That the detainee has an opportunity to be heard within a reasonable time;
and
That the detainee has the right of access to a lawyer.
The situation of detainees in Guantanamo Bay has been condemned by numerous
international and regional human rights bodies.687
L. Equality of arms
109.
This principle requires that each party should be able to present their
688
case and to contest the arguments brought by the other.689 This also relates
to equality in how the case is presented, a particularly important issue in
criminal trials. The adversarial nature of the trial is therefore important 690 and
documentary evidence should be able to be challenged.691
110.
It applies to both criminal and civil proceedings 692 and applies to issues
throughout the proceedings.693 It also entails the ability of both the defendant
and the prosecutor to appeal a decision.694
111.
Parties should have access to and disclosure of documents and
evidence and materials that each side plans to present in court.695
112.
The prosecution plays a crucial role in ensuring the fairness of
proceedings696 and has a duty to disclose all its evidence to the defence.697
The right to call witnesses and cross examination
113.
The right includes the ability to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him.698 The accused
687
See E/CN.4/2006/120; more recently, Human Rights Committee, Concluding Observations: USA,
23rd April 2014: CCPR/C/USA/CO/4.
688
Communication 1386/2005, Gueorguiev v Spain, 24 July 2007, para 6.3. See also before the
European Court, Steel and Morris v the United Kingdom [2005] ECHR 103, para 59.
689
Communication 779/1997, Äärelä and Näkkäläjärvi v Finland, 24 October 2001, a 7.4.
690
Rowe and Davis v the United Kingdom [2000] ECHR 91, para 60.
691
Communication 846/1999, Jansen-Gielen v the Netherlands, 3 April 2001, para 8.2.
692
General Comment No.32, CCPR/C/GC/32 (2007), para 13.
693
Human Rights Committee, Communication No.1348/2005, Dudko v Australia, para 7.4.
694
Communication No.1086/2002, Weiss v Austria, 3 April 2003, para 9.6. Communication no.223/1987,
Robinson v Jamaica, 30 March 1989, para 10.4
695
Concluding Observations by the Human Rights committee on Canada, CCPR/C/CAN/CO/5, para 13.
HRC Communication 1117/2002, Khomidova v Tajikistan, 29 July 2004.
696
Guidelines on the Role of Prosecutors, which were adopted by the Eighth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders in 1990.
697
Communication 14448/88, Dombo Beheer B.V. v. The Netherlands, 27 October 1993, para. 33;
European Court, McMichael v UK, [1995] ECHR 8.
698
Article 14(1), (3)(e) ICCPR. Human Rights Committee, General Comment No.32, CCPR/C/GC/32
(2007), para 39; Communication 1623/2007, Guerra de la Espriella v Colombia, 18 March 2010.
Communication 911/2000, Nazarov v Uzbekistan, 6 July 2004, para 6.3.
119
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