Limitations of Fundamental Human Rights and Freedoms in International Law and Novations in the Russian Criminal Legislation

10.12737/1209 ◽  
2013 ◽  
Vol 1 (11) ◽  
pp. 75-84
Author(s):  
Юрий Ромашев ◽  
YUriy Romashyev
Keyword(s):  
Human Rights ◽  
National Security ◽  
International Law ◽  
Criminal Code ◽  
Public Order ◽  
European Court ◽  
State Secret ◽  
The Russian Federation ◽  
Criminal Legislation ◽  
State Secrets

The author analyses new amendments related to state secrets protection: amendments to Article 275 ‘High Treason’, Article 276 ‘Espionage’, Article 283 ‘Disclosure of a State Secret’, and adopted Article 283.1 ‘Illegal Receipt of Information Constituting a State Secret’ of the Criminal Code of the Russian Federation in respect to their conformity with acceptable restrictions of fundamental human rights and freedoms. Special attention is paid to theoretical and action-oriented aspects of restrictions of fundamental human rights and freedoms. The author investigates relevant provisions of international documents, practice of the European Court of Human Rights, doctrines of leading experts in this sphere. The author notes that the criteria for restricting fundamental human rights and freedoms should be established entirely under the law and be indispensable and applicable in a democratic society, be aimed at the protection of national security and public order. The author draws the conclusion on the urgent character and timeliness of introducing the abovementioned novations into the Russian criminal legislation, and their conformity with generally recognized principles and rules of international law.

INTERNATIONAL PROTECTION OF THE SPHERE OF BLOCKCHAIN FUNCTIONING AGAINST CRIMINAL OFFENCES: LANDSCAPE, DYNAMICS AND PERSPECTIVES

2020 ◽  
Vol 13 (7) ◽  
pp. 133-138
Author(s):  
SONA MKRTCHIAN ◽  
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Information Technologies ◽  
Legal Protection ◽  
Criminal Code ◽  
International Protection ◽  
Criminal Offense ◽  
Telecommunications Network ◽  
The Russian Federation ◽  
Criminal Legislation

The purpose of the research is to identify the most successful ideas and legal techniques used in international law regarding regulations of defense against criminal offences in the sphere of cybersecurity, as well as blockchain functioning and cryptocurrency turnover. Results. On the basis of the positive international experience in regulating the criminal legal protection of relations in the last-mentioned sphere, the following directions for improving Russian criminal legislation were formulated: 1) fixation of the fair limits of the criminal administrative liability for defendant in reliance on the level of public danger of his personality and his offences; 2) creation of the formally defined crimes against computer information; 3) criminalization of some actions that precede cybercrimes; 4) expansion in the number of the mentioning of the sign "by interfering in the functioning of the resources of the storing, processing or transmitting computer information or data telecommunications network" as an essential or aggravating elements of crimes, typically committed with the use of information technologies (for example, in the articles number 133, 134, 135, 137, 138, 139, 146, 147, 163, 165, 240, 240.1, 241 of the Criminal Code of the Russian Federation, etc.); 5) expansion in the number of the elements of crimes combined in the chapter 28 of the Criminal Code of the Russian Federation, in reliance on the modern criminal schemes and typical criminal situations in the world of information technology; 6) expansion of the effect of the article number 274.1 of the Criminal Code of the Russian Federation on any criminal offense to the critical information infrastructure of the Russian Federation and inclusion of the additional aggravating elements in the text of this article.

Cestaro v. Italy: The European Court of Human Rights on the Duty to Criminalise Torture and Italy’s Structural Problem

2017 ◽  
Vol 17 (3) ◽  
pp. 567-585
Author(s):  
Domenico Carolei
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Code ◽  
European Convention ◽  
Structural Problem ◽  
European Court ◽  
The One ◽  
Definition Of ◽  
Normative Content ◽  
Italian Legislation

In April 2015, the European Court of Human Rights (ECtHR) ruled that Italian legislation is inadequate to criminalise acts of torture (Cestaro v. Italy). Following the ECtHR’s decision, the Italian Parliament approved the bill A.C. 2168 which aimed to introduce the crime of torture (Article 613-bis) in the Italian Criminal Code. The bill does not seem to comply with the definition of torture provided by international law, and also neglects the legislative guidelines outlined by the ECtHR in Cestaro v. Italy. The purpose of this article is twofold. On the one hand, it will assess the ECtHR’s decision focusing on Italy’s structural problem and its duty to enact and enforce efficient criminal provisions under Article 3 of the European Convention. On the other hand, it will analyse the normative content of Article 613-bis in order to highlight its weaknesses and propose, on each of them, suggestions for amendment.

