The Appellate Court’s Reformatory Powers in ECtHR Case Law – between the Efficiency of the Procedure and the Guarantees of the Fair Trial in Criminal Proceedings

2021 ◽  
Vol 29 (2) ◽  
pp. 154-174
Author(s):  
Maciej Fingas
Keyword(s):  
Case Law ◽  
Fair Trial ◽  
Appellate Courts ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Court Of First Instance ◽  
The Way

Abstract Appeal proceedings in criminal cases are regulated in various ways by European legislators. The ECtHR case law does not impose any particular model of appeal proceedings; however, Article 6 is applicable to appeal proceedings and the manner of its application is contingent on the specific features of the proceedings in question. One of the key problems in this respect is the way the issue of the reformatory powers of appellate courts is regulated. This article seeks to reconstruct the rules worked out in the Strasbourg Court’s case law pertaining to this matter, as well as to formulate proposals as regards applying the principle of immediacy in appeal proceedings and the issue of the appellate court’s differing assessment of facts established by the court of first instance. The possible developments of case law in this area are also discussed.

Legal challenges in bringing AI evidence to the criminal courtroom

2021 ◽  
pp. 203228442110570
Author(s):  
Katherine Quezada-Tavárez ◽  
Plixavra Vogiatzoglou ◽  
Sofie Royer
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Case Law ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Legal Challenges ◽  
Criminal Courtroom ◽  
European Criminal Law ◽  
Applications Of Ai

Artificial Intelligence (AI) is rapidly transforming the criminal justice system. One of the promising applications of AI in this field is the gathering and processing of evidence to investigate and prosecute crime. Despite its great potential, AI evidence also generates novel challenges to the requirements in the European criminal law landscape. This study aims to contribute to the burgeoning body of work on AI in criminal justice, elaborating upon an issue that has not received sufficient attention: the challenges triggered by AI evidence in criminal proceedings. The analysis is based on the norms and standards for evidence and fair trial, which are fleshed out in a large amount of European case law. Through the lens of AI evidence, this contribution aims to reflect on these issues and offer new perspectives, providing recommendations that would help address the identified concerns and ensure that the fair trial standards are effectively respected in the criminal courtroom.

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.

scholarly journals ADMINISTRATION OF JUSTICE DURING THE COVID-19 PANDEMIC AND THE RIGHT TO A FAIR TRIAL

2021 ◽  
Author(s):  
Krešimir Kamber ◽  
Lana Kovačić Markić
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
World Health ◽  
European Convention ◽  
European Court ◽  
Administration Of Justice ◽  
The Right ◽  
The Way

On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

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.

SUBSTANTIVE LAW VIOLATION AS A BASIS FOR REVOCATION OF THE RULING

2018 ◽  
Vol 1 (XVIII) ◽  
pp. 231-241
Author(s):  
Piotr Kruszyński ◽  
Jan Kil
Keyword(s):  
Criminal Procedure ◽  
Case Law ◽  
Historical Evolution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Subject ◽  
Substantive Law

The subject of the article is an analysis of a violation of substantive law as the basis for the revocation of a ruling in Polish criminal proceedings. The study presents the historical evolution of the violation of substantive law as an appeal basis in consecutive criminal procedure codifications, starting from the Code of Criminal Procedure of 1928. The paper reviews and analyzes the case law regarding the pleasof theviolation of substantive law in criminal cases. In-depth consideration was given to the violation of substantive law as the basis for ordinary and extraordinary appeals in the criminal proceedings. The publication examines the legitimacy of recognition of violations of substantive law in the category of absolute appeal basis. Also, the violation of substantive law was confronted with the institution of gross injustice of the rulingstemming from Article 440 of Code of Criminal Procedure (kpk).

scholarly journals Certain Aspects of Proceedings in Cassation Instance in Ensuring a Fair Trial to a Person

2020 ◽  
Vol 9 (4) ◽  
pp. 241
Author(s):  
Inga Kudeikina ◽  
Sandra Kaija
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Fair Trial ◽  
Criminal Cases ◽  
The Sustainable Development ◽  
Legal Norms ◽  
Court Proceedings ◽  
Multidisciplinary Perspective ◽  
The Right

The right of a person to a fair trial is absolute. This right has a long democratic history, without which no democratic society can be imagined. Without this constitutional scope, the right to a fair trial is the basis for the sustainable development of society, as it ensures legal stability. Litigation in the cassation instance is on the top of right-to-court pyramid. The cassation instance is the last instance in the national judicial system, the decisions of the cassation instance are not subject to appeal; secondly, the court ruling in the cassation instance constitute case law, which is an important auxiliary source of law. This confirms that litigation in the cassation instance is one of the most important tools in securing the right to have a court hearing. The extent of the quality of the legal framework regulating cassation litigation points to the right to a fair trial overall. The study focuses on the issues of cassation litigation. The issues of the right of parties to file a cassation appeal (cassation protest) in civil and criminal cases as well as the jurisdiction of the court in deciding the admissibility of a cassation appeal (cassation protest) are analyzed within the multidisciplinary perspective. The aim of the research is to study the legal framework, which determines the right of a party to submit a cassation appeal (cassation protest) in civil and criminal case in the context of court jurisdiction, when deciding on whether to adopt it in order to make proposals for enhancement of the legal framework. There were used the descriptive, analytical and deduction-induction methods as well as the methods of interpretation of legal norms. Using these methods, legislation and the views of legal scholars were analyzed, and conclusions were drawn.  Keywords: cassation, court proceedings, right to a fair trial

scholarly journals The Scope of Protection of Legal Professional Privilege in Criminal Proceedings—Selected Issues

