CRIMINAL TRIAL MONITORING IN COURTS

Guidelines for Human Rights Monitors

1. INTRODUCTION

1.1 Purpose of this Document

This document provides trial monitors with a set of guidelines to follow while observing trials, and to summarize the domestic and international standards by which a trial should be compared. [[In this document, ICCPR refers to the International Covenant on Civil and Political Rights; UDHR refers to the Universal Declaration of Human Rights; CRC refers to the Convention on the Rights of the Child; CPL refers to the Criminal Procedure Law (1976, Liberia); JL refers to the Judiciary Law (1972) relating to the Organization and Activities of the Adjudicative Courts of Liberia (1972); and Constitution refers to the Constitution of the Republic of Liberia (1987); Training Manual on Human Rights Monitoring (UNOHCHR, Professional Training Series No.7, NY 2001)]]The document is addressed primarily to HRPS/UNMIL staff, and sets out in summary form generally recognized guidelines for trial observation. This may also be shared with active human rights NGOs involved in monitoring of court cases.

The document contains four substantive parts: Pre-Trial Preparation; Trial Observation; Post-Trial Monitoring; and Guidelines for Trial Monitoring Reports.

1.2 Objective of Trial Monitoring

Monitoring of the human rights situation is mainly “the active collection, verification and immediate use of information to improve human rights protection”. It is simply a method to ensure the guarantee of human rights through due process of law. Since many human rights issues in a country are addressed through justice delivery mechanisms, it is therefore essential that human rights monitoring method be applied in courts while closely observing trials. Based on field experiences of the OHCHR, eighteen basic principles are identified that a human rights monitor must keep in mind while monitoring human rights situation. These principles have been applied in many places for monitoring trials through judicial process as well. These principles outlined in the OHCHR Training Manual (for human rights monitoring) include:

• Respect the mandate;
• Know the standards;
• Understand the country;
•Do not harm (safety of witnesses, victims or other individuals should not be jeopardized) ;
• Exercise good judgment;
• Seek consultation;
• Respect the authorities;
• Credibility;
• Confidentiality;
• Security;
• Need of consistency, persistence and patience;
• Accuracy and precision;
• Impartiality;
• Objectivity;
• Sensitivity;
• Integrity;
• Professionalism;
• Visibility.

One must keep in mind that the main purpose of trial observation (or monitoring) is to ensure respect for human rights through due process in the administration of justice. Trial observation aims to encourage the judiciary, court officers and counsel to apply international fair trial standards. Hence trial monitoring should identify where fair trial standards are not followed in order to ascertain ways to improve trial procedures and strengthen the justice system.

Primary objectives of trial observation, which may be considered important by a trial monitor, are mainly six, inter alia:

• To prepare an independent and impartial report on a trial;
• To make the participants-particularly judges and prosecutors-aware that they are under scrutiny;
• To express concern about the fairness of the proceedings;
• To give the defendants, the defense attorney, and the defendant’s/or victim’s supporters a sense of renewed confidence;
• To make sure that justice is both done and seen to be done;
• To convey a message of assurance to judges and parties to a case that any outside interference in the judicial process will be recorded and the authorities doing so will be exposed or will face negative consequences.

2. ROLE OF TRIAL MONITOR

The trial monitor must:

• preferably be a lawyer, or a human rights worker with extensive experience of field works or monitoring trials;
• be aware of the issues which may arise during trials, be familiar with these guidelines and the applicable international law (such as ICCPR, CRC, CEDAW and CAT);
• have time to prepare background information about the specific case;
• represent the interests of a fair trial, and report breaches of international standards and relevant local laws; and be, and appear to be, independent from the parties, counsel and judge.

Before the trial, the trial monitor should, where possible:

• collect background information about the case, and research the relevant issues, including:

• who is involved in the case?
• where and when the case is being heard?
• what are the charges against the accused and facts of the case ?
• how was the accused arrested (i.e. with or without a warrant) and investigations conducted ?