scholarly journals RESTRICTION OF THE RIGHT TO THE LIBERTY AND SECURITY OF MINORS ACCORDING TO THE INTERNATIONAL AND NATIONAL LAW (BY THE EXAMPLE OF THE RUSSIAN FEDERATION)

2019 ◽  
Vol 8 (6) ◽  
Author(s):  
Gulnara R. Shaihutdinova ◽  
Gulshat Z. Shamilova
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Offense ◽  
European Court ◽  
Personal Rights ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
The Right ◽  
Article 5

The article is about the main points of the minors arrest and detention who are suspected in a criminal offense under paragraph 5 (d) of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950; the legality of the minors arrest and detention, rights and freedoms. The special attention is paid to the study of the pointed legal positions of the European Court of Human Rights. The importance of the study is connected with the fact that the right to the liberty and security is one of the most important rights included in the list of internationally recognized human rights and freedoms. From the point of the generally accepted classification in the law theory and Russian constitutional law, as well as in the theory of international law, the analysing law belongs to the civil (personal) rights. In this regard, the right to the liberty and security can be characterized as a law that has a natural character and it is closely connected with the nature of man.Detention or arrest is the most severe measure; it is applied only on the basis of a court decision which is based only on the results of consideration which is accepted as a result of the court’s learning of the relevant petition submitted by an investigator or inquiry officer

scholarly journals Criminal law protection of certain principles of the budgetary system of the Russian Federation

2021 ◽  
pp. 60-69
Author(s):  
Artem Aleksandrovich Pastushenko ◽  
Elena Yuryevna Antonova
Keyword(s):  
National Security ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Case Law ◽  
Criminal Code ◽  
Inappropriate Use ◽  
The Subject ◽  
The Russian Federation ◽  
Criminal Legislation

The subject of this research is the criminal law guarantees for the implementation of the principles of appropriate and targeted spending of budgetary resources as an element of ensuring national security of the Russian Federation. The author conducts the assessment of normative and law-enforcement material that determines the legal essence of the indicated principles of budgetary system of the Russian Federation. The article explores case law of implementation of certain norms of criminal legislation of the Russian Federation associated with contravention of the principle of appropriate use of budgetary allocations. This article is first to juxtapose the measures of criminal law protection of the principles of appropriate and targeted spending of budgetary resources. Based on the acquired results, the current position on the absence of penalties for the inappropriate use of budgetary allocations is being disputed. The conducted comparative analysis of the measures of criminal responsibility reveals large disparity with regards to protection of the two key principles of budgetary system of the Russian Federation. The author also established the presence of criminal elements that carry out preclusive function, which narrows down the capabilities of criminal law of the Russian Federation. The article offers an optimal and effective method for eliminating this problem and improving protective capabilities of the Criminal Code of the Russian Federation, including the tasks of ensuring national security.

scholarly journals Unjustified Assets Forfeiture: a Hidden Type of Punishment?

2021 ◽  
Vol 7 ◽  
pp. 61-70
Author(s):  
Tetiana Khutor
Keyword(s):  
Human Rights ◽  
Practical Importance ◽  
Case Law ◽  
Criminal Code ◽  
European Convention ◽  
State Revenue ◽  
European Court ◽  
Procedural Code ◽  
Criminal Legislation ◽  
Legal Mechanism

