• E4J University Module Series: Counter-Terrorism

• Module 11: Right to a Fair Trial

• Introduction and learning outcomes

• Key issues

• • International legal framework
  • Regional human rights instruments
  • Key contemporary issues
  • Armed conflict

• Exercises and case studies

• • Exercises
  • Case studies

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

• References

 

Published in July 2018.

 

 

  This module is a resource for lecturers  

 

References

 

Cases and judicial opinions

• European Court of Human Rights (ECtHR)
• • Campbell and Fell v. The United Kingdom (Application no. 7819/77; 7878/77), Judgment of 28 June 1984.
  • S v. Switzerland (Application no. 12629/87), Judgment of 28 November 1991.
  • Findlay v. The United Kingdom (22107/93), Judgment of 25 February 1997.
  • Pélissier and Sassi v. France (Application no. 25444/94), Judgment of 25 March 1999.
  • Mattoccia v. Italy (Merits) (Application no. 23969/94), Judgment of 25 July 2000.
  • Erdem v. Germany (Application no. 38321/97), Judgment of 5 July 2001.
  • Kleyn and Others v. The Netherlands (Application nos. 39343/98, 39651/98, 43147/98 and 46664/99), Judgment of 6 May 2003.
  • Bykov v. Russia (Application no. 4378/02), Judgment of 10 March 2009.
  • Al-Khawaja and Tahery v. The United Kingdom (Application nos. 26766/05 and 22228/06), Judgment of 15 December 2011.
  • Del Río Prada v. Spain (Application no. 42750/09), Judgment of 21 October 2013.
• International Court of Justice (ICJ)
• • Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (The Wall Opinion) , Advisory Opinion, I.C.J. Reports 2004.
• Supreme Court of India
• • Vinod Solanki v. Union of India , Judgment of 18 December 2008, Civil Appeal no. 7407.
• Supreme Court of the United States
• • Hamdan v. Rumsfeld , Judgment of 29 June 2006, no. 05-184, 548 U.S. 557.

 

Conventions, treaties and international legal instruments

• The Geneva Conventions . Treaty Series, vol. 75, p. 31, p. 85, p. 135 and p. 287, 12 August 1949.
• European Convention on Human Rights . Adopted 4 November 1950, entered into force 3 September 1953.
• International Covenant on Civil and Political Rights . New York, 16 December 1966, Treaty Series, vol. 999, p. 171.
• Inter-American Commission on Human Rights. American Convention on Human Rights . San José, 22 November 1969.
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment . New York, 10 December 1984, Treaty Series, vol. 1465, p. 85.
• African Charter on Human and People's Rights . Adopted 1 June 1981, entered into force 21 October 1986.
• Cairo Declaration on Human Rights in Islam . Adopted 5 August 1990.
• Rome Statute of the International Criminal Court . Rome, 17 July 1998, Treaty Series, vol. 2187, p. 3.
• International Convention for the Suppression of the Financing of Terrorism . New York, 9 December 1999, Treaty Series, vol. 2178, p. 197.
• League of Arab States. Arab Charter on Human Rights . Adopted 22 May 2004, entered into force 15 March 2008.
• ASEAN Declaration on Human Rights. Adopted 18 November 2012.
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) . Treaty Series, vol. 1125, no. 17512,8 June 1977.
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) . Treaty Series, vol. 1125, no. 17513, 8 June 1977.
• African Commission on Human and Peoples' Rights (1992). 4: Resolution on the Right to Recourse and Fair Trial . Adopted at meeting in its Eleventh Ordinary Session. 2-9 March, Tunis.
• Asian Human Rights Charter . Adopted 17 May 1998.

 

Domestic legislation

• India: Unlawful Activities (Prevention) Act 1967 .
• Pakistan: Anti-Terrorism Act 1997
• The Philippines: 1987 Constitution of the Republic of the Philippines: Article III - Bill of Rights .

 

Journal / online articles

• Lachmayer, Konrad (2010). "Constitutional and Anti-Constitutional Responses to Terrorism: The Difficulty of Removing Exclusions from Constitutional Law." City University of Hong Kong Law Review, vol. 2, pp. 5-18.
• OHCHR (2016). " Human rights under increasing attack worldwide." 10 December.

