Condensed: An accused must be permitted a fair and reasonable amount of time and all the means necessary to prepare and defend his or her case. What amounts to adequate time to prepare for the defence depends on the circumstances of each case. The accused person, or his or her counsel, must request more time to prepare for the trial or adjournments during trial if needed to prepare the defence. Courts are obliged to grant reasonable requests for adjournments. Accelerated proceedings do not violate the right to adequate time to prepare defence if requests for adjournment are allowed in law and practice. Facilities include among others (a) prompt access to counsel, (b) access to all materials and exculpatory documentation to be used during trial including extenuating and aggravating evidence in the possession of the state, (c) confidential consultations between accused and counsel, and (d) free assistance of an interpreter. This right applies to all stages of trial. Comprehensive Article 14(3)(b) of the ICCPR provides inter alia that everyone charged with a criminal offence shall ‘have adequate time and facilities for the preparation of his defence’. Regional human rights treaties include similar provisions.[1] This right applies to all stages of the trial including appeal proceedings.[2] What amounts to adequate time to prepare for the defence depends on the circumstances of each case. Adequate time should be 'appropriate to the nature of the proceedings and the factual circumstances of each case'.[6] The HRC has noted that article 14(3)(b) ‘is an important element of the guarantee of a fair trial and an application of the principle of equality of arms’.[7] The accused person, or his or her counsel, must request more time to prepare for the trial or adjournments during trial if needed to prepare the defence.[3] Courts are obliged to grant reasonable requests for adjournments.[4] In Avocats Sans Frontieres (on behalf of Bwampamye) v Burundi, the counsel of the defendant, who faced death penalty if convicted, was not in attendance due to illness. The defendant was refused adjournment to secure the attendance of his counsel or another lawyer. The African Commission held that such conduct violated the right to a fair trial.[5] Adequate facilities to prepare for defence include prompt access to counsel at all stages, even during pre-trial proceedings.[8] State authorities are required to guarantee confidential consultations between accused and counsel.[9] (Cf.*defence counsel of choice/right to defend oneself*; *legal aid when the interests of justice so require*). The HRC noted in Reid v Jamaica:[10]
it is uncontested that the legal aid lawyer who represented the author at the preliminary inquiry was not present at all the hearings and that the author met the legal aid lawyer who was going to represent him at the trial only ten minutes before its start. In the absence of any evidence that might prove otherwise, the Committee considers that the time and facilities for the preparation of the author's defence were not adequate and that this must have been known to the investigating magistrate and the trial judge. Accelerated proceedings do not per se violate the right to adequate time and facilities to prepare defence.[11] However, the defendant must have a right, set out in legislation, to ask for an adjournment and the authorities must inform the defendant of this right.[12] In Galstyan v Armenia, the ECtHR held that there had been a violation of the right to adequate time and facilities to prepare the defence when the defendant, who did not want to be defended by a lawyer, had only been given two hours to prepare his defence before the trial commenced, during which time he had no contact with the outside world.[13] Facilities include access to all materials ‘that the prosecution plans to offer in court against the accused or that are exculpatory’.[14] These documents should be in the language understood by the accused or his or her counsel.[15] (Cf *free assistance of an interpreter*). Incommunicado detention is a major source of violation of adequate time and facilities to prepare defence given that the access of the accused persons to counsel is practically impossible and their trial often takes place in camera.[16] (See *access to the outside world*; *public trial*).
[1] ACHR art 8(2)(c), ECHR art 6(3)(b). The right is not explicitly provided for in the ACHPR. However, see Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa (2003) art A(2)(e).
[2]Kelly v Jamaica communication 537/1993 (HRC 1996) para 9.2.
[3]Sawyers and McLean v Jamaica communications 226/1987 & 256/1987 (HRC 1991) para 13.6.
[5]Avocats Sans Frontieres (on behalf of Bwampamye) v Burundi communication 231/99 (ACHPR 2000) para 30.
[6] Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa (2003) para M(4).
[7] HRC General Comment 32 para 32. See also Smith v Jamaica communications 282/1988 (HRC 1993) para 10.4; Sawyers, Mclean and Mclean v Jamaica communication 226/1987 and 256/1987 (HRC 1991) para 13.6.
[8]Gridin v Russia communication 770/97 (HRC 2000) para 8.5.
[13]Galstyan v Armenia paras 86-87. See as well Harward v Norway communication 451/1991 (HRC 1994) para 9.5 where it was held that defendant does not have to see all documents if his lawyer has seen them.
[14] HRC General Comment 32 para 33. See as well Yasseen and Thomas v Guyana communication 676/96 (HRC 1998) para 7.10, where the HRC held that with regard to missing diaries and notebooks, which may have contained exonerative evidence, ‘the failure to produce at the last trial (1992) police documents which were produced at the first trial (1988) and which may have contained evidence in favour of the authors, constitutes a violation of article 14, paragraph 3, (b) and (e), since it may have impeded the authors in preparation of their defence’.
[16] See eg Wight v Madagascar communication 115/1982 (HRC 1985);Drescher Caldas v Uruguay communication 43/79 (HRC 1983) paras 13.2-13.4, where the applicant at the time of his arrest was not sufficiently informed of the reasons for his arrest, had no recourse to habeas corpus and was kept incommunicado for six weeks after his arrest and was unable, particularly while kept incommunicado, to communicate with counsel of his own choosing.
