II ASSESSMENT OF COMPLIANCE WITH INTERNATIONAL OBLIGATIONS
3
The right to a fair
trial
The right to a fair trial comprises essential safeguards which balance the interests of criminal justice with the protection of the human rights of the individual. These safeguards include: the right of access to a lawyer, the right to remain silent, and the presumption of innocence. It is essential that the State guarantee the right to a fair trial to all persons faced with criminal charges, in order to prevent miscarriages of justice. This audit shall focus solely on the degree to which the State guarantees the right to a fair trial under the Offences Against the State Acts (1939-1998).
i) Domestic and international law and standards
The Offences Against the State Acts 1939-1998 (the OAS Acts) set out both the powers of the State in relation to suspects charged with an offence under the OAS Acts and the legal safeguards which pertain to persons detained and/or charged with an offence under the Acts. In addition, the provisions of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 are applied mutatis mutandis to persons detained by the Gardaí under the OAS Acts. The State is under an obligation to ensure that this legislative framework operates in compliance with relevant international treaties and instruments to which it is a party. In this connection, the Irish Government has initiated a review of the OAS Acts which will examine the provisions of the Acts in the light of Ireland’s international obligations. Amnesty International very much welcomed this review and awaits the publication of the report of the Committee set up to review the legislation. In the meantime, the OAS Acts remain in force and in operation.
The right to a fair trial is set out in the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) - both of which have been ratified by Ireland - and in the Universal Declaration of Human Rights (UDHR), which is legally binding on all states as part of customary international law. The component elements of the right to a fair trial have been elaborated in standards adopted by, inter alia, the United Nations. These standards include the UN Basic Principles on the Independence of the Judiciary and the UN Basic Principles for the Treatment of Prisoners.
The State must guarantee the right to a fair trial to all persons in its jurisdiction. This obligation entails a positive obligation to ensure that safeguards against abuse of this right are established in law and adhered to in practice. The State is also under a negative obligation to refrain from exercising arbitrary powers of detention including internment without trial. Ultimately, the State is under an obligation not to defeat the object and purpose of any treaty or convention to which it is a party and therefore must not take any action or allow the persistence of any practices which fail to comply with the essence of such conventions.
Ireland has ratified the core international instruments relevant to the right to a fair trial (with the notable exception of the UN Convention against Torture) and is currently considering how to incorporate the European Convention on Human Rights into Irish domestic law. Incorporation of the ECHR will enable individuals to invoke Convention rights before national courts. The State’s compliance with fair trial obligations has been subject to monitoring by treaty bodies such as the UN Human Rights Committee, which monitors compliance with the ICCPR. Compliance with the ECHR has been kept in check by the European Court of Human Rights in Strasbourg which acts as a Court of final appeal for the vindication of the rights set out in the ECHR.
Amnesty International is concerned that the right to a fair trial is not guaranteed under the OAS Acts and points to the findings of the aforementioned treaty monitoring bodies which have identified a failure to comply with international obligations in specific cases. Amnesty International set out its specific concerns in its submission to the Committee to Review the Offences Against the State Acts 1939 – 1998 and Related Matters.[2] These concerns are elaborated below.
b) Specific areas of concern
i) The Special Criminal
Court
Article 38 of the Constitution permits the establishment by law of special courts for trial, without jury, of offences "where it may be determined in accordance with such laws that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order”. Under the same conditions, Part V of the OAS Acts permits the Government to make proclamations establishing a Special Criminal Court to try offences under the OAS Acts, scheduled offences and cases certified by the Director of Public Prosecutions.
While international standards do not prohibit the establishment of special courts which conform fully with fair trial standards, the Human Rights Committee has clarified that "the trying of civilians by such courts should be very exceptional”.[3] In 1993, the Human Rights Committee reviewed Ireland's implementation of the International Covenant on Civil and Political Rights and concluded that "the continued existence of the court is not justified under the present circumstances".[4] Since then, most of the armed political groups in Northern Ireland have declared a cessation of military activity and there has been a significant reduction of politically-related violence.
Amnesty International considers that under international standards and the law of Ireland, the onus is upon the Government to demonstrate that special courts are essential because, in the words of the law, "the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order"; the Government has not done so.
