards relevant to fair trials are described below. All the non-treaty standards cited in this manual are included in Standards and bodies cited in this manual.

The Universal Declaration of Human Rights (Universal Declaration), which was adopted by the UN General Assembly in 1948, is a universally recognized set of principles which should regulate the conduct of all states. Several articles, including Articles 10 and 11, spell out rights related to a fair trial. The right to fair trial as recognized in the Universal Declaration has been widely accepted as being part of international customary law or general principles of law found in most states, and therefore legally binding on all states. The principles in the Universal Declaration have inspired numerous treaties and standards at the international and regional level.

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted by consensus by the UN General Assembly in 1988, contains an authoritative set of internationally recognized standards, applicable to all states, on how detainees and prisoners should be treated. The principles set forth basic legal and humanitarian concepts and serve as a guide for shaping national legislation.

The Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted in 1955 by the First UN Congress on the Prevention of Crime and the Treatment of Offenders and approved by the UN Economic and Social Council, set out what is ''generally accepted as being good principle and practice'' in the treatment of prisoners. In 1971 the UN General Assembly called on member states to implement these rules and to incorporate them in national legislation.

The Basic Principles on the Role of Lawyers were adopted by consensus at the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in 1990 and welcomed by the UN General Assembly. The UN Crime Congress explained that ''the adequate protection of the human rights and fundamental freedoms to which all persons are entitled requires that all persons have effective access to legal services provided by an independent legal profession''.

The Guidelines on the Role of Prosecutors were adopted by consensus at the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in 1990 and welcomed by the UN General Assembly. The Guidelines were adopted in an effort to assist governments in ''securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings''.

The Basic Principles on the Independence of the Judiciary were adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders and endorsed by the UN General Assembly in 1985. The principles, which apply to professional judges and lay judges as appropriate, were formulated to assist governments in securing and promoting the independence of the judiciary. They ''should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general''.

The United Nations Safeguards guaranteeing protection of the rights of those facing the death penalty, adopted by the UN Economic and Social Council and endorsed by the UN General Assembly in 1984, restrict the use of the death penalty in countries which have not yet abolished it. Among other protective measures, they provide that capital punishment may only be carried out after a legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the ICCPR, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.

4. Regional treaty standards

Regional intergovernmental bodies have developed regional declarations and treaties for the protection of human rights. These standards are generally applicable to states that belong to the particular regional organization. The regional bodies cited in this manual are the Organization of African Unity , the Organization of American States and the Council of Europe. There are other regional standards which have a bearing on the right to fair trial which are not addressed in this manual.4

Footnotes

4. For example, the League of Arab States has adopted the Arab Charter of Human Rights (not yet entered into force):The Arab Charter of Human Rights, adopted 15 September 1994, 18 Human Rights Law Journal (1997), p. 151 (English translation). For a commentary on the Arab Charter of Human Rights, see Mona Rishmawi, ''The Arab Charter on Human Rights: A Comment'', 10 Interights Bulletin (1996) p.8; ICJ Review 56, June 1996.

5. See Amnesty International, Amnesty International's observations on possible reform of the African Charter on Human and Peoples' Rights, AI Index: IOR 63/03/93, 1993, for a discussion of the Charter.

4.1 Africa

The African Charter on Human and Peoples' Rights (African Charter) was adopted in 1981 by the Organization of African Unity (OAU) and entered into force in 1986. As of October 1998, all of the 52 member states of the OAU, except Eritrea, were parties to the African Charter. Basic fair trial guarantees are contained in the Charter as part of the right to have one's cause heard.5

The African Commission on Human and Peoples' Rights (African Commission), monitors the implementation of the African Charter. It has 11 members, nominated by states parties and elected by the OAU Assembly of Heads of State and Government to serve in their personal capacities. The African Commission is mandated to promote awareness of human rights within the region and to examine communications from one state party alleging that another state party has breached the provisions of the African Charter. The Commission has the authority to decide to examine communications from parties other than states, including individuals.

The African Commission also has a mandate to ''formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples' rights and fundamental freedoms upon which African Governments may base their legislations'' (Article 45 (1) (b) of the African Charter). In 1992 the Commission passed a Resolution on the Right to Recourse Procedure and Fair Trial (African Commission Resolution) which expands upon and strengthens fair trial guarantees in the African Charter.

At its meeting in February 1998, the OAU Council of Ministers adopted a Protocol to the African Charter creating an African Court on Human and Peoples' Rights (African Court). The mandate of the African Court, once established, will be to complement the protective mandate of the African Commission. It will also be able to give advisory opinions upon the request of states parties to the African Charter, the African Commission and bodies of the OAU. As of October 1998, 30 states had signed the Protocol and one had ratified it. The Court will be established once 15 states have ratified the Protocol.

4.2 Americas

The American Declaration of the Rights and Duties of Man (American Declaration) was adopted in 1948 by the Ninth Inter-American Conference, which also adopted the Charter of the Organization of American States (OAS). It is the cornerstone of the inter-American system for human rights protection and all member states of the OAS are obliged to observe the rights it enshrines. The right to due process of law is set out in Article XXVI of the Declaration.

The American Convention on Human Rights (American Convention), (''Pact of San José, Costa Rica''), was adopted in 1969 and entered into force in July 1978. It is open for ratification or accession by all member states of the OAS and as of July 1998, 25 of the 35 member states were parties to the Convention. Article 8 refers to the right to a fair trial. The Convention provides for the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (see below) to have competence as regards states parties' fulfilment of their obligations under the Convention. The Commission's competence in this regard is automatically accepted by states on ratification of the Convention. States parties must declare under Article 62, however, that they recognize the jurisdiction of the Court. As of July 1998, 17 states parties had accepted the Court's jurisdiction.

The Protocol to the American Convention on Human Rights to Abolish the Death Penalty was adopted by the General Assembly of the OAS in 1990. It prohibits states parties to the Protocol from applying the death penalty in their territories in peacetime. As of July 1998, four states had ratified the Protocol and a further three had signed.

The Inter-American Convention to Prevent and Punish Torture (Inter-American Convention on Torture) was adopted by the General Assembly of the OAS in 1985 and entered into force in February 1987. States parties are obliged to submit periodic reports to the Inter-American Commission on Human Rights on measures they have taken to implement the provisions of this Convention in national legislation. As of July 1998, 13 members states of the OAS were states parties.

The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (''Convention of Belem do Para'') was adopted by the General Assembly in June 1994 and entered into force in March 1995. To date it is the most widely ratified treaty of the inter-American system, with 27 states parties as of July 1998.

