scholarly journals CIVIL CLAIM IN A CRIMINAL PROCEEDING IN UKRAINE AS A MEANS OF GUARANTEE AND PROTECTION OF INDIVIDUALS’ RIGHTS

2020 ◽  
pp. 174-177
Author(s):  
O. A. Tymoshenko
Keyword(s):  
Human Rights ◽  
Justice System ◽  
National Level ◽  
The State ◽  
Criminal Proceedings ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
Technical Requirements ◽  
European Court

The article deals with analyzing the state of the civil claim scientific research in criminal proceedings in Ukraine and summarizing it. It was determined the relevance of scientific rethinking of the phenomenological foundations of a civil claim in criminal proceedings. It is proved that the importance of the mechanism of criminal justice has the issue of legal support of the institute of civil claim, as an important component of guaranteeing and protecting the rights and freedoms of citizens. First of all, this is explained by the importance of a civil claim in criminal proceedings, its actual role that a civil claim plays in the justice system, ensuring the protection of the violated rights of citizens. On the basis of the state critical analysis of a civil claim legal support in criminal proceedings in Ukraine, it was determined its components and given their characteristics, which include: 1) the subjective component of the legal relations relating to civil claim in criminal proceedings in Ukraine; 2) the procedural issues of filing and considering a civil claim; 3) legal and technical requirements relating to the form and content of the civil claim. It was made and justified the provisions concerning the prospects of improving the civil claim mechanism functioning in criminal proceedings in Ukraine. Transformation of scientific understanding and practical perception of civil claim in criminal proceedings as a means of securing and protecting human rights and freedoms has been proved, on the basis of which the directions of improving the functioning of the said legal institute in Ukraine are distinguished, namely: 1) enhancing the role and importance of the European Court of Justice’ s activities human rights in extending his practice to litigation in criminal proceedings in Ukraine; 2) strengthening the mechanisms of human rights protection at the domestic (national) level in accordance with the requirements of international law, which are a component of civil claim in criminal proceedings; 3) improve the procedure for enforcement of the decisions of the national courts of Ukraine in the part related to civil claim in criminal proceedings, etc.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

The Internationalization Of Human Rights And The Importance Of Normative Dialogues Between International And National Courts

2017 ◽  
Vol 17 (2) ◽  
pp. 137
Author(s):  
Mariane Morato Stival ◽  
Marcos André Ribeiro ◽  
Daniel Gonçalves Mendes da Costa
Keyword(s):  
Human Rights ◽  
The Other ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court ◽  
Differences Of Opinion ◽  
Rights Discourse ◽  
Different Characteristics ◽  
Human Rights Discourse

This article intends to analyze in the context of the complexity of the process of internationalization of human rights, the definitions and tensions between cultural universalism and relativism, the essence of human rights discourse, its basic norms and an analysis of the normative dialogues in case decisions involving violations of human rights in international tribunals such as the European Court of Human Rights, the Inter-American Court of Human Rights and national courts. The well-established dialogue between courts can bring convergences closer together and remove differences of opinion on human rights protection. A new dynamic can occur through a complementarity of one court with respect to the other, even with the different characteristics between the legal orders.

scholarly journals Interim measures as human rights protection instruments: to the problem statement

2021 ◽  
pp. 539-544
Author(s):  
Siuzanna Mnatsakanian
Keyword(s):  
Human Rights ◽  
National Level ◽  
Human Rights Violations ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Core Issue ◽  
Great Practice ◽  
Interim Measures ◽  
Human Rights Violation

