Defense and Human Rights in a Fair Trial (For the Defendant)
Adil Yargılanma Hakkı Kapsamında Savunma ve İnsan Hakları (Sanık Açışından)
Francesca CAPPA,Vaina CIRESE
The right to a fair trial is fundamental to the rule of law and to democracy itself and this is recognised in the majority of States.
The right to a fair hearing, which applies to any criminal charge as well as to the determination of civil rights and obligations, contains a number of requirements.
There must be real and effective access to a Court (although there are limited exceptions in the case of minors, prisoners etc.), and this require access to legal aid.
There must be a hearing before an indipendent and impartial Court or Tribunal established by law.
It is worth saying that a part from Art.6 ECHR, various rights associated with a fair trial are also explicity proclaimed in Art. 10 of the Universal Declaration of Human Rights, the Sixth Amendment of the United States Constitution, as well as numerous other constitutions and declarations throughout the world.
Judges, lawyers, university professors have the task to apply the law according with the respect of these principles mutually agreed on.
Fair Trial, Defense, Human rights, Effective Access to Court, Art. 6 ECHR.
Adil yargılanma hakkı, hukukun üstünlüğü ve demokrasinin kendisi için esas teşkil edip, Devletlerin çoğunda tanınmaktadır. Herhangi bir cezai yaptırım ve sivil hakların ve yükümlülüklerin belirlenmesinde uygulanan adil duruşma hakkı, bir takım gereklilikleri içerir. Bir mahkemeye gerçek ve etkili bir erişim olmalıdır (nadir durumlarda, mahkumiyet ve benzeri durumlarda sınırlı istisnalar olmasına rağmen) ve bu durum adli yardım erişimi gerektirir. Kanunla kurulmuş bağımsız ve tarafsız bir mahkemenin önünde duruşma yapılmalıdır.
Ayrıca AİHS’nin 6. maddesi uyarınca adil yargılanma hakkı ile ilgili çeşitli haklar, İnsan Hakları Evrensel Beyannamesinin 10. Maddesi, Birleşik Devletler Anayasası’nın 6. Değişikliğinde ve dünyanın dört bir yanındaki diğer pek çok Anayasa ve Deklarasyonda açıkça bildirilmektedir. Hâkimler, avukatlar, üniversite profesörleri, karşılıklı olarak üzerinde anlaşmaya varılan bu ilkelere saygı duyarak kanunları uygulamakla görevlidirler.
Adil Yargılanma, Savunma, İnsan Hakları, Mahkemeye Etkin Erişim, AİSH m. 6.
The right to a fair trial is fundamental to the rule of law and to democracy itself and this is recognised in the majority of States.
The right applies to both criminal and civil cases, although certain specific minimum rights set out in Article 6 of the European Convention on Human Rights (ECHR) apply only in criminal cases.
The right to a fair trial is absolute and cannot be restricted. It implies a fair and public hearing within a reasonable time by an indipendent and impartial Tribunal established by law. The procedural requirements of a fair hearing may change according to the circumstances of the accused.
The right to a fair hearing, which applies to any criminal charge as well as to the determination of civil rights and obligations, contains a number of requirements.
There must be real and effective access to a Court (although there are limited exceptions in the case of minors, prisoners etc.), and this require access to legal aid.
There must be a hearing before an indipendent and impartial Court or Tribunal established by law.
The hearing must be held within a reasonable time. What is reasonable? It depends on the complexity of the case, its importance, the behaviour of both the applicant and competent authorities, and the length of time between the conduct in question (i.e. When the offence was committed or contract breached etc) and when the trial takes place.
The applicant must have a real opportunity to present his case or challenge the case against him. This will require access to an opponent's submissions of evidence, access to the evidence of the other party and an oral hearing.
The Court of Tribunal must give reasons for its judgment.
There must be equality of arms between the parties, so, for example, the defence has the same right to examine witnesses against them as the prosecution has and both parties have the right to legal representation etc.
In criminal cases, there is a right to silence and a privilege against self-incrimination (although it may be possible to draw adverse inferences from suspects remaining silent).
An accused person must have the right to effective participation in the criminal trial. Except for strictly limited exceptions, an accused is entitled to be physically present at his or her hearing to give evidence in person and be legally represented.
The hearing and judgment must be made public even if hearings can be held in private in some cases, for example:
- if it is necessary and proportionate and in the interest of morals, public order or national security in a democratic society;
- if it is in the best interests of child;
- if it is required for the protection of the private life of the parties;
- if it is strictly necessary in apecial circumstances where publicity, in the Court's opinion, would prejudice the interests of Justice.
