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司法互助是公平審判的化外之地？
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Mutual Legal Assistance: The Outer Fringes of Fair Trial?
—
Referencing Cases of the European Court of
Human Rights
Yu-Hsiung Lin
College of Law, National Taiwan University
No. 1, Sec. 4, Roosevelt Road, Taipei 10617, Taiwan
E-mail:
yslmy41@gmail.comAbstract
The right to fair trial in the determination of any criminal
charge has been recognized in international law and standards, such
as Article 6 of the European Convention on Human Rights
(
EConHR
)
and Article 14 of the International Covenant on Civil
and Political Rights
(
ICCPR
)
. However, do mutual legal assistance
proceedings deny the defendant the right to a fair trial? Given the
fact that such proceedings normally affect more than one jurisdic-
tion, the accused may be left with less protection by each of the ju-
risdictions involved; therefore, this article argues that some precau-
tionary measures must be taken to ensure the accused is not placed
at a substantial disadvantage in transnational cases.
Beginning with a series of domestic cases, this article brings at-
tention to the way judicial practice deals with problems derived
from cross-border cooperation. The article then refer to some com-
parable cases of European Court of Human Rights
(
ECtHR
)
, in par-
ticlar, the Soering case and the Stojkovic case. These cases clearly af-
firm that mutual legal assistance is not a grey area, but an integral
part of the right to fair trial. Following the judgments of the ECtHR,
contracting parties have taken steps to reform its policies and laws
regarding this issue. Therefore, the article suggests developing pre-
ventive strategies in the evidence gathering phase in the field of mu