Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial
Rule 43 of the Rules of Procedure and Evidence of the International Criminal
Tribunals for Rwanda and the former Yugoslavia provides that interrogations of
suspects “shall be audio-recorded or video-recorded”, in accordance with a special
procedure detailed therein. The suspect shall be supplied with a copy of the transcript
of this recording (Rule 43(iv)).
Detailed records of interrogations must be kept at all times and must be
made available to the suspect and his or her legal counsel.
6.7 The right to adequate time and facilities to
prepare one’s defence
Article 14(3)(b) of the International Covenant on Civil and Political Rights
provides that in the determination of any criminal charge against him, everyone shall be
entitled “to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing”. Article 8(2)(c) of the American
Convention on Human Rights guarantees the accused “adequate time and means for
the preparation of his defence”, while article 6(3)(b) of the European Convention on
Human Rights speaks of “adequate time and facilities for the preparation of his
defence”. Article 7(1) of the African Charter on Human and Peoples’ Rights globally
guarantees “the right to defence, including the right to be defended by counsel of his
choice”. Articles 20 and 21 respectively of the Statutes of the International Criminal
Tribunals for Rwanda and the former Yugoslavia were heavily inspired by article 14 of
the International Covenant and both provide that the accused shall “have adequate
time and facilities for the preparation of his [or her] defence and to communicate with
counsel of his or her own choosing” (arts. 20(4)(b) and 21(4)(b)). Since this right will be
examined in fuller detail in Chapter 7, only a limited number of examples from the
international jurisprudence will be examined here, since they more particularly concern
the lack of time and facilities to prepare one’s defence at an early stage of the
investigations.
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As emphasized by the Human Rights Committee, “the right of an accused
person to have adequate time and facilities for the preparation of his or her defence is
an important element of the guarantee of a fair trial and a corollary of the principle of
equality of arms”.95 In General Comment No. 13 on article 14, the Committee also
explained that the meaning of “‘adequate time’ depends on the circumstances of each
case, but the facilities must include access to documents and other evidence which
the accused requires to prepare his case, as well as the opportunity to engage and
communicate with counsel. When the accused does not want to defend himself in
person or request a person or an association of his choice, he should be able to have
recourse to a lawyer.”96 This provision moreover “requires counsel to communicate
95 Communication No. 349/1989, C. Wright v. Jamaica (Views adopted on 27 July 1992), UN doc. GAOR, A/47/40, p. 315,
para. 8.4; and similar wording in Communication No. 702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), UN doc.
GAOR, A/52/40, p. 232, para. 5.10.
96 United Nations Compilation of General Comments, p. 124, para. 9; emphasis added.
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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