Right to a Fair and Speedy Trial / Right to Legal Counsel

R v Vola, [2005] TOSC 31

In a drunken incident, after being provoked, the defendant hit another person repeatedly with an iron bar, killing him. The jury found him guilty. The Supreme Court of Tonga had to consider whether to sentence the defendant to death or life imprisonment. It chose life imprisonment. In so doing, it made reference to Article 6(1) of the ICCPR, to which Tonga was not a party. Nevertheless, the Court allowed the ICCPR to influence its decision in this first verdict in a murder case in Tongatapu in over twenty years. This was a major departure from prior decisions by Tongan courts, which held the ICCPR to be non-enforcable. Thus, the ICCPR and international human rights standards were gaining influence in Tonga.

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In considering minimum penalties, the Supreme Court of Papua New Guinea discussed the U.S. cases of Weems v. United States, 217 US 349 (1910) 54 L. Ed. 793, Robinson v. California, 370 US 660 (1962) 8 L Ed 2d 758, and Furman v. Georgia, 408 US 238 (1972) 33 L Ed 2d 346, among others. The Court then rejected the approach taken by these U.S. courts, noting that U.S. decisions were not binding on the Papua New Guinea Supreme Court. Nevertheless, they were admitted to “have thrown much light” on its approach. The Court also cited the European Convention on Human Rights and Tanzanian and Australian law, among the law of other countries, and said that “torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person.” Nevertheless, the Court upheld the legality of minimum fines and penalties.

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The defendant was convicted on a charge of conspiracy to manufacture methamphetamine. He appealed to the Supreme Court of New Zealand, claiming there was undue delay in the interim between his arrest and trial (almost five years). The Court called the delay “plainly excessive” and cited the European Convention for the Protection of Fundamental Rights and Freedoms. It also cited multiple U.S. Supreme Court cases and held that the delay here could not be justified, and upheld the reduction of his sentence by eighteen months, or twenty-five percent. It hesitated to do, however, out of a concern for letting loose dangerous criminals. It called the reduction “generous” and hinted that only in situations in which the delay in trial reaches “peculiarly outrageous proportions” would the Court reduce prisoners’ sentences.

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In deciding the standards governing whether a judge should be removed from a case because of a fear of bias, the Supreme Court of New Zealand looked to decisions of the European Court of Human Rights and also to the European Convention. The Court held that a judge may be removed based on a reasonable apprehension of bias, even though this would sometimes lead to an unbiased judge being removed. In this case, the Court held that there was no bias by the relevant judge, and dismissed the appeal.

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The Supreme Court of New Zealand noted that neither the ICCPR nor the ECHR provide for a right to trial by jury, but that New Zealand law does.

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(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

(found in ''Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission'' by Amanda Whiting, Stanford Journal of International Law, Winter 2003, Volume 39, Number 1, pp. 84-88)

The Supreme Court of Japan, showcasing its tendency of extreme deference to the executive, overturned a lower court decision regarding criminal law. The lower court decision had held that, given the plaintiff's background in a political organization, it could not be said that the government manifestly lacked a reason to arrest him subsequent to his refusing five times to be interrogated voluntarily. The plaintiff had cited the ICCPR in its arguments, but the Court did not respond to this in its very short opinion. The Court did not even give a reason for failing to deal with the plaintiff's claims. Although this practice of failing to deal with a claim when rejecting it is not unusual in Japanese jurisprudence, the Supreme Court seemed to be sending a signal to lower courts, who had before then shown a tendency to broaden the scope of individuals' rights in Japan through recognition of rights provided in the ICCPR. The signal was that the Supreme Court would not necessarily be quick to broad such rights, even if the judiciary as a whole seemed to be, and that international law (here, the ICCPR) would not necessarily concern the Court if it wanted to rule a particular way.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 480)

Maneka Gandhi v. Union Of India, 25 January, 1978

The passport of the daughter-in-law of the former prime minister was impounded on the ground that her presence was likely to be required in connection with the proceedings of ca commission of inquiry. The Court held that an order impounding a passport must be made quasi-judicially. The audi alteram partem rule (no judgment without a fair hearing) must be regarded as incorporated in the passport law by necessary implication, since any procedure which dealt with the modalities of regulating, restricting, or even rejecting a fundamental right has to be fair, not "arbitrary, freakish or bizarre".

“Things have changed, global awareness has dawned. The European Convention on Human Rights and bilateral understandings have made headway to widen freedom of travel abroad as integral to liberty of the person. And the universal Declaration of Human Rights has proclaimed in Article 13, that every one has the right to leave any country including his own, and to return to his country. This human planet is our single home, though geographically variegated, culturally diverse, politically pluralist in science and technology competitive and co-operative in arts and life-styles a lovely mosaic and, above all, suffused with a cosmic unconsciousness of unity and inter- dependence.”

