Part 2 – Bill of Rights
Division 3 – Protection of the fundamental rights and freedoms
Subdivision A – Protection Generally
22 Protection of Law
(1) This section shall be read subject to the provisions of this Part, and in particular to —
(a) section 31 (disciplined forces of Tuvalu); and
(b) section 32 (foreign disciplined forces); and
(c) section 33 (hostile disciplined forces).
(2) If a person is charged with an offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law.
(3) A person charged with an offence —
(a) subject to subsection (14)(a), shall be presumed to be innocent
until —
(i) he is proved guilty; or
(ii) he has pleaded guilty and the plea has been accepted by the court; and
(b) shall be informed as soon as practicable, in detail and in a language that he understands, of the precise nature and particulars of the offence charged, and if the information is not given in writing it shall be confirmed in writing as soon as practicable; and
(c) shall be given adequate time and facilities for the preparation of his
defence, including time to study and fully understand the precise charge against him, and its possible consequences; and
(d) shall be given reasonable facilities to consult, at his own expense, a
representative of his own choice; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a representative of his own choice; and
(f) subject to subsection (14)(b), shall be given adequate facilities —
(i) to examine, in person or by his representative, the witnesses called before the court by the prosecution; and
(ii) to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on conditions no less advantageous than those applying to witnesses called by the prosecution; and
(g) shall be permitted to have without payment the assistance of a competent interpreter, if he cannot adequately understand the language used at the trial or any part of the trial.
(4) Except with his consent, the trial shall not take place in his absence unless —
(a) he behaves in such a way as to make it impracticable or unreasonable to continue the proceedings in his presence; and
(b) the court orders his removal and the continuance of the trial in his absence.
(5) When a person is tried for an offence, the accused person or a person authorized by him for the purpose is entitled, on request and on payment of such reasonable fee (if any) as is prescribed, to be given within a reasonable time after judgment a copy, for the use of the accused person, of any record of the proceedings made by or on behalf of the court.
(6) No-one shall be convicted of an offence on account of an act that was not at the time of the doing of the act, an offence or a legal element of an offence.
(7) No penalty shall be imposed for an offence that is more severe in amount or in kind than the maximum that might have been imposed for the offence at the time when it was committed.

(8) Subject to subsection (14)(c), no-one who shows that he has been tried for an offence by a competent court and was either —
(a) convicted; or
(b) acquitted,
shall again be tried for —
(c) the same offence; or
(d) any other offence of which he could have been convicted at the trial of that offence,
except on the order of a superior court in the course of appeal or review
proceedings relating to the conviction or acquittal.
(9) No-one shall be tried for an offence if he shows that —
(a) he has been pardoned for the offence; and
(b) if the pardon was a conditional pardon, he has complied with the conditions of the pardon.
(10) No-one who is tried for an offence shall be compelled to give evidence at the trial.
(11) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be —
(a) established or recognised by law; and
(b) independent and impartial,
and where proceedings for such a determination are instituted by a person before such a court or authority the case shall be given a fair hearing within a reasonable time.
(12) Subject to subsection (13), except with the consent of all the parties to the proceedings —
(a) all proceedings before a court; and
(b) all proceedings before any other adjudicating authority for the determination of the existence or extent of any civil right or obligation,
including the announcement of the decision, shall be held m public.
(13) Subsection (12) does not prevent the court or other authority from excluding from the proceedings persons other than the parties, and the representatives in the proceedings of the parties, to such extent as the court or authority
(a) is by law empowered to do so and thinks it necessary or desirable to do so
(i) if publicity would not be in the interests of justice; or
(ii) in interlocutory proceedings, that is to say, in proceedings of a kind described in subsection (16); or
(iii) in the interests of —
(A) decency; or
(B) public morality; or
(C) the welfare of persons under the age of 18 years; or
(D) the protection of the privacy of persons concerned in the proceedings; or
(b) is by law empowered or required to do so in the interests of —
(i) defence; or
(ii) public safety; or
(iii) public order.
(14) Nothing in or done under a law shall be considered to be inconsistent with —
(a) subsection (3)(a) - to the extent that the law imposes upon a person charged with an offence the burden of proving or disproving certain facts which are particularly within his knowledge or his capacity to prove or disprove; or
(b) subsection (3)(f) - to the extent that the law imposes reasonable conditions that must be satisfied if witnesses called on behalf of an accused person are to be paid expenses out of public funds; or
(c) subsection (8) - subject to subsection (15), to the extent that the law authorizes a court to try a member of a disciplined force even though he has been tried and either —
(i) convicted; or
(ii) acquitted, under the disciplinary law of that force.
(15) In a case to which subsection 14(c) applies, the court that tries the member shall, in sentencing him to punishment, take into account any punishment given to him under the disciplinary law.
(16) In subsection (13)(a)(ii), “interlocutory proceedings” refers to any judicial proceedings that —
(a) occur during or for the purposes of some other legal proceedings (referred to in this subsection as “the principal proceedings”); and
(b) are incidental to the principal proceedings; and
(c) do not finally dispose of the principal proceedings.

