Procedural fairness: Between human rights law and social psychology

Abstract

Fair procedures have long been a topic of great interest for human rights lawyers. Yet, few authors have drawn on research from other disciplines to enrich the discussion. Social psychological procedural justice research has demonstrated in various applications that, besides the final outcome, the manner in which one’s case is handled matters to people as well. Such research has shown the impact of procedural justice on individuals’ well-being, their acceptance of unfavourable decisions, perceptions of legitimacy and public confidence. The ECtHR has confirmed the desirability of these effects in its fair trial jurisprudence. Thus far, it remains unclear to what extent the guarantees offered by Article 6(1) of the European Convention on Human Rights (the right to a fair trial) coincide with the findings of empirical procedural justice research. This article aims to rectify this and uncover similarities between the two disciplines.

1. Introduction

The importance of fair procedure in international human rights law is undeniable. ¹ The right to a fair trial is affirmed as a basic human right at both the international and regional level. Review of the European Court of Human Right’s (ECtHR) statistics reveals that nearly 40 per cent of its judgments concern violations of Article 6 of the European Convention on Human Rights (ECHR), which protects the right to a fair trial. ²

Vast attention exists for the right to a fair trial in a human rights context. Yet, notwithstanding some notable exceptions, ³ this attention has not been translated into an interest into how fair procedures are studied in other disciplines. In particular, in social psychology, a long tradition of procedural fairness ⁴ research exists. In various contexts, it has been demonstrated by social psychologists that – next to the outcome – the manner in which one’s case was handled matters to people as well. This research coincides with the aphorism ‘justice should not only be done; but should […] be seen to be done’. ⁵ When people perceive a procedure as being fair, this affects their judgment of the legitimacy of judicial authorities. The latter in turn determines compliance with unfavourable decisions. ⁶ In a few cases, the ECtHR has explicitly confirmed the importance of (certain) procedural guarantees in contributing to the acceptance of a decision by the parties, perceptions of legitimacy and public confidence. ⁷ Such acceptance – especially in case of unfavourable judgements – is a valuable tool in an adjudication process, notwithstanding the role procedural fairness can play for social obedience to authorities outside of the courtroom. ⁸

It seems self-evident that maximisation of these effects is desirable. To accomplish this, it is necessary to understand to what extent existing procedural standards in law concur with those that were empirically established in procedural justice research. As Lind and Tyler stated ‘the psychologist and the legal scholar will find they share many basic concerns and recognise many similar distinctions’. ⁹ Grootelaar found that lay people focus on ‘what it is that makes a procedure fair’, whereas lawyers focus on ‘what a fair procedure should be’. ¹⁰ Examining the interaction of the two perspectives is thus very important. ¹¹ As such, procedural justice research is a prime example of how empirical research can be relevant to the sphere of human rights law, where evidence-based research is often very scarce and institutional processes are often under-researched. ¹² This article aims to identify the empirical underpinnings that exist in procedural justice research for the guarantees included in the right to fair trial.

In the first Section of this article, a brief introduction into procedural justice research in social psychology will be given. Second, the contexts in which the effects of procedural justice have been demonstrated will be discussed, including court proceedings. Third, the method for selection will be explained, before focusing on the application and the comparison of elements of fair procedure as found in the two disciplines. Finally, the conclusion of this comparison will be presented.

2. Introducing procedural justice research

As this most likely will be untrodden territory for human rights scholars, it seems appropriate to start this contribution with a brief introduction into procedural justice research. First, the origins of procedural justice research will be discussed. Then, the main perspectives and models that have been developed are set forth.

2.1. Origins of procedural justice research

The term procedural justice was first used by Thibaut and Walker in 1974 to refer to the social psychological consequences of procedural variation. ¹³ They conducted a study in which they compared the characteristics of adversarial and inquisitorial systems of decision-making with the aim to investigate which one was perceived as the most just decision-making procedure. ¹⁴ Thus, in initial procedural fairness research the focus lay on reactions to legal procedures of disputants. ¹⁵ It is considered that, in the research of Thibaut and Walker, the first empirical evidence was provided that not only outcome influences fairness judgments but so does the procedure leading to that outcome. ¹⁶

