The Death Penalty in Japan
Te Committee went on to add that in death penalty cases, “the duty to observe rigorously all the guarantees for a fair trial set out in Article 14 of the Covenant is even more imperative”.
Te HRC has found violations of Article 14 and consequently Article 6 in scores of capital cases in particular, from Jamaica and Trinidad & Tobago. In so doing, the Committee has declared that defendants in a capital trial have the absolute right to effective counsel and must have adequate time and facilities for the preparation of the defence. Te Inter-American Commission and Court have adopted a similar approach to due process in capital cases.
Adequate time and facilities to prepare a defence: Article 14(3)(b) of the ICCPR states that a person shall be entitled:
to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.
Before a trial starts, the central aspect of the right to a fair trial is the right to have adequate time and facilities to prepare a defence. Tis is the springboard for other fair trial rights such as legal representation and discovery.
Te time needed to prepare a defence inevitably depends on the nature of the proceedings and the factual circumstances of each case. Relevant factors include the complexity of the case, the accused’s access to evidence and to his lawyer.
In Aston Little v. Jamaica the HRC found that the requirements of Article 14(3)(b) of the ICCPR had been breached in a capital case from the Caribbean. Te Committee held that:
“In cases in which capital sentence may be pronounced, it is axiomatic that sufficient time must be granted to the accused and his counsel to prepare the defence for trial; this requirement applies to all stages of the judicial proceedings… In the instant case it is uncontested that the author did not have more than half an hour for consultation with counsel prior to the trial and approximately the same amount of time for consultation during the trial.”51
In that case, the Committee also concluded that Article 14(3)(e) of the ICCPR had been violated as the lack of sufficient time for the adequate preparation of the defence had clearly affected counsel’s ability to trace or call defence witnesses to trial. Te defendant was therefore unable to obtain the testimony of a witness on his behalf under the same conditions as testimony of witnesses against him.
Te right to adequate facilities to prepare a defence includes the right of the accused to obtain the opinion of independent experts in the course of preparing and presenting a defence. Article 8(2)(f) of the ACHR guarantees the right of the defence “to examine witnesses present in the court and to obtain the appearance… of experts or other persons who might throw light on the facts”.
51 (Communication No. 283/l988), UN Doc. CCPR/C/43/D/283/1998 at paragraph 8.3 20
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