What is the Fair Trial?
A trial is a process by which a court decides on the innocence or guilt of an
accused person. Fair trial is not a favour afforded to the supplicant at law but
a bundle of legally enforceable rights guaranteed by the state to its citizens,
for whom the state itself exists. The principle of a fair trial is put in basic
terms of certain rights such as the right to remain silent, the prohibition of
double jeopardy, the right to legal counsel, the right to be notified of
charges, and so on. However the principle is broader than the sum of these
This means that the right to a fair trial includes the notion that each
individual must be able to make use of his procedural rights regardless of his
individual capabilities. Seeking to refine the quality of justice at every turn,
fair trial norms are nuanced to afford particular protection to the more
vulnerable and greatly disadvantaged who may come before the law, whether as
witnesses, victims or accused.
These rights, constitutionally guaranteed, compel and cast a legal duty on the
judge to ensure that they are respected realised and never violated. A trial
primarily aimed at ascertaining truth has to be fair to all concerned which
includes the accused, the victims and society at large. Each person has a right
to be dealt with fairly in a criminal trial. Denial of a fair trial is as much
injustice to the accused as it is to the victim and society.
It is better that ten guilty escape than one innocent suffers. This quote
reflects the principle, known in criminal law as Blackstone’s Formulation named
after English jurist William Blackstone, that there is hardly anything more
undesirable in a legal system than the wrongful conviction of an innocent
This is because the consequences of convicting an innocent person are
so significantly serious that its reverberations are felt throughout a civilised
society. For example, the sentence served by an innocent person cannot be
erased by any subsequent act of annulment. Thus, to ensure as far as possible
that no court will wrongfully convict an innocent person, an accused person is
presumed innocent until proven guilty, with the prosecution bearing the burden
of establishing the facts necessary to prove guilt.
Fair Trial In India
All criminal trials are based on the principle that the accused is innocent till
proved guilty. The presumption of innocence is a cardinal principle of Indian
legal system and a basic right of the accused person. The presumption must stand
and be the guiding principle right from the moment of suspicion, through
investigation, throughout the trial process and till the delivery of the
verdict. Criminal procedure is built around the principle of innocent until
and is designed to protect this right. When it is said that a
defendant to a criminal charge is presumed to be innocent, what is really meant
is that the burden of proving his guilt lies on the prosecution.
Arguments that there is nothing wrong per se in shifting the burden of proof on
to the accused, especially where grave offences are involved, have not found
favour in our legal system, where the notion of being innocent until proven
guilty is considered as important as the liberty of the individual. Over time,
the pronouncements of the Supreme Court have consistently reaffirmed that the
presumption of innocence is a human right.
The Apex Court in P.N. Krishna Lal v Government of Kerala
clarified that the
principle of presumption of innocence is entrenched in the Indian Constitution,
the Universal Declaration of Human Rights and the Civil and Political Rights
Convention, to which India is a member, guarantee fundamental freedom and
liberty to an accused person. The procedure prescribed for trial must also stand
the test of the rights guaranteed by those fundamental human rights.7
criminal jurisprudence, the settled law is that the prosecution must prove all
the ingredients of the offences for which the accused has been charged. The
proof of guilt of the accused is on the prosecution and must be beyond
At no stage of trial is the accused under an obligation to
disprove his innocence. Unlike in a trial of civil action, the burden of proof
of a case always rests on the prosecution and it never gets shifted.…To place
the entire burden on the accused to prove his innocence, therefore, is
arbitrary, unjust and unfair infringing, violating the guarantee under Article
Section 101 of the Indian Evidence Act further reinforces this right, by
providing that whoever desires a court to give judgement as to any legal right
or liability dependent on the existence of facts which he asserts, must prove
those facts.8 Thus, if the state wishes to convict an individual of an alleged
crime, the state carries the burden of firmly establishing and proving the
To protect this right to be presumed innocent, Section 161(2) of the Code of
Criminal Procedure permits persons questioned by the police to refrain from
answering questions which might expose them to criminal penalty.9 Imprisonment
without regard to procedures intended to protect the right to remain silent is
unconstitutional under Article 21.
