Download Intl. Human Rights Law: Equality, Fair Trials & Legal Representation and more Slides Criminal Justice in PDF only on Docsity!
Chapter 4: Rights of the
Suspect and the Accused
Part 1: General Fair Trial Rights
Article 54: Right to Equality before the
Law and the Courts
1. All persons are equal before the law.
2. All persons are equal before the courts.
Commentary
Paragraph 1: The guarantee contained in Paragraph 1 derives from a number of inter- national and regional human rights treaties. It is expressed in Article 26 of the Inter- national Covenant on Civil and Political Rights, Article 24 of the American Convention on Human Rights, Article 3 of the African Charter on Human and Peoples’ Rights, and Article 11 of the Arab Charter on Human Rights. Equality before the law relates to the equal treatment of persons in the application and enforcement of the law. It applies to all public officials, including judges, prosecutors, and policing officials, and requires that they treat all persons equally. Equality of treatment, however, does not mean iden- tical treatment for all persons. Instead, it means that persons in a like position should be treated in the same way. The right to equality before the law is also related to the right to freedom from discrimination under Article 55. A related but different concept to equality before the law is the right to equal pro- tection of the law, a right which is also contained in Article 26 of the International Covenant on Civil and Political Rights, Article 3 of the African Charter on Human and Peoples’ Rights, and Article 24 of the American Convention on Human Rights. Equal protection of the law relates to lawmaking and requires that all persons be treated equally in domestic laws.
Paragraph 2: The right to equality before the courts is a subset of the general right to equality and comes from Article 14(1) of the International Covenant on Civil and Political Rights, Article 5(a) of the International Convention on the Elimination of All
Forms of Racial Discrimination, and Article 15(2) of the Convention on the Elimina- tion of Discrimination against Women.
Article 55: Right to
Freedom from Discrimination
No person may be discriminated against on grounds such as sex, race, color, lan-
guage, religion or belief, political or other opinion, sexual orientation, national, eth-
nic or social origin, wealth, birth, or other status.
Commentary
The right to freedom from discrimination applies more broadly than just in the con- text of the criminal justice system; however, in this context, it refers to freedom from discrimination both in the criminal law and in the operation of criminal justice. The right to nondiscrimination is found in the Universal Declaration of Human Rights (Article 10), the International Covenant on Civil and Political Rights (Article 26), the American Convention on Human Rights (Articles 1[1] and 24), the Arab Charter on Human Rights (Article 3), and the Universal Islamic Declaration of Human Rights (Article III). There are also two treaties dedicated to the treatment of non-discrimi- nation: the International Convention on the Elimination of All Forms of Racial Dis- crimination and the Convention on the Elimination of Discrimination against Women. The United Nations Human Rights Committee in General Comment no. 18 on Non-Discrimination has termed the right to nondiscrimination “a basic and gen- eral principle relating to the protection of human rights” (paragraph 1). Article 55 of the MCCP requires that discriminatory distinctions not be made between different people based on the grounds listed. To gain some idea of what “discrimination” means, it is useful to look to the definition of “racial discrimination” contained in Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination, which states that racial discrimination means “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or eth- nic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental free- doms in the political, economic, social, cultural or any other field of public life.” This is not to say that distinctions between persons cannot be made. Distinctions between different persons are in fact permissible, even on the basis of the groups listed. The United Nations Human Rights Committee has stated that the determinant of whether a distinction is discriminatory is whether it is “reasonable and objective” and whether its aim is to achieve a purpose that is legitimate under the covenant (see Gen- eral Comment no. 18, paragraph 13). The European Court of Human Rights has added
10 • Chapter 4, Part 1
proof should be on the prosecution to prove the guilt of the accused rather than on the accused to prove his or her innocence. This principle is enshrined in Article 216 of the MCCP. A third way in which the presumption of innocence can be maintained relates to how the suspect or accused person is presented. A suspect or accused person should not be made to look like a guilty person by being caged or shackled in the courtroom or forced to appear in court wearing a prison uniform or with his or her head shaved. If possible, the accused should be allowed to dress in civilian clothes for the duration of the trial. The presumption of innocence will not be violated where the accused per- son needs to be handcuffed or restrained to prevent his or her escape or to maintain the general security of the courtroom. In addition to these guarantees, it is important that prior convictions of the accused not be disclosed to the court in the course of the trial, a disclosure that might unduly influence the decision of the judge and consequently violate the presumption of inno- cence. (Prior convictions may be considered, however, at a hearing on penalties con- ducted once an accused person has been found guilty of a criminal offense.) A person’s right to the presumption of innocence may be violated not only leading up to and dur- ing a trial but also, if the person has been acquitted, afterward. Where a person has been acquitted, it is important for public officials not to make any statements suggest- ing that the person should have been found guilty. The presumption of innocence is linked to many other fair trial rights; for exam- ple, the presumption of liberty found in Article 169 of the MCCP stems from the pre- sumption of innocence, as does the right to trial without undue delay and the right of a detained person to trial within a reasonable time or release found in Article 63, and the freedom from self-incrimination laid out in Article 57. The right to a trial by an impartial judge as set out in Article 17 overlaps with the presumption of innocence.
