Regulation of the human right to a fair trial in the norms of international law and domestic acts of individual countries (comparative legal analysis)

Soloveva Anna Sergeevna Adjunct, Department of Human Rights and International Law, Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot’ 117437, Russia, Moscow, Akademika Volgina str., 12 1911anya@gmail.com

1.                 Problem statement.The norms of international law establish a legally formalized definition of judicial rights.

As a general requirement for the implementation of the process of implementing a set of international legal norms into national legislation, the entire declared implementation process is carried out in the parameters of multi-format legal effectiveness and legal objectivity. The establishment of legal certainty in relation to the process of implementing the norms of international law in national legislation in terms of the right to a fair trial makes it objectively necessary to analyze the legal positions of States regarding the consolidation of the studied law.

Conceptually, a fair trial should be understood as a set of external legally significant features, namely:

– the right to judicial protection and access to court;

– the right to an independent, impartial, competent court established on the basis of the law;

– the right to a public hearing and, as a consequence, the right to publicly announce a court decision;

– the right to review the case within a reasonable time;

– the right to equality before the court, the tribunal and the law;

– presumption of innocence;

– the general recognition of the complex of fundamental rights of the accused under the circumstances of an objective statement of the legal fact of the commission of a crime.

Positionally, in the parameters of its legal understanding, the phenomenon of "justice" designates itself in the parameters of the general principle of law according to Article 38 of the Statute of the International Court of Justice. The involvement in the parameters of the judicial process of the entire complex of legal features presented here in its entirety makes it reasonable to state the fairness of the trial. A judicial decision is lawful and legally binding in the res judicata regime in circumstances where it is made on the basis of law and justice. The legal prescription of the demand for compliance with the principle of justice is indicated here in the parameters of its quality of the general principle of law within the meaning of Article 38 of the Statute of the International Court of Justice and the content of the entire complex of legal features presented. The positive law enforcement practice of the member States of the world community in terms of respect for law and justice in the space of the world community within the framework of modern international legal relations shows its effectiveness and legal effectiveness under the circumstances of an objectively conducted legal procedure for comparing constitutional and criminal procedural acts of States with international human rights agreements at the universal and regional level, namely: with international The 1966 Covenant on Civil and Political Rights (hereinafter – the Covenant) ^[4], the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the ECHR) ^[2], the 1969 American Convention on Human Rights (hereinafter – the ACHR) ^[5], the 1981 African Charter on Human and Peoples' Rights. (hereinafter – AHPCHN) ^[7].

2.                 Analysis of the problem.The legal comparability of domestic and international acts for the purpose of securing in them the right to a fair trial and/or its individual elements is indicated by their interaction and complementarity in the mode of achieving the legal effectiveness of judicial proceedings with the final prescription of the legal obligation of the court decision on the basis of law and justice.

The integrity of the domestic consolidation of the right to a fair trial and/or its individual elements seems significant due to the primary role of the national mechanism in the protection of human rights.

In the provisions of the Constitution of the Russian Federation of 1993 (hereinafter referred to as the Constitution of the Russian Federation, the Basic Law of the Russian Federation) ^[12], the right to a fair trial was reflected due to the consolidation of its individual elements. Positionally, the indicative consolidation of the elements of the right to a fair trial (Article 14 of the Covenant) has been consistently implemented in a set of relevant provisions of the Constitution of the Russian Federation. Accordingly, the following legal position has been established:

– equality before the court – paragraph 1 of Article 14 of the Covenant and part 1 of Article 19 of the Constitution of the Russian Federation;

– the right not to testify against oneself (not to be forced to such actions) – Clause 3g of Article 14 of the Covenant and part 1 of Article 51 of the Basic Law of the Russian Federation;

– the right to review the sentence by a higher court – paragraph 5 of Article 14 of the Covenant and part 3 of Article 50 of the Constitution of the Russian Federation;

– prohibition of repeated conviction for the same crime – paragraph 7 of Article 14 of the Covenant and part 1 of Article 50 of the Basic Law of the Russian Federation.