Ram Gopal v State of Maharashtra
(1972) 4 SCC 625
Facts: The appellant Ram Gopal was charged with the murder of Zingrooji Sita
Ram. It was established that Sita Ram was poisoned and died on his way to the
hospital. The prosecution argued that Ram Gopal had administered the victim some
insecticide in kerosene oil either with tea or in water and it was a result of
the poisonous insecticide that Sita Ram died. The post-mortem report suspected
death by poisoning and a chemical analyst’s report confirmed the presence of an
organo-chloro compound in the viscera of the deceased.
The prosecution argued
that the defendant’s motive to murder Sita Ram was established by the fact that
prior to his death Sita Ram had sold a piece of land to Ram Gopal. However Ram
Gopal had not paid him anything but had promised to pay the amount within six
weeks of the execution of the sale deed. Despite constant pestering, Ram Gopal
kept putting off Sita Ram on some pretext or the other.
prosecution’s case relied on the post-mortem chemical analysis of the viscera
which showed the presence of an organo-chloro compound. It argued that the
deceased had sickened and died after a visit to the accused.
Opportunity and the
means of death had been established. Ram Gopal was sentenced to death by the
Sessions Judge Nagpur and this was confirmed by the High Court of Bombay (Nagpur
Bench). In appeal to the Supreme Court against the death sentence the Apex Court
stated that the prosecution’s case had too many gaps.
There was no evidence to
show that the accused was ever in possession of any organo-chloro compound. It
was improbable that such a large dose of a kerosene-based poison that was fatal
could have been consumed by the victim without noticing it and other
possibilities like suicide had not been ruled out.
This was sufficient to give
the accused the benefit of doubt and the Apex Court reversed the verdict of the
lower courts. The case is illustrative of the need to keep in mind that not only
must every fact be established along with the mens rea required, but that the
prosecution must be able to link the sequence of events and rule out other
probable causes for the occurrence. Here the Supreme Court felt that there may
have been other causes for the death of the victim and therefore the beyond
reasonable doubt degree of proof had not been met.
Kali Ram v State of Himachal Pradesh
AIR 1973 SC 2773
Kali Ram was convicted of two murders. He appealed his conviction in the Supreme
Court. The prosecution’s case rested on three pieces of evidence.
- First, a witness testified that Kali Ram had spent the night near the
victims’ residence, and on the evening of the crime was seen heading toward
the victims’ house.
- Second, the prosecution asserted that they had a written confession from
Kali Ram which he had mailed to the police station.
- Third, the prosecution asserted that Kali Ram made an oral confession to
Noting that the accused was
entitled to the presumption of innocence requiring the prosecution to establish
guilt beyond a reasonable doubt, the Supreme Court reviewed the prosecution’s
evidence. First, the Court concluded that the evidence that Kali Ram was headed
toward the victims’ house on the night of the crime was unreliable because the
testifying witness had waited for over two months to come forward, despite
knowing of the incident, since the crime’s occurrence.
The Court found that the
prosecution did not offer a cogent explanation as to why the witness was silent
for so long. Second, the Court held that the prosecution had not verified the
authenticity of the letter of confession nor displaced the possibility that it
could have been fabricated. It was necessary for the prosecution to do that
before the letter of confession had evidentiary value. Third, the Court found
the testimony of the witness regarding the oral confession highly questionable,
as the police had hired this witness to testify. Having found all the
prosecution’s primary evidence questionable, the Court reversed the conviction,
explaining that the prosecution did not rebut the accused’s presumption of
The Supreme Court in Sharad Birdhichand Sarda v State of Maharashtra
stressed the following five golden principles 13 that must be fulfilled before the case
against an accused can be said to be fully established and called it the Panchsheel of the proof of a case based on circumstantial evidence:
The circumstances from which the conclusion of guilt is to be drawn should be
fully established. The Court stressed that the circumstances concerned must or
should and not may be established. Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a court can convict and the
mental distance between ‘may be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.
Right to Equality before the Law and Equal Treatment by the Law
The right to equality before the law and equal treatment by the law means that
discrimination is prohibited throughout the judicial proceedings. Judges and
officials may not act in a discriminatory manner when enforcing laws and they
must ensure that the rights of all are equally protected.
Fair trial under Indian Constitution
Article 14 of the Constitution states:
The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.  Article 15 lays down
the principle of non-discrimination according to which: The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.
In terms of justice delivery, the principle of equality basically has two
aspects: equal access to the courts and equal treatment at law. In its
application, this means that irrespective of religious identity, gender, caste,
class, or regional identity, every citizen appearing before a court has a right
not to be discriminated against in the course of the proceedings or the manner
in which the law is applied.
