scholarly journals EXERCISE OF THE RIGHT TO A FAIR TRIAL IN CASES RELATED TO DOMESTIC VIOLENCE

2020 ◽  
pp. 44-54
Author(s):  
Liudmyla Golovko ◽  
◽  
Viktor Ladychenko ◽  
Olena Gulaс ◽  
◽  
...  
Keyword(s):  
Domestic Violence ◽  
Police Officers ◽  
Comparative Method ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Functional Method ◽  
Fair Trial ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
The Right

The purpose of the article is to investigate the effectiveness of Ukrainian legislation in the fieldof combating domestic violence, as well as the implementation of the right to a fair trial in casesinvolving domestic violence. The following methods were used in the study: analysis and synthesis,system-functional method, comparative method. Results. The article analyzes the legislation ofUkraine in the field of prevention and counteraction to domestic violence, lists both its advantagesand disadvantages, reveals measures in the field of prevention and counteraction to domesticviolence, responsibility for domestic violence, the main directions of state policy in the field ofprevention and counteraction to domestic violence, types of domestic violence. Legal regulation of judicial protection for victims of domestic violence has been studied. Judicial practice in casesrelated to domestic violence was considered. Problems of exercising the right to a fair trial inUkraine in cases related to domestic violence were revealed. Conclusions. Undoubtedly, theadoption of the Law of Ukraine “On Prevention and Counteraction to Domestic Violence”, theintroduction of criminal liability for domestic violence and amendments to a number of regulationsto address domestic violence is a positive step in combating such a negative phenomenon asdomestic violence. At the same time, a significant number of issues remain unresolved. This isespecially true for the resolution of cases of domestic violence and the exercise of the right to afair trial in cases of domestic violence, as well as for the enforcement of court decisions on theissuance of restrictive orders. The need to develop a form for assessing the risks of recurrenceof domestic violence has been demonstrated, as has been done for police officers during theessessment of the need to issue an emergency injunction. The need to enshrine at the legislativelevel what is the preventive work of police officers with the offender and how it is carried outwas proved, because without proper regulation of this issue, this type of special measure tocombat domestic violence is declarative and not applied in practice. In addition, the problem ofrefusal of public and private executive services to enforce court decisions on the establishmentof restrictive measures is pointed out, which also requires legislative regulation. The need tostrengthen the position of the victim of domestic violence by giving her/him the opportunity toclaim compensation for non-pecuniary damage in criminal proceedings was noted.

scholarly journals Interim measures in the system of guaranteeing the right to a fair trial

2021 ◽  
Vol 66 ◽  
pp. 251-256
Author(s):  
V.V. Zaborovsky ◽  
V.V. Manzyuk ◽  
A.V. Stoika
Keyword(s):  
Legal Regulation ◽  
Fair Trial ◽  
Access To Justice ◽  
Court Decisions ◽  
Security Measures ◽  
Legal Method ◽  
Analysis And Synthesis ◽  
Logical Method ◽  
Precautionary Measures ◽  
The Right

This research is devoted to the disclosure of the institution of precautionary measures, namely - securing the claim, which is one of the procedural mechanisms for ensuring access to justice. Because it is the possibility of execution of the final court decision that will ensure a fair trial for each participant in the process. To ensure the reliability and completeness of the results obtained by the authors in this study used a set of general and special methods that are characteristic primarily of legal science. The integrated use of such methods ensured the achievement of the purpose and objectives of the study, as well as the persuasiveness of the conclusions. In particular, the dialectical method was used to study the legal nature and significance of the institution of precautionary measures in civil and commercial proceedings. Methods of analysis and synthesis were used in the formulation of basic concepts, such as «precautionary measures», «securing the claim» and so on. The historical and legal method allowed us to focus on the process of legal regulation and legislative consolidation of the institution of security measures. The formal-logical method was used in the analysis of the norms of the current legislation and theoretical developments concerning, in particular, the essence of procedural tools of accessibility or restriction of access to justice. The empirical basis of the study was the materials of domestic judicial practice. Based on the study, the authors conclude that securing the claim as a procedural phenomenon cannot remain unchanged, it acquires new features over time, loses archaic elements, but still does not lose, but rather, on the contrary, increases its importance in modern civil process. Now securing the claim is an integral part of the institution of security measures (along with the provision of evidence), which corresponds to the protected function. Thus, the actual enforcement of court decisions is largely intended to guarantee the institution of securing the claim as one of the types of precautionary measures. Participants in civil proceedings apply to this institution in order to guarantee the execution of future court decisions and prevent them from causing significant harm.