Since this seminal work by Thibaut and Walker, the field has expanded immensely, to the extent that it is necessary to provide some clarity and explain the main findings on which the majority of scholars agree. Procedural justice refers to ‘the judgments about the fairness of procedures used to make decisions’. ¹⁷ Thus, what is used as the basis for understanding what constitutes a fair procedure are persons’ subjective perceptions. ¹⁸ Sometimes, the term ‘perceived procedural justice’ is used to emphasise this aspect. Procedural justice research includes both research that aims to uncover whether and how individuals are affected by fair procedure, as well as studies that want to expose which elements of a procedure lead to persons assessing it as fair. These components of perceived procedural justice are the ones that will be investigated in the light of Article 6(1) ECHR requirements. ¹⁹

Procedural justice is distinguished from distributive justice which instead refers to the fairness of outcome distributions. ²⁰ Besides this distinction, regular reference is made to three other types of justice: interpersonal, informational, and interactional justice. Interactional justice refers to ‘the quality of interpersonal treatment people receive when procedures are implemented’ ²¹ and includes two elements: the treatment by the authority figure who enacted the procedure (interpersonal justice) and how they communicated about the concerned procedure (informational justice). ²² While some scholars consider interactional justice as a third type, next to distributive and procedural justice, others view it as a subset of procedural justice. ²³

2.2. Classification of the different theories

It is important to distinguish between the various theories or models of procedural fairness as their departure points, regarding the purpose or aim of procedural fairness, differ considerably. Several theories have been developed as to why people value procedural justice. This Section focuses on the main ones.

First, according to an instrumental vision on procedural fairness, people value seeing justice being done because it increases the probability of a fair outcome. ²⁴ In such theories, the fairness of procedure is judged by ‘how well the procedure in question serves interests external to the experience of the procedure’. ²⁵ In Thibaut and Walker’s hypothesis, people – for instance – value process-control as an instrument to obtain their desired outcome. ²⁶

Second, there are several theories that apply a non-instrumental perspective, to which Tyler refers as a normative perspective. In such a perspective, individuals are also concerned with procedural elements which are not linked to the outcome. ²⁷ Thus, Lind and others demonstrated that hearing what people have to say after the decision has already been made, still enhances procedural fairness judgments. ²⁸ This supports the hypothesis that a fair procedure is valued for the message it conveys to the persons involved (for example, their views are worthy of being heard), ²⁹ and the information it provides on the subject’s relation to the authority. Hence, some refer to these as ‘relational models’. ³⁰ For instance, the group value model entails that people value fair procedure because it communicates to them that they are valued and respected members of the group. ³¹ The group engagement model departs from the idea that procedural justice communicates to people whether they can safely invest their social identities in a particular group. ³² These, in turn, have inspired other perspectives. Fairness heuristic theory suggests that people take the fairness of authorities into account ‘because ceding authority to another person raises the possibility of exploitation and exclusion’. ³³ Thus, in order for them to estimate how secure their position within a certain group or society is, they look for fairness information. This relates to the process of sense-making that occurs in uncertainty-provoking experiences, ³⁴ such as being summoned to court. ³⁵ To find out whether the judges in their legal system can be trusted, ³⁶ persons will rely on the information value provided by procedural fairness. ³⁷ Overall, what we see in a lot of those cases is the ‘fair process effect’. ³⁸ This term collects ‘the positive effect(s) that people’s perceptions of procedural have on their subsequent reactions’. ³⁹

Third, Folger advocates a ‘fairness-as-virtue’-model which abandons self-interest, but rather establishes procedures on the preservation of human dignity. ⁴⁰ In his opinion, both aforementioned models are instrumental and, thus, it is incorrect to distinguish between the two based on that presumed difference. Folger argues that both models reason from an individual’s self-interest that is either material (instrumental models) or esteem-based (relational models).

3. Relevance

3.1. Relevance of procedural justice research

Procedural justice studies are ubiquitous in several fields and contexts. In this subsection, some of the relevant findings will be highlighted. As explained before, Leventhal’s criteria were developed as a response to a disagreement about the division of funds in his workplace. In practice, organisations can implement procedural fairness theory in various aspects of their operations, for instance, building in performance evaluation systems to provide a base for the distribution of bonuses and raises. ⁴¹ There are several incentives for an employer to implement procedural fairness in their management decisions as it affects employees’ job satisfaction, trust in the company’s management, as well as reports on conflict/harmony and evaluation of supervisors. ⁴²

