FAIR TRIAL & PUBLIC HEARING

INDIVIDUAL’S RIGHT TO A

FAIR TRIAL & PUBLIC HEARING

-GUARANTEED BY LAW.

1. INTRODUCTION

The right to a fair trial is a norm of international human rights law, designed to protect individuals from-

• the unlawful and
• arbitrary curtailment or
• deprivation of other basic rights and freedoms,

The most prominent of which are –

• The right to life and
• liberty of the person.

It is guaranteed under Article 35 (3) of The Constitution of the People’s Republic Of Bangladesh, which provides that-

“Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.”

2. AREA BASIS APPLICATION OF FAIR TRIAL

a) CRIMINAL PROCEEDINGS

The Commission and Court have developed criteria for deciding whether an act is a criminal offence for the purposes of the Convention. The primary criteria are:

• Domestic classification,
• Nature of the offence,
• And severity of the penalty incurred

b) CIVIL PROCEEDINGS

The right to a fair trial also applies to an individual in the determination of his civil rights and obligations. In many respects, this is a wide phrase: issues arising in –

• contract,
• commercial law,
• insurance law,
• succession,
• family law and
• real and personal property

-are generally regarded as matters to which right to fair trial applies.

3. THE MAIN THEME: RIGHT TO A FAIR TRIAL

a)  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a-

1. • fair and public hearing
   • within a reasonable time
   • By an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where pub/icily would prejudice the interests of justice.

b) There are further rights in criminal proceedings. These include:

• The rights to be presumed innocent until you have been proved to be guilty.
• The right to be informed at a very early stage what the accusation against you is.
• The right not to be forced to answer questions, although the court may be able to draw conclusions from your failure to answer questions.
• The right to adequate time to prepare your defense.
• The right to have legal aid for a lawyer if you cannot afford one and it is in the interests of justice for you to have one.
• The right to be present at your trial.
• The right to put your side of the case at your trial.
• The right to question the main witnesses against you and to call witnesses of your own the right to an interpreter if you need one.

4. STAGES OF FAIR TRIAL

There are three stages for the right to have a fair trial. These are as follows:

a) PRE-TRIAL RIGHTS

• The prohibition on arbitrary arrest and detention: (The Government continued to arrest and detain persons arbitrarily, and to use the Special Powers Act (SPA) and Section 54 of the Code of Criminal Procedure, which allow for arbitrary arrest and preventive detention. The Public Safety Act (PSA), enacted in early 2000, gives the police even greater opportunity to abuse their powers)
• The right to know the reasons for arrest : (The Government continued to arrest and to detain persons arbitrarily, as well as to use national security legislation (the Special Powers Act (SPA) and Public Safety Act (PSA)) to detain citizens without formal charges or specific complaints being filed against them. The Constitution states that each person arrested shall be informed of the grounds for detention, provided access to a lawyer of his choice, brought before a magistrate within 24 hours, and freed unless the magistrate authorizes continued detention. However, the Constitution specifically allows preventive detention, with specified safeguards, outside these requirements)
• The right to legal counsel
• The right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention the right of anyone deprived of liberty by arrest or detention to- “Take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” (The Constitution states that each person arrested shall be informed of the grounds for detention, provided access to a lawyer of his choice, brought before a magistrate within 24 hours, and freed unless the magistrate authorizes continued detention. However, the Constitution specifically allows preventive detention, with specified safeguards, outside these requirements)

• The prohibition of torture and the right to humane conditions during pretrial detention : Constitution Art 32 (5) No person shall  be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
• The prohibition on incommunicado detention

b) THE HEARING

It specifically provides for equality before the courts and for the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, regardless of whether a criminal trial or a suit at law is involved.

i. Equal access to, and equality before, the courts

• This, on the one hand, means that establishing separate courts for different groups of people based on their race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status would be a contravention of right to a fair trial.
• On the other hand, the establishment of certain types of special courts with jurisdiction over all persons belonging to the same category, such as military personnel, remains a thorny issue.

The second sentence of the main theme of fair trial relates to the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. It includes –

• The basic components of due process of law which is, in criminal cases, further supplemented by the other provisions of right to a fair trial.

ii. The right to a fair hearing

The single most important criterion in evaluating the fairness of a trial is the observance of the principle of equality of arms between the defense and the prosecution.

