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Midan Market Group

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Fair Trials: The European Criminal Procedural T...

See ECHR provisions of Article 6 which have been incorporated into UK law by the Human Rights Act 1998.. Schdule 1, Article 6 Right to a fair trial1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.3 Everyone charged with a criminal offence has the following minimum rights:(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;(b)to have adequate time and facilities for the preparation of his defence;(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(e)to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Fair Trials: The European Criminal Procedural T...

Chapter 2 - Fundamental rights and freedoms: Article 9 If a public authority other than a court of law has deprived an individual of his or her liberty on account of a criminal act or because he or she is suspected of having committed such an act, the individual shall be entitled to have the deprivation of liberty examined before a court of law without undue delay. This shall not, however, apply where the matter concerns the transfer to Sweden of responsibility for executing a penal sanction involving deprivation of liberty according to a sentence in another state. Also those who for reasons other than those specified in paragraph one, have been taken forcibly into custody, shall likewise be entitled to have the matter of custody examined before a court of law without undue delay (...) Also those who for reasons other than those specified in paragraph one, have been taken forcibly into custody, shall likewise be entitled to have the matter of custody examined before a court of law without undue delay. In such a case, examination before a tribunal shall be equated with examination before a court of law, provided the composition of the tribunal has been laid down in law and it is stipulated that the chair of the tribunal shall be currently, or shall have been previously, a permanent salaried judge (...); Article 10 No one may be sentenced to a penalty or penal sanction for an act which was not subject to a penal sanction at the time it was committed. Nor may anyone be sentenced to a penal sanction which is more severe than that which was in force when the act was committed. The provisions laid down here with respect to penal sanctions also apply to forfeiture and other special legal effects of crime (...); Article 11 No court of law may be established on account of an act already committed, or for a particular dispute or otherwise for a particular case. Legal proceedings shall be carried out fairly and within a reasonable period of time. Proceedings in courts of law shall be open to the public.

Article 20 (Access to law and effective judicial protection) (1) Everyone is guaranteed access to the law and the courts in order to defend those of his rights and interests that are protected by law, and justice may not be denied to anyone due to lack of sufficient financial means. (2) Subject to the terms of the law, everyone has the right to legal information and advice, to legal counsel and to be accompanied by a lawyer before any authority. (3) The law shall define and ensure adequate protection of the secrecy of legal proceedings. (4) Everyone has the right to secure a decision in any suit in which he is intervening, within a reasonable time limit and by means of fair process. (5) For the purpose of defending the personal rights, freedoms and guarantees and in such a way as to secure effective and timely judicial protection against threats thereto or breaches thereof, the law shall ensure citizens judicial proceedings that are characterised by their swiftness and by the attachment of priority to them. Article 29 (Application of criminal law) (1) No one may be sentenced under the criminal law unless the action or omission in question is punishable under a pre-existing law, nor may any person be the object of a security measure unless the prerequisites therefore are laid down by a pre-existing law. (2) The provisions of the previous paragraph do not preclude the punishment up to the limits laid down by internal Portuguese law of an action or omission which was deemed criminal under the general principles of international law that were commonly recognised at the moment of its commission. (3) No sentence or security measure may be applied unless it is expressly sanctioned by a pre-existing law. (4) No one may be the object of a sentence or security measure that is more severe than those provided for at the moment of the conduct in question, or at that at which the prerequisites for the application of such a measure were fulfilled, while criminal laws whose content is more favourable to the accused person shall be applied retroactively. (5) No one may be tried more than once for commission of the same crime. (6) Citizens who are unjustly convicted have the right to the review of their sentences and to compensation for the damages they have suffered, as laid down by law. Article 203 (Independence) The courts are independent and subject only to the law.

The right to a fair trial also requires that people charged with offences be allowed to attend court and to participate effectively in a trial. This enables the court to interact with them and allows the person to hear and respond to the accusations. It also ensures that there is adequate public oversight of criminal proceedings.

Although the EU has so far failed to create robust standards on pre-trial detention, it has created other legislation protecting procedural rights for suspects, which have the potential to improve the fairness of decision-making on pre-trial detention. These rights, including access to a lawyer at the initial stages of the criminal process, can prevent unfairness and increase the chance that a person will be released (perhaps with alternative measures like electronic monitoring), contributing to lower rates of pre-trial detention.

Over the past two years, Fair Trials and its partners in Bulgaria, Greece, Hungary, Italy and Romania have engaged criminal justice stakeholders (civil society, lawyers, prosecutors, judges, and ministry of justice officials) to assess what impact these procedural rights protections are having on the fairness of pre-trial detention decision-making; in particular, whether suspects are receiving effective legal assistance. Our aim has been to empower local practitioners to improve practice and to advocate for ways to address persistent failures to implement EU law effectively.

Existing EU standards on procedural rights have a huge potential to improve the fairness of pre-trial detention proceedings. But even where the law in Member States appears to respect those rights on paper (which is not universally the case), practical barriers get in the way. These cannot be removed through the action of local practitioners in individual cases. We need Member States to fully engage in making these human rights a reality, and where Member States fail to do so or need support, we need the European Commission to take action.

A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge".[1] Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. There is no binding international law that defines what is not a fair trial; for example, the right to a jury trial and other important procedures vary from nation to nation.[2] 041b061a72


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