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12 Right to Equality

From: The Right to a Fair Trial in International Law

Amal Clooney, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 18 September 2021

Religion — Access to justice — Equality before the law — Right to fair trial — Disability — Ethnicity — Gender — Race — Equality of arms

This chapter focuses on the right to equality before courts and tribunals, which requires that all parties to criminal proceedings are treated without discrimination. The right underlies the rule of law. It is codified in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), which provides ‘[a]ll persons shall be equal before the courts and tribunals’. It is also enshrined in Article 14(3), which refers to the minimum guarantees of a fair trial ‘in full equality’. This chapter considers three areas in which the right to equality before courts and tribunals may arise in criminal proceedings: equality of treatment, equality of arms, and equality of access. In terms of equal treatment, Article 26 of the ICCPR provides ‘that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds’. These grounds include ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Equality of treatment applies to all individuals, not just to defendants, and requires equal treatment by all organs of the state, not just judicial authorities. Meanwhile, equality of arms ensures that the same procedural rights are to be provided to all the parties to a case, ‘unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant’. It does not necessarily require mathematical equality between the prosecution and the defence. Equality of access issues may arise in criminal proceedings when a defendant’s access to court is hindered because of his detention, disability, or his foreign nationality, or when a defendant is forced to be tried before a military or special court rather than having access to a regular civilian court. The right to equality before courts and tribunals has been used relatively infrequently to vindicate fair trial violations, which may in part be attributed to the challenges of proving discrimination.

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