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FAIR HEARING: AN INDISPENSABLE ELEMENT OF JUSTICE

CHAPTER ONE

INTRODUCTION

1.1     Background to Study

Every person has the right to a fair trial both in civil and in criminal cases, and the effective protection of all human rights very much depends on the practical availability at all times of access to competent, independent and impartial courts of law which can, and will, administer justice fairly. Add to this the professions of prosecutors and lawyers, each of whom, in his or her own field of competence, is instrumental in making the right to a fair trial a reality, and we have the legal pillar of a democratic society respectful of the rule of law.

However, an independent and impartial Judiciary capable of ensuring fair trial proceedings is not only of importance to the rights and interests of human beings, but is likewise essential to other legal persons, including economic entities, whether smaller enterprises or large corporations, which often depend on courts of law, inter alia, to regulate disputes of various kinds. For instance, domestic and foreign enterprises will be reluctant to invest in countries where the courts are not perceived as administering justice impartially. Furthermore, it is beyond doubt that in countries where aggrieved persons or other legal entities can have free access to the courts in order to claim their rights, social tension can more easily be managed and the temptation to take the law into one’s own hands is more remote. By contributing in this way to defusing social tensions, the courts of law will contribute to enhancing security not only at the national but also at the international level, since internal tensions often have a dangerous spillover effect across borders.

Yet a glance at the jurisprudence of the international monitoring organs makes it clear that the right to a fair trial is frequently violated in all parts of the world. Indeed, the vast majority of cases dealt with by the Human Rights Committee under the Optional Protocol, for instance, concern alleged violations of pre-trial or trial rights. In what follows, a brief survey of the most relevant aspects of the international jurisprudence will accompany the description of the relevant legal rules.

 

1.2     Statement of Problem

The right to equality before the law and equal treatment by the law, or, in other words, the principle of non-discrimination, conditions the interpretation and application not only of human rights law stricto sensu, but also of international humanitarian law.[1] According to article 26 of the International Covenant on Civil and Political Rights, for instance, “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”. Similar provisions are contained in article 3 of the African Charter on Human and Peoples’ Rights and article 24 of the American Convention on Human Rights. Further, article 20(1) of the Statute of the International Criminal Tribunal for Rwanda and article 21(1) of the Statute of the International Criminal Tribunal for the former Yugoslavia provide that “all persons shall be equal before” these Tribunals.

On the other hand, the principle of equality or the prohibition of discrimination does not mean that all distinctions are forbidden, and in this respect the Human Rights Committee has held that differential treatment between people or groups of people “must be based on reasonable and objective criteria”.[2][3] However, further details as to the interpretation of the principle of equality and the prohibition of discrimination will be provided in Chapter 13 below.

The specific right to equality before the courts is a fundamental principle underlying the right to a fair trial, and can be found expressis verbis in article 14(1) of the International Covenant on Civil and Political Rights, according to which “all persons shall be equal before the courts and tribunals”.[4] Although not contained in the corresponding articles on fair trial in the regional conventions, the right to equality before the courts is comprised by the general principle of equality protected thereby.

The principle of equality before the courts means in the first place that, regardless of one’s gender, race, origin or financial status, for instance, every person appearing before a court has the right not to be discriminated against either in the course of the proceedings or in the way the law is applied to the person concerned. Further, whether individuals are suspected of a minor offence or a serious crime, the rights have to be equally secured to everyone. Therefore, this research study on fair hearing; an indispensable element of justice.

 

1.3     Research Objectives

The broad objective of this research work is to analyze the concept of fair hearing as an indispensable element of justice. The specific objectives are to;

  1. determine an individual’s pre-trial rights
  2. determine the hearing processes involved in ensuring justice
  3. determine post-trial rights of an individual in the concept of fair hearing
  4. evaluate the trial observation procedures and international standards for ensuring justice

 

1.4     Research Questions

The following research questions were formulated based on the research objectives;

  1. What are the individual’s pre-trial rights involved in fair hearing process?
  2. What is the hearing processes involved in ensuring justice?
  3. determine post-trial rights of an individual in the concept of fair hearing
  4. evaluate the trial observation procedures and international standards for ensuring justice

 

1.5     Research Methodology

Materials are sourced from both primary and secondary sources. The primary sources include the Constitution of the Federal Republic of Nigeria, 1999, some other statutory enactments and case laws; while the secondary sources include textbooks, articles from learned journals, internet materials and other relevant materials necessary to enhance credibility of this study. Therefore, the study is essentially a library based (doctrinal) research

 

1.6     Literature Review

Fair hearing is a universal concept and it is an age-long principle recognized by even God Himself. It is a principle which posits that every man is entitled to be heard in any cause or matter before any decision is made against him and that no man should be a judge in his own cause. This rule must be applied by courts, tribunals and by any person who has the power to adjudicate on any matter affecting the rights and obligations of any individual. It is recognized by international bodies and Constitutions of many countries. The principles enshrined in section 36 of the 1999 Constitution of the Federal Republic of Nigeria represents an indispensable cornerstone of the well settled rules of natural justice, which must be observed in every determination affecting the rights and obligations of a person. These rules must however not be trampled upon by an adjudicator. The breach of it nullifies the whole proceedings. The right to fair hearing cannot be ousted by any law, it is the only fundamental or constitutional right that cannot be denied by law, even in the worst of times.