• Equality of arms, which must be observed throughout the trial, means that both parties are treated in a manner ensuring their procedurally equal position during the course of a trial.
• It would be difficult to identify in advance all of the situations that could constitute violations of this principle. They might range from denying the accused and/or counsel time to prepare a Defense to excluding the accused and/or counsel from an appellate hearing when the prosecutor is present.

iii. The right to a public hearing

• The right to a public hearing means that the hearing should as a rule is conducted orally and publicly, without a specific request by the parties to that effect.
• The court or tribunal is, inter alia, obliged to make information about the time and venue of the public hearing available and to provide adequate facilities for attendance by interested members of the public, within reasonable limits.
• The public, including the press, may be excluded from all or part of a trial for the reasons specified earlier.
• But such exclusion must be based on a decision of the court rendered in keeping with the respective rules of procedure.
• The public may be excluded for reasons of “morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires.”

Although fair trial requires a public hearing, it provides for circumstances where the press and public may be excluded from the proceedings. These include situations-

• where the interests of morals, public order or national security may be compromised;
• where the interests of juveniles or the protection of the private life of the parties requires; or in situations
• Where publicity could prejudice the interests of justice.

The possible exceptions from publicity are thus defined more narrowly and precisely.

• A judgment is considered to have been made public either when it was orally pronounced in court or when it was published, or when it was made public by a combination of those methods.
• In any event, its accessibility to all is the determining factor. The judgment must provide reasons sufficient to permit the accused to lodge an appeal, 59 and must be delivered within a reasonable time of the hearing

iv. The right to a competent, independent and impartial tribunal established by law

The basic institutional framework enabling the enjoyment of the right to a fair trial is that proceedings in any criminal case (or in a suit at law) are to be conducted by a competent, independent and impartial tribunal established by law

• The rationale of this provision is to avoid the arbitrariness and/or bias that would potentially arise if criminal charges were to be decided on by a political body or an administrative agency.
• A tribunal should be competent and established by law.
• Both of these attributes are in fact aspects of the same requirement: while competence refers to the appropriate personal, subject-matter, territorial or temporal jurisdiction of a court in a given case, the court as such, including the delineation of its competence, must have been established by law.
• The important feature is that the law must be accessible to all who are subject to it. The general aim of this provision is to assure that criminal charges are heard by a court set up in advance and independently of a particular case—and not prior to and specifically for the offense involved.
• In order to be independent, a tribunal must have been established by law to perform adjudicative functions, i.e. to determine matters within its competence on the basis of rules of law (substantive) and in accordance with proceedings conducted in a prescribed manner
• (Procedural).
• It is also open to suspicion when the judge has an evidently preformed opinion that could weigh in on the decision-making or when there are other reasons giving rise to concern about his/her impartiality.

v. The right to a presumption of innocence

• According to the ICCPR “Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law.”
• As a basic component of the right to a fair trial, the presumption of innocence, inter alia, means that the burden of proof in a criminal trial lies on the prosecution and that the accused has the benefit of the doubt.

vi. The right to prompt notice of the nature and cause of criminal charges

In the determination of any criminal charge against him/her everyone shall be entitled, in full equality “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.”

• When information may be deemed to have been “promptly” supplied, has not been uniformly interpreted, but has generally been taken to coincide with the “lodging of the charge or directly thereafter, with the opening of the preliminary judicial investigation or with the setting of some other hearing that gives rise to clear official suspicion against a specific person.”
• The information must also be provided to the accused in a language which s/he understands, meaning that translation is mandated and that its form, oral or written, will depend on the manner in which the “charge” is initially conveyed. An indictment must, obviously, be translated in writing

vii. The right to adequate time and facilities for the preparation of a defense

The principle of fair trial provides that in the determination of any criminal charge against him or her everyone is entitled-

“To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.”

The right to adequate time and facilities for the preparation of a defense applies not only to the defendant but to his or her defense counsel as well and is to be observed in all stages of the proceedings.

What constitutes “adequate” time will depend on-

• the nature of the proceedings and
• The factual circumstances of a case.