scholarly journals Some gaps in criminal procedural legislation at the time of court decisions appeal

2021 ◽  
pp. 155-164
Author(s):  
V. I. Maryniv ◽  
O. Leiba
Keyword(s):  
Legal Regulation ◽  
Practical Implementation ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Research Attention ◽  
Judicial Proceedings ◽  
The Subject ◽  
The Right ◽  
The Given ◽  
Appeal Procedure

The article is dedicated to the explanation of such legislative defects as gaps in the criminal procedural legislation during court decisions appeal. Within the framework of the study the attention focuses on the fact that regulatory rulemaking of the court decisions appeal in criminal proceeding contains multiple gaps that affect negatively at its practical implementation. Detailed analysis of the gaps in the criminal procedure legislation has been carried out. By reference to specific aspects of the judicial review implementation, the gaps classification according to their subject is proposed.  More specifically the following gaps in the rulemaking of the court decisions appeal in criminal proceedings are identified: 1) concerning the object of appeal; 2) concerning the appealer; 3) concerning the subject of appeal; 4) concerning the appeal procedure, etc. It is pointed out that number of legal regulation gaps regarding the identification of the object of appeal is quite significant. Such gaps arise in response to the determining a list of court decisions by the legislator that are subject to appeal consequently making impossible reviewing those court decisions that are not directly enlisted. Such matter is illustrated by the example of the establishment of restrictions on the ability to appeal the investigating magistrate decisions. Considering the gaps concerning the appealer it is pointed out that in some cases the legislation does not provide the right of relevant parties for court decisions appeal or does not provide them with sufficient legal opportunities which limits a person’s constitutional privilege for court decision appeal review and his/her access to judicial proceedings. The analysis of gaps concerning the subject of appeal was also carried out. It is concluded with reason that such gaps arise due to the disadvantageous legislative determining of the issues which are allowed to appeal procedure. In the course of the research attention is drawn to the fact that the criminal procedural legislature furthermore contains other gaps in the rulemaking of court decisions appeal. In particular they concern the appeal procedure itself, implementation of the rights of its participants and some other issues. By way of illustration of the given type of gap it is indicated that the opportunity of implementation of the right to appeal for those persons who are directly granted with it by the law may be complicated due to the shortage of the actual opportunity to appeal against the judgment, in light of the high requirements for its content and format, advanced by the domestic lawmaking body. In the article motions considering eliminating and overcoming the enlisted legislative defects are formulated.

scholarly journals Principle of the Rule of Law in the Case-law of the European Court of Human Rights

1970 ◽  
pp. 373-379
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Fair Trial ◽  
Court Decisions ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
European Court ◽  
The Law ◽  
The Right

The article is devoted to the interpretation of the principle of rule of law in the practice of the European Court of Human Rights. The concept of the rule of law, along with democracy and human rights makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the ECHR. The Preamble to the ECHR states that the governments of European countries are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. The rights most obviously connected to the rule of law include: the right of access to justice, the right to a fair trial, the legal principle that measures which impose a burden should not have retroactive effects the right to an effective remedy, anyone accused of a crime is presumed innocent until proved guilty etc. The author concludes that there is an expediency of grouping separate requirements of the rule of law in the practice of the ECtHR around concepts, which are concluded to be elements of the rule of law in a democratic society. Such elements of the rule of law in the practice of the ECHR are recognized as legality, legal certainty, fairness of a trial and the priority of human rights. Legality supposes that authorities need a legal basis for measures which interfere with a right of an individual, as well as quality requirement for the law such as accessibility, foreseeability and no arbitrariness. Legal certainty encompasses foreseeability in application of the law; non-retroactivity of legislation; the principle of res judicata; mandatory execution of court decisions and consistency of judicial practice. Fair trial requirements devoted into two groups: general requirements (access to court, independent and impartial tribunal, execution of court decisions etc.) and requirements for criminal proceedings (presumption of innocence, principle nullum crimen sine lege etc.) It is noted that the legality, legal certainty, fairness of a trial are formal requirements of the rule of law, thus the priority of human rights is a substantive (material) requirement of the rule of law. The aforementioned testifies to the natural-legal approach that the ECHR is guided by in interpreting the rule of law in its practice, understanding it primarily as the rule of human rights.

scholarly journals THE RIGHT TO A FAIR TRIAL IN PROCEEDINGS CHALLENGING THE MINUTES OF DISPUTING CONTRAVENTIONS

2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Adriana-Florina Bălăşoiu
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
The Right

The offenses field is assimilated to the criminal one from the perspective of theEuropean Court of Human Rights, in the sense of article 6 of the Convention, the personaccused of committing an act regarded in national law as an offense must benefit from theguarantees specific to criminal proceedings.

