Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement The African Commission on Human and Peoples’ Rights has held that, regardless of the fact that the right to a public trial is not expressly provided for in the African Charter, it is empowered by articles 60 and 61 of the Charter “to draw inspiration from international law on human and peoples’ rights and to take into consideration as subsidiary measures other general or special international conventions, customs generally accepted as law, general principles of law recognized by the African States as well as legal precedents and doctrine”. In support of the notion of publicity of hearings, the Commission then invoked the above-quoted terms of the Human Rights Committee’s General Comment No. 13 on article 14(1) of the Covenant.44 The African Commission next noted that the “exceptional circumstances” which might justify exceptions to the principle of publicity under article 14(1) of the Covenant are “exhaustive”.45 Where the respondent Government had made only “an omnibus statement in its defence”, without specifying which exact circumstances prompted it to exclude the public from a trial, the Commission concluded that the right to a fair trial as guaranteed by article 7 of the African Charter had been violated.46 ***** The principle of public proceedings as guaranteed by article 8(5) of the American Convention on Human Rights was at issue in the case of Castillo Petruzzi et al., where “all the proceedings in the case, even the hearing itself, were held out of the public eye and in secret”, thus resulting in “a blatant violation of the right to a public hearing recognized in the Convention”; indeed, “the proceedings were conducted on a military base off limits to the public”.47 ***** Under article 6(1) of the European Convention, proceedings must, with the exceptions mentioned above, be held in public. However, the application of this provision “to proceedings before appellate courts depends on the special features of the proceedings involved”, and “account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein”.48 The Court has thus consistently held that “provided that there has been a public hearing at first instance, the absence of ‘public hearings’ at a second or third instance may be justified by the special features of the proceedings at issue. Thus proceedings for leave to appeal or proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even when the appellant was not given an opportunity of being heard in person by the appeal or cassation court.”49 44 ACHPR, Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No. 224/98, decision adopted during the 28th session, 23 October – 6 November 2000, para. 51 of the text of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/224-98.html. 45 Ibid., para. 52. 46 Ibid., paras. 53-54. 47 I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, Series C, No. 52, p. 211, paras. 172-173 48 Eur. Court HR, Case of Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 357, para. 40. 49 Ibid., p. 358, para. 41. 264 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers