3.1.4 Fair hearing [ICCPR art 14(1)] Condensed: In any judicial proceedings a person is entitled to a fair hearing by ensuring the observance of procedural guarantees. A fair hearing includes equality of arms, respect for the principle of adversarial proceedings and expeditious procedure. Equality of arms means that the same procedural rights are to be provided to all the parties. Adversarial proceedings mean the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party. The right to a fair hearing is violated if a court arbitrarily decides what evidence is admissible or arbitrarily evaluates admitted evidence.
Comprehensive: In any judicial proceedings a person is entitled to a fair hearing by ensuring the observance of procedural guarantees. This follows from article 14(1) of the ICCPR according to which ‘In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’[1] (See *public trial*; *trial by competent, independent and impartial tribunal*). According to the HRC fair hearing ‘should be interpreted as requiring a number of conditions, such as equality of arms, respect for the principle of adversary proceedings … and expeditious procedure’.[2] (See *trial within reasonable time*).
The IACtHR has held that ‘[t]he presence of real disadvantages necessitates countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests.’[3] According to the HRC equality of arms, means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant. There is no equality of arms if, for instance, only the prosecutor, but not the defendant, is allowed to appeal a certain decision. The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.[4]
In Dudko v Australia, an accused person was not allowed to participate in oral proceedings before a court. The HRC held that there had been a violation of equality of arms.[5] (See *right to be present during trial*). Equality of arms may require that free assistance of an interpreter is provided not only in criminal proceedings, as provided in article 14(3)(f) of the ICCPR, but also in exceptional cases in civil proceedings ‘where otherwise an indigent party could not participate in the proceedings on equal terms’.[6] Similarly, the HRC has held that legal aid should have been provided in a case where a person sentenced to death challenged the constitutionality of the death penalty.[7] With regard to the provision of legal aid in civil suits, the ECtHR has held that ‘it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary.’[8] (With regard to legal aid in criminal trials, see *legal aid where the interests of justice so require*).
The right to adversary proceedings means ‘the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party.’[9]
The right to a fair hearing is violated if a court arbitrarily decides what evidence is admissible or arbitrarily evaluates admitted evidence.[10] Time limits for filing evidence must be prescribed by law. If no time limits are set the court must ensure that each party can ‘challenge the documentary evidence which the other filed or wished to file and, if need be, to adjourn proceedings.’[11]
Article 14(3)(e) of the ICCPR provides that everyone charged with a criminal offence has the right ‘[t]o 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.’ Refusal of a court ‘to order expert testimony of crucial importance to the case’ has been held by the HRC to violate this provision.[12] Courts also have a duty to secure the attendance of crucial witnesses for the defence in court, in particular in cases where the death penalty may be imposed.[13] The right to examine witnesses also entails a right of a defendant to access police statements.[14]
To use evidence obtained through *torture* violates the right to a fair hearing. In Bazarov v Uzbekistane the applicant alleged that their son’s co-defendants were beaten and tortured during the investigation to the point that they gave false testimony incriminating him which served as a basis for his conviction. The HRC found a violation of article 14(1) of ICCPR.[15] (See also *right not to be compelled to testify against oneself or confess (self incrimination)*.
Additional references L Burgorgue-Larsen & A Ubeda de Torres The Inter-American Court of Human Rights – Case law and commentary (2011) M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005) C Ovey & R White The European Convention on Human Rights (2006) S Trechsel Human rights in criminal proceedings (2005)
[1]See also ECHR art 6(1), ACHR art 8(1() (hearing ‘with due guarantees’), Arab Charter art 13(1) (‘fair trial that affords adequate guarantees’, Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa s A(2). See also Avocats Sans Frontières (on behalf of Bwampamye) v Burundi communication 231/99 (ACHPR 2000) para 27. [2]Morael v France communication 207/1986 (HRC 1989) para 9.3. [3]The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 (IACtHR 1999) para 119. [4]HRC General Comment 32 para 13. [5]Dudko v Australia communication No. 1347/2005 (HRC 2007) para 7.4. [6] HRC General Comment 32 para 13. [7]Taylor v Jamaica communication 705/1996 (HRC 1998) para 7.3. [8]Steel and Morris v UK application 68416/01 (ECtHR 2005) para 62. [9]Ruiz-Mateos v Spain application 12952/87 (ECtHR 1993) para 63. [10]Rouse v The Philippines communication 1089/2002 (HRC 2005) para 7.2. [11]Jansen-Gielen v The Netherlands communication 846/1999 (HRC 2001) para 8.2. [12]Fuenzalida v Ecuador communication 480/1991 (HRC 1996) para 9.5. [13]Grant v Jamaica communication 353/1988 (HRC 1994) para 8.5. [14]Peart v Jamaica communications 464 & 482/1991 (HRC 1995) para 11.5. [15]Bazarov v Uzbekistan communication 959/2000 (HRC 2006) para 8.3. See also CAT art 15.
