132. The right to a fair trial is composed of various other guarantees and rights. Among those rights
are the right to equality before the courts and tribunals and that of equal access to them, as is set
out in Principle 8.1. The right to equality before courts and tribunals contains within it the
requirement that parties involved in the proceedings in question are treated without
discrimination. This right to non-discrimination also extends to the right of access to the courts,
indicating that no-one shall be limited in their ability to claim justice. Furthermore, this right of
access is not restricted to the citizens of the State in question, but rather extends to all individuals
under the jurisdiction of the State. As such, persons who have been deprived of their nationality
by the State should not be denied access to justice on the basis that they are not (any longer) a
national of that State. It must be noted from the outset that the right of access to justice applies
regardless of whether the decision to deprive the person of their nationality was taken
administratively or following a criminal conviction.
133. Article
of the ICCPR establishes that “all persons shall be equal before the courts and
tribunals , which applies equally to criminal and non-criminal cases. This guarantee is contained
in other international instruments, such as the UDHR and the ECHR. With regard to deprivation
of nationality, this would be relevant only if deprivation of nationality were based on a criminal
conviction. Yet, the Human Rights Committee confirmed in its General Comment No. that “the
notion may also extend to acts that are criminal in nature with sanctions that, regardless of their
qualification in domestic law, must be regarded as penal because of their purpose, character or
severity thus clarifying its application to non-criminal cases.225 General Comment No. 32 provides
important detail on the scope of application of Article
confirming that “ t he right of access
to courts and tribunals and equality before them is not limited to citizens of States parties, but
must also be available to all individuals, regardless of nationality or statelessness, or whatever
their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or
other persons, who may find themselves in the territory or subject to the jurisdiction of the State
party .226 It also confirms that
The right to equality before courts and tribunals also ensures equality of arms. This means
that the same procedural rights are to be provided to all the parties 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 […] The principle of equality
between parties applies also to civil proceedings, and demands, inter alia, that each side
be given the opportunity to contest all the arguments and evidence adduced by the other
party. In exceptional cases, it also might require that the free assistance of an interpreter
be provided where otherwise an indigent party could not participate in the proceedings
on equal terms or witnesses produced by it be examined.227
134. In addition to this, the right to a fair trial guarantees the person concerned the right to “a fair
public hearing by a competent, independent and impartial tribunal established by law .228
225
Human Rights Committee, ‘General Comment No.
Human Rights Committee, ‘General Comment No.
227
Human Rights Committee, ‘General Comment No.
228 Art. 14(1) ICCPR.
226
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CCPR C GC
CCPR C GC
CCPR C GC
67
, para .
, para .
, para .
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