Additionally, research has been conducted on the procedurally just treatment of prisoners. In a detention context, a fair and respectful treatment of prisoners enhances prison order and decreases mental health issues. ⁴³ It is suggested that when inmates ‘feel treated fairly and respectfully by authorities, they will be more likely to obey authorities’ laws and decisions’. ⁴⁴ This is not only important in the relationship between prisoners and correctional officers, but desirable in citizen-police relations as well. Substantial research has been devoted to determining which elements influence people’s judgment on police legitimacy. It has been found that their judgment primarily relies on the fairness of the procedure. ⁴⁵ Whether people are treated with respect and/or in an unbiased manner is something that depends entirely on the behaviour of police officers, and is, as such, easier to control than other societal fluctuations that influence crime rates. ⁴⁶ For instance, in research on ethnic profiling, non-white respondents were less likely to feel that ethnic profiling had occurred when they believed the police used a fair procedure. ⁴⁷ Next to obedience of the law, legitimacy affects the willingness of citizens to empower or cooperate with the police. ⁴⁸

It is widely believed that public support for the political system has diminished over the past decades. As such, political psychologists have gained interest in what constitutes the basis for support of a political system. ⁴⁹ Procedural justice studies tend to focus on the general policy-making process, instead of on people’s personal experiences. ⁵⁰ Research has shown that, once again, judgments about the fairness of the procedure play a role in the manner in which citizens react to government benefits and taxation. ⁵¹ This is an important factor that politicians need to take into account when developing policies. ⁵²

Another context in which procedural justice research has been conducted – which is especially relevant for this contribution – is the functioning of courts. Lind and Tyler allege that while similar procedural concerns emerge in roughly all social environments, law – in particular – is ‘a natural arena for discussions and analyses of the behavioural consequences of various procedures’. ⁵³ This is because its essence is the regulation of social interaction. ⁵⁴ Legal authorities such as courts benefit from long-term compliance with decisions. ⁵⁵ Since judgments are often unsatisfactory for one party, relying on compliance of the parties involved is challenging. ⁵⁶ To avoid ‘a loser’ that will not be able to accept the court’s decision, Tyler and Huo propose a process-based approach instead of a deterrence strategy. ⁵⁷ With regard to their court case, people will be more likely to accept the decision and cooperate. In the bigger picture, this approach increases people’s belief that legal authorities are legitimate. ⁵⁸ In 1994, Tyler and Mitchell studied the institutional legitimacy of the US Supreme Court on abortion rights. This research indicated that people’s ‘views about the desirability of legalizing abortion’ did not influence their attitudes towards the Court. ⁵⁹ Alternatively, their evaluation of the decision-making process was decisive. It is especially striking that in a context as contentious as abortion rights, the Court’s decision itself does not matter as much as how the decision is made. ⁶⁰

3.2. Relevance as affirmed by the ECtHR

As mentioned in the introduction, institutional processes remain under-researched in human rights research. ⁶¹ Research into the right to a fair trial remains predominantly based on court rulings and legal theoretical texts about its foundations. Social scientific evidence remains largely in the background. Yet, we can find assumptions and logics in the Strasbourg Court’s fair trial jurisprudence ‘that have […] jumped a disciplinary divide’. ⁶² Every now and then, the Court refers in its jurisprudence to the effects of obliging by certain procedural guarantees by national courts that extend beyond the fair outcome of the procedure. ⁶³ Such references highlight the importance of social psychological procedural justice research for human rights scholarship.

The references can relate to certain broader societal effects of a fair procedure or to the effects on the individual. For instance, in Paduraru v Romania, the Court states that the reduction of the public’s confidence in the national judicial system can result from inconsistent jurisprudence. ⁶⁴ In Schatschaschwilli v Germany, Judge Kjølbro stated that consistency is an important factor for the ‘credibility and legitimacy of the Court’. ⁶⁵ For that purpose, the Court should avoid departing from precedents that were laid down in prior case law without good reason.

Additionally, in Ramda v France, the need for the public to understand a verdict is affirmed as a means to avoid arbitrariness and, thus, to contribute to ‘the public’s confidence in an effective and transparent justice system’. ⁶⁶ In two other cases, the Court has held that the introduction of a procedure that satisfies requirements of impartiality and independence may enhance public confidence. ⁶⁷ The public character of court hearings is also seen as ‘one of the means whereby confidence in the courts can be maintained’. ⁶⁸

An example of a mentioned individualised effect is that of a reasoned decision that demonstrated to the parties that they have been heard. ⁶⁹ In some cases, the Court has added that giving the parties the impression that they have been heard contributes to more willingness to accept the national court’s decision. ⁷⁰ This was evident in Kress v France, where the Court related the transparency of the decision-making process not only to the acceptance of the final decision by the litigants in that particular case but also to the acceptance of the public. ⁷¹

