Everyone has the right to a fair trial. The concept of procedural fairness is now acknowledged across Europe to be the principal means of guaranteeing the legitimacy both of the criminal proceedings and of the state’s mandate to punish individuals for criminal wrongs. The importance of ‘fairness’ as the dominant normative value reflects the success of provisions such as Article 6 of the European Convention on Human Rights, which expressly guarantees the right to a fair trial.
Much has been written on doctrinal and normative notions of procedural fairness. But there is comparatively little empirical data not just on the manner in which criminal proceedings are actually conducted and but also on the way in which trial rights are actually applied in practice. This lack of empirical evidence is problematic for a number of reasons, not least because this dominant understanding of fairness is underpinned by a number of presumptions which have not been adequately examined. These include the presumption that individuals know of and choose to exercise their defence rights, that individual rights can be uniformly applied, irrespective of the procedural environment, and that the strength of defence rights necessitates the balancing of these rights with those of other parties in the process, most notably victims, and other interests, such as efficiency and crime control.
The aim of the proposed trial observation project is to address this lack of empirical data by collecting evidence on the manner in which criminal proceedings are conducted and in particular on the way in which the fair trial rights are implemented. The introduction of the Federal Code of Criminal Procedure, which has resulted in the unification of criminal procedure law, makes it possible for the first time to examine differences in the implementation of the law arising as a result of factors such as legal tradition and culture.
The trial observation project comprises two distinct components: an empirical part and a theoretical part. In the context of the empirical part, the study aims to produce a descriptive account of the manner in which trials rights are applied in practice, with reference to the fair trial standards set out in Article 6 ECHR. These include: the guarantee of an independent and impartial court, the right to be heard, the right to counsel, the right to a translator, the right to confront witnesses, the right to a public trial and the right to trial within a reasonable time. In addition data will be collected on whether ‘fair trial’ concerns were raised during the proceedings and how they were dealt with by the court.
The descriptive account of the application of criminal proceedings in practice will provide the basis for a comparison in the theoretical part of the study of the reality of criminal proceedings with the normative conception of fairness. In particular it should enable consideration of the importance of differences in the application of the federal criminal procedural code in the various cantons. The empirical data will be gathered through observing criminal trials and by way of an observer-administered survey. The observational study will be conducted simultaneously in the criminal courts in Zurich, Basel, Bern and Geneva. These courts are responsible for large urban areas and have been chosen to enable a comparison of criminal proceedings in different cantons.
The data will be collected in the courthouse through systematic observation of criminal proceedings using the ‘observer-as-participant’ method. An observational coding system will be used. A fixed number of criminal cases chosen at random will be observed over a fixed time in each of the jurisdictions. Four PhD students will be employed as researchers to assist in conducting the observation. This will enable courts in the various cities to be observed at the same time. Each PhD student will be responsible for several undergraduates. Undergraduate students will be trained in the process of trial observation and employed as observers. They will assist the project by serving as one means of checking inter-rater reliability, but the project will also give them the opportunity to experience criminal law in practice.
In addition to the observational study, interview-administered surveys will be conducted by the trial observer in order to collect data from defendants appearing before the court and to collect information which is difficult to obtain by observation alone. The results will lend themselves to both qualitative and a quantitative evaluation.
A methods and statistics expert will assist in designing the coding system and surveys and in interpreting the results. The sampling procedure will be developed and tested by way of a pre-study investigation in order to ensure that the study is truly representative. Particular attention will be paid during this pilot phase to the issue of ensuring inter-rater reliability and to the suitability of the web-based database.
The main research aim of the project is to evaluate the fairness of the proceedings by considering the implementation of trial rights. In doing so several issues will be examined, including:
- the extent to which the rights set out in Article 6 ECHR and developed in the case law of the Court are applied in practice;
- the importance of institutional and organisational differences in the various jurisdictions to the application of trial rights;
- the perceived fairness of the proceedings according to the various participants in the proceedings, including in particular the accused.
The principal aim of the research project is scientific in that it seeks to produce a wholly new and valuable body of empirical evidence of trials rights in practice, but the project also has some broader goals. The study aims to combine teaching and research by allowing for students to take part in the observation of the trials. The Swiss-wide nature of the study lends itself to fostering national cooperation and the project also aims to promote international cooperation by way of an international colloquium.