Why Fairness Matters

Abstract

The aim of this study was to analyse how the concept of fairness regulates and limits the use of avoidance mechanisms in the enforcement of criminal law. The archetypical trial context was explored and functioned as the starting point of the analysis. Any derogation from this ideal type must be accounted for in terms of fairness. In the Introduction, a distinction was made between avoidance mechanisms that operate outside the trial context (the diversions) and those that operate within the trial context (the shortcuts to proof). They have in common that they infringe on the concept of the full criminal trial in which incriminating evidence is both presented and discussed or challenged. The avoidance mechanisms were derived from the Dutch and international criminal justice systems. Avoidance mechanisms can be discerned in all types of criminal cases, including the handling of minor offences as well as cases involving the most serious violations of (international) criminal law. The systems discussed provided for a good overview of manners to avoid the full criminal trial. They also show the great diversity of these avoidance mechanisms.