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New Dimensions of Fair Trial In Adversarial System

What is the Fair Trial?

A trial is a process by which a court decides on the innocence or guilt of an accused person. Fair trial is not a favour afforded to the supplicant at law but a bundle of legally enforceable rights guaranteed by the state to its citizens, for whom the state itself exists. The principle of a fair trial is put in basic terms of certain rights such as the right to remain silent, the prohibition of double jeopardy, the right to legal counsel, the right to be notified of charges, and so on. However the principle is broader than the sum of these individual guarantees.

This means that the right to a fair trial includes the notion that each individual must be able to make use of his procedural rights regardless of his individual capabilities. Seeking to refine the quality of justice at every turn, fair trial norms are nuanced to afford particular protection to the more vulnerable and greatly disadvantaged who may come before the law, whether as witnesses, victims or accused.

These rights, constitutionally guaranteed, compel and cast a legal duty on the judge to ensure that they are respected realised and never violated. A trial primarily aimed at ascertaining truth has to be fair to all concerned which includes the accused, the victims and society at large. Each person has a right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and society.

It is better that ten guilty escape than one innocent suffers.[1] This quote reflects the principle, known in criminal law as Blackstone’s Formulation named after English jurist William Blackstone, that there is hardly anything more undesirable in a legal system than the wrongful conviction of an innocent person.

This is because the consequences of convicting an innocent person are so significantly serious that its reverberations are felt throughout a civilised society.[2] For example, the sentence served by an innocent person cannot be erased by any subsequent act of annulment.[3] Thus, to ensure as far as possible that no court will wrongfully convict an innocent person, an accused person is presumed innocent until proven guilty, with the prosecution bearing the burden of establishing the facts necessary to prove guilt.

Fair Trial In India

All criminal trials are based on the principle that the accused is innocent till proved guilty. The presumption of innocence is a cardinal principle of Indian legal system and a basic right of the accused person. The presumption must stand and be the guiding principle right from the moment of suspicion, through investigation, throughout the trial process and till the delivery of the verdict. Criminal procedure is built around the principle of innocent until proven guilty and is designed to protect this right. When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt lies on the prosecution.[4]

Arguments that there is nothing wrong per se in shifting the burden of proof on to the accused, especially where grave offences are involved, have not found favour in our legal system, where the notion of being innocent until proven guilty is considered as important as the liberty of the individual. Over time, the pronouncements of the Supreme Court have consistently reaffirmed that the presumption of innocence is a human right.[5]

The Apex Court in P.N. Krishna Lal v Government of Kerala clarified that the principle of presumption of innocence is entrenched in the Indian Constitution, the Universal Declaration of Human Rights and the Civil and Political Rights Convention, to which India is a member, guarantee fundamental freedom and liberty to an accused person. The procedure prescribed for trial must also stand the test of the rights guaranteed by those fundamental human rights.7

In criminal jurisprudence, the settled law is that the prosecution must prove all the ingredients of the offences for which the accused has been charged. The proof of guilt of the accused is on the prosecution and must be beyond reasonable doubt.

At no stage of trial is the accused under an obligation to disprove his innocence. Unlike in a trial of civil action, the burden of proof of a case always rests on the prosecution and it never gets shifted.…To place the entire burden on the accused to prove his innocence, therefore, is arbitrary, unjust and unfair infringing, violating the guarantee under Article 21.

Section 101 of the Indian Evidence Act further reinforces this right, by providing that whoever desires a court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove those facts.8 Thus, if the state wishes to convict an individual of an alleged crime, the state carries the burden of firmly establishing and proving the defendant’s guilt.

To protect this right to be presumed innocent, Section 161(2) of the Code of Criminal Procedure permits persons questioned by the police to refrain from answering questions which might expose them to criminal penalty.9 Imprisonment without regard to procedures intended to protect the right to remain silent is unconstitutional under Article 21.

