Mechanism for Ensuring Human Rights in Trial Activities

Judges) has also highlighted the relationship between the courts and the mass media [41].

- Right to be presumed innocent

The principle of presumption of innocence was established relatively early in many judicial systems around the world. The French Declaration of the Rights of Man and of the Citizen (1789) affirmed that everyone is considered innocent until proven guilty (Article 9). Although not directly mentioned in the US Constitution, it can be inferred from the 4th, 5th and 14th amendments. The Universal Declaration of Human Rights (1948) in Article 11 and the ECHR in Clause 2, Article 6 also affirm this right.

Article 14/2 of the ICCPR recognizes the right to be presumed innocent of the accused, and in addition, Paragraph 7 of General Comment No. 13 emphasizes the relationship between this right and the burden of proof of the prosecution, which is the burden of proof for the prosecution throughout the trial. The provision on the presumption of innocence is closely related to the provision on impartial courts. Prosecution agencies, judges, and prosecutors have the obligation not to have preconceived notions about the outcome of the trial. Specifically, the trial must be conducted on the basis of the presumption of innocence. Regarding the presumption of innocence, elements that may create prejudice must also be avoided, such as requiring the accused to wear handcuffs, prison uniforms, or to shave their heads.

- Right to defense

Maybe you are interested!

The right to defence has a special role in protecting other rights. Article 14/3 of the ICCPR affirms that in the course of criminal proceedings, everyone shall be entitled to the minimum guarantees relating to the right to defence. These rights include the right to be informed of the charges against him, the right to defence, to legal aid, to a speedy trial, to confront witnesses, etc.

First of all, in order to be able to carry out a defense, the accused must

be informed of the grounds for the charge (Article 14/3/a). Principle 10 of the Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (1988) also emphasizes this right of the detained person [6, p.152]. In addition to the right to have adequate time to prepare his defense (Article 14/3/b), the accused has the right to a speedy trial (Article 14/3/c).

The right to defence of an accused person includes the right to defend himself and the right to have legal counsel. Article 14/3/d recognizes both of these rights of the accused. Throughout the world, lawyers play a particularly important role in ensuring the right to defence of accused persons. Principle 10 of the Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment affirms the right of the accused or defendant to communicate and consult with legal counsel, and that such contact must be out of earshot of law enforcement officials [6, p.156]. The Basic Principles on the Role of Lawyers (1990) also pay special attention to the role of lawyers in criminal justice. Accordingly, governments are obliged to ensure that arrested persons have prompt, in any case no more than 48 hours, access to legal counsel [6, p.105]. In addition to the right to a lawyer, individuals also have the right to a free interpreter if they cannot understand and speak the language used in court (Article 14/3/f).

To ensure the right to defense, there are also provisions related to evidence and witnesses. Individuals have the right to question and request the questioning of witnesses who accuse them, and to invite witnesses who exonerate themselves to court (Article 14/3/e). Regarding the burden of proof, the accused is not required to testify against himself or be forced to admit guilt (Article 14/3/g) and the burden of proof in criminal cases belongs to the prosecution.

- The right to be tried according to separate procedures of minors

Due to the characteristics of minors having many physical and psychological limitations, the international community has paid much attention to protecting minors.

legally mature. Article 14/4 of the ICCPR stipulates that the procedure applied to juveniles must take into account their age and encourage their rehabilitation. The Convention on the Rights of the Child (1989) in Article 40/2/b also affirms the rights of children to be guaranteed when they are prosecuted for criminal liability. The United Nations Standard Minimum Rules for Juvenile Justice (Beijing Rules 1985) have provided many special privileges for juveniles. In addition, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990 ), in addition to providing many guarantees for juveniles, also emphasize the right to have a lawyer and to request free legal assistance while awaiting trial (Article 18, Part III) [8, pp. 272, 273].

In general, the international legal system protecting the rights of minors in the field of criminal justice is relatively complete. However, the commitment of countries to comply has different levels of positivity.

