Abstract
Full criminal proceedings are avoided on many occasions. Criminal cases may be diverted from the courts and handled in administrative procedures, cases may be handled solely by the prosecutor or they are handled in a simplified manner by the court. A distinction is made between diversions and shortcuts. Diversions are avoidance mechanisms that infringe upon the principle of nulla poena sine iudicio. Shortcuts to proof infringe upon the full criminal trial because they allow for an abbreviated presentation and discussion of the evidence in front of the trier of fact. Diversions and shortcuts, also referred to as avoidance mechanisms, have to comply with the notion of fairness in criminal proceedings. The notion of fairness is derived from the case-law of the European Court of Human Rights. This book examines avoidance mechanisms that infringe upon the ideal type of conducting full criminal proceedings in Dutch and international criminal proceedings.
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Notes
- 1.
Duff et al. 2004, p. 10.
- 2.
For the purpose of this study, the notions of ‘adversarial proceedings’ and ‘une procédure contradictoire’ refer to the opportunity for the accused to challenge the evidence during the proceedings.
- 3.
E.g. Delcourt v. Belgium, in which the Court held: ‘In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 para 1 would not correspond to the aim and purpose of that provision.’ ECtHR, 17 January 1970, App. No.: 2689/65, (Delcourt v. Belgium), para 25.
- 4.
Such private law notions can play a role in determining whether the accused has validly waived particular procedural rights. If he has done so out of his own free will, the waiver is valid and cannot be revoked easily.
- 5.
Laudan observed: ‘It thus seems fair to say that, whatever else it is, a criminal trial is first and foremost an epistemic engine, a tool for ferreting out the truth from what will often initially be a confusing array of clues and indicators.’ Laudan 2006, p. 2. Emphasis in original.
- 6.
Cf. ECtHR (GC), 15 December 2011, App. No.: 26766/05 and 22228/06, (Al-Khawaya and Tahery v. United Kingdom), (French translation) para 118. As confirmed in: ECtHR (GC), 15 December 2015, App. No.: 9154/10, (Schatschaschwili v. Germany), (French translation), para 103.
- 7.
Duff et al. 2004, p. 12.
- 8.
- 9.
ECtHR, 8 June 1976, App. No.: 5100/71; 5101/71; 5102/71; 5354/72 and 5370/72 (Engel and Others v. The Netherlands).
- 10.
A distinction can be made between the principle of immediacy in the formal sense and in the substantive or broad sense. The first notion entails that all the evidence is presented in court (including second-hand or derivative evidence). The principle of immediacy in the broad sense entails that the court is provided with the original evidence. Damaška argued that this second notion can be equated with the common law ‘best evidence’-rule. Damaška 1992, pp. 446–448; Cf. Nijboer 1979, pp. 821–823.
References
Damaška MR (1992) Of hearsay and its analogues. Minn Law Rev 76:425–458
Duff A, Farmer L, Marshall, S, Tadros V (eds) (2004) The trial on trial vol 1: truth and due process. Hart Publishing, Oxford
Langer M (2004) From legal transplants to legal translation: the globalization of plea bargaining and the Americanization thesis in criminal procedure. Harvard Int Law J 45:1–64
Laudan L (2006) Truth, error and criminal law. An essay in legal epistemology. Cambridge University Press, New York
Nijboer JF (1979) Enkele opmerkingen over de betekenis van het onmiddellijkheidsbeginsel in het strafprocesrecht. Nederlands Juristenblad 36:821–823
Turner JI (2009) Plea-bargaining across borders: criminal procedure. Aspen Publishers, New York
Volk K (2010) Grundkurs StPO. C.H. Beck, Munich
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Vriend, K. (2016). Full Criminal Proceedings in Decline. In: Avoiding a Full Criminal Trial. International Criminal Justice Series, vol 8. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-153-1_1
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