International Criminal Justice Standards
INTERNATIONAL CRIMINAL JUSTICE STANDARDS
International criminal justice standards, including principally the right to a fair trial, have been defined and guaranteed by no less than twenty global and regional human rights treaties and other instruments. The most important are (1) the Universal Declaration of Human Rights; (2) the International Covenant on Civil and Political Rights; (3) the International Convention on the Elimination of All Forms of Racial Discrimination; and (4) the Convention on the Rights of the Child. International humanitarian law, codified in the four Geneva Conventions and two Additional Protocols, ensures the right to a fair trial and related criminal justice standards during periods of internal and international armed conflicts. There are several other treaty and nontreaty standards relating to the role of judges, prosecutors, and lawyers; the protection of detainees/prisoners, juvenile offenders, persons facing the death penalty; and providing safeguards against disappearances and torture. Regional treaties such as the African Charter on Human and Peoples' Rights, the Inter-American Convention on Human Rights, and the [European] Convention for the Protection of Human Rights and Fundamental Freedoms contain fair trial guarantees and other provisions relevant to criminal justice. The most visible and recent elaboration of the right to a fair trial has been in the context of the ad hoc tribunals for the former Yugoslavia and Rwanda as well as the statute for the new permanent International Criminal Court.
Universal declaration of human rights
In 1948 the U.N. General Assembly adopted the Universal Declaration of Human Rights (Universal Declaration), which provides a worldwide definition of the human rights obligations undertaken by all U.N. member states pursuant to Articles 55 and 56 of the U.N. Charter, including several provisions relating to the administration of justice. For example, Article 10 of the Universal Declaration states, "Everyone is entitled in full equality to a fair and public hearing by an independent tribunal, in the determination of his rights and obligations and of any criminal charge against him." Article 11 provides for the presumption of innocence, public trial, "all guarantees necessary for [one's] defence," and the right to be free from retroactive punishment or penalties. Other provisions of the Universal Declaration—for example, as to arbitrary arrest, the right to an effective remedy, the right to be free from torture, the right to security of person, and privacy—are relevant to the criminal justice system and the fairness of the trial process.
International covenant on civil and political rights
Following the adoption of the Universal Declaration, the U.N. Commission on Human Rights drafted the International Bill of Human Rights, which includes the International Covenant on Civil and Political Rights (Civil and Political Covenant). The Civil and Political Covenant entered into force 23 March 1976 as a multilateral treaty (ratified by 144 countries as of 1 November 2000) and establishes an international minimum standard of conduct for all participating governments. The Civil and Political Covenant further elaborates—particularly in its Articles 14 and 15, but also in Articles 2, 6, 7, 9, and 10—upon the criminal justice standards identified in the Universal Declaration. Article 14 of the Civil and Political Covenant recognizes the right in all proceedings to "a fair trial and public hearing by a competent, independent and impartial tribunal established by law." Every person is "equal before the courts and tribunals" under Article 14(1).
Article 14 also distinguishes between the sort of fair hearing required for civil cases, on the one hand, and criminal cases, on the other. Article 14(3) deals with the "minimum guarantees" required in the determination of any criminal charge, the observance of which is not always sufficient to ensure the fairness of a hearing. Among the minimum guarantees in criminal proceedings prescribed by Article 14(3) is the right of the accused to be informed of the charge against him/her in a language that the accused understands; to have adequate time and facilities for the preparation of a defense and to communicate with counsel of one's own choosing; to be tried without undue delay; to examine or have examined the witnesses against the accused and to obtain the attendance and examination of witnesses on one's behalf under the same conditions as witnesses against the accused; to the assistance of an interpreter free of any charge, if the accused cannot understand or speak the language used in court; and the right not to be compelled to testify against oneself or to confess guilt. Article 14 also gives the accused the right to have one's conviction and sentence reviewed by a higher tribunal according to law; to compensation if there was a miscarriage of justice; and not to be subjected to trial or punishment for a second time (non bis in idem ). Under Article 14(4) juvenile persons have the same right to a fair trial as adults, but are also entitled to certain additional safeguards. Article 15 codifies the principle of nullum crimen sine lege (no crime without law) and also gives the accused the benefit of any decrease in penalty that is promulgated after the person has committed an offense. Other relevant provisions of the Civil and Political Covenant forbid torture or cruel, inhuman or degrading treatment or punishment; forbid arbitrary arrest; and require equality before the law.