• obtain copies of the evidence before the trial, from the court, counsel, NGOs or other sources;
• communicate with the accused to find out the extent to which they are aware of the proceedings;
• communicate with the victim;
• identify the human rights issues likely to arise in the trial; and
• inform the court of the decision to monitor the trial, and of the issues of concern.

3. TRIAL OBSERVATION

During the trial, an assessment must be made as to whether international fair trial standards have been observed. By virtue of ratification, incorporation of international standards in domestic laws through Constitutions and other codes, and practices, Liberia is under obligation to comply with them. These are the dictates of the Rule of law principles as well. The following should therefore be considered by the trial monitor:

3.1 Right to a Competent Tribunal Established by Law
(Art 14(1) ICCPR; Art 2, 3, 15, 16,19, 20, 21, 65 and 66 of the Constitution, Sec 2.1, 3.2, 4.2, 5.2, 5.12, 6.2, 7.3, 8.3, 9.2, 10.2, 11.21 Judiciary Law)

The Court hearing the trial must have the proper jurisdiction to hear the particular case.

• Does the Court have jurisdiction over the case? Does the court have special jurisdiction over juvenile matters ?

3.2 Right to Equality Before the Law and Courts
[Art 14(1), 26, ICCPR; Art 10, UDHR; Art 11(b), (c) Constitution]

Every accused person must be treated equally with other similarly placed persons. They must have equal access to the judicial system, and be treated equally by the court.

• is the charge against the accused a charge that is usually brought against others in a similar position?

• is the accused treated differently because of his/her political or other opinion, age, sex, religion, ethnicity, etc.?

3.3 Right to a Fair Hearing
[Art 14(1), ICCPR; Art 11(b), (c) Constitution]

Each party to the case must be treated equally.

• do the parties have the same access to court documents?
• are the parties treated equally by the judge?
• are the parties given equal opportunity to submit evidence ?

3.4 Right to a Public Hearing
[ Art 14(1), ICCPR; Art. 21(h) Constitution]

An accused has the right to an open and public hearing, subject to limited exceptions.

• is the trial public?
• is the time and venue of the trial made public?
• are any groups excluded from attending the trial?
• are any groups intimidated in an attempt to prevent their attendance at trial?
• if a public hearing is denied, is a valid reason given? (i.e. security, witness protection, morals, public order, respect for privacy, the interests of justice).

3.5 Right to an Independent and Impartial Judiciary
[Art 14(1), ICCPR; Art 20(a), 21(h) Constitution]

The judiciary must be impartial and independent. Regard should also be had to the Basic Principles on the Independence of the Judiciary (1985).

• has the judge taken part in the case in a prior capacity?
• does the judge have any personal interest in the case?
• is there evidence of interference by the executive or other body?
• does the judge have any personal relationship with any of the parties, counsel or witnesses?
• does the judge seem to have a pre-formed opinion about the case?
• is the judgment in accordance with the evidence presented at trial?
• is the judgment read in court? Is the judgment made public?

3.6 Right to be Presumed Innocent
[ Art 14(2), ICCPR; Art 11(1), UDHR; Art 21(h) Constitution; Sec 2.1 Criminal Procedure Law, Sec 8.1.6 Penal Code]

In a criminal trial, the accused should be presumed innocent until proven guilty. The prosecution has the burden of proof to show that the accused is guilty beyond a reasonable doubt.

• does the prosecution have the burden of proof throughout the trial?

• does the judge make clear that his or her findings are based on the standard of beyond a reasonable doubt?

• does the judge avoid, and prevent the prosecution from, asking questions that would require the accused to prove his or her innocence?

• is the accused allowed to wear civilian clothes? and not in handcuffs or restraints?

3.7 Right to be Informed of the Charge
[Art 14(3)(a), ICCPR; Art 21(c) Constitution; Sec 21(a) Criminal Procedure Law]

The accused must be informed of the charges against him/her, so that he/she can sufficiently prepare a defence.

