Article 10 – Fair Trial

What does this right mean?

Article 10 guarantees the right to a fair trial. A fair trial can only be held with an independent and impartial judge, and the case being heard in public. The right is one of the civil and political rights from the UDHR and build upon Articles 6, 7, 8 and 9. On top of that, Article 11 determines that everyone is innocent until proven guilty. The civil and political rights protect civilians from unlawful government intervention, oppression or discrimination, and ensure the right to participate in social and political life. 

Law without justice is a wound without a cure.

What is the history of this right?

While the UDHR was being drafted, the tribunals in which war criminals were tried started. These tribunals were set in Nuremberg and Tokyo. The goal was to judge war crimes committed during the Second World War fairly, publicly and independently. After the Second World War, it was of great importance that the right to a fair trial was protected for all people.

Where and how is this right documented?

The right to a fair trial and an independent court is included in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Besides this, the right to a fair trial is documented in Article 6 of the European Convention on Human Rights (ECHR), in Article 47 of the Charter of Fundamental Rights of the European Union and in Article 19 of the Treaty on European Union. This is about a fair and public trial, by an independent judge.

In Dutch law, the right to a fair trial can be found in Article 17 of the Constitution of the Netherlands. It states that everyone has the right to ‘a fair trial within a reasonable time limit by an independent and impartial judge’.

The right to fair treatment by an impartial, independent judge is worked out further in rulings by the European Court of Human Rights (EctHR). Like in the case Airey versus Ireland. In it, the EctHR determined that one has the right to an attorney, when access to a court is otherwise not possible for that person.

Article 10 also allocates rights to a suspect in a criminal case. If someone is suspected of a crime or misdemeanor, he or she has to be able to defend himself or herself against that suspicion. There has to be an independent and impartial judicial institution which listens to what the suspect has to say.

This is why in the Netherlands, there are rules about suspects' rights in the Dutch Code of Criminal Procedure. Civilians may only be prosecuted for violating a prohibition documented in the Dutch Penal Code. And one is innocent until proven guilty. The judge finally decides whether or not the suspect is guilty and punishable, and how high the punishment has to be. 

How topical is this human right?

There are too few judges and too many court cases. On top of that, cases are getting more and more complicated. Regulations are more and more extensive, and it is important to consider all of the suspect's circumstances.

Dutch judges have already been indicating for a long time that the work pressure is too high and that there is a staff shortage. This results in judges having to work harder and longer. In the weekend and at night too. On average, they work 34 percent more than is stated in their contracts. 70 percent of the judges is often fatigued and afraid they cannot finish their work in time and properly. If judges do not get enough time for a case, they cannot do their work thoroughly.

There are projects to make the legal system faster and more efficient, such as the ZSM approach for common offences, in which the Netherlands Public Prosecution Service can quickly make judgements in cases of frequently occurring criminal acts. The Netherlands Public Prosecution Service can now also make procedural agreements with the suspect, which result in the case becoming less complicated. The question is whether or not the right to a fair trial is in danger because of it.

In the European Union, the independence of Polish judges is up for discussion. There are various court cases on the question to which extent Polish judges are still independent, following reforms to the justice system and appointments of new judges. More information is on the website of Amnesty International (Independent judiciary in Poland tarnished, in Dutch).