Ineffective Counsel and Fair Trials. Just How Low Can You Go?

The right to a fair criminal trial means general guarantees that are provided to respect the rights of the litigants in the legal process. Governments are committed to ensuring the right to a fair trial for citizens. The fair trial includes many examples that every citizen should enjoy in the process of criminal and civil proceedings. Some standards of a fair trial, including the right to sue, access to neutral and independent courts, the right to a lawyer, and the like, have a general aspect and can be applied in all types of civil and criminal lawsuits. Some other indicators of a fair trial, including the principle of acquittal, explanation of charges, the presence of a lawyer in court, and similar issues, are only applicable to criminal lawsuits. Adherence to jurisprudential norms, international documents, and procedural rules is the guarantee of the execution of a fair trial, and not only the establishment of a competent court must be in accordance with jurisprudence, legal rulings, and international standards, but also the method of its proceedings with clear and well-known principles and criteria. Be accompanied by jurisprudence, legal and universal. In this research, a descriptive-analytical method is used to examine the right to a fair criminal trial separately and independently in light of international and jurisprudential documents with a look at the criminal laws of Afghanistan and its criteria. It should be remembered that the purpose of this article is not a comparative view between the three mentioned views, but the main goal is to examine the position of a fair trial in the three jurisprudential views, international documents, and criminal laws of the country.

Change of legal basis by the court and the right to a fair civil trial

This Comment explores the right of citizens to be part of the justice system by exercising their right to sit on a jury. A citizen's right to be empanelled, however, could directly affect a party's right to a fair and impartial trial. Thus, some safeguards, such as challenges for cause, must be kept in place. However, the use of peremptory strikes may be interfering far more with a citizen's right to sit on a jury than with a party's right to a fair and impartial trial. In Rivera v. Illinois, the Supreme Court reiterated that it is up to the states to determine the existence and exercise of peremptory challenges, although peremptory challenges themselves are not a constitutional guarantee with regards to an impartial jury and a fair trial. Although the Supreme Court has left this task to the states, the Court has held that a juror may not be stricken based on race, ethnicity, or gender. This Comment evaluates which states have extended the restriction to other categories such as religion and age and discusses the extent to which other categories should be included. Thus, as state law continues to broaden the equal protection of jurors under the Equal Protection Clause, the question must be asked: When is the exercise of a peremptory strike not purposeful discrimination against a potential juror?

The linguistic dynamics of a multilingual trial are significant determinants of fair hearing. By analysing the jurisprudence of the International Criminal Tribunals, on language and fair trial, this article attempts to situate language guarantees in the framework of the fundamental right to fair trial. If successful, this could raise the profile of the entire debate on language in international criminal trials, and hopefully instigate reform. Notably, the effective participation of a person in his/her trial is a function of language. From the information of charges, through the process of defence, examining witnesses and interpreting the evidence, language is a significant handmaid. Specifically, translation, as an indispensable component of a multilingual trial, enhances the relevance of linguistic forces to the realisation of a fair criminal trial.

It is Better that Ten Guilty Persons Escape than that One Innocent Sufferr: The African Court on Human and Peopless Rights and Fair Trial Rights in Tanzania

ABSTRACT: The African Court on Human and Peoples’ Rights (African Court) has recently been flooded with fair trial cases against its host state, Tanzania. To date, the African Court has disposed with five of these cases on the merits, and dismissed the other as being inadmissible. These cases are Abubakari v Tanzania, Jonas v Tanzania, Nganyi v Tanzania, Onyachi v Tanzania, and Thomas v Tanzania. Numerous similar cases, all alleging that Tanzania is in violation of fair trial rights as guaranteed in the African Charter on Human and Peoples’ Rights and other human rights instruments, are pending before the African Court. This article traces the involvement of the African Court, in the context of the five decided cases, in nurturing fair trial norms in Tanzania. On the one hand, the emerging Court jurisprudence on fair trial is of importance for the promotion and protection of fair trial norms on the continent; and, on the other hand, it is an opportunity for the African Court to firmly stamp its authority in this thematic domain, taking into account of the little jurisprudence it has in its disposal. In some cases, the African Court has shied away from granting effective remedies in favour of the applicants, whose fair trial rights were ruled to be violated. Further, an assessment of the cases gives an impression that the country’s judiciary and prosecuting authority are careless and sloppy in their application of fair trial standards. There therefore is a need for domestic fair trial rights to be strengthened.
 