The Inter-American Convention on Forced Disappearance of Persons (Inter-American Convention on Disappearance) was adopted by the OAS in 1994 and entered into force in 1996. It is aimed at preventing, punishing and eliminating ''disappearances'' in the region. In contrast to most regional treaties which are open to ratification or accession only to members states of the regional body, this Convention is open for accession by all states. As of July 1998, five states had ratified the Convention and a further eight had signed.

The Inter-American Commission on Human Rights (Inter-American Commission) was created to promote the observance and defence of human rights and to serve as a consultative organ for the OAS member states in these matters. Among other things, the Commission can carry out on-site visits at the request or consent of member states, prepare special studies, make recommendations to governments on the adoption of measures to promote and protect human rights and request governments to report on measures adopted.

The Inter-American Commission also acts on complaints submitted to it by individuals, groups or non-governmental organizations alleging violations of rights enshrined in the American Declaration and, in the case of states parties, the American Convention. In urgent cases, the Commission may request precautionary measures to protect people from harm. In addition, the Commission may ask the Inter-American Court of Human Rights to order provisional measures in serious and urgent cases not yet submitted to it, when this is necessary to prevent irreparable harm.

The Inter-American Court of Human Rights (Inter-American Court) is an international tribunal composed of seven judges, elected by member states of the OAS, and based in San José, Costa Rica. Its purpose is the interpretation and application of the American Convention. The Court may examine cases submitted by states parties or by the Inter-American Commission, provided the state party has recognized the jurisdiction of the court. The judgments of the Court are binding on states. In cases of extreme urgency and to avoid further harm, the Court may order provisional measures to be taken. The Court also has broad consultative role and can be requested to issue advisory opinions on the interpretation of articles of the Convention. The 15 advisory opinions published by the Court as of July 1998 make up an important body of jurisprudence of the inter-American system.

4.3 Europe

The (European) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) entered into force in 1953. Ratification of or accession to the European Convention is a condition of joining the Council of Europe. As of September 1998, all 40 member states of the Council of Europe were states parties. The Convention sets out important fair trial guarantees, including in Articles 3, 5, 6 and 7.

Protocol No.6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty (Protocol 6 to the European Convention) entered into force in 1985. The Protocol prohibits the use of the death penalty in peacetime. As of September 1998, 28 states had ratified this Protocol.

Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol 7 to the European Convention) entered into force in 1988. It contains provisions to protect aliens, as well as the right to have a conviction for a criminal offence reviewed by a higher tribunal. It secures the right not to be tried or punished more than once for the same offence in the same jurisdiction. It sets forth the right to compensation for miscarriages of justice. As of September 1998, 26 states had ratfied this Protocol.

The European Commission of Human Rights (European Commission) monitors the implementation of the European Convention. It considers complaints from one state party alleging a breach of the Convention by another state party if each has ratified the Convention. It may also consider complaints from individuals, groups of individuals or non-governmental organizations, provided that the state party alleged to have breached the Convention has recognized the competence of the Commission to receive such complaints.

The European Court of Human Rights (European Court) has as many judges as there are member states of the Council of Europe, regardless of whether member states have ratified the European Convention. States parties to the European Convention, and the European Commission, are entitled to bring cases before the European Court, which has jurisdiction over cases concerning the application and interpretation of the Convention. The decisions of the European Court are binding on states parties to the European Convention.

These two bodies merged on 1 November 1998 into a single new institution, the European Court of Human Rights, pursuant to Protocol 11. Individuals are able to file complaints directly with the Court. All 40 member states of the Council of Europe are parties to Protocol 11.

The European Prison Rules were adopted by the European Council of Ministers in 1973 and revised in 1987. Although not a legally binding treaty, they serve as guidelines for the treatment of detainees and prisoners. They prohibit torture and ill-treatment and safeguard the principle that different categories of prisoners, such as untried prisoners and convicted prisoners, should be held separately.

The Organization for Security and Cooperation in Europe (OSCE) encompasses all European states, including the central Asian republics, which are not members of the Council of Europe, as well as Canada and the United States of America. At meetings in Copenhagen (1990) and Moscow (1991), the OSCE adopted detailed, politically binding human rights commitments, including fair trial guarantees that largely reiterate UN standards and provisions in the European Convention.

5. UN thematic mechanisms

In addition to the UN treaty monitoring bodies (see above), guidance on the application of human rights standards is provided by experts (working groups and special rapporteurs) appointed by the UN Commission on Human Rights to work on different themes. These are known as UN thematic mechanisms. They are generally mandated to investigate complaints of a particular type of human rights violation in all countries, whether or not the state is bound by international human rights treaties. They can also carry out country visits, if the state concerned agrees. They can make inquiries, including on individual cases, submit reports with findings and recommendations to governments and report annually to the UN Commission on Human Rights. Several UN thematic mechanisms are directly concerned with issues pertinent to fair trials.

The Working Group on Arbitrary Detention was established in 1991. It is mandated to investigate cases of detention imposed arbitrarily or otherwise inconsistent with international standards. It covers both pre-trial detention and post-trial imprisonment.

The Working Group on Enforced or Involuntary Disappearances was established in 1980. It examines matters related to enforced or involuntary disappearances and acts as a channel between the families of ''disappeared'' people and governments, with a view to ensuring that cases are investigated and that the fate and whereabouts of the ''disappeared'' person is clarified. It monitors states' compliance with their obligations deriving from the Declaration on the Protection of All Persons from Enforced Disappearance.

The post of Special Rapporteur on extrajudicial, summary or arbitrary executions was established in 1982. The Special Rapporteur works mainly to counter violations of the right to life, including the imposition of the death penalty after unfair trials. The Special Rapporteur is also mandated to pay particular attention to extrajudicial, summary or arbitrary executions of certain groups such as children, women, national or ethnic, religious and linguistic minorities.

The post of Special Rapporteur on torture was established in 1985. The Special Rapporteur is mandated to examine questions relevant to torture and to promote the full implementation of international and national laws prohibiting the practice of torture.

The post of Special Rapporteur on the independence of judges and lawyers was established in 1994 to report on attacks on the independence of judges and lawyers, and to investigate and make recommendations on measures to protect the independence of the judiciary.

6. International criminal tribunals

The International Criminal Tribunals for the former Yugoslavia and for Rwanda were established by the UN Security Council to bring to justice those responsible for genocide, other crimes against humanity and serious violations of humanitarian law during the conflicts in the former Yugoslavia and Rwanda. The Statutes of these tribunals (Yugoslavia Statute and Rwanda Statute), and the Rules of Evidence and Procedure promulgated by them (Yugoslavia Rules and Rwanda Rules) are important international standards. They represent contemporary fair trial guarantees, and, in some respects, they are an advance in the protection of rights of suspects and accused, for example as regards access to a lawyer and the right to silence. The tribunals do not allow the death penalty as a punishment.

