Procedural fairness: Between human rights law and social psychology

DOI10.1177/0924051921992749
Published date01 March 2021
Date01 March 2021
Subject MatterArticles
Article
Procedural fairness:
Between human rights law
and social psychology
Cath´
erine Van de Graaf
Human Rights Centre, Faculty of Law and Criminology, Ghent University, Belgium
Abstract
Fair procedures have long been a topic of great interest for human rights lawyers. Yet, few
authors have drawn on research from other disciplines to enrich the discussion. Social psy-
chological procedural justice research has demonstrated in various applications that, besides
the final outcome, the manner in which one’s case is handled matters to people as well. Such
research has shown the impact of procedural justice on individuals’ well-being, their accep-
tanceofunfavourabledecisions,perceptionsof legitimacy and public confidence. The ECtHR
has confirmed the desirability of these effects in its fair trial jurisprudence. Thus far, it remains
unclear to what extent the guarantees offered by Article 6(1) of the European Convention on
Human Rights (the right to a fair trial) coincide with the findings of empirical procedural
justice research. This article aims to rectify this and uncover similarities between the two
disciplines.
Keywords
Procedural fairness, procedural justice, right to fair trial, Article 6(1) ECHR, ECtHR
1. INTRODUCTION
The importance of fair procedure in international human rights law is undeniable.
1
The right to a
fair trial is affirmed as a basic human right at both the international and regional level. Review of
the European Court of Human Right’s (ECtHR) statistics reveals that nearly 40 per cent of its
Corresponding author:
Cath´
erine Van de Graaf, Human Rights Centre, Faculty of Law and Criminology, Ghent University, Gent, 9000, Belgium.
E-mail: Catherine.VandeGraaf@ugent.be
1. Throughout this paper, a Council of Europe legal setting has been assumed. Where possible, insights from other human
rights systems have been included.
Netherlands Quarterly of Human Rights
2021, Vol. 39(1) 11–29
ªThe Author(s) 2021
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DOI: 10.1177/0924051921992749
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judgments concern violations of Article 6 of the European Convention on Human Rights (ECHR),
which protects the right to a fair trial.
2
Vast attention exists for the right to a fair trial in a human rights context. Yet, notwithstanding
some notable exceptions,
3
this attention has not been translated into an interest into how fair
procedures are studied in other disciplines. In particular, in social psychology, a long tradition
of procedural fairness
4
research exists. In various contexts, it has been demonstrated by social
psychologists that – next to the outcome – the manner in which one’s case was handled matters to
people as well. This research coincides with the aphorism ‘justice should not only be done; but
should [ ...] be seen to be done’.
5
When people perceive a procedure as being fair, this affects their
judgment of the legitimacy of judicial authorities. The latter in turn determines compliance with
unfavourable decisions.
6
In a few cases, the ECtHR has explicitly confirmed the importance of
(certain) procedural guarantees in contributing to the acceptance of a decision by the parties,
perceptions of legitimacy and public confidence.
7
Such acceptance – especially in case of unfa-
vourable judgements – is a valuable tool in an adjudication process, notwithstanding the role
procedural fairness can play for social obedience to authorities outside of the courtroom.
8
It seems self-evident that maximisation of these effects is desirable. To accomplish this, it is
necessary to understand to what extent existing procedural standards in law concur with those that
were empirically established in procedural justice research. As Lind and Tyler stated ‘the psychol-
ogist and the legal scholar will find they share many basic concerns and recognise many similar
distinctions’.
9
Grootelaar found that lay people focus on ‘what it is that makes a procedure fair’,
whereas lawyers focus on ‘what a fair procedure should be’.
10
Examining the interaction of the two
perspectives is thus very important.
11
As such, procedural justice research is a prime example of
how empirical research can be relevant to the sphere of human rights law, where evidence-based
research is often very scarce and institutional processes are often under-researched.
12
This article
aims to identify the empirical underpinnings that exist in procedural justice research for the
guarantees included in the right to fair trial.
2. Excessive length proceedings take up a big part of this total amount. (The European Court of Human Rights, Overview
1959-2017). Available https://www.echr.coe.int/Documents/Overview_19592017_ENG.pdf accessed 20 December
2020.
3. See, for example, Saı
¨la Ouald Chaib, ‘Procedural Fairness as a Vehicle for Inclusion in the Freedom of Religion
Jurisprudence of the Strasbourg Court’ (2016) 16 Human Rights Law Review 483; Eva Brems and Laurens Lavrysen
‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’ (2013) 35 Human Rights
Quarterly 176; Filippo Fontanelli and Paolo Busco ‘The Function of Procedural Justice in International Adjudication’
(2016) 15 The Law & Practice of International Courts and Tribunals 1. These contributions focused on procedural
justice within the adjudication procedures at the ECtHR specifically and international adjudication generally.
4. The terms procedural fairness and procedural justice are used interchangeably in this contribution.
5. R v Sussex Justices, ex. p. McCarthy [1924] 1 KB 256, [1923] All ER Rep 23.
6. Tom R. Tyler, Why People Obey the Law (Princeton University Press 2006) 63.
7. A detailed list of cases can be found in Section 3.2. ‘Relevance as Affirmed by the ECtHR’ below.
8. Tom R. Tyler and Justin Sevier, ‘How do the Courts Create Popular Legitimacy?: The Role of Establishing the Truth,
Punishing Justly, and/or Acting Through Just Procedures’ (2014) 77 Albany Law Review 1095, 1129.
9. E. Allan Lind and Tom R. Tyler, The Social Psychology of Procedural Justice (Springer Science þBusiness Media
1988) 63.
10. Hilke A.M. Grootelaar, ‘Interacting with Procedural Justice in Courts’ (PhD thesis, Utrecht University 2018) 3.
11. ibid 3.
12. Hans-Otto Sano and Thelle Hatla, ‘The Need for Evidence-based Human Rights Research’ in Fons Coomans, Fred
Gru
¨nfeld, Menno T. Kamminga (eds), Methods of Human Rights Research (Intersentia 2009) 91.
12 Netherlands Quarterly of Human Rights 39(1)

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