Participatory Rights in Criminal Proceedings. A Comparative-Law Analysis from a Human Rights Perspective

The present study provides a comparative-law examination of the requirements concerning the involvement of private parties in criminal proceedings, as well as the national procedures that rule out any participation of the accused. This research cuts across the solutions emerged from EU law and international human rights law, comparing them with the requirements set forth by domestic law from a constitutional and substantive criminal law perspective. The results of this analysis highlight a complex scenario. A systematic view not only of the procedural safeguards enshrined in the European Convention, but also of the constitutional and criminal law requirements make it extremely difficult to maintain the traditional schemes applied to criminal proceedings conducted against absent defendants, justified on the perspective of a retrial or a remedy that is often unable to compensate the accused for the opportunities lost. Doubtless, the solutions provided by the Strasbourg Court on in absentia trials had large influence not only on national legislation and case-law practices but also on the rapid evolution of EU law in the field of transnational and domestic criminal justice. Yet the legislative instruments adopted at all these levels are not always in line with the European jurisprudence. Further human rights concerns arise from the proceedings held inaudito reo, which, depending on the solutions provided by domestic law, can often not even ensure a subsequent remedy corresponding to the accused’s intentions. A comparative analysis of the developments that have occurred in international, domestic and supranational law in the last years, moreover, allows us to reconstruct a problematic area, which goes far beyond the issues of in absentia trials and inaudito reo procedures, thus posing a number of difficult challenges arising from a participatory understanding of criminal proceedings. The examination of the Strasbourg case-law and EU law, in particular, enables us to define the qualitative requirements that should be satisfied with a view to ensuring effective participation in criminal proceedings. Along these lines, the present study has firstly examined the fair trial safeguards that the accused should be granted, by focusing on four main issues, namely (a) the information rights, (b) the right to understand and to be understood in the criminal trial, (c) the relationship between legal assistance and the right to self-defence, and finally (d) the right to make one’s voice heard fairly. Furthermore, the increasing tendency to enhance an overall consideration of criminal proceedings by international human rights law and EU law suggests further broadening the research area. Therefore, this investigation was extended to the analysis of whether and to what extent individuals other than defendants, who are also (and often coercively) involved in criminal proceedings, also have the right to be heard fairly and to make their own contribution to fact-finding.