Original scientific paper
The Principle of Equality of Arms as a Constitutive Element of the Right to a Fair Trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
Elizabeta Ivičević Karas
Abstract
The article deals with the principle of equality of arms which has been recognized as a constitutive element in the judicature of the European Court of Human Rights, as well as a means of realization and autonomous expression of the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. First, the author presents the roots of the conventional right to a fair trial, and then its contemporary universal meaning. Further, the author analyses the principle of equality of arms in criminal procedure with regard to different legal traditions (Anglo-Saxon and Roman-German) and concludes that the principle of “equality of arms” in criminal procedure, as well as the legal standards of a fair trial, get inspiration from Anglo-Saxon legal tradition. Nevertheless, owing to the method of autonomous interpretation of legal concepts applied by the European Court of Human Rights in its judicature, as the conventional concept of a fair trial has a universal interpretation today, so also the principle of equality of arms represents a fundamental functional principle of contemporary criminal procedure. On the basis of the analysis of the relevant judicature of the European Court of Human Rights, the author concludes that the principle of equality of arms does nor require arithmetic or symmetric equality of the defendant’s and prosecutor’s positions, but the establishment of the procedural balance adjusted to specific procedural functions of the parties in criminal proceedings. The establishment of such a procedural balance presupposes the existence of procedural guarantees which provide for the parties uniform possibilities of influencing the course and result of criminal proceedings, primarily by the realization of concrete procedural rights to access to information and participation in procedural acts.
Keywords
principle of equality of arms; equity; fair trial; criminal procedure; European Court of Human Rights; European Convention for the Protection of Human Rights and Fundamental Freedoms
Hrčak ID:
17488
URI
Publication date:
10.11.2007.
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