scholarly journals The right to appeal on criminal procedure under international acts and jurisprudence

2017 ◽  
Vol 6 (2) ◽  
Author(s):  
MSc. Vilard Bytyqi
Keyword(s):  
Best Practice ◽  
Second Phase ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Advanced Level ◽  
The World ◽  
The Right ◽  
Court Of First Instance ◽  
Comparative Description ◽  
Procedural Aspect

The right to appeal, respectively the right on complaint as per our legal vocabulary, constitutes the basic trunk of the second phase of court decisions in a certain procedure, in particular the criminal proceedings.The aim of this paper is to emphasize the main notions of appeal, but also in other aspects through the comparative description it aims to bring more clarity in differences and similarities that exist in between the appeal which is used in our criminal proceedings and the appeal which is used in the criminal proceedings that take place in the supranational courts. It is known that in courts which consist of international elements, the appeal is positioned in a more advanced level, due to the fact that there are grounds of suspicion used over every element that could be used in any national criminal proceedings.Overall, in any place of the world, the appeal has the goal to remedy court decisions brought by the court of first instance, while, in the procedural aspect it has more or less differences depending on the regulations of criminal procedures of that state. Such difference due to the diversity of the legal systems today are also accepted as the universal legal value, since establishment of international tribunals provides the best practice in this field. 

scholarly journals Criminal Liability of Medical Profecionals Negligience: Comparative Analysis

2020 ◽  
Vol 38 (Especial II) ◽  
pp. 251-263
Author(s):  
Kateryna Danchenko ◽  
Olga Taran
Keyword(s):  
Comparative Method ◽  
Criminal Liability ◽  
The United States ◽  
Medical Professionals ◽  
The European Union ◽  
Judicial Decision ◽  
Criminal Proceedings ◽  
Medical Office ◽  
The Us ◽  
The Impact

The purpose of this article is to study the criminal liability of medical professionals in cases of suspension, in accordance with jurisprudence in Ukraine, the European Union and the United States of America (USA). He made the comparative method. According to the investigation, the number of criminal proceedings in Ukraine by the authority and misconduct of medical doctors is about 2% per population, my figure that rises to 30% in Europe and is the stable yes in the US and is 28%. 32%. The main objective of the article is often area identify specializations in the medical office occurs with the mayor based on Ukrainian jurisprudence (data from Ukraine’s only state judicial decision register from 2016 to 2019). In addition, the study analyses the impact of the main influences on the ability of medical professionals for their professional functions. From counting the results show that surgeons, gynecologists, paramedics, and anesthesiologists are the most prone to deviation and medical error. Key proposed criteria have been proposed as medical errors differ from medical writing.

scholarly journals Legal nature of the requirements of the banking legislation of Ukraine to ensure credit operations of banks

2021 ◽  
pp. 297-305
Author(s):  
Anatoliy Babaskin
Keyword(s):  
Credit Card ◽  
Civil Law ◽  
Legal Regulation ◽  
Functional Method ◽  
Point Of View ◽  
The European Union ◽  
Scientific Publications ◽  
Economic Point ◽  
Legal Nature ◽  
The Right