Many of these standards have been incorporated into the Statute of the International Criminal Court, which was adopted on 17 July 1998 by a diplomatic conference in Rome. The Statute, which was adopted by a vote of 120 states to seven, with 21 abstentions, enters into force after 60 ratifications. The Statute excludes the death penalty and contains many of the fair trial guarantees set out in the Statutes and Rules of the two tribunals.

Standards and bodies cited in this manual

The following human rights standards and bodies are cited in this manual. The short form (in brackets) is generally used.

African Charter on Human and Peoples' Rights (African Charter)

African Commission on Human and Peoples' Rights (African Commission)

African Commission Resolution on the Right to Recourse Procedure and Fair Trial (African Commission Resolution)

African Court on Human and Peoples' Rights (African Court)

American Convention on Human Rights (American Convention)

American Declaration of the Rights and Duties of Man (American Declaration)

Basic Principles on the Independence of the Judiciary

Basic Principles on the Role of Lawyers

Basic Principles for the Treatment of Prisoners

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

Beijing Declaration and Platform for Action

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles)

Code of Conduct for Law Enforcement Officials

Committee against Torture

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture)

Convention on the Elimination of All Forms of Discrimination against Women (Women's Convention)

Convention on the Prevention and Punishment of the Crime of Genocide

Convention on the Rights of the Child

Declaration of the Rights of the Child

Declaration on the Elimination of Violence against Women

Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live

Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Declaration against Torture)

Declaration on the Protection of All Persons from Enforced Disappearance (Declaration on Disappearance)

European Commission of Human Rights (European Commission)

(European) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention)

European Court of Human Rights (European Court)

European Prison Rules

Geneva Conventions of August 12, 1949 (Geneva Conventions)

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention)

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention)

Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention)

Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention)

Guidelines on the Role of Prosecutors

Human Rights Committee

Inter-American Commission on Human Rights (Inter-American Commission)

Inter-American Court of Human Rights (Inter-American Court)

Inter-American Convention on Forced Disappearance of Persons (Inter-American Convention on Disappearance)

Inter-American Convention to Prevent and Punish Torture (Inter-American Convention on Torture)

International Convention on the Elimination of All Forms of Racial Dis-crimination (Convention against Racism)

International Covenant on Civil and Political Rights (ICCPR)

Principles of Medical Ethics relevant to the Role of Health Personnel, particularly

Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Principles of Medical Ethics)

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I)

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II)

Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty ( Protocol 6 to the European Convention)

Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol 7 to the European Convention)

Protocol to the American Convention on Human Rights to Abolish the Death Penalty

Resolution on the Right to Recourse Procedure and Fair Trial of The African Commission on Human and Peoples' Rights (African Commission Resolution)

Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (Yugoslavia Rules)

Rules of Procedure and Evidence, International Tribunal for Rwanda (Rwanda Rules)

Safeguards guaranteeing protection of the rights of those facing the death penalty (Death Penalty Safeguards)

Second Optional Protocol to the International Covenant on Civil and political Rights, aiming at the abolition of the death penalty (Second Optional Protocol to the ICCPR)

Special Rapporteur on extrajudicial, summary or arbitrary executions

Special Rapporteur on the independence of judges and lawyers

Special Rapporteur on torture

Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules)

Statute of the International Criminal Court (ICC Statute)

Statute of the International Criminal Tribunal for the former Yugoslavia (Yugoslavia Statute)

Statute of the International Criminal Tribunal for Rwanda (Rwanda Statute)

United Nations Guidelines for the Prevention of Juvenile Delinquency (The

Riyadh Guidelines)

United Nations Rules for the Protection of Juveniles Deprived of their Liberty

United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)

Universal Declaration of Human Rights (Universal Declaration)

Vienna Convention on Consular Relations

Working Group on Arbitrary Detention

Working Group on Enforced or Involuntary Disappearances

Use of terms

Different national legal systems and international standards define terms related to fair trials in different ways. The following definitions seek to clarify the meanings of some terms as used in this manual and by Amnesty International. These definitions are not always the same as those used in international standards or national laws.

Detention and imprisonment

The term detention is used when a person has been deprived of his or her liberty for any reason other than as a result of being convicted of an offence. The term imprisonment is used when a person has been deprived of his or her liberty as a result of being convicted of an offence. Imprisonment refers to deprivation of liberty following trial and conviction, while detention, in the context of the criminal justice process, refers to deprivation of liberty before and during trial.1

Arrest

An arrest is ''the act of depriving a person of liberty under governmental authority for the purpose of taking that person into detention and charging the person with a criminal offence''.2

Criminal charge

A criminal charge is the official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence.3

Criminal offence

For the purposes of the application of international fair trial standards, whether an act constitutes a criminal offence is determined independently of national law. The decision depends on both the nature of the act and the nature and degree of severity of the possible penalty.4 While the classification of an act under national law is a consideration, it is not decisive, so that states cannot avoid applying the standards by failing to classify offences as criminal or by transferring jurisdiction from courts to administrative authorities.

Torture

Torture is defined in the Convention against Torture as ''any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.'' 5 Such sanctions must, however, be lawful under both national and international standards. The Declaration against Torture states: ''Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment''.6

Cruel, inhuman or degrading treatment or punishment

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that the term ''cruel, inhuman or degrading treatment or punishment'' should be interpreted ''so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time''.7

Courts and tribunals

Courts and tribunals are bodies which exercise judicial functions. They are established by law to determine matters within their competence on the basis of rules of law and in accordance with proceedings conducted in a prescribed manner. A tribunal is a broader concept than a court, but the terms are not used consistently in human rights instruments.8

Footnotes

1. Body of Principles, Use of Terms

2. Human Rights and Pre-trial Detention, UN Centre for Human Rights, 1994, UN Doc: E.94.XIV.6 . The Body of Principles, Use of Terms, states: '''Arrest' means the act of apprehending a person for the alleged commission of an offence or by the action of an authority''.

