Abstract
This chapter provides a brief overview of the historical background to fundamental ‘fair trial’ rights, tracing their origins back to the Magna Charta Libertatum of 1215.
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Notes
- 1.
Clayton/Tomlinson (eds), Fair Trial Rights (2010) 1. See also Møse, Menneskerettigheter (2002) 297; Bårdsen, ‘Reflections on “Fair Trial” in Civil Proceedings According to Article 6 § 1 of the European Convention on Human Rights’ (2007) 101.
- 2.
Langford, ‘Fair Trial: The History of an Idea’ (2009) traces the linguistic history of the expression ‘fair trial’, and shows that this expression became common only in the 19th century, and became widespread only in the 20th century. Langford’s study shows how the meaning of the word ‘fair’ (and of the expression ‘fair trial’) has developed significantly over the centuries (in the 16th century, ‘fair’ signified ‘beautiful’, as in ‘a fair lady’), and that the sense in which the word ‘fair’ is used today (to signify that there is nothing to criticize with regard to the procedure which has been followed) gained predominance only from the late 19th century onwards. Langford is more difficult to follow when he claims that by this study in linguistic history, he has somehow demonstrated that the right to a ‘fair trial’ is not an ‘inherent human right’, both because the expression ‘fair trial’ is not easy to translate into other languages, and because this expression became widespread comparatively late in humanity’s history (at 48 ff). It is difficult to see in what ways Langford’s linguistic study poses a challenge to the moral claim that every human being is entitled to a ‘fair trial’ if rights and obligations or criminal liability are at stake. After all, it is not the expression ‘fair trial’ which constitutes the ‘inherent human right’, but the substance of this concept. Langford’s study can be contrasted with Orth, Due Process of Law – A Brief History (2003) 7 ff. who traces the history of the concept of procedural due process (which is a concept closely related to the concept of a ‘fair trial’) through the centuries, starting with Magna Charta Libertatum of 1215.
- 3.
The procedural standards established by the Magna Charta Libertatum were rudimentary and fragmentary, but a few of them did concern the procedure to be followed by a court which was to decide a civil case, such as Articles 18, 20 and 38. It is also worth noting Article 39, which contains a procedural provision of a fundamental nature: ‘[n]o freemen shall be (…) in any way destroyed (…) except by the lawful judgment of his peers or by the law of the land.’
- 4.
See U.S. Supreme Court Marbury v Madison, 5 US 137 (1803).
- 5.
See Wasserman, Procedural Due Process (2004) 8 ff. Amar, America’s constitution: a biography (2005) 385 ff. Dimitrakopoulos, Individual Rights and Liberties Under the U.S. Constitution – The Case Law of the U.S. Supreme Court (2007) 111 ff.
- 6.
See Steamer/Maiman, American Constitutional Law – Introduction and Case Studies (1992) 240.
- 7.
See, e.g., U.S. Supreme Court Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123 (1951) 163; U.S. Supreme Court Fuentes v Shevin, 407 U.S. 67 (1972) 80; U.S. Supreme Court Goss v Lopez, 419 US 565 (1975) 577.
- 8.
Trechsel, ‘Why must trials be fair’ (1997) 97–98 also emphasizes the importance of the Anglo-American historical experience for the development of fundamental ‘fair trial’ or ‘due process’ standards. According to Grabenwarter, European Convention on Human Rights – Commentary (2014) 100, ECHR Article 6 ‘is influenced by the principle of “due process of law” in Anglo-American law’. See also Carlson/Gisvold, Practical Guide to the ICCP (2003) 38, where it is claimed that the fair trial provisions of CCPR Article 14 ‘can be traced back to the Anglo-Saxon concept of “due process of law”, with its origins in Magna Charta Libertatum of 1215’.
- 9.
