All general universal and regional human rights instruments guarantee the right to a fair hearing in judicial proceedings (criminal, civil, disciplinary and administrative matters) before an independent and impartial court or tribunal.
A treaty is an international written agreement concluded between States and/or intergovernmental organisations and governed by international law. The name the parties give to a treaty is of no relevance here (Covenant, Convention, Treaty, Protocol, etc.); what matters is the content and the language of the treaty, as well as the parties’ intention to be bound by it. A treaty always contains language by which the signing parties agree on the legally binding character of the agreement.
The parties to a treaty are obligated under international law to fulfil and implement the provisions of the treaty in good faith, and a State cannot invoke the provisions of its internal law as justification for its failure to perform a treaty.
The International Covenant on Civil and Political Rights (ICCPR), signed and ratified by 160 States, stipulates in article 14(1) that “all persons shall be equal before the courts and tribunals” and that “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”. The Human Rights Committee, the body in charge of monitoring State compliance with the Covenant, has unequivocally stated that the right to be tried by an independent and impartial tribunal “is an absolute right that may suffer no “exception”. The Committee has also specified that even in time of war or during a state of emergency, “only a court of law may try and convict a person for a criminal offence”. It is thus a right that is applicable in all circumstances and to all courts, whether ordinary or special. Similarly, article 18 (1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states that “[m]igrant workers and members of their families […] shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
On a regional level, article 8 (1) of the American Convention on Human Rights provides that “every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal, or any other nature”.
With different wording but in similar terms, article 7(1) of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard”, a right that comprises “the right to be presumed innocent until proved guilty by a competent court or tribunal” and “the right to be tried within a reasonable time by an impartial court or tribunal”. This article must be read in conjunction with article 26 of the Charter, which establishes that the States parties “shall have the duty to guarantee the independence of the Courts”. The African Commission on Human and Peoples’ Rights has said that article 7 “should be considered non-derogable” since it provides “minimum protection to citizens”.
Article 6 (1) of the European Convention on Human Rights specifies that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
The right to receive a fair trial is also recognised in international humanitarian law. Article 75 (4) of the First Protocol to the Geneva Conventions stipulates that “No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure”.
Declaratory instruments are not binding in a legal sense, but establish widely recognised standards on a number of human rights topics. Generally these instruments, particularly those adopted in the framework of the United Nations, reflect international law.
Many of these instruments contain provisions that are mere re-statements of those contained in treaties and, in some cases, customary international law. For example, Principle 1 of the United Nations Basic Principles on the Role of Lawyers (on the right to legal representation) simply restates the right contained in Article 14, paragraph 3 (d) of the International Covenant On Civil And Political Rights (ICCPR).
A number of declaratory instruments contain provisions on the right to a fair trial before an independent and impartial tribunal. The Universal Declaration on Human Rights, adopted by the United Nations General Assembly in 1948, recognises that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. Guideline IX of the Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism stipulates
that “[a] person accused of terrorist activities has the right to a […] hearing […] by an independent, impartial tribunal established by law”. Article 47 of the Charter of Fundamental Rights of the European Union states that “[e]veryone is entitled to a […] hearing […] by an independent and impartial tribunal previously established by law”. Article XXVI of the American Declaration of the Rights and Duties of Man lays down that “[…] Every person accused of an offence has the right […] to be tried by courts previously established in accordance with pre-existing laws”.
The principle of the ‘natural judge’ (juez natural) constitutes a fundamental guarantee of the right to a fair trial. This principle means that no one can be tried other than by an ordinary, pre-established, competent tribunal or judge. As a corollary of this principle, emergency, ad hoc, ‘extraordinary’, ex post facto and special courts are forbidden. This ban, however, should not be confused with the question of specialist jurisdictions. Although the principle of the ‘natural judge’ is based on the dual principle of equality before the law and the courts, which means that laws should not be discriminatory or applied in a discriminatory way by judges, nevertheless, as the Human Rights Committee has pointed out, “[t]he right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory”. However, as the Committee has repeatedly stated, a difference in treatment is only acceptable if it is founded on reasonable and objective criteria.
