5.
The second sentence of article 14, paragraph 1, provides that “everyone shall be entitled to
a fair and public hearing”. Paragraph 3 of the article elaborates on the requirements of a “fair
hearing” in regard to the determination of criminal charges. However, the requirements of
paragraph 3 are minimum guarantees, the observance of which is not always sufficient to ensure the
fairness of a hearing as required by paragraph 1.
6.
The publicity of hearings is an important safeguard in the interest of the individual and of
society at large. At the same time article 14, paragraph 1, acknowledges that courts have the power
to exclude all or part of the public for reasons spelt out in that paragraph. It should be noted that,
apart from such exceptional circumstances, the Committee considers that a hearing must be open to
the public in general, including members of the press, and must not, for instance, be limited only to
a particular category of persons. It should be noted that, even in cases in which the public is
excluded from the trial, the judgement must, with certain strictly defined exceptions, be made public.
7.
The Committee has noted a lack of information regarding article 14, paragraph 2 and, in
some cases, has even observed that the presumption of innocence, which is fundamental to the
protection of human rights, is expressed in very ambiguous terms or entails conditions which render
it ineffective. By reason of the presumption of innocence, the burden of proof of the charge is on the
prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has
been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be
treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain
from prejudging the outcome of a trial.
8.
Among the minimum guarantees in criminal proceedings prescribed by paragraph 3, the first
concerns the right of everyone to be informed in a language which he understands of the charge
against him (subpara. (a)). The Committee notes that State reports often do not explain how this
right is respected and ensured. Article 14 (3) (a) applies to all cases of criminal charges, including
those of persons not in detention. The Committee notes further that the right to be informed of the
charge “promptly” requires that information is given in the manner described as soon as the charge
is first made by a competent authority. In the opinion of the Committee this right must arise when in
the course of an investigation a court or an authority of the prosecution decides to take procedural
steps against a person suspected of a crime or publicly names him as such. The specific requirements
of subparagraph 3 (a) may be met by stating the charge either orally or in writing, provided that the
information indicates both the law and the alleged facts on which it is based.
9.
Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the
preparation of his defence and to communicate with counsel of his own choosing. What is
“adequate time” depends on the circumstances of each case, but the facilities must include access to
documents and other evidence which the accused requires to prepare his case, as well as the
opportunity to engage and communicate with counsel. When the accused does not want to defend
himself in person or request a person or an association of his choice, he should be able to have
recourse to a lawyer. Furthermore, this subparagraph requires counsel to communicate with the
accused in conditions giving full respect for the confidentiality of their communications. Lawyers
should be able to counsel and to represent their clients in accordance with their established
professional standards and judgement without any restrictions, influences, pressures or undue
interference from any quarter.
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