scholarly journals Human dignity as a fundamental basis and a practical tool of “right to hope” in criminal law

2021 ◽  
pp. 23-30
Author(s):  
Slipachyk Slipachyk
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Legal Regulation ◽  
Scientific Article ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Legal Analysis ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
The Right

The scientific article focuses on the analysis of a sentence of life imprisonment without a realistic prospect of release in Ukraine as a violation of the “right to hope” in the context of the human dignity category. The study provides an overview of approaches to the definition of human dignity in national legal doctrine and practice, a historical and legal analysis of the origins of legal regulation of the idea of ​​respect for human dignity in international legal acts, and analyses the constitutional stages of the evolution of this concept as a matter of international law. The author has reviewed the jurisprudence of the European Court of Human Rights on this issue and studied the reasons of the Court on setting standards for acceptable treatment of a person through the lenses of human dignity and the inadmissibility of inhuman and degrading offences. Taking into account these standards, a critical assessment has been carried out, in particular, of the judicial practice of the Federal Republic of Germany on the application to a prisoner of such a type of punishment as preventive detention with indefinite duration. Emphasis has been given to the national judicial practice in cases of possible releasing life-sentenced prisoners in the conclusions of the Grand Chamber of the Supreme Court and the decision of the Constitutional Court of Ukraine on this issue. Based on the results of the study, a set of measures, including amending the legislation to bring it in line with the requirements of European human rights standards to protect human dignity and ensure the “right to hope” has been offered.

scholarly journals Ensuring a Balance Between Public and Private Interests in the Implementation of Quarantine Measures

2020 ◽  
Vol 9 (2) ◽  
pp. 317-340
Author(s):  
Yaroslav Lazur ◽  
Tetyana Karabin ◽  
Oleksander Martyniuk ◽  
Oleksandr Bukhanevych ◽  
Oksana Kanienberh-Sandul
Keyword(s):  
Human Rights ◽  
Common Good ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Public Interests ◽  
Fiscal Stimulus ◽  
Private Interests ◽  
Private And Public ◽  
The Government ◽  
The Right

Under the influence of the spread of coronavirus infection, the world community has faced difficult challenges that provoke changes in the seemingly already stabilized legal regulation, putting at risk the settlement of human rights and the common good. The study aims to find effective mechanisms for balancing human rights and public interests in the context of their legal regulation. Specifically, this study is focused on the mechanisms of balancing private and public interests in the implementation of quarantine measures in the Covid-19 pandemic. The research methods were both general scientific and special methods, in particular: formal legal, historical and legal, analysis and synthesis. To perform the tasks of the work, the following structure was used: after some initial precisions, there are provided some considerations about the fiscal stimulus measures and about the exercise of the right of derogation; then, the study deals with the problem of lawmaking in a pandemic; and finally it is considered the threats to intellectual property in the sphere of healthcare. The results of the work show that the pandemic has seriously hit the balance between private and public interests. The public interests of the government and society have become a priority, but in many cases, the measures that infringe private interests are disproportionate, untimely and inefficient.

WAIVER OF SUBJECTIVE RIGHT INSTITUTE: LEGAL NATURE AND ACCEPTANCE CRITERIA IN CRIMINAL PROCEEDINGS

2020 ◽  
pp. 42-47
Author(s):  
I. N. Chebotareva ◽  
◽  
O. S. Pashutina ◽  
I. V. Revina ◽  
◽  
...  
Keyword(s):  
Back Analysis ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Scientific Interest ◽  
Criminal Proceedings ◽  
Legal Doctrine ◽  
Legal Nature ◽  
The Look ◽  
Definition Of ◽  
The Right

The nature of a subjective right causes the possibility of a criminal proceedings participant willingly, based on own interests and wishes, both to exercise the right exactly and waive it and not to use the provided procedural possibilities. Within the criminal proceedings, the waiver of the right institute is new, underdeveloped. There is practically no understanding of its subject matter and the extent of its exercise at the level of doctrine and jurisprudence as opposed to the foreign experience and civil legal regulation, which causes definite scientific interest in this topic. The paper carries out the look-back analysis of the definition of the nature of the waiver of the subjective right in Russian legal doctrine. This institute is relatively new and little researched in the Russian doctrine, which determines a particular scientific interest in the study of this issue. The paper provides the authors’ description of the waiver of the subjective right. In respect to the Russian criminal procedural legislation, the authors highlight the necessity to distinguish between the refusal of a right and the refusal to exercise a right by the participants in the criminal procedural activity; analyze the differentiated approach of the legislator on this issue. Based on the theoretical and legal analysis, the authors define that the waiver of the subjective right has definite essential features, forms, and ways of implementation, as well as specify the criteria for its admissibility. The paper proves the conclusion that the waiver of the right within the criminal process is possible under such conditions, as the direct willingness of a subject of criminal law relations to waive a right; the awareness of the existence of a particular procedural right and the consequences of such refusal; the form of a waiver showing its voluntary nature by implementing the intended freedom of choice. The authors expressed the proposals aimed at the improvement of norms of current criminal procedural legislation.

