Here is why fair trial and the rule of law matter
28 Mar 2017 by Nazik Myradova
Dr. Kanstantsin Dzehtsiarou is a Senior Lecturer, School of Law and Social Justice of the University of Liverpool, visiting professor at the European Humanities University and exert of the UNDP, EU and the Council of Europe.
UNDP: What is considered a “constitution” for judges? What documents the judges shall rely on?
Dr. Dzehtsiarou: There is no doubt that all judges should be guided by and rely on national law. Moreover, quite often human rights standards require the judges to follow national legislation. This is the basis for the rule of law and without it, protection of human rights is hardly possible. For instance, one of the key requirement of right to liberty and security is that deprivation of liberty is always done in compliance with national laws. If national laws are violated it means that international human right law is also breached
However, following national law is not enough. In case national laws contradict to international human rights law, or in case of gaps in clear national regulation of human rights, judges must apply international laws.
It is important to highlight that the Constitution of Turkmenistan allows judges to refer to the international law directly.
UNDP: What is the right to a fair trial and why is it important?
Dr. Dzehtsiarou: The right to fair trial is in the core of the human rights protection system because only courts can restore violated rights. For example, a fair trial can award compensation if human rights were violated by the state officials.
Fair trial is a guarantee that the state will not abuse its power and the dispute will be resolved in a just and fair manner. Fair trial is a guarantee of stability and positive investment climate.
UNDP: Under what conditions can the rights of defendants be limited or violated?
Dr. Dzehtsiarou: Human rights violations and interferences with the human rights should be clearly separated. Sometimes, human rights can be interfered with by the state, but they should never be violated. For example, a person has the rights to freedom, but this right can be limited if a person is reasonably suspected in committing a crime. However, in case of interferences they should be based on the law which is necessary in democratic society, for the purposes of protection of public order and health. The state must not limit human arbitrary and if this limitation goes against the object and purpose of the right in question.
In addition, some human rights cannot be limited at all. Those are the prohibition on torture and degrading treatment, punishment and the prohibition of slavery. These are absolute and inalienable rights. All states of the world are obliged to investigate any alleged instances of torture.
UNDP: Could you identify the most effective courts? If so, what is the criteria?
Dr. Dzehtsiarou: There are no ideal courts. Any judicial system may face challenges. It is important that issues that the courts face do not become systematic. In that case, the courts lose the trust of people and become illegitimate. Such courts are not able to protect human rights. The main criteria for the effectiveness of the courts are: a low level of corruption, a high level of education of judges, strict adherence to procedural norms that are consistent with international law, physical and procedural protection of both the judiciary and judges, guarantees of independence and impartiality of judges.