Ram Gopal v State of Maharashtra (1972) 4 SCC 625
Facts: The appellant Ram Gopal was charged with the murder of Zingrooji Sita Ram. It was established that Sita Ram was poisoned and died on his way to the hospital. The prosecution argued that Ram Gopal had administered the victim some insecticide in kerosene oil either with tea or in water and it was a result of the poisonous insecticide that Sita Ram died. The post-mortem report suspected death by poisoning and a chemical analyst’s report confirmed the presence of an organo-chloro compound in the viscera of the deceased.

The prosecution argued that the defendant’s motive to murder Sita Ram was established by the fact that prior to his death Sita Ram had sold a piece of land to Ram Gopal. However Ram Gopal had not paid him anything but had promised to pay the amount within six weeks of the execution of the sale deed. Despite constant pestering, Ram Gopal kept putting off Sita Ram on some pretext or the other.

Case History:
The prosecution’s case relied on the post-mortem chemical analysis of the viscera which showed the presence of an organo-chloro compound. It argued that the deceased had sickened and died after a visit to the accused.

Opportunity and the means of death had been established. Ram Gopal was sentenced to death by the Sessions Judge Nagpur and this was confirmed by the High Court of Bombay (Nagpur Bench). In appeal to the Supreme Court against the death sentence the Apex Court stated that the prosecution’s case had too many gaps.

There was no evidence to show that the accused was ever in possession of any organo-chloro compound. It was improbable that such a large dose of a kerosene-based poison that was fatal could have been consumed by the victim without noticing it and other possibilities like suicide had not been ruled out.

This was sufficient to give the accused the benefit of doubt and the Apex Court reversed the verdict of the lower courts. The case is illustrative of the need to keep in mind that not only must every fact be established along with the mens rea required, but that the prosecution must be able to link the sequence of events and rule out other probable causes for the occurrence. Here the Supreme Court felt that there may have been other causes for the death of the victim and therefore the beyond reasonable doubt degree of proof had not been met.

Kali Ram v State of Himachal Pradesh AIR 1973 SC 2773
Kali Ram was convicted of two murders. He appealed his conviction in the Supreme Court. The prosecution’s case rested on three pieces of evidence.

  1. First, a witness testified that Kali Ram had spent the night near the victims’ residence, and on the evening of the crime was seen heading toward the victims’ house.
  2. Second, the prosecution asserted that they had a written confession from Kali Ram which he had mailed to the police station.
  3. Third, the prosecution asserted that Kali Ram made an oral confession to a witness.

Noting that the accused was entitled to the presumption of innocence requiring the prosecution to establish guilt beyond a reasonable doubt, the Supreme Court reviewed the prosecution’s evidence. First, the Court concluded that the evidence that Kali Ram was headed toward the victims’ house on the night of the crime was unreliable because the testifying witness had waited for over two months to come forward, despite knowing of the incident, since the crime’s occurrence.

The Court found that the prosecution did not offer a cogent explanation as to why the witness was silent for so long. Second, the Court held that the prosecution had not verified the authenticity of the letter of confession nor displaced the possibility that it could have been fabricated. It was necessary for the prosecution to do that before the letter of confession had evidentiary value. Third, the Court found the testimony of the witness regarding the oral confession highly questionable, as the police had hired this witness to testify. Having found all the prosecution’s primary evidence questionable, the Court reversed the conviction, explaining that the prosecution did not rebut the accused’s presumption of innocence.

The Supreme Court in Sharad Birdhichand Sarda v State of Maharashtra stressed the following five golden principles 13 that must be fulfilled before the case against an accused can be said to be fully established and called it the Panchsheel of the proof of a case based on circumstantial evidence:
The circumstances from which the conclusion of guilt is to be drawn should be fully established. The Court stressed that the circumstances concerned must or should and not may be established. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

Right to Equality before the Law and Equal Treatment by the Law
The right to equality before the law and equal treatment by the law means that discrimination is prohibited throughout the judicial proceedings. Judges and officials may not act in a discriminatory manner when enforcing laws and they must ensure that the rights of all are equally protected.