Conceptual approaches to defining the nature and the scope of interim measures implementation as an instrument of human rights protection at international and national level are analyzed. The widespread use of interim measures as international standard of urgent respond to alleged violations of human rights has not led to the implementation of the legal institute concerned at the national level. Accordingly, this analysis aimed at defining the grounds of interim measures as human rights protection instrument application to be used by the state as an immediate response to human rights violations and possible violations. European Court of Human Rights has a great practice of interim measures granting. Interim measures are granted by the Court only in clearly defined conditions, namely where there is a risk that serious violations of the Convention might occur. A high proportion of requests for interim measures are inappropriate and are therefore refused. Besides, interim measures are applied upon request of the applicant claiming about alleged violations of his or her human rights. At the national level interim measures should/may be granted upon request of the applicant or by the duty-bearer’s initiative to prevent possible human rights violations. The grounds of interim measures granting should also be defined – the best international practice should be used taking into account the Ukrainian context. Another core issue analyzed is defining duty-bearers – subjects enforced to grant interim to prevent abuse in the sphere concerned. It is obvious that court shall be the only authority to resolve the substantive case of alleged human rights violation. However, public and local authorities shall be enabled to grant interim measures to prevent the possible violations. With this, the scope and the sphere of its application at the national level shall be broader in comparison with the case law of the European Court of Human Rights.

scholarly journals Torture as a ground for inadmissibility of evidence

2021 ◽  
pp. 28-31
Author(s):  
Maryna HRYTSENKO
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
The State ◽  
Evidence Based ◽  
Legal Systems ◽  
Criminal Proceedings ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The European Court of Human Rights, which focuses on the Convention for the Protection of Human Rights and Fundamental Freedoms, points to the importance of the prohibition of torture. The Court has formed its position based on the importance of Article 3 of the Convention and, consequently, the inadmissibility of the evidence obtained in violation of that article by the prosecution. This paper analyzes the practice of the European Court of Human Rights on the implementation of evidence-based activities in national legal systems, and in particular examines the requirements of the Court on the admissibility of evidence-based exercise and activity obtained in the course of work results. The paper demonstrates the ECHR's practice on the issue of torture in obtaining evidence and the consequences of using such a «method», its significance for the practice of national courts and the modernization of the position of courts in relation to the dynamics of this issue. As a result, problematic areas of Ukrainian legislation and justice were identified. The reasons for the use of torture by the authorities and the safeguards introduced by Ukraine to combat the use of such inhuman treatment by the authorities were identified. Changes in the opinion of the European Court of Human Rights on this issue and its significance for Ukraine are analyzed. The possibilities of application of the ECHR for evaluation of admissibility of evidence in criminal proceedings in Ukraine are examined. The patterns characterizing the legal positions of the ECHR in assessing the admissibility of evidence are discovered and singled out. Ukraine should take into account that the responsibilities of the state, in addition to refraining from the use of torture to obtain evidence, include the protection of people from these encroachments by third parties.

scholarly journals Human and civil rights as a determiner of national state-building

Legal Ukraine ◽  
2020 ◽  
pp. 6-12
Author(s):  
Oleksandr Nelin
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Current Theory ◽  
The State ◽  
Theory And Practice ◽  
Legal Doctrine ◽  
Human Rights Protection ◽  
National Courts ◽  
European Court ◽  
The Right