JUDICIAL DOCTRINE AS A SOURCE OF CRIMINAL PROCEDURE LAW OF UKRAINE: GENERAL GNOSEOLOGICAL (EPISTEMIOLOGICAL) RESEARCH (PART ТWO)

2021 ◽  
Vol 2 (2) ◽  
pp. 49-57
Author(s):  
Artem Shapar ◽  
◽  
Yuriy Yelaiev ◽  
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Scientific Article ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Doctrine ◽  
Criminal Process ◽  
Procedural Law ◽  
Relationship Of

In this scientific article, the continuation of the gnoseological (epistemological) research of legal doctrine as a source of criminal proceedings is carried out. In this scientific work, theoretical perception of scientific concepts of Ukrainian and foreign legal scholars in the field of legal doctrine as a source of law (in general), taking into account the legal significance of legal doctrine as a source of criminal procedural law (in particular) is carried out. In this scientific work, the attention is paid to the research of the fundamental and systemic relationship of legal doctrine with other sources of criminal proceedings (in particular, with the Decision of the Constitutional Court of Ukraine on a particular constitutional and judicial case). The text of this scientific article studies, inter alia, the fundamental and systemic relationship of Legal Doctrine with Separate Opinion of the Judge of the Constitutional Court of Ukraine (in a particular constitutional and judicial case), as sources of criminal procedural law of Ukraine. At the same time, the peculiarities of constitutional and judicial legal regulation in the field of criminal proceedings and in combination with the study of theoretical and legal and philosophical and legal bases (foundations) of the abovementioned two sources of criminal process in Ukraine are taken into account. The scientific knowledge of the theoretical and legal and philosophical and legal relationship of the Legal Doctrine with the Separate Opinion of the Judge of the Constitutional Court of Ukraine (as sources of criminal procedural law of Ukraine) is carried out with consideration of the scientific and theoretical features, specified in the text of Separate Opinion of the Judge of the Constitutional Court of Ukraine of legal (in particular, philosophical and legal, doctrinal and legal, general and legal, criminal and procedural) definitions. In the text of this scientific article, the attention is paid to the humanistic legal doctrine on which the acts of international law in the field of human rights (in particular, human rights in the field of criminal procedure) are based. In this scientific article, the attention is paid to legal doctrine as a manifestation of a person's ability to learn (including knowledge of the sphere of criminal process).

scholarly journals Sources of Formation of Legal Positions of Russian Highest Judicial Bodies

2021 ◽  
pp. 130-142
Author(s):  
Mariia Viktorovna Globa
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
Legal Method ◽  
The Supreme Court ◽  
The Russian Federation

The present study is devoted to determining the place and role of legal positions of higher judicial bodies of Russia (judicial legal positions) in the mechanism of legal regulation. Let us specify in advance that the author means the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation (taking into account the 2014 amendments made to the legislation concerning the liquidation of the Supreme Arbitration Court of the Russian Federation) as the higher judicial bodies of Russia. Establishing the meaning and role of judicial legal positions in the mechanism of legal regulation is carried out by the author of this study through the analysis and demonstration of the main sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. In this regard, the author of this work identifies as sources of formation of judicial legal positions: legal and non-legal. Non-legal sources of formation of legal positions of the highest courts of Russia differ from the legal ones in the fact that initially they do not have material expression, exist in the abstract, however, have no less importance for the process of formation of judicial legal positions. To the legal sources of creating legal positions of the highest judicial bodies of Russia the author includes: formal sources of law, current legal practice, legal doctrine. As non-legal sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation are: the inner conviction of a judge and professional legal consciousness of a judge. The author of this scientific research consistently reveals the importance and role of each source of formation of judicial legal positions. The conducted study of the most significant sources of formation of judicial legal positions allowed to better understand the place of legal positions of higher courts of Russia in the legal system and their role in legal regulation, which is reduced not just to the interpretation of judicial acts, but also to the formation of new legal provisions, which ultimately form a uniform judicial practice. Methodological basis of the study consisted of: analysis, synthesis, comparative-legal method, deduction, induction and other ways of knowledge used in science. Scientific conclusions and proposals contained in this work may serve as a basis for further theoretical study of the problems of judicial legal positions and used in the activities of legislative and law enforcement bodies.

