CCPR/C/GC/32
Page 4
only the prosecutor, but not the defendant, is allowed to appeal a certain decision.14 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.15 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.
14.
Equality before courts and tribunals also requires that similar cases are dealt with in
similar proceedings. If, for example, exceptional criminal procedures or specially constituted
courts or tribunals apply in the determination of certain categories of cases,16 objective and
reasonable grounds must be provided to justify the distinction.
III. FAIR AND PUBLIC HEARING BY A COMPETENT, INDEPENDENT AND
IMPARTIAL TRIBUNAL
15.
The right to a fair and public hearing by a competent, independent and impartial
tribunal established by law is guaranteed, according to the second sentence of article 14,
paragraph 1, in cases regarding the determination of criminal charges against individuals or of
their rights and obligations in a suit at law. Criminal charges relate in principle to acts declared
to be punishable under domestic criminal law. 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.17
16.
The concept of determination of rights and obligations “in a suit at law” (de caractère
civil/de carácter civil) is more complex. It is formulated differently in the various languages of
the Covenant that, according to article 53 of the Covenant, are equally authentic, and the travaux
préparatoires do not resolve the discrepancies in the various language texts. The Committee
notes that the concept of a “suit at law” or its equivalents in other language texts is based on the
nature of the right in question rather than on the status of one of the parties or the particular
forum provided by domestic legal systems for the determination of particular rights.18 The
concept encompasses (a) judicial procedures aimed at determining rights and obligations
pertaining to the areas of contract, property and torts in the area of private law, as well as (b)
equivalent notions in the area of administrative law such as the termination of employment of
civil servants for other than disciplinary reasons,19 the determination of social security benefits20
or the pension rights of soldiers,21 or procedures regarding the use of public land22 or the taking
Communication No. 1086/2002, Weiss v. Austria, para. 9.6. For another example of a violation of the
principle of equality of arms see Communication No. 223/1987, Robinson v. Jamaica, para. 10.4
(adjournment of hearing).
15
Communication No. 846/1999, Jansen-Gielen v. The Netherlands, para. 8.2 and No. 779/1997, Äärelä
and Näkkäläjärvi v. Finland, para. 7.4.
16
E.g. if jury trials are excluded for certain categories of offenders (see concluding observations, United
Kingdom of Great Britain and Northern Ireland, CCPR/CO/73/UK (2001), para. 18) or offences.
17
Communication No. 1015/2001, Perterer v. Austria, para. 9.2.
18
Communication No. 112/1981, Y.L. v. Canada, paras. 9.1 and 9.2.
19
Communication No. 441/1990, Casanovas v. France, para. 5.2.
20
Communication No. 454/1991, Garcia Pons v. Spain, para. 9.3
21
Communication No. 112/1981, Y.L. v. Canada, para. 9.3.
22
Communication No. 779/1997, Äärelä and Näkkäläjätvi v. Finland, paras. 7.2 – 7.4.
14