On the contrary, the jurisdiction of the Special Criminal Court is not restricted to offences related to the extraordinary circumstances which led to its establishment. Amnesty International is informed that an increasing number of cases which are not obviously related to offences against the State are being tried in the Special Criminal Court, largely as a result of the exercise by the Director of Public Prosecutions (DPP) of the power to certify cases involving other than scheduled offences for trial in the Special Criminal Court. It is significant to note in this regard that the DPP is not required by the OAS Acts to give reasons for the certification of cases, and courts have refused to require the DPP to do so in the absence of a showing of male fides or improper motives. In view of reports that the DPP has not routinely provided such reasons, this would seem to create a vicious circle in which the bona fides of the DPP is not open to effective review. Amnesty International has noted the concern voiced by the Irish Council for Civil Liberties[5] and the Law Society of Ireland[6] that the continued existence of the Special Courts is in effect creating a permanent two-tier justice system without an explicit rationale.
Amnesty International believes that the continuing existence of the special court runs the risk of normalising what was intended to be an exceptional and temporary measure, and, as such, is contrary to the spirit of international law. Unless the Government can prove that the ordinary courts are currently "inadequate to secure the effective administration of justice and the preservation of public peace and order", then it should issue, without delay, a proclamation to disestablish the Special Criminal Court.
International standards for fair trials require courts to be independent and impartial.[7] The Human Rights Committee has made clear that fair trial provisions enshrined in the ICCPR apply to trials in all courts, whether ordinary or special.[8] The right to an independent and impartial court is so basic that the Human Rights Committee has stated that "it is an absolute right that may suffer no exception".[9] Due to its fundamental nature, it requires compliance in appearance as well as fact. In the words of the European Court of Human Rights in the Delacourt case, it requires that "justice must not only be done it must also be seen to be done".[10]
Among the central elements of independence and impartiality are: people selected as judges must have appropriate training or qualifications in law; the term of office of judges, as well as their independence, security and remuneration must be adequately secured by law and judges must have guaranteed tenure until a mandatory retirement age or the expiry of a term of office.[11] Provisions of Part V of the OAS Act 1939 establishing the Special Criminal Court permit the Government to act in a manner which would violate these standards. In particular:
· Article 39(3) permits the Government to appoint Commandants of the Defence Forces and their superiors, regardless of legal and judicial training, rather than professionally qualified judges, as judges of the Special Criminal Court. Under this provision, military officers sat on the Special Criminal Court from 1939-1946 and in 1961-1962;
· Article 39(4) grants discretion to the Minister of Finance whether and how much to pay each Special Criminal Court judge. Thus the law does not adequately secure their remuneration as mandated in Principle 11 of the UN Basic Principles on the Independence of the Judiciary;
· Article 39(2) specifies that Special Criminal Court judges are removable by the Government at will. Amnesty International notes that in the case of Eccles v. Ireland[12] the Supreme Court ruled that the Government could not lawfully terminate the appointment of a member of the Special Criminal Court for disagreeing with their decisions, but the provision remains and is, at the very least, inconsistent with the requirement that judges not be seen to be subject to pressure by Government.
Under the OAS (Amendment) Act, 1940, a Minister may order to be detained without charge or trial a person whom they are satisfied is engaged in activities calculated to prejudice the preservation of peace and order. Internment without trial violates fair trial rights enshrined in Article 5 of the European Convention on Human Rights; among other things it is a deprivation of liberty for reasons other than those set out in the exhaustive list in Article 5(1).
iv) Extended
detention and
limitations on access to a lawyer
Section 30 of the OAS Act 1939 and Section 10 of the OAS (Amendment) Act 1998 permit the authorities to detain people for extended periods without charge and prohibit access to counsel during questioning. Furthermore, there is no provision for legal aid to cover lawyers' visits to police stations. Amnesty International considers that certain of these provisions violate international standards.
Section 30 of the OAS Act 1939 permits the police to detain for 24 hours a person who an officer suspects has committed or is about to commit a scheduled offence or an offence under the OAS Act, or has information relating to the commission or intended commission of a scheduled offence or an offence under the OAS Act. The person's detention may be extended to 48 hours without presentation to a court, upon the authorization of a Garda Chief Superintendent. Section 10 of the OAS (Amendment) Act 1998 allows the period of such detention to be extended to 72 hours by a Court upon the application of a Garda officer of at least the rank of Superintendent.
These detention provisions violate Article 5(1) of the European Convention, which sets out an exhaustive list of the circumstances in which people may be deprived of their liberty, in two respects. First, Section 30 does not require that a police officer have reasonable suspicion that a person has committed an offence or is about to commit an offence. Second, Section 30 and Section 10 permit people to be detained for up to 72 hours for purposes other than bringing them before a competent legal authority. For example, detention is permitted for questioning on the suspicion that a person may have information relevant to a crime.