scholarly journals Constitutional aspects of decent wage

2021 ◽  
pp. 101-106
Author(s):  
V.I. Fridmansʹka
Keyword(s):  
Human Rights ◽  
Human Life ◽  
Legal Regulation ◽  
The State ◽  
Standard Of Living ◽  
Decent Work ◽  
Legal Doctrine ◽  
Advantages And Disadvantages ◽  
Minimum Requirements ◽  
The Right

The article examines the legal nature of decent wages, assesses the concept of wages through the category of its dignity, fairness and sufficient and decent standard of living, as well as analyzes the advantages and disadvantages of legal regulation of decent wages. Fair and satisfactory remuneration in this study is considered as a guarantee of a dignified existence of the person and his family and is perceived in the context of fair working conditions. The analysis of the concept of a dignified life is analyzed through the prism of constitutional and legal doctrine in the context of the main duty of the state. To this end, the basic international and European standards for ensuring the fundamental human rights to a fair reward, a fair existence and a sufficient standard of living for individuals and their families are considered. The right to fair remuneration is considered through the constitutional provisions of determining the main direction of the state to ensure human rights and freedoms and decent living conditions, recognition of man, his life and health, honor and dignity, inviolability and security of the highest social value and the establishment and protection of human rights human freedoms as the main duty of the state. An analysis of the main legal positions of the court of constitutional jurisdiction on the issues of determining a sufficient and decent standard of living, a decent human life, the minimum requirements for living in conditions worthy of a person and protection from poverty. It is proved that the success of the implementation of the elements of decent work in Ukraine requires coordinated actions of the social partners on the way to guarantee a decent salary as an important factor in the concept of decent work. It is concluded that the concept of "decent pay" is still not established and is in constant development. No normative legal act of Ukraine mentions the concept of "decent pay", so there is an urgent need for its constitutionalization. It is not necessary to limit the wording only to the content of such a concept, but also to determine the conditions and guarantees of compliance, provision and protection.

THE RIGHT TO JUDICIAL PROTECTION AS A CONSTITUTIONAL PRINCIPLE OF JUSTICE (ON THE EXAMPLE OF CIVIL PROCEDURE)

2021 ◽  
Vol 11 (1) ◽  
pp. 89-106
Author(s):  
A.A. FOMIN
Keyword(s):  
Regulatory System ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Legal Doctrine ◽  
Legal Principles ◽  
Constitutional Principle ◽  
Judicial Practice ◽  
Legal Security ◽  
The Right ◽  
Judicial Protection

Procedural and legal principles, among which the right to judicial protection is of fundamental importance, reflect the specific patterns of judicial protective legal relations, innovative ideas of procedural legal doctrine and the results of the development of judicial practice. The procedural principles of law serve as criteria for assessing the effectiveness of the country’s judicial and legal policy and further modernization of the judicial and judicial legislation. An algorithm for the formation of the principles of law, including the principles of civil (arbitration) legal proceedings, within the framework of the dialectical-materialistic paradigm of scientific knowledge is considered. It is noted that positive authorization in the regulatory system of the state at the constitutional or sectoral level is a necessary prerequisite for the transformation of objective laws of public life into the principles of law and their subsequent inclusion in the mechanism of legal regulation. At the same time, it is substantiated that when building the concept of procedural principles of law, one should rely on democratic tendencies in domestic and international processes, form a constitutional attitude and new approaches to the study of the system of principles of law on the basis of a combination of decades of experience of dialectical and materialistic perception of principles of law with natural law ideas. Particular attention is paid to the consideration of constitutional and sectoral powers that form the content of the right to judicial protection, as a procedural principle of law, and acting as guarantees of ensuring legal certainty and legal security of civil procedure. A number of practical proposals are made to improve the civil (arbitration) procedural legislation aimed at increasing the efficiency of the institution of judicial protection in modern Russia.

