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By Marcelo Figueiredo. Lawyer, jurist and legal advisor in São Paulo, Brazil. Associate Professor of Constitutional Law at the Pontifical Catholic University of São Paulo Law School (PUC-SP). President of the Brazilian Association of Democrat Constitutionalists (ABCD), the Brazilian chapter of the Iberian-American Institute of Constitutional Law headquartered in Mexico. Vice-President of the International Association of Constitutional Law (IACL-AIDC.org).
The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there is no judicial proceedings. Accordingly, the right to a fair trial embodies the “right to a court”, of which the right to institute proceedings as the right of access, constitutes one aspect, while the guarantees relating to the organization and composition of the court, and the conduct of the proceedings, constitute another. In sum, the whole makes up the right to a fair hearing.
The principle of adversarial proceedings means that each party to a criminal or civil trial must have the opportunity not only to make known any evidence needed for his claim to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court´s decision.
Adversarial proceedings also imply the observance of the principles of natural justice. Therefore, the impartiality of the court is an important aspect of the right to a fair trial. A judge must not harbor preconceptions about the matter brought before him, and must not act in a way that promotes the interests of one of the parties.
A trial flawed by the participation of a judge who should have been disqualified cannot normally be considered to be fair. Another important aspect of natural justice is the concept of audi alteram partem which is breached, for example, not only when a hearing is held in the absence of a party, but also when a party is present through the proceeding but is not heard before an order that adversely affects his interest is made; or when a litigant is not permitted by the court to make an opening or closing speech or to make any submission on the law; or when an appeal court required to re-evaluate the evidence submitted at the trial and determine whether a procedural flaw had affected the verdict of the trial court, fails to conduct oral proceedings.
Natural justice required also reasoned judgment. The principle of procedural equality of parties – or what is generally called “equality of arms” is an inherent element of a fair trial. This principle is violated in many ways, when a trial judge refuses to grant an adjournment to enable the accused person to obtain legal representation; when an accused is denied access to his case file in the police or in court; when the court fails to control the hostile atmosphere and pressure created by public, etc.
In Latin America, the principle of due process is an important procedural tool constitutes a reference for a fair trial. The State is required to observe the due process of law so as to ensure a fair and impartial trial.
As is widely known, the phrase due process of law was used only in an English law of 1354, under the realm of Edward III, with the Statute of the Liberties of London, which was afterwards espoused by the North-American constitutionalism and merged into the United States Constitution by Amendments V (1791)- as it stated that “No person shall be deprived of life, liberty, or property, without due process of law” – and XIV (1868) – that bound the Federation States to said clause – “nor shall any State deprive any person of life, liberty, or property, without due process of law” and then spread to the constitutional system of numerous countries.
The Supreme Court invalidated a state law prohibiting the teaching of any modern language other than English in any public or private grammar school (Meyer v. Nebraska, 262 U.S. 390 (1923).
Throughout its path, the principle has spanned centuries and imposed its presence in contemporary law, by evolving from a mere procedural, formal or adjective guarantee (procedural due process) to become a material, substantive rule (substantive due process). It was later expanded by the action of the North-American Supreme Court, through sound and creative case law, and underpinned by reasonableness and rationale criteria it started promoting the substantive protection of fundamental rights under State statutes and general acts against unreasonable and arbitrary actions undertaken by the Government, first in the economic sector and then reaching other areas, always invalidating State acts and protecting fundamental rights.
Accordingly, from that procedural due process one has evolved to a substantive due process, in the analysis of content, reasons, purpose and effects of governmental acts.
Thus, it ceased to be a mere procedural guarantee and became, aside from the principle of equality, the most important legal tool designed to protect people’s liberties, by transmuting into a principle guaranteeing Justice accomplishments, and able to condition, in the merits, the validity of laws and the Government actions overall.
It was initially applied to prosecutions. Today it is unquestionably also applicable to administrative proceedings within the ambit of the Government, which is bound by the principles of legality and administrative morality, both of which have special importance in Latin America.
Written constitutions tend to focus on providing chains of accountability and democratic legitimacy for the decisions of administrators, rather than detailed rules regulating the administration. In other words, constitutions tend to regulate administration structurally rather than legally. In terms of legal constraint on the State, general due process-type considerations may apply particularly to administrative agencies.
What one does see is that written constitutions reflect developments in the technology of governance. The average constitution drafted in the 1990s mentions more than three bodies: ombudsman, human rights commissions, and corruption commission. Court of audit and some agency for supervise accounts or audit are also frequently on administrations. Constitutions engage with administrative law through the designation of administrative court systems.
Executive policymaking in democracies raises issues of public legitimacy, and this is a central focus of administrative law in the United States where the notice and comment provisions of the Administrative Procedure Act (APA) guides the process. These provisions require agencies to provide notice, hold hearings, and give reasons when they issue a rule. The final rule can then be subject to judicial review, which reaches beyond compliance with the procedural demands of the APA both to the rational underpinnings of the rule and to its consistency with the implementing statute.
The due process (both procedural and substantial) is present as a principle in several Constitutions in Latin America.
In general, every administrative act that affects one’s rights demands prior notice thereof to the interested parties, which implies its publicity, proved existence, transparency and unrestricted access to the process and to the decisions made by the authority, the rationale of the acts and the due observance of any special procedures, if any.
At all events, interpretations towards an undue restriction of the scope of due process are not allowed, wherefor strict observance and compliance therewith shall always be required.
The Inter-American Commission on Human Rights has endorsed its position on the application of the due process guarantees in administrative proceedings, upon establishing the duty of the States to rely on clear rules as regards the means whereby it takes proceedings against administrative and political agents in order to avoid discretionary actions that may foster arbitrary and discriminatory practices.
In the same manner, in the case Baena Ricardo et al vs. Panamá, the Inter-American Court on Human Rights determined that the judicial guarantee are not exclusively limited to the judicial appeals, but encompass the set of requirements that must be met in those procedural levels where the acts or omissions of State agencies affect persons’ subjective rights or legitimate interests.
Today, the Inter-American system has settled the understanding that the guarantee to the due process under the American Convention encompasses several rights:
1) a hearing to determine the facts and rights;
2) the right to comprehensive legal assistance, in both the administrative and judicial spheres through the applicable remedies;
3) prior notice of proceedings in course;
4) the right to a decision based on clear grounds and the rationale therefor;
5) publicity of administrative actions;
6) observance, by the Public Administration, of reasonable deadlines; and
7) judicial review of administrative decisions.
The fair trail is provided by: article 10, Declaration of Human Rights (UDHR); article 14.1, International Covenant on Civil and Political Rights (ICCPR); article 26.2, American Declaration of the Rights and Duties of Man (ADRD); article 6.1, European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR); article 8.1, American Convention of Human Rights (ACHR); and articles 7.1, d and 26, African Charter on Human and People´s Rights (AfHPR).