The right to a fair trial. Criminal aspects. Judgments of the European Court of Human Rights ruled in cases against Romania

The concept of "fair trial" has its origins in adversarial legal systems (fair trial), from where it was taken over by the European Convention on Human Rights. Subsequently, he imposed himself in the continental legal systems, being currently one of the most important concepts of the criminal process, in all democratic states. Its adversarial origin must be emphasized, because in these systems the trial procedure has a more important role than in the inquisitorial invoice systems, the emphasis being on the correctness of the confrontation between accusation and defense and on the role of the judge to arbitrate this confrontation.

In the system of the European Convention on Human Rights, the right to a fair trial has acquired an autonomous content compared to that of the adversarial procedural systems, meaning imposed by the specifics of the Convention to guarantee the fundamental rights and freedoms of persons from different procedural systems. This clarification is important, because there is a temptation of the doctrine to extend the content of the right to a fair trial, guaranteed by the European Convention on Human Rights, to that which this concept has in adversarial systems, sometimes forcibly taking over established rules. of the Anglo-Saxon courts. Or, the theoretical foundation of the continental procedural systems is different from that of the adversarial systems, fact that attracts in some cases an incompatibility of the procedural rules from the two systems. For these reasons, the European Convention on Human Rights guarantees only a minimum level of rights that a fair trial entails, allowing Member States to further develop their procedural systems in relation to the foundations and traditions specific to each state.

The right to a fair trial, provided for in Article 6 of the Convention, is, in essence, a procedural right or guarantee.

Article 6, paragraph 1, of the Convention provides that "every person has the right to a fair and public hearing within a reasonable time (...)" fair only the publicity of the procedure and the reasonable term. The third characteristic used in the text of the Convention ("equitably") implicitly results from other guarantees of a fair trial, developed in the jurisprudence of the Court, such as equality of arms, the principle of adversarial proceedings and the reasoning of judgments.

Article 6 paragraph 2 of the Convention regulates the presumption of innocence, and Article 6 paragraph 3 of the Convention regulates a series of specific guarantees of the accused persons.

The jurisprudence of the European Court of Human Rights in the cases against Romania offers the possibility to develop rules for establishing the content of these rights and the way in which the injured persons can invoke their violation, before the Court.



Judge Cristinel Ghigheci,

Brasov Court of Appeal