Fair Trial

The right to a fair trial can be found in some of the earliest and most widely ratified human rights instruments – such as the Universal Declaration of Human Rights in Article 10 and International Covenant on Civil and Political Rights in Article 14. Article 6 of the European Convention on Human Rights also sets out the requirements of a fair trial

1. To ensure a fair trial for children accused of crimes, Article 40 of the CRC requires the following:
2. To be presumed innocent until proven guilty
3. To be informed promptly of the charges (if appropriate through a parent or legal guardian)
4. To have legal or other appropriate assistance
5. To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, unless it is considered not to be in the best interest of the child;
6. Not to be compelled to give testimony or to confess guilt;
7. If the matter falls under penal law the child must have the ability to appeal the sentence and the finding of guilt.
8. To have the free assistance of an interpreter if the child cannot understand or speak the language used;
9. To have his or her privacy fully respected at all stages of the proceedings.

It is important to note here that the fair trial requirements applicable to children who are suspected or accused of criminal offences are different from those applicable to adults. For example, respect for privacy of an alleged offender is a right unique to child and juvenile offenders. It requires that child offenders or alleged offenders should not have their identifying information published, as explained in the Data Protection section above. 

Also of note is the requirement that an interpreter be provided if the child cannot understand the language used. This wording could be argued to allow for the use of alternative communication supports for accused offenders with mental disabilities who have difficulty understanding the formal language of the courtroom.

There is increasing recognition internationally and in Europe that victims also have rights in trials and criminal proceedings. This section will look at how to balance the rights of child witnesses and victims against the long established protections afforded to defendants under the right to a fair trial

Under Article 12 of the CRC which guarantees a child’s right to be heard, a child victim or witness should be consulted on their involvement in the case and be allowed to freely express their views or concerns on participation.

Using, child-friendly settings, video link, intermediaries or a screen to better enable a child victim or witness to testify are all measures supported by the Child Friendly Justice Guidelines as well as the Directive on Victims’ Rights.

Unicef’s model law on Justice in Matters involving Child Victims and Witnesses of Crimes{link to bibliography Unicef, Justice in Matters involving Child Victims and Witnesses of Crimes-Model Law and related commentary} were created to provide an example of how the principles of the CRC and UN Guidance on Justice in Matters involving Child Victims and Witnesses of Crimes. The model law lists a variety of mechanisms that can be used that would better protect child victims and witnesses from trauma resulting from testifying at a formal court proceeding and revictimisation. Most importantly the model law states in Article 28 that removal of the accused from the courtroom should be allowed in certain cases when a child victim or witness is testifying and that the right of the accused to confront their accuser is preserved so long as the defence lawyer remains in the courtroom during the testimony. It is important to note that under EU law there is no right to a face to face confrontation with the accuser.

Furthermore the European Court of Human Rights has recognised that in criminal proceedings involving sexual abuse of a minor ‘‘certain measures may be taken for the purpose of protection of the victim.’’

The relevance of the concept of a ‘fair trial’ to access to justice for children with mental disabilities will be apparent from the discussion in Sections 2.9.2(a) and 2.9.2(b) above. Its relevance is twofold:

First, in cases where a child with mental disabilities is suspected or accused of a crime, a number of specific human rights guarantees apply. These guarantees are applicable to all children (not just those with mental disabilities) who are suspected or accused of crimes. However, a number of them (eg the requirement to provide an interpreter) will require particular sensitivity to the situation of a child who has a mental disability and provide the basis for requiring support to be given to such children.

Second, in cases where a child with mental disabilities is the victim or witness in a criminal trial, questions about the fairness of the trial might also arise. As noted above, providing a child with the support and adjustments they need in order to participate effectively in a trial does not of itself conflict with the right of the accused to a fair trial. Where confronting the accused would traumatise a child, fairness to the child might require that alternative arrangements be made so that such a confrontation can be avoided. Again, these considerations are relevant to all children, but the existence of a mental disability might well be a relevant factor in gauging the supports and adjustments that the particular child needs.

• Ability to comply with data protection requirements and ensure that rights to privacy are respected
• Ability to communicate with child suspects, victims and witnesses with mental disabilities
• Ability to adjust court proceedings as needed in order to protect and support a child with mental disabilities.