2019 ◽  
Vol 28 (2 ENGLISH ONLINE VERSION) ◽  
pp. 19-36
Author(s):  
Piotr Krzyżanowski
Keyword(s):  
Essential Role ◽  
Case Law ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Relevant Case ◽  
Legal Professional ◽  
Scope Of Protection

The chief aim of this study is to explore the essence of legal professional privilege and analyse its scope in criminal proceedings. Legal professional privilege plays an essential role in the criminal process as it guarantees every individual the adequate exercise of his or her right of defence and to a fair trial. It should be stressed that the privilege is not uniform since there is dualism manifested by a distinction between defence lawyer's privilege and advocate's privilege, other than the former. The author discusses the Polish regulations and relevant case law. Also, amendments to the current regulations will be proposed.

scholarly journals Subject and limits of examination evidence in the proceedings of the criminal case in the court of first instance

2020 ◽  
Vol 6 (3) ◽  
pp. 186-195
Author(s):  
Ilya N. Yefimovykh
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Court Proceedings ◽  
Court Of First Instance ◽  
Special Order

The article analyzes the norms of the criminal procedure law, the opinions of scientists, judicial practice materials related to the examination of evidence in criminal proceedings in the court of first instance, on the basis of which the author proposed definitions of the notions subject of examination evidence and limits of examination evidence they were compared with the concepts of subject of proof and limits of proof. The study used such research methods as logical, system-structural, statistical. As a result of a study of specific court decisions in criminal cases, differences in the understanding of evidence and the examination of evidence were revealed. A distinction has been made between the subject and the object of the study of evidence at the court hearing. The question of determining the subject matter and the limits of the examination of evidence was analyzed, including with regard to the consideration of the criminal case in a special order of judicial decision of the court, with the consent of the accused with the accusation. The rationale for the view that the examination of evidence takes place during the examination of a criminal case under a special court procedure is given, the circumstances that can be established during the court session, namely, the circumstances that may lead to exemption from punishment, as well as the postponement are analyzed. serving the sentence. These circumstances, if any, are mandatory to be established in court proceedings through the examination of evidence. According to the results of the analysis, proposed measures to improve the norms of the criminal procedure law governing the consideration of the criminal case in a special order of the trial. The question of the scope of the examination of evidence was considered in conjunction with the norms of the criminal procedure law, which established the grounds for the return of the criminal case to the prosecutor.

scholarly journals Should videoconference be elected over personal presence in criminal legal proceedings?

2021 ◽  
pp. 12-22
Author(s):  
Mariia Aleksandrovna Iurkevich
Keyword(s):  
Practical Experience ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Proceedings ◽  
Judicial Control ◽  
Legal Proceeding ◽  
European Court ◽  
Entire Complex ◽  
The Right

This article analyzes the conditions and legal ramifications of application of videoconference in various forms of criminal legal proceedings, highlighting practical issues emerging in arrangement of participation of parties in criminal proceedings via videoconference calls. As a product of digital technologies, videoconference is examined not only as a formal means of communication used by parties to a legal proceeding, but also as one of the means of exercising the right to a fair trial. The object of this research consists of communication and procedural relations arising between the parties to a legal proceeding with application videoconference. The subject of this research covers the entire complex of fairly recent norms for the Russian criminal procedural regulation governing application of videoconference on various stages of criminal proceedings on a case. The article contains practical recommendations by indicators that should be considered in determining optimal forms of participation in a criminal proceeding, as well as actions of parties that must be undertaken if during application of videoconference, the rights of the defendant are violated or the standards of fair trial are not being met. The article complies answers to the most topical questions on videoconference calls, taking into the consideration practical experience of the author, as well as relevant case law of the Russian courts and the European Court of Human Rights. The conclusion is made that application of videoconference is allowable in legal proceedings of the courts of first instance and courts of appeal in criminal cases heard in special order, cassation instance, supervisory instance, in execution of sentence, as well as within the framework of judicial control at pretrial stage in a criminal case, but only if procedural guarantees could be provided to all parties of the proceedings. In a trial by jury such technology is unacceptable.

Waiver in the Russian Criminal Process from the Point of View of Standards of European Court of Human Rights

2019 ◽  
Vol 10 (3) ◽  
pp. 746
Author(s):  
Irina N. CHEBOTAREVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Point Of View ◽  
European Convention ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
European Court ◽  
The Russian Federation ◽  
Russian Law

The research deals with the case law of European Court of Human Rights against the Russian Federation on complaints of its citizens regarding violation of Article 6 of European Convention on Human Rights in criminal proceedings when it considers waiver. The author has defined and analyzed both the standards of waiver and the Court’s approaches to the establishment of waiver and the requirements and conditions developed by it. The author’s analysis of the decisions of European Court of Justice in respect of Russia, in which the court considered the legality of waiver in specific criminal cases when the Russian authorities claimed that the Applicant had waived his right, has led to the conclusion about misunderstanding of the Russian law executor of this legal phenomenon. As a result the defects of law enforcement are hidden behind the waiver of one’s right in the Russian criminal process.

Sign in / Sign up

Export Citation Format

Share Document