Article 57: Privilege against
Self-Incrimination and the Right to Silence
1. No person may be compelled to testify against himself or herself or to con-
fess guilt.
2. No negatie inferences may be deried from a person’s failure to testify
against himself or herself or to confess guilt.
Commentary
Paragraph 1: The right not to be compelled to testify against oneself and the right not to confess guilt are expressed in Article 14(3)(g) of the International Covenant on Civil and Political Rights, Articles 8(2)(g) and 8(3) of the American Convention on Human Rights, and Principle 21 of the Body of Principles for the Protection of All
10 • Chapter 4, Part 1
Persons under Any Form of Detention or Imprisonment. While these rights are not expressly provided for in the European Convention on Human Rights and Fundamen- tal Freedoms, the European Court for the Protection of Human Rights and Funda- mental Freedoms has declared that the right not to be compelled to testify against oneself and the right not to confess guilt are implicit in the right to a fair trial set out in Article 6(1) of the convention. The right not to be compelled to testify against oneself and the right not to confess guilt include two elements: the right to freedom from self-incrimination and the right to silence. These components are related and at times overlapping, but they are dis- tinct. The right to silence encompasses only oral representations made by a person and refers to a person’s right not to make oral statements to the police or any other criminal justice actor during the investigation of a criminal offense. The freedom from self- incrimination is broader in scope and refers to both oral representations and to the provision of any materials that may tend to incriminate a person. Under international human rights law, what is excluded from the freedom from self-incrimination are materials that are legally obtained from the accused under compulsory powers of criminal investigation such as breath, blood, and urine samples and bodily tissue for the purpose of DNA testing. The right to silence is recognized as absolute in many states. In addition, under the international human rights conventions, there is no limitation placed on these rights. In some domestic jurisdictions, statutory provisions have been included to the effect that a person has the right to silence and the freedom from self-incrimination, but if the person does not provide information to the authorities or at trial, then adverse infer- ences may be drawn from the failure to provide information. The case law on such limi- tations on the right to silence and freedom from self-incrimination, mainly deriving from the European Court of Human Rights, is somewhat unclear. Under cases such as Funke v. France (application no. 10828/84, Judgment [February 25, 1993], paragraph 44), the European Court has stated that the freedom from self-incrimination is abso- lute. In the case of Saunders v. United Kingdom (application no. 19187, Judgment [December 17, 1996], paragraph 71), the court stated that self-incrimination was an absolute right and even applied where the compulsion to testify resulted in the giving of exculpatory evidence. On the other hand, in the case of Murray v. United Kingdom, the European Court—dealing with both the right to freedom from self-incrimination and the right to silence—deemed that a law that drew adverse inferences from an accused person’s silence did not violate the European Convention because the inferences were not decisive to the finding of criminal responsibility. The drafters of the MCCP were firmly of the view that the right to silence and the freedom from self-incrimination should be recognized as absolute and unqualified rights under the MCCP. Part of the rationale for this view is the fact that where a person’s right to silence is compromised, allowing adverse inferences means that the silence of a person is taken as an admission of guilt and thus the person’s right to the presumption of innocence is violated. As well as being related to the presumption of innocence, the right to silence and the freedom from self-incrimination are also related to the right to freedom from coercion, torture, or cruel, inhuman, or degrading treatment contained in Article 58, because the right to freedom from self-incrimination and the right to silence prohibit the use of these techniques to compel testimony. As part of the right to silence and the freedom from self-incrimination, a suspect or an accused must be informed of these rights, as stipulated in Article 172(3)(a).