At the present stage of their development the Ukrainian society and the state are characterized by their pursuit to provide maximum realization of human and civil rights and to create a full-scale civil society. Obviously, in this context, a significant attention is paid to the human rights in Ukraine, however there is insufficient research systematically conceptualizing the human rights employing philosophical and legal instruments and methodology. The author highlights that particular attention in the mechanism of organizational and legal remedies is paid to judicial and extrajudicial protection of human and civil rights. In accordance with the Article 55 of the Constitution of Ukraine the judicial protection of human and civil rights is maintained through the system of general jurisdiction courts of Ukraine. The state ensures the right of every person to appeal in court against any decisions, actions or inactivity of the state bodies, local self-government bodies and government officials that violate human and civil rights. In case of exhausting all remedies of his/her rights and liberties protection in national courts the person can appeal to the international courts, e.g. to the European Court of Human Rights. At present, Ukraine holds the third position in the number of its citizens’ appeals to this distinguished international legal institution. Every person is able to appeal to the extrajudicial institutions authorized to protect the constitutional human and civil rights and liberties. In Ukraine there is a special body for this purpose — the Ukrainian Parliament Commissioner for Human Rights, whose activities are determined by the Law of Ukraine «On the Ukrainian Parliament Commissioner for Human Rights» of 23 December, 1997. In case when all extrajudicial remedies of human rights protection are exhausted, a person has the right, guaranteed by the Constitution of Ukraine, to appeal to the international human rights organizations (Art. 55). In terms of the current theory and practice of guaranteeing the constitutional human and civil rights, together with the national regulatory, organizational and legal guarantees, it is worth to distinguish the international guarantees of the constitutional human and civil rights and liberties in Ukraine. The special international legal guarantees of the human and civil rights and liberties are usually divided into regulatory and institutional ones. Key words: human and civil rights and liberties, constitutional state, national legal doctrine, international law, imitation of human rights, constitutional and legal mechanism for ensuring human rights and liberties.

scholarly journals KEABSAHAN ALAT BUKTI ELEKTRONIK PASCA PUTUSAN MAHKAMAH KONSTITUSI NO.20/PUU-XVI/2016 DALAM PRESPEKTIF CRIMINAL JUSTICE SYSTEM

2017 ◽  
Vol 5 (4) ◽  
pp. 677
Author(s):  
Erma Lisnawati
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Justice System ◽  
The State ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
Electronic Evidence ◽  
Rights Protection ◽  
Electronic Transactions ◽  
Article 5

Indonesia is a state of law that upholds of human rights. In the state of law, there is a human rights protection by the state including the privacy of rights. It is referred judicial review of Act No. 11 of 2008 on Information and Electronic Transactions, of Article 5 Paragraph (2). To protect the privacy of recording and wiretapping conducted illegally. The Constitutional Court has been issued a ruling of the Constitutional Court No.20/PUU-XVI/2016 which imposes limits on how electronic evidence retrieval and also who is allowed to submit as an evidence in court. The court ruling was appropriate given the absence of norms regulating the procedures for the acquisition and delivery of electronic evidence. In a special lex such as criminal acts Corruption, Money Laundering and Terrorism Crime and Crime and Electronic Information only governs the kinds of electronic evidence alone, as well as the Code of Criminal Law.Indonesia adalah Negara hukum yang menjunjung tinggi hak asasi manusia. dalam Negara hukum, ada perlindungan hak asasi manusia oleh Negara, termasuk hak pribadi. Undang-undang Nomor 11 tahun 2008 tentang Informasi dan Transaksi Elektrokni, Pasal 5 Ayat (2) telah diajukan judisial review pada Mahkamah Konstitusi. Mahkamah Konstitusi telah mengeluarkan putusan Mahkamah Konstitusi Nomor 20/PUU-XVI/2016, yang memberikan batasan tentang cara pengambilan alat bukti elektronik yang diperkenankan untuk diajukan dalam proses persidangan. Hal ini, sudah tepat mengingat tidak adanya norma yang mengatur tentang cara perolehan alat bukti elektronik dan siapa yang berhak mengajukan alat bukti elektronik tersebut ke pengadilan. Dalam beberapa undang-undang khusus pedoman tentang alat bukti elektronik hanya mengatur mengenai tindak pidana khusus saja seperti pada Tindak Pidana Korupsi, Tindak Pidana Pencucian Uang, Tindak Pidana Terorisme dan Tindak Pidana Informasi dan Transaksi Elektronik.

scholarly journals From dynamic to static: the evolution of the relationship between the UK and the European Court of Human Rights

2019 ◽  
pp. 161
Author(s):  
Merris Amos
Keyword(s):  
Human Rights ◽  
National Level ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Derechos Humanos ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Uk ◽  
The Relationship

