The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants

2018 ◽  
Author(s):  
PHPHMC van Kempen
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Procedure Law ◽  
Eu Directives ◽  
The Right

Mainly as a result of the nature of criminal procedure in the Netherlands, which until recently could be characterized as a modern moderate inquisitorial system, the fitness-to- plead principle has been rather underdeveloped here. This chapter analyses how the European Convention on Human Rights, EU Directives, and the increase of adversarial elements in an originally inquisitorial criminal justice system are now catalysing the fitness-to-plead principle. Fourteen recommendations will be provided for what is considered a necessary reinforcement of the legal position of defendants who possess insufficient abilities to adequately participate during criminal proceedings—both preliminary investigation and trial—or who are even unfit to stand trial. The recommendations are based on a detailed analyses of criminal procedure law of the Netherlands, case law of the European Court of Human Rights, and several EU Directives that are relevant for the fitness to plead principle..

scholarly journals REASONABLE TIME OF CRIMINAL PROCEEDINGS: CRIMINALISTIC CHARACTER

2020 ◽  
Vol 6 (4) ◽  
pp. 101-111
Author(s):  
K. A. Korsakov ◽  
V. V. Konin ◽  
E. V. Sidorenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

In the Russian legal system, the understanding that justice should be not only timely, but also fast enough has matured for a long time. The delay in the investigation of a criminal case and its consideration by the court allows the guilty to avoid the deserved punishment in some cases, which calls into question the principle of inevitability of punishment on the one hand, and hinders the right to access justice, on the other hand. The term reasonable time for legal proceedings has emerged as a requirement of international law to be tried without undue delay. The right to a reasonable period of criminal proceedings is regulated by Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but this norm is not fully implemented to date, as evidenced by the decisions of the European court of human rights issued on complaints of violation by the Russian Federation of the provisions of the European Convention for the protection of human rights and fundamental freedoms. At the same time, the available research considers the requirement of reasonable terms in criminal proceedings from the standpoint of criminal procedure law, which is not fully justified. The article attempts to consider the problematic issues of reasonable terms of criminal proceedings from the perspective of criminology, as a science that has incorporated theoretical and practical issues of fighting crime, as well as the problems of criminalistic criteria in criminal proceedings.

The Oxford Handbook of Criminal Process

2019 ◽  
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
European Convention ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court

This handbook examines various aspects of the criminal process, including the role of prosecutors in common law and civil law jurisdictions, the rights and duties of experts, victim rights in civil law jurisdictions, surveillance and investigation, criminal prosecution and its alternatives, evidence discovery and disclosure in common law systems, evidence law as forensic science, common law plea bargaining, appeals and post-conviction review, and procedure in international tribunals. The book is organized into eight parts covering topics ranging from criminal process in the dual penal state to interrogation law and practice in common law jurisdictions, empirical and comparative approaches to criminal procedure, prosecution-led investigations and measures of procedural coercion in the field of corruption, international corporate prosecutions, special procedures for white-collar and corporate wrongdoing in Europe, and trial procedure in response to terrorism. Also discussed are the roles of the European Convention on Human Rights and the European Court of Human Rights as guardians of fair criminal proceedings in Europe, double jeopardy or ne bis in idem in common law and civil law jurisdictions, plea bargaining vs. abbreviated trial procedures, restorative justice as an alternative to penal sanctions, and the pluralistic nature of international criminal procedure.

Does the Unborn Child Have a Right to Life? The Insufficient Answer of the European Court of Human Rights in the Judgment Vo v. France

2006 ◽  
Vol 7 (4) ◽  
pp. 433-444 ◽  
Author(s):  
Jakob Pichon
Keyword(s):  
Human Rights ◽  
Pregnant Woman ◽  
Criminal Code ◽  
European Convention ◽  
Unborn Child ◽  
Criminal Proceedings ◽  
Right To Life ◽  
European Court ◽  
French Court ◽  
The Right

In the July 8, 2004 case of Vo v. France, the European Court of Human Rights (“ECtHR”) dealt with the question of whether the embryo/fetus (“the fetus”) enjoys the protection of the right to life provided by Article 2 of the European Convention on Human Rights (“the Convention”). Below, a pregnant woman lost her fetus due to an error made by the attending doctor, and the Cour de Cassation, the French court of last instance, acquitted the doctor of involuntary homicide on the grounds that a fetus is not a person within the meaning of the French Criminal Code. Claiming a violation of her child's right to life within the meaning of the Convention, the woman appealed to the ECtHR. The ECtHR left open the question whether or not a fetus falls within the scope of Article 2; declaring that, even assuming Article 2 was applicable to a fetus, there had been no failure by France to comply with its obligations under Article 2, because the ECtHR deemed the institution of criminal proceedings unnecessary. Rather, it considered the possibility for the applicant to bring an action for damages as sufficient and therefore found that there had been no violation of the fetus's right to life.

