Against ‘Al Khawaja and Tahery’ and the following ECtHR case law: The need to seek basic principles of fair trial assessment to prevent abuses and manipulations

Abstract

Procedural fairness plays a key role in the European Convention on Human Rights system of protection. However, by presenting itself as a fluid and elastic tool, modelled on the concreteness of the facts and the balancing of values, it assumes the characteristics of a guarantee with elusive contours and is open to easy manipulations, as the case law of the European Court has demonstrated over the last decade. This work aims at identifying some basic rules to be followed in the assessment of the fairness of the proceedings, to reduce the level of uncertainty of this guarantee and to protect it from the most serious abuses. Therefore, such rules can well be defined as the ‘basic principles’ of the fair trial assessment.