Fair trial under Indian Constitution

Article 14 of the Constitution states:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. [6] Article 15 lays down the principle of non-discrimination according to which: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. [7]

In terms of justice delivery, the principle of equality basically has two aspects: equal access to the courts and equal treatment at law. In its application, this means that irrespective of religious identity, gender, caste, class, or regional identity, every citizen appearing before a court has a right not to be discriminated against in the course of the proceedings or the manner in which the law is applied.

Protection in Respect of Conviction of Offences/Privilege Against Self-Incrimination
Article 20(3) of the Constitution protects the right of the accused to remain silent by providing that: No person accused of any offence shall be compelled to be a witness against himself.

Examination of Witnesses by Police
Section 161(2) of the Code of Criminal Procedure leaves no room for doubt when it states that an accused is bound to answer all questions of a state official truthfully except questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

Further Statements of the Accused to the Court
The Code of Criminal Procedure, Section 313 further protects the right to silence. It protects the accused from liability for refusing to answer or falsely answering questions by a judge during a court proceeding. It says: the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

The Accused is a Competent Witness for the Defence

During a trial, the accused can be arraigned as a witness for the defence but cannot be called on to give evidence except at their own request.28 If the accused chooses not to give evidence, the court cannot draw any adverse presumption against him.29

Additionally, the accused can choose not to answer questions put to them by the court.30 Except as a condition requisite to a tender of pardon, no influence by means of any promise or threat or otherwise can be used on the accused to induce them to disclose or withhold any matter within their knowledge.

Thus Sections 161, 313, 315 and 316 of the Code raise a presumption against guilt and in favour of innocence, grant a right to silence both at the stage of investigation and trial and also preclude any party or the court from commenting on the silence.

Nandini Satpathy v P.L. Dani AIR 1978 SC 1025
Ms Nandini Satpathy was accused of embezzling funds while serving as Chief Minister of Orissa. She was made to present herself before the Deputy Superintendent of Police (Vigilance) and provide answers to written questions. She refused to answer the questionnaire on the grounds that it was a violation of her fundamental right against self-incrimination. Upon refusing to answer, Ms Satpathy was charged under Section 179 of the Indian Penal Code, 1860, which prescribes a punishment for refusing to answer any questions asked by a public servant authorised to ask that question. The issue before the Supreme Court was whether Ms Satpathy had a right to silence and whether people can refuse to answer questions during investigation that would point towards guilt.

The Supreme Court held that Ms Satpathy had to answer all questions that did not materially incriminate her. For questions she refused to answer, she was required to provide, without disclosing details, her reasons for fearing that answering such questions would result in self-incrimination. Her reasons for invoking her right to remain silent would then be examined and she would be liable for prosecution under Section 179 if it was determined that she refused to answer a question under the false pretence of self-incrimination.

Narco Analysis

Narco Analysis, polygraph and brain mapping tests have been hotly contested legal issues in India. Various High Courts have given conflicting rulings on these issues. It is no longer so. The Supreme Court has now held that these tests cannot be administered on any accused without their consent. Further, the courts should not take the process of obtaining the consent of the accused lightly. The courts must ensure that the consent of the accused for such tests is in fact voluntary. For this purpose, the Supreme Court has not only endorsed the guidelines issued by the National Human Rights Commission in this regard but has held them as binding.

The Supreme Court in Selvi and others v State of Karnataka held that: The compulsory administration of the impugned techniques violates the ‘right against self-incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence.

The Court also stated that: Forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose, since the test results could also expose a person to adverse consequences of a non-penal nature.

The Court further said:
The protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion.

Upholding the right to remain silent, guaranteed by Article 20(3) of the Constitution, the Supreme Court held that the forcible conveyance of personal knowledge that is relevant to the facts in issue violates Article 20(3) of the Constitution.

