Fair Trials Manual

This manual is a guide to the international and regional standards which protect the right to a fair trial. It is intended for the use of trial observers and others assessing the fairness of an individual case. It will also assist in evaluating whether a country's criminal justice system guarantees respect for international standards of fair trial.

The manual covers pre-trial rights, rights at trial and during appeals, and special cases including death penalty trials, cases involving children and fair trial rights during armed conflict.

A. PRE-TRIAL RIGHTS

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

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

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

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?

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?

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

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?

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

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

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

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

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

13. The right to a fair hearing
13.1. The right to a fair hearing
13.2. 'Equality of arms'

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30. The right to compensation for miscarriages of justice
30.1. The right to compensation for miscarriages of justice
30.2. Miscarriages of justice

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

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

Fair Trials Manual

Table of Contents