These instances appear to reflect the importance the Court attributes to the empirically established effects of fair procedure without enlightening the public as to the research that has demonstrated these effects. However, in Regner v The Czech Republic, Judge Serghides’ partial dissent did explicitly take into account empirical procedural justice research. ⁷² As the applicant was not given a reasonable chance to state his case, Judge Serghides pointed out that this is not in accordance with what empirical research by Tyler has demonstrated as contributing to trust in the courts and the law. ⁷³ In this regard, he stressed the importance of procedural justice for the ECtHR as a supranational body but also for human rights matters at the domestic level. He followed Brems and Lavrysen, ⁷⁴ who stated that the harm caused by a lack of procedural justice should systematically be taken into account in this latter sphere.

4. Comparison of the procedural elements

In this Section, the elements of the human right to a fair trial will be compared with the elements identified in empirical procedural justice research. First, the method used to select the criteria for comparison will be explained. Then, the context in which these procedural protections apply or should apply will be briefly discussed. Lastly, the procedural criteria that are identified in both disciplines will be compared.

4.1. Method for selection

The elements of the right to a fair trial were identified based on doctrinal legal research. ⁷⁵ Westerman uses the term ‘legal doctrine’ for research in which the legal system is ‘the main supplier of concepts, categories and criteria’. ⁷⁶ The process starts with the collection of normative and authoritative sources. ⁷⁷ These include the ECHR, the Council of Europe’s Article 6 Guide, case law and relevant scholarly legal writings. The selection of relevant case law is based on the mentioned Article 6 Guide and relevant scholarly contributions, as well as a HUDOC ⁷⁸ search using specific keywords for cases with the ‘key case’ label, and the Court’s own references to relevant previous case law in its judgments.

As stated, the aim of this contribution is to identify whether guarantees offered by Article 6(1) coincide with the findings of empirical procedural justice research. Thus, it is through the identified elements of the right to fair trial under Article 6(1) that comparable factors that enhance perceived procedural fairness as determined in social psychological research will be assessed.

4.2. Applicability

Before starting the analysis of the procedural elements, some attention has to be paid to the applicability of the criteria that will later be identified.

First, the cases to which the right to a fair trial applies will be briefly discussed. The focus is on Article 6(1) of the ECHR, which contains the guarantees that are common to the civil and criminal limb. For the purpose of this contribution, the focus lies on civil cases only and, therefore, guarantees that apply to criminal cases specifically will not be included. Article 6(1) applies in civil matters when a ‘genuine and serious’ ⁷⁹ dispute exists, which relates to a right ‘recognised under domestic law’ ⁸⁰ and the proceedings are directly decisive for the right in question. ⁸¹ Accordingly, a fair number of judicial disputes are exempt from procedural protection offered in Article 6(1). Examples of exempt disputes include – but are not limited to – the proceedings regulating citizenship ⁸² or the ‘entry, stay or deportation of aliens’, ⁸³ ‘voluntary’ arbitration ⁸⁴ and certain disciplinary proceedings. ⁸⁵

As explained in the above Section on relevance, procedural justice research has been conducted in a myriad of contexts. While the first systemic procedural justice study focused on legal settings, similar responses have been found in most social environments. ⁸⁶ It is believed that across different dispute resolution procedures, many of the same psychological processes are observed. ⁸⁷ As such, the relevance of the social psychological procedural justice criteria that are included here have been established in a variety of allocative processes.

4.3. Criteria

In this Section, the procedural criteria that are identified in both disciplines will be compared. The starting point of this comparison is the following question: ‘to what extent do the elements of the right to a fair trial find a basis in empirical procedural justice research?’

4.3.1. Impartiality, independence and consistency

A blindfolded Lady Justice represents consistency across persons, with judicial independence and impartiality that have long been a part of the understanding of a fair trial internationally. ⁸⁸ In the ECHR, we find the requirement of ‘an independent and impartial tribunal established by law’ in Article 6(1).

