Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement
The Committee has also made it abundantly clear that the “right to be tried
by an independent and impartial tribunal is an absolute right that may suffer no
exception”.252 It is further beyond doubt that the basic fair trial guarantees laid down in
article 14 must be ensured even in severe crisis situations, although the Committee has
accepted “that it would simply not be feasible to expect that all provisions of article 14
can remain fully in force in any kind of emergency”.253 However, it has not yet defined
what aspect, or aspects, of the fair trial guarantees might possibly not be applicable in
public emergencies threatening the life of the nation.
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Since, as already noted above, the African Commission on Human and
Peoples’ Rights considered that article 7 of the African Charter on Human and Peoples’
Rights should be considered non-derogable, it follows that the fair trial guarantees
contained therein must be ensured at all times.254
*****
The Inter-American Court has emphasized that “the guarantees to which
every person brought to trial is entitled must be not only essential but also judicial”, a
conception that implies “the active involvement of an independent and impartial
judicial body having the power to pass on the lawfulness of measures adopted in a state
of emergency”.255 In the case of Castillo Petruzzi “the military tribunals that tried the
alleged victims for the crimes of treason did not meet the requirements implicit in the
guarantees of independence and impartiality” that article 8(1) “recognizes as essentials
of due process of law”.256 More details about the interesting inter-American
jurisprudence relating to article 27 of the American Convention will be given in Chapter
16 of this Manual.
The right to enjoy a fair trial must also be guaranteed in public
emergencies threatening the life of the nation, although possibly some
aspects thereof may be subject to limited enforcement.
The right to be tried by an independent and impartial tribunal
must be guaranteed at all times, including in public emergencies
threatening the life of the nation.
252 Communication No. 263/1987, M. González del Río v. Peru (Views adopted on 28 October 1992), in UN doc. GAOR, A/48/40
(vol. II), p. 20, para. 5.2; emphasis added.
253 See UN doc. GAOR, A/49/40 (vol. I), p. 5, para. 24. This was prompted by a request by the Sub-Commission on Prevention
of Discrimination and Protection of Minorities that a new optional protocol be elaborated to include, inter alia, article 14 in the list of
non-derogable rights.
254 See e.g. ACHPR, Civil Liberties Organisation and Others v. Nigeria, Communication No. 218/98, decision adopted during the 29th Ordinary
session, 23 April – 7 May 2001, p. 3 of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/218-98.html.
255 I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, Series C, No. 52, p. 197, para. 131; emphasis added.
256 Ibid., para. 132.
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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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