Condensed:
In any judicial proceedings a person is entitled to a fair hearing by ensuring the observance of procedural guarantees. A fair hearing includes equality of arms, respect for the principle of adversarial proceedings and expeditious procedure. Equality of arms means that the same procedural rights are to be provided to all the parties. Adversarial proceedings mean the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party. The right to a fair hearing is violated if a court arbitrarily decides what evidence is admissible or arbitrarily evaluates admitted evidence.
Comprehensive:
In any judicial proceedings a person is entitled to a fair hearing by ensuring the observance of procedural guarantees. This follows from article 14(1) of the ICCPR according to which ‘In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’[1] (See *public trial*; *trial by competent, independent and impartial tribunal*). According to the HRC fair hearing ‘should be interpreted as requiring a number of conditions, such as equality of arms, respect for the principle of adversary proceedings … and expeditious procedure’.[2] (See *trial within reasonable time*).
The IACtHR has held that ‘[t]he presence of real disadvantages necessitates countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests.’[3] According to the HRC equality of arms, means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant. There is no equality of arms if, for instance, only the prosecutor, but not the defendant, is allowed to appeal a certain decision. The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.[4]
In Dudko v Australia, an accused person was not allowed to participate in oral proceedings before a court. The HRC held that there had been a violation of equality of arms.[5] (See *right to be present during trial*). Equality of arms may require that free assistance of an interpreter is provided not only in criminal proceedings, as provided in article 14(3)(f) of the ICCPR, but also in exceptional cases in civil proceedings ‘where otherwise an indigent party could not participate in the proceedings on equal terms’.[6] Similarly, the HRC has held that legal aid should have been provided in a case where a person sentenced to death challenged the constitutionality of the death penalty.[7] With regard to the provision of legal aid in civil suits, the ECtHR has held that ‘it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary.’[8] (With regard to legal aid in criminal trials, see *legal aid where the interests of justice so require*).
The right to adversary proceedings means ‘the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party.’[9]
The right to a fair hearing is violated if a court arbitrarily decides what evidence is admissible or arbitrarily evaluates admitted evidence.[10] Time limits for filing evidence must be prescribed by law. If no time limits are set the court must ensure that each party can ‘challenge the documentary evidence which the other filed or wished to file and, if need be, to adjourn proceedings.’[11]
Article 14(3)(e) of the ICCPR provides that everyone charged with a criminal offence has the right ‘[t]o 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.’ Refusal of a court ‘to order expert testimony of crucial importance to the case’ has been held by the HRC to violate this provision.[12] Courts also have a duty to secure the attendance of crucial witnesses for the defence in court, in particular in cases where the death penalty may be imposed.[13] The right to examine witnesses also entails a right of a defendant to access police statements.[14]
To use evidence obtained through *torture* violates the right to a fair hearing. In Bazarov v Uzbekistane the applicant alleged that their son’s co-defendants were beaten and tortured during the investigation to the point that they gave false testimony incriminating him which served as a basis for his conviction. The HRC found a violation of article 14(1) of ICCPR.[15] (See also *right not to be compelled to testify against oneself or confess (self incrimination)*.
Additional references
L Burgorgue-Larsen & A Ubeda de Torres The Inter-American Court of Human Rights – Case law and commentary (2011)
M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005)
C Ovey & R White The European Convention on Human Rights (2006)
S Trechsel Human rights in criminal proceedings (2005)
[1]See also ECHR art 6(1), ACHR art 8(1() (hearing ‘with due guarantees’), Arab Charter art 13(1) (‘fair trial that affords adequate guarantees’, Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa s A(2). See also Avocats Sans Frontières (on behalf of Bwampamye) v Burundi communication 231/99 (ACHPR 2000) para 27.
[2] Morael v France communication 207/1986 (HRC 1989) para 9.3.
[3]The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 (IACtHR 1999) para 119.
[4]HRC General Comment 32 para 13.
[5] Dudko v Australia communication No. 1347/2005 (HRC 2007) para 7.4.
[6] HRC General Comment 32 para 13.
[7]Taylor v Jamaica communication 705/1996 (HRC 1998) para 7.3.
[8]Steel and Morris v UK application 68416/01 (ECtHR 2005) para 62.
[9]Ruiz-Mateos v Spain application 12952/87 (ECtHR 1993) para 63.
[10]Rouse v The Philippines communication 1089/2002 (HRC 2005) para 7.2.
[11]Jansen-Gielen v The Netherlands communication 846/1999 (HRC 2001) para 8.2.
[12] Fuenzalida v Ecuador communication 480/1991 (HRC 1996) para 9.5.
[13] Grant v Jamaica communication 353/1988 (HRC 1994) para 8.5.
[14]Peart v Jamaica communications 464 & 482/1991 (HRC 1995) para 11.5.
[15]Bazarov v Uzbekistan communication 959/2000 (HRC 2006) para 8.3. See also CAT art 15.