Judicial independence is an essential element of the maintenance of human rights at both the domestic and the international level, with a legal foundation that dates back as early as the 18th century. ⁸⁹ Independence requires institutional features to shield judges from external pressures. ⁹⁰ It affirms the importance of protecting the judiciary from other powers, ⁹¹ in particular the executive, ⁹² but also from the parties to a conflict. ⁹³

Impartiality implies that the judge is not biased with regard to the subject of a certain dispute, nor to the parties to said dispute. ⁹⁴ Impartiality includes both an objective and a subjective element. ⁹⁵ While the former ascertains whether enough guarantees are offered to exclude any legitimate doubt on the partiality of a given judge, the latter relates to a judge’s personal conviction in a given case. ⁹⁶ The objective element relates to cases where there is an appearance of bias, ⁹⁷ which could be present, for example, when a person deals with the same case during their office in the public prosecutor’s department and as a judge. ⁹⁸ The subjective element comes into place when an individual judge’s personal prejudice plays a role, for instance when racist speech is uttered. ⁹⁹ Another example is when judges act a certain way to promote the interest of one party to the detriment of the other, or to further their own personal interest. ¹⁰⁰

Kuijer argues that the essence of impartiality is captured by the notion of ‘neutrality’, which is also a more commonly used term in social psychological literature. ¹⁰¹ In a recent qualitative study, neutrality was found among the most frequently mentioned elements in defendants’ perceptions of procedural justice, with ‘lack of prejudice, seeing both sides of the story, independence, impartiality, and objectivity’ ¹⁰² all mentioned as aspects falling under the broader heading of neutrality. Leventhal included the bias-suppression rule which forbids the influence of personal self-interest and ‘blind allegiance to narrow preconceptions’ in the process, ¹⁰³ implying the precedence of prior views over evidence. Described as an element of interpersonal justice by Bies and Moag, propriety precludes the uttering of improper or prejudicial statements. ¹⁰⁴ The above criteria contribute to the widespread understanding and acceptance that legal procedures are not influenced by or dependent upon the personal characteristics of the subject.

Both independence and objective impartiality have – to a certain degree – an institutional focus that we will not find in procedural justice research. ¹⁰⁵ This can be explained by the inherent difficulties in measuring fairness perceptions beyond what one can observe. Yet, the prescription of the absence of favouritism, personal self-interest and the allegiance to narrow preconceptions greatly coincides with subjective impartiality. Additionally, in some cases, objective impartiality will become visible to parties as well (for example, when a judge who made public statements about the case is removed), yet for the most part interventions to further objective impartiality will remain invisible to the public. As such, institutional measures aimed at protecting decision-makers from undue influence or pressure cannot be perceived by the parties. Leventhal did discuss applying procedural justice criteria to components such as the ‘selection of agents’ or ‘safeguards’, but these ‘institutional’ aspects are much more difficult for subjects to perceive. ¹⁰⁶ Yet, in the abovementioned qualitative study, participants mentioned judicial independence, referring to the judge being able to rule on a case independent of what the public prosecutor’s standpoint was. ¹⁰⁷

Consistency is not explicitly included in the ECHR. Yet, the need for consistency over time has been implied and confirmed by the following jurisprudence. In the case of Paduraru v Romania, the ECtHR explicitly confirmed that a lack of consistency in the practice of national courts could lead to a reduction of ‘the public’s confidence in the judicial system’. ¹⁰⁸ A lack of consistency is hereby due to ‘profound and longstanding differences’ in domestic courts’ case law. ¹⁰⁹ In an earlier case, the Court found ‘serious procedural shortcomings’ on account of the conflicting interpretations of domestic courts. ¹¹⁰

In procedural justice research, consistency is a central criterion which applies (at least) across time and across persons; meaning that similar procedures need to be applied to all potential recipients and at least remain stable in the short term. In later research, exploring the weight of Leventhal’s criteria, it was found that consistency was extremely important in the assessment of procedural justice, carrying more weight when assessed across persons than across time. ¹¹¹ Consistency is measured with items that question whether standards are generated in the procedure in order to make consistent decision-making possible ¹¹² and whether, in fact, they were used. ¹¹³ Next to procedural consistency, people relate their experience to ‘the outcome that people generally receive in similar situations’, ¹¹⁴ which would be seen as an element of distributive justice. ¹¹⁵

4.3.2. A fair and public hearing: Participation in the procedure

The entitlement to ‘a fair and public hearing’ is included in the ECHR. Mostly, the element of a fair hearing is not assessed by the ECtHR as such, but implies other specific rights. ¹¹⁶ Yet, in some cases the Court rules on the overall fairness of a procedure. When evidence has been used that is questionable, the Court evaluates whether there were enough safeguards in order to guarantee ‘the fairness of the procedure as a whole’. ¹¹⁷

