Earlier this year, Brazil’s Rio de Janeiro State Court approved the formation of special ‘faceless’ courts in an attempt to offer greater protection to judges involved in corruption and organised crime cases. Threats to the judiciary’s security are a serious challenge for the justice system, but does it warrant compromising the principle of a fair trial?
Brazil’s new framework will have a number of unique features. Each case will be presided over by three judges on a rotational basis to reduce the risk of a single judge being associated with a particular case. The identity of the judges will be concealed in an attempt to protect them from potential threats.
This is not the first time that something like this has been used. The identity of judges was kept a secret in Colombia in the 1990s to protect them from intimidation and threats. The judges sat behind a one-way mirror and their voices were distorted. A code number was used in lieu of a signature. The practice was controversial because it risked infringing the right to a fair trial. There were grave concerns about the implications of faceless trials – witnesses also had to be protected, so their identities were concealed too. As a result, defence lawyers had no opportunity to cross-examine witnesses.
The right to a fair trial is enshrined in the Universal Declaration of Human Rights, whereby signatory states affirm their commitment to upholding the fundamental rights of individuals. Civil and political rights, such as the right to a fair trial, are enshrined in the International Covenant on Civil and Political Rights, a follow-up international treaty that sets out binding obligations undertaken by signatory states to guarantee the rights therein.
The Human Rights Committee, the supervisory body in charge of overseeing the enforcement of rights contained in the International Covenant on Civil and Political Rights, has acknowledged the tension between due process and the extraordinary circumstances in which judges face threats to their security. While states can theoretically derogate from the right to a fair trial, this must be limited to what is strictly necessary. Compromising the independence and impartiality of the judicial process seems to defeat the purpose of having a trial in the first place.
In a case before the Human Rights Committee in 2006, the committee considered various factors. The accused in the case was not allowed to be present or defend himself during the trial and had no opportunity to question prosecution witnesses, which led the committee to conclude that his right to a fair trial had been violated. In another case, the Human Rights Committee pointed out ‘a cardinal aspect of a fair trial within the meaning of article 14 of the Covenant: that the tribunal must be, and be seen to be, independent and impartial’.
In light of the substantial criticism and controversy surrounding ‘faceless trials’ in the past, it is unclear whether the initiative in Brazil will achieve its aim. There is a risk that in an attempt to uphold justice, Brazil will actually take a step backwards.