Protection in Respect of Conviction of Offences/Privilege Against
Article 20(3) of the Constitution protects the right of the accused to remain
silent by providing that: No person accused of any offence shall be compelled to
be a witness against himself.
Examination of Witnesses by Police
Section 161(2) of the Code of Criminal Procedure leaves no room for doubt when
it states that an accused is bound to answer all questions of a state official
truthfully except questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.
Further Statements of the Accused to the Court
The Code of Criminal Procedure, Section 313 further protects the right to
silence. It protects the accused from liability for refusing to answer or
falsely answering questions by a judge during a court proceeding. It says: the
accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them.
The Accused is a Competent Witness for the Defence
During a trial, the accused can be arraigned as a witness for the defence but
cannot be called on to give evidence except at their own request.28 If the
accused chooses not to give evidence, the court cannot draw any adverse
presumption against him.29
Additionally, the accused can choose not to answer
questions put to them by the court.30 Except as a condition requisite to a
tender of pardon, no influence by means of any promise or threat or otherwise
can be used on the accused to induce them to disclose or withhold any matter
within their knowledge.
Thus Sections 161, 313, 315 and 316 of the Code raise a presumption against
guilt and in favour of innocence, grant a right to silence both at the stage of
investigation and trial and also preclude any party or the court from commenting
on the silence.
Nandini Satpathy v P.L. Dani
AIR 1978 SC 1025
Ms Nandini Satpathy was accused of embezzling funds while serving as Chief
Minister of Orissa. She was made to present herself before the Deputy
Superintendent of Police (Vigilance) and provide answers to written questions.
She refused to answer the questionnaire on the grounds that it was a violation
of her fundamental right against self-incrimination. Upon refusing to answer, Ms
Satpathy was charged under Section 179 of the Indian Penal Code, 1860, which
prescribes a punishment for refusing to answer any questions asked by a public
servant authorised to ask that question. The issue before the Supreme Court was
whether Ms Satpathy had a right to silence
and whether people can refuse to
answer questions during investigation that would point towards guilt.
The Supreme Court held that Ms Satpathy had to answer all questions that did not
materially incriminate her. For questions she refused to answer, she was
required to provide, without disclosing details, her reasons for fearing that
answering such questions would result in self-incrimination. Her reasons for
invoking her right to remain silent would then be examined and she would be
liable for prosecution under Section 179 if it was determined that she refused
to answer a question under the false pretence of self-incrimination.
Narco Analysis, polygraph and brain mapping tests have been hotly contested
legal issues in India. Various High Courts have given conflicting rulings on
these issues. It is no longer so. The Supreme Court has now held that these
tests cannot be administered on any accused without their consent. Further, the
courts should not take the process of obtaining the consent of the accused
lightly. The courts must ensure that the consent of the accused for such tests
is in fact voluntary. For this purpose, the Supreme Court has not only endorsed
the guidelines issued by the National Human Rights Commission in this regard but
has held them as binding.
The Supreme Court in Selvi and others v State of Karnataka held that: The
compulsory administration of the impugned techniques violates the ‘right against
self-incrimination’. This is because the underlying rationale of the said right
is to ensure the reliability as well as voluntariness of statements that are
admitted as evidence.
The Court also stated that: Forcing an individual to undergo any of the impugned
techniques violates the standard of ‘substantive due process’ which is required
for restraining personal liberty. Such a violation will occur irrespective of
whether these techniques are forcibly administered during the course of an
investigation or for any other purpose, since the test results could also expose
a person to adverse consequences of a non-penal nature.
The Court further said:
The protective scope of Article 20(3) extends to the investigative stage in
criminal cases and when read with Section 161(2) of the Code of Criminal
Procedure, 1973 it protects accused persons, suspects as well as witnesses who
are examined during an investigation. The test results cannot be admitted in
evidence if they have been obtained through the use of compulsion.
Upholding the right to remain silent, guaranteed by Article 20(3) of the
Constitution, the Supreme Court held that the forcible conveyance of personal
knowledge that is relevant to the facts in issue violates Article 20(3) of the
In the concluding paragraph of the Selvi case
, the Supreme Court held the Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an
issued by the National Human Rights Commission in 2000, as binding.