• is the accused informed of the charges against him/her?
• is the accused given information about the relevant law and its provisions?

• is the accused given information about the date, time and place where the crime allegedly occurred?

• is the charge given to the accused orally, or in writing? Is interpretation
provided where necessary?
• does the accused understand the charges?

3.8 Right to have Detention Determined by a Court
[Art 21(f), (g), 87(b) Constitution; Sec 10.11 Criminal Procedure Law]

The accused has the right to have their arrest and detention determined by a Court within 48 hours after arrest. For serious crimes, the time may be extended to 72 hours.

• was the accused brought before a judge within the legislated time limits after arrest?

3.9 Right to Adequate Time to Prepare Defence
(Art 14(3)(b), ICCPR; Sec 2.2 Criminal Procedural Law)

The accused, or the counsel of the accused, must be given sufficient time to prepare the defence. Factors relevant to whether adequate time is given include: the complexity of the case, access to evidence and procedural time limits.

•if counsel is appointed by the State, is the appointment made with sufficient time prior to the hearing?

• is sufficient time given for the preparation of the defence?
• how often does counsel meet with the accused?
• does the defence have adequate access to necessary documentation?

3.10 Right to be Tried without Undue Delay
[Art 14(3)(c), ICCPR; Art 20(a), 21(f),(h) Constitution; Sec 12.3 Criminal Procedure Law]

Whether a trial is unduly delayed depends upon a range of factors including: the complexity of the case, the seriousness of the offence, the conduct of the authorities, whether the accused is detained, legislated time limits and the conduct of the accused . In Liberian law, the trial should normally be conducted within 15 days, in the case of adults, and within 24 hours after the notification to the court, in the case of juveniles.

• is the trial delayed? If so, is this for legitimate reasons?

3.11 Right to be Present at Trial
[Art 14(3)(d), ICCPR; Sec 2.4 Criminal Procedure Law]

The accused has the right to be tried in his/her presence. The limited exceptions to this general rule include: the accused has disrupted proceedings, the accused unreasonably failed to appear or the accused has agreed to be tried in his/her absence.

• is the accused excluded from any parts of the trial?
• if so, are adequate reasons given for the exclusion? Does the exclusion negatively impact on the fairness of the trial?
• when excluded, is the accused represented by counsel at the trial?

3.12 Right to Legal Assistance
[Art 14(3)(d), ICCPR; Art 21(c), (h), (i) Constitution, Sec 2.2, 2.3, 12.1 Criminal Procedure Law; Sec 11.91 Judiciary Law]

The accused has the right to access legal assistance. Regard should also be had to the Basic Principles on the Role of Lawyers (1990).

• is the accused informed of the right to be legally represented?
• is the accused given the opportunity to employ counsel?

• if the accused is unable to employ counsel because of insufficient means, is legal assistance provided?

• is the appointed counsel competent and independent?

3.13 Right to Call and Examine Witnesses
[Art 14(3)(e), ICCPR; Art 21 (h) Constitution; Sec 12.3, 17.3, 17.4, Criminal Procedure Law]

The accused must be allowed to call witnesses, and to examine prosecution witnesses.

• is the accused informed of the names of the witnesses called by the prosecution?
• does the accused receive this information with enough time to prepare the defence?
• is the accused allowed to be present during the testimony of prosecution witnesses?
• is the accused allowed to call and cross-examine witnesses?
• is adequate protection given to witnesses where necessary?
• if a witness is requested and fails to attend, is the witness brought before the court?

3.14 Right to an Interpreter
[Art 14(3)(f), ICCPR; Sec 1.12, 15.9 Criminal Procedure Law]

If the accused has difficulty understanding the language used in the court, an interpreter must be provided.

• does the accused need an interpreter? If so, is an interpreter provided promptly?
• is the interpreter present at all times?
• is the interpreter competent, independent and impartial?
• is defence counsel able to understand the language of the court and of the accused?
• are essential documents translated?