The Human Rights Committee was established by the Civil and Political Covenant to interpret and apply the Covenant's provisions. The Committee has evolved a considerable jurisprudence on issues relating to the administration of justice—particularly as to the right to a fair trial. For example, many prisoners have complained to the Human Rights Committee that they have not received a prompt trial and the committee has sought to interpret that requirement. In 1984 the Human Rights Committee issued General Comment 13 authoritatively interpreting Article 14 of the Covenant and stating that the right to trial without undue delay relates not only to the time by which a trial should commence, but also to the time by which it should end and judgment be rendered; all stages must take place "without undue delay." It must be ensured, by means of an established procedure, that the trial will proceed "without undue delay," both in the first instance and on appeal.
The Civil and Political Covenant identifies in Article 4 certain rights as nonderogable, that is, those rights which cannot be the subject of suspension during periods of emergency that threatens the life of the nation. While Article 4 does not specify Article 14 (right to a fair trial) as expressly nonderogable, it does mention Articles 7 (prohibition of torture), 15 (nullum crimen sine lege (no crime without law)), and 16 (recognition of every person before the law) as nonderogable. Furthermore, the Human Rights Committee has interpreted other nonderogable rights (e.g., the right not to be subjected to arbitrary deprivation of life) as implying that the basic fair trial provisions of Article 14 cannot be suspended during periods of national emergency. The Human Rights Committee will likely strengthen the nonderogable nature of the right to a fair trial by issuing a further General Comment as well as decisions and views on individual cases interpreting the Covenant.
International Convention on the Elimination of All Forms of Racial Discrimination
The Convention of the Elimination of All Forms of Racial Discrimination (Race Convention) entered into force on 12 March 1969, and had been ratified by 156 countries as of 15 November 2000. The preamble proclaims that "all human beings are equal before the law and are entitled without any discrimination to equal protection of the law." This principle of equality before the law is repeated in the opening paragraph of Article 5, which imposes upon state parties the obligation to guarantee this right to everyone, without distinction as to race, color, or national or ethnic origin. Article 2(1) (a) of the Convention affirms that each state party undertakes to ensure that public authorities and public institutions, national and local, shall not engage in acts or practices of racial discrimination against persons, groups of persons, or institutions.
The Committee on the Elimination of Racial Discrimination (CERD) has also interpreted the Race Convention on some aspects of the administration of justice. For example, L.K. v. the Netherlands (comm. No. 4/1991) involved de facto housing discrimination by members of the neighborhood where a foreign-born man wished to reside. In its opinion of 16 March 1993, CERD found that the mere existence of a law making discrimination a criminal act was insufficient and decided that the state's obligation to treat instances of racial discrimination with particular attention was missing. The police and judicial proceedings in the case did not afford the applicant effective protection and remedies within the meaning of Article 6 of the Race Convention. The CERD declared that the Netherlands should compensate the author and report back to the Committee on measures taken to remedy the situation.
Convention on the Rights of the Child
The Convention on the Right of the Child entered into force on 2 September 1990, and had been ratified by 191 countries as of 1 November 2000, that is, nearly every county of the world, except Somalia and the United States. The Child Convention elaborates on the rights of juvenile offenders in the Civil and Political Covenant and other treaties.
Articles 12, 37, and 40 are the primary provisions in the Child Convention relevant to the administration of justice. Article 12 safeguards each child's right to be heard in legal proceedings. Article 37(b) provides that "[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily." Furthermore, Article 37 (d) provides that "[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."
Article 40 of the Child Convention addresses the same fair trial issues as Article 14 of the Covenant on Civil and Political Rights. Article 40 of the Child Convention significantly expands fair trial protection to children under the age of eighteen, by using the term "child" instead of "juvenile" used by the Covenant. This expansive approach is also evident when compared to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, 1985), which defines a juvenile as "a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult."
Common Article 3 of the four Geneva Conventions for the protection of victims of armed conflict (entered into force 21 October 1950, ratified by 188 countries as of 1 November 2000) and Article 6 of Additional Protocol II (entered into force 7 December 1978, ratified by 150 countries as of 1 November 2000) contain fair trial guarantees and other provisions relevant to the administration of justice for times of noninternational armed conflict. For example, Common Article 3(d) prohibits the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court. . . ." Articles 96 and 99–108 of the Third Geneva Convention prescribe the rights of prisoners of war in judicial proceedings, essentially creating a fair trial standard. Articles 54, 64–74 and 117–126 of the Fourth Geneva Convention contain provisions relating to the right to fair trial in occupied territories. Article 75 of Additional Protocol I (entered into force 7 December 1978, ratified by 165 countries as of 1 November 2000) extends fair trial guarantees in an international armed conflict to all persons, including those arrested for actions relating to the conflict.
