Due process of law is interpreted here as rules that are administered through courts of justice in accordance with established and sanctioned legal principles and procedures; with safeguards for the protection of individual rights. The common interpretation of the concept of due process is broader and may include the rules applicable in case of deprivation of liberty, rules related to property and rules related to administrative procedures. Here the concept is limited to the rules applicable to the administration of justice. Moreover, the supervisory mechanisms discussed in this book have repeatedly illustrated that the administration of justice of courts does have a major impact on the exercise of power within states such as public prosecution and the actions of the police and penitentiary authorities.

Due process includes here, inter alia, provisions ensuring an accused person a fair and public trial before a competent tribunal, the right to be present at the trial, and the right to be heard in his or her own defence. Due process includes both the right to a fair trial and the right to an effective remedy. Both rights are closely related. They are discussed here successively.

The complexity of the administration of justice, as well as the hundreds of years of national traditions which have been developed in relation to it, has created a wide diversity in terminology. This has obliged the international supervisory mechanisms to develop their own concepts and interpretation of terms used in the definition of a fair trial, effective remedies and other elements of the administration of justice. They thereby often emphasise that the various due process concepts have an autonomous meaning before international supervisory mechanisms. Notably the European Court of Human Rights has broadly interpreted the concepts related to a fair administration of justice. As it stated in Delcourt v. Belgium   (Application No. 2689/65, Judgement of 17 January 1970): ‘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 (1) would not correspond to the aim and the purpose of that provision.’

The provisions regarding fair trial are among the most frequently invoked rights under the European Convention . By rejecting a restrictive interpretation of that provision, the European Court gives guidance not only for its own case-law, but also to the national authorities, which have to apply fair trial principles. Indeed, its case-law, to be discussed hereafter, shows that the European Court considers itself competent to examine in-depth the way in which fair trial has been interpreted and applied by the national authorities.

One element of the rule of law is the role independent and impartial courts play in the legal system. This role is reflected in the provisions where the right to liberty is protected by habeas corpus, but the main provisions are to be found in articles that provide for the proper administration of justice. The aim of the fair trial articles is to secure justice by means of proceedings in court. Fair trial relates to the administration of justice in both civil and criminal contexts.

At the outset, it is important to understand that the proper administration of justice has two aspects to it, the institutional (e.g. the independence and impartiality of the tribunal and agencies which deal correctly with prosecution) and the procedural (e.g. the fairness of the hearing and the respect for the rights of parties). The various articles in international human rights instruments on institutional and procedural aspects of administration of justice create positive obligations for the states parties. In order to meet these positive obligations, states parties to the four human rights treaties that are the focus of this book must establish and maintain the institutional infrastructure necessary for the proper administration of justice. States must promulgate and implement laws and regulations guaranteeing that the proceedings themselves are fair and equitable. On the one hand, provisions on due process have a bearing on the structure of the state and hence indirectly on constitutional principles beyond the protection of individual rights. On the other, fair trial also protects the rights of the individuals who are subject to court proceedings as a party. Other participants, such as judges, prosecutors and victims cannot claim independent rights under fair trial articles. This chapter begins by discussing the institutional aspects of fair trial followed by examination of the respect for the rights to due process.