g.         Fair Trial, Due Process of Law and Derogation

244.      In circumstances not involving a national emergency, states are obliged to respect the entirety of the above due process rights respecting persons within their authority and control.

245.      Where an emergency situation is involved that threatens the independence or security of a state, the fundamental components of the right to due process and to a fair trial must nevertheless be respected. More particularly, certain aspects of these rights, namely the right under Article 9 of the American Convention concerning freedom from ex post facto laws that are not favorable to a defendant, as well as “judicial guarantees essential for the protection of [non-derogable] rights”, are among the protections enumerated in Article 27(2) of the Convention that may not be suspended. Further, although Article 8 of the Convention is not explicitly mentioned in Article 27(2), states are not free to derogate from the fundamental due process or fair trial protections referred to in Article 8 and comparable provisions of other international instruments. To the contrary, when considered in light of the strict standards governing derogation, the essential role that due process safeguards may play in the protection of non-derogable human rights, and the complementary nature of states’ international human rights obligations, international authority decidedly rejects the notion that states may properly suspend the rights to due process and to a fair trial.

246.      The Commission first notes in this respect that no human rights supervisory body has yet found the exigencies of a genuine emergency situation sufficient to justify suspending even temporarily basic fair trial safeguards. Rather, the inter-American human rights organs have long emphasized the importance of maintaining due process safeguards at all times, and in times of emergency in particular in order to guard against the enhanced risk of abuse of a state’s exceptional authority and to protect other rights that are non-derogable.[615] In this sense, due process rights form an integral part of the judicial guarantees essential for the protection of non-derogable rights and may therefore be considered non-derogable under the express terms of Article 27(2) of the American Convention.

247.      Consistent with these observations, the Commission and other pertinent authorities have concluded that the basic components of the right to a fair trial cannot be justifiably suspended. These protections include in particular the right to a fair trial by a competent, independent and impartial court for persons charged with criminal offenses, the presumption of innocence, the right to be informed promptly and intelligibly of any criminal charge, the right to adequate time and facilities to prepare a defense, the right to legal assistance of one’s own choice or free legal counsel where the interests of justice require, the right not to testify against oneself and protection against coerced confessions, the right to attendance of witnesses, the right of appeal, as well as respect for the principle of non-retroactive application of penal laws.[616]  

248.      Also pertinent to evaluating the permissibility of derogations are a state’s other international human rights obligations which, as noted in Part II of this report and as explicitly reflected in Article 27(2) and 29 of the American Convention, should be interpreted to implement and complete the rights under the inter-American instruments rather than as a basis for limitations.[617]  On this basis, states may not derogate from due process protections if doing so would be inconsistent with its other obligations under international law and in particular where such a derogation would restrict the enjoyment or exercise of any right or freedom recognized by virtue of the state's domestic law or another instruments by which the state is bound. This is particularly pertinent in the context of armed conflicts, where, as discussed in the following section, the fundamental due process and fair trial protections applicable in international and non-international armed conflict correspond to a significant extent with those under international human rights, allow for no derogation, and consequently block any suspension that a state might otherwise purport to effect during an armed conflict under its human rights obligations.[618]

249.      Without detracting from the above standards, prevailing norms suggest that there may be some limited aspects of the right to due process and to a fair trial from which derogation might in the most exceptional circumstances be permissible. Any such suspensions must, however, comply strictly with the principles of necessity, proportionality and non-discrimination, and must remain subject to oversight by supervisory organs under international law.

250.      Due process and fair trial protections that might conceivably be subject to suspension include the right to a public trial where limitations on public access to proceedings are demonstrated to be strictly necessary in the interests of justice. Considerations in this regard might include matters of security, public order, the interests of juveniles, or where publicity might prejudice the interests of justice.[619] Any such restrictions must, however, be strictly justified by the state concerned on a case by case basis and be subject to on-going judicial supervision.

