Chapter vi  Equality of Arms and Rights to a Fair Hearing 133 6.5 Right to be heard Article 14 of the ICCPR “(1) 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… hearing… “(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: “(d) To be tried in his presence…” Article 6(1) of the ECHR “(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair… hearing…” Everyone charged with a criminal offence has the right to be tried in her/his presence so that they can hear and challenge the prosecution case and present a defence.576 The idea of a right to be “heard” invokes two notions. First is the principle of natural justice encapsulated in the audi alteram partem rule, that justice requires the other side to be heard. The second involves the question of whether the right to be heard involves a right to be heard in person or whether it is sufficient to be heard through written evidence and submissions. For the application of the right to be heard to non-criminal proceedings, see also 6.5.4. 6.5.1 Audi alteram partem, hear the other side The principles of a fair hearing incorporate what some justice systems refer to as the rules of natural justice, including the concept of audi alteram partem (literally meaning “hear the other side”). This principle was found to be violated in Hermoza v Peru, where administrative authorities deprived the applicant of a hearing, those same authorities having made the decision to suspend him and, later, to discharge him from office.577 The need to hear the other side, whether in criminal or civil proceedings, is fundamental to and at the heart of the right to a fair hearing in Article 14(1) of the ICCPR and Article 6(1) of the ECHR. 6.5.2 The right to be present in criminal hearings In the determination of criminal charges, the right to be tried in one’s presence is expressly guaranteed only by ICCPR under Article 14(3)(d), and as an implicit feature of the right to defend oneself (See also 6.6), as well as of the right to a public hearing (See also 4). It includes the right of the defendant to testify, although it should be recalled that a defendant cannot be 576 Fair Trials Manual (London: Amnesty International Publications, 1998), para 21.1. 577 Hermoza v Peru, HRC Communication 203/1986, CCPR/C/34/D/203/1986 (1988), individual opinion of Committee members Joseph Cooray, Vojin Dimitrjevic and Rajsoomer Lallah.