Protection Against Ex-Post Facto LawArticle 20(1) of the Constitution states:
No person shall be convicted of any
offence except for violation of a law in force at the time of the commission of
the Act charged as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the
commission of the offence.
However, courts can still apply repealed criminal statutes if the accused
committed the crimes prior to such statute’s repeal.47 Illustratively, persons
charged under the Terrorism and Disruptive Activities Act (TADA) and Prevention
of Terrorism Act (POTA) continue to languish in jail even though the laws have
been repealed, and they will be tried and sentenced under those laws. Courts can
as well, apply a repealed statute to crimes committed after to the repeal if by
trial time a new statute is in force that revives the earlier statute’s rule.
G.P. Nayyar v State (Delhi Administra
tion) AIR 1979 SC 602
Two public officials were tried in 1973 for criminal conspiracy and illegal
gratification under the Prevention of Corruption Act, 1947, for allegedly
accepting bribes from 1955 to 1961. The accused appealed to the Supreme Court
claiming that the burden of proof applied to their trial mandating that the
court presume the accused guilty unless proved otherwise was in violation of
Article 20(1), as in 1964 the legislature had repealed the relevant statute
which applied this standard.
The Supreme Court denied the appeal, explaining
that repealed statutes remain applicable to crimes committed before the
statute’s repeal. Also, here, the repealed statute was revived by a subsequent
statute in 1967, thus further allowing for application of the rule even during
the repeal period for acts committed before the repeal.
Right to be Tried by a Competent, Independent & Impartial Tribunal
All major human rights instruments, and our own Constitution and legal system
insist on the fundamental human right of an accused to be tried before a
competent, independent and impartial tribunal. This is an essential aspect of
any fair trial. The independence of the judiciary is one of the pillars of the
rule of law. Independence is essential for the protection of fair trial
standards. The principle of an independent judiciary requires that a judge can
make every decision without the intervention of the government.
Court decisions can be only reviewed by higher courts. The impartiality and
independence of the courts may be guaranteed by ensuring that a judge hearing a
case has no relationship with either party that may affect the decision-making
process. Judges are required to view both parties in a fair and equal manner
making an objective decision based solely on the facts and evidence of the case.
The guarantee of a competent, impartial and independent judiciary grounds the
rule of law because it assures citizens of a body outside the legislature and
the executive – that is outside the law maker and the law enforcer – to
adjudicate on legality and disputes. It also ensures that the rights of the
individual in dispute with the law will be adjudicated by a neutral authority.
Fair Trial In USA, African and European countries
The main instrument dealing with the pre-eminent international legal standards
on the subject of fair trial rights is the International Covenant on Civil and
Political Rights (ICCPR). The ICCPR is a United Nations treaty created in 1966
and entered into force on 23 March 1976. Nations that ratified this treaty are
bound by it. The ICCPR is monitored by the Human Rights Committee, a group of 18
experts who meet thrice a year to consider periodic reports submitted by member
states on their compliance with the treaty.
India ratified the ICCPR in 1979, meaning that India is committed to upholding
all the rights it guarantees. Many of the rights contained in the ICCPR relate
to the criminal justice system – whether in relation to the pre-trial, trial or
post-trial stage. Many of the safeguards provided in Indian law are also
mandated by international law.
The Universal Declaration of Human Rights (UDHR) lays down the common standard
to be met by all nations. Article 11(1) states:
Everyone charged with a penal
offence has the right to be presumed innocent until proved guilty according to
law in a public trial at which he has had all the guarantees necessary for his defence.
Indian law is precisely in line with Article 14(2) of ICCPR which
states: Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.
Article 15(1) of the ICCPR states:
No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
offence, under national or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the
time when the criminal offence was committed. If, subsequent to the commission
of the offence, provision is made by law for the imposition of the lighter
penalty, the offender shall benefit thereby. In addition to the ICCPR espousing
this principle, several international criminal statutes have adopted
non-retroactivity, including the Rome Statute of the International Criminal
Article 9(1) of the ICCPR sets forth several provisions that essentially mirror
the principles in Indian domestic law.
47 Article 9(1) of the ICCPR reads as follows:
Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law.
Further to this, Article 9(2) of the ICCPR provides that: Anyone who is
arrested shall be informed, at the time of arrest, of the reasons for his arrest
and shall be promptly informed of any charges against him
. This asserts more or
less the same basic principle stated under Indian law.
