Trial Observation Handbook for Human Rights Defenders, Study Guides, Projects, Research of Federal Courts

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“INJUSTICE ANYWHERE IS A THREAT

TO JUSTICE EVERYWHERE.”

MARTIN LUTHER KING (1963)

TRIAL

OBSERVATION

HANDBOOK

FOR

HUMAN RIGHTS

DEFENDERS

Cover photo: Mock trial training session in court procedures for police organised by local NGOs in Freetown, Sierra Leone.

Published in 2012 by Front Line, The International Foundation for the Protection of Human Rights Defenders

Grattan House, Temple Road, Blackrock, County Dublin, Ireland

Copyright © 2012 Front Line Defenders This work is licensed under a Creative Commons Attribution – NonCommercial ShareAlike 3.0 Licence

Copies of this handbook are available from: info@frontlinedefenders.org Price €10 plus post and packaging

This publication is also available online at: www.frontlinedefenders.org/resources

To request/order a copy please contact:

Front Line Defenders Grattan House, Temple Road, Blackrock, County Dublin, Ireland Tel 00 353 1 212 37 50 Fax 00 353 1 212 10 01

ISBN: 978-0-9570604-1-

FRONT LINE DEFENDERS

Front Line Defenders was founded in Dublin in 2001 with the specific aim of protecting human rights defenders, people who work, non-violently, for any or all of the rights enshrined in the Universal Declaration of Human Rights (UDHR).

Front Line Defenders aims to address some of the needs identified by defenders themselves, including protection, networking, training and access to international bodies that can take action on their behalf.

Front Line Defenders seeks to provide rapid and practical support to at-risk human rights defenders, including through a 24 hour emergency response phone line, and through promoting the visibility and recognition of human rights defenders as a vulnerable group.

Front Line Defenders runs a small grants programme to provide for the security needs of defenders. Front Line Defenders mobilises campaigning and lobbying on behalf of defenders at immediate risk. In emergency situations Front Line Defenders can facilitate temporary relocation.

Front Line Defenders conducts research and publishes reports on the situation of human rights defenders in specific countries. The organisation also develops resource materials and training packages on behalf of human rights defenders, as well as facilitating networking and exchange between defenders in different parts of the world.

Front Line Defenders promotes strengthened international and regional measures to protect human rights defenders, including through support of the work of the UN Special Rapporteur on Human Rights Defenders. Front Line Defenders seeks to promote respect for the UN Declaration on Human Rights Defenders.

TRIAL OBSERVATION HANDBOOK i

ACKNOWLEDGEMENTS

The Front Line Defenders Trial Observation Handbook is largely based on the excellent work by the International Commission of Jurists in its Trial Observation Manual for Criminal Proceedings: Practitioners Guide No. 5 (ICJ, 2009).

This handbook is an attempt to summarise and adapt the ‘Trial Observation Manual’ in a more compact form which can be more readily distributed and used by human rights defenders.

Front Line Defenders is grateful for the ongoing and generous support of Irish Aid, the European Commission and all our other donors without whom this work would not be possible.

Editor Paul Richmond is a Barrister of England and Wales. In addition to his personal experience as a trial observer in numerous high profile criminal trials, Paul has delivered trial observation training courses for human rights defenders from over 40 countries.

Human Rights Defenders Front Line Defenders defines a human rights defender as “a person who works, non-violently, for any or all of the rights enshrined in the Universal Declaration of Human Rights.”

Front Line Defenders seeks to promote the UN Declaration on Human Rights Defenders (1998).

TRIAL OBSERVATION HANDBOOK i i i

FOREWORD

Human rights defenders are most at risk when their work as key agents of social change threatens the position of the rich and powerful who have a vested interest in maintaining the status quo.

In the last two years, while the level of recognition for human rights defenders at the international level has increased, the space for them to work safely on the ground has shrunk significantly. Increasingly governments shy away from the bad publicity caused by the killing of human rights defenders preferring to use smear campaigns or the power of the law against them.

In addition to using propaganda to discredit human rights defenders as agents of subversion or allies of a foreign enemy, governments will, in the name of transparency and accountability, insist on ever more draconian measures to control the registration of NGOs, making official registration effectively impossible while then prosecuting them for not being registered. Human rights organisations which receive external funding are particularly vulnerable to random audits and prosecution on politically motivated charges of financial mismanagement.

