A Comparative Critique of the Components of Fair Trial in the 2013 Criminal Procedure Code and International Instruments

Abstract

A fair trial encompasses a set of principles and rules that are implemented by a competent, independent, and impartial legal authority throughout all stages of judicial proceedings, in accordance with human conscience and with due regard to the circumstances and personal characteristics of the parties to the dispute, thereby guaranteeing the rights of the litigants. Fair trial is regarded as one of the fundamental concepts in domestic legal systems and international instruments, aiming to preserve the balance of power between the parties throughout all stages of criminal proceedings and, in particular, to protect the rights of the accused. The components of a fair trial are founded upon numerous jurisprudential, legal, governmental, social, and other underlying principles. The Criminal Procedure Code enacted in 2013, in light of international instruments, has paid particular attention to the components of fair trial and the rights of the accused. Some of the components stipulated in this law have not been provided for in international instruments. Examples include the necessity of separating the prosecutorial authority from the investigative authority, the requirement to summon the accused after the collection of evidence and prior to arrest, and obtaining the accused’s final defense at the conclusion of the preliminary investigation stage. Conversely, certain components of fair trial—such as the principle of equality of arms, the legality of evidence acquisition, equality before the court, trial before ordinary courts, trial before multiple judges, and the necessity of examining evidence in court—are among the components recognized in international human rights instruments, yet the 2013 Criminal Procedure Code has either remained silent regarding them or has not explicitly addressed them. Overall, it may be stated that the provisions of the Criminal Procedure Code are, to a considerable extent, consistent with international instruments; however, in certain areas, such as the conduct of preliminary investigations by the prosecutor, the violation of the accused’s defense rights in some instances, and the possibility of holding non-public hearings in political and press offenses, instances of inconsistency can be observed.