Gurantee in the International Covenant on Civil and Political Rights of EITHER the right to life OR the right to fair trial: By Rahat Hossain

Introduction

The International Covenant on Civil and Political Rights (ICCPR)[1] is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts. The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR). As of October 2009, the Covenant had 72 signatories and 166 parties. The ICCPR is monitored by the Human Rights Committee[2], which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee meets in Geneva or New York and normally holds three sessions per year.Here we are mainly supposed to examine the issue that, how far the International Covenant on Civil and political Rights guarantee any individuals right to life and the right to fair trial, Article 6 of the ICCPR deals with the right to life and Article 14 deals with the right to fair trial.

What is Civil and Political Rights?

Civil rights[3] and political rights are a class of rights that protect individuals‘ freedom from unwarranted infringement by governments and private organizations, and ensure one’s ability to participate in the civil and political life of the state without discrimination or repression. Civil rights include the ensuring of peoples’ physical integrity and safety; protection from discrimination on grounds such as physical or mental disability, gender, religion, race, national origin, age, or sexual orientation; and individual rights such as the freedoms of thought and conscience, speech and expression, religion, the press, and movement. Political rights include natural justice[4] (procedural fairness) in law, such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, and the right to vote. Civil and political rights comprise the first portion of the Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be “first-generation rights”, and the theory of negative and positive rights considers them to be generally negative rights.

Guarantees of rights

Civil and political rights were among the first to be recognized and codified. In many countries, they are constitutional rights and are included in a bill of rights or similar document. They are also defined in international human rights instruments, such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Civil and political rights need not be codified to be protected, although most democracies worldwide do have formal written guarantees of civil and political rights. Civil rights are often considered to be natural rights. Thomas Jefferson wrote[5] that “a free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate.” Custom also plays a role. Implied are rights that courts may find to exist even though not expressly guaranteed by written law or custom; one example is the right to privacy in the United States. The question of who civil and political rights apply to is a subject of controversy. In many countries, citizens have greater protections against infringement of rights than non-citizens; at the same time, civil and political rights are considered to be universal rights that apply to all persons.

Right to Life

Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being. The concept of a right to life is central to debates on the issues of capital punishment, euthanasia, self defense, abortion and war.

Article 6 of the ICCPR deals with the right to life, according to this Article –

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Right to Fair Trial

The right to a fair trial is a norm of international human rights law designed to protect

individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. It is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which is of a particularly complex nature, combining various guarantees. The first sentence of paragraph 1 sets out a general guarantee of equality before courts and tribunals that apply regardless of the nature of proceedings before such bodies. The second sentence of the same paragraph entitles individuals to a fair and public hearing by a competent, independent and impartial tribunal established by law, if they face any criminal charges or if their rights and obligations are determined in a suit at law. In such proceedings the media and the public may be excluded from the hearing only in the cases specified in the third sentence of paragraph 1. Paragraphs 2 – 5 of the article contain procedural guarantees available to persons charged with a criminal offence. Paragraph 6 secures a substantive right to compensation in cases of miscarriage of justice in criminal cases. Paragraph 7 prohibits double jeopardy and thus guarantees a substantive freedom, namely the right to remain free from being tried or punished again for an offence for which an individual has already been finally convicted or acquitted. Article 14 of the International Covenant on Civil and Political Rights (ICCPR), also provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The right to a fair trial is applicable to both the determination of an individual’s rights and duties in a suit at law and with respect to the determination of any criminal charge against him or her. Article 14 can be enumurated as follows –

The right to be equal before the courts

The first sentence of article 14, paragraph 1 guarantees the right to equality before courts and tribunals. The right to be equal before the courts includes all people having equal rights to access to the court and equal equipment between defendants and prosecutors. Article 14 encompasses the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law. Access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice.

The right to a fair and public hearing by a competent, independent and impartial tribunal established by law

The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial. The former is called the subjective test of impartiality, and the latter is called the objective test of impartiality.

