The right to silence and the presumption of innocence are fundamental to fair criminal proceedings. Section 313 of the Code of Criminal Procedure, 1973 (CrPC) permits courts in India to question the accused, allowing them to explain incriminating evidence. However, judicial interpretations of this provision have raised concerns about undermining these essential rights. This paper critically examines the evolving interpretations of Section 313 of the CrPC and their implications for the right to silence and the presumption of innocence. It argues that current judicial practices have turned the right to remain silent into a duty to provide explanations, contradicting natural justice principles. This study addresses three key questions: (1) How has the interpretation of Section 313 of the CrPC evolved in Indian jurisprudence, and what impact does this have on the accused’s right to remain silent? (2) In what ways does the current application of Section 313 of the CrPC conflict with Article 20(3) of the Constitution, which protects against self-incrimination? (3) What are the potential consequences of misapplying Section 313 on the presumption of innocence, and how can these issues be remedied through judicial or legislative reforms? The paper concludes with recommendations to preserve the integrity of the criminal justice system and ensure robust protection of the right to silence and the presumption of innocence.

Following a public outcry about Eric Aniva being hired to have sex with children, he was arrested, tried and convicted of attempting to engage in a harmful practice and also of engaging in a harmful practice, contrary to Malawi's Gender Equality Act. Aniva's trial attracted significant public attention and highlighted kulowa kufa, the cultural practice at the centre of his trial. This article revisits Aniva's trial. By focusing on the operation of the law in judicial processes as well as the dynamics of judicial decision-making, it demonstrates and concludes that Aniva's trial may have been compromised. Specifically, the article analyses the state's failure to identify and parade material witnesses notwithstanding the alleged multiplicity of Aniva's victims, the role of the media in the trial as well as the probable effects of the trial court's selective recourse to international human rights standards.

Although fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings before the courts of the seat of arbitration on the grounds of unequal treatment, and before human rights bodies such as the European Court of Human Rights. Moreover, it has always been difficult to reconcile contractual freedom and the advantages offered by arbitration with equal treatment and fair trial claims. This article demonstrates the existence of a set of general principles concerning the meaning and content of equal treatment, which are consistent with its commercial (and civil procedure) and human rights dimensions. The basis of this conclusion is Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as consistently interpreted and adapted by local laws and judgments, arbitral statutes and determinations by the European Court of Human Rights.

Over the past two decades, there have been significant legal developments aimed at securing and enhancing the participation of vulnerable witnesses in criminal trials. Yet, there remains relatively little regard for the fact that many defendants, including those who are not deemed to be vulnerable, are unable to participate in criminal proceedings in a meaningful sense. This paper aims to address two questions. First, why should defendants have participatory rights and be capable of meaningful participation in criminal proceedings? Second, why has it proven so difficult to attain meaningful participation of defendants? It is contended that barriers to meaningful communication between the defendant and the court could be dismantled without great difficulty, but continue to exist because due regard is not given to the normative rationales for participatory rights and defendant participation.

The retention and use of the death penalty, especially the mandatory death penalty, continues to be an issue of controversy and concern in Africa and elsewhere. Accordingly, African states are slowly but increasingly moving away from the death penalty, with many of them abolishing it either de facto or de jure, or limiting its use, with some finding its mandatory application to be unlawful. This article considers the recent Supreme Court of Kenya decision that declared the mandatory nature of the death penalty as provided for under the country's Penal Code to be unconstitutional. However, it argues that, while declaring the mandatory death penalty to be unconstitutional is commendable and a promising step on the path towards the abolition of the death penalty, the death penalty remains available as a punishment, with serious human rights implications if procedural safeguards are not followed.

The Monsanto International Tribunal, a creation of civil society, sat at The Hague in October 2016. In its “Advisory Opinion” of 18 April 2017, this popular tribunal assessed Monsanto’s conduct under international law with regard to the right to a healthy environment, the right to food, the right to health, scientific freedom, as well as war crimes and ecocide. This article analyzes that opinion and situates it in its international legal context. Given that Monsanto did not participate in the proceedings, the question of a fair trial — which can have a decisive impact on the content of the opinion — is the first issue examined. In regard to the opinion itself, the findings are measured: the Tribunal concluded that Monsanto clearly violated human rights, but not international criminal law under existing legal standards. Given that, the Tribunal suggested two measures to redress the imbalance of the international legal order: on the one hand, to establish a hierarchy in favour of human rights and, on the other hand, to make companies direct bearers of international obligations deriving from these rights.

How to understand and deal with the principle of mutual trust, its emanations, interpretations, and imperatives has in recent years become one of the central and most critical issues in the development of the Area of Freedom Security and Justice (AFSJ). Civil justice may be the dark horse with respect to mutual trust among the policy areas of the AFSJ in the sense that it may show useful but hitherto hidden possibilities and have an un-tipped winning strategy. In particular, the balancing safeguards in legislation, the importance of which have been confirmed in case law, are important to ensure the fundamental right to a fair trial. However, that does not mean that mutual trust does not pose challenges in the context of civil justice. Hence, it remains important to focus on how—normatively, and by which regulatory means—to support mutual trust as well as how to balance, and perhaps limit, its implementation in order to enhance its legitimacy. In addition, the recent pressures towards harmonisation need to be carefully analysed.

The use of proportionality and balancing by the European Court of Human Rights (ECtHR) is inconsistent and does not provide clear guidelines from which policies can be drafted that could strike a fair balance between individual rights and public interests while not impairing the essence of the rights at stake. While ad hoc and unprincipled balancing may be justified on the theoretical level, on the practical level a policymaker seeking to understand which infringements constitute clear violations of the European Convention on Human Rights (ECHR) is left confused. This article adds clarity to this state of bewilderment by breaking down several aspects of the ECHR rights to a fair trial into clear-cut ‘red lines’, or minimum thresholds of protection. Overstepping those could result in a violation of the right concerned. Identifying these red lines is intended to assist legislators and policymakers in drafting laws and policies that conform with the obligations of their states under the ECHR, and to instruct policymakers outside the member states of the Council of Europe. Because of its unique characteristics, as well as the volume and breadth of its case law, the jurisprudence of the ECtHR can be a lodestone for the consolidation of an international human rights community based on shared values. The unique contribution of this article is the assessment of ECtHR jurisprudence not only on its own merits, but also in comparison with the jurisprudence of other international courts.

This article introduces some quantitative and qualitative analysis on the use of written witness statements in lieu of oral testimony at trial to assess in practice the impact of the rules on the admissibility of written witness testimony before the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone. It traces pieces of evidence admitted under the newer, more liberal, rules on written witness testimony from admissibility to judgment, to establish what impact, if any, these rules have had in practice and whether the critique that such rules might jeopardize fair-trial standards has been realized. The analysis illustrates that the newer rules on admissibility are used with relative infrequency in some tribunals, but that the admission of such statements could raise the question of equality of arms in others, given that the more liberal rules on written statements tend to be used more frequently by the prosecution than by the defence. It will be shown that some chambers have continued to emphasize the importance of oral testimony and have taken a very cautious approach when weighing written testimony, whilst others have suggested that written testimony that was not subject to full cross-examination should not, in principle, be given less weight than oral testimony. The ‘totality of the evidence’ approach in weighing the evidence will be analysed from a practical standpoint, and it will be shown that recent Appeals Chamber jurisprudence suggests that trial chambers may need to take a more particularized approach to pieces of evidence in the future.