The purpose of this article is to determine whether the forfeiture of assets as a result of declaring them unjustified should be considered as a penalty.Provisions governing the recognition of assets unjustified and its further forfeiture in the state revenue (RAS) were introduced into the Civil Procedural Code of Ukraine in 2015 and were criticized by the scientific community due to the similarities with the special confiscation provided by the Criminal Code of Ukraine, and were never implemented in practice. However, at the end of 2019, the essence of these provisions was dramatically changed via a combination of a foreign model of “non-conviction based  forfeiture” and certain features of the crime of illicit enrichment. Right after the adoption of these new provisions, the members of the Ukrainian parliament initiated the constitutional petition. They claim that the RAS, being, in essence, a punishment, unreasonably deprives the party of protecting its rights and guarantees provided by the criminal legislation of Ukraine.Given the foreign origin of this legal mechanism and that this type of penalty was introduced into Ukrainian law not so long ago, the methodology of this research covers both analysis of current legislation, research of Ukrainian and foreign scholars, and the case-law of the European Court of Human Rights. The analysis allowed us to assess to which extent the procedure, severity, nature, and objectives of unjustified assets forfeiture coincide with the procedure, severity, nature, and objectives of punishment.The results suggest that such a penalty can be considered as a punishment neither under the European Convention on Human Rights nor national legislation, as it does not, inter alia, prove or disprove the facts of any offense or the connection of assets with any offense and is not intended to punish and prevent from committing other offenses. Given the fundamental nature of the issue under investigation in the context of its constitutional appeal and the lack of practice of applying such a penalty in Ukraine as of the preparation of the present research, the article has theoretical and practical importance.

scholarly journals Suppression of Crimes Against the Security of Fixed Platforms Located in the Waters of the Russian Federation (International Law Basis)

2020 ◽  
Vol 14 (2) ◽  
pp. 313-326
Author(s):  
Alexander Vylegzhanin ◽  
Sergey Lobanov ◽  
Alexandra Skuratova
Keyword(s):  
Continental Shelf ◽  
International Law ◽  
Russian Federation ◽  
Water Body ◽  
Criminal Code ◽  
The State ◽  
Criminal Jurisdiction ◽  
The Russian Federation ◽  
Business Entities ◽  
Criminal Legislation

The Russian state exercises sovereignty over its waters and has exclusive criminal jurisdiction with respect to crimes infringing on the security of oil, research or other stationary platforms in these waters, although their status may differ, for example, Lake Baikal; part of a continental water body (the Caspian Sea); marine internal waters (the Peter the Great Gulf); the territorial sea of the Russian Federation. Despite certain differences in status, all these waters are united by being part of the Russian territory. They differ from the waters that are not part of the territory of the state, but are above the continental shelf of the Russian Federation; these are the waters of the exclusive economic zone of the Russian Federation, and the open sea waters start beyond the 200-mile distance from the baseline. Even in the latter case, since a platform is stationary on the continental shelf of the Russian Federation, it is within the exclusive criminal jurisdiction of the Russian Federation. Counteraction to crimes infringing of the security of platforms fixed to the seabed includes a wide range of legal and organizational-legal measures. Besides, an important part is played by the special norms of international and national laws, including the criminal legislation of the state that has jurisdiction over the water body where a fixed platform is located. This article presents suggestions on improving Russian criminal legislation taking into account Russia's participation in the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 1988, other applicable norms of international law, the necessity to observe international law obligations and protect the national interests of the country. The authors suggest that unlawful acts of seizing a fixed platform or other violent actions infringing on the security of this object, the security of personnel operating it, aimed at forcing a state or an organization which is legally operating this object to perform or abstain form certain actions, and resulting in the intimidation of the population should be specifically included in the national criminal law as a separate type of terrorism crimes. The authors also recommend to add the norms on criminal liability for other unlawful, criminally punishable acts (which are not acts of terrorism and do not have the features of terrorism), including the attempts of illegal entry into a fixed platform or hindering its operation, to Chapter 24 of the Criminal Code of the Russian Federation «Crimes against Public Safety» as a separate Article of the Criminal Code of the Russian Federation among the norms regarding crimes that violate the security of the functioning of potentially dangerous objects (potentially dangerous operations). They recommend to use the most successful international legal experience to improve corporate acts within the framework of Russian legislation through the content specification of the scope and type of rights and obligations of business entities, including the relationships of the fixed platforms personnel with the law enforcement bodies with the purpose of a more effective inclusion of business entities in the system of measures of preventing and suppressing illegal interference in the functioning of fixed platforms in the Russian waters.