 TITRE ET RÉSUMÉ EN FRANÇAIS: ‘Il vaut mieux laisser s’échapper dix personnes coupables que de voir souffrir un seul innocent’: La Cour africaine des droits de l’homme et des peuples et le droit à un procès équitable en Tanzanie RÉSUMÉ: La Cour africaine des droits de l’homme et des peuples (Cour africaine) a récemment été inondée d’affaires concernant le droit à un procès équitable contre son pays d’accueil, la Tanzanie. À ce jour, la Cour africaine s’est prononcée au fond sur cinq de ces affaires et en a déclaré une autre irrecevable. Ces affaires sont Abubakari c Tanzanie, Jonas c Tanzanie, Nganyi c Tanzanie, Onyachi c Tanzanie et Thomas c Tanzanie. De nombreuses affaires similaires, toutes alléguant que la Tanzanie viole le droit à un procès équitable tel que garanti par la Charte africaine des droits de l’homme et des peuples et d’autres instruments relatifs aux droits de l’homme, sont pendantes devant la Cour africaine. Cet article retrace l’implication de la Cour africaine, en ce qui concerne les cinq affaires jugées, dans la promotion des normes de procès équitable en Tanzanie. D’un côté, la jurisprudence émergente de la Cour sur le procès équitable est importante pour la promotion et la protection des normes de procès équitable sur le continent; et, de l’autre, c’est l’occasion pour la Cour africaine d’affirmer fermement son autorité dans ce domaine thématique, compte tenu de la faible jurisprudence dont elle dispose. Dans certains cas, la Cour africaine s’est abstenue d’accorder des demandes efficaces aux requérants dont elle a conclu que les droits à un procès équitable avaient été violés. En outre, une évaluation de la jurisprudence donne l’impression que les autorités judiciaires et celle en charges des poursuites de l’Etat concerné sont imprudentes et négligentes dans l’application des normes du procès équitable. Il est donc nécessaire de renforcer le droit national en matière de procès équitable.

Journal Article Nato ‘Fair Trial’ Safeguards: Precursor to an International Bill on Procedural Rights Get access Nato ‘Fair Trial’ Safeguards: Precursor to an International Bill on Procedural Rights. By Robert B. Ellert. The Hague: Nijhoff. 1963. 89 pp. Bibliog. Index. Fl. 9.40. G. I. A. D. Draper G. I. A. D. Draper Search for other works by this author on: Oxford Academic Google Scholar International Affairs, Volume 40, Issue 3, July 1964, Page 501, https://doi.org/10.2307/2610843 Published: 01 July 1964

This article offers critical reflection on the scope of the fair trial notion in Article 68(3) of the Statute of the International Criminal Court (ICC). The ICC Statute — perhaps more clearly than any other international procedural regime — is committed to the general idea of fairness, including for victims as an overarching principle of international criminal justice. However, the article challenges claims that the fair trial notion in Article 68(3) contains any fair trial guarantee for victims participating in proceedings before the ICC. The analysis of the relevant ICC jurisprudence shows that victims’ rights to participate are ultimately reducible to mere privileges, because their scope of participation is entirely dependent on discretionary judicial decisions. The Court’s response to the difficult task of making a criminal trial with thousands of participants work is common legal representation. This collective approach to participation might be pragmatic but leaves no scope for any claims regarding individual fair trial rights for victims. The general trend towards increasingly treating victims as a collective, rather than individuals, is also inconsistent with the idea of an overarching, general component of fairness for all parties and participants. To achieve such a general component of procedural fairness attached to the proceedings more widely speaking, it is argued that the ICC will need to rethink its approach to victim participation. Only a clear-cut, minimum set of participatory rights guaranteed in the legal framework of the Court, spelled out for example in the Rules of Procedure and Evidence, would allow the definition of a breach to any general component of fairness. Till then, the ‘right to a fair trial’ or a ‘fair trial guarantee’ continues to be reserved for the accused.