 

Reports and guidelines

• African Commission on Human and People's Rights (ACommHPR) (2003). Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa .
• Council of Europe (2005). Human rights and the fight against terrorism: The Council of European Guidelines . Strasbourg: Council of Europe Publishing.
• Council of Europe, Committee of Ministers (1994). Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges . 13 October.
• Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (1996). Report to the Spanish Government on the visit to Spain Carried out by the CPT from 1 to 12 April 1991 . 5 March. CPT/Inf (96) 9 [Part 1].
• OHCHR
  • (1985). Basic Principles on the Independence of the Judiciary . Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September.
  • (1990(a)). Basic Principles on the Role of Lawyers . Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September.
  • (1990(b)). Guidelines on the Role of Prosecutors . Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September.

 

United Nations materials

• United Nations, Counter-Terrorism Implementation Task Force (CTITF), Working Group on protecting human rights while countering terrorism (2014). Basic Human Rights Reference Guide: Fair Trial and Due Process in the Context of Countering Terrorism . New York: United Nations.
• United Nations, Committee Against Torture (2008). General Comment No. 2: Implementation of article 2 by State parties . 24 January. CAT/C/GC/2.
• United Nations, Economic and Social Council, Commission on Human Rights
• • (1998). Question of the human rights of all persons subjected to any form of detention or imprisonment: Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy . 12 February. E/CN.4/1998/39.
  • (2002). Civil and political rights, including questions of: Independence of the judiciary, administration of justice, impunity. Report of the Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, submitted in accordance with Commission on Human Rights resolution 2001/39 . 11 February. E/CN.4/2002/72.
  • (2004). Civil and political rights, including the questions of independence of the judiciary, administration of justice, impunity. Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy . 31 December. E/CN.4/2004/60.
• United Nations, General Assembly
• • (2008). Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism . 6 August. A/63/223.
  • (2009). Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy . 24 March. A/HRC/11/41.
  • (2010(a)). Protection of human rights and fundamental freedoms while countering terrorism . 22 January. A/RES/64/168.
  • (2010(b)). Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Carina Knaul de Albuquerque e Silva . 9 April. A/HRC/14/26.
  • (2010(c)). Interim report of the Special Rapporteur on the independence of judges and lawyers . 10 August. A/65/274.
  • (2011). Interim report of the Special Rapporteur on the independence of judges and lawyers . 10 August. A/66/289.
  • (2016). Report of the Special Rapporteur on the independence of judges and lawyers . 22 August. A/71/348.
• United Nations, General Assembly, Human Rights Council
• • (2010). Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism . 15 December. A/HRC/16/50.
  • (2012(a)). Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul . 7 June. A/HRC/20/19.
  • (2012(b)). Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul . 20 June. A/HRC/20/20.
  • (2015(a)). Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul . 1 April. A/HRC/29/26.
  • (2015(b)). Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul . 16 June. A/HRC/29/26/Corr.1.
  • (2016). Negative effects of terrorism on the enjoyment of all human rights and fundamental freedoms: Report of the United Nations High Commissioner for Human Rights . 30 December. A/HRC/34/30.
  • (2017). Report of the Special Rapporteur on the independence of judges and lawyers . 9 June. A/HRC/35/31.
• United Nations, Human Rights Committee
• • (1983). Mbenge v. Zaire, Communication no. 16/1977. 25 March. CCPR/C/OP/2.
  • (2001). General Comment No. 29: Article 4: Derogations during a State of Emergency . 31 August. CCPR/C/21/Rev.1/Add.11.
  • (2007). General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial . 23 August. CCPR/C/GC/32.
• United Nations Office on Drugs and Crime (UNODC)
• • (2013). United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems . New York: United Nations.
  • (2014). Counter-Terrorism Legal Training Curriculum Module 4: Human Rights and Criminal Justice Responses to Terrorism . New York: United Nations.
  • (2017). Kenya: Human Rights and Criminal Justice Responses to Terrorism . New York: United Nations.

 

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