Fair trial and due process: European and American doctrine

Abstract

The relationship between due process and the "right to a fair trial" in the sense of the European Convention on Human Rights or other international documents is not equivalent. The principle of due process, combined with the right of access to justice, an adversarial and broad protection, closes the cycle of procedural guarantees. In this way, the process is guaranteed, with the appropriate instrumental forms, so that judicial security, when it is carried out by the state, gives to each what is his. Due process of a substantive lawsuit concerns the limitation of the exercise of powers and authorizes a judge to question the validity of a given law and the fairness of state decisions, establishing material control over constitutionality and proportionality. It should be noted that the substantive theory means a fair legal process based on the principles of justice. For this purpose, it mentions the duties of proportionality and reasonableness. This similarity between proportionality and substantive due process is, in our view, very interesting for our analysis, for several reasons: a) it helps to clarify the meaning of substantive due process, which, considered in the abstract, is vague and imprecise; b) helps to eliminate the erroneous opinion that the essential content of due legal procedure will not be applied in the countries of the Romano-Germanic system, with less freedom for the judge than for the judge of the law...; c) reinforces the idea of ​​balance, which permeates the entire judicial process. As in the classic dilemma between speed and security. Given the great concern of modern constitutionalism in ensuring fundamental rights through constitutional process, it has been demonstrated that due process is an expression of democracy and citizenship by gathering in its content the numerous guarantees of the constitutional procedural order.
 This relationship is political and intellectual because due process and the right to a fair trial are elements of institutional liberalism that tend to make judicial moderation initially dependent on a certain number of procedural requirements. This relationship is normative, since both Due Process and the right to a fair trial have a scope that goes beyond the scope of the courts stricto sensu to be applied, including to court decisions.