A characteristic element of modern democratic states is their ability to offer fair trials to those accused of crimes. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:
- We only want to punish real criminals. A fair trial is one in which everything is done to avoid punishing the wrong persons. We want to avoid miscarriages of justice.
- We want to use court proceedings only to punish criminals and deter crime, not for political or personal reasons, as is often the case in dictatorships.
One important condition for a fair trial is publicity. Justice must not only be done, it must also be seen to be done, not only to deter other criminals and to give consolation to victims, but also because publicity makes it more likely that the real perpetrator is punished. Every trial is therefore a show trial. The publicity of a trial makes it possible to judge the judge and hence to correct mistakes if necessary.
The secret trial is typical of authoritarian regimes because it allows for abuses of power. It makes it easier to use the justice system for other purposes than the identification and punishment of proven criminals. It is very hard to use a public trial for power games or oppression.
On top of that, false accusations or false testimonies are more likely to remain undiscovered in a secret trial. After all, it is not only the state that can gain from a secret trial. Interested third parties can also benefit from an unfair trial.
However, publicity alone does not guarantee that trials and verdicts are fair and just (which is clear from the phenomenon of communist show trials). The following elements are just as important (as with publicity, most of them are included in the main human rights instruments, for example articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights):
- No punishment or imprisonment without an indictment and without swift information on the nature of the indictment. If the purpose of the justice system is to punish criminals, it’s very easy to tell the suspect who we want to imprison before his or her trial about the crime he or she is suspected of having committed. After all, the crime has been committed and the accusers surely must know the nature of this crime. It must be awful to be imprisoned without knowing why. The absence of indictments indicates that the authorities merely wish to use the justice system to terrorize the population, not to punish crime.
- No excessively long detention on remand (detention without a lawful and fair trial and conviction). We do not want to incarcerate innocent people.
- The possibility of an appeal to a higher court. Mistakes can be made.
- A competent and impartial judge; fairness, according to the dictionary, means impartiality. A partial judge is an absurdity. Such a judge would be completely useless, and people would be better off fighting their cases amongst themselves, one against one instead of one against two.
- The possibility to defend yourself and to receive free legal assistance. The possibility to argue and to give counter-arguments, to call witnesses for the defense and to question witnesses for the prosecution. This requires time, hence this must be balanced with the point mentioned earlier about the excessively long detention without a trial. Swift justice can be as unjust as detention without a trial.
- Innocent until proven guilty. The burden of proof rests on the accusers. This is necessary to discourage wrongful accusations and also because the purpose of the trial is precisely the establishment of guilt. If guilt is assumed beforehand, then why have a trial in the first place?
- No forced confession, because that would defeat the purpose of convicting the real perpetrator. And no obligation to incriminate yourself (the right to remain silent), which is linked to the rule that the burden of proof rests with the accusers.
- No excessively tough penalties. The purpose is to punish, to prevent repetitions of the crime by the same criminal and to deter other criminals, not to balance the wrong that has been done by an equally painful punishment.
- “Ne bis in idem”: no two trials for the same offense. If people can be retried continuously for the same crime, then the purpose is obviously not the punishment of proven criminals, but punishment per se. Anyway, if all the rules listed here are respected, there is no need for a retrial. This rule is also called double jeopardy.
- “Nulla poena sine lege”: no crime or punishment without a law voted and published before the criminal deed. In other words, no retroactive laws, no laws with retroactive effect (laws which make deeds punishable after they have been committed). One cannot punish people for acts that were not a crime at the time when they were committed, because people should know what is or is not allowed so that they can plan their lives as law-abiding citizens.
- For the same reason, laws should be predictable and should not change all the time. Nobody is responsible for a violation of a law if the law changes from day to day, because if the law changes constantly, then nobody knows the law and then nobody can respect the law. Predictability and permanence of the law are prerequisites for obedience, just as knowledge and publicity.
- There should not be too many rules, otherwise the judges and the police will not have enough time to enforce them all or to punish all violations of all rules, which leads to injustice. Too many rules also leads to involuntary violations of rules, because citizens do not know what they are or are not allowed to do. The purpose of the justice system is to punish crimes, not mistakes; criminals who knowingly violate rules, not law-abiding citizens who unknowingly do what they shouldn’t.
All these elements put together make the justice system just, and protect the citizens against the state or against fellow citizens that want to abuse the justice system. If one element is missing, then all the others may become useless.