This article analyses the provisions of the Sexual Violence Legislation Act 2021 that offer witnesses in sexual cases access to pre-recorded cross-examination as an alternative method of giving evidence. The Act is intended to reduce the trauma of sexual violence victims in court whilst preserving the fairness of the trial. The Act prima facie entitles witnesses to access alternative evidence methods, but judges retain a discretion under s 106G to prevent the use of pre-recorded cross-examination. Under s 106G, the judge must do so where the pre-recorded cross-examination presents a real risk to the fairness of the trial. This article evaluates how judges are likely to exercise their discretion under s 106G. I recount the contemporary notion of a fair trial through the lens of the New Zealand Bill of Rights Act 1990 and identify areas of tension between defendants' fair trial rights and witnesses' interests. I assess how the realities of the system render pre-recorded cross-examination workable only at the expense of defendants' fair trial rights. Consequently, judges will almost always be compelled to make orders under s 106G preventing pre-recorded cross-examination. The Act is unfit for its purpose of expanding the availability of alternative evidence for witnesses and improving the justice process for sexual violence complainants.

The purpose of this article is to determine whether the use of operational control materials as trial evidence, with due regard to their secrecy protected under a ‘classified’ clause, consequently results in a fair criminal trial. Reflections on this subject, also against the background of selected court decisions, have been illustrated with examples of a destructive impact of secrecy of operational control materials on the implementation of the principles of speed and openness of the criminal procedure and respect for the right to defence. At the same time, the admissible ways of solving the dilemmas arising at this level, consisting in the initiatives used by the procedural bodies aimed at removing secrecy clauses from the discussed materials, were presented in an approving light. Above all, however, in this context the author made an attempt to demonstrate that evidence based on operational control materials does not, in principle, deserve any special protection in a criminal trial and, except for a few cases, it should de lege lata be public. Finally, the theses presented in the article call into question, on the basis of the applicable legal regulations, the current practice in the field of providing operational control materials labelled as classified for the purposes of criminal proceedings. Key words: operational control, secrecy clause, confidentiality clause, secret, confidential, classified, fair trial

Contents: Introduction Part I The Open Justice Principle: Courts, transparency and public confidence - to the better administration of justice, Beverley McLachlin The principle of open justice: a comparative perspective, J.J. Spigelman A public right to know about public institutions: the 1st Amendment as sword, Anthony Lewis Name suppression: an adjunct to the presumption of innocence and to mitigation of sentence, Roderick Munday Automatic reporting restrictions in criminal proceedings and Article 10 of the ECHR, Ian Cram Democracy and the demystification of courts: an essay, David A. Anderson. Part II Cameras in the Court-Room: Courts on television, Martin Dockray Cameras in the courtroom - not without my consent, M. David Lepofsky A comparative analysis of 1st Amendment rights and the televising of court proceedings, Daniel Stepniak. Part III Prejudicial Media Publicity: Punishing the press: using contempt of court to secure the right to a fair trial, Stephen J. Krause You say 'fair trial' and I say 'free press': British and American approaches to protecting defendants' rights in high profile trials, Joanne Armstrong Brandwood Pre-trial publicity and its treatment in the English courts, David Corker and Michael Levi Fundamental rights, fair trials and the new audio-visual sector, Clive Walker Empirical and legal perspectives on the impact of pre-trial publicity, T.M. Honess, S. Barker, E.A. Charman and M. Levi. Part IV Journalists' Privilege Not to Reveal Sources: Protecting journalists' sources: Section 10, Contempt of Court Act 1981, Stephanie Palmer The priestly class: reflections on a journalist's privilege, William E. Lee Protection against judicially compelled disclosure of the identity of news gatherers confidential sources in common law jurisdictions, Janice Brabyn Name index.

媒體的影響力無遠弗屆，數位匯流下的媒體影響力更是不容小覷。據此，媒體產業的問題更值得關注。 本篇論文主要討論媒體公審的現象，並聚焦於「公平審判」與「媒體近用」兩個概念上。本文認為「媒體公審」的定義是「媒體公審係指新聞從業人員、司法人員、案件當事人或相關人對訴訟案件於媒體上發表不當或違法的報導或評論，致有侵害人民權利的行為。」接著分為三個面向討論媒體公審的現象。 首先，媒體公審的現象常會使新聞自由與公平審判的權利產生衝突，如何兼顧這兩項權利是本文的關懷核心。其次，不同的審判制度會對媒體公審產生不同的影響力，本文討論陪審團制度、職業法官制和我國正在試推行的人民觀審制，其中媒體公審對陪審團制的影響力最大。再來，憲法保障人人皆有接近使用媒體的權利，但為了確保公平審判的進行，此權利應該隨著使用者的身份不同而有限制，不同身份享有的媒體近用權由寬廣到狹隘的排序是一般人民、訴訟案件的當事人或相關人以及人身自由受限的人。 最後，本文從媒體公審的三大參與者(媒體、人民、司法人員)的互動關係重新探討媒體公審的現象，提出如何改善媒體公審的現象；並認為可以從偵查不公開的落實、制度的建立以及落實媒體近用權三方面來兼顧人民新聞自由和公平審判權利。