Amnesty International's concern about these provisions is compounded by the fact that people detained for criminal matters in Ireland are not entitled to have access to a lawyer during questioning. In addition, as a result of the fact that there is no provision for legal aid for lawyers to attend police stations, persons without sufficient financial means may have difficulty in securing the services of a lawyer while in police custody.
Amnesty International considers that Section 52 of the Offences Against the State Act 1939, which makes it an offence for a person to fail to account for their movements, violates the presumption of innocence and the right of persons not to be compelled to incriminate themselves. Indeed, on 21 December 2000 the European Court of Human Rights held that the application of Section 52 of the Offences Against the State Act 1939 violated Article 6(1) and 6(2) of the ECHR in the cases of Heaney and McGuinness v Ireland and Quinn v Ireland.[13]
Section 52 of the OAS Act 1939 criminalises the failure or refusal of anyone detained under Part IV of the Act to provide to the police whenever asked "a full account of their movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of ..." any offence under the Act or a scheduled offence. The provision is currently in force and may be imposed whenever the Government makes a proclamation that it is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and preservation of public peace and order.
The provision penalises people who refuse to speak. It thereby violates the right to the presumption of innocence and the right not to be compelled to admit guilt or testify against oneself which are enshrined in Articles 14(2)and 14(3)(g) of the ICCPR. The law permits the detention of a person simply for exercising their right to silence, even though they may not have engaged in any criminal activity. It shifts the burden of proof onto the person being questioned to prove their innocence of crime. Further, a person who is in detention may be subjected to a term of imprisonment for each refusal to respond to a police officer's demand to account for their whereabouts at any specified period of time.
Amnesty International considers that this provision violates the Government's fair trial obligations and should be repealed.
Amnesty International considers that provisions relating to the offence of membership of an unlawful organisation violate the presumption of innocence and the right to question witnesses. [14]
A Chief Superintendent's opinion that a person
is a member of an unlawful organisation is admissible as evidence of
that
offence.[15] Such an opinion is admissible even if the
Chief Superintendent does not know the accused, or is relying on
information provided by a subordinate or informer. Amnesty
International considers that the fact that a Chief Superintendent
need not identify the source on which their opinion is based (other
than in general terms, for example “it is based on confidential
information”) violates the right to question witnesses against
the accused enshrined in Article 14(3)(e) of the ICCPR and Article
6(d) of the ECHR as well as the principle of equality of arms.
The opinion of a Chief Superintendent is alone sufficient to prove
the offence of membership of an unlawful organisation, in the absence
of a denial, under oath, from the accused. Further, if the accused,
denies membership, other provisions - which also violate
international standards - permit evidence to be led to corroborate
the Chief Superintendent's opinion. First, a court is entitled to
draw reasonable inferences that a person is a member of an unlawful
organisation by statements about the conduct of an accused including
his or her associations with
others.[16] Therefore, a person could be found guilty of
the offence if seen in the company of someone who is believed to be a
member of an unlawful organisation coupled with the opinion of a
police officer or information from an informant as provided in court
through the opinion of a Chief Superintendent.
Second, inferences sufficient to corroborate a Chief Superintendent's
opinion may be drawn from a person's refusal or failure to answer
questions put by police, before or after a person is charged with
membership of an unlawful organisation, which are considered material
to the investigation of the
offence.[17] The inference may be triggered by failure or
refusal to answer questions about one's movements, activities,
actions or associations, or failure to deny a published report
alleging
membership.[18]
Amnesty International believes that Sections 2 and 4 of the OAS (Amendment) Act 1998, which allow presumptions to be made as a result of a person's failure or refusal to provide answers to police questioning, violate the presumption of innocence and the right not to be compelled to testify against oneself or admit guilt enshrined in Articles 14(2) and 14(3) (g) of the ICCPR.
Amnesty International welcomed the initiation by the Irish Government of a Review of the Offences Against the State Acts 1939-1998 (OAS Acts) further to a commitment to do so undertaken in the Good Friday Agreement.[19] In particular, the organisation welcomed the fact that the Committee established to conduct the Review was requested, as part of its mandate, to examine the OAS Acts in the light of Ireland's obligations under international law. In view of concerns that provisions of the OAS Acts violate international human rights standards, Amnesty International assumes that the Committee's mandate to make recommendations for reform is broad enough to encompass making recommendations to repeal provisions, as was contemplated in the Good Friday Agreement.[20]
The Review Committee had its first meeting in May 1999 and at the time of writing, its findings are awaited. In the meantime, the OAS Acts remain in force and the Special Criminal Court provided for under the Acts remains operational. Amnesty International is concerned by the delay in the publication of the outcome of the review.
