THE RIGHT TO A FAIR TRIAL

The Right to a Fair Trial is So Fundamental That It Must Be Viewed as an Absolute Right in the European Convention on Human Rights



The Right to a Fair Trial is So Fundamental That It Must Be Viewed as an Absolute Right in the European Convention on Human Rights

I. Introduction

This paper discusses the right to a fair trial is so fundamental that it must be viewed as an absolute right in the European Convention on Human Rights as we know that the right to a fair trial is a legal cornerstone of democratic societies, whose importance can hardly be overstated. The aim of this contribution is to provide the reader with an-admittedly short-overview over the protection and the enforcement of this right in Europe. The European Convention on Human Rights1 in combination with its additional protocols is the main international instrument guaranteeing the application of Human Rights in Europe. It had been concluded under the auspices of the Council of Europe in 1950 and entered into force in 1953. The Convention has now 46 Member States; its territorial scope ranges from Lisbon (Portugal) in the west to Vladivostok (Russian Federation) in the east. The ECHR is widely regarded as being the world's most effective system for the protection of human rights2 and its legal system applies to common as well as to civil law jurisdictions. The Council of Europe is legally distinct from the European Union, although the legal orders of the two organizations are not totally separated from the other, as can be inferred from art.

Burns (2003) mentions the Convention is secured by a court mechanism. The European Court of Human Rights,4 which is located in Strasbourg, France, is the final arbiter in all cases concerning breaches of the Convention and according to art. 34, 35 ECHR individuals are entitled to have recourse to it after the exhaustion of the applicable national remedies. The Court is extremely successful and, on the flipside of the coin, totally overburdened. In 2006, 50,500 applications had been filed and the Court rendered 1,560 judgments, a 40% increase from the previous year.

II. Miscarriages of Justice and Procedural Rules

In the general public opinion, justice and its (eventual) miscarriage is usually connected with provisions of substantial criminal law like murder and homicide. The procedural rules governing the fairness of a (criminal) trial are not so much in the focus of the public opinion, yet of equal if not overriding relevance. Procedural rules are generally the domain of lawyers and their impact on the outcome of a case is sometimes difficult to grasp. Due to the conduct of a criminal trial in compliance with these rules (Burns, 2003), their effect on the outcome, and the criminal liability of a person, is enormous. Despite that, these rules are usually not considered as taking part in the safeguarding of the criminal process, like the strict prohibition of retroactive application of criminal laws and ruling by analogy,10 which is limited to substantial criminal ...