Article • 10
below), (3) at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The issue of what constitutes torture or “cruel, inhuman, or degrading treatment” has been the subject of debate. Some com- mentators view torture as an aggravated form of cruel, inhuman, or degrading treat- ment, while other bodies, such as the United Nations Human Rights Committee, view them as synonymous. Torture or cruel, inhuman, or degrading treatment may be either physical or men- tal. Many people wrongly believe that such treatment involves only physical acts. The United Nations Human Rights Committee has stated that torture and cruel treatment “relates not only to acts that cause physical pain but also to acts that cause mental suf- fering to the victim” (General Comment no. 20, paragraph 5). Article 2 of the Inter- American Convention to Prevent and Punish Torture elaborates on this, stating that “torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capaci- ties, even if they do not cause physical pain or mental anguish.” There is no definitive list of what constitutes torture or cruel, inhuman, or degrading treatment; this will need to be decided on a case by case basis. Some guidance has been given by interna- tional and regional human rights bodies; for example, prolonged solitary confinement has been held to amount to torture and ill-treatment (see United Nations Human Rights Committee, General Comment no. 20, paragraph 6), as does the use of physical pressure during interrogation, hooding a person (placing a black hood over a detain- ee’s head), subjection to loud noise, sleep deprivation and deprivation of food, wall- standing (forcing detainees to stand with their legs spread against a wall for long periods of time), death threats, violent shaking, and using cold air to chill a person. Further guidance may be obtained by making reference to the jurisprudence of the United Nations Human Rights Committee, the European Court of Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission and Court on Human Rights, and the European Committee against Torture and to the work of the United Nations Special Rapporteur on Torture. With regard to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), reference may be made to The CPT Standards: “Substantive” Sections of the CPT’s General Reports, which outlines numerous acts that the committee considers to amount to torture or cruel, inhuman, or degrading treatment in the context of criminal proceedings. Also useful are Com- bating Torture: A Manual for Judges and Prosecutors, produced by the Human Rights Centre of the University of Essex and the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Pun- ishment (the “Istanbul Protocol”). Articles 229 and 232 of the MCCP require that all evidence obtained through torture or cruel, inhuman, or degrading treatment should be excluded from evidence by the court.
Article • 111
Article 59: Right to an Interpreter
A suspect or an accused has the right to the free assistance of an interpreter if he
or she cannot understand or speak the language used in court.
Commentary
Interpretation is the oral conversion of information from one language to another. It is related but different from translation, which involves converting a written docu- ment from one language into another. The right to an interpreter is guaranteed by Article 14(3)(f) of the International Covenant on Civil and Political Rights, Article 6(3)(e) of the European Convention for the Protection of Human Rights and Funda- mental Freedoms, and Article 8(2)(a) of the American Convention on Human Rights. While the right to interpretation is mentioned in international human rights instru- ments, the right to translation is provided for only in the American Convention on Human Rights. In practice, however, the right to translation has been found to be inherent in the right to an interpreter. The right to an interpreter should be available at all stages of criminal proceedings. Article 172(3)(i) requires that when a person is arrested, he or she is entitled to an interpreter and to such translations as are necessary to meet the requirement of fair- ness. According to General Comment no. 13 of the United Nations Human Rights Committee, the right to an interpreter should be available to all people who do not speak or understand the language of the court, including nationals and nonnationals (paragraph 13). International human rights law does not require that a person who understands or speaks the language of the court be provided with an interpreter where he or she would prefer to speak another language, for example, his or her native lan- guage (see comments of United Nations Human Rights Committee in Bihan v. France [communication 221/1987, UN document CCPR/C/41/D/221/1987 at 43 (1991)] and Barzhig v. France [communication 327/1988, UN document CCPR/C/41/D/327/ at 92 (1991)]), nor does it provide for the right to speak one’s own language in court. Therefore, where a person meets the requirement of being able to speak or understand the language being spoken in the course of the criminal proceedings, he or she will not be provided with an interpreter. The right to interpretation is related to the right to defend oneself personally or through counsel under Article 65 and the right to prepare a defense under Article 61. According to the United Nations Human Rights Committee in General Comment no. 13, the right to an interpreter is “of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obsta- cle to the right of defense (paragraph 13).”