See Damaska, ‘The Quest for Due Process in the Age of Inquisition’ (2012) 919 ff. where it is emphasized that in the classical inquisitorial procedural systems, some procedural safeguards were regarded as superior, God-given norms, and therefore as binding even on emperors and popes, which is reminiscent of the role that fundamental procedural rights play in many liberal democracies of today, through the mechanisms of both international human rights instruments and national constitutional rights. As regards the emphasis on procedural safeguards in the context of the classical inquisitorial procedure, see also Stark, The Triumph of Christianity (2011) 333 ff.
- 10.
See Baderin, International Human Rights and Islamic Law (2003) 98; Baderin, ‘A Comparative Analysis of the Right to a Fair Trial and Due Process under International Human Rights Law and Saudi Arabian Domestic Law’ (2006) 245–246.
- 11.
As for cultural and/or religious traditions more broadly, Ishay, The History of Human Rights (2008) 16–61 argues that each of the great world religions contain humanistic elements which can be linked, in various respects, to the modern idea of fundamental human rights.
- 12.
Universal Declaration of Human Rights (1948) GA res. 217A (III), UN Doc A/810 at 71. For an overview of the process leading to the adoption of this exact wording, see Weissbrodt/Hallendorff, ‘Travaux Preparatoires of the Fair Trial Provisions – Articles 8 to 11 – of the Universal Declaration of Human Rights’ (1999) 1069–1073.
- 13.
International Covenant of Civil and Political Rights (1966) 999 UNTS 171
- 14.
See American Convention on Human Rights (1969) 1144 UNTS 123, Article 8(1) (‘[e]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature’); African Charter on Human and Peoples’ Rights (1981) 1520 UNTS 217, Article 7(1) (‘[e]very individual shall have the right to have his cause heard’).
- 15.
European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, Article 47.
- 16.
According to Johnigk, Das faire Verfahren nach Art. 6 EMRK (2005) 2–4, in German law the right to a ‘fair hearing’ is, to a considerable extent, subsumed by the constitutional right to ‘rechtliches Gehör’.
- 17.
See Sharpe/Roach, The Charter of Rights and Freedoms (2009) 228.
- 18.
It is part of the history of the ECHR that the Convention and its rights did not play a very prominent role in the pan-European context to begin with (throughout the 1950s and 1960s), but the focus on the ECHR increased from the 1970s onwards (see Moyn, The Last Utopia (2010) 79–81).
- 19.
Lehtimaja/Pellonpäa, ‘Article 10’ in Alfredsson/Eide (eds), The Universal Declaration of Human Rights – A Common Standard of Achievement (1999) 227–230 emphasize, in connection with the ‘fair trial’ provision of the Universal Declaration, that when determining what makes a hearing ‘fair’, allowance must be made for the ‘national needs and legal traditions of each country’. Bårdsen, ‘Reflections on “Fair Trial” in Civil Proceedings According to Article 6 § 1 of the European Convention on Human Rights’ (2007) 110–113 considers the significance of different domestic concepts of procedural fairness for the interpretation and application of ECHR Article 6(1), and in this connection refers to the different procedural traditions denominated as ‘common law’ and ‘civil law’, as well as to the division, in several European countries, between civil and administrative proceedings. His main point seems to be that while the interpretation of the ‘fair hearing’ norm can be inspired by, and should take into account, different concepts of procedural fairness in various national legal systems, it is above all essential that the norm is allowed to operate ‘on a level beyond domestic terms and traditions’. This viewpoint is reminiscent of the assertion of Jackson, ‘The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?’ (2005) 740, who claims that the Strasbourg Court, as regards the impact of the ‘fair hearing’ right on criminal evidentiary processes, has attempted to move beyond the traditional adversarial-inquisitorial dichotomy.
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Settem, O.J. (2016). Historical and Comparative Perspectives. In: Applications of the 'Fair Hearing' Norm in ECHR Article 6(1) to Civil Proceedings. Springer, Cham. https://doi.org/10.1007/978-3-319-24883-7_2
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