Factors to be taken into account include

• the complexity of a case,
• the defendant’s access to evidence,
• the time limits provided for in domestic law for certain actions in the proceedings,

An individual’s right to communicate with counsel of his or her own choosing, is the most important element

Of the right to adequate facilities for the preparation of a defense

viii. The right to a trial without undue delay

In the determination of any criminal charge against him/her, everyone shall be entitled-

“To be tried without undue delay”

This provision has been interpreted to signify the right to a trial that produces a final judgment and, if appropriate, a sentence without undue delay.

• The time limit “begins to run when the suspect (accused, defendant) is informed that the authorities are taking specific steps to prosecute him.”
• The assessment of what may be considered undue delay will depend on the circumstances of a case, i.e. its complexity, the conduct of the parties, whether the accused is in detention, etc.
• The right is, however, not contingent on a request by the accused to be tried without undue delay.

Note that a person who is in pre-trial detention may be entitled to release prior to the commencement of the trial even if there has not been undue delay.

Bangladesh: One human rights organization asserted that the average time in detention before either conviction or acquittal is in the range of 4 to 7 years. Reportedly some prisoners awaiting trial have been in prison longer than the maximum sentence they would receive if convicted. A bank officer from Chittagong who spent 15 years in prison awaiting trial on corruption charges was finally released. If convicted, his maximum sentence would have been no more than 10 years.

ix. The right to defend oneself in person or through legal counsel

The right to counsel in the pre-trial stages of a criminal trial, as discussed earlier in this paper, is clearly linked to the right to a defense during trial as set out in the Constitution.

The provision states that everyone shall be entitled, in the determination of any criminal charge against him/her-

“To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

This provision includes the following specific rights:

• The right to be tried in one’s presence. This is one of the more controversial rights in terms of its interpretation. A literal reading would not permit trials in absentia, which is a view consistently held by most international human rights NGOs and, more recently, supported by the Statute of the International Criminal Court. However, according to the HRC, trials in absentia are permissible in certain circumstances if the state makes-“Sufficient efforts with a view to informing the [accused] about the impending court proceedings, thus enabling him to prepare his defense.
• To defend oneself in person;
• To choose one’s own counsel;
• To be informed of the right to counsel; and
• To receive free legal assistance.

x. The right to examine witnesses

In the determination of any criminal charge against him/her, everyone is entitled –

“To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”

• However, in no case may a witness be examined in the absence of both the defendant and counsel. Similarly, the use of the testimony of anonymous witnesses at trial is considered impermissible, as it would represent a violation of the defendant’s right to examine or have examined witnesses against him/her

xi. The right to an interpreter

In the determination of any criminal charge against him/her everyone is entitled-

“To have the free assistance of an interpreter if he cannot understand or speak the language used in court”

• The main issue raised by this provision is what interpretation should be given to the words “used in court.” While the phrase could obviously be said to refer to oral proceedings, the right to translation of written documents is not expressly provided for.
• Both in scholarly writings and in the practice of human rights bodies, however, the view has consistently been held that the right to an interpreter includes the translation of all the relevant documents.
• When granted, the right to the assistance of an interpreter is free and can in no way be restricted by seeking payment from the defendant upon conviction.

xii. The prohibition on self-incrimination In the determination of any criminal charge against him/her, everyone is entitled –

“Not to be compelled to testify against himself or to confess guilt”

xiii. The prohibition on retroactive application of criminal laws

It expresses the principle of legality, according to which-

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”

• In the narrow sense, it is aimed at prohibiting the retroactive application of substantive criminal law and thus chronologically precedes a determination of the procedural fairness of a trial.

xiv. The prohibition on double jeopardy

“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”

• The issue here is what the relevant jurisdiction is.
• According to some interpretations, including that of the HRC, double jeopardy applies only to prohibit a subsequent trial for the same offense within the jurisdiction of one state, but is not valid with regard to the national jurisdiction of two or more states. On the other hand, some hold the view that this is “too general and too absolute.”

c) POST-TRIAL RIGHTS

i. The right to appeal

“Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”

• The right to appeal is aimed at ensuring at least two levels of judicial scrutiny of a case, the second of which must take place before a higher tribunal. The review undertaken by such a tribunal must be genuine.
• This, among other things, means that appeal proceedings confined only to a scrutiny of issues of law raised by a first instance judgment might not always meet that criterion.
• Appeal proceedings must also be timely.