3. Eckle Case, The European Court of Human Rights, 51 Series A, 15 July 1982

4. European Court, Engel and others v. The Netherlands, European Court, 22 Series A, 8 June 1976

5. Convention against Torture, Article 1(1)

6. Declaration against Torture, Article 1(2)

7. Body of Principles, footnote to Principle 6

8. European Court of Human Rights. See Sramek Case, 84 Series A 17, para. 36, 22 October 1984; Le Compte, Van Leuven and De Meyere Case, 43 Series A 24, para. 55, 23 June 1981

Abbreviations

The following abbreviations have been used in this manual. First the short forms of human rights standards and bodies are listed, then the abbreviations used in citations of cases.

Standards and bodies

Additional Protocol I

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts

Additional Protocol II

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts

African Charter

African Charter on Human and Peoples' Rights

African Commission

African Commission on Human and Peoples' Rights

African Commission Resolution

Resolution on the Right to Recourse Procedure and Fair Trial of the African Commission on Human and Peoples' Rights

African Court

African Court in Human and Peoples' Rights

American Convention

American Convention on Human Rights

American Declaration

American Declaration of the Rights and Duties of Man

Body of Principles

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

Convention against Racism

Interantional Convention on the Elimination of All Forms of Racial Discrimination

Convention against Torture

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Death Penalty Safeguards

Safeguards guaranteeing protection of the rights of those facing the death penalty

Declaration against Torture

Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Declaration on Disappearance

Declaration on the Protection of All Persons from Enforced Disappearance

European Commission

European Commission of Human Rights

European Convention

(European) Convention for the Protection of Human Rights and Fundamental Freedoms

European Court

European Court of Human Rights

Fourth Geneva Convention

Geneva Convention relative to the Protection of Civilian Persons in Time of War

Geneva Conventions

Geneva Conventions of August 12, 1949

ICCPR

International Covenant on Civil and Political Rights

ICC Statute

Statute of the International Criminal Court

Inter-American Commission

Inter-American Commission on Human Rights

Inter-American Convention on Disappearance

Inter-American Convention on Forced Disappearance of Persons

Inter-American Convention on Torture

Inter-American Convention to Prevent and Punish Torture

Inter-American Court

Inter-American Court of Human Rights

Principles of Medical Ethics

Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Protocol 7 to the European Convention

Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms

The Riyadh Guidelines

United Nations Guidelines for the Prevention of Juvenile Delinquency

Rwanda Rules

Rules of Procedure and Evidence, International Tribunal for Rwanda

Rwanda Statute

Statute of the International Criminal Tribunal for Rwanda

Second Optional Protocol to the ICCPR

Second Optional Protocol to the Internaitonal Covenant on Civil and Political Rights, aiming at the abolition of the death penalty

Standard Minimum Rules

Standard Minimum Rules for the Treatment of Prisoners

The Beijing Rules

United Nations Standard Minimum Rules for the Administration of Juvenile Justice

The Tokyo Rules

United Nations Standard Minimum Rules for Non-custodial Measures

Third Geneva Convention

Geneva Convention relative to the Treatment of Prisoners of War

Universal Declaration

Universal Declaration of Human Rights

Women's Convention

Convention on the Elimination of All Forms of Discrimination against Women

Yugoslavia Rules

Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia

Yugoslavia Statute

Statute of the International Criminal Tribunal for the former Yugoslavia

Citations

Human Rights Committee

Report of the HRC(A/-/40): Report of the Human Rights Committee, (United Nations) General Assembly Official Records; -th Session, Supplement No. 40, (A/-/40)

Sel.Dec.: Selected Decisions of the Human Rights Committee under the Optional Protocol

Fin.Dec.: Human Rights Committee; Final Decisions

General Comment (number): General Comment (number) adopted by the Human Rights Committee under Article 40, paragraph 4 of the International Covenant on Civil and Political Rights

Human Rights Committee Cases

--- v country, (-/-), (Views adopted on) Day Month Year,

Report of the HRC, vol.x, (A/-/40), Year, at (page number)

(volume 1 or 2)Sel.Dec.(page number)

Fin.Dec. UN Doc. CCPR/C/-/-, Year, at (page number)

UN Doc.CCPR/C/-/D/-/-, at (page number)

African Commission

Annual Report of the African Commission: -th Annual Activity Report of the African Commission on Human and Peoples' Rights

Inter-American Court and Commission

Annual Report of the Inter-American Court: Annual Report of the Inter-American Court of Human Rights

Annual Report of the Inter-American Commission: Annual Report of the Inter-American Commission on Human Rights

Inter-American Court Cases

--- Case, Day Month Year,

Annual Report of the I-A Court (Year), OAS/Ser.L/V/-.- doc.-, Year, at (page)

Inter-American Commission Cases

Case (number), country, Day Month Year,

Annual Report of the I-A Commission (Year), OEA/Ser.L/V/-.- doc.- rev.-, Year, at (page)

European Court and Commission

Ser. A - Series A: Judgments and Decisions (of the European Court of Human Rights)

DR: Decisions and Reports (of the European Commission of Human Rights)

Yearbook: Yearbook of the European Convention on Human Rights

Coll.Dec.: Collection of Decisions of the European Commission of Human Rights

Digest: Digest of Strasbourg Case-Law relating to the European Convention on Human Rights

European Court Cases

---Case, Day Month Year, (volume number) Ser. A (page number) or Ser. A Vol. (volume number)

---Case, (-/-/-/-), Day Month Year

European Commission Cases

--- v country, (-/-), Day Month Year

(volume number) DR (page number)

(volume number) Yearbook (page number)

(volume number) Coll.Dec. (page number)

(volume number) Digest (page number)

SECTION A: Pre-trial rights

Chapter 1 The right to liberty

Chapter 2 The rights of people in custody to information

Chapter 3 The right to legal counsel before trial

Chapter 4 The right of detainees to have access to the outside world

Chapter 5 The right to be brought promptly before a judge or other judicial officer

Chapter 6 The right to challenge the lawfulness of detention

Chapter 7 The right to trial within a reasonable time or to release from detention

Chapter 8 The right to adequate time and facilities to prepare a defence

Chapter 9 Rights during interrogation

Chapter 10 The right to humane conditions of detention and freedom from torture

Chapter 1 The right to liberty

Everyone has the right to personal liberty. An arrest or detention is permissible only if carried out in accordance with the law. It must not be arbitrary and can only be carried out by authorized personnel. People charged with a criminal offence should not normally be held in detention pending trial.

1.1 The right to liberty

1.2 When is an arrest or detention lawful?

1.2.1 European Convention

1.3 When is an arrest or detention arbitrary?

1.4 Who can lawfully deprive a person of their liberty?

1.5 The presumption of release pending trial

1.1 The right to liberty

Everyone has the right to personal liberty. Article 3 of the Universal Declaration, Article 9 of the ICCPR, Article 6 of the African Charter, Article 1 of the American Declaration, Article 7 of the American Convention, Article 5 of the European Convention. This is a fundamental human right.

