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Features of the Rule of Law - Adjudicative Procedures Provided By The State Should Be Fair


The requirement of a fair trial has to be applied to criminal trials, civil trials and hybrid trials (procedures in which, for instance, one or more parties may suffer serious consequences if an adverse decision is made). Some principles have to be implemented:

- fairness must be on both sides (for prosecutors but also for defendants);

- fairness is a constantly evolving concept, not frozen at any moment of time;

- decision-makers (judges or not) have to be independent (in the UK this goal has been achieved through various steps, mainly the Act of Settlement 1701 and the Constitutional Reform Act 2005). Judges must be independent of ministers, government but also anyone and anything other (political parties, pressure groups, media, colleagues, etc.);

- decision-makers must be impartial: they must have open mind, ready to respond to the legal and factual merits of the case.

Today the UK has a professional judiciary which is as non-political as any in the world, and appointments are made on the recommendation of independent selection boards.
However, a rule of political neutrality in the judiciary has not been universally observer, neither in the past nor in the present. For example, in the U.S. federal judges are appointed on the nomination by the President (with Senate consent): in this way, Presidents have usually tried to appoint judges who shared their own political views.
The appointment of Supreme Court justices is a matter of acute political controversy, and many attempts to influence justices have been made in the course of time (e.g. by Eisenhower with Warren in the period in which Brown v. Board of Education was debated).
A fair trial should be granted in the three cases mentioned above.
In particular, criminal trials enjoy specific rules that have been evolving during the time: for instance, the requirement for a public trial, the presumption of innocence, the legal representation for those who cannot afford it, etc.

di Luca Porcella
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