Other global standards
There are several other global non-treaty standards that relate to criminal justice, including Basic Principles on the Independence of the Judiciary; Basic Principles on the Role of Lawyers; Basic Principles for the Treatment of Prisoners; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Code of Conduct for Law Enforcement Officials; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Declaration on the Protection of All Persons from Enforced Disappearances; Draft International Convention on the Protection of All Persons from Enforced Disappearance; Guidelines on the Role of Prosecutors; Standard Minimum Rules for the Treatment of Prisoners; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions; Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty; United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines); United Nations Rules for the Protection of Juveniles Deprived of Their Liberty; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules). Most of these standards have been drafted by the U.N. Committee on Crime Prevention and Control (which has been replaced by the Commission on Crime Prevention and Criminal Justice); one of the U.N. Congresses on the Prevention of Crime and Treatment of Offenders (which have been held every five years since 1955); the U.N. Commission on Human Rights; and the U.N. Sub-Commission on the Promotion and Protection of Human Rights (formerly the Sub-Commission on the Prevention of Discrimination and Protection of Minorities).
In addition, the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, entered into force on 11 July 1991, and has been ratified by 44 nations as of 1 November 2000. Furthermore, the Convention (entered into force 22 April 1954) and Protocol (entered into force 4 October 1967, 135 states parties as of 1 November 2000) relating to the Status of Refugees contain a few provisions relating to the rights of refugees in the context of the administration of justice, such as access to the courts, including legal assistance.
European Convention on Human Rights. The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or European Convention) entered into force on 3 September 1953, and has been ratified by all forty-one member counties of the Council of Europe. Provisions of the European Convention on Human Rights have enjoyed a very high degree of compliance—both because many countries have incorporated the Convention's provisions into domestic law and because the European Court and Commission's judgments have almost always been obeyed.
Fundamental fair trial guarantees are established in Article 6 of the European Convention. Article 6(1) provides that a person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Article 6(1) of the European Convention applies to both "civil rights and obligations" as well as "any criminal charge." Some of the more difficult problems in the interpretation of the European Convention concern the application of Article 6 to noncriminal cases.
Article 6(2) stipulates that a person charged with a criminal offense shall be presumed innocent until proved guilty. Article 6(3)(a–e) addresses many of the same fair trial rights guaranteed in Article 14 of the Civil and Political Covenant. In particular, the accused must be promptly informed of the charges against her in a language she understands; to have adequate time and facilities to prepare her defense; to be allowed to defend herself or receive legal assistance, including free legal assistance if the accused lacks sufficient means and if the interests of justice requires; to examine or have examined witnesses against her; and to have free assistance of an interpreter if she cannot speak the language of the court.
The right to a fair trial holds a position of preeminence in the European Convention, due not only to the importance of the right involved but also to the great volume of applications and jurisprudence that it has generated. More applications to the European Court and Commission involve Article 6 than any other provision of the Convention. The minimum rights enumerated in Article 6(3) are not exhaustive, according to the Commission and the Court. (With the coming into force of Protocol 11 to the European Convention on 1 November 1998, the European Court and Commission have been consolidated into a unified European Court of Human Rights.) The concept has, rather, an open-ended, residual quality, providing ample opportunity, therefore, to infer other rights not specifically enumerated in Article 6(3) within Article 6(1)'s broad protection for a "fair and public hearing."
The European Court and Commission of Human Rights have interpreted the European Convention in light of the cases brought before them and have thus developed the largest single body of international human rights jurisprudence on fair trial and other administration of justice issues. For example, individuals have very frequently raised questions about the right to a speedy trial. The European Court has declared in Moreira de Azevedo v. Portugal, 189 Eur. Ct. H.R. (ser. A)(1990), that the European Convention "stresses the importance of administering justice without delays which might jeopardize its effectiveness and credibility," thus highlighting the importance of the maxim "Justice delayed is justice denied." Article 6(1) guarantees the right to trial within a reasonable time in both civil and criminal proceedings. Article 5(3) provides that "everyone arrested or detained . . . shall be brought promptly before a judge . . . and shall be entitled to trial within a reasonable time or to release pending trial."
