procedural law

Question 1

judicial independence

Answer 1

• isolation of outside influences
• is guaranteed when disputes over content law are settled by power that cannot be influenced by others
• concept of fair trial as core of modern democratic societies
• appointment for life to make sure there is no fear of the government or make decisions in their favor
• strong salaries to attract
• judicial budget is allocated by institution between central gov’t and judiciary
• contempt of court: parties, media & public are not allowed to comment on procedure pending before the court sub justice before a certain amount of time since comments could influence the process

Question 2

judicial impartiality

Answer 2

protection from inside bias
->can be proved by parties, not only by judge themself
- it’s necessary for courts to decide alongside the lines of law instead of personal biases
- carefully, psychologically selected lawyers
- salary as high as of private lawyer to prevent corruption
- if judge feels they can’t be impartial they should exempt from the case
- subjective test should establish whether judge acts with personal bias
objective test
- objective test -> it must be determined whether, quite apart from the judges personal conduct, there are ascertainable facts, which might rise doubts to his impartiality”
- limitations in private life to ensure credibility remains
- no strong affiliations for parties

Question 3

standing

Answer 3

you need to have interest to have legal standing
-> Is it pertinent to my rights and interests?

• standing needs to be restricted because of costs, protection of the third party and procedural aspects

Question 4

adversial model of criminal procedure

Answer 4

• opposing parties collect evidence themselves
• jury (12 laymen) returns guilty or innocent verdict without reasoning
• passive judge; active jury
• battle between prosecution and defense

Question 5

inquisitorial model of criminal procedure

Answer 5

• empowers investigator judge to collect all relevant evidence available
• trial court gives reason for verdict
• battle between parties
• judge as find fact finder

Question 6

basic structure of a criminal process

Answer 6

1. Investigation
   - process in which a suspicion gets looked into, in order to find out if a crime has been committed (unveiling all circumstances)
2. Trial
   - impartial court decides whether the accused is guilty of the alleged crimes
   - revolves around statement of facts and law contained in the indictment

Question 7

Principle of access to court

Answer 7

courts must exist, be legally available + BE ACCESSIBLE IN PRACTICE
-> i.e. funds for lawyer if you cannot pay

Question 8

Principle of a fair trial

Answer 8

• equality of arms (ex parte)
• principle of audiatur et altera pars
• right to an oral hearing
• right to be present at the trial
• publicity (non-public)
• judgement within reasonable time
• reasoned judgement

Question 9

Right to produce evidence

Answer 9

guidance on assessment of evidence
-> nowadays free assessment (sth might weigh more than sth else but it’s only decided after hearing)
- hard rules (witness is never enough to win a case; prohibition of self-incrimination)

Question 10

Right to Appeals

Answer 10

right to get “second opinion” in a higher court (limited)

Question 11

principle of proportionality

Answer 11

state authorities should not make arbitrary use of their coercive and intrusive powers

Question 12

principle of legitimacy

Answer 12

it’s up to the law to set out conditions under which state authorities are allowed to take investigative measures