The Right to a Fair Trial and a Special Procedure: Is There a Conflict?

The aim of the article is to determine the specifics of the right to a fair trial under Article 6 of the European Convention on Human Rights when considering a criminal case in a special order and to determine whether this procedural form is in conflict with the provisions of the European Convention. Having analyzed the content of the right to a fair trial and the peculiarities of the criminal case in a special order, the authors come to the following conclusions. The right to a fair trial includes such rights as: access to a court, including the right to a reasoned decision by a court, the right to an independent court, the right to qualified legal assistance, the right to a reasonable time in criminal proceedings, the right to a fair and public hearing in court in the presence of the accused, equality of the parties, the presumption of innocence, legal certainty, the right to access to information, the right to interview key witnesses, the right to free assistance of an interpreter, the right to have sufficient time and opportunity to prepare for the defence, the right to adversarial proceedings, etc. The main features of the special procedure of the trial are the reduction of the process of proof; the refusal of the accused from a full judicial procedure of the case; inspiration only by the person against whom the criminal prosecution is carried out. The principle of adversarial proceedings, with its inherent division of procedural functions, is at the heart of the special judicial procedure. The accused, who has filed a petition for consideration of their case in a special order, in fact, renounces the full exercise of their right to a fair trial. A waiver will be deemed to be such only if it is not necessary and it adequately reflects the will of the person claiming it. It means that the court before considering a criminal case in a special order has to be convinced of the voluntariness and awareness of the petition for a special order. Taking into account the publicity of criminal proceedings as a sphere of resolution of the most acute social conflict caused by the commission of a crime, the waiver of the right to a full implementation of the guarantees provided for by the European Convention can be permissible only up to a certain limit. These limits are primarily determined by the purpose of criminal proceedings and the correlation of possible exceptions with the gravity of the acts committed and their public danger. The absence of violations of the right to a fair trial in a criminal case under a special procedure concerns the observance of all the guarantees provided in the course of pre-trial proceedings in a criminal case.

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