A model of fair justice

The article proposes a model of fair justice in the criminal process for the case when the prosecution witness did not appear at the court session. In this case, the accused’s right to a fair is guaranteed by paragraph 1 and subparagraph “d” by paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms. The conclusions and result of the study of this model made it possible to form a general model of fair justice in the criminal process for all cases guaranteed by Article 6 of Convention on the Protection of Human Rights and Fundamental Freedoms. The first model created for a partial case is based on the rule (criterion) of the three-step test and includes its three blocks (“good reasons”, “single or decisive evidence”, “balancing factors and procedural guarantees”), for each position of which, based on the study, a separate long-term practice of the European Court of Human Rights, the rules by which the fairness of justice in criminal cases is established. A definition of the concept of “rule” is proposed, for the unambiguous use of procedural rules, names are assigned to them and the legal content is disclosed based on the practice of the supranational court. The flexibility of the rule of the three-step test is substantiated and this conclusion is extrapolated to the rest of the rules depending on the circumstances of the case within the limits of compliance with the rights of defense. It has been proven that every risk to a fair trial can be eliminated by combining national legislation and the relevant rules of the European Court of Human Rights (each threat is eliminated with the help of “its” rules). The obtained conclusions are extended to the general model of fair justice, which ensures compliance with the right to a fair trial of all participants in criminal proceedings, guaranteed by all clauses of Article 6 of the Convention. Examples of risks to a fair trial are given. Legal proposals have been introduced: the need to add to Article 3 of the Criminal Procedure Code of Ukraine the concepts of “rules of procedure”, “balancing factors”, “procedural guarantees” and to include in this Code a separate section that would concentrate the rules of procedure developed by the European Court of Human Rights.