Іintroduction. Despite the fact that a significant number of scientific publications by well-known Ukrainian authors are devoted to the issues of legal regulation of credit obligations, at the same time separate studies of banking legislation requirements on "acceptability of collateral" have not been conducted in Ukrainian civil science in recent years. This, taking into account the gradual alignment of banking legislation of Ukraine with the standards of Basel III, and Directive 2002/47 / EC of the European Parliament and of the Council of 6 June 2002 on financial collateral mechanisms, necessitates such scientific research. The aim of the article. On the basis of the analysis of the legislation of Ukraine, the legislation of the European Union, scientific advances in the sphere of civil law and banking legislation, in the context of the analysis of the banking legislation of Ukraine, it is safe for creditors. In order to achieve this goal: 1. Conduct an analysis of civil and legal species for the protection of crops for the subject of іх possible delivery to “acceptable safety” and vrahuvannya banks when opening a credit card. 2. Significantly "quasi-security", as viewed by the banking legislation in the form of "acceptable security" for credit cards. 3. Zdіysniti analysis of the approaches to the legislation of the EU in the field of protection from credit denominations. Results. The methodological basis of the study is general scientific and special legal methods of scientific knowledge. In particular, the dialectical method, the method of analysis and synthesis, the comparative law method, the functional method, the modeling method, etc. Conclusions. First, the banking legislation does not consider as "acceptable collateral" such types of collateral as penalty, surety, deposit, retention. Secondly, the banking legislation considers as "acceptable collateral" not only those specified in Part 1 of Art. 546 of the Civil Code of Ukraine types of security for performance of obligations (pledge, right of trust ownership, guarantee), and other types of security for performance of obligations provided by law or contract (reserve letter of credit, performing the function of financial guarantee, guarantees of public entities, guarantee payment), but also contractual constructions which do not concern types of maintenance of performance of obligations (repo agreements). Thus, the banking legislation considers collateral in credit operations from the economic point of view, according to which "acceptable collateral" is only such liquid collateral that guarantees the rapid recovery of the property of the creditor bank, which suffered damage due to default or improper performance of the counterparty loan obligation, as well as "quasi-collateral", if such is referred by banking legislation to "acceptable collateral". Third, the existence of rules in the banking legislation on the acceptability of collateral in no way affects the right of banks to use any type of collateral provided by law or contract, if the application of such is possible in credit relations, taking into account the legal nature of the relevant types. software. Fourth, the set of regulations of the National Bank of Ukraine on the acceptability of collateral can be considered as an institution of banking law, which includes as rules of civil law governing the types of collateral, other rules of contract law governing other "quasi-collateral" contractual constructions, as well as public-law special norms of banking legislation, which establish additional regulatory requirements for banks to ensure credit operations and calculate credit risk.

Citizenship V. Territory: Explaining the Scope of the Criminal Law

2010 ◽  
Vol 13 (2) ◽  
pp. 427-448
Author(s):  
Alejandro Chehtman
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Fair Trial ◽  
The State ◽  
Universal Jurisdiction ◽  
Collective Interest ◽  
International Crimes ◽  
The Right ◽  
Meaningful Role ◽  
Antony Duff

Antony Duff and his coauthors have influentially argued that citizenship plays a central role in accounting both for the way in which the state makes individuals criminally responsible for certain wrongs and for calling them to answer for their wrongs. This paper takes issue with this citizenship-based understanding of the scope of the criminal law. It argues that Duff's model of civic criminal liability faces difficulties in explaining states' right to punish foreigners for crimes committed on their territory, and sits very uncomfortably with states claiming universal jurisdiction over international crimes. In contrast, it advocates a territorial conception of the criminal law. It suggests that to account for the allocation and scope of the right to punish, we need to look at the (collective) interest of those individuals who actually are in the territory of a particular state, not merely its citizens. Finally, it examines whether the notion of citizenship plays any meaningful role in a convincing account of the authority of the state to try an offender. Contra Duff and others, it argues that this authority rests exclusively on defendants receiving a fair trial and a verdict based on reliable evidence.

scholarly journals INTRODUCTION OF THE INSTITUTION OF PREVIOUSLY EXPRESSED WISHES REGARDING MEDICAL INTERVENTIONS IN MEDICAL LAW OF UKRAINE: STATE AND PROSPECTS

2021 ◽  
Vol 1 (15) ◽  
pp. 58-65
Author(s):  
G.V. Puchkova ◽  
L.P. Bohutska
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Medical Care ◽  
Comparative Method ◽  
Legal Regulation ◽  
Medical Intervention ◽  
Decision Making Process ◽  
Medical Law ◽  
Human Right ◽  
The Right

The aim. The aim of the article is to study the implementation of the principle of autonomy in the medical law of Ukraine, to determine the compliance of the medical legislation of Ukraine with the specified principle in terms of the exercising of the human right to express wishes for the provision of medical care in the future in case if a patient cannot personally express such wishes. Materials and methods. The authors have studied the European standards and practice of the European Court of Human Rights regarding the right of a person to participate in the decision-making process on the provision of medical care, scientific works of specialists in the field of medical law, dedicated to the patient's right to informed consent to medical intervention, the right to refuse treatment and ethical standards of legal regulation of relations with the participation of patients using the formal-logical method, the method of structural analysis, comparative method and legal modeling. Results. The study has found that there are gaps in the normative regulation of the patient's right to participate in the decision-making process in the provision of medical care, which carries a potential danger of violating the right to respect for private and family life, guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. Conclusions. It is proposed to eliminate these gaps by ratifying the Oviedo Convention by Ukraine, implementation of the institution of previously expressed wishes in the national legislation, determining the mechanism for drawing up, changing and revoking previously expressed medical directives, the designation an authorized person in case a patient is unable to independently express his or her own wishes for the provision of medical care taking into account the European experience, cultural characteristics of Ukrainian society, the state of functioning of the institutional and legal systems and the level of development of biology and medicine.

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