release[d]”.932 This safeguard applies to pre-trial detention and runs from the time of initial arrest or detention, including before the individual is formally charged, through to “the time of judgment at first instance”.933 As discussed in relation to the presumption of innocence, many detainees tried by military commissions have been detained for many years before trial, in some cases the defendants have been in detention for 12 or 13 years.934 Accordingly, in addition to Article 14(3)(c) of the ICCPR, the US government has likely also violated Article 9(3) of the ICCPR. d. Recommendations • • • To ensure that any proceedings against Guantánamo detainees meet international fair trial standards on the right to be tried without undue delay; To ensure that any legislation applicable to the trial of any Guantánamo detainee guarantees the right to be tried without undue delay; To provide an effective remedy to any defendant whose right to trial without undue delay has been violated. D. RIGHT TO LEGAL COUNSEL OF FACILITIES FOR THE PREPARATION CROSS-EXAMINE WITNESSES ONE’S CHOICE, TO ADEQUATE TIME AND OF A DEFENCE, AND TO CALL, EXAMINE AND a. International Standards 383. Equality of arms is an essential component of fair criminal proceedings. It requires that the prosecution and the defence be provided with the same procedural rights unless distinctions are based on law, are justified on objective and reasonable grounds, are proportional, and do not entail “actual disadvantage or other unfairness” to the accused.935 It also requires that persons charged with a criminal offence benefit from a number of procedural guarantees in the proceedings against them.936 These include the rights to have adequate time and facilities for the preparation of their defence, the right to confidentially communicate with counsel of their own choosing or independent and competent legal assistance assigned to them, and the right to “examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on [their] behalf under the same conditions as witnesses against [them]”, among others.937 These guarantees 932 Please see Part 1-A of this report for more details on this rule. ICCPR, Art. 9(3). UN HRC, General Comment No. 35, op. cit., note 92, para. 37. 934 This detention includes detention in both Guantánamo and secret CIA detention facility. Al-Nashiri has been detained since 2002, while al Shibh, Khalid Shaikh Mohammad, al Baluchi, bin ‘Attash and al Hawsawi have been in detention since 2003. AlIraqi has been detained since 2006. Senate Study on the CIA RDI Programme, Executive Summary, op. cit., note 171, pp. 458461;“The Guantánamo Docket”, The New York Times website, op. cit., note 88; Rosenberg, “Who’s still being held at Guantánamo”, op. cit., note 88; Rosenberg, “By the Numbers”, op. cit., note 88. 935 UN HRC, General Comment No. 32, op. cit., note 648, para. 13; UN Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, A/68/285, op. cit., note 647, paras. 79, 109. 936 UN HRC, General Comment No. 32, ibid., paras. 3, 32, 39. 937 ICCPR, Art. 14(3)(b), (d) and (e). 933 167