In its submission to the Review Committee, Amnesty International urged the Committee to recommend that the Government take the following measures, which are consistent with its international human rights obligations.
§ legislation should be amended to ensure that, both in law and practice, the court conforms strictly with international standards which require, among other things, that all courts be independent and impartial;
§ the court should be subject to review by the courts and to regular periodic review by an independent body;
§ its jurisdiction should be restricted to offences directly connected with the extraordinary circumstances which justified the establishment of the court.
§ those permitting internment (OAS (Amendment) Act 1940);
§ those permitting the arrest and detention of a person without reasonable suspicion of them having committed a recognisable criminal offence and for purposes other than bringing them before a court (Section 30 of the OAS Act 1939 and Section 10 of the OAS (Amendment) Act 1998);
§ those which criminalise the failure of a person to provide information about their movements (Section 52 of the OAS Act 1939);
§ those that permit adverse inferences to be drawn from a person's silence (Section 2 of the OAS (Amendment) Act 1998);
§ those which permit adverse inferences to be drawn from a person's failure to deny reports related to alleged membership of an unlawful organisation (Section 4 of the OAS (Amendment) Act 1998) and those relating to permitting in evidence the opinion of police officers as to membership without affording the right to question the source on which the opinion is based (sections 3(1) and (2) of the OAS (Amendment) Act 1972);
§ those which permit the authorities to detain people for extended periods without charge and without access to a lawyer during questioning (including Section 30, OAS Act 1939, Section 10 of the OAS (Amendment) Act 1998) .
Amnesty International has also addressed a
number of recommendations to the Irish Human Rights Commission
regarding the protection of the right to a fair trial under the OAS
Acts, at section IV below.
[1] Universal Declaration of Human Rights, Article 10. See also the International Covenant on Civil and Political Rights, Article 14.
[2] Amnesty International, “Republic of Ireland, Submission to the Committee to Review the Offences Against the State Acts and Other Matters”, EUR 29/001/1999, October 1999.
[3] UN Human Rights Committee General Comment 13, para 4.
[4] UN Human Rights Committee, UN Doc.: CCPR/C/79/Add.21 (3 August 1993), para 11.
[5] The Irish Council for Civil Liberties, Submission to the Committee To Review the Offences Against the State Acts 1939-1998, and Related Matters.
[6] The Law Society of Ireland, Criminal Law Committee, Submission to the Committee To Review the Offences Against the State Acts 1939-1998, and Related Matters, November 1999.
[7] See, Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the European Convention for the Protection of Human Rights.
[8] UN Human Rights Committee General Comment 13, para 4.
[9] See González del Rio v. Peru (263/1987), 28 October 1992, Reports of the UN Human Rights Committee, vol.II (A/48/40) 1993, para 20.
[10] See European Court of Human Rights Judgment, Delcourt Case, judgment of 10 November 1969.
[11] These are Principles 10, 11 and 12 of the United Nations Basic Principles on the Independence of the Judiciary.
[12] Eccles v. Ireland [1985] I.R.
545.
[13] See further European Court of Human Rights judgments in the cases of: Heaney and McGuinness v Ireland and Quinn v Ireland, 21 December 2000, available at http://www.echr.coe.int
[14] See Sections (3)(I) 3(2) Offences Against the State (Amendment) Act 1972, and Sections 4 and 2, Offences Against the State (Amendment) Act 1998.
[15] Section 3(2) Offences Against the State (Amendment) Act 1972.
[16] Sections (3)(I) of the OAS (Amendment) Act 1972 and Section 4 of the OAS (Amendment) Act 1998.
[17] Section 2, OAS (Amendment) Act 1998.
[18] Section 2(4) and Section 4, OAS (Amendment) Act 1998.
[19] Good Friday Agreement (the Multi-Party Agreement), April 10 1998.
[20] In the Multi-Party Agreement, (Paragraph 5 of the subsection entitled Security, within the Section entitled Rights, Safeguards and Equality of Opportunity), the Irish Government committed itself to undertaking "a wide-ranging review of the Offences Against the State Acts 1939-85 with a view to both reform and dispensing with those elements no longer required as circumstances permit". (emphasis added) ].
[21] See: Amnesty International, “Republic of Ireland, Submission to the Committee to Review the Offences Against the State Acts and Other Matters”, EUR 29/001/1999, October 1999.