In the concluding paragraph of the Selvi case, the Supreme Court held the Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused issued by the National Human Rights Commission in 2000, as binding.[8]

Protection Against Ex-Post Facto Law

Article 20(1) of the Constitution states: No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.[9]

However, courts can still apply repealed criminal statutes if the accused committed the crimes prior to such statute’s repeal.47 Illustratively, persons charged under the Terrorism and Disruptive Activities Act (TADA) and Prevention of Terrorism Act (POTA) continue to languish in jail even though the laws have been repealed, and they will be tried and sentenced under those laws. Courts can as well, apply a repealed statute to crimes committed after to the repeal if by trial time a new statute is in force that revives the earlier statute’s rule.

G.P. Nayyar v State (Delhi Administration) AIR 1979 SC 602
Two public officials were tried in 1973 for criminal conspiracy and illegal gratification under the Prevention of Corruption Act, 1947, for allegedly accepting bribes from 1955 to 1961. The accused appealed to the Supreme Court claiming that the burden of proof applied to their trial mandating that the court presume the accused guilty unless proved otherwise was in violation of Article 20(1), as in 1964 the legislature had repealed the relevant statute which applied this standard.

The Supreme Court denied the appeal, explaining that repealed statutes remain applicable to crimes committed before the statute’s repeal. Also, here, the repealed statute was revived by a subsequent statute in 1967, thus further allowing for application of the rule even during the repeal period for acts committed before the repeal.

Right to be Tried by a Competent, Independent & Impartial Tribunal

All major human rights instruments, and our own Constitution and legal system insist on the fundamental human right of an accused to be tried before a competent, independent and impartial tribunal. This is an essential aspect of any fair trial. The independence of the judiciary is one of the pillars of the rule of law. Independence is essential for the protection of fair trial standards. The principle of an independent judiciary requires that a judge can make every decision without the intervention of the government.

Court decisions can be only reviewed by higher courts. The impartiality and independence of the courts may be guaranteed by ensuring that a judge hearing a case has no relationship with either party that may affect the decision-making process. Judges are required to view both parties in a fair and equal manner making an objective decision based solely on the facts and evidence of the case. The guarantee of a competent, impartial and independent judiciary grounds the rule of law because it assures citizens of a body outside the legislature and the executive – that is outside the law maker and the law enforcer – to adjudicate on legality and disputes. It also ensures that the rights of the individual in dispute with the law will be adjudicated by a neutral authority.

Fair Trial In USA, African and European countries

The main instrument dealing with the pre-eminent international legal standards on the subject of fair trial rights is the International Covenant on Civil and Political Rights (ICCPR). The ICCPR is a United Nations treaty created in 1966 and entered into force on 23 March 1976. Nations that ratified this treaty are bound by it. The ICCPR is monitored by the Human Rights Committee, a group of 18 experts who meet thrice a year to consider periodic reports submitted by member states on their compliance with the treaty.[10]

India ratified the ICCPR in 1979, meaning that India is committed to upholding all the rights it guarantees. Many of the rights contained in the ICCPR relate to the criminal justice system – whether in relation to the pre-trial, trial or post-trial stage. Many of the safeguards provided in Indian law are also mandated by international law.

The Universal Declaration of Human Rights (UDHR) lays down the common standard to be met by all nations. Article 11(1) states:

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Indian law is precisely in line with Article 14(2) of ICCPR which states: Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Article 15(1) of the ICCPR states:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. In addition to the ICCPR espousing this principle, several international criminal statutes have adopted non-retroactivity, including the Rome Statute of the International Criminal Court[11]

Article 9(1) of the ICCPR sets forth several provisions that essentially mirror the principles in Indian domestic law.

47 Article 9(1) of the ICCPR reads as follows:

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.

Further to this, Article 9(2) of the ICCPR provides that: 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. This asserts more or less the same basic principle stated under Indian law.[12]

The major legal provisions on fair trial are to be found in article 14 of the International Covenant on Civil and Political Rights, article 7 of the African Charter on Human and Peoples’ Rights, article 8 of the American Convention on Human Rights and article 6 of the European Convention on Human Rights. The relevant provisions of these articles will be dealt with below under the appropriate headings.