Observance of Due Process Rights in Capital Offence Trials: Assessing Nigeria through the Lens of International Instruments. Emmanuel Olugbenga Akingbehin Abstract The trial rights of a capital offender range from arraignment to sentencing. Section 33 of the Constitution of the Federal Republic of Nigeria 1999, authorizes a deprivation of life, if the execution is of a sentence of court, in respect of criminal offence, for which such person has been found guilty. The Criminal Justice Administration Act and the Nigerian Constitution, inter alia make provisions for the various safeguards aimed at protecting citizen‟s rights in ensuring due process in trial procedures, including the execution of death sentences. Also, the U.N ECOSOC has encouraged UN member states, in which death penalty has not yet been abolished to ensure that a defendant facing a possible death sentence is given all guarantees to ensure a fair trial. However, this research work has found that many capital offence trials in Nigeria have fallen short of international standards of fair trial. This paper is therefore aimed at analyzing the extent of compliance or otherwise, of the various stakeholders in the Nigerian criminal justice system, with the international due process requirements, in the legal processing of a capital offender at the trial stage. The paper, which is divided into six parts, delved on the analysis of fair hearing and trial within a reasonable time in the public before a court or tribunal. The author also appraised capital offender‟s rights to presumption of innocence, adequate time and facility to prepare defence and mandatory legal representation. The author made his findings and proffered appropriate recommendations. Full Text: PDF DOI: 10.15640/jlcj.v9n1a4

Fair trial as a principle which ensures the administration of justice is guaranteed in the constitutions of every democratic society. The right to fair trial is an essential right in all countries respecting the rule of law. Fair trial and justice constitute the back bone of all applicable procedures and substantial laws almost in every legal culture. This means that fair trial should be perceived as a “human right” issue and therefore an international concern which should comply and be measured by international norms. This paper aims at analyzing the challenges faced in the effective implementation of the safeguard to fair trial and Justice in Cameroon. The Cameroon criminal justice system has all necessary provisions aimed at safeguarding fair trial and ensuring a horizontal playing field where justice is been maintained. However, the question remains how effective does these laws safeguard the right to fair trial and Justice. The mechanisms put in place to ensure the safeguard to fair trial and justice is insufficient, ineffective and unsuitable in guaranteeing the safeguard to fair trial and justice. In the absence of fair trial and justice, the rule of law, human rights and consequently the idea of justice becomes illusionary.

The Covid-19 pandemic that hit Indonesia has caused major changes in the legal world. The enactment of social distancing/physical distancing rules and Large-Scale Social Restrictions (PSBB) ultimately forced the Supreme Court to make a legal breakthrough by issuing PERMA No. 4 of 2020 concerning the Administration and Trial of Criminal Cases in Courts Electronically, the purpose of which is to fill the legal vacuum in the Criminal Procedure Code and guarantee the right of the accused to immediately obtain legal certainty for the crime he is accused of through trial without undue delay, with fair treatment. and impartiality (fair trial) , which is a guarantee for the protection of the rights of everyone in the judicial process. PERMA No. 4 of 2020 concerning the Administration and Trial of Criminal Cases in Courts Electronically guarantees a fair and impartial electronic trial that meets the principles of justice and legal certainty, by clearly stipulating the rights of defendants in electronic criminal case trials, namely the right to obtain legal assistance, the right to defend, the right to be tried in a court session which is open to the public, and the right to immediately receive an examination in court for legal certainty. Then to fill the legal vacuum in the Criminal Procedure Code, and in the future, electronic criminal case trials must be strictly regulated to become the new norm in the revision of the Criminal Procedure Code.