251.      The right of a defendant to examine or have examined witnesses presented against him or her could also be, in principle, the subject of restrictions in some limited instances. It must be recognized in this respect that efforts to investigate and prosecute crimes, including those relating to terrorism, may in certain instances render witnesses vulnerable to threats to their lives or integrity and thereby raise difficult issues concerning the extent to which those witnesses can be safely identified during the criminal process.[620] Such considerations can never serve to compromise a defendant’s non-derogable due process protections and each situation must be carefully evaluated on its own merits within the context of a particular justice system.[621] Subject to these caveats, procedures might in principle be devised whereby witnesses’ anonymity may be protected without compromising a defendant’s fair trial rights. Factors to be taken into account in evaluating the permissibility of such procedures include the sufficiency of the grounds for maintaining a particular witness’s anonymity and the extent to which the defense is nevertheless able to challenge the evidence of the witness(es) and attempt to cast doubt of the reliability of their statements, for example through questioning by defense counsel. Other pertinent considerations include whether the court itself is apprised of the witness’s identity and is able to evaluate the reliability of the witness’s evidence, and the significance of the evidence in the case against the defendant, in particular whether a conviction may be based solely or to a decisive extent on that evidence.[622]

252.      Similarly, the investigation and prosecution of terrorist crimes may render judges and other officials involved in the administration of justice vulnerable to threats. As noted above, states are obliged to take all necessary measures to prevent violence against such persons.[623] Accordingly, states may be compelled by the exigencies of a particular situation to develop mechanisms to protect a judge’s life, physical integrity and independence. As in the case of threatened witnesses, however, each situation must be carefully evaluated on its own merits within the context of a particular justice system,[624] must be subject to such measures as are necessary to ensure a defendant’s right to challenge the competence, independence or impartiality of his or her prosecuting tribunal, and may in no case serve to compromise a defendant’s right to fundamental fairness.

253.      As indicated in Part III(B) of this report regarding the right to personal liberty and personal security,[625] the right to a hearing within a reasonable time constitutes a further component of the right to a fair trial from which derogations might properly be taken in appropriate circumstances. This might allow for a period of pre-trial detention longer than would otherwise be permissible under ordinary circumstances, where such measures are demonstrated to be required by the emergency situation. As with other permissible suspensions, however, delays may only be as long as the exigencies of the situation strictly require, can in no case be indefinite, and must remain subject to judicial supervision to avoid any unjust delays and to protect the detainee against abuses of authority.[626] Such measures must also not compromise a defendant’s non-derogable fair trial protections, including their right to all necessary means of defense and their right to be presumed innocent.

2.         International Humanitarian Law

254.      The provisions of international humanitarian law governing fair trial requirements in the context of international and non-international armed conflict parallel to a large extent those prescribed under applicable international human rights law, and indeed were drawn largely from human rights law.[627]

255.      With regard to international armed conflicts, both the Third and Fourth Geneva Conventions contain extensive and detailed provisions governing the prosecution of prisoners of war and civilians under a variety of circumstances. These include due process protections in the adjudication of disciplinary and penal sanctions[628] including, as observed in Part III(A) of this report, criminal proceedings in which capital punishment may be imposed.[629] They also include provisions prohibiting the wilful deprivation of the rights to a fair and regular trial as grave breaches of the Conventions.[630] In situations of non-international armed conflict, common Article 3 prohibits the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all of the judicial guarantees which are recognized as indispensable by civilized peoples.”

256.      As noted above, while international human rights law prohibits the trial of civilians by military tribunals, the use of military tribunals in the trial of prisoners of war is not prohibited; to the contrary, according to Article 84 of the Third Geneva Convention, a prisoner of war “shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war.”[631] By the same article, however, a prisoner of war may under no circumstances be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized and, in particular, the procedure of which does not afford the accused the rights and means of defense provided for in Article 105 of the Third Convention.[632]

257.      The fair trial protections in the 1949 Geneva Conventions have been supplemented and developed by Additional Protocols I and II. This has included the explicit articulation under Article 75(4) of Additional Protocol I of fair trial guarantees applicable to unprivileged combatants and other persons who do not benefit from more favorable treatment under the 1949 Geneva Conventions or of Additional Protocol I. Article 6 of Additional Protocol II similarly elaborates upon the specific fair trial guarantees considered to be encompassed within common Article 3. As noted in Part II(C) of this report, these provisions have been recognized as reflecting customary international law governing penal prosecutions in times of armed conflict,[633] and provide as follows:

Additional Protocol I

Article 75(4) No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt; (g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure; (i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and (i) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.  