The concept of ‘a fair and public hearing’ includes two elements that refer to the public nature of the trial: the right to publicity ¹¹⁸ and the right to publication of the Court’s decision. ¹¹⁹ A third element, the right to an oral hearing and a personal presence of the litigant or defendant, is included in this notion. ¹²⁰

This idea of a public hearing does not seem to be present in social psychological research, but it could be seen as a means to promote accuracy. ¹²¹ According to Leventhal, accuracy requires a process ‘to rely on good information and informed opinion as much as possible’ which relates to evidentiary rules. ¹²² A study by Sheppard and Lewicki identified accuracy as imperative for fair treatment. ¹²³ Leventhal’s accuracy rule determines that the allocative process has to rely on good information and informed opinion as much as possible. These safeguards deter agents from violating fair procedure and lead to more accountability. ¹²⁴

It could be argued that it is only natural that we find that requirement of ‘public nature’ only in the context of the right to a fair trial, as ‘the watchful eye of the public’ aims to protect the interests of the parties and the fairness of the proceedings. ¹²⁵ Importantly, the public hearing is a way of rendering the process more transparent. ¹²⁶ The element of transparency can be found in procedural justice research. Schafer defines it as ‘the degree to which decisions are being made in a manner that is visible to those inside and outside the organisation’. ¹²⁷ For now, a positive correlation between transparency and trust remains at the level of speculation. ¹²⁸ Rather, higher levels of transparency have been found to lead to lower levels of trust. ¹²⁹

The reasons to require a party’s presence are twofold: ¹³⁰ on the one hand, to collect evidence from them as witnesses ¹³¹ and, on the other hand, to allow the judge to assess their personality and capacity. ¹³² Finally, according to the ECtHR, a party has the right to effectively participate in the procedure, ¹³³ which does not include a right to personal presence. Instead, it accords to parties – on an equal basis – a ‘more general right to present one’s case effectively before the court’. ¹³⁴ Captured in the maxim audi alteram partem, it implies that parties must be heard when a decision may adversely affect them. ¹³⁵ Only when parties’ observations are ‘duly considered by the trial court’, substantive participation ¹³⁶ takes place. ¹³⁷

Participation is an important criterion in social psychological research on procedural fairness. Leventhal proposed representativeness in all phases of the process should guarantee that they reflect ‘the basic concerns, values and outlook of all important subgroups in the population of individuals affected by it’. ¹³⁸ He links this rule to participatory decision making, corresponding to Folger’s voice ¹³⁹ criterion, which signifies that people should be provided with ‘the opportunity to tell their side of the story in their own words before decisions are made’. ¹⁴⁰ Additionally, it is important for people to understand that these views are being considered by the authority. ¹⁴¹ The representation dimension was first found in two criteria developed by Thibaut and Walker. First, process-control implies that people have the opportunity to state their case to a decision-making authority before the decision is made. ¹⁴² Second, decision-control relates to the influence of these statements on the final decision made by the authority. ¹⁴³ Later, Sheppard and Lewicki identified representation as imperative for fair treatment. ¹⁴⁴

It is fair to say that the right to present one’s case before a court and effectively participate in the procedure is very well established in procedural justice research. Recent qualitative studies have reaffirmed the importance of parties being able to voice their opinion and to have their opinion taken seriously, ¹⁴⁵ which has been expressed as giving it ‘due consideration’. ¹⁴⁶

4.3.2. Access to court and right to appeal

Without access to court the guarantees offered by the right to a fair trial are of no use. ¹⁴⁷ Although this element is not part of the written guarantees of the human right to a fair trial, it is seen as a natural corollary ‘which emanates from its spirit of protection’. ¹⁴⁸ It entails that a person must have effective access to a court in order to settle an arguable civil claim, that they have the right to properly prepare for the case, and that they are kept informed by the authorities of the measures that are taken to secure their civil right. ¹⁴⁹ There is no right of appeal included in Article 6 of the European Convention. ¹⁵⁰ Yet, when an appeal procedure is available, it is covered by the guarantees of that article. ¹⁵¹ In cases of a criminal nature, there is a recognised right to a review by a higher tribunal. ¹⁵²

The relevance of access to court is mirrored by the correctability rule in procedural justice research. Leventhal presumed the importance of opportunities to modify decisions at various points in the allocative process. ¹⁵³ Barriers when launching an appeal are expected to impact individual fairness perceptions. In his Chicago study, Tyler asserts correctability by asking respondents whether they know of an ‘agency or organisation’ where unfair treatment can be addressed. ¹⁵⁴ Respondents were found to be more concerned with this aspect in a court context than when dealing with the police. ¹⁵⁵ The opportunity to appeal a judgment was mentioned by respondents when asked whether they were treated justly during the court hearing. ¹⁵⁶

It would appear that access to court would coincide with access to any procedure to challenge a decision. The fact that we cannot find this in procedural justice literature is thus self-evident. The possibility to appeal can seemingly rely on an empirical foundation.

