FAIR HEARING: AN INDISPENSABLE ELEMENT OF JUSTICE

FAIR HEARING: AN INDISPENSABLE ELEMENT OF JUSTICE

CHAPTER ONE

INTRODUCTION

1.1     Background to Study

Every person has the right to a fair trial both in civil and in criminal cases, and the effective protection of all human rights very much depends on the practical availability at all times of access to competent, independent and impartial courts of law which can, and will, administer justice fairly. Add to this the professions of prosecutors and lawyers, each of whom, in his or her own field of competence, is instrumental in making the right to a fair trial a reality, and we have the legal pillar of a democratic society respectful of the rule of law.

However, an independent and impartial Judiciary capable of ensuring fair trial proceedings is not only of importance to the rights and interests of human beings, but is likewise essential to other legal persons, including economic entities, whether smaller enterprises or large corporations, which often depend on courts of law, inter alia, to regulate disputes of various kinds. For instance, domestic and foreign enterprises will be reluctant to invest in countries where the courts are not perceived as administering justice impartially. Furthermore, it is beyond doubt that in countries where aggrieved persons or other legal entities can have free access to the courts in order to claim their rights, social tension can more easily be managed and the temptation to take the law into one’s own hands is more remote. By contributing in this way to defusing social tensions, the courts of law will contribute to enhancing security not only at the national but also at the international level, since internal tensions often have a dangerous spillover effect across borders.

Yet a glance at the jurisprudence of the international monitoring organs makes it clear that the right to a fair trial is frequently violated in all parts of the world. Indeed, the vast majority of cases dealt with by the Human Rights Committee under the Optional Protocol, for instance, concern alleged violations of pre-trial or trial rights. In what follows, a brief survey of the most relevant aspects of the international jurisprudence will accompany the description of the relevant legal rules.

FAIR HEARING: AN INDISPENSABLE ELEMENT OF JUSTICE