scholarly journals Substantial Violation of Human Rights and Freedoms as a Prerequisite for Inadmissibility of Evidence

Justicia ◽  
2021 ◽  
Vol 26 (39) ◽  
pp. 47-56
Author(s):  
Serhii Yevhenovych Ablamskyi ◽  
Liudmyla Volodymyrivna Havryliuk ◽  
Valentyna Georgievna Drozd ◽  
Olena Volodymyrivna Nenia

Objective: The aim of the article is to analyze the various legal and theoretical provisions related to the determination of legal content of the concept of finding evidence inadmissible due to substantial violation of human rights and freedoms. Method: The authors use general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, generalization and logical, are applied. Results: The problematic issues of the procedure for finding evidence inadmissible due to substantial violation of human rights and freedoms in the criminal proceedings of Ukraine are studied. Some essential violations in collecting evidence by the prosecution are under focus. The ECHR’s case-law with regard to procedure for finding evidence inadmissible is analyzed. The implementation of the doctrine of "fruit of the poisonous tree" and specificity of its application to direct and derivative evidence by domestic courts and the case law of the ECHR is considered. Conclusions: The authors argue that the investigator is required to comply with the procedure for investigative actions prescribed by the provisions of the CPC of Ukraine in order to ensure human rights and freedoms. The analysis of the application of provisions of the CPC of Ukraine and the ECHR’s case law regarding the issue raised enables to formulate sound conclusions.

Author(s):  
Irīna Poļevaja

A defence attorney is a significant and notable figure in criminal proceedings who for the whole procedural activity in a criminal case, in theory, should facilitate detecting and correcting possible judicial mistakes. In this respect, it is vital to conduct a series of research in order to highlight prevalent problems and issues of a defence attorney’s participation in criminal trials and to work out relevant recommendations for trial attorneys that would help to forestall, detect and prevent judicial mistakes. A specific condition of a defence attorney’s activity in the process of evidencing at a judicial examination is his awareness of the entire system of evidences presented by the prosecution and accusation conclusions in disputable classification situations. They should rely upon the fact that a judicial examination is performed under circumstances of direct examination of evidence, oral proceedings, publicity, invariability of the body of the court, as well as the fact that both the court and the representatives of the parties take part at the examination. Rather short deadlines of a judicial examination entails working under circumstances when decisions must be taken under extreme conditions, by applying tricks and methods that would allow examining all evidence in the most productive way. It makes sense for a defence attorney to state his activity position and determination of taking an active part in evidencing already at the beginning of court hearings, by filing a motion to summoning new witnesses, experts and specialists, disclosure of material evidence and documents or exclusion of evidence obtained in the way of violating the law. 
The author of the study applied general scientific methods of studying objective reality, peculiar to legal sciences: systematic document analysis, structural-functional analysis, critical approach, generalisation and prediction. As a result, the author provides numerous recommendations and rules for successful and immaculate defence in criminal trials. Aizstāvis ir nozīmīga, ievērojama figūra kriminālprocesā, jo aizstāvja procesuālajai darbībai krimināllietā teorētiski būtu jāatvieglo iespējamo tiesas kļūdu konstatēšana un labošana. Un šajā sakarā ir vitāli svarīgi veikt virkni pētījumu, lai izceltu problēmjautājumus, kas saistīti ar aizstāvja piedalīšanos krimināllietās, un izstrādātu tādas rekomendācijas aizstāvjiem, kas praktiskajā darbībā sekmētu tiesas kļūdu paredzēšanu, konstatēšanu un novēršanu. 
Par specifisku priekšnoteikumu aizstāvja darbībai pierādīšanas procesā tiesas izmeklēšanā ir uzskatāma viņa pilnā informētība par visu pierādījumu sistēmu lietā, kuru piedāvā valsts apsūdzība, un par valsts apsūdzības apsvērumiem strīdus krimināltiesiskās kvalifikācijas gadījumos. Aizstāvim jāņem vērā, ka tiesas izmeklēšana norit pierādījumu tiešas un nepastarpinātas pārbaudes apstākļos, ievērojot mutiskuma, publicitātes un tiesas sastāva nemainīguma principus. Pierādījumu pārbaudē piedalās gan tiesa, gan visi pārējie procesa dalībnieki, kas nav aizstāvības pusē. Likuma prasība ievērot saprātīgus lietas iztiesāšanas termiņus paredz saspringtu darbu, svarīgus lēmumus pieņemot ekstremālos procesuālos apstākļos, izmantojot tādus paņēmienus un metodes, kas veicinātu efektīvu pierādījumu kopuma pārbaudi un novērtēšanu. Aizstāvim būtu ieteicams deklarēt savu aktīvu procesuālo pozīciju un paust gatavību aktīvi piedalīties pierādīšanā jau tiesas izmeklēšanas sākumā, piesakot lūgumus par jauno liecinieku, ekspertu un/vai speciālistu aicināšanu uz tiesas sēdi, kā arī piesakot lūgumus par lietisko pierādījumu un/vai dokumentu pieprasīšanu un par pierādījumu, kas iegūti, pārkāpjot likumu, izslēgšanu no pierādījumu kopuma. 
Šajā pētījumā ir izmantotas vispārīgās zinātniskās metodes, kas sekmē objektīvās realitātes izzināšanu un ir raksturīgas tiesību zinātnei, proti: sistēmiskā dokumentu analīze, strukturāli funkcionālā analīze, kritiskā pieeja, vispārināšana un prognozēšana. Secinājumos tiek piedāvātas vairākas rekomendācijas veiksmīgai, efektīvai un nevainojamai aizstāvībai pirmās instances tiesā.