The regime of state-legal construction of the Russian Federation, significantly indicated by the legal effectiveness of the right to a fair trial, is consistently implemented in the provisions of the Criminal Procedure Code of the Russian Federation of 2001 (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) ^[16]. Accordingly, the Code of Criminal Procedure of the Russian Federation fixes in the integrity parameters the subject complex of the constituent elements of the right to a fair trial and, as a result, is fully comparable with the prescriptions of Article 14 of the Covenant in the mode of its legal effectiveness and effectiveness, namely:

– the right to have sufficient time and opportunities to prepare a defense – paragraph 3b of Article 14 of the Covenant and Part 3 of Article 47 of the Code of Criminal Procedure of the Russian Federation;

– the right to an interpreter – paragraph 3f of Article 14 of the Covenant and paragraph 7 of part 4 of Article 47 of the Code of Criminal Procedure of the Russian Federation.

The positioning of the Criminal Procedure Code of the Russian Federation in the parameters of securing the constituent elements of the right to a fair trial is indicated taking into account and in development of the general provisions of Article 14 of the Covenant. The positive law enforcement practice of the Russian Federation in terms of demonstrative provision of the right to a fair trial is established according to Article 47 of the Criminal Procedure Code of the Russian Federation in the parameters of the progressive development of the legal position guaranteed by paragraph 3 of Article 14 of the Covenant of the minimum amount of rights of the accused. Substantive confirmation of the fixation of the right to a fair trial according to the circumstances of its consolidation both in the Basic Law of the Russian Federation and in the Code of Criminal Procedure of the Russian Federation defines itself in the parameters of comparability with the prescriptions of Article 14 of the Covenant for the entire range of declared legal positions, namely:

– guarantees of public (open) proceedings of cases – paragraph 1 of Article 14 of the Covenant and Part 1 of Article 123 of the Basic Law of the Russian Federation, part 1 of Article 241 of the Code of Criminal Procedure of the Russian Federation;

– guarantees of independence of courts (judges) – Clause 1 of Article 14 of the Covenant and Part 1 of Article 120 of the Constitution of the Russian Federation, Article 8.1 of the Code of Criminal Procedure of the Russian Federation;

– guarantees of the presumption of innocence – paragraph 2 of Article 14 of the Covenant and Part 1 of Article 49 of the Basic Law of the Russian Federation, part 1 of Article 14 of the Criminal Procedure Code of the Russian Federation;

– the right to a defender – paragraph 3 of Article 14 of the Covenant and Part 2 of Article 48 of the Constitution of the Russian Federation, paragraph 8 of Part 4 of Article 47 of the Code of Criminal Procedure of the Russian Federation.

The international legal involvement of the Russian Federation in the modern world order in the parameters of demonstrative assistance to ensuring international legality and law and order in the mode of objective statement is designated as a real legal action of the procedure for the realization of the right to a fair trial.

The multi-format implementation of the right to a fair trial in the space of the modern world order is established in the mode of a substantive legal criterion for the effectiveness of the criminal justice system of the member States of the world community.

Positionally, the right to a fair trial, as prescribed by the provisions of Article 14 of the Covenant, was enshrined in article 36 of the Constitution of the Republic of Turkey of 1982 (hereinafter – the Constitution of Turkey, the Basic Law of Turkey) ^[9]. The objectivity of legal conformity in the consolidation of the complex of elements of the right to a fair trial within the framework of Article 14 of the Covenant and the Basic Law of Turkey defines itself in the following legal parameters:

– Guarantees of the independence of courts (judges) – paragraph 1 of Article 14 of the Covenant and Article 138 of the Basic Law of Turkey;

– Guarantees of the presumption of innocence – paragraph 2 of Article 14 of the Covenant and Article 38 of the Constitution of Turkey.

In the Criminal Procedure Code of the Republic of Turkey of 2004 (hereinafter referred to as the Code of Criminal Procedure of Turkey) ^[18], the right to a fair trial is established indirectly in part 2 of Article 160, namely through the duty of the prosecutor to protect the rights of the suspect. In addition, the Turkish CPC also enshrines the elements of the right to a fair trial reflected in article 14 of the Covenant, namely:

– the right of the suspect (accused) to know what he is accused of – paragraph 3a of Article 14 of the Covenant and paragraph b of part 1 of Article 147 of the Criminal Procedure Code of Turkey;

– the right to a defender – paragraph 3 of Article 14 of the Covenant and part 1 of Article 149 of the Criminal Procedure Code of Turkey;

– the right to an interpreter – paragraph 3f of Article 14 of the Covenant and part 1 of Article 202 of the Criminal Procedure Code of Turkey.