Dr Mudawi Ibrahim Adam, Director of the Sudan Social Development Organisation (SUDO) was charged with financial mismanagement. The court dismissed the charges for lack of evidence but the Government intervened and insisted on the imposition of a prison term and fine. He was sentenced to one year in prison and only released as a result of international pressure

Hebal Abel Koloy is a teacher and human rights defender who works to protect the rights of the indigenous Borok people in Tripura, North East India. He was charged with waging war against the state on the basis of a speech he gave at a meeting in Geneva. Each time he was granted bail,

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and in which no credible evidence was presented. During the trial the lawyers and witnesses for the defence were routinely intimidated by pro-government supporters.

The right to a fair trial is one of the most fundamental rights enshrined in Article 10 of the UDHR: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.

Repressive governments seek not only to silence dissent but also to silence those independent voices which challenge their abuse of power and hold them to account. The rule of law and the existence of a court system which is able to act independently and impartially is an essential pre- condition to the creation of a truly democratic society based on respect for fundamental human rights.

This handbook is designed as a resource to enable trial observers to accurately report on trial proceedings and to contribute to the protection of HRDs facing prosecution by highlighting injustice and the lack of due process. The presence of trial observers sends out a clear message that the right to a fair trial in which all the evidence can be heard and examined without prejudice is a fundamental human right.

Mary Lawlor Executive Director Front Line Defenders

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CONTENTS

CHAPTER 1:

THE RIGHT TO A FAIR TRIAL

• AN ESSENTIAL HUMAN RIGHT 1

CHAPTER 2:

BASIC PRINCIPLES FOR

EFFECTIVE TRIAL OBSERVATION 4

CHAPTER 3:

PRACTICAL PREPARATION

BEFORE THE TRIAL OBSERVATION 11

CHAPTER 4:

CONDUCTING THE TRIAL OBSERVATION 18

CHAPTER 5:

WRITING THE TRIAL

OBSERVATION REPORT 28

CHAPTER 6:

BASIC REQUIREMENTS

OF A FAIR TRIAL 34

CONCLUSION 40

TABLE 1: GENERAL STANDARDS ON FAIR TRIAL

AND DUE PROCESS OF LAW

TABLE 2: STANDARDS ON ARREST, PRE-TRIAL

DETENTION AND CRIMINAL INVESTIGATIONS

TABLE 3: STANDARDS ON JUDICIAL PROCEEDINGS

TRIAL OBSERVATION HANDBOOK v i i

1 THE RIGHT TO A FAIR TRIAL

• AN ESSENTIAL HUMAN RIGHT

“Injustice anywhere is a threat to justice everywhere.” Martin Luther King (1963)

A fair trial is essential, not only for protecting the human rights of the accused and those of victims, but also to ensure proper administration of justice, which is a key component of the rule of law.

The right to a fair trial is established as one of the fundamental pillars of international law to protect individuals against arbitrary treatment and denial of justice.

The right to a fair trial is one of the universally applicable principles recognised in the Universal Declaration of Human Rights (1948) and has subsequently been reaffirmed and elaborated upon in legally binding treaties such as the International Covenant on Civil and Political Rights, and in numerous other international and regional treaties and declaratory instruments, adopted by the UN and by regional intergovernmental bodies.

TRIAL OBSERVATION

Trial observation - the practice of assessing whether, or to what extent, the conduct of a trial conforms to national and international fair trial standards - can be a crucial tool in efforts to defend human rights and the primacy of the rule of law.

It is also a crucial tool in protecting human rights defenders (HRDs) when they are subjected to fabricated charges and unfair trials. Trial observation can help provide visibility to such situations and mobilise adequate responses nationally and internationally.

TRIAL OBSERVATION HANDBOOK 1

Trial observation is important in fighting against impunity for attacks against human rights defenders when the suspected perpetrators of such acts are on trial.

The right to observe trials stems from the general right of all persons to promote and secure the protection and realisation of human rights and fundamental freedoms.

The UN Declaration on Human Rights Defenders provides that everyone has the right, individually and in association with others, to attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments (article 9(3)(b)).

WHY THIS TRIAL OBSERVATION

HANDBOOK?

This handbook is specifically targeted at human rights defenders, both when they carry out general trial observation and when they observe trials of fellow HRDs – which we will call 'HRD trials' for ease of reference.

This handbook is aimed at:

 Giving HRDs a quick reference handbook with practical guidance as to how to carry out an effective trial observation;  Encouraging HRDs to effectively monitor trials for compliance with national and international fair trial standards;  Helping HRDs to evaluate existing trial observation methodologies with a view to improving the overall effectiveness of their trial monitoring programmes;  Illustrating specific considerations that should be made when observing the trial of a human rights defender;  Facilitating the development of a set of strategies aimed

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2 BASIC PRINCIPLES FOR EFFECTIVE TRIAL OBSERVATION

PURPOSE:

This section aims to provide an understanding of five basic principles for effective trial observation.

