When it is (also) Algorithms and AI that decide on Criminal Matters: In Search of an Effective Remedy

2020 ◽  
Vol 28 (3) ◽  
pp. 280-304
Author(s):  
Giuseppe Contissa ◽  
Giulia Lasagni
Keyword(s):  
Fair Trial ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Innovative Solutions ◽  
Definition Of ◽  
Effective Remedy ◽  
The Right ◽  
Criminal Matters

Abstract The paper presents the main areas of application of predictive systems based on algorithmic and AI technology, and analyses their impact on fundamental rights and fair trial principles. It focuses in particular on the definition of the right to an effective remedy against decisions taken (also) with the support of algorithmic and AI systems, and proposes some innovative solutions on how to ensure compliance with this right in technologically advanced criminal proceedings.

scholarly journals Wzmocnienie praw procesowych jednostki w postępowaniu karnym w Unii Europejskiej - propozycje Komisji Europejskiej z listopada 2013 r.

2015 ◽  
pp. 103-139
Author(s):  
Anastazja Gajda
Keyword(s):  
European Commission ◽  
Fundamental Rights ◽  
Presumption Of Innocence ◽  
Legal Regulations ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
The Right ◽  
Criminal Matters ◽  
The Eu

The aim of the study is to present the proposals of legal regulations presented by the European Commission in one of the fields of Area of Freedom, Security and Justice (JHA), i.e. within the framework of judicial cooperation in criminal matters. The European Commission’s proposals aim at strengthening of the rights of suspects/defendants in criminal proceedings in the EU. They consist of the right to a fair trial and include: strengthening of the presumption of innocence principle and the right to be present at the trial, special safeguards for children suspected or accused of a crime and the right to provisional legal aid for citizens suspected or accused of a crime. In the paper I analysed the most important provisions of the projects and showed that these proposals are intended to ensure the protection of fundamental rights within the JHA.

Remote Participation in Criminal Proceedings: Does the Reformed Italian Regulation Represent an Application Extension Able to Conflict with the Right to a Fair Trial?

2019 ◽  
Vol 9 (2) ◽  
pp. 187-201
Author(s):  
Giulia Angiolini
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Italian Law ◽  
European Court ◽  
Recent Reform ◽  
The Right ◽  
Remote Participation

The purpose of this paper is to try to analyse the Italian regulation of accused persons’ remote participation in criminal proceedings. The interest in this matter arises from the suspected frictions of the provisions at hand with fundamental rights to be guaranteed for a fair trial. These suspicions, aroused right after the introduction of the institute in Italian law, have been increased by the recent reform of the discipline of remote participation, and they become even clearer after a comparison of Italian regulation with those of other European Countries. Hence, an inescapable question occurs: will the European Court of Human Rights and the Italian Constitutional Court save the new regulation as they did with the previous one?

scholarly journals Application of preventive measures in the criminal process: current issues

2020 ◽  
pp. 122-126
Author(s):  
V.S. Suslova ◽  
O.I. Tyshchenko
Keyword(s):  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
Procedure Code ◽  
Wide Range ◽  
Definition Of ◽  
The Right ◽  
Criminal Matters

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

13 Right not to be Subject to Double Jeopardy

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Due Process ◽  
Double Jeopardy ◽  
Criminal Proceedings ◽  
Repeated Trial ◽  
Broad Scope ◽  
Final Verdict ◽  
Definition Of ◽  
Effective Remedy ◽  
The Right

This chapter assesses the right not to be subject to double jeopardy, which protects against repeated trial or punishment for the same offence or conduct and ensures respect for the principle of finality in criminal proceedings. It is a crucial protection for the defendant because the possibility of repeated prosecutions or punishment leads to anxiety and stress and generates uncertainty in the wider community. The scope of the protection is therefore important: if it is too narrow, applying only to a second prosecution based on identical charges, prosecutors can still ‘throw the book’ at a defendant by charging him with disparate offences for the same conduct. But if the scope is too broad, it could prevent a defendant who has been unfairly convicted in a first proceeding beset by due process violations from having a new trial. An over-broad scope may also prevent the prosecutor from pursuing other charges and therefore deny victims an effective remedy. The issues that have proved to be the most controversial among international bodies regarding the right not to be subject to double jeopardy have been whether the right only applies to the same offence or also to the same conduct; whether it is limited to a single state’s jurisdiction; the requirement of a ‘final’ verdict; and the definition of the exceptions to the right.

scholarly journals La interpretación del art. 47 CDFUE como expresión de la labor hermenéutica del Tribunal de Luxemburgo en la construcción de un estándar europeo de protección de los derechos