BOX:

Article 3 of the Universal Declaration:

''Everyone has the right to life, liberty and security of person.''

Article 9(1) of the ICCPR:

''Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.''

END BOX

Governments may deprive people of their liberty in certain prescribed circumstances. International human rights standards provide a series of protective measures both to ensure that individuals are not deprived of their liberty unlawfully or arbitrarily, and to establish safeguards against other forms of abuse of detainees. Some of these standards apply to allpeople deprived of their liberty, whether or not in connection with a criminal offence, others onlyto people held in connection with criminal charges, and others only to particular types of people, such as foreign nationals or children. Although this manual covers many of the rights which apply to all people deprived of their liberty, including those held in administrative detention, it focuses on the rights which apply to people charged with criminal offences. [For more information on administrative detention see Preventive Detention, A Comparative and International Law Perspective, eds S. Frankowski, D. Shelton, Martinus Nijhoff, Dordrecht, 1992]

The essential corollary to the right to liberty is protection against arbitrary or unlawful detention. In order to protect the right to liberty, international standards including Article 9 of the Universal Declaration declare that: ''No one shall be subjected to arbitrary arrest [or] detention''. This basic guarantee applies to everyone, whether held in connection with criminal charges or, for example, in connection with mental illness, vagrancy or immigration control. [Human Rights Committee General Comment 8, para.1]

International standards provide not only that arrest and detention must not be arbitrary, but also that they must be on grounds and according to procedures established by law.

The African Commission ruled that the arrest and detention of a political figure who was detained ''at the pleasure of the Head of State'' without charge or trial for 12 years violated the right to liberty set out in Article 6 of the African Charter. [Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa, Amnesty International on behalf of Orton and Vera Chirwa v. Malawi,(64/92, 68/92, 78/92 respectively), 8th Annual Report of the African Commission, 1994-1995, ACHPR/RPT/8th/Rev.I]

The Inter-American Commission considered that in certain circumstances house arrest, internal exile, and banishment (forced relocation) could violate the right to personal liberty guaranteed by Article 7 of the American Convention. [Inter-American Commission, Report on the Situation of Human Rights in Argentina, 1980, OEA/Ser.L/V/II.49, doc.19, at 189,193,291; Inter-American Commission, Report on the Situation of Human Rights in Chile, 1985, OAS/Ser.L/V/II.66, doc.17, at 134,139; Inter-American Commission, Report on the Situation of Human Rights in Nicaragua, 1981, OEA/Ser.L/V/II.53, at 65]

The Inter-American Court has stated that the presumption of innocence (see Chapter 15, The presumption of Innocence) set out in Article 8(2) of the American Convention requires that any restrictions on a person's liberty must be limited to those which are strictly necessary. [Suárez Rosero Case, Ecuador, Sentence of 12 November 1992]

1.2 When is an arrest or detention lawful?

An individual may only be deprived of his or her liberty on grounds and according to procedures established by law. Article 9(1) of the ICCPR, Article 6 of the African Charter; Article XXV of the American Declaration, Articles 7(2) and 7(3) of the American Convention, Article 5(1) of the European Convention.

These procedures must conform not only to domestic law, but also to international standards.

The European Court has stated that the phrase ''in accordance with a procedure prescribed by law'' in Article 5(1) of the European Convention refers to domestic law, but that the domestic law itself ''must be in conformity with the principles expressed or implied in the [European] Convention''. [Kenmache v. France(No. 3), (45/1993/440/519), 24 November 1994]

1.2.1 European Convention

Article 5(1) of the European Convention sets out the only permissible circumstances in which people may be deprived of their liberty. One situation justifying arrest is in order to bring someone before the authorities ''on reasonable suspicion of having committed an offence''.

The European Court has ruled that ''reasonable suspicion'' justifying an arrest exists when there are ''facts or information which would satisfy an objective observer that the person concerned may have committed the offence''. [Fox, Campbell and Hartley, (18/1989/178/234-236), 30 August 1990, para. 32]

BOX

European Convention, Article 5(1):

''1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is

reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.''

END BOX

1.3 When is an arrest or detention arbitrary?

No one may be subjected to arbitrary arrest, detention or imprisonment. Article 9 of the Universal Declaration, Article 9(1) of the ICCPR, Article 6 of the African Charter; Article XXV of the American Declaration, Articles 7(2) and 7(3) of the American Convention, Article 5(1) of the European Convention, Article 55(1)(d) of the ICC Statute.

An arrest or detention which is lawful may nonetheless be arbitrary under international standards, for example if the law under which the person is detained is vague, over-broad, or is in violation of other fundamental standards such as the right to freedom of expression. In addition, detainees who were initially arrested lawfully, but who are held after their release has been ordered by a judicial authority, are arbitrarily detained.

The Human Rights Committee has explained that the term ''arbitrary'' in Article 9(1) of the ICCPR is not only to be equated with detention which is ''against the law'', but is to be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. [Albert Womah Mukong v. Cameroon, (458/1991), 21 July 1994, UN Doc. CCPR/C/51/D/458/1991, p. 12]

The African Commission has held that mass arrests and detentions of office workers in Malawi on suspicion that they had used office equipment such as fax machines and photocopiers for subversive ends were arbitrary, in violation of Article 6 of the African Charter.[Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa, Amnesty International on behalf of Orton and Vera Chirwa v. Malawi,(64/92, 68/92, 78/92 respectively), 8th Annual Report of the African Commission, 1994-1995, ACHPR/RPT/8th/Rev.I] It also held that the detention of a person beyond the expiry of the sentence constitutes a violation of Article 6 of the African Charter, which prohibits arbitrary detention. [Annette Pagnoulle (on behalf of Abdoulaye Mezou) v. Cameroon, (39/90), 10th Annual Report of the African Commission, 1996 -1997, ACHPR/RPT/10th]

In examining the lawfulness of a detention, the European Court examines whether the detention in question conforms to the substantive and procedural rules of domestic lawandwhether the detention was arbitrary. [Kemmache v. France(No.3), (45/1993/440/519), 24 November 1994]

The Inter-American Commission identified three forms of arbitrary detention: extra-legal detention (detention which has no legal basis, including detention ordered by the executive or detention by paramilitary groups with the consent or acquiescence of the security forces)[Inter-American Commission, Report on the Situation of Human Rights in Argentina, 1980, OEA/Ser.L/V/II.49, doc. 19, at 140: indefinite detention ordered by the executive; Annual Report of the Inter-American Commission, 1980-1981, OEA/Ser.L/V/II.49, doc. 9 rev. 1, 1981, p. 117 and Annual Report of the Inter-American Commission, 1981-1982, OEA/Ser.L/V/II.57, 1982, Bolivia: detention by paramilitaries linked to the security forces]; detention which violates the law; and detention which, although carried out in conformity with the law, constitutes an abuse of power. [Inter-American Commission, Report No. 13/96, Case 11.430, Mexico, 15 October 1996: an army General faced 16 preliminary inquiries and eight criminal actions over seven years, which were all closed or dismissed, in what the Commission described as ''an unreasonable succession of cases, which taken together constitute an ''abuse of power''.]