Effective trial observation depends upon protecting:

 The integrity of the trial observation process; and  Respect for the trial observer

In order to maximise the effectiveness of any trial observation, trial observers should continuously strive to carry out their monitoring and reporting activities in accordance with the following five key principles:

1. Objectivity: Maintain the objectivity and impartiality of the assessment 2. Professionalism: Uphold the highest standards of professionalism 3. Non-Intervention: Refrain from intervening in the judicial process 4. Cooperation: Promote a spirit of cooperation 5. Confidentiality: Preserve the confidentiality of all information and findings during the observation

OBJECTIVITY ELABORATED

In the context of trial observation, objectivity may be understood as synonymous with adopting an

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unbiased/neutral approach. Maintaining objectivity may seem challenging when a fellow human rights defender is the person on trial. However, it is possible to uphold this principle by reporting on facts rather than opinions and conducting the assessment by reference to fixed criteria. Objectivity also encompasses keeping an open mind and not allowing yourself to be influenced.

The importance of objectivity  Objectivity serves to encourage acceptance of the observer’s presence, findings and recommendations  Objectivity ensures reliable findings  Objectivity helps to persuade others, e.g. foreign diplomats, that charges are politically motivated and the trial unfair, and their attention is therefore necessary

Maintaining objectivity The objectivity of the trial observation can be maintained by, for example:

 Keeping an open mind about the fairness of the proceedings – avoid adopting any preconceived conclusions  Making practical arrangements without reference to the parties to the proceedings – avoid, for example, accepting accommodation or interpretation facilities provided by either the prosecution or defence  Choosing your seat in the courtroom carefully – avoid sitting near to any of the parties to the proceedings or their supporters in the courtroom  Assessing the fairness of the proceedings by reference to fixed criteria – conduct the assessment with reference only to clearly defined and accepted fair trial standards in national and international law  Maintaining balance in the selection of interviewees – try to interview representatives of both parties to the proceedings (prosecution and defence)  Avoiding public statements – during the observation, avoid commenting on the merits of the case, the fairness

TRIAL OBSERVATION HANDBOOK 5

information about the trial observation programme guidelines and procedures, the local legal system and applicable domestic and international law  Being prepared for interviews with the media – be prepared to explain the purpose of the trial observation programme and your role

NON-INTERVENTION ELABORATED

Trial observers must avoid any interaction or engagement with the court regarding the merits of an individual case. Trial observers must avoid any attempt to influence the outcome of the case, directly or indirectly, through formal or informal channels.

The importance of non-intervention  Intervention in the judicial process gives rise to a risk of perceived bias and therefore undermines the objectivity of the observation  Intervention in the judicial process undermines the exclusive decision-making authority of the court and therefore compromises judicial independence

Ensuring non-intervention Intervention in the trial process can be avoided by:

 Refraining from interrupting a trial or speaking with a legal actor or participant during the trial  Avoiding asking legal actors their opinion on a case or advising them with regard to a course of legal action to take  Refraining, during the observation, from making any public comment on the merits of the case, the fairness of the proceedings observed or the functioning of the criminal justice system in general  Avoiding any attempt to influence the outcome of the trial proceedings in any way

TRIAL OBSERVATION HANDBOOK 7

It is clear that when human rights defenders observe a politically motivated trial of a fellow HRD, their ultimate aim is to secure their acquittal. Nonetheless, the principle of non- intervention by the observer should be respected as much as possible in order to strengthen the impact of the trial observation. This can be done, for example, by splitting responsibilities amongst different organisations, ensuring that one carries out the trial observation (adhering to the standards above) and a different one engages in public advocacy on the trial.

COOPERATION ELABORATED

Trial observers should strive to engender a spirit of cooperation rather than hostility and suspicion.

The importance of cooperation  Information will be more forthcoming  The report on the trial observation will be more readily received  The safety of the trial observer will be better protected

Promoting cooperation A spirit of cooperation can be promoted by:

 Endeavouring to achieve a level of mutual understanding with the national authorities regarding the purpose and role of the monitoring  Listening to the concerns of all legal actors  Demonstrating good will and adopting a positive approach rather than just looking for violations  Making constructive recommendations in the trial observation report

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