112 • Chapter 4, Part 1
Article 61: Right to
Preparation of a Defense
An accused has the right to adequate time and facilities for the preparation of his
or her defense.
Commentary
The right to adequate time and facilities for the preparation of the accused’s defense is contained in Article 14(3)(b) of the International Covenant on Civil and Political Rights, Article 8(2)(c) of the American Convention on Human Rights, and Article 6(3)(b) of the European Convention for the Protection of Human Rights and Funda- mental Freedoms. It is a fundamental aspect of the principle of “equality of arms,” dis- cussed in the commentary to Article 62 of the MCCP. According to General Comment no. 13 of the United Nations Human Rights Committee, “what is ‘adequate time’ depends on the circumstances of each case” (paragraph 9). It will also largely depend on the complexity of the case. As to the concept of facilities, the United Nations Human Rights Committee in General Comment no. 13 stated that “facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel” (paragraph 9). Thus, the right to prepare a defense is related to the right to communicate with counsel set out in Article 70. The right to the preparation of a defense is also related to the disclosure regime established under the MCCP because this is the mechanism by which the prosecution must give the accused and his or her counsel relevant informa- tion to prepare the accused’s defense. Reference should be made to Chapter 10, Part 3, which provides the obligations on the prosecution to disclose the indictment and other evidence to the defense pending a confirmation hearing, and Chapter 10, Part 4, which sets out the pretrial disclosure regime applicable under the MCCP. Where the defense believes that it has been granted insufficient time to prepare a defense, it may make a motion to the court under Article 203(4) for an adjournment.
114 • Chapter 4, Part 1
Article 62: Right to a Fair and
Public Hearing and the Right to Be
Present during a Trial
1. All persons are entitled to a fair and public hearing.
2. The press and the public may be excluded from all or part of a trial for any of
the following reasons:
(a) to protect morals, public order, or national security;
(b) where the interests of a child so requires;
(c) where the protection of the priate lies of the parties to the proceedings
or witnesses so requires, such as in cases of sexual offenses; or
(d) in special circumstances, and only to the extent necessary, where pub-
licity would prejudice the interests of justice.
. Court judgments must be made public, except where the interests of a jue-
nile requires otherwise.
4. An accused person has the right to be tried in his or her presence, except as
otherwise proided for in the MCCP.
Commentary
Paragraph 1: The right to a fair and public hearing is set out in a number of interna- tional and regional human rights instruments, including the Universal Declaration of Human Rights (Article 10), the International Covenant on Civil and Political Rights (Article 14[1]), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6[1]). The concepts of a “fair hearing” and a “public hearing” will be addressed separately. The concept of a fair hearing is a general principle that applies to the whole crimi- nal process. It is possible for a trial to provide all the other enumerated fair trial rights set out in international human rights law and yet not constitute a fair trial if it, as a whole, does not comply with the precept of fairness. These enumerated rights are only minimum guarantees. The right to a fair trial has therefore been construed as having a residual meaning that includes other indefinable characteristics that are necessary for the fair administration of justice. According to the United Nations Human Rights Committee’s interpretation, the right to a fair trial is broader than the sum of the indi- vidual fair trial guarantees and depends on the entire conduct of the trial (General Comment no. 13, paragraph 5). Similar sentiments have been expressed by the Inter- American Court of Human Rights ( Exceptions to the Exhaustion of Domestic Remedies ,
Article 2 • 11
themselves what constitutes an issue of national security. According to experts in inter- national law, national security, and human rights, ‘A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the threat or use of force, whether from an external source, such as a military threat, or an internal source, such as incite- ment to overthrow the government’” ( Fair Trials Manual, Section 14.3). Subparagraph (b) refers to the “interests of a child.” This exception would be par- ticularly relevant in cases of sexual offenses. The European Commission found that the exclusion of the public from a case involving sexual offenses against children was permissible under Article 6(1) of the European Convention (X v. Austria [1913/63], 2 Digest of Strasbourg Case Law 438 [April 30, 1965)], unpublished). Reference should be made to Article 335(2). The final exception to the right to a public trial, enumerated in Subparagraph (d), is an exceptional measure. The determinant of whether the press or public can be excluded is that of “the interests of justice.”
