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人权律师辩护律师必读之公正审判指南(英文)
EXTRACTS FROM THE FAIR TRIAL MANUAL
The Fair Trial Manual (a reference manual on international and regional standards for fair trial, published by Amnesty International in 1998) cites the names of human rights standards and bodies in an abbreviated form. We list below the full names of those cited in the extracts of the Manual presented here, with their abbreviated form given first:
ABBREVIATED FORM FULL NAME
African Charter African Charter on Human and Peoples' Rights
African Commission African Commission on Human and Peoples' Rights
American Convention American Convention on Human Rights
American Declaration American Declaration of the Rights and Duties of Man
Basic Principles for the Treatment of Prisoners Basic Principles for the Treatment of Prisoners (United Nations)
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (United Nations)
Body of Principles Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (United Nations)
Code of Conduct for Law Enforcement Officials Code of Conduct for Law Enforcement Officials (United Nations)
Committee against Torture Committee against Torture (United Nations)
Convention against Torture Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations)
Declaration against Torture Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations)
Declaration on Disappearance Declaration on the Protection of All Persons from Enforced Disappearance (United Nations)
European Commission European Commission of Human Rights
European Convention (European) Convention for the Protection of Human Rights and Fundamental Freedoms
European Court European Court of Human Rights
European Prison Rules European Prison Rules
Guidelines on the Role of Prosecutors Guidelines on the Role of Prosecutors (United Nations)
Human Rights Committee Human Rights Committee (United Nations)
ICC Statute Statute of the International Criminal Court (United Nations)
ICCPR International Covenant on Civil and Political Rights (United Nations)
Inter-American Commission Inter-American Commission on Human Rights
Inter-American Convention on Disappearance Inter-American Convention on Forced Disappearance of Persons
Inter-American Convention on Torture Inter-American Convention to Prevent and Punish Torture
Principles of Medical Ethics Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations)
Rwanda Rules Rules of Procedure and Evidence, International Tribunal for Rwanda (United Nations)
Rwanda Statute Statute of the International Criminal Tribunal for Rwanda (United Nations)
Special Rapporteur on the independence of judges and lawyers Special Rapporteur on the independence of judges and lawyers (United Nations)
Standard Minimum Rules Standard Minimum Rules for the Treatment of Prisoners (United Nations)
Universal Declaration Universal Declaration of Human Rights (United Nations)
Yugoslavia Rules Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (United Nations)
Yugoslavia Statute Statute of the International Criminal Tribunal for the former Yugoslavia (United Nations)
EXTRACTS FROM CHAPTER 5 (Fair Trial Manual)
The right to be brought promptly before a judge or other officer
Anyone deprived of their liberty has the right to be brought promptly before a judge or other judicial officer, so that their rights can be protected.
5.1 The right to be brought promptly before a judge or judicial officer
In order to safeguard the right to liberty and freedom from arbitrary arrest or detention, and in order to prevent violations of fundamental human rights, all forms of detention or imprisonment must be ordered by or subject to the effective control of a judicial or other authority. [Principle 4 of the Body of Principles.]
Anyone arrested or detained must be brought promptly before a judge or other officer authorized by law to exercise judicial power. [Article 9(3) of the ICCPR, Article 10(1) of the Declaration on Disappearance, Paragraph 2(C) of the African Commission Resolution, Article 7(5) of the American Convention, Article XI of the Inter-American Convention on Disappearance, Article 5(3) of the European Convention, Article 59(2) of the ICC Statute, Principle 11(1) of the Body of Principles.]
Article 9(3) of the ICCPR applies to people arrested or detained on a criminal charge, but the other standards apply more broadly to all people deprived of their liberty.
The purposes of the review before a judge or judicial authority include:
- to assess whether sufficient legal reason exists for the arrest;
- to assess whether detention before trial is necessary;
- to safeguard the well-being of the detainee;
- and to prevent violations of the detainee's fundamental rights.
Relevant Standards
Article 9(3) of the ICCPR:
"Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release..."
Principle 11(1) of the Body of Principles:
"A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law."
This procedure often provides the detained person with their first opportunity to challenge the lawfulness of their detention and to secure release if the arrest or detention violated their rights.
The Inter-American Commission has stated that if a court is not officially informed of a detention or is informed only after significant delay, the rights of a detainee are not protected. It pointed out that such situations lend themselves to other types of abuses, erode respect for the courts and their effectiveness and lead to the institutionalization of lawlessness. (12)
In view of the importance of this right in protecting detainees against serious violations of human rights, including "disappearances", Amnesty International, in its 14-Point Program for the Prevention of "Disappearances", calls for all prisoners to be brought before a judicial authority without delay after being taken into custody.
5.1.1 Officers authorized to exercise judicial power If the detained person is brought before an officer other than a judge, the officer must be authorized to exercise judicial power and must be independent of the parties. All those exercising judicial authority must be independent -- they must fulfil the criteria set out in the Basic Principles on the Independence of the Judiciary (see Chapter 12.4 The right to be heard by an independent tribunal).
For example, the European Court held that there was a violation of Article 5(3) of the European Convention when the ''other officer authorised by law to exercise judicial authority'' was an auditeur militaire or a public prosecutor who could intervene in subsequent proceedings as a representative of the prosecuting authority. (13)
5.2 What does "prompt" mean?
International standards require that this hearing take place promptly after detention. While no time limits are expressly stated within the standards themselves, and they are to be determined on a case by case basis, the Human Rights Committee has stated that "...delays should not exceed a few days". (14)
Members of the Human Rights Committee have questioned whether detention for 48 hours without being brought before a judge is not unreasonably long. (15)
In a death penalty case, the Committee ruled that a delay of one week from the time of arrest before the detainee was brought before a judge was incompatible with Article 9(3) of the ICCPR. (16)
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