The guarantees of a fair trial must be observed in all appellate proceedings.

On November 5, 2006, Saddam Hussein was sentenced to death by hanging, for the killing of 148 Shiites from Dujail, in retaliation for the failed assassination attempt of 8 July 1982. An appeal, mandated by the Iraqi judicial system, followed. There was speculation that the appeals could last years, postponing his actual execution. However, on December 26, Saddam’s appeal was rejected and the death sentence was given. No further appeals are possible and Saddam must be executed within 30 days of that date. This decision must still be ratified by the Iraqi President but cannot be commuted.  Judge Arif Shaheen, one of the nine appeal judges, said “It cannot exceed 30 days,” he said. “As from tomorrow the sentence could be carried out at any time. The appeals court has issued its verdict. What we have decided today is compulsory.” On December 30, 2006 at approximately 6:05 A.M. Baghdad time, Saddam Hussein’s sentence was carried out and he was executed by hanging.

ii. The right to compensation for miscarriage of justice

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him”

• It should be noted that compensation for miscarriage of justice may be granted only after a conviction has become final and that the claim may be brought regardless of the severity of the offense involved. There are three additional conditions that must be cumulatively met:

• A miscarriage of justice must have been subsequently officially acknowledged by a reversal of the conviction or by pardon;
• The delayed disclosure of the pertinent fact(s) must not be attributable to the convicted person, and
• The convicted person must have suffered punishment as a result of the miscarriage of justice. The phrase “according to law” does not mean that states can ignore the right to compensation by simply not providing for it, but rather that they are obliged to grant compensation pursuant to a mechanism provided for by law.

CONCLUSION

The challenge for all lawyers of fair trial in the years to come — in Bangladesh and elsewhere – is to—

‘Find ways to combine the best features of the Common Law and Civil Law models of criminal justice. Such procedural hybrids already exist in certain countries.’

• As the world grows smaller and more inter-connected, the convergence and hybridization of legal systems will undoubtedly accelerate. In the process, there is reason to hope that the quality and fairness of criminal procedures will continue to improve.

• Other important factors to spread the consciousness among general citizens about fair trial include –

• • • a tradition of politically independent judges
    • strong traditions of freedom of press and travel; and
    • a wide-spread “rights consciousness” (awareness of legal rights, and a willingness to assert them) among the citizenry.
    • Such consciousness has been fostered by public education on historical and contemporary civil rights issues, and by frequent treatment of law and justice issues in literature, movies, television, and other mass media.

It’s for sure that, in the determination of any civil right or obligation-

The right to a fair trial is the key feature of a democratic society

Bangladesh: Denial of Fair Public Trial

1. Independent judiciary

A tradition of politically independent judges

The higher levels of the judiciary display a significant degree of independence and often rule against the Government in

q      criminal,

q      civil, and even

q      politically controversial cases;

However, lower level courts are more susceptible to pressure from the executive branch. There also is corruption within the legal process, especially at lower levels.

2. The access of Justice

Legal Aid

Free Representation Unit

Charging reasonable fees for legal advice

Sometimes detainees and suspects on police remand are denied access to legal counsel.

3.Backlog of cases

A major problem of the court system is the overwhelming backlog of cases, and trials underway typically are marked by extended continuances while many accused persons remain in prison

4. Corruption in the judicial process

According to one independent survey conducted by Transparency International Bangladesh, more than 60 percent of the persons involved in court cases paid bribes to court officials.

Country Reports on Human Rights Practices – 2001
Released by the Bureau of Democracy, Human Rights, and Labor. March 4, 2002

1. Independent judiciary

The Constitution provides for an independent judiciary; however, under a longstanding “temporary” provision of the Constitution, the lower courts remain part of the executive and are subject to its influence.

The higher levels of the judiciary display a significant degree of independence and often rule against the Government in

1. criminal,
2. civil, and even
3. politically controversial cases;

However, lower level courts are more susceptible to pressure from the executive branch. There also is corruption within the legal process, especially at lower levels.

