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31 Isr. L. Rev. 94 (1997)
Why Must Trials Be Fair

handle is hein.journals/israel31 and id is 102 raw text is: WHY MUST TRIALS BE FAIR?

Stefan Trechsel*
I. Introduction
A. Why Must Trials be Fair?
Why should fairness be a dominant interest of criminal proceedings?
Such questions are shocking, and asking them arouses perplexity. Fair-
ness is quite an obvious value, unquestioned in law, criminal proceed-
ings, in human rights and in everyday life.
It is certainly not the purpose of this paper to cast any doubt upon
the basic assumption that trials must be fair. However, there is a certain
attractiveness in looking for an answer to a question when the answer
appears to be obvious. There is also a chance that an analysis of the
background of a norm will strengthen that norm and the motivation to
respect it. Such a study may even add colour and contour to the norm
and assist in its interpretation.
B. The Positivistic Reason
It is particularly easy to give a reason for the necessity of fairness in
criminal proceedings if one adopts a positivist standpoint. This view can
already be found expressed in the Magna Carta of 1215. Since the
D6claration des droits de l'homme et du citoyen of 1789 and the early
American Constitution, it has become universal to include procedural
safeguards in constitutions' and laws of criminal procedure.
In addition to these sources of domestic law, a growing body of
international instruments, each with its own legal character, degree of
binding force and effectiveness of implementation have dealt with the
*   Professor of Law, University of St. Gallen, Switzerland.
1   Cherif A. Bassiouni, 'Human Rights in the Context of Criminal Justice: Identifying
International Procedural Protections and Equivalent Protections in National Consti-
tutions, (1993) 3 Duke Journal of Comp. and Int'l L. 235ss.

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