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The Right to a Fair Trial

Fair Trials is the global criminal justice watchdog. We safeguard the fundamental concept that is the bedrock of all other rights, but who are we, and what is a fair trial?

The Right to a Fair Trial

It's actually impossible to overstate how important the right to a fair trial is. Honestly. 

Fair trials are the only way to prevent miscarriages of justice and are an essential part of a just society. Every person accused of a crime should have their guilt or innocence determined by a fair and effective legal process. But its not just about protecting suspects and defendants. It also makes societies safer and stronger. Without fair trials, victims can have no confidence that justice will be done. Without fair trials, trust in government and the rule of law collapses. 

The right to a fair trial is not new; it has long been recognised by the international community as a basic human right. Despite this, it's a right that is being abused in countries across the globe with devastating human and social consequences. 

Despite the importance of fair trials being recognised by the international community, this basic human right is being abused day-in-day-out in countries across the globe. We’re working to put an end to these abuses, towards realising our vision of a world where every person’s right to a fair trial is respected.

What is new is the scale and nature of the challenge: the number of people directly affected by criminal justice is growing with new offences created every day and increasing numbers being jauiled. Countries are developing swifter ways of imposing punishments, often without a trial; the global "war on terror" and flawed political talk of "rebelancing" criminal justice systems to make us safer has had a corrosive effect; dictators and authoritarian regimes are finding new ways of using criminal justicce as a tool of oppression; and human rights face new threats from increasing cross-border cooperation to fight crime. 

The tabs above go some way to trying to explain some of the basics of what actually makes a fair trial.

We are working towards an ambitious global goal. We won’t get there overnight and we can’t make it on our own. But with each step we take towards our vision of a world where every person’s right to a fair trial is respected, we are protecting people against miscarriages of justice and building fair and effective criminal justice systems that benefit everyone. 

The Right to a Fair Trial is recognised internationally as a fundamental human right and countries are required to respect it. Different countries have developed different ways of doing this, but regardless of how a particular legal system operates, the principles above are core to all fair justice systems and they all form part of the Right to a Fair Trial.

Key Stats

3,000,000

People are currently being detained around the globe waiting for a trial

40%

Unfair trials make up over 40% of rights violations found around the world

30,000

More than 30,000 people accessed our online advice in the last six months

Over 90%

Over 90% of countries have signed international agreements requiring them to provide fair trials
CASE STUDY

Louise Woodward

Page

Legal Experts Advisory Panel

The Rule of Law

“No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” ICCPR Article 9.1

In countries governed by the Rule of Law, every person is subject to the same laws and no one, however rich or powerful, is above the law. This basic principle is crucial to the Right to a Fair Trial.

The Rule of Law means that our actions are only criminal if they are prohibited by laws that have been made publicly following a proper process. This gives people clarity about what is and is not permitted in society, and avoids arbitrary punishment. The Rule of Law means new criminal laws can only apply to future actions and cannot have retrospective effect. Therefore, if your actions are not prohibited when you do them they are not unlawful.

This principle also creates a level playing field and ensures equality. The Rule of Law requires criminal laws to be enforced in a uniform way. For some suspects, this can mean that special measures are needed to give them a Fair Chance to Present a Defence. Non-nationals, for example, may need interpretation and children may need additional support so that they can participate effectively in the trial.

Impartial and independent courts are at the heart of the Right to a Fair Trial. This ensures that those deciding whether a person has committed a criminal offence are neutral and are making a fair assessment of the facts. The courts must themselves be created by and subject to the law to ensure independence and prevent arbitrariness.

While the Right to a Fair Trial exists to minimize mistakes, no justice system always produces the right outcome. For this reason people must have the right of appeal to a higher court. This is needed to redress injustice and to uphold society’s faith in the integrity of the justice system. It is also fundamental for ensuring consistency, fairness and uniform interpretation of the law.

Key Stats

3,000,000

People are currently being detained around the globe waiting for a trial

40%

Unfair trials make up over 40% of rights violations found around the world

30,000

More than 30,000 people accessed our online advice in the last six months

Over 90%

Over 90% of countries have signed international agreements requiring them to provide fair trials
CASE STUDY

William 'Billy' Burton

Respect for the Right to Liberty

“Everyone has the right to life, liberty, and security of person” (Universal Declaration Art. 3)

Liberty is central to what it means to be human and is a basic human right in itself. It is also at the heart of the right to a fair trial because, in most countries, imprisonment (the deprivation of liberty) is the ultimate criminal sanction. This punishment can only be justified after a fair legal process.

The start of criminal proceedings is often marked by police arrest. This temporary loss of liberty may be entirely justified and authorized by law, but arbitrary arrests have long been a feature of dictatorships and remain common today. To protect against this, people taken into custody must be given reasons for their arrest and be taken promptly before a court. The right for detainees to test the legality of their detention in court (sometimes known as “Habeas Corpus”) is also an important safeguard against torture.

Extended periods of pre-trial detention are also common for people that have not been convicted of any criminal offence, many of whom will ultimately be cleared of any wrongdoing. This can be justified to ensure vital evidence is preserved or to protect witnesses but if not strictly necessary, pre-trial detention violates the right to liberty and the presumption of innocence. People also have a right to be tried without undue delay to minimize pre-trial detention and reduce the human impact of criminal proceedings.

