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Sayfa 415Poverty and Access to Justice: Special Implications of “Fair Trial”
Prof. Dr. Dr. h.c. mult. Hans-Heiner KÜHNE
I Introduction
There are two topics on which philosophers of all centuries have mainly worked. It…
Following the theory of separation of powers (Montesquieu) the judiciary became one…
The divergence of substantive law in international comparison, has always demonstrated…
The organization of the judiciary in Europe has, however, developed according to…
- Independence and impartiality of judges…
- General access to courts…
- Infringement of individual rights by procedural measures only in exceptional cases…
- Fair trial throughout all proceedings.…
These principles meanwhile have entered not only all constitutions of democratic…
II Does poverty make a difference in criminal law?
In theory the answer is no. In reality, it is much more complicated.…
1 Substantive criminal law
Regarding substantial criminal law, rich and poor are treated alike. Yet, according…
Secondly, and in consequence of the aforementioned, their intellectual or educational…
These are reasons beyond the perspectives of criminal law, although they bring about…
2 Criminal procedure law
Access to justice is of highest importance – in criminal law this holds true for…
In criminal procedure law the principle of fair trial is covering just about all…
The right to defense includes the right to be supported by a professional defense…
So far criminal procedure law does, indeed, make references to the fact that a suspect…
Evidently, such provisions are aiming at adjusting positions of poor people to those…
We cannot ignore the fact that there are differences in competences of defence counsels,…
Since the ECourtHR has decided that interpretation must be free of charge for the…
An important part of the right to defence is the possibility to summon witnesses.…
In both systems, the continental and the Anglo-American, the efficiency of this right…
3 Penalties
Criminal sanctions in European countries are regulated either in substantive or in…
Reading the text of those provisions administering the extent of penalty for each…
If we go one level deeper into the problem, however, we will find evidence for inequality.…
Whereas criminals from a more favorable social background are better off, as they…
This seems to be as unfair as unequal. But the sad thing is, that this argumentation…
III Summary
Neither in substantive criminal law nor in criminal procedure law have we found provisions…
Nevertheless we have to state that de facto poor people have lesser chances in criminal…
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