4.3.3. Reasoning of judicial decisions

The right to know the reasons upon which decisions are based is included in Article 6(1). ¹⁵⁷ It obliges courts to give sufficient reasons for their decisions. ¹⁵⁸ A well-reasoned decision shows parties ‘that they have been heard’ and allows them to make use of an appeal possibility. ¹⁵⁹ Although a reasoned decision does not have to contain a detailed answer to every argument, ¹⁶⁰ the main arguments made by the parties need to be answered ¹⁶¹ and the decision needs to outline its ‘factual and legal basis’. ¹⁶² If a proper reasoning is lacking, this can indicate that the parties’ arguments have not been subjected to a proper examination. ¹⁶³

In procedural justice research, two informational criteria come into place: justification and truthfulness. Justification refers to the ‘adequate explanations’ that ought to be provided for the decision that was made, while truthfulness refers to the ‘honest, open and candid’ character of these explanations. ¹⁶⁴ The importance of offering thorough and reasonable justifications in a timely manner is endorsed by several other researchers. ¹⁶⁵ Defendants expressed their appreciation for judges taking into account the information they brought forward when making a decision. ¹⁶⁶

While there are great similarities between the right to be heard and the criterion ‘voice’, the need for a well-reasoned decision is not expressed in perceived procedural justice. Yet, the requirement of a well-reasoned decision is a means towards an end, namely for parties to verify the consideration that has been given to the information they brought forward. What else would allow parties to assess whether their arguments have been taken into account or whether they affected the final decision? A proper reasoning is the only way to know.

4.3.4. Reasonable time

The need for a hearing to be held within a reasonable time is expressed in the ECHR. In Strasbourg jurisprudence, there is not a fixed time limit by which to examine a case. ¹⁶⁷ Rather, the ECtHR assesses the reasonableness of duration according to the circumstances of each case. ¹⁶⁸ The three main criteria taken into account in this evaluation are the nature and complexity of the case, ¹⁶⁹ the conduct of the applicant ¹⁷⁰ and the conduct of the authorities. ¹⁷¹ The aim of the provision is to limit the duration of a state of uncertainty. ¹⁷²

Some social psychological studies can be found that support ‘speed’ as a procedural justice principle. ¹⁷³ Relying on uncertainty management theory, Valkeapää and Seppälä proposed the investigation of speed as a principle of procedural justice. ¹⁷⁴ They found that both very fast and very slow decision-making processes produced more uncertainty. A more moderate processing time related to more positive fairness perceptions. Thus, persons prefer a procedure to be ‘timely’. ¹⁷⁵ Additionally, a recent qualitative study found that participants were concerned with ‘case processing time’ besides other more ‘traditional elements’ of procedural justice. ¹⁷⁶ Sometimes, it is not seen as a principle of procedural justice, but it surfaces in relation to the sharing of information instead, and thus as an aspect of informational justice. ¹⁷⁷ Moorman indeed measured the timeliness of feedback in his assessment of interactional justice, ¹⁷⁸ as did Colquitt. ¹⁷⁹ In some research, duration has been take into account as an objective construct. ¹⁸⁰ When questioning the reasonableness of a certain duration, respondents were asked to take into account ‘what had to be done’. ¹⁸¹

In the right to fair trial, reasonable time is a very important element. Often, a violation of Article 6(1) is found purely on the basis of procedures taking unreasonably long. It is interesting to note that the stated aim of limiting the period of uncertainty that we find in Article 6(1) is visible in the uncertainty management theory on which the study of Valkeapää and Seppälä was based as well. Thus, the reasonable time requirement is founded on an empirically assessed need for a reasonable processing time of decisions.

