Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement The case of Domukovsky et al. In the case of Domukovsky et al., the four authors complained that they had not had a fair hearing after they had been removed from the court room and were subsequently absent from the proceedings, which ended in a death sentence being imposed in two cases; they were also refused lawyers of their choice. The Committee considered that article 14(3)(d) had been violated in respect of each author, emphasizing that “at a trial in which the death penalty can be imposed, which was the situation for each author, the right to a defence is inalienable and should be adhered to at every instance and without exception. This entails the right to be tried in one’s presence, to be defended by counsel of one’s own choosing, and not to be forced to accept ex-officio counsel.”114 Since the State party had not in this case shown that it had taken “all reasonable measures to ensure the authors’ continued presence at the trial, despite their alleged disruptive behaviour”, and considering that it had not ensured “that each of the authors was at all times defended by a lawyer of his own choosing”, the Committee concluded that article 14(3)(d) had been violated.115 ***** The African Commission on Human and Peoples’ Rights concluded that Burundi had violated the right to a defence in article 7(1)(c) of the African Charter on Human and Peoples’ Rights in a case where the courts had refused to designate a defence lawyer to an accused person who was eventually sentenced to death. The Commission “emphatically” recalled that “the right to legal assistance is a fundamental element of the right to fair trial”, in particular in cases “where the interests of justice demand it”. Given “the gravity of the allegations brought against the accused” person in this case “and the nature of the penalty he faced, it was in the interests of justice for him to have the benefit of the assistance of a lawyer at each stage of the case”.116 Article 7(1)(c) of the African Charter was also violated in a death penalty case against Nigeria where the defence counsel for the seven complainants “was harassed and intimidated to the extent of being forced to withdraw from the proceedings. In spite of this forced withdrawal of counsel, the tribunal proceeded to give judgement in the matter, finally sentencing the accused to death”. In the view of the Commission the defendants were thus “deprived of their right to defence, including their right to be defended by counsel of their choice” contrary to article 7(1)(c) of the African Charter.117 114 Communications Nos. 623, 624, 626, 627/1995, V. P. Domukovsky et al. v. Georgia (Views adopted on 6 April 1998), in UN doc. GAOR, A/53/40 (vol. II), p. 111, para. 18.9; emphasis added. 115 Ibid., loc. cit. 116 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, para. 30 of the text of the decision as published at the following web-site: http://www1.umn.edu/humanrts/africa/comcases/231-99.html. 117 ACHPR, Constitutional Rights Project (on behalf of Zamani Lekwot and six Others) v. Nigeria, Communication No. 87/93, decision adopted during the 16th session, October 1994, para. 29 of the text of the decision as published at the following web-site: http://www.up.ac.za/chr/ahrdb/acomm_decisions.html. 276 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers