The juridical nature of the right to a fair trial

• Author: Mircea Damaschin
• Position: Associate Professor, Ph.D., Faculty of Social and Administrative Sciences, 'Nicolae Titulescu' University, Bucharest
• Pages: 23-33

Mircea Damaschin

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LESIJ NR. XVIII, VOL. 2/2011

THE JURIDICAL NATURE OF THE RIGHT TO A FAIR TRIAL

Mircea DAMASCHIN∗

Abstract

The present study is a theoretical approach to the legal principle regarding the right to a fair

trial, particularly to the juridical nature of this right. The importance of guaranteeing the fairness

of the procedures – in which the litigants are involved – has considerably increased especially

after the European Convention on Human Rights was adopted in 1994. At the same time, the

jurisprudence of the European Court of Human Rights played a significant role in observing the

fairness of trials, especially in those causes that implied the breach of Article 6 of the European

Convention on Human Rights. Under these circumstances and in conformity with the

modifications brought to legislation the fair trial started to be perceived as a constitutio nal

principle and it has become an essential rule for justice, hence the necessity to define the juridical

nature and character of the right to a fair trial.

Keywords: right to a fair trial, human rights.

Introduction

The right to a fair trial, even if it has only recently been perceived as an essential right, in

contrast to most of the fundamental human rights and freedoms, can certainly be included in the

latter category. Thus, by guaranteeing the fair pursuance of a judicial procedure, the conditions for

exercising fundamental human rights and freedoms have been met. At the same time, the right to a

fair trial is a fundamental institution for the good organization and functioning of justice. Special

literature frequently makes reference to the fair trial as an essential premise for the state governed

by the rule of law, particularly in the jurisprudence of the European Court of Human Rights.

Under these circumstances, we are going to analyse the right to a fair trial from a triple

perspective: as a fundamental human right, as a principle of organization and functioning of justice

and as a premise for the existence of the state governed by the rule of law.

1. Fundamental human rights

The concept of “human rights” appeared in ancient Greece and Rome where it was especially

referred to by the phrase “natural rights”. From this perspective, it was supposed that there existed

natural, universal and immutable rights, as well as divinely inspired or man created rights and that

these rights were meant to ensure the free exercise by the humans of the rights which they were

granted thanks to their natural free statute.

The concept of “fundamental human rights” was created for replacing the phrase “human

inborn rights”, as well as the phrase “individual fundamental freedoms”. No matter what phrases

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∗ Associate Professor, Ph.D., Faculty of Social and Administrative Sciences, “Nicolae Titulescu” University,

Bucharest (e-mail: damaschin.mircea@gmail.com). This work was supported by CNCSIS –UEFISCSU, project

number 860 PNII – IDEI 1094/2008.