main source for the concept of a fair trial and related institutional and procedural matters,
since it is the only international court that can be appealed to directly by individual citizens
complaining about a violation of their rights under the Convention (Article 34 ECHR). This
has led to a vast amount of leading case law (www.echr.coe.int/hudoc), which is accessible
in English and French. Some important cases will be mentioned in this chapter.13.1.3 Overview
This chapter will first deal with the fundamental principles governing court systems
respecting the rule of law. These principles will be divided into institutional
principles and procedural principles. This distinction has no legal consequence,
but it helps to give a clearer picture of the ways in which safeguards can be
obtained.
The principles of independence and impartiality are institutional. They are
discussed in Sect.13.2.
Principles with direct consequences for the way legal proceedings are conducted
are procedural. They are discussed in Sect.13.3.
The last but one section of this chapter (Sect.13.4) introduces some general
aspects of the administration of justice by courts and court proceedings in general.
Court decisions require proceedings, and there are some general aspects to these
procedures that are worth remarking on.
13.2 Institutional Principles
The institutional principles relate to characteristics of the court system itself and are
generally considered to be essential for the proper administration of justice under
the rule of law. These principles are
- judicial independence and
- judicial impartiality.
13.2.1 Judicial Independence
The requirement of judicial independence is evident for every legal system that is
based on the principle of separation of powers. The balance between the three
powers (legislature, judiciary, and executive) is only guaranteed if disputes over the
content of law are settled by a power that cannot be influenced by the other powers.
This brings the concept of a fair trial (in its broadest sense) to the core of modern,
democratic societies. But even apart from constitutional choices, the notions of a
proper administration of justice and independence are inseparable. Independence,
after all, is equal to the absence of undue influence, thus allowing courts to decide
freely on the contents of the law and its just application.
13 Elements of Procedural Law 289