Positionally, as an objective statement, it seems to be in demand to highlight the constituent elements of the right to a fair trial, enshrined both in the Constitution of Turkey and in the Criminal Procedure Code of Turkey, as well as correlated with the guarantees established in Article 14 of the Covenant:

– guarantees of public (open) proceedings (hearings in court) – paragraph 1 of Article 14 of the Covenant and Article 141 of the Basic Law of Turkey, part 1 of Article 182 of the Criminal Procedure Code of Turkey;

– the right not to testify against oneself (not to be forced to such actions) – paragraph 3g of Article 14 of the Covenant and Article 38 of the Constitution of Turkey, paragraph d of part 1 of Article 147 of the Criminal Procedure Code of Turkey.

Within the framework of Part 1 of Article XXVIII of the Hungarian Constitution of 2011 ^[19], the right to a fair trial is enshrined in a generally recognized formulation. In turn, it should be noted that in part 1 of Article XXVIII of the Hungarian Constitution, the constituent elements of the right to a fair trial, which are reflected in another international legal act of the regional level – the ECHR, are also legally established. In particular, in paragraph 1 of Article 6.

Positionally indicative from the point of view of law is the position according to which the Hungarian Law No. XC on Criminal Proceedings of 2017 (hereinafter referred to as the Hungarian Law No. XC) ^[20] within the preamble, as one of the goals, the prosecution of persons who have committed crimes is established in the course of an effective procedure ensuring respect for the right to a fair trial. The validity of the law, as it is designated in Hungarian Law No. XC, is established by the circumstances of the inclusion in it of elements of the right to a fair trial, reflected in Article 6 of the ECHR. Objectively, the realizability of the right is indicated here in the following legal positions:

– the right to have sufficient time and opportunities to prepare a defense – paragraph 3b of Article 6 of the ECHR and part 4 of §3 of the Hungarian Law No. XC;

– the right to defend oneself personally or with the help of a defender – paragraph 3c of Article 6 of the ECHR and part 2 of §3 of Hungarian Law No. XC.

The positioning of the constituent elements in the Hungarian Constitution and in Hungarian Law No. XC in a substantive legal order is comparable to the guarantees established in Article 6 of the ECHR, namely:

– guarantees of the presumption of innocence – paragraph 2 of Article 6 of the ECHR and Part 2 of Article XXVIII of the Hungarian Constitution, §1 of Hungarian Law No. XC;

– the right to a defender (defense) – paragraph 3 of Article 6 of the ECHR and Part 3 of Article XXVIII of the Hungarian Constitution, part 1 of §3 of the Hungarian Law No. XC.

The international legal positioning of the Republic of Lithuania in the space of the modern world order, as it is designated by the current Constitution of the Republic of Lithuania of 1992 (hereinafter referred to as the Constitution of Lithuania, the Basic Law of Lithuania) ^[11] in Article 31 is objectively established in the general parameters of the right to a public and fair hearing by an independent and impartial court. In its legal essence, the stated norm differs from paragraph 1 of Article 6 of the ECHR in the absence of guarantees of a reasonable time and a court established on the basis of the law. The fact of the correlation in the consolidation of the constituent elements of the right to a fair trial within the framework of Article 6 of the ECHR and the Basic Law of Lithuania on the subject of guarantees of the presumption of innocence – paragraph 2 of Article 6 of the ECHR and Article 31 of the Constitution of Lithuania is significantly legally indicated.

In circumstances when the Criminal Procedure Code of the Republic of Lithuania of 2002 (hereinafter referred to as the Criminal Procedure Code of Lithuania) ^[17] did not fully reflect the right to a fair trial. The legal regime of conformity in establishing the constituent elements of the right to a fair trial in Article 6 of the ECHR and the Criminal Procedure Code of Lithuania is established in the following legal positions:

– guarantees of public hearing (consideration) of cases – paragraph 1 of Article 6 of the ECHR and part 1 of Article 9 of the Criminal Procedure Code of Lithuania;

– the right to an interpreter – paragraph 3e of Article 6 of the ECHR and Part 2 of Article 8 of the Criminal Procedure Code of Lithuania.