In this article the evolution of the relationship between the UK and the European Court of Human Rights is examined. With strong human rights protection through law now present at the national level, it is concluded that the relationship has moved from a dynamic to static. The implications of this for the protection of human rights in the UK are considered and evaluated.En este artículo se examina la evolución de la relación entre el Reino Unido y el Tribunal Europeo de Derechos Humanos. Teniendo en cuenta que ya existe a nivel nacional una importante garantía y protección de los derechos fundamentales, se observa que la relación ha cambiado de dinámica a estática. Las implicaciones que este paradigma tiene para el caso particular del Reino Unido será objeto de examen y discusión.

scholarly journals European Experience in Regulating Human Right to Free Secondary Legal Aid

2019 ◽  
Vol 87 (4) ◽  
pp. 81-86
Author(s):  
P. Valko
Keyword(s):  
Human Rights ◽  
The State ◽  
European Countries ◽  
Court Case ◽  
Legal Aid ◽  
Human Right ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
European Experience

The author has analyzed the opinions of scholars on the necessity of introducing the European experience of regulating human right to free secondary legal aid into the national system of protecting human rights. It has been proved that the experience of the European countries is the key to creating the institutional and regulatory base necessary for providing free legal aid, ensuring the financial capacity and stability of the functioning of human rights protection system in Ukraine. There author has defined two key conditions for ensuring human right to free legal aid: 1) the condition of the state or the “poverty and need test”, which is based on a financial criterion, which allows to determine the lack of sufficient funds to pay for legal aid of a lawyer; 2) a condition of the essence or a “test for the interest of justice” that links the provision of free legal aid to the requirements of justice. On the basis of the analysis of the basic normative acts of the European countries and the judgments of the European Court of Human Rights, the author has distinguished basic criteria of the necessity of rendering a person free legal aid: 1) demand of interests of justice; 2) the complexity of the court case; 3) the need for the services of a lawyer in regard to the particular circumstances of the case; 4) financing of legal aid by the state.

Constitutional Pluralism and Transnational Justice

2018 ◽  
Author(s):  
Alec Stone Sweet ◽  
Clare Ryan
Keyword(s):  
National Level ◽  
Legal Order ◽  
Rights Protection ◽  
National Courts ◽  
European Court ◽  
Transnational Justice ◽  
Multi Level ◽  
Constitutional Pluralism ◽  
Combined Impact ◽  
Proportionality Principle

In Europe, a cosmopolitan legal order was instantiated through the combined impact of Protocol no. 11 of the ECHR (1998), and the incorporation of the Convention into national legal systems. As a result, two processes—(i) the evolution of constitutional pluralism at the national level; and (ii) the development of rights protection at the transnational level—became causally connected to one another. The first undermined traditional models of domestic orders wherein the notions of constitutional unity and centralized sovereignty reinforced one another. The second process created a multi-level legal system whose effectiveness depends on the extent to which the European Court is able to induce and sustain the cooperation of national courts and officials. The constitutionalization of the proportionality principle, at both the domestic and transnational levels, provided a doctrinal interface for inter-jurisdictional dialogue, and the collective enforcement of the UPR.

scholarly journals Improving Human Rights Protection on the national and the European Level

2015 ◽  
pp. 36-51
Author(s):  
RUDOLF DUR SCHNUTZ
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Level ◽  
Human Rights Protection ◽  
Current State ◽  
European Court ◽  
Protection Of Human Rights ◽  
Venice Commission ◽  
Effective Remedy ◽  
The Individual

The recent move towards the individual access to constitutional justice is a progress for protection of human rights in Europe. The explicit purpose of these efforts is to settle human rights issues on the national level and to reduce the number of cases at the Strasbourg Court. Such individual complaints have to be designed in a way that makes them an effective remedy which has to be exhausted before a case can be brought before the European Court of Human Rights. This paper points out the current state of these improvements on the national level in a difficult context on the European level and the recommendations of the Venice Commission in this regard.

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