4.3.5. Equality of arms

Sidhu stated that equality between the different parties in a procedure engages ‘our intuitive sense of procedural fairness’. ¹⁸² In the ECtHR’s jurisprudence on Article 6, it has been specified that ‘each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent’. ¹⁸³ Equality of arms applies – as some sort of umbrella right – to other rights such as the adequacy of time, the right to legal assistance or the right to challenge and call witnesses. This principle is present throughout research on perceived procedural justice: the need to treat parties in an equal vein has been affirmed in several elements, such as – for instance – consistency and neutrality.

4.3.6. Substantive accuracy

Accuracy does not represent an element of a fair legal procedure. Rather, it can be regarded as an aim that underlies other procedural guarantees. The public character of a trial, for example, can be said to promote accuracy. ¹⁸⁴ According to Leventhal, accuracy requires a process ‘to rely on good information and informed opinion as much as possible’, which relates to evidentiary rules. When assessing the proportionality of a child custody decision, the ECtHR investigated whether the decision was ‘based on the relevant considerations and [was] not one-sided’. ¹⁸⁵ A study by Sheppard and Lewicki identified accuracy as imperative for fair treatment. ¹⁸⁶ Leventhal’s accuracy rule determines that the allocative process has to rely on good information and informed opinion as much as possible. These safeguards deter agents from violating fair procedure and lead to more accountability. ¹⁸⁷ Whether authorities are in possession of the information required to make a fair decision was described by Tyler as an indicator of neutrality, ¹⁸⁸ but may equally be described as a key indicator of accuracy.

4.3.7. Respectful treatment

According to Settem, respectful treatment is seen as one of the three fundamental principles within Article 6(1). ¹⁸⁹ He underlines the importance of treating parties with sufficient respect during the proceedings. Reference is made to Strasbourg case-law in which the ‘general spirit of the hearing’ was taken into account. In another case, the Court held that the disrespectful behaviour of a national judge could have rendered the proceedings unfair. ¹⁹⁰ In criminal cases, this aspect is related to a lack of human dignity in situations where defendants have been kept in a metal cage during the trial. ¹⁹¹ Yet, overall, reference to this aspect of the right to fair trial is quite scarce, whereas in procedural justice theory, respect for those involved in court proceedings is one of the central elements. ¹⁹²

It has been established in social psychology that viewing the decision-making as an abstract set of procedural rules is inadequate. ¹⁹³ Interpersonal justice in the form of politeness and respectful treatment by authorities is an important factor to take into account. ¹⁹⁴ Morgan found that almost all of her interviewees expressed a wish for respectful treatment. ¹⁹⁵ People valued being treated as a human being during the judicial proceedings instead of ‘being just a number’. ¹⁹⁶ The criterion of standing or status recognition ¹⁹⁷ can refer to respectful or polite treatment, ¹⁹⁸ items that are often joined by questions on dignified treatment during a procedure. ¹⁹⁹ However, items questioning ethical management of a case are classified under the criterion of ‘trust’. ²⁰⁰ In another context, trust ²⁰¹ or good faith relates to the assessment of the authority’s fair intentions, holding close resemblance with ‘sincerity’ ²⁰² and ‘trustworthiness’. ²⁰³

The fact that this is barely present in our legal understanding of a fair procedure in civil cases is hardly surprising. This should of course not necessarily be interpreted as a lack of interest into the quality of interactions with judges in the courtroom. The ECtHR explicitly affirmed the importance of respectful behaviour by judges. Yet, it remains difficult to establish until this behaviour reaches a certain level of severity. In those cases, finding a violation of subjective impartiality will be the preferred option.

5. Conclusion

This contribution set out to study to what extent the elements of the right to a fair trial have been established by empirical procedural justice research. After demonstrating the relevance of procedural justice research in the context of the right to a fair trial, the procedural criteria from Article 6(1) were measured to those identified in procedural justice research.

This comparison has shown that there is a great deal of overlap between the guarantees included in the right to a fair trial and those that have been empirically established in social psychological procedural justice research. There are certain elements to legal procedure that are not apparent to parties in judicial proceedings and, thus, will be found in procedural justice research much less. On the other hand, it is evident that people value how procedures are enacted, and lack of respectful treatment by legal authorities can throw a spanner in the works of the fair process effect.

It is positive to find this common ground between a normative perspective and a perceived one. As more and more empirical research is occurring into what lay people perceive to be conducive to a fair process, human rights scholars should be willing to take this valuable body of research into consideration in their study of a fair trial. Until then, it appears we can count on the judges in Strasbourg to lead the way.