15. Solution Models for a Participatory Approach to Transnational Criminal Justice in International and Supranational Law

Despite the general scope of application of international human rights instruments, recourse to international human rights law to protect the individuals involved in transnational inquiries constitutes a relatively recent achievement especially in relation to mutual assistance procedures in criminal matters. The comparative analysis of the European Convention and the Pact of San José has highlighted that this result is due to a number of diverse factors. As far as the Rome Convention is concerned, the traditional approach to international cooperation as a form of administrative assistance has long prevented the European case-law from acknowledging the full application of fair trial guarantees. The main factor, moreover, was probably the manner of decision-making of the Strasbourg Court, which led it to develop case-law on several fair trial rights (from the right to be present at trial to the right to confrontation, and so on) that looks at the overall conduct of criminal proceedings. This form of assessment of the state’s legal action—aimed at evaluating whether a fundamental right, despite being initially withheld, was ensured at a later stage of the proceedings—does not fit, however, the characteristics of transborder cases, in which each country is often only responsible for a small part of a complex proceeding underway in another country.