Chapter: 7, Administration of justice and fair trial:

Chapter: 7, Administration of justice and fair trial: 

A. Concept, elements and principles of Fair trial.

• Fair trial encompasses all processes of criminal justice from filing cases to execution of judgment.
• Independent on: 
• Unbiased application of available resources.
• Safeguard of just treatment. 
• Provide remedy to the victim.
• The concept of fair trial is based on the ideology that the state brings the accused before the law.
• Fair trial is a fundamental right having two elements: fair, reasonable.
• The major objective of the criminal justice system is to ensure the right to fair trial.
• Right to fair trial is to protect the accused from unlawful or arbitrary deprivation of human rights.

Cases:

State V. individual: 

• States have systems of interrogation, collection of evidence against suspects.
• Such rights are not given to the suspect to establish his/ her innocence.
• Application to establish guilt beyond reasonable doubt is given to the prosecutor.
• Therefore, violation of these actions results in serious consequences. So, fair trial must be maintained

Jahira Habibullah Sheikh Vs. state of Gujarat.

Everyone has an inbuilt right to be dealt fairly in a criminal trial. Denial of fair trial is as much as injustice to the accused as it is to the victim and to society.

Principal fair trial:

1. Adversarial system: 

• Here, the responsibility to produce the evidence lies on the prosecutor.
• Judges act as neutral or umpire only.
• States use their agencies to prosecute wrong doers. 

2. Presumption of innocence: 

• In every criminal trial the presumption of innocence lies in the favor of the accused.
• Until the guilt is proven beyond reasonable doubt the accused shall be presumed innocent.
• It comes from the Latin principle which says that the burden of proof rests on that person who arrests, not who denies the guilt. 

• Case: state of UP V. Naresh and others. Court ruled that every accused is presumed innocent until his guilt is Proven.

  LAWS:

• Article 20(5):  Every person charged with an offence shall be presumed innocent until proved guilty of the offence. 
• Article 11 of UDHR: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
• Article 14(2) of ICCPR:  Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.  
• It is an important concern of human rights because it protects people from social disgrace.

3. Independent, impartial and competent courts/ judges:

• Proceedings in any criminal case are to be conducted by independent, impartial, and competent court/judges.

  LAWS: 

• Article 10 Of UDHR:  Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.  
• Article 14 of ICCPR:  In any criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
• Article 20(9) of constitution: Every person shall have the right to a fair trial by an independent, impartial and competent court or judicial body.

4. Principle of double jeopardy: 

• It prohibits an individual from being prosecuted twice for the same offense. So, ensures protection against repeated prosecutions and multiple punishments for the same crime. 

  LAWS:

• Article 20(6) of constitution of Nepal: No person shall be tried and punished for the same offence in a court more than once. 
• Article 14 (7) of ICCPR:  No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.  
• In the United States, the Double Jeopardy Clause is found in the Fifth Amendment to the Constitution, which states: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." This clause provides three distinct protections:

1. Protection against a second prosecution after acquittal.
2. Protection against a second prosecution after conviction.
3. Protection against multiple punishments for the same offense.

• CASE: kolla Veera raghav Rao Vs. Venkateswar Rao: The supreme court held that no one can be tried and convicted twice for the same offence or even for different offence but for the same facts. 

5. Principle of legality: 

• The procedural fairness of all three stages should be lawful. That means, the procedure of all stages should be in accordance with the law.

   

• LAWS:
• Article 9(1) of ICCPR: No one shall be subjected to arbitrary arrest or detention.
• HRC view on this principle: Following elements of arbitrariness should be avoided (in all 3 stages):

1. Inappropriateness. 
2.  Injustice.
3. Lack of predictability. 
4. Due process of law. 

6. Right to legal representation.

LAWS: 

• Article 20(2) of constitution of Nepal: Any person who is arrested shall have the right to consult a legal practitioner of his or her choice from the time of such arrest and to be defended by such legal practitioner. Any consultation made by such person with, and advice given by, his or her legal practitioner shall be confidential. 
• Article 14(3) of ICCPR: To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; 

7. Principal of equality of arms:

•  The principle of equality of arms is a fundamental aspect of fair trial rights, ensuring that all parties in a legal proceeding have a reasonable opportunity to present their case under conditions that do not disadvantage any party in comparison to their opponent. 
• Equality of arms in: 
•  access to document 
• and to access a lawyer.