Paragraph 3: The requirement that judgments be publicly delivered is set out in Article 14(1) of the International Covenant on Civil and Political Rights and in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Free- doms. The European Court of Human Rights has stated that the purpose of delivering the judgment in public is to “ensure the scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial” (Pretto v. Italy, application no. 7984/ [1983] ECHR 15 ser. A, no. 71 [December 8, 1983], paragraph 27). The grounds for exclusion of the press and public under Paragraph 2 do not apply to the delivery of a judgment. The only permissible exception is where “the interests of a child require otherwise.” See Article 355(5). There is a distinction between a judgment being pronounced publicly and being made public. The requirement set out in Paragraph 3 does not mean that a judge has to read the judgment verbatim in the courtroom. Instead, this right has been inter- preted as meaning that the judgment must be publicly accessible to everyone.
Paragraph 4: The right to be present during a trial is expressed in the International Covenant on Civil and Political Rights (Article 14(3)[d]). The right to the presence of the accused is not expressly provided for by the European Convention on the Protec- tion of Human Rights and Fundamental Freedoms, although this right has been inter- preted as being implicit in Article 6 of the convention. The right is also not expressed in the American Convention on Human Rights; however, it has been also held to be implicit in Article 8 of the convention. Conducting a trial “in absentia,” or without the presence of the accused, is, according to the United Nations Human Rights Commit- tee, permissible only “exceptionally for justified reasons” (General Comment no. 13, paragraph 11). Where a trial is conducted in absentia, according to the Human Rights Committee, “strict observance of the rights of the defense is all the more necessary.” However, in the case of Mbenge v. Zaire (UN document CCPR/C/OP/2[1990], para- graph 14.1), the Human Rights Committee further stated that the requirements of a fair trial laid down in the International Covenant on Civil and Political Rights “cannot
Article 2 • 11
be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person’s absence.” Reasons justifying the accused per- son’s absence may be that the accused, after being adequately informed of the date and time of the trial, has fled or that the accused has been disruptive and has been tempo- rarily removed from the courtroom. These restrictions are contained in Article 214. Another exception and a temporary restriction on the presence of the accused during the trial is where a witness is testifying under a protective measure under Article 147(F) that requires the absence of the accused during his or her testimony. This may occur, for example, where the witness would be too intimidated to testify in the presence of the accused.
Article 63: Right to Trial without Undue
Delay and the Right of Detained Persons to
Trial within a Reasonable Time or Release
1. All persons hae the right to trial without undue delay.
2. All detained persons hae the right to trial within a reasonable time or
release.
Commentary
Article 63 covers two aspects of international human rights law relating to the time when an accused person is tried. The right contained in Paragraph 1 applies to all per- sons, but the right contained in Paragraph 2 applies to detained persons only, as defined in Article 1(12).
Paragraph 1: The right to trial without undue delay is found in numerous interna- tional and regional human rights instruments: for example, the International Cove- nant on Civil and Political Rights (Article 14[3][c]), the American Convention on Human Rights (Article 8[1]), the African Charter on Human and Peoples’ Rights (Article 7[1][d]), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6[1]). The terminology used in Article 63 mirrors that of the International Covenant on Civil and Political Rights. The right to a trial without undue delay refers not only to the right to a trial but also to a final judgment without undue delay. According to the United Nations Human Rights Committee, the right to trial without undue delay “relates not only to the time by which a trial should commence, but also the time by which it should end and judg- ment is rendered; all stages must take place ‘without undue delay’” (General Comment
11 • Chapter 4, Part 1
It should also be noted that the right to trial without undue delay may conflict with the right to adequate time and facilities to prepare a defense. Cross-reference should be made to Article 61 and its accompanying commentary. In some post-conflict contexts, significant delays frequently occur in bringing accused persons to trial. Often, for example, accused persons are kept in detention for longer than the applicable law allows or in some cases beyond maximum penalty pro- vided for the offense with which they are charged. Such protracted detentions can occur because of a proliferation of crime problems in the post-conflict period, or because the criminal justice system is overstretched and understaffed. In addition, programs to vet criminal justice personnel and remove those who may have been com- plicit in human rights violations may create a temporary shortage of personnel. The vetting process can also impair the authorities’ ability to investigate and try criminal cases expeditiously. Undue delays of trial is not only a problem in itself but also creates other problems. For example, keeping accused persons in detention for excessive peri- ods can lead to prison overcrowding.
