Cases violating ICCPR art 14 (potential) (2)

Note that committees can record actual or potential violations.

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

ICCPR art 14

Fardon v Australia (HRC, 2010)

Remedy's assessment: Remedied

Robert Fardon was held in ‘preventive detention’ beyond the completion of a 14-year prison term for sexual offences. Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 allows prisoners deemed a threat to the community to be gaoled indefinitely. The HRC found Mr Fardon’s continued imprisonment without a new conviction to be arbitrary, retroactive and a violation of his fair-trial rights. It constituted a breach of the prohibition on imposing ‘a heavier penalty … than the one that was applicable at the time when the criminal offence was committed’. Further, the civil proceedings by which Mr Fardon’s continuing imprisonment was reviewed did not meet due process guarantees. An appropriate remedy would include ending his preventive detention, which occurred in 2013.

Read more on Fardon v Australia.

Tillman v Australia (HRC, 2010)

Remedy's assessment: Remedied

At the conclusion of Mr Tillman’s 10-year sentence for sex offences, the NSW Attorney-General used new legislative powers to keep him, presumed a continuing threat to the community, in ‘preventive detention’ a further year under conditions identical to his imprisonment. The HRC found Mr Tillman had suffered arbitrary detention, penal in character, yet ordered by civil proceedings lacking due process, under legislation retroactively applied, without a fresh trial. It suggested he should be released from prison, which had already occurred.

Read more on Tillman v Australia.