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Olga Andreea URDA: Procedural safeguards - equality of arms and adversarial. General considerations

Abstract: In several cases the European Court of Human Rights held that the right to a fair trial involves among others the adversarial nature of proceedings and equality of arms. This is an aspect that deserves some developments. Among the underlying principles of fairness which are not explicitly formulated in Article 6 of the European Convention on Human Rights but are important for understanding it's functioning, the most important is that of equality of arms, reflecting in particular the idea that each party to a proceeding should have the same opportunity to present its case and that noone can enjoy a significant advantage over the other party. The right to adversarial nature of the procedure entails for the prosecution and defense, the right to take cognizance of the observations or evidence submitted by the other party and to discuss them.

Keywords: due process, adversarial nature of the proceedings, equality of arms.


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