• CASE: Powell Vs. Alabama 1931. The Supreme court held that the accused has the right to legal representation and assistance. 

8. Principle of non discrimination. 

9. Principle of independence of judiciary.

B. Stages of fair trial: 

1. Pre trial. 
2. Trial.
3. Post trial.

Pre trial: 

1. Knowledge of accusation: Article 20(1) : No person shall be put in custody without being informed about the ground of arrest.
2. Protection against illegal arrest: 

• No arrest without warrant. 
• Police should take consent of the court and show possible grounds that arrest is reasonable.
• Section 9 of criminal procedural code 2074:  Power to arrest persons related to offence. 

1. Right to legal representative:

• Article 20(2) of constitution: Any person who is arrested shall have the right to consult a legal practitioner of his or her choice from the time of such arrest and to be defended by such legal practitioner. Any consultation made by such person with, and advice given by, his or her legal practitioner shall be confidential. 
   

1. Provide legal aid to those of hiring lawyers.

• Article 20(10) of constitution: Any indigent party shall have the right to free legal aid in accordance with law. 

2. Trial: 

• right to open trial. 
• Aid of council - council of own choice. 
• Any indigent party shall have the right to free legal aid in accordance with law. 
• Proceedings in presence of accused.
• Right to Bail: section 68, 72 of criminal procedural code.
• Prohibition of double jeopardy. (Article 20(6) of constitution).
• Right against self- incrimination. (Article 20 (7) of constitution).
   

3. Post-trial

I. Lawful punishment:

• General principal: no one should be punished for an act which is not punishable by law.(Article 20(4) of the constitution.)

II. Right to human treatment: 

• Prisoner is also a person. So, so the implementation of judgment should focus on reformation.
• Guarantee of basic human right protection. 
• Sentences Act 2017 provides the law relating to it.

III. Right to file appeal. 

IV. Enforcement of judgment.

Article 20 of constitution: Right relating to justice: (important)

Protections under human right standards: 

 UDHR: 

• Article 7: equal protection of law without distinction.
• Article 9: no one shall be subjected to arbitrary arrest or detention.
• Article 11: innocent until proven guilty.
   

 ICCPR: 

• ARTICLE 6: inherent right to life. (No one shall be arbitrarily deprived).
• Article 7: no one shall be subject to torture, cruel or inhuman treatment.
• Article 9: prohibits arbitrary arrest or detention: 
• Article 14(1): incorporate following concepts: 
• All persons are equal in the tribunal. 
• Fair hearing by a competent tribunal.
• Press and public are excluded from criminal trials.
• Judgment up criminal case to be public except case of Juvenile, matrimonial dispute, guardianship of child.
• Article 14(2): innocent until Proven guilty.

C. Fair trial during emergency: 

• In general, emergency situations refers to tests for human rights protection and in particular refers to protection of fair trial.
• It's important to balance the situation of state and individual rights during emergencies.
• LAWS:
• Article 273(10) of constitution: during the state of emergency, fundamental rights as provided in Part-3 may be suspended until the declaration or order is in operation. 
• However, Article 273(10) further provides Article 20: right relating to justice shall not be suspended. Article 20 incorporates the principles of fair trial where Article 20(9) specifically mentions the right to fair trial by an independent, impartial and competent court or judicial body. 

• Article 273(12): Compensation against authority.

                                                                                                                                                                                    Prepared and Edited By: Madhu Dahal and Manish Rajak.