Right to a Fair Trial

Everyone has the right to a fair trial, which applies to both civil and criminal proceedings. Children also have the right to be heard in any judicial and administrative cases affecting them, either directly or through a representative. It is a procedural right in that fairness is measured by the consistent and fair application of procedural rules in accordance with international human rights laws, rather than by the result of the proceedings. The right to legal aid in criminal cases is contained within the right to a fair trial.

The right to a fair trial consists of a number of rules and standards that must be met. In criminal cases, there are an additional number of rights that interact with the right to a fair trial, such as the right not to be tried for the same crime again if the defendant has already been finally convicted or acquitted, the right to appeal and the right to compensation for a miscarriage of justice. The following rights are considered to be absolute and cannot be restricted in any way:

Competent, independent and impartial court or tribunal

This requirement is absolute and not subject to any exceptions. Tribunals should be established in national law, be accessible and the decisions foreseeable in that case-law should be consistently applied. Judges must not have any personal interest in the cases and offer the parties procedural guarantees. 

Within a reasonable time

There is no predetermined period of time that applies, as each case will differ. The following factors impact on what is regarded as reasonable: national legislation; the seriousness of the case for the parties; the complexity of the case; the conduct of the accused or the parties to the dispute; and the conduct of the authorities.

Fair and public hearing

All parties should have the equal opportunity to present their case. This may be dependent of other rights, in particular the principle of equality of arms. Oral hearings should be open to the public and media and judgments should be made public. Exceptions can be made for the purposes of public morals, public order, national security or for the protection of children or privacy of individuals.

Equality of arms

Both parties must be able to present their case and treated in a manner that ensures, procedurally, they are on a level playing field throughout the entire proceeding.
In criminal cases, the principle of equality of arms is paramount for the right of defendants to defend themselves and includes:

  1. the right to be informed promptly and in detail, in a language which they understand, of the nature and cause of the charge;
  2. the right to adequate time and facilities to prepare the defence;
  3. the right to legal assistance of their own choice, free of cost if they are unable to cover the costs themselves;
  4. the right to necessary information to prepare the defence;
  5. the right of access to expert witnesses;
  6. the right to have the free assistance of an interpreter if they cannot understand or speak the language used in court.
No punishment without law

No individual can be charged with or punished for an action that is not prohibited in law. Even if a criminal offence is passed into law at a later point, individuals cannot be charged with, punished or given a higher sentence for their crime. This principle of legality further requires that criminal laws are sufficiently clear and precise so as to enable individuals to ascertain which conduct constitutes a criminal offence and to foresee what the consequences of their actions may be.

Presumption of innocence

All defendants have the right to be presumed innocent until proven guilty in court of law. This means that rules of evidence and standards around the conduct of a trial apply and public authorities should not make statements about the guilt or innocence of a defendant. This element of the overall right to a fair trial is absolute.