Obligation

Right to a Fair and Public Hearing

International and regional treaties state that everyone is entitled to a fair and public hearing by a competent, impartial, and independent tribunal in determination of their rights.[1] They add that fair trial must be expeditious and that the independence and impartiality of tribunals are absolute rights.[2] This right must be protected except for specific and objective reasons as determined by law.[3]

The right to appeal is not guaranteed in the determination of a suit at law, and the obligation for a public hearing does not necessarily apply to appellate proceedings.[4]

Interpretive sources suggest that the notion of a fair trial includes the guarantee of a fair and public hearing, absent of influence, which requires an independent, impartial, and competent tribunal.[5] While interpretive sources are clear that any body that meets the criteria of impartiality and independence can be considered a tribunal, they also state that a situation in which the executive and the judiciary are not clearly distinguishable is incompatible with the notion of an independent and impartial tribunal.[6] An electoral management body, with executive powers, would not meet the criteria of an independent and impartial tribunal; therefore, a hearing by a separate judicial body would be required.

In the context of dispute resolution, equality before the courts is essential.[7] Interpretive sources suggest that this includes equality in arms and equal access to the courts.[8] Fees that de facto prevent access to the courts may violate the obligation of equal access to the courts.[9] This guarantee extends to judicial bodies entrusted with any judicial task.[10]

Independence of the tribunal requires proper procedures detailing appointment, term limits, security, and remuneration of tribunal members.[11] Impartiality requires that judges act without bias and that the tribunal appears unbiased to the reasonable observer.[12] While a fair and public hearing is one essential means of promoting an effective remedy for violations of other fundamental rights, remedy must also be available for violations of the right to a fair and public hearing itself.

Issues


Right to a Fair and Public Hearing by an Impartial and Independent Tribunal

  • Relevant Election Parts:
  • Electoral Dispute Resolution

The legal framework provided the right for a fair and public hearing by a competent, impartial, and independent tribunal in the determination of rights

  • The right to appeal is not guaranteed in the determination of a suit at law. [?]
  • Any body that meets the criteria of impartiality and independence can be considered a tribunal. [?]
  • Impartiality requires that judges act without bias, and that the tribunal appears unbiased to the reasonable observer. [?]
  • A fair trial entails the absence of influence. [?]
  • A situation in which the executive and the judiciary are not clearly distinguishable is incompatible with the notion of an independent and impartial tribunal. [?]
  • Independence of the judiciary requires proper procedures detailing appointment, term limits, security, and remuneration. [?]
  • In the determination of suits at law the independence and impartiality of tribunals is an absolute right. [?]
  • The right to a public hearing must be protected except for specific and objective reasons as determined by law. [?]
  • Everyone is entitled to a fair and public hearing by a competent, impartial, and independent tribunal in determination of his/her rights. [?]
  • The obligation for a public hearing does not necessarily apply to appellate proceedings. [?]
  • The notion of fair trial includes the guarantee of a fair and public hearing. [?]

Hearings by Impartial and Independent Tribunals

  • Relevant Election Parts:
  • Election Management

Forum shopping was discouraged

  • Appeal channels, when available, should be narrowly constructed to avoid "forum shopping." [?]

The tribunal was protected from political influence

  • Independence of the judiciary requires proper procedures detailing appointment, term limits, security, and remuneration. [?]

Citizens were granted a fair and public hearing by a competent, impartial, and independent tribunal in the determination of their rights

  • A fair trial is expeditious. [?]
  • The notion of fair trial includes the guarantee of a fair and public hearing. [?]
  • A violation of the right to a fair and public hearing requires an effective remedy. [?]
  • Any body that meets the criteria of impartiality and independence can be considered a tribunal. [?]
  • Impartiality requires that judges act without bias, and that the tribunal appears unbiased to the reasonable observer. [?]
  • A fair trial entails the absence of influence. [?]
  • A situation in which the executive and the judiciary are not clearly distinguishable is incompatible with the notion of an independent and impartial tribunal. [?]
  • In the determination of suits at law the independence and impartiality of tribunals is an absolute right. [?]
  • The right to a public hearing must be protected except for specific and objective reasons as determined by law. [?]
  • Everyone is entitled to a fair and public hearing by a competent, impartial, and independent tribunal in determination of his/her rights. [?]

The proceedings of any complaints were transparent, and all parties to the complaint were given an equal opportunity to present evidence

  • Proceedings on complaints and appeals must be transparent. [?]
  • The opportunity should exist to present evidence in support of a complaint. [?]

The Right to an Effective Remedy, Including Challenging Election Results

  • Relevant Election Parts:
  • Electoral Dispute Resolution

Forum shopping was discouraged

  • Appeal channels, when available, should be narrowly constructed to avoid "forum shopping." [?]

A remedy was available for violations of the right to a fair and public hearing

  • A violation of the right to a fair and public hearing requires an effective remedy. [?]

Transparent Dispute Resolution Process

  • Relevant Election Parts:
  • Electoral Dispute Resolution

Complaints processes were transparent, and the opportunity to present evidence in support of a complaint existed

  • Proceedings on complaints and appeals must be transparent. [?]
  • The opportunity should exist to present evidence in support of a complaint. [?]

Sources

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