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 Home » Constitution Design » Questions for constitution makers in Nepal » Legal System » Prosecutions

What is a Fair Trial?


The following main criteria for a fair criminal trial have been suggested (Taken from a statement on behalf of Human Rights Watch and Human Rights First to the US Senate Armed Forces Committee):
  1. Trials must be conducted publicly, by a regularly constituted, independent and impartial court.
  2. The accused is entitled to a presumption of innocence.
  3. The accused may not be tried for crimes that were not in existence at the time of the offense and may not be tried in violation against the prohibition on double jeopardy.
  4. The accused has the right to information about the basis for detention or arrest in a language that he can understand.
  5. The accused is entitled to be made aware of the evidence against him and to any exculpatory evidence in the government's possession.
  6. The accused has the right to be present at trial and to be provided all of the evidence shared with the factfinder [individual or body that decides whether the facts have been proved].
  7. The accused has the right to prepare a defense and to call and examine witnesses, to be represented by independent counsel, and to a trial within a reasonable time.
  8. The tribunal may not rely on testimony that violates the prohibitions against torture and cruel, inhuman, or degrading treatment.
  9. The accused has the right to remain silent, and his silence cannot be used against him.
  10. The accused has the right to a public judgment and to an appeal before an independent adjudicator.
The International Covenant on Civil and Political Rights (an international treaty which Nepal is a party to) has some provisions in fair trial:

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

The UN Committee on Human Rights has produced a General comment on the implementation of this Article

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

There is also a General comment on the implementation of this Article.

There is a useful compilation of international standards on fair trial on the International Service for Human Rights website.

There are many sources of fuller description and discussion of what a fair trial requires. For example the Amnesty International Fair Trials Manual

The American Bar Association has developed standards on many aspects of criminal trials (some of which would not be relevant for Nepal, such as trial by jury).

Click here for Constitutions and fair trial.
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