- Right to appeal

Article 14/5 of the ICCPR provides for the right to appeal. Anyone convicted of a crime has the right to request a higher court to review the conviction and sentence imposed on him by a lower court. This right is intended to prevent errors by lower courts that may prejudice the legitimate interests of the parties. In paragraph 7 of General Comment No. 13 on the right to appeal, it is emphasized that in criminal cases, this right applies not only to serious crimes but to all crimes.

- Some other rights

Article 14 of the ICCPR also provides for the right to compensation in case of wrongful conviction, the right not to be tried twice for the same crime. When an individual is convicted and sentenced to a punishment, their dignity and honor are affected.

benefit. Article 14/6 of the ICCPR provides for the right to compensation in case of wrongful conviction. The law specifically provides that if a final judgment is overturned or a acquittal is declared on the basis of new facts showing that the trial was wrongful, the wrongly convicted person has the right to compensation. Article 14/7 of the ICCPR also provides for the right not to be tried or punished twice for the same offence.

In the ICCPR, in addition to the provisions in Article 14 above, the provisions in Article 11 on not being prosecuted for failure to perform contractual obligations and Article 15 on not being considered a crime if the act did not constitute a crime under the law at the time of committing the act, not applying retroactively, are also studied when referring to the right to a fair trial.

The above are the basic contents of international legal norms on the right to a fair trial. The level of compliance of countries, in terms of positive law and law enforcement practice, is a much larger and more complex issue.

1.3.2. Mechanism to ensure human rights in trial activities

Mechanisms to ensure the rights of persons deprived of liberty under international human rights law include:

1.3.2.1. International mechanism

Based on their legal status, functions and tasks, United Nations human rights bodies are divided into two types: Charter-based mechanisms and Convention-based mechanisms. Specifically:

a. Charter-based mechanism

Is a concept that refers to the organizational structure and operating procedures of the main organs of the United Nations in protecting and promoting human rights in general, and the rights of accused criminals in the trial in particular. Based on the Charter, the United Nations established 6 main organs, of which, currently

Now that the Trusteeship Council has ceased to function, the remaining organs are involved in protecting human rights around the world: The General Assembly is the organ that sets international standards on human rights; Builds the United Nations human rights apparatus; Decides on handling human rights violations. The Security Council (SC) is the only organ of the United Nations with the power to apply coercive measures; The Economic and Social Council (ECOSOC) has the role of operating the mechanism for international cooperation in the economic and social fields. The International Court of Justice (ICJ) has the function of considering and handling disputes on human rights. The United Nations Secretariat has the function of providing administrative services to all organs, including human rights agencies, and coordinating human rights programs throughout the United Nations system. To serve their activities, the main agencies have established additional supporting agencies, whose general task is to support these agencies in human rights activities. Notable among them is the UNHRC Human Rights Council, which has the function of conducting universal periodic reviews of human rights (UPR mechanism); conducting special investigation procedures; promoting respect for, protection and enforcement of human rights in countries. The UNHRC has established a specialized group to support activities on the rights of people deprived of liberty. That is the Working Group on Arbitrary Detention (WGAD).

The main operating procedures for protecting and promoting the rights of persons deprived of their liberty by UN bodies are based on the Charter: First, the Universal Periodic Review (UPR): This is a procedure that periodically reviews the compliance with human rights obligations and commitments of all UN member states based on reports from different sources. The UNHRC established a Working Group that meets three times a year, reviewing 16 countries. The UPR process includes the following steps: preparation of information as a basis

basis for reviewing, evaluating, concluding the evaluation, and implementing recommendations. Second, handling complaints about human rights violations: The issue of receiving and handling complaints about human rights violations is stipulated in Article 87 of the Charter, ECOSOC Resolutions, especially in resolutions 728F, 227X, 474A, 607, 1235, 1503... Third, extraordinary investigation procedures: to carry out extraordinary investigation activities into serious human rights violations occurring in a specific country or region. This procedure is carried out through working groups, special rapporteurs or independent experts appointed by the Secretary-General.

b. Convention-based mechanism:

Is a concept that refers to the organizational structure and operating procedures of the Committees that monitor the implementation of a number of international conventions on human rights, established under the provisions of those conventions themselves (except for the Committee on Economic, Social and Cultural Rights established under a Resolution of ECOSOC).