(p459, The Judicial Application of Human Rights Law, by Jayawickrama, Nihal)

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The Supreme Court of India overturned a conviction based on circumstantial evidence. It cited Articles 3 and 10 of the UDHR. Article 10 supports the principle that one's right to defense includes the right ''to effective and meaningful defence at the trial.''

(found in ''The Status of the Universal Declaration of Human Rights in National and International Law'' by Hurst Hannum, Georgia Journal of International and Comparative Law, Vol. 25, Nos. 1&2, Fall 1995/Winter 1996, p 299-300)

The Indian Supreme Court cited an Amnesty International report when it noted the arbitrary nature of death penalty application. The Court said that “extremely uneven application of [the ‘rarest of the rare’ formulation] . . . has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle.” The Court also noted the UN General Assembly moratorium resolution, as well as the general worldwide trend of avoidance of the death penalty, particularly in Nepal, Bhutan, the Philippines, and South Korea.

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Lau Cheong & Lau Wong v HKSAR, [2002]

The defendants had committed a robbery. In the process, they tied up and stabbed a person, who died from ligature strangulation. It was possible that the defendants did not intend to kill the victim. Nevertheless, they received mandatory life imprisonment sentences for murder. The defendants appealed the life imprisonment sentence, as they claimed they lacked the necessary culpability for murder. On appeal at the Court of Final Appeal, the Court rejected these claims and upheld the life imprisonment sentences. In so doing, the Court compared Hong Kong’s Bill of Rights with the European Convention on Human Rights (ECHR). Nevertheless, the life imprisonment sentences remained.

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The defendants were convicted of insider trading by the Insider Dealing Tribunal. The defendants argued that Tribunal rules were violative of the defendants’ right to be free from self-incrimination. They also argued that the Tribunal applied against them the incorrect standard of proof – the correct standard of proof should have been that of a criminal proceeding, not of a civil proceeding, as mandated in Articles 10 and 11 of the Bill of Rights (Article 14 of the ICCPR).

In reaching its decision, the Court of Final Appeal relied on the European Court of Human Rights (“the Strasbourg Court”) and the General Comments of the UN Human Rights Committee under the ICCPR. Justice Mason, the former Chief Justice of Australia, was a visiting judge. He said that decisions of the Strasbourg Court, though not binding on Hong Kong courts, were “of high persuasive authority”. He also noted the similarity of Article 10 of Hong Kong’s Bill of Rights to Article 6(1) of the European Convention. Justice Mason then applied the Strasbourg Court criteria for determining whether there is a “criminal charge” as per Article 6 of the Convention. He also referred to General Comment No. 32 of the Human Rights Committee , which related to Article 14 of the ICCPR.

The CFA thus held that the standard of proof of a criminal proceeding was the proper standard of proof in this case, and thus the defendants should have had the benefit of such a standard. The CFA also held that the defendants’ right to freedom from self-incrimination had been violated. Regarding the standard of proof, the CFA noted that neither the ICCPR nor the European Convention were clear on the matter. Furthermore, the relevant law of the Strasbourg Court was not conclusive either. Accordingly, the Court relied heavily on the Human Rights Committee’s General Comment No. 13 and General Comment No. 32, which both suggested that proof beyond a reasonable doubt was the proper standard as per Article 14 of the ICCPR. Justice Mason said, “The General Comments [of the Human Rights Committee] are a valuable jurisprudential resource which is availed of by the Committee in its adjudicative role. While the General Comments are not binding on this Court, they provide influential guidance as to how the ICCPR is applied and will be applied by the Committee when sitting as a judicial body in making determinations.”

(found in "International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong" by Albert H.Y. Chen, pp. 27-30, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )

Lam v. Comm'r of Police, [2009] 4 H.K.L.R.D. 575, (C.F.A.)

A police officer was charged with a disciplinary offense regarding “financial imprudence” resulting in the impairment of an officer’s operational efficiency. He was given the penalty of compulsory retirement. The disciplinary proceedings did not allow him an attorney at the hearing. The officer then challenged the fairness of such proceedings.

The Court of Final Appeal needed to determine whether Article 10 of the Bill of Rights (Article 14 of the ICCPR) was applicable. Article 10 required a fair hearing by an independent and impartial tribunal in the determination of any “criminal charge” or a person’s “rights and obligations in a suit at law”. In making its decisions, the CFA looked to the case law of the European Court of Human Rights regarding article 6(1) of the European Convention on Human Rights (similar to Article 10 of the Hong Kong Bill of Rights) and General Comment No. 32 of the Human Rights Committee, which concerned article 14(1) of the ICCPR.

