Sarah J Summers

Fair Trials (eBook, PDF)

The European Criminal Procedural Tradition and the European Court of Human Rights

• Format: PDF

Produktbeschreibung

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.

Produktdetails

• Verlag: Bloomsbury UK eBooks
• Seitenzahl: 200
• Erscheinungstermin: 10. August 2007
• Englisch
• ISBN-13: 9781847313751
• Artikelnr.: 52965283

Autorenporträt

Sarah Summers is SNF Professor of Criminal Law and Criminal Procedure Law at the University of Zurich.

Inhaltsangabe

Part One 1. The Enduring Legacy of 'Inquisitorial' and 'Accusatorial'
Procedural Forms in the Debate on Comparative Criminal Procedure AThe
Enduring Legacy of the Inquisitorial/Accusatorial Divide BThe Connection to
Legal Nationalism CDeveloping a New Approach for Analysing European
Criminal Procedure Law 2. The Origins of the European Criminal Procedural
Tradition AIntroduction: The Importance of the Developments of the
Nineteenth Century BThe Development of the 'Accusatorial Trinity' CJudicial
Impartiality (i)The Separation of the Functions of 'Judging' and
Prosecuting in France and Germany (ii) Impassivity or Activity: The Role of
the English Judge in the Examination of the Evidence (iii) Institutional
Impartiality DThe Public Hearing Requirement EImmediate and Oral
Proceedings (i) Immediate and Oral Examination of Evidence at Trial (ii)
Consideration at Trial of Evidence Collected before the Trial and Submitted
in Writing (iii)Immediate and Oral Proceedings as Fundamental to the
Accusatorial System FConclusions 3. The Rights of the Defence: Lessons from
the Nineteenth Century AThe Institutional Nature of the 'Rights of the
Accused' BThe Rights of the Defence at Trial (i)The Presence of the Accused
(ii) Participatory Rights of the Accused (a) The Developing Conception of
the Accused as a Party (b) Understanding the Nature of the Accused's
Participatory Rights: The English Reforms of the Late Nineteenth Century
(c) The Assistance of Counsel CThe Role of the Defence in the Pre-trial
Phase (i) The Pre-trial Phase as 'Investigative' (a) The Questioning of the
Accused (b) The Examination of Evidence (ii)The Determinative Reality of
the Investigation DConclusions Part Two 4. Defining Fairness in Article
6(1) ECHR AIntroduction BIdentifying Vargha's 'Accusatorial Trinity' CThe
Role of the 'Equality of Arms' Doctrine DThe Relationship between the
Adversarial Procedure Requirement and the Equality of Arms EThe Court's
Interpretation of the Adversarial Procedure Requirement in Criminal
Proceedings (i)The Right to be Present at Trial (ii)Knowledge of the Other
Side's Submissions (iii)Opportunity to Comment on the Other Side's
Submissions FThe Relationship between the Defence and the Prosecution
GFairness and Implied Procedural Forms 5. The Structure of the 'Trial' in
Article 6 ECHR AIntroduction BThe Defence's Right to Challenge Witness
Evidence CWitness Evidence in Europe: An Overview DRegulating Witness
Evidence: Article 6(3)(d) (i)What is an Adequate and Proper Opportunity to
Challenge Witnesses? (a) The Identity of the Witness (b) The Importance of
the Witness (ii)When Should Witnesses be Examined? EThe Importance of the
Trial as the Forum for Confronting Witness Evidence FReconciling
Examination of Witnesses in the Investigation Phase with the 'Accusatorial
Trinity' (i)The Presence of Counsel during Pre-trial Examination of
Witnesses (ii)The Presence of an Impartial Supervisory Authority during the
Examination of Witnesses (iii)Immediacy G The Privilege Against
Self-incrimination (i) Improper Compulsion (ii) Indirect 'Acceptable'
Compulsion (iii) The Relationship between Compulsion and the Assistance of
Counsel (iv) The Privilege against Self-incrimination as a Substitute for
the Refusal to Insist on Adversarial Principles in the Investigation Phase
HThe Root of the Problem: Defining the 'Trial' (i)The Investigation Phase
Lacuna (ii)Explaining the Investigation Phase Lacuna: Les Travaux
Préparatoires (iii)Resolving the Fairness Deficit: Acknowledging the
European Procedural Tradition 6. Reassessing Fairness in European Criminal
Law: Procedural Fairness, Defence Rights and Institutional Forms
AProcedural Fairness as Individual Rights BProcedural Rights and
Institutional Forms CArticle 6 ECHR and the European Criminal Procedural
Tradition DTowards an Institutional Understanding of Fairness in Criminal
Proceedings