The spatial legal validity of the constituent elements of the right to a fair trial, as it is enshrined in the Constitution of Lithuania and in the Criminal Procedure Code of Lithuania in relation to the provisions of Article 6 of the ECHR, manifests itself in the parameters of the right to a defender – paragraph 3c of Article 6 of the ECHR, Article 31 of the Basic Law of Lithuania, part 3 of Article 22 of the Criminal Procedure Code of Lithuania.

According to the fact of the international legal inclusion of the States of the American continent in the system of modern international legal relations, the positive of legal action here is indicated in the format of comparability of national legal acts of the States of the American continent with such a landmark international legal act of a regional scale as the ACHR. Accordingly, in part 1 of Article 8 of the Constitution of the Commonwealth of Dominica of 1978 (hereinafter – the Constitution of Dominica, the Basic Law of Dominica) ^[10], as in paragraph 1 of Article 8 of the ACHR, the right to a fair trial is fixed in the interpretation of the right to a fair hearing. Objectively, it should be stated that there are all the main constituent elements (except for the competence of the court) of the right to a fair trial in part 1 of Article 8 of the Constitution of Dominica on the circumstances of their consolidation and in paragraph 1 of Article 8 of the ACHR. The academic positivity of the law makes it objectively necessary to state the fact of the consolidation of the complex of constituent elements of the right to a fair trial, reflected both in Article 8 of the ACHR and in the Constitution of Dominica, namely:

– guarantees of the presumption of innocence – paragraph 2 of Article 8 of the ACHR and paragraph a of part 2 of Article 8 of the Basic Law of Dominica;

– the right to an interpreter – paragraph 2a of Article 8 of the ACHR and paragraph f of part 2 of Article 8 of the Constitution of Dominica;

– the right of the suspect (accused) to know what he is accused of – paragraph 2b of Article 8 of the ACHR and paragraph b of part 2 of Article 8 of the Basic Law of Dominica;

– Guarantees of public judicial proceedings – paragraph 5 of Article 8 of the ACHR and part 10 of Article 8 of the Constitution of Dominica.

Positionally, due to the circumstances of the fact that there is no fixation of the right to a fair trial within the framework of the Law of the Commonwealth of Dominica on Criminal Law and Procedure of 1873 (hereinafter referred to as the Law of Dominica) ^[1], it seems to be in substantive demand to indicate the interaction between the provisions of the declared domestic act and Article 8 of the ACHR in the parameters:

– provisions based on the principle of "non bis in idem" – paragraph 4 of Article 8 of the ACHR and part 1 of Article 36 of the Law of Dominica;

– Rights to a defender – paragraph 2e of Article 8 of the ACHR and Article 31 of the Law of Dominica.

The state-legal construction of the Republic of Honduras in the parameters of the current Constitution of the Republic of Honduras of 1982 (hereinafter – the Constitution of Honduras, the Basic Law of Honduras) ^[8] defines the right to a fair trial in the parameters of the prescriptions of Article 90 of the Constitution of Honduras, which establishes the guarantee to be tried by a competent court in compliance with a set of special legal formalities, according to the rights established by law.  The prescriptive legal norm in a holistic legal regime represents the main meaning of paragraph 1 of Article 8 of the ACHR, as well as enshrines one of the essential characteristics of the court established in an international treaty as a law enforcement body. From the point of view of law, the legal fact of the correlation in the mode of fixing the constituent elements of the right to a fair trial under Article 8 of the ACHR and the Basic Law of Honduras in the parameters of the substantive legal order is indicative:

– Guarantees of the independence of courts (judges) – paragraph 1 of Article 8 of the ACHR and Article 303 of the Constitution of Honduras;

– the right not to be forced to testify against oneself – paragraph 2g of Article 8 of the ACHR and Article 88 of the Basic Law of Honduras.