The Commission on Human Rights has reiterated, in several of its resolutions, the principle of the natural judge. For example, in Resolution 1989/32 the Commission recommended that States should take account of the principles contained in the Draft Universal Declaration on the Independence of Justice, also known as the Singhvi Declaration. Article 5 of the Declaration stipulates that: “(b) no ad hoc tribunal shall be established to displace jurisdiction properly vested in the court; (c) Everyone shall have the right to be tried with all due expedition and without undue delay by ordinary courts or judicial tribunal under law subject to review by the courts; […] (e) In such times of emergency, the State shall endeavour to provide that civilians charged with criminal offences of any kind shall be tried by ordinary civilian courts”. It is also worth highlighting two resolutions on the “integrity of the judicial system,” in which the Commission reiterated that “everyone has the right to be tried by ordinary courts or tribunals using duly established legal procedures and that tribunals that do not use such procedure procedures should not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals”.
The existence of specialist courts or jurisdictions is widely accepted and is predicated on the specificity of the subject matter. For example, specialist jurisdictions exist in many legal systems to deal with labour, administrative, family and commercial matters. In addition, in criminal matters, as an exceptional case, the existence of specialist jurisdictions for certain parties, such as indigenous peoples and juveniles, is recognized under international law and is predicated on the specificity of those being prosecuted.
The Human Rights Committee has not developed significant jurisprudence on the principle of the “natural judge”. However, it has addressed the question of “extraordinary” or special courts. Traditionally, it has not seen special courts as “intrinsically incompatible with article 14(1) of the Covenant”.
In General Comment N° 13, adopted in 1984, the Human Rights Committee took the view that: “The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. […] If States parties decide in circumstances of a public emergency as contemplated by article 4 to derogate from normal procedures required under article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation, and respect the other conditions in paragraph 1 of article 14”
In recent years the Committee has repeatedly expressed its concern at the use of special courts and has, on several occasions, recommended that such courts be abolished. The Committee has also seen the abolition of special courts as a positive contributing factor in achieving national implementation of the International Covenant On Civil And Political Rights(ICCPR). The Committee has recommended Nigeria to abrogate “all the decrees establishing special tribunals or revoking normal constitutional guarantees of fundamental rights or the jurisdiction of the normal courts”.
In the case of Nicaragua, the Committee found that “proceedings before the Tribunales Especiales de Justicia [special ad hoc tribunals] did not offer the guarantees of a fair trial provided for in article 14 of the Covenant”.
The Committee found a violation of the right to a fair trial in a case where the accused was tried and convicted in first instance and on appeal by courts made up of faceless judges, without the due safeguards of a public hearing and adversarial proceedings, was not allowed to be present and defend himself during the trial, either personally or through his representative, and had no opportunity to question the prosecution witness.
In a similar case concerning Peru, the Committee found that “the very nature of the system of trials by ‘faceless judges’ in a remote prison is predicated on the exclusion of the public from the proceedings. In this situation, the defendants do not know who the judges trying them are and unacceptable impediments are created to their preparation of their defence and communication with their lawyers. Moreover, this system fails to guarantee a cardinal aspect of a fair trial […]: that the tribunal must be, and be seen to be, independent and impartial. In a system of trial by “faceless judges”, neither the independence nor the impartiality of the judges is guaranteed, since the tribunal, being established ad hoc, may comprise serving members of the armed forces.
The Human Rights Committee has specified that special tribunals must conform to the provisions of Article 14 of the International Covenant On Civil And Political Rights (ICCPR). It nevertheless went on to say that “[q]uite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice”.
The European Court of Human Rights and the European Commission of Human Rights have ruled on the right to be tried by a tribunal established by law, even though they have not referred specifically to the principle of the “natural judge”
In its report on the case of Zand v. Austria, the European Commission took the view that the purpose of the clause in article 6(1) [of the European Convention on Human Rights] requiring tribunals to be established by law was to ensure that, in a democratic society, organization of the judiciary was not left to the discretion of the executive but should be regulated by a law of parliament. However, that did not mean that the delegation of powers was in itself unacceptable in the case of matters related to the organization of the judiciary. Article 6(1) did not require that, in this field, the legislature should regulate every detail by means of a formal law as long as it at least established the overall framework of the judiciary.
The Inter-American Commission on Human Rights has also referred to the principle of the natural judge. The Commission’s position was clearly summed up in the general recommendations it formulated to its member States in 1997: “With regard to jurisdictional matters, the Commission reminds the member States that their citizens must be judged pursuant to ordinary law and justice and by their natural judges.”
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