The CFA noted that recent European case law (for example, the then-latest decision of the Strasbourg Court in Eskelinen v. Finland, (2007) 45 Eur. H.R. Rep. 43) followed the trend of extending protection of Article 6(1) of the European Convention to civil servants. However, another international source, the Human Rights Committee, in its General Comment No. 32, had expressed essentially a contrary view. Thus the CFA had to negotiate two conflicting sources of international law. The CFA chose to favor the interpretation of the Strasbourg Court, and thus adopted the Eskelinen approach and ruled in favor of the defendant. The defendant was thus entitled to Article 10’s constitutional protection regarding a fair hearing.

This case further demonstrates the great influence on Hong Kong jurisprudence of the European Convention on Human Rights.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 32-34, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )

Prosecutor v. Kaing Guek Eav Alias Dutch (2009)

A person had been imprisoned for over ten years. He argued that this violated domestic and international law regarding provisional detention.

The Court noted that the Extraordinary Chambers in the Courts of Cambodia (ECCC) was meant to follow procedure in line with Cambodian law. However, the Court said, the ECCC was allowed to adopt its own Internal Rules that complied with international standards. “The ECCC law not only authorizes the ECCC to apply domestic criminal procedure, but also obligates it to interpret these rules and determine their conformity with international standards prescribed by human rights conventions and followed by international criminal courts. Moreover the ECCC must consider Article 31 of the Constitution of the Kingdom of Cambodia which states that ‘the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights.’ Even if a violation of the Accused’s right cannot be attributed to the ECCC, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention.”

The Court then held that the imprisoned person’s detention before the Military Court constituted a violation of Cambodian law. It also violated his internationally-recognized right to a fair and speedy trial.

However, the Court held that the ECCC did not violate domestic or international law by ordering the prisoner to provisional detention. However, the Court also held that if he were to be convicted, he would be entitled to not only credit for time already served, but also to a reduction in sentence, owing to “previous violations to his rights”. If he were to be acquitted, the Court held, international case law indicated that he could seek compensation for violations of his rights, here, those committed by the Cambodian Military Court.

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The defendant had been convicted in a lower court of serious offenses involving the trafficking of narcotics. He could not afford counsel and legal aid societies refused him assistance. Australia, by this time, was an adherent to the International Covenant on Civil and Political Rights, which included in its provisions the right to legal counsel for defendants, provided for by the state. In a joint statement, Chief Justice Mason and Justice McHugh of the Australian High Court said,

“Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach, this nevertheless does not assist the applicant in this case where we are being asked not to resolve uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been recognised should now be taken to exist. Moreover, this branch of the applicant’s argument assumes that art. 14(3)(3) of the ICCPR supports the absolute right for which he contends. An analysis of the views of the Human Rights Committee on communications submitted to it relating to art. 14(3)(d) reveals little more than that the Committee considers that legal assistance must always be made available in capital cases . . . However, the European Court of Human Rights has approached the almost identical provision in the ECHR by emphasising the importance of the particular facts of the case to any interpretation of the phrase ‘when the interests of justice so require’ . . . As will become clear, that approach is similar to the approach which, in our opinion, the Australian common law must now take.” (para. 20)

They also said,

“Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions . . . No such legislation has been passed. This position is not altered by Australia’s accession to the First Optional Protocol to the ICCPR, effective as of 25 December 1991, by which Australia recognises the competence of the Human Rights Committee of the United Naations to receive and consider communications from individuals subject to Australia’s jurisdiction who claim to be victims of a violation by Australia of their covenanted rights. On one view, it may seem curious that the Executive Government has seen fit to expose Australia to the potential censure of the Human Rights Committee without endeavouring to ensure that the rights enshrined in the ICCPR are incorporated into domestic law, but such an approach is clearly permissible.”

The High Court then proceeded to declare a right to free legal assistance in serious criminal cases as an aspect of the common law right to a fair trial. Thus, in serious cases where a defendant could not afford counsel, the courts would have to issue a stay of proceedings until legal counsel could be provided, by whatever means. In so holding, the Court did not declare whether the ICCPR right to legal counsel provision had become customary or general international law. However, the Court was clearly influenced by it. Thus, when the common law was unclear and domestic law did not contradict international law, the Australian High Court could show a willingness to at least be influenced by such international law.

(found in Toward Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, ed. Nisuke Ando, pp. 254-255, 257)

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