ORALITY AS A GUARANTEE OF THE RIGHT TO A FAIR TRIAL

Abstract

Within the framework of this scientific article it was carried out an analysis of the criminal procedural legislation, legal positions of the European Court of Human Rights, scientific approaches to determine the content of orality as a guarantee of ensuring the right to a fair trial of the criminal proceeding. It was determined that the right to a fair trial is a comprehensive concept filled with a set of elements. The interrelationship of orality with the elements of the right to a fair trial, especially publicity, equality of parties and the right to translation, has been investigated. The article provides examples of decisions of the European Court of Human Rights in order to indicate violations of a person’s right to a fair trial, based on specific elements of this right. It has been proven that publicity is a fundamental principle of criminal proceedings and provides, as one of the mandatory requirements, oral proceedings in the court of first instance, and failure to comply with this requirement means a violation of the right to a fair trial. The interrelationship of orality and equality of procedural opportunities of the parties is defined as ensuring the right to present their positions, arguments to both sides of the proceedings orally, directly during the trial in the court of first instance. The procedural guarantee of the interpreter’s assistance in the proceedings means, first, the provision of an oral translation. Attention is drawn to the fact that unlike publicity, procedural equality and the language in which the proceedings are conducted, which the legislator defined as the principles of criminal proceedings, orality has received the relative form of expression within the Criminal Procedure Code of Ukraine. An example of the normative consolidation of orality in the Criminal Procedure Code of Poland is given. It is emphasized on the need for its absolute form of oral expression in national legislation in order to comply with the standards determined by the practice of the European Court of Human Rights. In addition, taking into account the relevance of the topic, the need for the further scientific study of the problem of orality in criminal proceedings has been established, because its content, concepts, and peculiarities are still not sufficiently studied in the domestic science of criminal procedural law.