A/HRC/35/31
96.
The main role of judges when facing such situations is to permit the detainee to
challenge the legality of the arrest and detention before a court of law. Judges must not only
decide about the lawfulness of the detention; they have also to ensure that the person’s
fundamental rights have been respected.
Right of access to a lawyer
97.
Any detainee or accused person has the right to have access to a lawyer without
undue delay. It is the obligation of States to set out the necessary mechanisms to ensure that
persons deprived of their liberty can effectively exercise their defence rights, including the
access to a lawyer.
98.
The United Nations Principles and Guidelines on Access to Legal Aid in Criminal
Justice Systems stipulate that legal aid is an essential element of a fair, humane and
efficient criminal justice system that is based on the rule of law.
99.
Such a right is paramount in a State based on the rule of law. It guarantees the
possibility for the detainee to rebut the evidence presented against him or her and act in the
most favourable way for his or her interest.
Military courts and the right to a fair trial
100. Military courts tend to be structured within a hierarchical system of command and
control. This creates a difficulty in conducting a fair and impartial trial. Military procedures
carried out or influenced by corrupt officers create a general distrust in military courts on
the part of civilian populations, as stated by Arne Willy Dahl at an expert consultation
organized by the Office of the United Nations High Commissioner for Human Rights in
2014 (A/HRC/28/32). Such situations of bias and corruption result in a violation of article
14 of the International Covenant, which stipulates that everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal established by law.
101. The Special Rapporteur calls on States to adopt specific norms that expressly
exclude civilians from investigation and prosecution by military tribunals, ensure that their
jurisdiction is limited to military offences committed by active members of the military and
protect the rights to fair trial and due process.
Role of the justice sector in states of emergency
102. States are responsible for providing effective domestic remedies before independent
and impartial courts or authorities. Non-derogable rights must be protected in states of
emergency, and under no measures of derogation should the efficacy of these remedies be
allowed. As clarified by the Human Rights Committee in its general comment No. 29
(2001) on derogations from provisions of the Covenant during a state of emergency, even if
a State party, during a state of emergency, and to the extent that such measures are strictly
required by the exigencies of the situation, may introduce adjustments to the practical
functioning of its procedures governing judicial or other remedies, the State party must
comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to
provide a remedy that is effective.
103. According to article 14 (1) of the International Covenant, in the determination of any
criminal charge against them, or of their rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. As indicated by the Human Rights Committee in its general
comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair
trial, derogating from normal procedures required under article 14 in circumstances of a
public emergency should ensure that such derogations do not exceed those strictly required
by the exigencies of the actual situation. The guarantees of fair trial may never be made
subject to measures of derogation that would circumvent the protection of non-derogable
rights. Deviating from fundamental principles of fair trial, including the presumption of
innocence, is prohibited at all times.
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