An accused must be permitted a fair and reasonable amount of time and all the means necessary to prepare and defend his or her case. What amounts to adequate time to prepare for the defence depends on the circumstances of each case. The accused person, or his or her counsel, must request more time to prepare for the trial or adjournments during trial if needed to prepare the defence. Courts are obliged to grant reasonable requests for adjournments. Accelerated proceedings do not violate the right to adequate time to prepare defence if requests for adjournment are allowed in law and practice.
Facilities include among others (a) prompt access to counsel, (b) access to all materials and exculpatory documentation to be used during trial including extenuating and aggravating evidence in the possession of the state, (c) confidential consultations between accused and counsel, and (d) free assistance of an interpreter. This right applies to all stages of trial.
Comprehensive
Article 14(3)(b) of the ICCPR provides inter alia that everyone charged with a criminal offence shall ‘have adequate time and facilities for the preparation of his defence’. Regional human rights treaties include similar provisions.[1] This right applies to all stages of the trial including appeal proceedings.[2]
What amounts to adequate time to prepare for the defence depends on the circumstances of each case. Adequate time should be 'appropriate to the nature of the proceedings and the factual circumstances of each case'.[6] The HRC has noted that article 14(3)(b) ‘is an important element of the guarantee of a fair trial and an application of the principle of equality of arms’.[7]
The accused person, or his or her counsel, must request more time to prepare for the trial or adjournments during trial if needed to prepare the defence.[3] Courts are obliged to grant reasonable requests for adjournments.[4] In Avocats Sans Frontieres (on behalf of Bwampamye) v Burundi, the counsel of the defendant, who faced death penalty if convicted, was not in attendance due to illness. The defendant was refused adjournment to secure the attendance of his counsel or another lawyer. The African Commission held that such conduct violated the right to a fair trial.[5]
Adequate facilities to prepare for defence include prompt access to counsel at all stages, even during pre-trial proceedings.[8] State authorities are required to guarantee confidential consultations between accused and counsel.[9] (Cf.*defence counsel of choice/right to defend oneself*; *legal aid when the interests of justice so require*). The HRC noted in Reid v Jamaica:[10]
it is uncontested that the legal aid lawyer who represented the author at the preliminary inquiry was not present at all the hearings and that the author met the legal aid lawyer who was going to represent him at the trial only ten minutes before its start. In the absence of any evidence that might prove otherwise, the Committee considers that the time and facilities for the preparation of the author's defence were not adequate and that this must have been known to the investigating magistrate and the trial judge.
Accelerated proceedings do not per se violate the right to adequate time and facilities to prepare defence.[11] However, the defendant must have a right, set out in legislation, to ask for an adjournment and the authorities must inform the defendant of this right.[12] In Galstyan v Armenia, the ECtHR held that there had been a violation of the right to adequate time and facilities to prepare the defence when the defendant, who did not want to be defended by a lawyer, had only been given two hours to prepare his defence before the trial commenced, during which time he had no contact with the outside world.[13]
Facilities include access to all materials ‘that the prosecution plans to offer in court against the accused or that are exculpatory’.[14] These documents should be in the language understood by the accused or his or her counsel.[15] (Cf *free assistance of an interpreter*).
Incommunicado detention is a major source of violation of adequate time and facilities to prepare defence given that the access of the accused persons to counsel is practically impossible and their trial often takes place in camera.[16] (See *access to the outside world*; *public trial*).
[1] ACHR art 8(2)(c), ECHR art 6(3)(b). The right is not explicitly provided for in the ACHPR. However, see Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa (2003) art A(2)(e).
[2] Kelly v Jamaica communication 537/1993 (HRC 1996) para 9.2.
[3] Sawyers and McLean v Jamaica communications 226/1987 & 256/1987 (HRC 1991) para 13.6.
[4] HRC General Comment 32 para 32.
[5] Avocats Sans Frontieres (on behalf of Bwampamye) v Burundi communication 231/99 (ACHPR 2000) para 30.
[6] Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa (2003) para M(4).
[7] HRC General Comment 32 para 32. See also Smith v Jamaica communications 282/1988 (HRC 1993) para 10.4; Sawyers, Mclean and Mclean v Jamaica communication 226/1987 and 256/1987 (HRC 1991) para 13.6.
[8] Gridin v Russia communication 770/97 (HRC 2000) para 8.5.
[9] HRC General Comment 32 para 32.
[10] Reid v Jamaica communication 355/1989 (HRC 1994) para 14.2.
[11] Galstyan v Armenia communication 26986/03 (ECtHR 2007) para 85.
[12] As above.
[13] Galstyan v Armenia paras 86-87. See as well Harward v Norway communication 451/1991 (HRC 1994) para 9.5 where it was held that defendant does not have to see all documents if his lawyer has seen them.
[14] HRC General Comment 32 para 33. See as well Yasseen and Thomas v Guyana communication 676/96 (HRC 1998) para 7.10, where the HRC held that with regard to missing diaries and notebooks, which may have contained exonerative evidence, ‘the failure to produce at the last trial (1992) police documents which were produced at the first trial (1988) and which may have contained evidence in favour of the authors, constitutes a violation of article 14, paragraph 3, (b) and (e), since it may have impeded the authors in preparation of their defence’.
[15] HRC General Comment 32 para 33.
[16] See eg Wight v Madagascar communication 115/1982 (HRC 1985); Drescher Caldas v Uruguay communication 43/79 (HRC 1983) paras 13.2-13.4, where the applicant at the time of his arrest was not sufficiently informed of the reasons for his arrest, had no recourse to habeas corpus and was kept incommunicado for six weeks after his arrest and was unable, particularly while kept incommunicado, to communicate with counsel of his own choosing.