International Human Rights Safeguards and Standards
The Universal Declaration of Human Rights, a milestone document in the history of human rights adopted by the United Nations and now widely accepted as customary international law, outlines the right to a fair trial in Article 10 by stating that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
Furthermore, the right to fair trial has also been defined in more detail in Article 14 of the ICCPR which has been ratified by Pakistan. While Article 14(1) establishes the basic right to a fair trial, Article 14(2) outlines the presumption of innocence, and Article 14(3) outlines the minimum fair trial guarantees that must be extended to those accused of criminal charges. These include being informed of the nature of charge against the accused, getting adequate time and facilities to prepare a defence, being tried without undue delay, having witnesses against the accused examined, having free assistance of an interpreter if the accused cannot understand or speak the language used in court, and not being compelled to testify against oneself or confess guilt. Finally, Article 14(5) establishes the right of the convicted person of a review of a sentence by a higher court, and Article 14(7) prohibits double jeopardy. However, this principle has its qualifications as summarized by the Human Rights Committee, which states that it does not apply to appeals or any retrials that may be ordered by a Court of Law or the reversal of guilt or innocence through the presentation of new evidence at a later stage.[1]
In its General Comment No. 32, the United Nations Human Rights Committee has expounded upon the rights associated with a fair trial. It states that the right to a fair trial must be afforded to persons of all nationalities irrespective of whether they are outside the country of their nationality or are stateless.[2] Furthermore, the Committee stated that a person must not be barred the protection of this right to fair trial due to “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[3] Article 14 of the ICCPR applies unequivocally to Courts and Tribunals of any nature, be it specialized, civilian or military. In addition to this, Article 6 of the European Convention of Human Rights also outlines the right to a fair trial in a similar language as that of the ICCPR.
This right to a fair trial has also been outlined specifically in relation to children in Article 40(2) of the Convention on the Rights of the Child, also ratified by Pakistan. General Comment No. 10 on the Convention[4] further explains that the atmosphere of the trial must be tailored in such a way that the child is able to express himself freely, and that the child’s age be taken into account to modify courtroom procedures and practices. It states that the child must be given the opportunity to express his/her views freely, and those views should be given due weight in accordance with the age and maturity of the child. It places the responsibility of ensuring that the child understands the charges brought against him/her on the authorities, including the police, prosecutors and judges. Other than this, the gravity of offence must be taken into account particularly in cases involving death penalties. The Comment recognizes that in addition to a lawyer, social workers may also be appointed provided they are trained to work with children and possess an understanding of the law. Moreover, when questioning the child, some appropriate legal or other representative, as well as parents, if requested, must be present. Finally, it emphasizes that delay must be avoided by setting time limits for the period between the commission of the offence and the final adjudication by the court, which are shorter than those set for adults.
International human rights safeguards regarding the right to fair trial also expound upon the right to complain against ill treatment. The report of the UN Committee against Torture highlights that States must inform the accused of their right to complain to or against the authorities. Moreover, the victim also has the right to complain to courts and non-governmental organizations, and to select a counsel and a doctor of their choice.[5] It is the responsibility of the State to thereon protect the complainants and to investigate the matter.
It is also important to note that reparation and redressal through compensation is an obligation under Article 14(6) of the ICCPR as well as Article 14 of the Convention Against Torture for miscarriages of justice that result in wrongful convictions, and for instances of torture. However, they do not provide for compensation if the verdict is overturned on appeal.
[1] HRC, ‘UN Human Rights Committee: Concluding Observations: Portugal (Macao)’ 4 November 1999, CCPR/C/79/Add.115, para 55 – 56.
[2] HRC, ‘General Comment No. 32: Article 14 Right to Equality before Courts and Tribunals and to Fair Trial’ 23 August 2007, CCPR/C/GC/32, para 9.
[3] HRC, ‘General Comment No. 32: Article 14 Right to Equality before Courts and Tribunals and to Fair Trial’ 23 August 2007, CCPR/C/GC/32, para 9
[4] CRC, ‘General Comment No. 10: Children’s Rights in Juvenile Justice’ 25 April 2007 UN Doc CRC/C/GC/10.
[5] CAT, ‘Report of the UN Committee against Torture: Twenty-fifth Session (13-24 November 2000) and Twenty-sixth Session (30 April-18 May 2001)’ 26 October 2001 UN Doc A/56/44; CAT, ‘UN Committee Against Torture: Conclusions and Recommendations of the Committee against Torture, Bosnia and Herzegovina’ 15 December 2005 UN Doc CAT/C/BIH/CO/1.