In regard to criminal proceedings, scrutiny of the reasonable time under Article 6(1) begins at the moment when "the situation of the person concerned has been substantially affected as a result of a suspicion against him" (Neumeister v. Austria, 1 E.H.R.R. 91 (1968)) and lasts at least until acquittal, dismissal, or conviction, or until the sentence becomes definite (Eckle Case, 51 Eur. Ct. H.R. (ser. A) at 33 (1982)). The European Court and the Commission have said that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to its complexity, the conduct of the parties, and the authorities dealing with the case (Bucholz Case, 42 Eur. Ct. H.R. (ser. A) (1981)).
The European Court considers that the applicant is only required to show diligence in carrying out the procedural steps relating to him or her and to refrain from using delaying tactics (Union Alimentaria Sanders SA Case, 157 Eur. Ct. H.R. (ser. A) (1989)). An accused is not held responsible for the delay even if he or she does not request that the proceedings be expedited (Schouten and Meldrum v. The Netherlands, 19 E.H.R.R. 390 (1994)). The European Court has held that the accused is under no duty to be more active and is not required to cooperate actively with judicial authorities in connection with criminal proceedings (Eckle Case, 51 Eur. Ct. H.R. (ser. A) at 33 (1982)).
Moreover, the European Convention imposes an obligation upon states to "organise their legal systems so as to comply with the requirements of [A]rticle 6(1)" (Milasi v. Italy, 119 Eur. Ct. H.R. (ser. A) (1987)). Hence, the European Court found that delays attributable either to a backlog at the Court of Appeals or to the Court of Cassation's desire to hear cases dealing with a similar issue were unjustifiable under Article 6(1) and constituted a violation (Hentrich v. France, 18 E.H.R.R. 440 (1994)). Generally, a long period of inactivity in a case is entirely attributable to the state unless it provides a satisfactory explanation for the delay (Philis v. Greece, 40 Eur. Ct. H.R. (1997).
Another major element of European "fair trial" jurisprudence is the principle of equality of arms between the accused and the public prosecutor. Under that principle the European Court has examined a number of cases dealing with the position of experts in a proceeding. For example, in the Bönisch Case, 92 Eur. Ct. H.R. (ser. A) (1985), the European Court found a lack of equal treatment of the parties because an expert appearing as a witness for the prosecution had a stronger procedural position than another expert appearing for the defense. The witnesses should have been given equal treatment. The European Court further held that Article 6(3), which provides that an accused has the right to examine witness against him or her, is a constituent element of the concept of "fair trial" set forth in Article 6(1). The Court declined to consider a complaint under Article 6(3), but that determination did not preclude it from finding a violation under the more general fair trial grounds of Article 6(1). Each case should thus be examined with regard to the "development of the proceedings as a whole and not on the basis of one particular incident" (Le Compte v. Belgium, 58 Eur. Ct. H.R. (ser. A) (1983)).
In addition to the European Convention on Human Rights, the Council of Europe has also promulgated the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime; the Convention on the Transfer of Sentenced Persons; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; European Convention on Extradition; the European Convention on Mutual Assistance in Criminal Matters; the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders; the European Convention on the Transfer of Proceedings in Criminal Matters; the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes; the European Convention on the Suppression of Terrorism; and several other treaties.
African Charter on Human and Peoples' Rights
The African Charter on Human and Peoples' Rights entered into force 21 October 1986, and as of 15 December 1999 had been ratified by all forty-nine African countries except the Sahrawi Arab Democratic Republic. Article 7 of the African Charter guarantees several fair trial rights, including notification of charges, appearance before a judicial officer, right to release pending trial, presumption of innocence, adequate preparation of the defense, speedy trial, examination of witnesses, and the right to an interpreter.
Under Article 26, African states are bound to guarantee the independence of the judiciary, which is a basic requirement for a fair trial. In addition to the above-mentioned guarantees, Articles 3, 4, 5, and 6 of the African Charter also provide for the rights to equality before the law, the equal protection of the law, the inviolability of human beings, as well as guarantees against all forms of degradation of man or any arbitrary arrest or detention.
The African Commission on Human and Peoples' Rights adopted a resolution in March 1992 on the "Right to Recourse Procedure and Fair Trial," which elaborated upon the provisions of the African Charter, including the right to an appeal to a higher court.
American Convention on Human Rights
The American Convention on Human Rights (American Convention) entered in force on 18 July 1978, and as of 15 December 1999 had been ratified by all twenty-four states in the Western Hemisphere. Article 7 of the American Convention provides several criminal justice guarantees, including, for example, the right to notice and to habeas corpus. Article 8 deals with the right to a fair trial in a detailed manner, including the right to a hearing, the presumption of innocence, the rights to a free translator and to counsel, the right of the accused not to be compelled to be a witness against himself, the principles of ne bis in idem (not twice in the same), and that criminal proceedings be public. Article 9 guarantees freedom from ex post facto laws. The Inter-American Commission on Human Rights also considers the right to compensation for miscarriage of justice as forming part of the right to fair trial under Article 10. Article 25 of the Convention further guarantees the right to "simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties."