The right to be presumed innocent until proved guilty is another principle that conditions the treatment to which an accused person is subjected throughout the period of criminal investigations and trial proceedings, up to and including the end of the final appeal. Article 14(2) of the International Covenant on Civil and Political Rights provides that “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”. Article 7(1)(b) of the African Charter on Human and Peoples’ Rights, article 8(2) of the American Convention on Human Rights and article 6(2) of the European Convention on Human

Rights all also guarantee the right to presumption of innocence, and article 11(1) of the Universal Declaration of Human Rights safeguards the same right for everyone “charged with a penal offence … until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. More recently, the principle of presumption of innocence has in particular been included in article 20(3) of the Statute of the International Criminal Tribunal for Rwanda, article 21(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia, and in article 66(1) of the Statute of the International Criminal Court.

As noted by the Human Rights Committee in General Comment No. 13, the principle of presumption of innocence means that

“the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial”.[5]

In the case of Gridin, the authorities failed to exercise the restraint that article 14(2) of the International Covenant requires in order to preserve the accused person’s presumption of innocence. The author had inter alia alleged that high-ranking law enforcement officials had made public statements portraying him as guilty of rapes and murders and that these statements had been given wide media coverage. The Committee noted that the Supreme Court had “referred to this issue, but failed to specifically deal with it when it heard the author’s appeal”.[6] Consequently, there was a violation of article 14(2) in this case.

The right to be presumed innocent guaranteed in article 14(2) of the Covenant was also violated in the case of Polay Campos, where the victim was tried by a special tribunal of “faceless judges” who were anonymous and did not constitute an independent and impartial court.[7]

The right to be presumed innocent as guaranteed by article 14(2) of the International Covenant was not violated in a case where the author had complained that the trial judge’s refusal to change its venue deprived him of his right to a fair trial and his right to be presumed innocent. The Committee noted that his request had been “examined in detail by the judge at the start of the trial” and that the judge had pointed out “that the author’s fears related to expressions of hostility towards him which well preceded the trial, and that the author was the only one, out of five co-accused, to have requested a change in venue”.[8] She then listened to the parties’ submissions, “satisfied herself that the jurors had been selected properly”, and thereafter “exercised her discretion and allowed the trial to proceed” without changing the venue.[9] In these circumstances the Committee did not consider that the decision not to change the venue violated the author’s right to a fair trial or the right to presumption of innocence. It held, in particular, that “an element of discretion is necessary in decisions such as the judge’s on the venue issue, and barring any evidence of arbitrariness or manifest inequity of the decision”, it was “not in a position to substitute its findings for those of the trial judge”.[10]

“The right to be presumed innocent until proved guilty by a competent court or tribunal” under article 7(1)(b) of the African Charter on Human and Peoples’ Rights was violated in a case where leading representatives of the Nigerian Government had pronounced the accused persons guilty of crimes during various press conferences as well as before the United Nations. The accused were subsequently all convicted and executed following a trial before a court that was not independent as required by article 26 of the Charter.[11]

The right to presumption of innocence in article 6(2) of the European Convention on Human Rights has been held to constitute “one of the elements of a fair criminal trial that is required by paragraph 1” of that article, and is a right which, like other rights contained in the Convention, “must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory”.[12]

The presumption of innocence will thus be violated, for instance, “if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law”, and it is sufficient, “even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty”.[13][14]

The European Court has held that article 6(2) “does not confer on a person ‘charged with a criminal offence’ a right to reimbursement of his legal costs where proceedings taken against him are discontinued”, but that a decision to refuse ordering the reimbursement to the former accused of his necessary costs and expenses following the discontinuation of criminal proceedings against him “may raise an issue under article 6 § 2 if supporting reasoning, which cannot be dissociated from the operative provisions, amounts in substance to a determination of the guilt of the former accused without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence”.[15]

