اصول دادرسی منصفانه و تجلی آن در رفتار و خدمات قضایی:‌با تکیه بر کرامت انسانی

Principles of Fairness in Judicial Treatment and Services: The Issue of Human Dignity in Legal Settings


Obviously, fair trial in legal literature has captured public attention in all legal systems since 1948 when the Universal Declaration of Human Rights was approved by the UN. While the conceptual infrastructure of fair trial has been structured by the global criteria of human rights, the situation of a fair trial has deteriorated more and more. If someone takes a closer look at the reason, it is obvious that it is really hard to make a balance between individual needs and all defined as social ones. Therefore, it is necessary to stand on a certain concept and definition in advance. Because conceptual diversity has attracted public and academic attention as a vital reason about why national, regional and international instruments of human rights cannot reach a fair situation yet.

  1. A Conceptual Paradox

It is actually impossible to overstate how important the right to a fair trial is. While fair trials are not the only way to prevent justice from breaching, it is seemingly an essential part of a just society. The right of free access to legal procedures means that every person accused of a crime can defend without any hesitatation. It also includes that they should have their guilt or innocence determined by a fair and effective legal process. In some countries, it is just a claim, because they have not reached a definite conceptual definition about the term of fair trial when they reconstitute their constitutional principles like after national revolution and so on. It is worth mentioning that some factors have been used to determine the concern about whether a defendant received a fair trial, for example. The effectiveness of the assistance of counsel, the opportunity to present evidence and witnesses, the opportunity to rebut the opposition’s evidence and cross-examine the opposition’s witnesses, the presence of an impartial jury, and the judge’s freedom from bias, are six beneficial and detrimental examples to present how important it is to explain about the meaning and the scope of fair trial. It is reasonable to assume that the consequential result is focusing on the performance of fair criteria making societies safer and stronger. If not, victims can have no confidence giving us an objective guarantee about the achievement of justice. Consequently, trust in government and the rule of law would collapse, while the public does not have any sense about a real belief in fair trials. The academics and legal professionals are struggling to interpret the current legal and political literature in order to provide the spur to further research. They are searching about a new way out to preserve the right of humans and their state’s socio-economic benefits.

  1. A Theoretical Paradox: Current Status and Future

Lawyers focusing on constitutional laws claim that there are enough tools to mingle this concept with their legal systems without changing their traditional frameworks. Suspiciously, it puts us wrongfully on the awry status. It is easy to understand why this kind of judgment is recognized by the international community as a basic human right. It is gloriously likely to facilitate a judicial process leading us to figure out about how unfortunately the fair trial is being abused in countries around the world. The need of change is a real sense. Stopping on a stable stand for years cannot meet the real needs of human too. Human is changing and the institutions like the idea of fair trail should be redesigned step by step. Therefore, the movement attempting to define this concept beyond the borders of a single country, claims that this basic human right is being abused regularly in countries across the globe. Nonetheless, fair trials have not been recognized practically by the international community yet, despite of the vast range of articles and other scientific resources published moment by moment.

  1. A Practical paradox: Human Rights and Judicial Sovereignty

We are facing a serious challenge interfering with crossing over the threshold of justice. The scale and the nature of this challenge are related to the number of people directly affected by criminal justice. Technical and legal language approves the growing rate of new offences created every day and an ever increasing number of people are being jailed. Therefore, they are the elements which function effectively to either improve or deteriorate the principal of fairness parallelly. Meanwhile, they are originated by some countries developing swifter ways to impose punishments, often without a trial. It is not clear yet whether the global “war on terror” and flawed political talk of “rebalancing” criminal justice systems can perpetuate social injustice or make us safer, for examples. Perhaps, it increases our problems in short or long-term. Some approaches claiming that they are principal to protect society as a whole have a corrosive effect on the process strengthening dictators and authoritarian regimes, instead of finding new ways to enjoy criminal justice. Unexpectedly, human rights are facing new threats generated by increasing cross-border cooperation to fight crime. In some countries, such a need pushes them to breach the principles of fair trial.

  1. Obligations and Restrictions

First and foremost, the performance of principal of fairness in the courts will complicate the process of developing human rights criteria in societies, if it has not been written by the actual needs of human. In addition, purposes also must be designed to meet the need of citizens, not necessarily the need of their governments. The definition of this concept promotes systems to throw some traditional patterns out. The purposes will be likely to achieve constitutional amendment. The question may be raised:” Are they enough?” It seems the society needs to restructure cultural elements to motivate all citizens, lawyers, judges and decision makers to respect and ensure to respect the principles of fairness in their judicial body.  It is predictable that some persons stand against the process of legitimizing or delegitimize traditional arid attitudes. It is hard to change some pervious public or individual tenets. Education assists them and their society to comprehend better whatever they need to know and behave. Law and policy are providing a wide range of contraceptive choices and all parties must exercise restraint more and more. Actually, they are rehearsing democracy, while it is crushing for a conventional generation. They have no solution. They just attempt to interface with the next generations requesting a new life based on the fair atmosphere defined as judicial security in new concept. Media, TV shows, newspapers, social media and so on, have instigated the increasing tendency about such a movement. But it is not enough yet. States are highly recommended to reduce the widening gap between human right and their interest of the sovereignty as a whole widely. As well as national states, it is necessary to attend to international activities. Global, international and regional organizations as well as humanitarian NGOs must be activated to boost efficiency, avoid misunderstanding, exchange essential information and promote cultural needs.


Irrespective of all adverse attitudes claimed by writers, the common chapter is that the fair trial refers to a court management fairly, justly, and with procedural regularity by an impartial judge. Of course, a fair court is a place where the defendant is afforded his or her rights under the constitutional law or other appropriate regulations. In addition, the Right to a Fair Trial is recognized internationally as a fundamental human right. Therefore, countries are required to respect it practically. Different countries have developed different ways of doing this, but regardless of how a particular legal system operates, the principles above are core to all fair justice systems. They all form part of the Right to a Fair Trial without any discrimination.

نوشته شده توسط دکتر حسین سرتیپی 1399-08-04
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