The main function of the Monitoring Committees is to monitor and promote the implementation of international human rights treaties, through receiving, examining and making recommendations regarding reports on the implementation of these conventions by member states. Currently, there are 9 conventions considered as fundamental international human rights treaties and the Committees established under the conventions all have the function of monitoring and promoting the guarantee of the rights of people deprived of liberty in general.

1.3.2.2. Regional mechanism

Along with international mechanisms, regional mechanisms play an important role in promoting and protecting the rights of people deprived of liberty. Currently, only three continents, Europe, America and Africa, have established regional mechanisms for the protection and promotion of human rights. Asia has not yet established a common mechanism for the protection and promotion of human rights. This may be because Asia “has too many differences in religion, culture, history, politics and even economics” [8, p.492].

- Regarding the system of documents: Among the three regional human rights mechanisms, the system of documents of the European human rights mechanism is quite diverse and complete, including: The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ECHR, effective since September 1953 - is the core document (abbreviated as the European Convention on Human Rights). The Convention is supplemented by 10 Protocols, of which Protocol No. 11 (effective since 1998) stipulates the establishment of a permanent European Court of Human Rights. The major breakthrough was the birth of the European Convention for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment in 1987. This Convention established the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment. Accordingly, the logic of the system lies in its preventive effectiveness as opposed to ex post protection, a task still undertaken by the European Commission on Human Rights and the European Court of Human Rights.

For the Americas, the system of human rights documents includes: The American Convention on Human Rights, 1969 ACHR. The Convention provides for the establishment and operation of two bodies to monitor the implementation of the Convention, the Committee and the Court; the American Declaration on the Rights and Duties of Man 1948; the American Convention on the Prevention and Combating of Torture 1985. In addition, there are a number of other important documents.

In the African region, the human rights document system has been established, but it is still sketchy. Of which, the most important is the African Charter on Human and Peoples' Rights, 1981 ACHPR - the foundational document of the regional human rights document system.

- About the human rights apparatus:

The European human rights apparatus includes: the Council of Europe (COE), which promotes human rights, democracy and the rule of law, including the European Court of Human Rights established in 1959; the European Union (EU): which promotes trade

and economic; Organization for Security and Cooperation in Europe (OSCE): ensuring regional peace and security.

The apparatus of human rights agencies in the Americas: Inter-American Commission on Human Rights, Established in 1959, the function and mission of the Inter-American Commission on Human Rights is to promote compliance with and protection of human rights in the Americas; Inter-American Court of Human Rights, the main function is to adjudicate and advise.

The African human rights apparatus includes: African Commission on Human and Peoples' Rights; African Court of Human Rights.

- On activities to promote and protect human rights:

All three regional mechanisms deal with human rights complaints, including both individual complaints and complaints between countries. However, only the European human rights mechanism allows individuals to directly submit complaints to the European Court of Human Rights. While the American and African courts do not directly resolve individual complaints (they must first submit a petition to the Human Rights Commission). This is one of the aspects that shows the superiority and prominence of the European human rights mechanism compared to the other continents. Because allowing individuals to directly file complaints to the Human Rights Court in this way can ensure the timeliness and speed in resolving complaints. Usually, only the Court has the right to make a judgment, forcing the parties to comply. The Commission's resolution is often of a recommendation nature and less binding. However, this can also increase the number of cases that must be resolved by the court. During its 10 years of operation (1998 – 2008), the European Court of Human Rights has accepted and ruled on many cases. The number of complaints submitted to the Court has been increasing. In 2008 alone, the Court received 49,850 complaints compared to 41,650 in 2007 [8, p.484]. In addition to resolving human rights complaints, regional human rights mechanisms also take other measures to promote and protect human rights in their regions.