1.4 Who can lawfully deprive a person of their liberty?

Arrest, detention or imprisonment may only be carried out by people authorized for that purpose. Principle 2 of the Body of Principles. This expressly prohibits a common practice in some countries where branches of the security forces carry out arrests and detentions although they have no power in law to do so.

The authorities which arrest people, keep them in detention or investigate their cases may exercise only the powers granted to them under the law. The use of these powers must be subject to supervision by a judicial or other authority. Principle 9 of the Body of Principles.

BOX:

Principle 2 of the Body of Principles:

''Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose.''

Principle 9 of the Body of Principles

''The authorities which arrest a person, keep him under detention or investigate the case shall exercise only the powers granted to them under the law and the exercise of these powers shall be subject to recourse to a judicial or other authority.''

END BOX

States should establish rules under their national law indicating which officials are authorized to order deprivation of a person's liberty. States should establish the conditions under which such orders may be given and ensure strict supervision, including a clear chain of command, of all law enforcement officials responsible for arrests, detentions, custody, transfers and imprisonment. Article 12 of the Declaration on Disappearance.

1.5 The right to presumption of release pending trial

People awaiting trial on criminal charges should not, as a general rule, be held in custody. In accordance with the right to liberty and the presumption of innocence (see Chapter 15, The presumption of innocence), there is a presumption that people charged with a criminal offence will not be detained before their trials. International standards explicitly recognize that there are, however, circumstances in which the authorities may impose conditions on a person's liberty or detain an individual pending trial. Article 9(3) of the ICCPR, Principle 39 of the Body of Principles, Principle 6 of the Tokyo Rules; see also Article 7(5) of the American Convention, Article 5(3) of the European Convention. Such circumstances include when it is deemed necessary to prevent the suspect from fleeing, interfering with witnesses or when the suspect poses a clear and serious risk to others which cannot be contained by less restrictive means.

BOX:

Article 9(3) of the ICCPR:

''...It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.''

Principle 39 of the Body of Principles:

''Except in special cases provided for by law, a person detained on a criminal charge shall be entitled, unless a judicial or other authority decides otherwise in the interest of the administration of justice, to release pending trial subject to the conditions that may be imposed in accordance with the law. Such authority shall keep the necessity of detention under review.''

Principle 6 of the Tokyo Rules

''6.1 Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.

6.2 Alternatives to pre-trial detention shall be employed at as early a stage as possible....''

END BOX

The Human Rights Committee has stated that ''[p]re-trial detention should be an exception and as short as possible''. [Human Rights Committee General Comment 8, para.3]

The Human Rights Committee has stated that pre-trial detention must not only be lawful, but must also be necessary and reasonable in the circumstances. It has recognized that the ICCPR permits authorities to hold people in custody as an exceptional measure if it is necessary to ensure that the person appears for trial, but it has interpreted the ''necessity'' requirement narrowly. It has held that suspicion that a person has committed a crime is not sufficient to justify detention pending investigation and indictment. However, it has held that custody may be necessary to prevent flight, avert interference with witnesses and other evidence, or prevent the commission of other offences. The Committee has also held that a person may be detained when they constitute a clear and serious threat to society which cannot be contained by any other manner.[See Van Alphen v. the Netherlands, (305/1988), 23 July 1990, Report of the HRC Vol II, (A/45/40), 1990, at 115]

The European Court has held that continued pre-trial detention can only be justified ''if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.'' [Van der Tang v. Spain, (26/1994/473/554), 13 July 1993, para. 55]

If a person is held in detention pending trial, the authorities must keep the necessity of continuing such detention under regular review. Principle 39 of the Body of Principles.

See also Chapter 5, The right to be brought promptly before a judge or other officer, Chapter 6, The right to challenge the lawfulness of detention, andChapter 7, The right to trial within a reasonable time or to release from detention.

Chapter 2 The rights of people in custody to information

Anyone arrested or detained must be notified at once of the reasons for their arrest or detention and of their rights, including their right to counsel. They must be informed promptly of any charges against them. This information is essential to allow the person to challenge the lawfulness of their arrest or detention and, if they are charged, to start the preparation of their defence.

2.1 Right to be informed immediately of the reasons for arrest or detention

2.2 Right to notification of rights

2.2.1 Notification of the right to legal counsel

2.3 Right to be informed promptly of any charges

2.4 Notification in a language the person understands

2.5 Foreign nationals

2.1 Right to be informed immediately of the reasons for arrest or detention

Anyone who is arrested or detained must be informed immediately of the reasons why they are being deprived of their liberty. Article 9(2) of the ICCPR, Paragraph 2(B) of the African Commission Resolution, Principle 10 of the Body of Principles; see Article 7(4) of the American Convention, Article 5(2) of the European Convention, Principle 11(2) of the Body of Principles;

BOX:

Article 9(2) of the ICCPR:

''Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.''

Principle 10 of the Body of Principles:

''Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.''

Principle 11(2) of the Body of Principles:

''A detained person and his counsel, if any, shall receive prompt and full communication of any order of detention, together with the reasons therefor.''

END BOX

A key purpose of the requirement for information about the reasons for arrest or detention is to allow detainees to challenge the legality of their detention. (See Chapter 6, The right to challenge the lawfulness of detention.) Therefore the reasons given must be specific. They must include a clear explanation of the legal and factual basis for the arrest or detention.