ANONIMNI SVEDOCI I ZAŠTITA LjUDSKIH PRAVA

2021 ◽  
pp. 277-296
Author(s):  
Veljko Turanjanin ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Step Test ◽  
European Convention ◽  
Criminal Proceedings ◽  
National Legislation ◽  
European Court ◽  
The Right ◽  
Insufficient Knowledge

Тhe author deals with the problem of anonymous witnesses in the context of the right to a fair trial in the jurisprudence of the European Court of Human Rights. One of the problems in the application of Article 6 of the European Convention on Human Rights is related to the testimonies of anonymous witnesses in criminal proceedings. The case law of the European Court of Human Rights has developed certain criteria that must be followed in national legislation, but it is obvious that there is insufficient knowledge regarding this problem, as well as the reluctance to apply the mentioned rules. The standards developed by the ECtHR are very important for national laws and jurisprudence. The author explains the development of a three-step test that needs to be examined when assessing a violation of the right to a fair trial, through an analysis of a multitude of judgments, in order to provide guidance on the application of Article 6 § 3 (d) of the European Convention on Human Rights. After introductory considerations, the author explains who can be a witness under the Convention, since this question is raised independently of national legislation, and then explains the right to examine witnesses, the admissibility of testimonies by anonymous witnesses and the examination of the three-stage test, and gives concluding remarks.

Diritto a una tutela giurisdizionale effettiva e revisione dei processi penali: la Corte costituzionale e il caso Dorigo

2009 ◽  
pp. 85-110
Author(s):  
Stefano Dorigo ◽  
Pietro Pustorino
Keyword(s):  
Human Rights ◽  
International Law ◽  
Critical Comment ◽  
European Convention ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Italian Constitution ◽  
Italian Norms

- The work is a critical comment to the judgment of the Italian Constitutional Court of 30 April 2008, n. 129, on the reopening of the criminal proceedings requested by the European Court of Human Rights. The work begins dealing deeply with the problem of the customary nature in international law of the right to a fair trial and the consequent possibility to invoke, in the framework of the Italian national system, Article 10, paragraph 1, of the Constitution. The authors suddenly stress the relevance of other constitutional norms in order to recognize a constitutional or quasi-constitutional rank to the norms of the European Convention on Human Rights, demonstrating that the Italian Constitution offers several possibilities on the matter. A very recent judgment of the Court of Cassation, adopted on 11 December 2008, confirms this opinion interpreting the Italian norms on the reopening of the criminal proceeding on the basis of Articles 111 and 117 of the Constitution.

scholarly journals ACCESS TO JUSTICE IN CRIMINAL PROCEEDINGS: LEGAL STANCES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Lex Russica ◽  
2020 ◽  
pp. 56-67 ◽  
Author(s):  
T. Yu. Vilkova
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
European Court ◽  
Different Types ◽  
Protection Of Human Rights ◽  
The Right ◽  
Right Of Access

The article is devoted to the analysis of the stances developed in the case law of the European Court of Human Rights regarding the content, scope, general principles of ensuring the right of access to justice, and permissible limits applied to restrict the right in question. The author has substantiated the conclusion that the European Court of Human Rights associates access to justice with Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, the concept of access to justice includes a number of elements: the right to have recourse to court; the right to have a case heard and resolved in compliance with the requirements of a fair trial; the right to have the judgment enforced; the set of safeguards that allow the person to exercise the rights under consideration effectively. According to the European Court of Human Rights, access to justice should be ensured at all stages including pre-trial (criminal) proceedings and reviewing of court decisions by higher courts. However, the right of access to justice is not absolute. The restrictions imposed must have a legitimate purpose and reasonable proportionality must be obtained between the means used and the goal determined. In view of the requirement mentioned above, the national legislation may provide for the particularities of application of Paragraph 1 of Article 6 of the Convention to proceedings in different types of courts and at different stages, for example, by establishing a certain procedure for the court to grant individuals the right to appeal to a higher court. The author has demonstrated the main directions of applying the legal stances of the European Court of Human Rights regarding access to justice to improve the Russian criminal procedural legislation and law enforcement practices, as well as for further scientific research.

scholarly journals On the New Rules Protecting Attorney-Client Privilege in Criminal Procedure in Russia

2018 ◽  
pp. 15-25
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Criminal Procedure ◽  
Point Of View ◽  
Federal Law ◽  
Criminal Proceedings ◽  
European Court ◽  
Procedural Code ◽  
Criminal Procedure Law ◽  
Further Development

In the article, an attempt is made to consider the recently introduced additional criminal procedural guarantees of the protection of attorney-client privilege from the point of view of the system of the Russian criminal procedural legislation and in the light of the practice of the European Court of Human Rights. The author comes to the conclusion that additional guarantees of protection of attorney-client privilege introduced by the Federal law № 73-FZ contribute to the further development of the adversarial principles of the Russian criminal proceedings. At the same time, some innovations seem to be controversial. The supplement introduced to part 2 of the Article 75 of the Russian Criminal Procedural Code (CPC) concerning inadmissibility of using advocatory items and documents as evidence come into conflct with the Article 17 of the CPC and do not constitute the whole legal system with other provisions of the criminal procedure law. The rules of part 3 of the Article 450.1 of the CPC, according to the author, are incompatible with part 5 of the Article 165 of the CPC regulating urgent procedures of investigative actions requiring judicial permission, as well as part 2 of the Article 450.1 of the CPC. The author makes a range of proposals to improve the legislation and its application.