Additional Protocol II

Article 6(1) This Article applies to the prosecution and punishment of criminal offences related to the armed conflict. (2) No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt. (3) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised. (4) The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children. (5) At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.

258.      As in the case of international human rights law, therefore, international humanitarian law mandates compliance with minimum due process and fair trial protections in any criminal proceedings, including most fundamentally the right to trial by an impartial, independent and regularly constituted court and the right to be informed without delay of the particulars of the offense against him or her. They also encompass the right to all necessary rights and means of defense, which necessarily includes the right to a qualified defense counsel, the right to examine or have examined the witnesses against him or her and to obtain the presence and examination of witnesses on his behalf under the same conditions as the witnesses against him or her, and the right to be advised on conviction of his judicial and other remedies and the time limit within which they may be exercised. Also prescribed under international humanitarian law are the fundamental criminal law principles nullum crimen sine lege, nulla poena sine lege, and non-bis-in-idem, as well as the presumption of innocence and the right not to be convicted of an offense except on the basis of individual penal responsibility.[634] Finally, international humanitarian law explicitly provides for the right of an accused to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal.[635]

259.      The Commission considers it important to reiterate that the minimum guarantees of due process and a fair trial prescribed in Article 75 of Additional Protocol I and Article 6 of the Additional Protocol II and corresponding customary international law, as with the other fundamental guarantees prescribed in those provisions, are non-derogable and therefore constitute minimum standards applicable to all persons in armed conflicts from which states may not regress.[636] Further, the non-derogable status of these rights protections under international humanitarian law blocks any restrictions or derogations that might otherwise be authorized under applicable human rights instruments insofar as they relate to charges arising out of the hostilities.[637] Accordingly, in times of armed conflict, states may not invoke derogations or restrictions under the American Convention or other human rights instruments to justify any failure to afford persons the minimum due process and fair trial protections prescribed under Article 75 of Additional Protocol I or Article 6 of Additional Protocol II.

3.         Rights to Due Process and to a Fair Trial and Terrorism

260.      The foregoing overview of applicable law has several implications in the context of states’ efforts to respond to the threats of terrorism.

261.      It first makes clear that most fundamental fair trial requirements cannot justifiably be suspended under either international human rights law or international humanitarian law. These protections therefore apply to the investigation, prosecution and punishment of crimes, including those relating to terrorism, regardless of whether such initiatives may be taken in time of peace or times of national emergency, including armed conflict, and include the following:

(a)           The right to respect for fundamental principles of criminal law, including the non-bis-in-idem principle, the nullum crimen sine lege and nulla poena sine lege principles, the presumption of innocence, and the right not to be convicted of an offense except on the basis of individual penal responsibility. Of particular pertinence in the context of terrorism, these principles demand that any laws that purport to proscribe conduct relating to terrorism be classified and described in precise and unambiguous language that narrowly defines the punishable offense, and accordingly require a clear definition of the criminalized conduct establishing its elements and the factors that distinguish it from behaviors that are not punishable or involve distinct forms of punishment. Ambiguities in laws proscribing terrorism not only undermine the propriety of criminal processes that enforce those laws, but may also have serious implications beyond criminal liability and punishment, such as the denial of refugee status.[638]

As indicated above, the Commission and the Court have previously found certain domestic anti-terrorism laws to violate the principle of legality because, for example, they have attempted to prescribe a comprehensive definition of terrorism that is inexorably overbroad and imprecise, or have legislated variations on the crime of “treason” that denaturalizes the meaning of that offense and creates imprecision and ambiguities in distinguishing between these various offenses. Whether states choose to prescribe a specific crime of terrorism based upon commonly-identified characteristics of terrorist violence or vary existing and well-defined common crimes, such as murder, by adding a terrorist intent or variations in punishment that will reflect the particular heinous nature of terrorist violence, they should be guided by the basic principles articulated by the organs of the inter-American system on this issue. Member states are also encouraged to take the legislative or other measures necessary to provide judges with the authority to consider the circumstances of individual offenders and offenses when imposing sentences for terrorist crimes;

