Title: Substantive Due Process in Human Rights Law: International Tribunals and the Review of Domestic Decisions
Abstract: The right to a fair trial, or to due process, is an essential prerequisite for any state to be recognized as abiding by the rule of law, or being a Rechtsstaat. The fairness of a trial, be it criminal, civil or administrative in character, is assessed on the basis of formal compliance with certain minimum guarantees: the independence and impartiality of the court or tribunal that decides the matter, the right to defend oneself (criminal cases) or to present one’s arguments (civil cases), equality of arms, the absence of undue delays, and so on. While in other matters that come under scrutiny from a human rights perspective (such as the rights to freedom of speech, freedom from torture, non-discrimination, or family life) the ‘what was done’ will be the object of review, in fair trial cases, the ‘how it was done’ is of interest. The substantive outcome of the proceedings – the right or wrong – matters little to the international adjudicator, as long as due process was observed. However, in Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, the Committee of Ministers of the Council of Europe made the startling observation that the Court’s findings in certain cases involving due process might lead to the conclusion that “the impugned domestic decision is on the merits contrary to the Convention, or [that] the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.” In other words, the Court may say or imply that it finds that domestic authorities or courts were wrong. The Committee of Ministers draws the conclusion that, in such circumstances, respect for human rights would require that the domestic decision be revisited and that the case be reopened.
Publication Year: 2007
Publication Date: 2007-07-01
Language: en
Type: article
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Cited By Count: 1
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