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A Fair Trial at the International Criminal Court? Human Rights Standards and Legitimacy

Procedural Fairness in the Context of Disclosure of Evidence and the Right to Have Witnesses Examined


Elmar Widder

This book approaches the question of whether or not the court procedure at the International Criminal Court (ICC) can be regarded as fair from two angles: First, does the ICC provide a fair trial according to the accepted standards of international human rights law? Secondly, is it substantively fair so as to establish the legitimacy of the court on a sound footing? Practitioners and academics are increasingly conscious of the need for an approach to evidence which spans civil law and common law traditions, national and international law. This is what this monograph does, in meticulous detail, for the law of confrontation and disclosure.

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Chapter 2: The European Court of Human Rights


1.  Locating the obligation to disclose evidence

1.1  The right to a fair trial—Article 6 of the ECHR

The tenet of the right to a fair trial can be regarded as being salient to the heritage of the rule of law.180 Over the years, it has significantly influenced decisions about the fairness of trial procedures. According to Professor Trechsel, the “guarantee of a fair trial is ‘only’ a procedural guarantee.”181 Article 6 (1) of the ECHR entitles ‘everyone to a fair and public hearing’ both in the ‘determination of his civil rights and obligations’ or in case of ‘any criminal charge against him.’182 As a result, there is a general supposition included in the right to a fair trial that refers to all relevant kinds of proceedings: civil proceedings, criminal proceedings and cases of administrative law.183 In addition, Article 6 (3) comprises so-called ‘minimum rights’ for accused persons in cases of a criminal charge or ← 33 | 34 → charges.184 Hence, there is a ‘broader’ relevance to the fair trial and a ‘narrower’ one, specifically referring to criminal proceedings.185 This means that fair trial requirements in civil cases are ‘not necessarily identical to the requirements in criminal’ ones.186 The ECtHR decided that the contracting states have less discretion to interpret what constitutes a fair trial when dealing with criminal cases.187

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