Paragraph 2: The right to be tried within a reasonable time or otherwise to be released is contained in Article 9(3) of the International Covenant on Civil and Political Rights, Article XXV of the American Declaration on the Rights and Duties of Man, Article 7(5) of the American Convention on Human Rights, Article 5(3) of the European Convention on Human Rights, and Principle 38 of the Body of Principles for the Treat- ment of Persons under Any Form of Detention or Imprisonment. Under Paragraph 2, where a person is not tried within a reasonable time, he or she must be released from detention pending trial. The reasonableness of the time spent in detention pending trial is determined in the same way as the determination of undue delay discussed in the commentary to Paragraph 1. Articles 189 and 190 of the MCCP set out upper limits on the length of pretrial detention in an attempt to ensure that the trial takes place within a reasonable time and that the reasonableness of the time a person spends in detention is independently assessed by a judge.
Article 64: Right to
Examination of Witnesses
The accused has the right to examine, or hae examined, the witnesses against
him or her and to obtain the attendance and examination of witnesses on his or her
behalf under the same condition as witnesses against him or her.
120 • Chapter 4, Part 1
Commentary
The right of the accused to examine or have examined witnesses on his or her behalf is expressed in Article 14(3)(e) of the International Covenant on Civil and Political Rights, Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 8(2)(f) of the American Convention on Human Rights. The right to examine witnesses—an inherent element of the “equal- ity of arms” principle discussed in the commentary to Article 62—is, according to the United Nations Human Rights Committee, “designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witness as are available to the prosecution” (General Comment no. 13, paragraph 12). The right to examine witnesses is also related to the right to pre- pare a defense under Article 61. The right to examine witnesses has two components: first, the right to call wit- nesses to testify during the trial, and second, the right to examine prosecution wit- nesses. The right to call witnesses is not unlimited in nature. For example, if a witness becomes unavailable or fails to appear, this is not a violation of the right to examine witnesses. In addition, a court is not required to call all witnesses requested by the defense. However, the court must not violate the principles of fairness and equality of arms. With regard to the right to examine prosecution witnesses, the defense must be given adequate opportunity to cross-examine the witness in court. Reference should be made to Article 224, which sets out the requirement that the defense may examine any witness called in court. An aspect of the right to examine a witness is that the defense has sufficient information about the witness to challenge his or her reliability (and to perhaps impeach the witness under Article 261). A number of cases raised before the European Court of Human Rights have dealt with the issue of anonymous witnesses and whether their use violated the right to examine a witness. These cases are discussed in the commentary to Chapter 8, Part 4, Section 2. Ultimately, the Euro- pean Court held that the rights of the accused were not violated, after balancing the right to examine a witness against the need to protect the safety of persons testifying before the court and the safety of their families.