2020 ◽  
Vol 9 (29) ◽  
pp. 147-155
Author(s):  
Alla Vasylivna Ponomarenko ◽  
Liudmyla Volodymyrivna Havryliuk ◽  
Anna-Mariia Yuriivna Anheleniuk ◽  
Valentyna Georgievna Drozd

The aim of the article is to analyze the problematic aspects of finding evidence inadmissible in criminal proceedings, as well as to formulate, according to the Criminal Procedure Code of Ukraine (CCP of Ukraine) and the case law of the European Court of Human Rights (ECHR), proposals for elimination of existing shortcomings on the issue raised. In the article used general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, modelling, abstraction, generalization and logical, are applied. The problematic issues of the procedure for finding evidence inadmissible in the criminal proceedings of Ukraine are studied. The significant violations and shortcomings in collecting evidence by the pre-trial investigation bodies are under focus. The authors clarify grounds for the inadmissibility of evidence and the types of inadmissible evidence. The analysis of investigative practice and case-law enables to conclude that a violation in taking one piece of evidence in criminal proceedings may lead to finding a number of other pieces of evidence inadmissible (the doctrine of the fruit of the poisonous tree). The authors argue that the court should be proactive in resolving the issue of inadmissibility of evidence either on its own motion or on the motion by parties to criminal proceedings. The utilization of the case law of the ECHR in national law application activities are analyzed from legal perspective. The study establishes that ratio decidendi of the ECHR with regard to finding evidence inadmissible is that the issue of its inadmissibility is subject to regulation at the level of national law. The assessment of inadmissibility of evidence is the responsibility of national courts, and the ECHR is obliged to ensure that the means of taking evidence are fair.


2019 ◽  
Vol 7 (3) ◽  
pp. 511-515
Author(s):  
Elena A. Kupryashina ◽  
Anzhelika I. Lyahkova ◽  
Elena F. Lukyanchikova ◽  
Sergey F. Shumilin ◽  
Ekaterina A. Novikova

Purpose of Study: In this paper, institutions of agreements (mediation) in criminal proceedings in various states were investigated regarding the history of their occurrence and development. The aspects under the study included features related to the use of institutions of agreement in individual countries (USA, Canada, Germany, Russia, Moldova, etc.); the regulatory framework of these countries, statistics on the use of institutions of agreements (mediation), as well as programs used as mediation. Methodology: In the present study, general scientific, as well as special methods and provisions of dialectics were used. In the course of the study, private scientific methods were also used including historical-legal, formal-legal, formal-logical, systemic, and comparative. Results: Currently, the new legal institution of agreement (mediation) is actively developing in the global legal system, contributing to resolving the conflict without holding a trial and just by holding peace negotiations and concluding an agreement with the accused. This institution was initially established in countries with the Anglo-Saxon legal system (USA, UK), and then was developed in countries with a continental legal system (RF, Moldavia, Kazakhstan). Implications/Applications: The mediation is considered to be a convenient approach for resolving conflicts, since it is built on the mutual agreement of two confrontational parties, and it will continue to further develop worldwide and will be included in the legislation of those countries where it has not been fixed yet.


2021 ◽  
Vol 3 ◽  
pp. 92-98
Author(s):  
O. А. Zaytsev ◽  

The article examines the problematic issues of applying measures to protect the rights and legitimate interests of entrepreneurs in cases of crimes in the field of economic activity. The material-legal and criminal-procedural mechanisms used in the course of proceedings in this category of cases are examined. Special attention is paid to the analysis of the legal positions of the Supreme Court of the Russian Federation, reflected in the decisions of the Plenum of November 15, 2016 № 48 and October 3, 2017 № 33. The purpose of this study is to identify the most acceptable areas of activity of judicial and law enforcement agencies to protect the rights and legitimate interests of entrepreneurs involved in criminal proceedings. The objectives of the study are: a) to determine the specifics of criminal and criminal procedure legislation containing humane mechanisms for the category of cases under consideration; b) to highlight the positions of scientists who conduct research in this field of activity; с) substantiation of recommendations for the further development of criminal policy in the direction of liberalizing the current structure of crimes in conjunction with the improvement of criminal procedural forms of criminal proceedings. The methodological basis of the research was the dialectical method of cognition, General scientific methods of abstraction, analysis and synthesis, as well as special legal methods. Promising ways of development of criminal policy in the field of formation of legislation that allows the most effective protection of the rights and legitimate interests of entrepreneurs are proposed. The conclusion is made about the need for further scientific study of the system of material-legal and criminal-procedural mechanisms used in the proceedings on crimes committed in the sphere of business and other economic activities.