The Inter-American Commission on Human Rights has interpreted the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man (1948) elaborating the rights necessary for a fair trial. The Inter-American Court of Human Rights, through its adjudicatory and advisory jurisdiction, has also examined violations of human rights related to a fair trial, albeit in only a few cases.
In addition to the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, Inter-American Convention on Extradition, the Inter-American Convention on Mutual Assistance in Criminal Matters, and the Inter-American Convention on Serving Criminal Sentences Abroad have also been issued under the aegis of the Organization of American States.
International Criminal Tribunal for Former Yugoslavia and Rwanda
On 25 May 1993, the United Nations Security Council adopted resolution 827 (1993) in which it approved the establishment of "an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia" after 1 January 1991. Article 15 of the Statute of the International Tribunal authorizes the judges to "adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims, and witnesses and other matters." Article 20 of the statute provides that the Trial Chambers of the International Tribunal "shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses." Articles 20 through 26 contain more specific provisions relating to the right to a fair trial, judgment, and appeal. In particular, most of the fair trial provisions in Article 14 of the Civil and Political Covenant are reflected in Article 21 of the statute, although the Covenant is not mentioned as such.
Additional articles contain safeguards designed to ensure the impartiality of the tribunal (rules 14–36), ensure the suspect's right to free counsel and the assistance of an interpreter (42), provide for the video-or audio-taping of all suspect questioning (43), contain procedural safeguards for all indictments and arrest warrants (47–61), require that all accused be brought promptly before the tribunal (62), do not allow the suspect to be questioned without counsel present (63), require the prosecution to disclose all exculpatory evidence to the accused (68), allow the judges to close the proceedings to the public in certain circumstances (79), and provide for appeal (107–22) and pardon (123–125) procedures. The Rules of Procedure and Evidence for the Yugoslav Tribunal devote more attention to the rights of victims and witnesses than previous international criminal standards.
On 8 November 1994, the U.N. Security Council adopted resolution 955 (1994) in which it approved the establishment of an "International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States," between 1 January 1994 and 31 December 1994. The Rwanda Tribunal has been established in Arusha, Tanzania, but shares the same prosecutor, appellate court, and basic rules of procedure as the Yugoslav Tribunal.
International Criminal Court
Based upon the precedents of the Nuremberg Tribunal established by the London Agreement of 1945, the International Military Tribunal for the Far East (Tokyo Tribunal) established in 1946, trials in Germany under Control Council Law No. 10 (1946), the Yugoslav Tribunal established in 1993, and the Rwanda Tribunal of 1994, a diplomatic conference in Rome adopted a statute of 17 July 1998 for a permanent International Criminal Court (ICC). When the statute has been ratified by at least sixty states, the ICC will begin to bring to justice persons who have been accused of genocide, crimes against humanity, war crimes, and the crime of aggression. On an ad hoc basis, the ICC may also be authorized by the Security Council to handle any situations similar to the former Yugoslavia and Rwanda. As of 15 December 1999, there are ninety-one states that have signed and five that have ratified the ICC Statute.
Many of the international criminal justice standards in the ICC Statute were derived from the Civil and Political Covenant and the rules of the Yugoslav Tribunal. The ICC Statute establishes a structure and rules of procedure for the court and protects the rights of suspects, defendants, victims, and witnesses. Further procedural protections will be developed in coming years.
The United Nations and regional organizations have codified a substantial framework of international criminal justice standards, which have been accepted, albeit not always followed, by most nations and that have begun to be used in the context of international criminal tribunals. In addition to the codified standards, several human rights institutions, including particularly the Human Rights Committee and the European Court of Human Rights, have interpreted and applied criminal justice norms to particular cases and have thus generated an impressive corpus of jurisprudence that lawyers and judges worldwide should consult.
See also Comparative Criminal Law and Enforcement: China; Comparative Criminal Law and Enforcement: England; Comparative Criminal Law and Enforcement: Islam; Comparative Criminal Law and Enforcement: Preliterate Societies; Comparative Criminal Law and Enforcement: Russia; Criminal Procedure: Comparative Aspects; International Criminal Courts; International Criminal Law; War Crimes.
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