scholarly journals Human Rights Waiver in Criminal Proceedings in Terms of the European Court of Human Rights: ‘Russian Cases’

2020 ◽  
Vol 3 (4) ◽  
pp. 50-58
Author(s):  
Irina Chebotareva ◽  
Olesia Pashutina ◽  
Irina Revina
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Widespread Occurrence ◽  
European Court ◽  
The Government ◽  
Grand Chamber ◽  
The Right

The article investigates the general position of the European Court of Human Rights on the admissibility and validity of the waiver of rights, the features of the European mechanism for protecting human rights in case of the waiver of the right; studies the case-law practices in criminal cases of the Court in relation to Russia where the Court considered the presence/absence of the waiver of the right. The practice of the ECHR reveals the widespread occurrence of human rights violations in the Russian criminal proceedings with the alleged waiver of the right in the framework of criminal procedure. These includes the situations when the Government claimed that the Applicant had waived his/her right and the Applicant did not agree with this fact and insisted that he had been deprived of the opportunity to exercise his/her right. According to the ECHR, violations of human rights established in the Convention are related not only to shortcomings in the legal system but also to improper law enforcement that does not comply with the Convention requirements. Based on the analysis of the ECHR’s general approaches to the waiver of the right, the authors revealed the compliance of the Russian criminal procedure with the requirements of the Court to the waiver of the right and the guarantees established for it. To achieve the objectives in the HUDOC database of the European Court, using search requests we identified cases against Russia considered by the Chamber and the Grand Chamber, in which the ECHR examined the issue of the presence/absence of the waiver of the right in the criminal procedure. As a result, 40 judgments in which the Court directly considered the issue of the presence/absence of the waiver of the right in the criminal procedure in Russia were selected. We studied and analysed the selected judgments.

scholarly journals The value of the ECtHR practice for making procedural decisions when conducting covert investigative (search) actions

2020 ◽  
pp. 158-169
Author(s):  
Olena Bilichak
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
European Convention ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Procedural Decisions

Based on the analysis of the provisions of domestic law, the practice of pre-trial investigation and court, the scientific article develops recommendations on how to take into account the decisions of the European Court of Human Rights in covert investigative (search) actions and use the results obtained in evidence. It is established that the current legislation provides for the possibility of conducting pre-trial investigation of serious and especially serious crimes of covert investigative (investigative) actions, which in most cases is related to intrusion into privacy and correspondence of a person protected by Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, knowledge of the content and consideration of the case law of the ECtHR in making procedural decisions on the conduct of pre-trial investigation by certain NSDCs and the use of the results obtained by them in court evidence is a strong guarantee of the legality of court decisions. When making certain procedural decisions regarding the materials of covert investigative (investigative) actions at the pre-trial and court stages of criminal proceedings, it should be taken into account that the right to secrecy of correspondence guaranteed by Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ensures the inviolability of all forms of communication between persons, both by means of communication and without them. All covert investigative (search) actions should be carried out only in accordance with the law. Audio and video materials submitted by private individuals and produced «with the help» of law enforcement officers cannot be considered admissible evidence. Carrying out NSRD to control the commission of a crime (Article 271 of the CPC of Ukraine) should exclude the possibility of provocation by the pre-trial investigation authorities. If their intelligence staff was involved in such a special operation, in the initial stages of its conduct the conduct of the pre-trial investigation body should be exclusively passive and limited to observation. In any case, the evidence in the criminal proceedings in which the relevant special operation took place should not be based only on its materials, and the burden of proof rests with the prosecution. Key words: criminal proceedings, European Court of Human Rights, covert investigative actions.

The European Convention on Human Rights and the European Court of Human Rights as Guardians of Fair Criminal Proceedings in Europe

2019 ◽  
pp. 88-114
Author(s):  
Bettina Weisser
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Public Hearing ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Procedural Rights

This chapter discusses the role of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (the Court) in safeguarding fair criminal proceedings in Europe. In particular, it analyzes the procedure-related guarantee of a fair trial and its various implications as they are laid down in Article 6 ECHR and shaped by the case law of the Court. The chapter first provides an overview of the general procedural guarantees under Article 6, section 1, focusing on the independence and impartiality of the tribunal, right to a fair hearing (equality of arms, the right to remain silent and the privilege against self-incrimination, entrapment), public hearing, and hearing within a reasonable time. It then considers procedural rights in criminal proceedings under sections 2 and 3 of Article 6, along with the presumption of innocence under section 2 and specifically listed minimum rights in criminal proceedings under section 3.

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