Author(s):  
Anatoliy M. Kolodiy ◽  
Olexiy A. Kolodiy

The relevance of this problem is considered in the fact that in modern conditions of the state's process of developing a sovereign and independent, democratic, social, and legal state, the people's awareness of its place and role is one of vital aspects. The Ukrainian people's awareness of their rights and obligations, in this case law-making ones, will contribute to a real opportunity for the people to take part in the management of state affairs. Despite the fact that the problem of the powers of the Ukrainian people is extremely relevant at this stage of the Ukrainian history, it is understudied by Ukrainian researchers. Therefore, considering the above, this study is investigates such types of law-making powers of the Ukrainian people as the rights to: people's initiative, and within its framework – people's legislative initiative and people's referendum initiative; people's veto; people's survey, including regarding regulations; people's examination of regulations and draft regulations. The purpose of the present study is to consider theoretical material concerning the state of possibility of using the above-mentioned types of law-making powers of the Ukrainian people, as well as foreign practices in their implementation. The methodological framework of this study included an integrated approach, which involves a combination of numerous philosophical, general scientific, and special scientific methods. Based on the obtained conclusions and generalisations, the study aims to develop original proposals and recommendations for improving national legislation on this matter


Author(s):  
Alexander Fedyunin

The subject of this research is the issues emerging in consideration of jurisdiction of the material on extradition of a foreign citizen by the Russian Federation. The article touches upon the peculiarities of national and territorial aspect of jurisdiction, and its specific regulation in the criminal procedure law. The article employs the general scientific and private scientific methods, such as scientific analysis, generalization, comparative-legal, formal-logical, which allowed to most fully reflect the essence and problematic aspects of the selected topic. The question at hand is of major importance for the theory of criminal procedure and law enforcement practice, as the mistakes in determination of jurisdiction of the material are a severe violation of the rights, including the convict, and entail the unconditional annulment of court decision. The analysis of the most common mistakes occurred in application of the norms regulating the jurisdiction of extradition of a foreign citizen convicted by the court of the Russian Federation, as well as theoretical issues associated with determination of the court that deals with the particular issue allows outlining the vector and finding solution to the indicated problems.


Author(s):  
Oleg Aleksandrovich Kravchenko ◽  
Roman Valer'evich Fedorov

Accurate determination of the place of preliminary investigation indicates adherence to the principle of legality in criminal proceedings and the achievement of goals on the protection of rights and lawful interests of the affected parties, as well as on protection of individual from wrongful and unfounded accusations and restrictions of their rights and freedoms. Science addresses the general questions pertaining to determination of the place of preliminary investigation, but does not give due attention to realization of discretionary powers of the higher investigating authority to determination of the place of preliminary investigation. The article reveals the essential conditions for application of such power by the investigating authority, and analyzes case law for compliance with these conditions. The conclusion is made that legislation does not contain clear and specific rules for determination of the place of preliminary investigation, including the territorial jurisdiction of advocating for the election or extension of pre-trial detention. The author describes the flaws in legal regulation associated with the possibility of determination of jurisdiction of a case in administrative proceedings, by means of law enforcement decision prior to the emergence of legal situation (for example, before  submission of a request for the election or extension of pre-trial detention) by lowering the rank of investigating authority, for example to district level. From the practical perspective, elimination of such flaws should facilitate the proper application of the corresponding legal norm, as well as accurate determination of the place of preliminary investigation.


Author(s):  
Elina Sergeevna Sarygina

The research subject is the scientific, organizational and methodical regularities of judicial and examination activities during the research of finance-credit relations. Special attention is given to the key provisions of finance-credit examinations and the peculiarities of their commissioning. The author uses the categories and laws of dialectical and formal logic along with general scientific methods of scientific cognition (observation, description, comparison, systematization, formalization, etc.), and specific methods (comparative-analytical and system-structural). The author also uses the techniques of the interdisciplinary approach since the research requires knowledge in the field of procedural and substantive law, theory of court examination, economics and banking law, which determines the comprehensive nature of the research. From the viewpoint of modern scientific knowledge, the author attempts to analyze court examination as an independent class of judicial economic examinations which includes objects, subclasses, typical tasks and scientific and methodical recommendations for law enforcement officers about commissioning such examinations. The research addresses the main provisions of the subtheory of a judicial finance-credit examination which either haven’t been described sufficiently enough in the scientific works, or haven’t been systematised. The author’s recommendations are aimed at unification of the judicial practice of commissioning and assessment of the results of a judicial finance-credit examination. The formation of a comprehensive idea about this examination and its modern state is necessary for the implementation of its possibilities by an investigator, a court or an inquiry officer within criminal proceedings. The result of the research is the development of recommendations for law enforcement officers about the peculiarities of commissioning of a court tax analysis in governmental and nongovernmental criminal expertise institutions connected with the peculiarities of preparation of research objects and the specificity of issues subject to the consideration of a court expert; the author formulates the list of questions to an expert.


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