For example, the Human Rights Committee has held that ''it was not sufficient simply to inform [the detainee] that he was being arrested under the prompt security measures without any indication of the substance of the complaint against him.'' [Drescher Caldas v. Uruguay(43/1979), 21 July 1983, 2 Sel. Dec. 80]

Similarly, the Human Rights Committee expressed concern about detentions in Sudan on grounds of ''national security''. The Committee recommended that the concept of national security be defined by law and that police and security officials be required to provide written reasons for a person's arrest, which should be made public and subject to review by the courts. [Concluding Observations of the HRC: Sudan, UN Doc. CCPR/C/79/Add.85, 19 November 1997, para.13]

The Human Rights Committee also considered that there was a violation of Article 9(2) of the ICCPR in a case where an accused was informed at the time of his arrest only that he was wanted in connection with a murder investigation. For several weeks he was not informed in detail of the reasons for his arrest, the facts of the crime for which he was arrested nor the identity of the victim. [Kelly v. Jamaica, (253/1987), 8 April 1991, Report of the HRC, (A/46/40), 1991, para. 5]

Similarly, the European Court has explained that Article 5(2) of the European Convention means that every person arrested should ''be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness...'' However, the Court stated that this does not require a complete description of all the charges at the moment of arrest. In the case examined, the arresting officer cited the law under which each person was being arrested at the time of arrest. Within a few hours, each was interrogated by police and the reason why they were suspected of belonging to banned organizations was brought to their attention. The Court held that there were no grounds to hold that they did not have enough information to understand why they had been arrested. [Fox, Campbell and Hartley,(18/1989/178/234-236), 30 August 1990, paras. 40, 41]

Article 9(2) of the ICCPR, Principle 10 of the Body of Principles, and Paragraph 2 (B) of the African Commission Resolution require that notification of the reasons for arrest must take place at the time of the arrest.

The Human Rights Committee found that there was a violation of Article 9(2) of the ICCPR, in a case in which a lawyer for a local human rights organization was held for 50 hours without being informed of the reasons for his arrest. [Portorreal v. Dominican Republic, (188/1984), 2 Sel. Dec. 214]

However, some latitude will be given if it is considered that, given the circumstances, the person arrested is sufficiently aware of the reasons for arrest.

In a case where a person arrested after drugs were found in his vehicle was only informed of the charges against him through an interpreter the morning after his arrest, the Human Rights Committee held that it would be wholly unreasonable under these circumstances to argue that the person was unaware of the reasons for his arrest. [Griffin v. Spain, (493/1992), Views adopted on 4 April 1995, Fin. Dec. UN Doc. CCPR/C/57/1, 23 August 1996]

Article 5(2) of the European Convention requires that the arrested person be informed ''promptly'' of the reasons for arrest. The term ''promptly'' in this context is generally strictly construed, although some unavoidable delay may be tolerated, for example to find an interpreter.

The European Court has stated that ''intervals of a few hours'' between the time of arrest and interrogation – which would lead the detainee to understand the reasons for the arrest – ''cannot be regarded as falling outside the constraints of time imposed by the notion of promptness in Article 5(2).'' [Fox, Campbell and Hartley,(18/1989/178/234-236), 30 August 1990,para. 42]

2.2 Right to notification of rights

In order to exercise one's rights, one must know that they exist. Everyone arrested or detained has the right to be informed of their rights and an explanation of how to avail themselves of such rights. Principles 13 and 14 of the Body of Principles,Rule 42 of the Yugoslavia Rules, Rwanda Rules 42. [The Yugoslavia and Rwanda Rules require that suspects questioned by the Prosecutor, whether or not in custody, be informed of their rights to counsel of their choice or free legal assistance, free interpretation and to silence. ]

BOX

Principle 13 of the Body of Principles:

'' Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively, with information on and an explanation of his rights and how to avail himself of such rights.''

End BOX

2.2.1 Notification of the right to legal counsel

One of the most important rights which all arrested or detained people need to know is that they are entitled to the help of a lawyer. SeeChapter 3, The right to legal counsel before trial.Every person who is arrested, detained or charged must be informed of their right to have the assistance of legal counsel. Principle 5 of the Basic Principles on the Role of Lawyers, Principle 17(1) of the Body of Principles.

This information should be providedimmediatelyupon arrest or detention or when charged with a criminal offence, according to Principle 5 of the Basic Principles on the Role of Lawyers. Principle 17(1) of the earlier Body of Principles provides that this information should be givenpromptlyafter arrest. The Yugoslavia and Rwanda Rules require that notice of the right to legal counsel be given to all suspects questioned by the Prosecutor, whether they are detained or not.

BOX:

Principle 5 of the Basic Principles on the Role of Lawyers:

''Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.''

END BOX

2.3 Right to be informed promptly of any charges

Every person arrested or detained has the right to be promptly informed of any charges against them. Articles 9(2) and 14(3)(a) of the ICCPR, Articles 7(4) and 8(2)(b) of the American Convention, Article 5(2) and 6(3)(a) of the European Convention, Principle 10 of the Body of Principles, Paragraph 2(B) of the African Commission Resolution, Articles 20(2) and 21(4)(a) of the Yugoslavia Statute, Rwanda Statute Articles 20(2) and 21(4)(a) .

1 The European Commission has stated that Article 5(2) of the European Convention requires that everyone arrested be ''informed sufficiently about the facts and the evidence which are proposed to be the foundation of a decision to detain him. In particular, he should be enabled to state whether he admits or denies the alleged offence.'' [X v. Federal Republic of Germany, (8098/77), 13 December 1978,16 DR 111 at 114]

The requirement to give prompt information about criminal charges serves two fundamental purposes. It provides all people arrested or detained with information to challenge the lawfulness of their detention – the main purpose of the safeguard set out in Article 9(2) of the ICCPR and parallel provisions of regional treaties. It also permits anyone facing trial on criminal charges, whether or not in custody, to begin the preparation of their defence – the main purpose of safeguards elaborated in Article 14(3)(a) of the ICCPR, Article 8(2)(b) of the American Convention and Article 6(3)(a) of the European Convention. The information to be given promptly after arrest is not required to be as specific as the information given in order to prepare the defence. See Chapter 8.4, Right to information about charges,inChapter 8, The right to adequate time and facilities to prepare a defence.

2.4 Notification in a language the person understands

To be effective, information must be communicated in a language the person understands. Anyone who has been arrested, charged or detained, who does not adequately understand or speak the language used by the authorities, has the right to be notified in a language they understand what their rights are and how to exercise them, why they have been arrested or detained, and any charges against them. They are also entitled to receive a written record of: the reason for arrest; the time of arrest and transfer to a place of detention; the date and time that they will brought before a judge or other authority; who arrested or detained them; and where they are being held. Principle 14 of the Body of Principles.

They are also entitled to have an interpreter to help them with the legal proceedings after arrest, free of charge if necessary. Principle 14 of the Body of Principles, Article 21(4)(a) of the Yugoslavia Statute, Rwanda Statute Article 20(4)(a).

BOX:

Principle 14 of the Body of Principles:

''A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which he understands the information referred to in principle 10, principle 11, paragraph 2, principle 12, paragraph 1, and principle 13 and to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to his arrest.''