The positioning of the Criminal Procedure Code of the Republic of Honduras of 1999 (hereinafter referred to as the Criminal Procedure Code of Honduras) ^[15] in relation to the studied law is indicated in the wording of Article 1 of the Criminal Procedure Code of Honduras, which conveys the general meaning of paragraph 1 of Article 8 of the ACHR, fixing the elements that constitute the right to a public and fair trial of the case: 1. Guarantees of the competent court. 2. Guarantees of public judicial proceedings (paragraph 5 of Article 8 of the ACHR). The positive of the law in terms of the observance of the right to a fair trial is objectively indicated by the circumstances of the consolidation of a set of legal elements of the claimed right, reflected both in Article 8 of the ACHR and in the Criminal Procedure Code of Honduras, namely:

– guarantees of independence and impartiality of courts (judges) – paragraph 1 of Article 8 of the ACHR and Article 7 of the Criminal Procedure Code of Honduras;

– the right to an interpreter – paragraph 2a of Article 8 of the ACHR and part 9 of Article 101 of the Criminal Procedure Code of Honduras;

– the right to a defender – paragraph 2e of Article 8 of the ACHR and part 3 of Article 101 of the Criminal Procedure Code of Honduras.

In turn, it seems to be in demand to identify those constituent elements of the right to a fair trial, enshrined both in the Constitution of Honduras and in the Criminal Procedure Code of Honduras, which are objectively correlated with Article 8 of the ACHR. Accordingly, is:

– guarantees of the presumption of innocence – paragraph 2 of Article 8 of the ACHR and Article 89 of the Basic Law of Honduras, Article 2 of the Criminal Procedure Code of Honduras;

– the right of the suspect (accused) to know what he is accused of – paragraph 2b of Article 8 of the ACHR and Article 84 of the Constitution of Honduras, part 1 of Article 101 of the Criminal Procedure Code of Honduras.  

The spatial applicability of the right to a fair trial in the parameters of the effective operation of law on the African continent is established in the parameters of the comparability of national acts of a number of African States with such a significant international legal act at the regional level as the ACHRN. Within the framework of Part 1 of Article 28 of the Constitution of the Republic of Uganda of 1995 (hereinafter – the Constitution of Uganda, the Basic Law of Uganda) ^[13] the right to a fair trial on the circumstances of the establishment of a set of prescriptive legal elements is enshrined in a more detailed plan than in Article 7 of the ACHPR. The substantive nature of the doctrinal legal position is indicated by the fact that paragraph 1d of Article 7 of the ACHPR only establishes the right to consider a case, including two constituent elements:

– guarantees of a reasonable time (a quick hearing of the case) – paragraph 1d of Article 7 of the ACHRN and part 1 of Article 28 of the Basic Law of Uganda;

– Guarantees of an impartial court – paragraph 1d of Article 7 of the ACHPR and part 1 of Article 28 of the Constitution of Uganda.

The positioning of the Basic Law of Uganda in part 1 of Article 28 of the Constitution of Uganda is indicated by such legal elements supplementing the right to a fair trial, which have not found their consolidation in Article 7 of the ACHR, as:

– guarantees of a public hearing of the case;

– guarantees of independence of the courts established on the basis of the law.

Positionally, the state-legal construction of the Republic of Uganda in terms of the correlation of the complex of special legal elements of the right to a fair trial, enshrined in the Basic Law of Uganda and Article 7 of the ACHPR, is designated in the following legal categories:

– Guarantees of the presumption of innocence – paragraph 1b of Article 7 of the ACHPR and paragraph a of Part 3 of Article 28 of the Constitution of Uganda;

– the right to a defender – paragraph 1c of Article 7 of the ACHPR and paragraph d of part 3 of Article 28 of the Basic Law of Uganda;

– guarantees that prevent conviction for an action (inaction) that at the time of its commission did not constitute a crime punishable by law – paragraph 2 of Article 7 of the ACHPR and part 8 of Article 28 of the Constitution of Uganda.

In terms of its relevance to the Constitution of the Republic of Uganda, the Criminal Procedure Code of the Republic of Uganda of 1950 (hereinafter referred to as the Ugandan CPC) ^[3] contains general provisions on the need to comply with the law and legislation of the Republic of Uganda without special fixation of the right to a fair trial and its constituent elements.