The major legal provisions on fair trial are to be found in article 14 of the
International Covenant on Civil and Political Rights, article 7 of the African
Charter on Human and Peoples’ Rights, article 8 of the American Convention on
Human Rights and article 6 of the European Convention on Human Rights. The
relevant provisions of these articles will be dealt with below under the
The right to be tried by an independent and impartial tribunal must be applied
at all times and is a right contained in article 14(1) of the International
Covenant on Civil and Political Rights, which provides that in the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
Although article 7(1) of the African Charter on Human and Peoples’ Rights speaks
only of a competent
(art. 7(1)(b)) or impartial
court or tribunal, article 26 of the Charter imposes a legal duty on the States
parties also to guarantee the independence of the Courts
. Article 8(1) of
the American Convention refers to a competent, independent, and impartial tribunal,
previously established by law
, and article 6(1) of the European Convention
on Human Rights to an independent and impartial tribunal established by law
article 40 of the Statute of the International Criminal Court provides that the
judges shall be independent in the performance of their functions and that they shall not engage in any activity which is likely to interfere with their
judicial functions or to affect confidence in their independence.
The right to a fair hearing
The notion of a fair
hearing is contained both in article 14(1) of the
International Covenant on Civil and Political Rights and in article 6(1) of the
European Convention on Human Rights, while article 8(1) of the American
Convention on Human Rights speaks of due guarantees
The African Charter on Human and Peoples’ Rights provides no specification in
this respect, but it should be pointed out that, according to article 60 of the
Charter, the African Commission on Human and Peoples’ Rights shall draw inspiration
from other international
instruments for the protection of human and peoples’ rights, a provision that
enables the Commission to be inspired, inter alia, by the provisions of article
14 of the International Covenant on Civil and Political Rights when interpreting
the trial guarantees laid down in article 7 of the Charter.
Articles 20(2) and 21(2) of the respective Statutes of the International
Criminal Tribunals for Rwanda and the former Yugoslavia both provide that the
accused shall be entitled to a fair and public hearing in the determination of
charges against him or her, although with the proviso that the protection of
victims and witnesses may require measures which shall
include, but shall not be limited to, the conduct of in camera proceedings and
the protection of the victim’s identity
(arts. 21 and 22 of the respective
Statutes). The rights of the accused as contained in these Statutes are heavily
inspired by article 14 of the International Covenant.
Fairness from the point of view of the victims
The so-called Street Children
case against Guatemala concerned the
abduction, torture and murder of four street children
, the killing of a fifth, and the
failure of State mechanisms to deal appropriately with these violations and
provide the victims’ families with access to justice. Criminal proceedings were
instituted but nobody was punished for the crimes committed. The
Inter-American Court of Human Rights concluded that the relevant facts
constituted a violation of article 1(1) of the American Convention on Human
Rights in relation to its article 8, since the State had failed to comply
with the obligation to carry out an effective and adequate investigation of the
, i.e. the abduction, torture and murder of the victims.5
According to the Court, the domestic proceedings had two types of serious
- first, investigation of the crimes of abduction and torture
was completely omitted, and
- second, evidence that could have been very important for the due
clarification of the homicides was not ordered, practised or evaluated.
, It was thus evident that the domestic judges had fragmented the
probative material and then endeavoured to weaken the significance of each and
every one of the elements that proved the responsibility of the defendants,
item by item, and that this
contravened the principles of evaluating evidence, according to which, the
evidence must be evaluated as a whole, ... taking into account mutual
relationships and the way in which some evidence supports or does not support
other evidence. In this case the Court also importantly emphasized that
it is evident from article 8 of the Convention that the victims of human
rights violations or their next of kin should have substantial possibilities of
being heard and acting in the respective proceedings, both in order to clarify
the facts and punish those responsible, and to seek due reparation.
The case of Brandstetter
In the case of Brandstetter, which concerned defamation proceedings, the Vienna
Court of Appeal had relied on submissions of the Senior Public Prosecutor which
had not been sent to the applicant and of which he and his lawyer were not even
aware. For the Court, it did not help in this case that the Supreme Court had
subsequently quashed the relevant appeal court judgement: in its view an
indirect and purely hypothetical possibility for an accused to comment on
prosecution arguments included in the text of a judgement can scarcely be
regarded as a proper substitute for the right to examine and reply directly to
submissions made by the prosecution
Furthermore, the Supreme Court did not
remedy this situation by
quashing the first judgment since its decision was based on a ground entirely
unrelated to the matter in issue
The right to equality of arms or the right to truly adversarial proceedings in
civil and criminal matters forms an intrinsic part of the right to a fair
hearing and means that there must at all times be a fair balance between the
prosecution/plaintiff and the defence. At no stage of the proceedings must any
party be placed at a disadvantage vis-à-vis his or her opponent.