2017 ◽  
pp. 655 ◽  
Author(s):  
Ciro Milione
Keyword(s):  
European Union ◽  
Fair Trial ◽  
Fundamental Rights ◽  
The European Union ◽  
European Standard ◽  
Treaty Of Lisbon ◽  
Charter Of Fundamental Rights ◽  
Effective Remedy ◽  
The Right

Desde la entrada en vigor del Tratado de Lisboa, la Carta de los Derechos Fundamentales de la Unión Europea (CDFUE) ha adquirido una relevancia incuestionable en su ámbito material. El Tribunal de Luxemburgo, en calidad de supremo intérprete de la Carta, interviene para definir el alcance de sus preceptos, construyendo con sus sentencias un verdadero estándar de protección de los derechos en seno a la Unión. Este estudio pone de manifiesto esta evolución a partir del análisis las resoluciones más relevantes del Tribunal de Luxemburgo en relación al art. 47 (CDFUE) por el que se consagra el derecho a la tutela judicial efectiva y a un juez imparcial.Since the entry into force of the Treaty of Lisbon, the Charter of Fundamental Rights of the European Union (CFREU) has acquired an unquestionable relevance in its material scope. The Luxembourg Court, as ultimate interpreter of the Charter, intervenes to define the extent of its precepts, establishing a European standard of protection of fundamental rights. This paper describes this evolution, taking into consideration the most relevant resolutions from the Luxembourg Court on the art. 47 CFREU, which establishes the right to an effective remedy and to a fair trial.

NEWLY DISCLOSED CIRCUMSTANCES – GROUNDS FOR RENEWAL OF CRIMINAL PROCEEDING

2018 ◽  
Vol 1 (82) ◽  
pp. 14
Author(s):  
Inese Baikovska
Keyword(s):  
Criminal Procedure ◽  
Legal Framework ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Criminal Procedure Law ◽  
Definition Of ◽  
The Right ◽  
Legal Force

It is presumed that no appeal may lie from a judgment that has already entered into legal force and such a judgment is regarded as final in a case, criminal proceedings may still be reopened under certain legal circumstances, which are called newly discovered. This is how the right of persons involved in criminal proceedings to a fair trial and a fair final judgment is ensured.The goal of this article is to examine circumstances that can be recognised as newly discovered and serve as grounds for the reopening of criminal proceedings, identify problems related to legal framework and find a legally sound solution. The tasks of this article are to investigate provisions applied to newly discovered circumstances as defined by the Criminal Procedure Law. As a result of the research, the author has concluded that the Latvian legislation governing criminal procedure with respect to the definition of newly discovered circumstances is deficient; therefore, suggestions are provided for the improvement of the existing legal framework. The research is based on the analysis of legislation, judgments of courts, conclusions and separate opinions of judges.

scholarly journals O niekonstytucyjności § 95 ust. 2 zd. 2 Regulaminu urzędowania sądów powszechnych

2019 ◽  
Vol 116 ◽  
pp. 59-71
Author(s):  
Bartosz Łukowiak
Keyword(s):  
Fair Trial ◽  
Criminal Proceedings ◽  
Rules Of Procedure ◽  
Effective Remedy ◽  
The Right

ON THE UNCONSTITUTIONALITY OF § 9522 OF THE RULES OF PROCEDURE OF COMMON COURTSThe subject of this work is the issue of the constitutionality of § 9522 of the Rules of Procedure of Common Courts. Based on the analysis of regulations in the field of criminal proceedings, the author tries to demonstrate the non-compliance of this provision with the principle of the right to defence, the principle of the right to an effective remedy, the principle of the exclusivity of the act and the prohibition of creating apparent powers, and, therefore, proposes its own, different regulation of this issue, which would allow for compliance of national regulations with the standards of fair trial.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

scholarly journals The Horizontal Effects of Charter Rights Given Expression to in EU Legislation, from Mangold to Bauer

2019 ◽  
Vol 12 (2) ◽  
pp. 185-215
Author(s):  
Elise Muir
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Special Issue ◽  
Max Planck ◽  
Eu Legislation ◽  
Scope Of Application ◽  
Effective Remedy ◽  
The Right ◽  
The Relationship ◽  
Eu Fundamental Rights

This paper investigates the relationship between legislative provisions and fundamental rights by analyzing the Egenberger, IR, Bauer, Max-Planck and Cresco cases. This paper understands these cases as an invitation to reflect on whether, and if so, to what extent, EU fundamental rights' legislation, read in conjunction with the Charter, could have an impact on the scope of application, substance and/or legal effects of the Charter. This paper argues that the Court of Justice's recent case law can be understood as allowing for EU legislative guidance on fundamental rights to interact in an upward process with the rights enshrined in norms with the same rank as EU primary law. This paper sheds light on the constitutional implications of the overlaps between legislation and constitutional norms on fundamental norms while other contributions in this special issue address effectiveness and the right to an effective remedy in a broader sense.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

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