The applicability decision of the ECHR in legal proceedings

2015 ◽  
Vol 3 (5) ◽  
pp. 211-218
Author(s):  
Полина Виноградова ◽  
Polina Vinogradova
Keyword(s):  
Human Rights ◽  
International Law ◽  
Russian Federation ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Legal Proceedings ◽  
European Court ◽  
Federal Constitutional ◽  
Legal Position ◽  
The Russian Federation

In modern conditions, changing approaches to the implementation of international law there is both the need and opportunity. The article considers some issues of the relation of national and international law. The legal position about resolution of conflicts of constitutional and conventional interpretations are based on the decision of the Constitutional Court of the Russian Federation on the so-called request for the applicability of decisions of the European Court of Human Rights. Since 2014 there is a new version of Article 101 of the Federal Constitutional Law on the Constitutional Court, which establishes opportunity to apply to the Constitutional Court against the decision of the ECHR. This provision contains an important mechanism for harmonization the constitutional and conventional interpretation.

Sowieckie ludobójstwo i prawo międzynarodowe. Litewskie zmagania ze zbrodniami ZSRS w świetle orzeczenia Europejskiego Trybunału Praw Człowieka w sprawie Drelingas

2021 ◽  
Vol 19 (2) ◽  
pp. 237-258
Author(s):  
Tomasz Lachowski
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
International Law ◽  
Russian Federation ◽  
Soviet Occupation ◽  
The Soviet Union ◽  
European Court ◽  
The Russian Federation ◽  
Resistance Movement

The aim of the paper is to analyze the endeavors undertaken by the authorities of independent Lithuania to deal with the crimes committed by the Soviet Union against Lithuanian society, in particular against representatives of the anti-Soviet resistance movement, by using the notion of crime of genocide rooted in international law. The judgment of the European Court of Human Rights in the case of Drelingas v. Lithuania of 12 March 2019, which approved the legality of the qualification of “ethno-national-political” genocide of “forest brethren” committed by the Soviet occupation authorities, was one of the key elements confirming the Lithuanian policy in this regard. This ruling reopens the discussion on the possibility of trying the crimes of the Soviet Union, at the same time raising certain legal and political doubts – as generally expressed by the Russian Federation.

scholarly journals To the question about the possibility of using the results of the operational search activities in criminal proceedings

2020 ◽  
pp. 180-185
Author(s):  
N. A. Mikhailichenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Legal Regulation ◽  
Court Decision ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
European Court ◽  
The Russian Federation ◽  
Criminal Legislation

The article analyzes the issue of the lack of proper legal regulation of requirements for the results of operational-search activities used in the field of criminal proceedings. A separate place is given to the problem of assessing the presented results of operational-search activities. On the basis of the practice of the Constitutional Court of the Russian Federation and the European Court of Human Rights, a solution to this problem is proposed. At the same time, the provision is taken as a basis that any, in direct or indirect form, affecting the constitutional rights of citizens in the course of operational-search activities, entails the need to obtain a court decision for such activities. The question of the need to reform the criminal legislation is outlined. 

scholarly journals Russia Against Ukraine Before the European Court of Human Rights. The Empire Strikes Back?

2021 ◽  
Vol 51 ◽  
pp. 1-23
Author(s):  
Milena Ingelevič-Citak ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Russian Government ◽  
Crimean Peninsula ◽  
Strategic Objectives ◽  
European Court ◽  
The Russian Federation ◽  
The Given ◽  
Legal Battle ◽  
The Crimean Peninsula

In July 2021, Russia submitted its first inter-state complaint against Ukraine to the European Court of Human Rights. It was an unexpected and intriguing step of the Russian government, especially since many of the presented allegations are linked to the events that initiated the Russian-Ukrainian conflict. Referring to the hostilities that began in 2014, the international community was, in principle, unanimous in assessing who the aggressor was. The focus of this research is the strategy of the Russian Federation in its recently initiated legal battle before the Strasbourg Court. This paper presents an attempt to outline the possible motives for taking such a step. Moscow's position on this case is particularly puzzling, as some of the allegations concern the Crimean Peninsula, widely recognized under international law as territory occupied by Russia. In spite of that, doubt arises about the strategic objectives of the Russian authorities in the conflict with Ukraine; the question is whether the actions taken by Russia fall within the scope of its previous strategy or if there has been a new turn in the matter. The first part of this paper outlines the background of the given conflict, the second details Russian policy after the annexation of Crimea, and the third, which is crucial for the formulating of conclusions, presents considerations on Russia's possible motivation and goals in filing a complaint to the European Court Human Rights. The research was conducted mainly based on the merits of the complaint, the statements of the representatives of Russia and Ukraine in the matter, the author's observations, and practitioners' considerations.

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