Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement
The European Court of Human Rights held in several cases that National
Security Courts trying civilians in Turkey lacked the independence and impartiality
required by article 6(1) of the European Convention on Human Rights and could not,
consequently, guarantee the applicants’ right to a fair hearing. The reason why the
National Security Courts failed to comply with the requirements of article 6(1) in this
respect was that one of their three members was a military judge belonging to the army
and subject to military discipline and assessment reports; further, the term of office of
National Security Court judges was only a renewable period of four years.250
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What follows from these few examples of the international case-law on this
matter is that all courts trying civilians, whether ordinary or special, including military
tribunals, must be independent and impartial so as to be able to guarantee a fair hearing
to the accused at all times.
All courts trying civilians, whether ordinary or special courts, must at all
times be independent and impartial and respect due process guarantees.
8.
The Right to a Fair Trial in
Public Emergencies
The right to due process in public emergencies will be dealt with in Chapter
16. Suffice it to point out here that, although the articles on fair trial in the International
Covenant and the American and European Conventions do not, as such, form part of
the list of non-derogable rights in article 4(2) of the Covenant, article 27(2)of the
American Convention and article 15(2) of the European Convention, this in no way
means that these provisions can be derogated from at will.
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With regard to the International Covenant on Civil and Political Rights, the
Human Rights Committee has stated in its General Comment No. 13 that
“If States parties decide in circumstances of a public emergency as
contemplated by article 4 to derogate from normal procedures required
under article 14, they should ensure that such derogations do not exceed
those strictly required by the exigencies of the actual situation, and respect
the other conditions in paragraph 1 of article 14.”251
250 Eur. Court HR, Case of Çiraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, pp. 3072-3074, paras. 37-41.
251 United Nations Compilation of General Comments, p. 123, para. 4.
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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