Article 4 • 121
Paragraph 2: Where a person is being defended through counsel (either at his or her own expense or by way of free legal assistance), the MCCP provides that the person may be defended by counsel throughout the entirety of the criminal proceedings and not just during trial. This right is recognized in the Basic Principles on the Role of Lawyers (Principle 1) and in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principle 17). According to Amnesty International’s Fair Trials Manual (chapter 3.1.1.), “A person’s right to the help of a lawyer in pre-trial proceedings is not expressly set out in the ICCPR, the American Convention, the African Charter or the European Convention. However, the Human Rights Committee, the Inter-American Commission and the European Court have all recognized that the right to a fair trial requires access to a lawyer during detention, interrogation and preliminary investigations.” The European Court of Human Rights, for example, found in the case of Murray v. United Kingdom ([1996] 22 EHRR 29) that a failure to grant an arrested person access to counsel within the first forty-eight hours after arrest was a violation of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. In the course of drafting the Model Codes, the drafters and other experts engaged in considerable discussion on the issue of access to counsel. The issue has also been debated among practitioners in post-conflict states. In a number of post-conflict states, some experts have supported the idea of restricting an arrested person’s access to defense counsel, granting police or prosecutors access to an arrested person without the presence of a lawyer for some period immediately after arrest. Those who support such restrictions argue that they are justified because some defense lawyers, especially those retained by members of organized crime gangs, are in league with the gangs and would pass on information from an arrested person to other members of the gang, thereby, for example, helping to thwart the arrest of suspects not yet located. Oppo- nents of the restrictions contend that denying the arrested person immediate access to counsel endangers his or her rights, increasing the risk, for example, that the suspect may be tortured or mistreated in some other way. This latter school of thought won out in the debate among the drafters of the MCCP, which stipulates that the right to counsel without restriction is the general principle and should be followed in all but very exceptional cases. Rather than restrict- ing access to counsel, police and prosecution should use supplemental safeguards to deter defense malfeasance. If it is proven that defense counsel is acting contrary to his or her professional standards of ethical conduct, or indeed contrary to the law (if he or she is involved in the obstruction of justice, for example, through leaking information to criminal associates who then take steps to thwart an investigation), he or she should be subject to disciplinary action or to prosecution for obstruction of justice (for such an offense, see Article 193 of the MCC). There are more appropriate ways of dealing with defense council misconduct than impinging upon a suspect’s or accused’s right to counsel.
Article • 12
Article 66: Right to Choice of Counsel
A suspect or an accused has the right to counsel of his or her own choosing.
Commentary
The suspect’s or accused’s right to counsel of his or her choosing derives from interna- tional instruments such as the International Covenant on Civil and Political Rights (Article 14[3][d]), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6[3][c]), the American Convention on Human Rights (Article 8[2][d]), and the African Charter on Human and Peoples’ Rights (Article 7[1][c]). This right technically falls under the category of rights of the accused rather than rights of the suspect; however, it has consistently been held in case law to apply in the pretrial stages to a suspect. This right is also found in Principle 1 of the United Nations Basic Principles on the Role of Lawyers, which states that the purpose of hav- ing a lawyer of choice “is to protect and establish the rights of the suspect or accused to defend them in all stages of criminal proceedings.” This means that the suspect or the accused can hire a qualified lawyer of their choice to represent him or her through- out the proceedings. Amnesty International’s Fair Trials Manual, citing two cases from the United Nations Human Rights Committee, states that there have only been two exceptions made to this right. The first exception was made where the accused’s lawyer was suspected of complicity in some of the criminal offenses charged; the sec- ond was made when the accused’s lawyer refused to wear robes in court where required under the law (see section 20.3.2). The right to choice of counsel does not apply with- out restriction where a person has obtained free legal assistance under Article 67 or mandatory legal assistance under Article 68. In general, the state must endeavor to ensure that the suspect or the accused is amenable to the lawyer chosen to represent him or her. Principle H(d) of the African Union Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa provides a person with the right to contest the choice of his or her court-appointed lawyer. While the suspect or accused may contest the choice of counsel, there is no obligation on the state to provide another lawyer of choice as a substitute. The state must also ensure that the lawyer chosen is competent. The requirement that the lawyer chosen to provide free legal assistance to an indigent person be competent is discussed in the commentary to Article 52. It is permissible for a person to engage the services of more than one lawyer in his or her defense. Where a person has chosen a lawyer who is also defending another accused in the same case, an issue may arise relating to conflict of interest. In many states, the court may limit the right to choice of counsel where such a conflict arises. Where this choice is not limited, best practice generally requires that the judge queries the suspect or the accused to determine if this is a fully informed and voluntary choice. Conflict of interest is usually dealt with in a code of practice or code of conduct for lawyers, which may require that a lawyer defend only one accused person in any crimi- nal case.
124 • Chapter 4, Part 2