PART II

BILL OF RIGHTS

DIVISION 3 - PROTECTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS

Subdivision A - Protection Generally

22 Protection of law

(1) This section shall be read subject to the provisions of this Part, and in particular to —

(a) section 31 (disciplined forces of Tuvalu); and
(b) section 32 (foreign disciplined forces); and
(c) section 33 (hostile disciplined forces).

(2) If a person is charged with an offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law.

(3) A person charged with an offence —

(a) subject to subsection (14)(a), shall be presumed to be innocent until —

(i) he is proved guilty; or
(ii) he has pleaded guilty and the plea has been accepted by the court; and

(b) shall be informed as soon as practicable, in detail and in a language that he understands, of the precise nature and particulars of the offence charged, and if the information is not given in writing it shall be confirmed in writing as soon as practicable; and

(c) shall be given adequate time and facilities for the preparation of his defence, including time to study and fully understand the precise charge against him, and its possible consequences; and

(d) shall be given reasonable facilities to consult, at his own expense, a representative of his own choice; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a representative of his own choice; and

(f) subject to subsection (14)(b), shall be given adequate facilities —

(i) to examine, in person or by his representative, the witnesses called before the court by the prosecution; and
(ii) to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on conditions no less advantageous than those applying to witnesses called by the prosecution; and

(g) shall be permitted to have without payment the assistance of a competent interpreter, if he cannot adequately understand the language used at the trial or any part of the trial.

(4) Except with his consent, the trial shall not take place in his absence unless —

(a) he behaves in such a way as to make it impracticable or unreasonable to continue the proceedings in his presence; and

(b) the court orders his removal and the continuance of the trial in his absence.

(5) When a person is tried for an offence, the accused person or a person authorized by him for the purpose is entitled, on request and on payment of such reasonable fee (if any) as is prescribed, to be given within a reasonable time after judgment a copy, for the use of the accused person, of any record of the proceedings made by or on behalf of the court.

(6) No-one shall be convicted of an offence on account of an act that was not at the time of the doing of the act, an offence or a legal element of an offence.

(7) No penalty shall be imposed for an offence that is more severe in amount or in kind than the maximum that might have been imposed for the offence at the time when it was committed.

(8) Subject to subsection (14)(c), no-one who shows that he has been tried for an offence by a competent court and was either —

(a) convicted; or
(b) acquitted,

shall again be tried for —

(c) the same offence; or
(d) any other offence of which he could have been convicted at the trial of that offence, except on the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(9) No-one shall be tried for an offence if he shows that —

(a) he has been pardoned for the offence; and
(b) if the pardon was a conditional pardon, he has complied with the conditions of the pardon.

(10) No-one who is tried for an offence shall be compelled to give evidence at the trial.

(11) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be —

(a) established or recognised by law; and
(b) independent and impartial, and where proceedings for such a determination are instituted by a person before such a court or authority the case shall be given a fair hearing within a reasonable time.

(12) Subject to subsection (13), except with the consent of all the parties to the proceedings —

(a) all proceedings before a court; and
(b) all proceedings before any other adjudicating authority for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision, shall be held m public.

(13) Subsection (12) does not prevent the court or other authority from excluding from the proceedings persons other than the parties, and the representatives in the proceedings of the parties, to such extent as the court or authority

(a) is by law empowered to do so and thinks it necessary or desirable to do so

(i) if publicity would not be in the interests of justice; or
(ii) in interlocutory proceedings, that is to say, in proceedings of a kind described in subsection (16); or
(iii) in the interests of —

(A) decency; or
(B) public morality; or
(C) the welfare of persons under the age of 18 years; or
(D) the protection of the privacy of persons concerned in the proceedings; or

(b) is by law empowered or required to do so in the interests of —

(i) defence; or
(ii) public safety; or
(iii) public order.

(14) Nothing in or done under a law shall be considered to be inconsistent with —

(a) subsection (3)(a) - to the extent that the law imposes upon a person charged with an offence the burden of proving or disproving certain facts which are particularly within his knowledge or his capacity to prove or disprove; or

(b) subsection (3)(f) - to the extent that the law imposes reasonable conditions that must be satisfied if witnesses called on behalf of an accused person are to be paid expenses out of public funds; or

(c) subsection (8) - subject to subsection (15), to the extent that the law authorizes a court to try a member of a disciplined force even though he has been tried and either —

(i) convicted; or
(ii) acquitted, under the disciplinary law of that force.

(15) In a case to which subsection 14(c) applies, the court that tries the member shall, in sentencing him to punishment, take into account any punishment given to him under the disciplinary law.

(16) In subsection (13)(a)(ii), “interlocutory proceedings” refers to any judicial proceedings that —

(a) occur during or for the purposes of some other legal proceedings (referred to in this subsection as “the principal proceedings”); and

(b) are incidental to the principal proceedings; and

(c) do not finally dispose of the principal proceedings.

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.