END BOX

The European Convention is the only treaty which expressly requires that notification of the reasons for arrest (as opposed to information about charges) must be given in a language that the person understands. Article 5(2) of the European Convention. However, the Human Rights Committee has clarified its view that this should be the case,[Human Rights Committee General Comment 13, para. 8] and paragraph 2(B) of the African Commission Resolution and Principle 14 of the Body of Principles specifically provide for this.

See Chapter 23, The right to an interpreter and to translation.

2.5 Foreign nationals

If the person detained or arrested is a foreign national, they must, in addition, be promptly informed of their right to communicate with their embassy or consular post. If the person is a refugee or a stateless person, or is under the protection of an intergovernmental organization, they must be promptly notified of their right to communicate with the appropriate international organization. Article 36 of the Vienna Convention on Consular Relations, Principle 16(2) of the Body of Principles.

The Vienna Convention on Consular Relations requires that an arrested, detained or imprisoned person be informed of this right without delay; the Body of Principles requires that this information be provided promptly.

BOX:

Principle 16(2) of the Body of Principles:

''If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization.''

Article 36 of the Vienna Convention on Consular Relations:

''b. If he so requests, the competent authorities of the receiving State shall without delay inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;''

END BOX

Chapter 3 The right to legal counsel before trial

Everyone in detention or facing a possible criminal charge has the right to the assistance of a lawyer of their choice to protect their rights and to assist in their defence. If the person cannot afford to hire a lawyer, effective, qualified counsel should be assigned. The person must be given adequate time and facilities to communicate with their lawyer. Access to counsel should be immediate.

3.1 Right to the assistance of a lawyer

3.1.1 The right to a lawyer in pre-trial stages

3.2 Right to choose a lawyer

3.3 Right to have a lawyer assigned free of charge

3.3.1 Right to competent and effective counsel

3.4 Right of detainees to have access to counsel

3.4.1 When does a detainee have the right of access to counsel?

3.5 Right to time and facilities to communicate with counsel

3.6 Right to confidential communication with counsel

3.1 Right to the assistance of a lawyer

Everyone arrested or detained – whether or not on a criminal charge – and everyone facing a criminal charge – whether or not detained – has the right to the assistance of legal counsel. Principle 1 of the Basic Principles on the Role of Lawyers, Principle 17(1) of the Body of Principles, Rule 93 of the European Prison Rules, Article 21(4)(d) of the Yugoslavia Statute, Rwanda Statute 20(4)(d). See also Article 55(2)(c) of the ICC Statute.

See also Chapter 20.3, The right to be defended by counsel.

BOX:

Principle 1 of the Basic Principles on the Role of Lawyers:

''All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.''

Principle 17(1) of the Body of Principles:

''A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.''

Rule 93 of the European Prison Rules:

''Untried prisoners shall be entitled, as soon as imprisoned, to choose a legal representative, or shall be allowed to apply for free legal aid where such aid is available and to receive visits from that legal adviser with a view to their defence and to prepare and hand to the legal adviser and to receive, confidential instructions....''

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3.1.1 The right to a lawyer in pre-trial stages

Principle 1 of the Basic Principles on the Role of Lawyers establishes the right to assistance at allstages of criminal proceedings, including interrogations. (See also Principle 17 of the Body of Principles, which applies to all people who are detained.)

A person's right to the help of a lawyer in pre-trial proceedings is not expressly set out in the ICCPR, the American Convention, the African Charter or the European Convention. However, the Human Rights Committee, the Inter-American Commission and the European Court have all recognized that the right to a fair trial requires access to a lawyer during detention, interrogation and preliminary investigations.

The Human Rights Committee has stated that ''all persons arrested must have immediate access to counsel''. [Concluding Observations of the HRC: Georgia, UN Doc. CCPR/C/79/Add.74, 9 April 1997, para. 28]

The Inter-American Commission has stated that the right to defend oneself requires that an accused person be permitted to obtain legal assistance when first detained. It concluded that a law which prohibited a detainee from access to counsel during detention and investigation could seriously impinge upon defence rights. [Annual Report of the Inter-American Commission, 1985-1986, OEA/Ser.L/V/II.68, doc. 8 rev. 1, 1986, p. 154, El Salvador]

Similarly, the European Court has acknowledged that the right to a fair trial normally requires an accused person to be allowed legal counsel during the initial stages of police investigation. The court examined a case in which a person was denied access to counsel during the first 48 hours of his detention, when he had to decide whether to exercise his right of silence. This decision could affect whether or not he was charged, and under national law adverse inferences could be drawn at trial from his silence during police questioning. The court found that the failure to grant him access to counsel during the first 48 hours after his arrest was a violation of Article 6 of the European Convention. [Murray v. United Kingdom,(41/1994/488/570), 8 February 1996]

The Yugoslavia Rules, the Rwanda Rules and the ICC Statute provide that suspects have the right to counsel when questioned by the Prosecutor. Rule 42 of the Yugoslavia Rules, Rwanda Rules 42, Article 55(2)(d) of the ICC Statute.

3.2 Right to choose a lawyer

The right to a lawyer generally means that a person has the right to legal counsel of their choice. Principles 1 and 5 of the Basic Principles on the Role of Lawyers, Rule 93 of the European Prison Rules, Article 55(2)(c) of the ICC Statute. See also Chapter 20.3, The right to be defended by counsel.

3.3 Right to have a lawyer assigned free of charge

If a person who is arrested, charged or detained does not have legal counsel of their own choice, they are entitled to have a lawyer assigned by a judge or judicial authority, whenever the interests of justice require it. If the person cannot afford to pay, assigned counsel must be provided free of charge. Principle 17(2) of the Body of Principles, Principle 6 of the Basic Principles on the Role of Lawyers, Rule 42(A)(i) of the Yugoslavia Rules, Rwanda Rules 42(A)(i), Article 21(4)(d) of the Yugoslavia Statute, Rwanda Statute 20(4)(d), Article 55(2)(c) of the ICC Statute.

The determination of whether the interests of justice require appointment of counsel depends primarily on the seriousness of the offence and the severity of the potential penalty (seeChapter 20.3.3, Right to have defence counsel assigned; the right to free legal assistance).

Principle 3 of the Basic Principles on the Role of Lawyers requires governments to provide sufficient funding and other resources to provide legal counsel for the poor and other disadvantaged people.

BOX:

Principle 17(2) of the Body of Principles:

''If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.''

Principle 6 of the Basic Principles on the Roles of Lawyers