The right to be presumed innocent

Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media should avoid news coverage undermining the presumption of innocence.

The right to be informed of the charge

The right to be informed of the charge “promptly” requires that information be given as soon as the person concerned is formally charged with a criminal offence under domestic law, or the individual is publicly named as such. The right to be informed of the charge “in detail” requires that the information indicates both the law and the alleged general facts on which the charge is based.

The right to prepare defence and to communicate with counsel

The accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. This provision is an important element of the guarantee of a fair trial and an application of the principle of equality of arms.

The right to be tried without undue delay

This guarantee relates not only to the time between the formal charging of the accused and the time by which a trial should commence, but also the time until the final judgement on appeal. All stages, whether in first instance or on appeal must take place “without undue delay”. What is reasonable has to be assessed in the circumstances of each case.

The right to be present during trial, to defend and to legal assistance

The provision requires that accused persons are entitled to be present during their trial. Proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice.

The right to call and examine witnesses

Article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. As an application of the principle of equality of arms, this guarantee is important for ensuring an effective defence by the accused and their counsel.

The right to the free assistance of an interpreter

The right to have the free assistance of an interpreter arises when the accused cannot understand or speak the language used in court.

The special guarantees for juvenile persons

Article 14, paragraph 4, provides that in the case of juvenile persons, procedures should take account of their age and the desirability of promoting their rehabilitation. Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14. In addition, juveniles need special protection. In criminal proceedings they should, in particular, be provided with appropriate assistance in the preparation and presentation of their defence; be tried as soon as possible in a fair hearing in the presence of legal counsel, other appropriate assistance and their parents or legal guardians, unless it is considered not to be in the best interest of the child.

The right to compensation for wrongful conviction

According to paragraph 6 of article 14, compensation according to the law shall be paid to persons who have been convicted of a criminal offence by a final decision and have suffered punishment as a consequence of such conviction, if their conviction has been reversed or they have been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. The right to compensation for wrongful conviction is based on the following four conditions: Firstly, a person has by a final decision been convicted of a criminal offence. Secondly, subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. Thirdly, the person who was convicted is not responsible for the non-disclosure of the unknown fact in time. Fourthly, penalties have been actually

implemented.

The right to appeal

Article 14, paragraph 5 provides that anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law. The right to appeal is also known as the right to be reviewed. The Human Rights Committee considers that the right to appeal is absolute.

In addition to the 16 concrete guarantees mentioned above, article 14, paragraph 1 provides a special kind of right—the general right to a fair trial. (“…everyone shall be entitled to a fair …hearing…”)Unlike the concrete guarantees, the general right to a fair trial requires to evaluate the proceedings as a whole. If any of these concrete guarantees are not respected, the trial cannot be viewed as having been fair. However, on the other hand, the fact that those rights have been respected does not yet guarantee that the trial was fair.

Conclusion

The right to life is not, however, as inviolable as it might seem at first sight. There are a number of situations where states may deprive individuals of life itself and to which international human rights law does not raise an objection. The use of the death penalty is one such example. Human rights law does not prohibit the use of the death penalty as a punishment for crimes but does encourage its abolition and seek to limit its use. The use of violence in self-defence lies at the base of other justifications for the taking of human life. Killing is permitted at times of war save for the murder of civilians and prisoners of war. Human rights law thus tries to respond to the myriad of ethical dilemmas raised by the right to life by establishing a range of prohibitions and exhortations. On the other hand, Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence, or is exposed to other manifestations of hostility with similar effects. Expressions of racist attitudes by a jury that are tolerated by the tribunal or a racially biased jury selection are other instances which adversely affect the fairness of the procedure. The general right to a fair trial makes the right to a fair trial be exoteric, and can accommodate to the development of the society. In the process of interpreting ICCPR, the Human Rights Committee has added more and more concrete guarantees to fair trial rights via the general right to a fair trial.