The right to be tried without undue delay
or within a reasonable time
According to article 14(3)(c) of the International Covenant and articles
20(4)(c) and 21(4)(c) of the respective Statutes of the International Criminal
Tribunals for Rwanda and the former Yugoslavia, every person facing a criminal
charge shall have the right to be tried without undue delay
In the words of article 7(1)(d) of the African Charter, article 8(1) of the
American Convention and article 6(1) of the European Convention, everyone has
the right to be heard within a reasonable time.
What it means to be tried without undue delay
: In General Comment
No. 13, the Human Rights Committee stated that the right to be tried without
delay is a guarantee that relates not only to the time by which a trial should
commence, but also the time by which it should end and judgement be rendered;
all stages must take place ‘without undue delay
To make this right effective, a procedure must be available in order to ensure
that the trial will proceed ‘without undue delay’, both in first instance and on
appeal.60 This view has been further emphasized in the Committee’s
jurisprudence, according to which article 14(3)(c) and (5) are
read together, so that the right to review of conviction and sentence must be
available without delay
Key Women’s Rights Issues
Violence against women has been defined to include any act of gender-based
violence that results in, or is likely to result in, physical, sexual or mental
harm or suffering to Freedom from violence and fear of violence is essential to
the full enjoyment of all human rights. Under international human rights law,
States have an obligation to refrain from committing acts of violence against
women (for example, the State is responsible for ensuring that oldiers do not
commit rape) and to put in place laws and policies to prevent others from doing
the same (such as by criminalizing domestic violence).
The Inter-American Court of Human Rights examined Mexico’s responsibility for
violations of both the American Convention on Human Rights and the Convention of
Belém Do Pará in connection with a wave of murders and disappearances of girls
and women in Ciudad Juarez.
The Court found the State responsible for violating the victims’ rights to life,
humane treatment, personal liberty, due process, and judicial protection in
relation to its obligation under the Convention of Belém do Pará to prevent,
punish and eradicate violence against women.
Sexual violence includes rape, enforced prostitution, and other forms of sexual
assault. As with other forms of violence, as described above, States have an
obligation to prevent State actors from committing sexual violence against
women, as well as a duty to adopt laws and policies to prevent such abuses by
private persons and to ensure the e_ective investigation and prosecution of
In Aydin v. Turkey
,  The European Court of Human Rights has
interpreted the European Convention on Human Rights to require States to
establish and apply e_ectively a criminal-law system punishing all forms of
rape and sexual abuse.
ECtHR, M.C. v. Bulgaria, 
The European Court also recognized a positive State obligation to investigate
allegations of rape. It noted that the victim’s medical examination had
improperly focused on whether she was a virgin rather than on whether she had
been raped and found that a person alleging rape must be examined with all
appropriate sensitivity, by medical professionals with particular competence in
this area and whose independence is not circumscribed by instructions given by
the prosecuting authority as to the scope of the examination.
Similarly, the European Court found Turkey responsible for violating Article 3
(prohibition on inhuman treatment) when police failed to provide appropriate
medical examinations to a woman in custody and the government could not oer a
plausible explanation for the injuries she had sustained in detention.
And in a third Turkish case, the European Court condemned State agents’
application of virginity tests without medical or legal necessity to women in
detention, as well as the government’s failure to investigate the women’s
allegations of ill treatment. 
Sexual Violence in Conflict Zones
Sexual violence against women is especially prevalent in conflict zones.
Militaries and rebel groups have used rape and other forms of sexual violence
as a military tactic against civilian populations. In 2013, the UN Security
Council adopted Resolution 2106, which recognized the need for collective action
by States, civil society and international actors to implement preventative
measures, protect civilians during conflict, and punish perpetrators.
The African Commission on Human and Peoples’ Rights has condemned armed forces’
use of sexual violence as a military tactic against civilian populations. 