The right to be tried by an independent and impartial tribunal must be applied at all times and is a right contained in article 14(1) of the International Covenant on Civil and Political Rights, which provides that in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Although article 7(1) of the African Charter on Human and Peoples’ Rights speaks only of a competent (art. 7(1)(b)) or impartial (art. 7(1)(d)) court or tribunal, article 26 of the Charter imposes a legal duty on the States parties also to guarantee the independence of the Courts. Article 8(1) of the American Convention refers to a competent, independent, and impartial tribunal, previously established by law, and article 6(1) of the European Convention on Human Rights to an independent and impartial tribunal established by law. Lastly, article 40 of the Statute of the International Criminal Court provides that the judges shall be independent in the performance of their functions and that they shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.

The right to a fair hearing

The notion of a fair hearing is contained both in article 14(1) of the International Covenant on Civil and Political Rights and in article 6(1) of the European Convention on Human Rights, while article 8(1) of the American Convention on Human Rights speaks of due guarantees.

The African Charter on Human and Peoples’ Rights provides no specification in this respect, but it should be pointed out that, according to article 60 of the Charter, the African Commission on Human and Peoples’ Rights shall draw inspiration from other international instruments for the protection of human and peoples’ rights, a provision that enables the Commission to be inspired, inter alia, by the provisions of article 14 of the International Covenant on Civil and Political Rights when interpreting the trial guarantees laid down in article 7 of the Charter.

Articles 20(2) and 21(2) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia both provide that the accused shall be entitled to a fair and public hearing in the determination of charges against him or her, although with the proviso that the protection of victims and witnesses may require measures which shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity (arts. 21 and 22 of the respective Statutes). The rights of the accused as contained in these Statutes are heavily inspired by article 14 of the International Covenant.

Fairness from the point of view of the victims

The so-called Street Children case against Guatemala concerned the abduction, torture and murder of four street children, the killing of a fifth, and the failure of State mechanisms to deal appropriately with these violations and provide the victims’ families with access to justice. Criminal proceedings were instituted but nobody was punished for the crimes committed.[13] The Inter-American Court of Human Rights concluded that the relevant facts constituted a violation of article 1(1) of the American Convention on Human Rights in relation to its article 8, since the State had failed to comply with the obligation to carry out an effective and adequate investigation of the corresponding facts, i.e. the abduction, torture and murder of the victims.5

According to the Court, the domestic proceedings had two types of serious defect:

  1.  first, investigation of the crimes of abduction and torture was completely omitted, and
  2. second, evidence that could have been very important for the due clarification of the homicides was not ordered, practised or evaluated.

, It was thus evident that the domestic judges had fragmented the probative material and then endeavoured to weaken the significance of each and every one of the elements that proved the responsibility of the defendants, item by item, and that this contravened the principles of evaluating evidence, according to which, the evidence must be evaluated as a whole, ... taking into account mutual relationships and the way in which some evidence supports or does not support other evidence. In this case the Court also importantly emphasized that

it is evident from article 8 of the Convention that the victims of human rights violations or their next of kin should have substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek due reparation.[14]

The case of Brandstetter

In the case of Brandstetter, which concerned defamation proceedings, the Vienna Court of Appeal had relied on submissions of the Senior Public Prosecutor which had not been sent to the applicant and of which he and his lawyer were not even aware. For the Court, it did not help in this case that the Supreme Court had subsequently quashed the relevant appeal court judgement: in its view an indirect and purely hypothetical possibility for an accused to comment on prosecution arguments included in the text of a judgement can scarcely be regarded as a proper substitute for the right to examine and reply directly to submissions made by the prosecution.

