Fair trial and due process

It is also fundamental for ensuring consistency, fairness, and uniform interpretation of the law. Liberty is central to what it means to be human and is a fundamental human right in itself. It is also at the heart of the right to a fair trial because, in most countries, imprisonment the deprivation of liberty is the ultimate criminal sanction.

This punishment can only be justified following a fair and equal legal process. The start of criminal proceedings is often marked by police arrest. This temporary loss of liberty may be entirely justified and authorized by law, but arbitrary arrests have long been a feature of dictatorships and remain common today. To protect against this, people taken into custody must be given reasons for their arrest and be taken promptly before a court. Extended periods of pre-trial detention are also common for people that have not been convicted of any criminal offence, many of whom will ultimately be cleared of any wrongdoing.

This can be justified to ensure vital evidence is preserved or to protect witnesses but if not strictly necessary, pre-trial detention violates the right to liberty and the presumption of innocence. People also have a right to be tried without undue delay to minimise pre-trial detention and reduce the human impact of criminal proceedings. People in detention are entitled to humane conditions where their essential needs are met and, except in extreme circumstances and for a limited time, have a right of access to the outside world, including the right to communicate with family and a lawyer.

A fundamental element of the right to a fair trial is that every person should be presumed innocent unless and until proved guilty. Therefore, the responsibility falls on the state to prove guilt and to discharge the presumption of innocence.

Due to the presumption of innocence, a person cannot be compelled to confess guilt or give evidence against themselves. It is for the state to produce evidence of guilt, not for the defendant to prove innocence. Because of the serious consequences of conviction, the state must prove guilt to a high standard. Given the massive human impact of criminal proceedings on defendants, and the presumption of innocence, trials should take place without undue delay.

It would be unfair to allow states numerous attempts to try to secure a conviction. If a case goes to trial and guilt is not proved, unless exceptional circumstances exist, the person should not be tried again. This requires the state to do the job of prosecution properly in the first instance.

People awaiting trial have not been convicted of any offence and many will ultimately be cleared. Justice must not only be done, it must also be seen to be done. This is one reason why, except in rare cases, people are entitled to a public hearing.

Open justice enables the public to see how justice is administered and by subjecting it to public and press scrutiny, safeguards the fairness of the trial. This is also why people are entitled to a reasoned judgment which has been made public. Open justice requires people to be informed of the reasons for their arrest and any pre-trial detention to safeguard liberty.

They must also be given information on their rights as a suspect. Without this information, conveyed in a language the person understands, rights that exist in law are illusory in practice. People should be told what they are being prosecuted for and shown the evidence against them, in a language they understand. Without this information, a person will not have a fair chance to present a defence , for example by gathering evidence to counter claims made against them or providing alibi evidence.

The right to a fair trial also requires that people charged with offences be allowed to attend court and to participate effectively in the trial. This enables the court to interact with them and allows the person to hear and respond to the prosecution case.

Defendants are entitled to give evidence and, except in exceptional cases, are also entitled to call witnesses and cross-examine prosecution witnesses. How do the authorities effectively prosecute and punish those responsible for terrorism-related offences while guaranteeing the right to a fair trial for all suspects of terrorism?

This was the central question at a regional meeting for Europe convened in Brussels on 5 and 6 July The meeting attracted about 40 participants, including representatives of the ministries of foreign affairs and justice; prosecutors; practitioners; representatives of regional organizations; international, regional, and national human rights and criminal law experts; representatives of the civil society and members of the CTITF.

Among other subjects, the meeting discussed investigation- pre-trial and trial phases for persons suspected of terrorism offences; current legislation, practices and challenges in the fair trial and due process context in Europe; and how to better ensure accountability for human rights violations that occur in the counter-terrorism context.

It is also clear that there are adequate provisions in our Constitution and other laws of Ghana guaranteeing the right to a fair trial in civil cases.

It appears however that from the Bobie decision, a person in a civil case has the right to a hearing, but not that of a fair hearing. There is the temptation to think that the right to a fair hearing in civil cases has now been fashioned to be a privilege.

It is my humble view that the Apex Court will adopt the attitude of recognizing fair trial in all proceedings including civil suits in its bid to dispense true justice devoid of technicism.

Had there been no explicit provisions in our Constitution at all, I believe the line adopted by Japan and India where they recognized fair trial in civil cases even when their Constitutions had no specific provision on them is worth emulating. Ghana, as a Country with its great democratic credentials in the sub region, has come too far to be left behind by the global train. As Judges, we cannot continue to pride ourselves as custodian of our much-cherished Constitution and the bastion of our proud democracy, if we are unable to recognize the right to a fair hearing in all cases, including civil and administrative proceedings.

The Encyclopedia of Ancient History. Wiley-Blackwell, II, Article 31, para 4. II, para 3. Union of India and Ors. The Supreme Court appears to have lost sight of the principle of impari materia in the application of the law. Brilliant exposition, thank you sir for the illumination and the time taken off your busy schedule to educate us.

Your email address will not be published. Justice Alexander Osei Tutu April 10, am 2. Comparative Constitutional Framework Constitutions containing an explicit reference to the right to a fair trial in civil law cases. In Europe, most of the recently adopted constitutions i. For instance, the Constitution of Pakistan was amended in under the influence of Article 10, so as to include the right to a fair trial.

In Canada, the fundamental requirements of procedural fairness are guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms [41] as pointed out by one writer [42]. South Africa also has a similar guarantee contained in the Bill of Rights of the South African Constitution of , [43] albeit providing more details as to procedural requirement.

In other words, the right to procedural due process as contained in the US Constitution applies to both civil and criminal proceedings and encompasses minimum procedural requirements that must be fulfilled.

Essentially, the person concerned must be notified and be given opportunity to be heard by an impartial court. It encompasses a series of principles of fundamental importance within the Brazilian legal system. In some countries, the right to a fair trial is explicitly guaranteed solely to the accused in criminal proceedings e.

Kenya Although the Constitution of Kenya contains a clear mention of the right to a fair trial in Art. The above Constitutional provision has been supplemented by section of the Courts Act, [60] especially sub-sections to wit: 1 The Supreme Court, the Court of Appeal, the High Court or Regional Tribunal may assign a lawyer by way of legal aid to any party to any proceedings before the Court or Tribunal where the Court or Tribunal is of the opinion that it is desirable in the interest of justice that the party should have legal aid and that he is financially unable to obtain the services of a lawyer.

It is worth noting that under Article 11 of our Constitution, the common law forms part of the laws of Ghana [61] , so the natural justice principle of the audi alteram partem i. Conclusion It is evident from the above analysis that a fair trial in civil cases has now become a right in many jurisdictions.

His Lordship Sir Dennis Adjei of the Court of Appeal for noticing my embryonic potentials over a decade ago and encouraging me to join the Bench. Mathias Kormivi Dzotsi, a personal friend whose input to this article has been phenomenal. Wiley-Blackwell, [17] See Footnote 2. C at Holding