An Overview of Fair Trial Standards and National Security from a Comparative Perspective

Abstract

This chapter discusses various competing theories of due process and approaches to the concept of fair trial, by applying a comparative lens to the European and American experience. Focus is geared towards highlighting the relevance and definite correlation between fair trial rights and terrorism that is guaranteeing certain fair trial rights for the people, while not jeopardising the level of national security. The application of due process should guarantee that the government respects all the legal rights owed to an individual person. Examples are used to illustrate some of the pressures upon upholding the right to a fair trial, i.e. tensions arising from cases involving terrorism, the disclosure of documents and access to a lawyer, for example. Significant UK and US case law examples are provided to illustrate and compare the different means utilised by each country in approaching the duty of securing the right to a fair trial. Thorough analysis of the constitutions and criminal justice systems of the EU member states is provided, with an examination of how each state conceptualises what constitutes a ‘fair’ trial. Particular attention is also paid to the Hungarian situation in light of the extensive constitutional reforms that have been putting Hungary under scrutiny from both the media and the EU.