Furthermore, the Supreme Court did not remedy this situation by quashing the first judgment since its decision was based on a ground entirely unrelated to the matter in issue[15]

The right to equality of arms or the right to truly adversarial proceedings in civil and criminal matters forms an intrinsic part of the right to a fair hearing and means that there must at all times be a fair balance between the prosecution/plaintiff and the defence. At no stage of the proceedings must any party be placed at a disadvantage vis-à-vis his or her opponent.[16]

The right to be tried without undue delay or within a reasonable time

According to article 14(3)(c) of the International Covenant and articles 20(4)(c) and 21(4)(c) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia, every person facing a criminal charge shall have the right to be tried without undue delay (emphasis added). In the words of article 7(1)(d) of the African Charter, article 8(1) of the American Convention and article 6(1) of the European Convention, everyone has the right to be heard within a reasonable time.

What it means to be tried without undue delay: In General Comment No. 13, the Human Rights Committee stated that the right to be tried without undue delay is a guarantee that relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place ‘without undue delay’.

To make this right effective, a procedure must be available in order to ensure that the trial will proceed ‘without undue delay’, both in first instance and on appeal.60 This view has been further emphasized in the Committee’s jurisprudence, according to which article 14(3)(c) and (5) are to be read together, so that the right to review of conviction and sentence must be made available without delay.[17]

Key Women’s Rights Issues

Violence against women has been defined to include any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to Freedom from violence and fear of violence is essential to the full enjoyment of all human rights. Under international human rights law, States have an obligation to refrain from committing acts of violence against women (for example, the State is responsible for ensuring that oldiers do not commit rape) and to put in place laws and policies to prevent others from doing the same (such as by criminalizing domestic violence).[18]

The Inter-American Court of Human Rights examined Mexico’s responsibility for violations of both the American Convention on Human Rights and the Convention of Belém Do Pará in connection with a wave of murders and disappearances of girls and women in Ciudad Juarez.[19]

The Court found the State responsible for violating the victims’ rights to life, humane treatment, personal liberty, due process, and judicial protection in relation to its obligation under the Convention of Belém do Pará to prevent, punish and eradicate violence against women.

Sexual Violence

Sexual violence includes rape, enforced prostitution, and other forms of sexual assault. As with other forms of violence, as described above, States have an obligation to prevent State actors from committing sexual violence against women, as well as a duty to adopt laws and policies to prevent such abuses by private persons and to ensure the e_ective investigation and prosecution of those responsible,

In Aydin v. Turkey, [20] The European Court of Human Rights has interpreted the European Convention on Human Rights to require States to establish and apply e_ectively a criminal-law system punishing all forms of rape and sexual abuse.

ECtHR, M.C. v. Bulgaria, [21]

The European Court also recognized a positive State obligation to investigate allegations of rape. It noted that the victim’s medical examination had improperly focused on whether she was a virgin rather than on whether she had been raped and found that a person alleging rape must be examined with all appropriate sensitivity, by medical professionals with particular competence in this area and whose independence is not circumscribed by instructions given by the prosecuting authority as to the scope of the examination.

Similarly, the European Court found Turkey responsible for violating Article 3 (prohibition on inhuman treatment) when police failed to provide appropriate medical examinations to a woman in custody and the government could not o􀁷er a plausible explanation for the injuries she had sustained in detention.[22]

And in a third Turkish case, the European Court condemned State agents’ application of virginity tests without medical or legal necessity to women in detention, as well as the government’s failure to investigate the women’s allegations of ill treatment. [23]

Sexual Violence in Conflict Zones

Sexual violence against women is especially prevalent in conflict zones. Militaries and rebel groups have used rape and other forms of sexual violence as a military tactic against civilian populations. In 2013, the UN Security Council adopted Resolution 2106, which recognized the need for collective action by States, civil society and international actors to implement preventative measures, protect civilians during conflict, and punish perpetrators.[24]

The African Commission on Human and Peoples’ Rights has condemned armed forces’ use of sexual violence as a military tactic against civilian populations. [25]
In the case of D.R. Congo, armed forces of Burundi, Rwanda, and Uganda raped and killed women in the Democratic Republic of Congo, among other violations.

The Democratic Republic of Congo also alleged that the Rwandan and Ugandan forces specifically attempted to decimate local populations by spreading AIDS through the rape of Congolese women and girls. Id. at para. 5. The African Commission found violations of the First Protocol Additional to the Geneva Conventions and the Convention on the Elimination of All Forms of Discrimination against Women, and the African Charter on Human and Peoples’ Rights.