scholarly journals HUMAN DIGNITY THROUGH THE PRISM OF THE GERMAN LEGAL DOCTRINE

2020 ◽  
pp. 33-38
Author(s):  
M. Kravchenko
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Human Beings ◽  
Human Right ◽  
Legal Doctrine ◽  
Dialectical Logic ◽  
Wide Range ◽  
Definition Of ◽  
The Right ◽  
Structural Methods

The article studies the right to human dignity through the prism of German legal doctrine. During the research, a wide range of general scientific and special legal methods of scientific cognition has been used, in particular: methods of dialectical logic, comparative legal and system-structural methods. The paper analyses domestic and German legal resources on the right to human dignity, in particular the works of S. von Puffendorf, I. Kant and G. Durig. As a result of the study, the author states that the German legal opinion formed the fundamental doctrine of the right to human dignity. This doctrine began in Germany, back in the Renaissance. For the first time, it was systematized in the works of a German researcher S. von Puffendorf. The article illustrates that human dignity is revealed in the German doctrine of fundamental human rights through a number of characteristics. The right to human dignity is the foundation of social value and respect for human beings. It prohibits the conversion of a person to an object in state procedures. Human dignity is not only the individual dignity, but also the dignity of a person as a species. Everyone possesses it regardless of its characteristics, achievements and social status. It also belongs to someone who cannot act reasonably because of his or her physical or mental state. They do not lose their human dignity even through "unworthy" behaviour, for example, by committing any crime. No one can be deprived of human dignity. Attention is drawn to the fact that German law does not intentionally give a definitive definition of the right to human dignity. It merely defines a comprehensive list of requirements for the protection of this fundamental human right. The reason for this is that any definition cannot guarantee the absolute protection of this human right. In other words, such a normative definition of this human right will inevitably lead to such a situation where it cannot protect the human dignity of an individual or even be the legal basis for its restriction. In this part, the German approach to the definition of the right to human dignity differs significantly from the domestic approach, since for the national science and practice of lawmaking it is quite logical to take a different approach, in particular to formulate clear and comprehensive definitions of legally significant phenomena and categories. It has been established that, according to the German doctrine of fundamental human rights, human dignity must be protected in any way within any relationship. It was found that the German Nazis had a negative influence on the German doctrine of the human dignity. This is due to the fact that the protection of human dignity was not built around what was allowed to be done, but about what was forbidden under any circumstances. Keywords: human dignity, a fundamental human right, a human rights doctrine, a state, legislation.

THE RIGHT TO BE FORGOTTEN IN THE PRACTICE OF THE CONSTITUTIONAL JUSTICE BODIES OF THE RUSSIAN FEDERATION AND THE FEDERAL REPUBLIC OF GERMANY

2020 ◽  
Vol 6 (3) ◽  
pp. 170-187
Author(s):  
Evgeniya V. GERASIMOVA
Keyword(s):  
Legal Status ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Legal Method ◽  
Right To Be Forgotten ◽  
Federal Constitutional ◽  
Constitutional Justice ◽  
The Right

The development of digital technologies affects the legal status of an individual. The task of constitutional justice is the constitutional interpretation of new legal phenomena such as the right to be forgotten. This article aims to analyze the right to be forgotten in the decisions of the Russian Constitutional Court and German Constitutional Court in a comparative aspect. The research methodology is primarily a dialectical method. This method helps the author to identify the content of the right to be forgotten, as well as to determine its role in relation to other constitutionally significant values. The comparative legal method is of particular importance for achieving the objectives of the research and helps to highlight the general and specific in the approaches of the courts to the concept of this right. This approach distinguishes the novelty of this research in comparison with other papers. The use of the dialectical and comparative legal research methods allows drawing the following conclusions. The distinctive feature of the right to be forgotten is its dualistic nature. On the one hand, this is a civil right associated with the right to privacy; on the other, it acts as a way to protect other constitutional rights (for example, the dignity of the individual). This right is not absolute. Some information may be of public interest. To resolve the issue of the prevailing constitutionally significant value in a particular case, the Russian Constitutional Court suggests using the method of finding a balance. The Federal Constitutional Court of Germany emphasized that the right to free personal development and dignity sometimes prevails over freedom of information, especially considering the time factor in the case, as well as the degree of harm caused to a person by links to information posted on the Internet. The German Federal Constitutional Court, characterizing the legal relationship regarding the exercise of the right to be forgotten, highlights that this is a relationship between private subjects with fundamental rights, and refers to the concept of the horizontal effect of fundamental rights (“mittelbare Drittwirkung”) developed in German constitutional law. This article concludes that the decisions of the Russian Constitutional Court and the Federal Constitutional Court of Germany on the right to be forgotten are the guidelines for other courts, as well as the legislator for further improving legal regulation. Taking into account the development of information technologies, the author believes that the constitutional courts will more than once turn to the digital aspects of the legal status of an individual and, in particular, the concept of the right to be forgotten.

