Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Criminal Law Library)

The right to a fair trial has become an issue of increasing public concern. In determining the scope of this right, Europeans increasingly look to the European Court of Human Rights (ECHR), but the court has given little guidance, focusing on reconciling procedural rules rather than addressing the broader issues. This book addresses the issue of the meaning of the right by examining the contemporary jurisprudence in the light of a body of historical literature which discusses criminal procedure in a European context. It argues that there is in fact a European criminal procedural tradition which has been neglected in contemporary discussions, and that an understanding of this tradition might illuminate the discussion of fair trial in the contemporary jurisprudence. This challenging new volume elucidates the meaning of the fair trial and in doing so challenges the conventional approach to the analysis of criminal procedure as based on the distinction between adversarial and inquisitorial procedural systems. The book is divided into two parts. The first part is dominated by an examination of the fair trial principles in the works of several notable European jurists of the 19th century, arguing that their writings were instrumental in the development of the principles underlying the modern conception of criminal proceedings. The second part looks at the fair trials jurisprudence of the ECHR and it suggests that, although the Court has neglected the European tradition, the jurisprudence has been influenced, albeit unconsciously, by the institutional principles developed in the 19th century. Acknowledgments......Page 8 Contents......Page 10 Tables of Cases......Page 14 Introduction......Page 20 Part One......Page 22 A The Enduring Legacy of theInquisitorial/Accusatorial Divide......Page 24 B The Connection to Legal Nationalism......Page 32 C Developing a New Approach for AnalysingEuropean Criminal Procedure Law......Page 35 A The Importance of the Developments of theNineteenth Century......Page 42 B The Development of the ‘Accusatorial Trinity’......Page 45 C Judicial Impartiality......Page 50 D The Public Hearing Requirement......Page 59 E Immediate and Oral Proceedings......Page 68 F Conclusions......Page 79 A The Institutional Nature of the ‘Rights of theAccused’......Page 82 B The Rights of the Defence at Trial......Page 84 C The Role of the Defence in the Pre-trial Phase......Page 103 D Conclusions......Page 113 Part Two......Page 116 A Introduction......Page 118 B Identifying Vargha’s ‘Accusatorial Trinity’......Page 120 C The Role of the ‘Equality of Arms’ Doctrine......Page 124 D The Relationship Between the AdversarialProcedure Requirement and the Equality of Arms......Page 131 E The Court’s Interpretation of the AdversarialProcedure Requirement in Criminal Proceedings......Page 133 F The Relationship Between the Defence and theProsecution......Page 145 G Fairness and Implied Procedural Forms......Page 147 A Introduction......Page 150 C Witness Evidence in Europe: An Overview......Page 153 D Regulating Witness Evidence: Article 6(3)(d)......Page 157 E The Importance of the Trial as a Forum forConfronting Witness Evidence......Page 167 F Reconciling Examination of Witnesses in theInvestigation Phase with the ‘Accusatorial Trinity’......Page 169 G The Privilege Against Self-incrimination......Page 176 H The Root of the Problem: Defining the ‘Trial’......Page 184 A Procedural Fairness as Individual Rights......Page 190 B Procedural Rights and Institutional Forms......Page 193 C Article 6 ECHR and the European CriminalProcedural Tradition......Page 199 D Towards an Institutional Understanding ofFairness in Criminal Proceedings......Page 204 Index......Page 206 The right to a fair trial has become an issue of increasing public concern, following a series of high profile cases such as the Bulger case, Khan (Sultan) and R v. DPP ex p Kebilene. In determining the scope of the right, we now increasingly look to the ECHR, but the court has given little guidance, focusing on reconciling procedural rules rather than addressing the broader issues. This book addresses the issue of the meaning of the right by examining the contemporary jurisprudence in the light of a body of historical literature which discusses criminal procedure in a European context. It argues that there is in fact a European criminal procedural tradition which has been neglected in contemporary discussions, and that an understanding of this tradition might illuminate the discussion of fair trial in the contemporary jurisprudence. This challenging new work elucidates the meaning of the fair trial and in doing so challenges the conventional approach to the analysis of criminal procedure as based on the distinction between adversarial and inquisitorial procedural systems. The book is divided into two parts. The first part is dominated by an examination of the fair trial principles in the works of several notable European jurists of the nineteenth century, arguing that their writings were instrumental in the development of the principles underlying the modern conception of criminal proceedings. The second part looks at the fair trials jurisprudence of the ECHR and it is suggested that although the Court has neglected the European tradition, the jurisprudence has nevertheless been influenced, albeit unconsciously, by the institutional principles developed in the nineteenth century. "The right to a fair trail has become an issue of increasing public concern, following a series of high profile cases such as the Bulger case, Khan (Sultan) and R v DPP ex p Kebilene. In determining the scope of the right we now increasingly look to the ECHR, but the court has given little guidance, focusing on reconciling procedural rules rather than addressing the broader issues. This book addresses the issue of the meaning of the right by examining the contemporary jurisprudence in the light of a body of historical literature which discusses criminal procedure in a European context. It argues that there is in fact a European criminal procedural tradition which has been neglected in contemporary discussions, and that an understanding of this tradition might illuminate the discussion of fair trail in the contemporary jurisprudence."--BOOK JACKET