Sexual violence may also constitute a crime against humanity, and the international criminal tribunals for both Rwanda and the former Yugoslavia have prosecuted individuals in connection with sexual violence committed against women during conflict. [26]

Female Genital Mutilation

As described by the World Health Organization (WHO), the practice of female genital
mutilation (FGM) includes procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons.

Economic, Social and Cultural Rights (CECSR) has interpreted Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to require States parties to the ICESCR to protect women from being coerced to participate in this harmful cultural practice.[27]

Domestic Violence

Domestic violence may be emotional, psychological, physical, or sexual. Although this kind of abuse involves relationships between individuals and generally takes place in the private sphere, States still have a positive obligation to provide legal mechanisms to protect women from domestic violence, including the investigation and prosecution of those responsible.[28]

End-Notes

  1. Letter from Benjamin Franklin to Benjamin Vaughan, 14 March 1785.
  2. Kali Ram v State of Himachal Pradesh 1973 AIR SC 2773.
  3. Ibid., para. 28.
  4. William Glanville, The Proof of Guilt; edn. 3, Stevens, 1963, pp. 184 -85.
  5. Narendra Singh and Anr. v State of Madhya Pradesh, (2004) CrLJ (2842), para. 31
  6. Constitution of India, Article 14.
  7. Constitution of India, Article 15(1).
  8. AIR 2010 SC 1974.
  9. Constitution of India, Article 20
  10. The Human Rights Committee is a body of independent experts that monitors the implementation of the International Covenant on Civil and Political Rights by its state parties.
  11. Rome Statute of the International Criminal Court, Art. 22, UN Doc. A/CONF. 183/9 (17 July 1998).
  12. ICCPR, supra note 47, Article 9(2).
  13. A Court HR, Villagrán Morales et al. Case (The Street Children Case) v. Guatemala, judgment of November 19, 1999, Series C, No. 63,p. 198, para. 233.
  14. 7Ibid., p. 198, para. 233.
  15. Eur. Court HR, Case of Brandstetter v. Austria, judgment of 28 August 1991, Series A, No. 211, p. 28, para. 68.
  16. Eur. Court HR, Case of Lobo Machado v. Portugal, judgment of 20 February 1996, Report 1996-I, pp. 206-207, paras. 31-32.
  17. Communications Nos. 210/1986 and 225/1987, E. Pratt and I. Morgan v. Jamaica (Views adopted on 6 April 1989), in UN doc.GAOR, A/44/40, p. 229, para. 13.3.
  18. UN G.A. Res. 48/104, Declaration on the Elimination of Violence against Women, A/RES/48/104, 20 December 1993, art. 1.
  19. I/A Court H.R., González et al. (Cotton Field) v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 16, 2009. Series C No. 205, para. 232 et seq.
  20. ECtHR, no. 23178/94, Rep. 1997-IV, Judgment of 25 September 1997.
  21. no. 39272/98, ECHR 2003-XII, Judgment of 4 December 2003.
  22. Algür v. Turkey, no. 32574/96, Judgment of 22 January 2002
  23. Salmanoğlu and Polattaş v. Turkey, no. 15828/03, Judgment of 17 March 2009.
  24. UN S.C. Res. 2106, S/RES/2106, 24 June 2013.
  25. D.R. Congo v. Burundi, Rwanda, and Uganda, Communication No. 313/05, 33 Ordinary Session, May 2003.
  26. Women and Armed Conflict (2000); Prosecutor v. Akayesu
  27. General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, 11 May 2000, paras. 22 and 35.
  28. Jessica Lenahan (Gonzales) et al. (United States), 21 July, 2011


Written by: Sayed Qudrat Hashimy - Student of 1st year LLM (International Law) Department of Studies, at University of Mysore, India - Email: [email protected]
Mobile no.+91-9008813333 - +93700383333

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