(b)           The right to be tried by a competent, independent and impartial tribunal in conformity with applicable international standards. In respect of the prosecution of civilians, this requires trial by regularly constituted courts that are demonstrably independent from the other branches of government and comprised of judges with appropriate tenure and training, and generally prohibits the use of ad hoc, special, or military tribunals or commissions to try civilians.  A state’s military courts may prosecute members of its own military for crimes relating the functions that the law assigns to military forces and, during international armed conflicts, may try privileged and unprivileged combatants, provided that the minimum requirements of due process are guaranteed. Military courts may not, however, prosecute human rights violations or other crimes unrelated to military functions, which must be tried by civilian tribunals. This right also prohibits the use of secret or faceless judicial procedures, subject, however, to appropriate measures that may be taken to protect judges, lawyers, witnesses and other officials involved in the administration of justice from threats to their lives or physical integrity;

(c)     The right to due procedural guarantees, including the rights of an accused:

(i)      To prior notification in detail of the charges against him or her;

(ii)      To defend himself or herself personally and to have adequate time and means to prepare his or her defense, which necessarily includes the right to be assisted by legal counsel of his or her choosing or, in the case of indigent defendants the right to legal counsel free of charge where such assistance is necessary for a fair hearing. Giving proper effect to this right necessitates affording a detainee access to legal advice without delay after they have been made the subject of a criminal process, both to secure the immediate protection of non-derogable rights such as the right to humane treatment, and to preclude potential unfairness in any future legal processes that may be brought against the person through, for example, the interrogation of a detainee without counsel being present. Further, where the defendant does not understand or speak the language of the court or tribunal, he or she is entitled to be assisted without charge by a translator or interpreter;

(iii)     Not to be compelled to be a witness against himself or herself or to plead guilty;

(iv)     To examine witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as opposing witnesses;

(v)     To be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal a judgment to a higher court.

262.      It is also apparent that there are certain limited aspects of the right to due process of law and to a fair trial that might potentially be the subject of derogation in exceptional and bona fide emergency situations. In all instances this is subject to prevailing rules governing derogation discussed in Part II, namely that the suspension be effectuated only for such time and to the extent strictly required by the exigencies of the situation, that it not entail discrimination of any kind, that it be compatible with all of the state’s other obligations under international law, including international humanitarian law where applicable, and that the rule of law and supervision by the judiciary remains intact. Potentially derogable aspects of due process and fair trial protections include:

(a)           The right to have criminal proceedings conducted in public, where restrictions on public access may be considered strictly necessary in the interests of justice and on a case by case basis. This may include measures to protect the life, physical integrity and independence of judges or other officials involved in the administration of justice where their lives or physical integrity are threatened, subject to such measures as are necessary to ensure a defendant’s non-derogable fair trial rights, including the right to challenge the competence, independence or impartiality of his or her prosecuting tribunal;

(b)           The right to examine witnesses present in court where safety or other circumstances may necessarily require protecting the identity of the witness, subject to such measures as are necessary to ensure a defendant’s non-derogable fair trial rights, including the right to challenge the veracity of the witness’s evidence by alternative methods;

(c)           The right to trial within a reasonable time, where a delay longer than would otherwise be applicable in non-emergency situations might be justifiable, provided that it is subject at all times to judicial review and in no case is prolonged or indefinite.

263.      The protections applicable to proceedings for the determination of a person’s rights or obligations of a civil, labor, fiscal, or any other nature are discussed in further detail in Part III(H) below concerning the situation of migrant workers, asylum-seekers, refugees and other non-nationals,.  

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[638] See UN Convention on the Status of Refugees, supra note 120, Article 1F (“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”).