People in detention are entitled to humane conditions where their essential needs are met and, except in extreme circumstances and for a limited time, have a right of access to the outside world, including the right to communicate with family and a lawyer. This is not only crucial to a person’s well-being, but is an important safeguard against the mistreatment, which is common for people in incommunicado detention, and is crucial to give people a fair chance to present a defence.

Key Stats

3,000,000

People are currently being detained around the globe waiting for a trial

40%

Unfair trials make up over 40% of rights violations found around the world

30,000

More than 30,000 people accessed our online advice in the last six months

Over 90%

Over 90% of countries have signed international agreements requiring them to provide fair trials
CASE STUDY

Daniela Tarău

The Presumption of Innocence

“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law.” (ICCPR Art. 14(2))

A fundamental element of the right to a fair trial is that every person should be presumed innocent unless and until proved guilty following a fair trial. This is why the responsibility falls on the state to prove guilt and to discharge the presumption of innocence.

Due to the presumption of innocence, a person cannot be compelled to confess guilt or give evidence against him/herself. It is for the state to produce evidence of guilt, not for the defendant to prove innocence. In general, therefore, a suspect’s silence should not be used as evidence of guilt.

Because of the serious consequences of conviction, the state must prove guilt to a high standard. If doubt remains, the defendant must be given the benefit of the doubt and cleared because the state’s “burden of proof” has not been met.

Given the massive human impact of criminal proceedings on defendants, and the presumption of innocence, trials should take place without undue delay. It would be unfair to allow states numerous attempts to try to secure a conviction. If a case goes to trial and guilt is not proved, unless exceptional circumstances exist, the person should not be tried again. This requires the state to do the job of prosecution properly in the first instance.

The presumption of innocence is why, before conviction, any restrictions on a suspect’s basic rights, for example the right to liberty, should only be imposed where absolutely necessary. People awaiting trial have not been convicted of any offence and many will ultimately be cleared.

Key Stats

3,000,000

People are currently being detained around the globe waiting for a trial

40%

Unfair trials make up over 40% of rights violations found around the world

30,000

More than 30,000 people accessed our online advice in the last six months

45 years

The number of years Iwao Hakamada spent on death row before being released
CASE STUDY

Iwao Hakamada

Open Justice

Justice must not only be done, it must also be seen to be done. This is one reason why, except in rare cases, people are entitled to a public hearing. Open Justice enables the public to see how justice is administered and by subjecting it to public and press scrutiny, safeguards the fairness of the trial. This is also why people are entitled to a reasoned judgment which has been made public.

Open Justice requires people to be informed of the reasons for their arrest and any pretrial detention (to safeguard Liberty). They must also be given information on their rights as a suspect. Without this information, conveyed in a language the person understands, rights that exist in law are illusory in practice.

People should be told what they are being prosecuted for and shown the evidence against them, in a language they understand. Without this information, a person would not have a Fair Chance to Present a Defence, for example by gathering evidence to counter claims made against them or providing alibi evidence.

The Right to a Fair Trial also requires that people charged with offences be allowed to attend court and to participate effectively in the trial. This enables the court to interact with them and allows the person to hear and respond to the prosecution case. Defendants are entitled to give evidence and, except in exceptional cases, are also entitled to call witnesses and cross-examine prosecution witnesses.

Key Stats

3,000,000

People are currently being detained around the globe waiting for a trial

40%

Unfair trials make up over 40% of rights violations found around the world

30,000

More than 30,000 people accessed our online advice in the last six months

Over 90%

Over 90% of countries have signed international agreements requiring them to provide fair trials
CASE STUDY

Bo Xilai

A Fair Chance to Present a Defence

A person charged with a criminal offence faces the overwhelming power of the state. The Right to a Fair Trial therefore requires that the defendant be given a Fair Chance to Present a Defence in order to counteract this imbalance. This requirement for “equality of arms” is inherent to the Presumption of Innocence and the Rule of Law.

Access to a lawyer is crucial to this and this right starts from the point of arrest and through the trial itself. People need access to legal advice so that they can understand the case against them and have a Fair Chance to Present a Defence. If a defendant has the means to pay, he/she should be able to choose their own lawyer. If the person cannot afford to pay for their own lawyer, where the interests of justice require, the state should provide free legal assistance.

A person facing criminal charges must have the time and facilities to prepare a defence. This right exists at all stages of the proceedings and encompasses the right to documents, files, and information as well as a guarantee of confidential communication with counsel (see Open Justice). Although undue delays in criminal proceedings often contradict the Right to a Fair Trial, fast-track trials can also deny people a Fair Chance to Present a Defence.

Crucially, during the trial itself people must have a Fair Chance to Present a Defence under conditions that do not place them at a disadvantage versus their opponent. This will require the free assistance of an interpreter if the person cannot understand or speak the language used in court. The person should be allowed to be present at hearings which is also crucial to Open Justice and should be given the chance to make a statement. Except in exceptional circumstances, people must also be given the right to call witnesses and examine or have examined witnesses in the same manner as the prosecution.

Key Stats

3,000,000

People are currently being detained around the globe waiting for a trial

40%

Unfair trials make up over 40% of rights violations found around the world

30,000

More than 30,000 people accessed our online advice in the last six months

Over 90%

Over 90% of countries have signed international agreements requiring them to provide fair trials
CASE STUDY

Garry Mann

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