The international legal positioning of the Republic of South Africa in the modern world order, indicated by the provisions of the Constitution of the Republic of South Africa of 1996 (hereinafter referred to as the Constitution of South Africa, the Basic Law of South Africa) ^[14], determines the spatial effect of the right to a fair trial in a more detailed manner than Article 7 of the ACHPR. Accordingly, Article 34, entitled "Access to court", enshrines the right to a fair hearing; contains the constituent elements of the right to a fair trial: guarantees of a public hearing; guarantees of the independence of the court; guarantees of the impartiality of the court. The provisions of Part 3 of Article 35 of the Constitution of South Africa, which enshrines the right to a fair trial in a holistic legal formulation, as well as presents a wide list of its elements, are indicative legally from the point of view of the effectiveness of the law. The substantive effectiveness of the law here, in turn, is determined by the ratio of the constituent elements of the right to a fair trial, enshrined in the Basic Law of South Africa and Article 7 of the ACHPR, namely:

– guarantees of a reasonable time (administration of justice without unreasonable delay) – paragraph 1d of Article 7 of the ACHPR and paragraph d of Part 3 of Article 35 of the Constitution of South Africa;

– guarantees that prevent conviction for an action (inaction) that at the time of its commission did not constitute a crime punishable by law – paragraph 2 of Article 7 of the AHPCHN and paragraph l of Part 3 of Article 35 of the Basic Law of South Africa.

Positioning of the South African criminal justice system according to the circumstances of the Criminal Procedure Act of the Republic of South Africa 1977 (hereinafter referred to as the South African Law) ^[6] is indicated by the inclusion of the right to a fair trial in the general procedure established by the laws of South Africa. Accordingly, in Part 4 of Article 158, Part 4 of Article 159C of the Law of South Africa, it is established that in order to ensure a fair trial, the court can perform a set of prescriptive law of certain actions. In addition, paragraph a of Part 5 of Article 227 of the South African Law establishes the need to take into account the right of the accused to a fair trial in the mode of a general legal prescription. The legal effectiveness of the law is determined by the correlation of the complex of constituent elements of the right to a fair trial, reflected both in Article 7 of the ACHPR and in the Constitution and Law of South Africa, for example:

– guarantees of the presumption of innocence – paragraph 1b of Article 7 of the ACHPR and paragraph h of Part 3 of Article 35 of the Constitution of South Africa, paragraph (i) of paragraph a of Part 2 of Article 105A of the Law of South Africa;

– the right to a defender – paragraph 1c of Article 7 of the ACHR, paragraphs f, g of part 3 of Article 35 of the Basic Law of South Africa, part 1,2 of Article 73 of the Law of South Africa.

The effectiveness of the criminal justice system of South Africa objectively defines itself in the parameters of the correlation of the complex of constituent elements of the right to a fair trial, reflected in the Constitution and Law of South Africa, which have not found their consolidation in an international regional treaty, the international human rights system, namely:

– the right to remain silent – paragraph h of Part 3 of Article 35 of the Constitution of South Africa and paragraph (ii) of paragraph a of part 2 of Article 105A of the Law of South Africa;

– the right not to be forced to testify against oneself - paragraph j of Part 3 of Article 35 of the Constitution of South Africa and paragraph (iii) of paragraph a of Part 2 of Article 105A of the Law of South Africa.

3.                 Conclusions.According to the circumstances of an objective statement, the positive law enforcement practice of the member States of the world community in terms of maintaining criminal justice is indicated in the general procedure for fulfilling the requirements to ensure the right to a fair trial.

Accordingly, the implementation of the right to a fair trial in the parameters of its constituent elements has found its appropriate consolidation at the national level (for example, the Constitution of Turkey, the Constitution of Lithuania). Some national acts enshrine the right to a fair trial in a rather indirect way (for example, Hungarian Law No. XC, South African Law), however, due to the establishment of certain external legal signs, it is possible to speak about compliance with the spirit of international agreements. In some domestic acts of the member countries of the world community, the right to a fair trial is designated in a general manner, without substantive fixation of the claimed right in the legislative space (for example, the Law of Dominica), however, in their turn, a set of external legal features is presented - constituting a set of elements of the studied law.

The norms of international law contribute to the unification of national legal regulation and serve as a legal guideline for domestic legislation regarding the right to a fair trial.

The positive law enforcement practice of States in terms of maintaining an effective criminal justice system clearly testifies in favor of the validity of the conclusion about the unconditional impact of international legal norms on domestic acts in terms of securing the right to a fair trial and its elements throughout the space of state-legal construction of member countries of the world community.