In the case of D.R. Congo, armed forces of Burundi, Rwanda, and Uganda raped and
killed women in the Democratic Republic of Congo, among other violations.
The Democratic Republic of Congo also alleged that the Rwandan and Ugandan
forces specifically attempted to decimate local populations by spreading AIDS
through the rape of Congolese women and girls. Id. at para. 5. The African
Commission found violations of the First Protocol Additional to the Geneva
Conventions and the Convention on the Elimination of All Forms of Discrimination
against Women, and the African Charter on Human and Peoples’ Rights.
Sexual violence may also constitute a crime against humanity, and the
international criminal tribunals for both Rwanda and the former Yugoslavia have
prosecuted individuals in connection with sexual violence committed against
women during conflict. 
Female Genital Mutilation
As described by the World Health Organization (WHO), the practice of female
mutilation (FGM) includes procedures that intentionally alter or cause injury to
the female genital organs for non-medical reasons.
Economic, Social and Cultural Rights (CECSR) has interpreted Article 12 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) to
require States parties to the ICESCR to protect women from being coerced to
participate in this harmful cultural practice.
Domestic violence may be emotional, psychological, physical, or sexual. Although
this kind of abuse involves relationships between individuals and generally
takes place in the private sphere, States still have a positive obligation to
provide legal mechanisms to protect women from domestic violence, including the
investigation and prosecution of those responsible.
- Letter from Benjamin Franklin to Benjamin Vaughan, 14 March 1785.
- Kali Ram v State of Himachal Pradesh 1973 AIR SC 2773.
- Ibid., para. 28.
- William Glanville, The Proof of Guilt; edn. 3, Stevens, 1963, pp. 184
- Narendra Singh and Anr. v State of Madhya Pradesh, (2004) CrLJ (2842),
- Constitution of India, Article 14.
- Constitution of India, Article 15(1).
- AIR 2010 SC 1974.
- Constitution of India, Article 20
- The Human Rights Committee is a body of independent experts that
monitors the implementation of the International Covenant on Civil and
Political Rights by its state parties.
- Rome Statute of the International Criminal Court, Art. 22, UN Doc.
A/CONF. 183/9 (17 July 1998).
- ICCPR, supra note 47, Article 9(2).
- A Court HR, Villagrán Morales et al. Case (The Street Children Case)
v. Guatemala, judgment of November 19, 1999, Series C, No. 63,p. 198, para.
- 7Ibid., p. 198, para. 233.
- Eur. Court HR, Case of Brandstetter v. Austria, judgment of 28 August
1991, Series A, No. 211, p. 28, para. 68.
- Eur. Court HR, Case of Lobo Machado v. Portugal, judgment of 20 February
1996, Report 1996-I, pp. 206-207, paras. 31-32.
- Communications Nos. 210/1986 and 225/1987, E. Pratt and I. Morgan v.
Jamaica (Views adopted on 6 April 1989), in UN doc.GAOR, A/44/40, p. 229,
- UN G.A. Res. 48/104, Declaration on the Elimination of Violence against
Women, A/RES/48/104, 20 December 1993, art. 1.
- I/A Court H.R., González et al. (Cotton Field) v. Mexico. Preliminary
Objection, Merits, Reparations, and Costs. Judgment of November 16, 2009.
Series C No. 205, para. 232 et seq.
- ECtHR, no. 23178/94, Rep. 1997-IV, Judgment of 25 September 1997.
- no. 39272/98, ECHR 2003-XII, Judgment of 4 December 2003.
- Algür v. Turkey, no. 32574/96, Judgment of 22 January 2002
- Salmanoğlu and Polattaş v. Turkey, no. 15828/03, Judgment of 17 March
- UN S.C. Res. 2106, S/RES/2106, 24 June 2013.
- D.R. Congo v. Burundi, Rwanda, and Uganda, Communication No. 313/05, 33
Ordinary Session, May 2003.
- Women and Armed Conflict (2000); Prosecutor v. Akayesu
- General Comment No. 14, The Right to the Highest Attainable Standard of
Health, UN Doc. E/C.12/2000/4, 11 May 2000, paras. 22 and 35.
- Jessica Lenahan (Gonzales) et al. (United States), 21 July, 2011
Written by: Sayed Qudrat Hashimy - Student of 1st year LLM (International
Law) Department of Studies, at University of Mysore, India - Email: [email protected]
Mobile no.+91-9008813333 - +93700383333