The Court thus found a violation of article 6(2) of the European Convention in the Minelli case, where the Chamber of the Assize Court of the Canton of Zürich, in deciding the costs occasioned by a private prosecution, had concluded that, in the absence of statutory limitation, the applicant would “very probably” have been convicted of defamation on the basis of a published article which contained accusations of fraud against a particular company.[16] In the view of the European Court, “the Chamber of the Assize Court showed that it was satisfied of the guilt of” the applicant, who “had not had the benefit of the guarantees contained in” article 6(1) and (3); the Chamber’s appraisals were thus “incompatible with respect fo the presumption of innocence”.[17] It did not help in this respect that the Federal Court had “added certain nuances” to the aforementioned decision, since it was “confined to clarifying the reasons for that decision, without altering their meaning or scope”. By rejecting the applicant’s appeal, the Federal Court confirmed the decision of the Chamber in law and simultaneously “approved the substance of the decision on the essential points”.[18]

The outcome was however different in the case of Leutscher, where the applicant had been convicted in absentia of several counts of tax offences but where, on appeal, the prosecution was considered time-barred by the Court. In response to the applicant’s request for reimbursement of various costs and fees, the Court of Appeal noted with regard to the counsel’s fees that there was nothing in the file that gave “any cause to doubt that this conviction was correct”.[19] However, the European Court of Human Rights concluded that article 6(2) had not been violated by these facts: the Court of Appeal had a “wide measure of discretion” to decide, on the basis of equity, whether the applicant’s costs should be paid out of public funds, and, in doing so, it was “entitled to take into account the suspicion which still weighed against the applicant as a result of the fact that his conviction had been quashed on appeal only because the prosecution was found to have been time-barred when the case was brought to trial”.[20]In the view of the Court, the disputed statement could not be construed as a reassessment of the applicant’s guilt.[21]

[1] See e.g. articles 1, 2 and 7 of the Universal Declaration of Human Rights; articles 2(1), (3), 4(1) and 26 of the International

Covenant on Civil and Political Rights; article 2(2) of the International Covenant on Economic, Social and Cultural Rights; articles 2,

[2] , 18(3) and 28 of the African Charter on Human and Peoples’ Rights; articles 1, 24 and 27(1) of the American Convention on

Human Rights; article 14 of the European Convention on Human Rights; articles 2 and 15 of the 1979 Convention on the

Elimination of All Forms of Discrimination against Women; article 2 of the 1989 Convention on the Rights of the Child; and the 1966 International Convention on the Elimination of All Forms of Racial Discrimination. Of the four 1949 Geneva Conventions, see e.g. articles 3 and 27 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War; articles 9(1) and 75(1) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I); and articles 2(1) and 4(1) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

[3] Communication No. 694/1996, Waldman v. Canada (Views adopted on 3 November 1999), in UN doc. GAOR, A/55/40

(vol. II), pp. 97-98, para. 10.6.

[4] See also article 5(a) of the 1966 International Convention on the Elimination of All Forms of Racial Discrimination, which provides for “the right to equal treatment before the tribunals and all other organs administering justice”; article 21(1) of the Statute of the International Criminal Tribunal for the former Yugoslavia, according to which “all persons shall be equal before the International Tribunal”; article 21(1)of the Statute of the International Criminal Tribunal for Rwanda; and article 67(1) of the Statute of the International Criminal Court.

[5] General Comment No. 13 (Article 14), in UN Compilation of General Comments, p. 124, para. 7.

[6] Communication No. 770/1997, Gridin v. Russian Federation (Views adopted on 20 July 2000), UN doc. GAOR, A/55/40 (vol. II), p. 176, para. 8.3.

[7] Communication No. 577/1994, R. Espinosa de Polay v. Peru (Views adopted on 6 November 1997), UN doc. GAOR, A/53/40 (vol. II), p. 43, para. 8.8.

[8] Communication No. 591/1994, I. Chung v. Jamaica (Views adopted on 9 April 1998), UN doc. GAOR, A/53/40 (vol. II), p. 61, para. 8.3.

[9] Ibid., loc. cit.

[10] Ibid.

[11] ACHPR, International Pen and Others (on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisations) v. Nigeria, Communications Nos. 137/94, 139/94, 154/96 and 161/97, decision adopted on 31 October 1998, paras. 94-96 of the text of the decision as published at the following web site: http://www1.umn.edu/humanrts/africa/comcases/137-94_139-94_154-96_161-97.html.

[12] Eur. Court HR, Case of Allenet de Ribemont v. France, judgment of 10 February 1995, Series A, No. 308, p. 16, para. 35; emphasis added.

[13] Ibid., loc. cit.

[14] Ibid., p. 16, para. 36. 18Ibid., p. 17, para. 41.

[15] Eur. Court HR, Case of Leutscher v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 436, para. 29.

[16] Eur. Court HR, Minelli Case v. Switzerland, judgment of 25 March 1983, Series A, No. 62, p. 18, para. 38.

[17] Ibid., loc. cit.

[18] Ibid., p. 19, para. 40.

[19] Ibid., p. 432, para. 14.

[20] Ibid., p. 436, para. 31.

[21] Ibid., loc. cit.

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