scholarly journals Prospects of decriminalization and legalization of euthanasia in Ukraine

2021 ◽  
pp. 55-60
Author(s):  
A.P Lutsenko ◽  
D.I. Khairullina
Keyword(s):  
Human Rights ◽  
Assisted Suicide ◽  
State Level ◽  
Legal Framework ◽  
Legal Regulation ◽  
The State ◽  
Constitutional Court ◽  
Right To Life ◽  
Human Right ◽  
The Right

This article is devoted to the study of the legal regulation of the institution of euthanasia in foreign practice and in Ukrainian law. We conducted a thorough analysis of the existing arguments for and against the legalization of the assisted suicide procedure, which have developed in scientific doctrine. Given the importance of the right to life in the fundamental human rights system, deprivation of any life is unacceptable, as it could set a precedent that would lead to the abuse of criminal intent by the possibility of masking premeditated murder with voluntary consent to accelerate biological death. That is why today in Ukraine deprivation of life at the request of a person is a crime, namely premeditated murder, and therefore euthanasia at the state level is now criminalized. However, after analyzing the views of scholars studying the dynamics of human rights, as well as paying attention to the practice of countries that have already legalized euthanasia at the state level, we concluded that assisted suicide today is a powerful mechanism that can guarantee the human right to a dignified existence at the end of her life. A number of foreign countries have shown by their example that the legalization of euthanasia is an important step towards building a more humane and humane society, where there is a place of mercy for terminally ill people who want to end their lives painlessly. The current position of the Constitutional Court of Ukraine on the interpretation of the right to life does not allow for its expanded understanding, and therefore there is a need to amend the Constitution (for example recognition of the right to die) or change the position of the Court. In order for the right to dispose of one's own life to be properly guaranteed in Ukraine as well, we have developed on the basis of our research and proposed an algorithm of actions that can be used in the implementation of the institute of assisted suicide in Ukraine. We emphasize the need to amend the Constitution of Ukraine or change the position of the Constitutional Court on the interpretation of the right to life and the development of an appropriate legal framework that should take into account the medical side of this issue.

scholarly journals WAIVER OF HUMAN RIGHTS: A RIGHT OR A CHALLENGE?

2020 ◽  
pp. 5-18
Author(s):  
Nelly Arakelyan
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Human Rights Law ◽  
European Court ◽  
The Republic ◽  
Definition Of ◽  
The Right ◽  
Classical Perception

The author discusses the new tendencies of waiving human rights. In the article they are qualified as a new emerging institute of Human Rights Law. The definition of human rights waiver is discussed, as well as the necessity to give a legal regulation to it. The author presents the existing definitions of human rights waiver, but does not share any of them, particularly most of them define human rights waiver as not utilization of human rights, but the author calls this definition as a passive application of human rights, whilst waiver of human rights has its own content which is discussed in the article in details. Human rights waiver is discussed in the light of the co-relation of the right to autonomy and the principle of paternalism. The author presents some case law on waiver of human rights, which is very rare. Specifically, the author presents the case law of the Constitutional Court of the Republic of Armenia and the case law of the European Court of Human Rights. The legal positions of the mentioned bodies can serve as good criteria in dealing with human rights waiver. Particularly, the Constitutional Court of the Republic of Armenia held a decision dedicated to this issue and qualified waiver of human rights as an exception from the classical perception of human rights ideology. The author agrees with idea reflected in decision of the Constitutional Court concerning the correlation of human rights waiver and right to autonomy, according to which right to autonomy cannot be absolute and that absolute waiver of human rights can, in its turn, violate the human rights. In this context the author highlights the necessity of defining the limits of human rights waiver offering two important directions for discussion of this question; the scope of the rights which can and cannot be waived, the framework and criteria of a waiver of human rights.

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