3.15 Right not to be Compelled to Testify, or to Confess Guilt
[Art 14(3)(g), ICCPR; Art 21(c),(h) Constitution; Sec 2.3, 2.5, 2.6, 21.3, 21.4 Criminal Procedure Law]

The accused has the right to remain silent, and the right to be informed of this right. No adverse inferences may be drawn against the accused, if he or she chooses not to testify.

• is the accused informed of the right to remain silent? Does the court ensure that the accused understands this right?

• are there any allegations that evidence from the accused was obtained by coercion? If so, what is the response of the court?

• does the court attempt to intimidate the accused to give evidence or confess guilt?

•are the reasons of the judgment based on the lack of explanation from the accused? If so, does this contravene the right of silence?

3.16 Right not to be Convicted under Retroactive Criminal Laws
[Art 15, ICCPR; Art 21(a) Constitution, Sec 8.1.3 Penal Code]

An accused may not be charged with an offence which was not an offence at the time of the relevant acts or omissions.

• is the offence charged an offence which existed at the time of the relevant acts or omissions?

3.17 Right not to be Tried Twice for the Same Offence
[Art 14(7), ICCPR; Art 21(h) Constitution; Sec 3.1, 3.2 Criminal Procedure Law]

An accused may not be charged and tried for an offence for which he or she has already been acquitted or convicted.

• is the present charge based on an offence for which the accused has already been tried?

3.18 Right to Appeal
[Art 14(5), ICCPR; Art 20(b) Constitution; Chapter 24 Criminal Procedure Law; Sec 51.2 Penal Code; Sec 11.1 Judiciary Law]

Every person convicted of a criminal offence has the right to have the sentence and conviction reviewed by a higher court. Appellate proceedings must be undertaken within a reasonable time.

• is the accused given the opportunity to appeal his or her sentence and conviction?

3.19 Special Rights for Juveniles
[Art 14(4), ICCPR; Art, 3, 6, 9, 16, 19, 27, 28, 34, 37, 40 CRC; Sec 10.2 and Chapter 11 Judiciary Law; Sec 8.4.1 Penal Code]

Where the accused is a juvenile, procedures must take into account the age and maturity of the minor, and the desire to promote rehabilitation . Regard should also be had to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).

• are the parents or guardians present with the minor during interviews and the trial?
• are the charges determined without delay?
• does the minor have the assistance of a lawyer or other person?
• is the privacy of the minor respected?
• is the minor given the right to speak in court?

3.20 The Role of the Prosecutor
(Sec 51.1 Penal Code)

Regard should be had to the Guidelines on the Role of Prosecutors (1990).

• is there evidence that the prosecutor inappropriately discussed the case with the trial judge before, or during, the trial? (Clause 10, Guidelines)

• is the prosecutor impartial and do they perform the duties of the prosecutor without discrimination? (Art 13(a), Guidelines)

• does the prosecutor take into account all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the accused? (Clause 13(b), Guidelines)

4.POST-TRIAL MONITORING

4.1 Judgment Enforcement
(Sec 23.2 Criminal Procedure Law)

When an accused is found innocent, the accused has the right to be immediately released from custody.

• if the accused is acquitted, is the accused immediately released from custody?

4.2 Sentencing

(Sec 23.2, 23.4 Criminal Procedure Law; Sec 11.42 Judiciary Law, Chapter 51 Penal Code)

• did the sentence take into account the particular circumstances of the offence, and the background, age and mental state of the accused?

• for juveniles, was imprisonment seen as a last resort?

5.GUIDELINES FOR TRIAL MONITOR REPORTS

After the trial, the trial monitor should prepare a report containing the following:

5.1a summary of the background information relevant to the case;
5.2 a short summary of the trial;
5.3 a record of the judgment of the court;

5.4 a detailed record of whether the trial was in accordance with international standards under the headings as set out in sections 3 and 4 of these guidelines (specify both positive aspects and weaknesses of the trial); and

5.5 recommendations on how the major issues in the trial should be addressed.