The Outlooks of Fair Trial in Europe - the Future

Visions and the Current State

Laura Ervo

Professor of law

Örebro University Sweden

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Controversial situationScandinavia - Europe

Fairness, procedural justice, conflict resolution, negotiated law, pragmatically acceptable compromise, procedural truth, court

service, communication, interaction, plea bargaining etc.

Effectiveness, coercive measures, resources etc.

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On the one hand…

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Scandinavian situationThe current, post-modern court culture is based on

communication and interaction between the parties and the judge.

There has been a big change from the adjudication, ideals of material law and a substantively correct judgment towards the ideal of negotiated law and pragmatically acceptable compromise.

In this kind of procedure the judge is seen more as a helper of the parties than the actor who is using his/her public power to make final decisions. The development has gone from the judicial power towards court service.

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At the same time there has been a wide-ranging discussion, especially in Sweden, of the ultimate functions of court proceedings.

In current legal tradition conflict resolution - rather than traditional dispute resolution or legal protection - is the most important function of court work. (Earlier in civil proceedings, nowadays even in criminal cases.)

In this change, the role of parties has been changed from the subservient towards clients which means that parties are nowadays much more in the center of the proceedings than earlier. (However, written procedure and judgment in absence in minor criminal cases especially in Finland very common.)

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There has also been a change from formal justice towards a perceived procedural justice, which means that it is not enough that proceedings fulfill the requirements of formal justice but that parties and other actors like witnesses and experts as well as all actors involved in proceedings should in addition subjectively feel that the procedure was fair (sein / sollen).

The most important function in the adjudication is that the contextual decisions, which the parties are satisfied with, are produced through fair proceedings. In achieving these aims, the communication and interaction of judges and parties are the most important tools. Therefore new kinds of professional skills are needed. To respond correctly to these current demands the judge must know not only the jurisprudence and the contents of law but s/he must also have linguistic and social skills.

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It has been also said that the increasing complexity of modern life and trials has led to the fact that in conflicts, there are often more than two parties. This development will also affect how the truth as a goal is understood in the proceedings. If we accept that modern conflicts are complex entities which belong to more than only the main parties to the conflict, it may be necessary to accept the relativity of truth and to emphasize the function of proceedings specifically as conflict resolution (even in criminal cases, for instance environmental offences).

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From material truth towards procedural truth

Aim: procedural truth

Result: procedural truth

Conflict resolution also in criminal proceedings

Mediation in criminal cases (Nils Christie)

Plea bargaining (Finland, Estonia)

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On the other hand…

Effectiviness

Effective means: more and more, more effective tools for the police (Regular amendments covering Criminal Investigation Acts, Coercive Measures Act and now also a new Police Act).

Official grounds: Legal Protection (?) and the fight against organized and more serious criminality.

Unofficial grounds: Effectiveness, state economy, police state (?).

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European situation according to the case law of ECHRECHR (European Court of Human Rights)

”In olden times” the protection of the defendant and his right to participate in criminal proceedings was ALWAYS the main core.

The problems of authorities could never outstrip this starting point.

Bit by bit ECHR seems to understad more and more the problems of authorities and grow apart from this traditional way of thinking.

- Jalloh v. Germany (11.7.2006)

- Gäfgen v. Germany (1.6.2010)

- Al-Khawaja and Tahery v. UK (15.12.2011)

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Summary

Is there any thread in the Scandianvian change?

Are we going towards police state in Europe?

Is the state economy the most important ground and aim?

Who is taking care of a totality?

Are we just floating around without any coherence?

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Change at system/state level

Change at individual level

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The criminal process seems to be going towards party autonomy and there is a trend to increase the role of parties as well as the atonement instead of the state´s monopolistic penal authority.

In this respect, the criminal proceedings have moved away from the material truth and the penal authority towards societal solution to the conflict where parties are in the center. At the same time, the privatization of jurisdiction and financial savings in state economy lead to the same aims.

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All in all, the trend seems to be controversial. At the system level, the rule of law is being wound up, while at the level of the individual's, the party autonomy is increasing. A blessing in disguise? Perhaps these trends balanced by each other in such a way that the end result remains satisfactory. Parallel trends are probably a coincidence in the meaning that it is not a conscious choice by the legislature to balance the whole. The criminal proceedings are, however, too serious an issue to float like a driftwood. Maybe it is time to start to control this floating?