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 “the right to fair trial involves fulfilment of certain objective criteria, including the right to equal treatment, the right to defence by a lawyer, especially where this is called for by the interests of justice, as well as the obligation on the part of courts and tribunals to conform to international standards in order to guarantee a fair trial to all”. The Commission added that “the right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial”. They must, in other words, be able to “argue their cases ... on an equal footing”. Secondly, “it entails the equal treatment of all accused persons by jurisdictions charged with trying them”. Although “this does not mean that identical treatment should be meted out to all accused”, the response of the Judiciary should be similar “when objective facts are alike”.20 Where, in a death penalty case, the Ngozi Court of Appeal in Burundi refused to accede to the accused person’s plea for an adjournment of the proceedings in the absence of a lawyer, although it had earlier accepted an adjournment requested by the prosecutor, the African Commission concluded that the Court of Appeal had “violated the right to equal treatment, one of the fundamental principles of a right to a fair trial”.21 ***** The European Court of Human Rights has explained the principle of equality of arms as “one of the features of the wider concept of a fair trial” as understood by article 6(1) of the European Convention, which implies that “each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent”; in this context, “importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice”.22 The principle of equality of arms was thus violated where, in his observations to the Supreme Court, the Attorney-General had stated that he opposed the applicant’s appeal; these observations were never served on the defence, which could not comment on them.23 The European Court noted that “the principle of the equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality”, and that “it is a matter for the defence to assess whether a submission deserves a reaction. It is therefore unfair for the prosecution to make submissions to a court without the knowledge of the defence”.24 However, rather than referring to the principle of equality of arms, the European Court has sometimes instead emphasized the right to adversarial proceedings in both criminal and civil proceedings, a right which “means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of 20 ACHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication No. 231/99, decision adopted during the 28th Ordinary session, 23 October – 6 November 2000, paras. 26-27 of the text of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/231-99.html (emphasis added). 21 Ibid., para. 29. 22 Eur. Court HR, Case of Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, para. 47. 23 Ibid., para. 49. 24 Ibid., pp. 359-360, para. 49. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 259