Example

In September 2000, Nurul Islam, the BNP Organizing Secretary for Laxmipur district, was abducted from his home during the night. A case was filed against Abu Taher, the Awami League Laxmipur District General Secretary, two of his sons, and 12 others. For 11 months, police did not arrest Taher or his sons, the main defendants in the case. Three weeks after the non-partisan caretaker Government came to power in July, police arrested one of Taher’s accused sons and another son. The court subsequently demanded that Taher turn himself in, which he did.

2. The court system in Bangladesh

The court system has two levels:

1. The lower courts and
2. The Supreme Court.

Both hear civil and criminal cases.

The Supreme Court is divided into two sections,

1. The High Court and- The High Court hears original cases and reviews cases from the lower courts. Rulings of the Appellate Court are binding on all other courts.
2. The Appellate Court. The Appellate Court has jurisdiction to hear appeals of judgments, decrees, orders, or sentences of the High Court.

However, sometimes detainees and suspects on police remand are denied access to legal counsel.

Trials conducted under the SPA, the PSA, and the Women and Children Repression Prevention Act are similar to normal trials, but are tried without the lengthy adjournments typical in other cases. Under the provisions of the PSA and the Women and Children Repression Prevention Act, special tribunals hear cases and issue verdicts. Cases under these laws must be investigated and tried within specific time limits, although the law is unclear as to the disposition of the case if it is not finished before the time limit elapses.

Persons may be tried in absentia, although this rarely is done. Thirteen of the 21 persons accused in the 1975 “jail killing” case are being tried in absentia, and 8 of those convicted of killing Sheikh Mujibur Rahman and 21 members of his family were convicted in absentia in 1998.

• There is no automatic right to a retrial if a person convicted in absentia later returns.
• Absent defendants may be represented by state-appointed counsel, but may not choose their own attorneys, and, if convicted, may not file appeals until they return to the country.

3. Backlog of cases

A major problem of the court system is the overwhelming backlog of cases, and trials underway typically are marked by extended continuances while many accused persons remain in prison

Example:

Case

On August 22, Idris Ali was released after serving 5 years in prison in a case of mistaken identity. The High Court ordered his release on three separate occasions, but the orders did not reach the jail authorities. Idris’ lawyer stated that “without paying a bribe at each and every level, no document reaches its destination in the judicial system. Even if the documents reach their destination, the victims do not get released without paying bribes.” Finally the High Court delivered Idris’ release order via private courier, and he was released. Because of the difficulty in accessing the courts and because litigation is time consuming, alternative dispute resolution by traditional village leaders, which is regarded by some persons to be more transparent and swift, is popular in rural communities. However, these mechanisms also can be subject to abuse.

4. Corruption in the judicial process

According to one independent survey conducted by Transparency International Bangladesh, more than 60 percent of the persons involved in court cases paid bribes to court officials.

Example

Case 1

In March 1999, four police officers were charged with manslaughter after a body was found in the rooftop water tank of the Detective Branch in Dhaka. In January this year, the victim’s wife told reporters that the public prosecutor in the case told her to keep away from the court. Witnesses had not appeared on 17 prior hearing dates. Later, the victim’s wife told reporters that the lawyer and the brother of the main defendant accused offered her approximately $18,500 (1,000,000 taka) to change her story. The trial began on March 12 after the Law Ministry appointed a new public prosecutor following a High Court order. At year’s end, the case was ongoing.

Case 2

In one Dhaka constituency, Awami League M.P. Haji Selim has set up his own “alternate judicial system.” Selim issues notices and brings alleged criminals to his home, where he has established his own “court” and appointed five “judges.” If the accused does not surrender, Selim’s men seal his house, often with family members inside. In a June 14 newspaper interview, Selim proclaimed his success in addressing the law and order situation, stating that, “It takes iron to cut iron.” Selim admits to publicly ordering his men to beat terrorists, extortionists, and muggers to death. He states that he wants “at least one dead body per year…[he does] not understand human rights.” Selim claims that on some occasions, after his men have beaten up violent criminals, the criminals have returned and he has engaged them in productive employment. Selim lost his seat in the October 1 election.