scholarly journals Concept and content of access to justice in criminal proceedings of Ukraine

2019 ◽  
pp. 20-30
Author(s):  
O. Kuchynska ◽  
O. Shchyhol
Keyword(s):  
Social Relations ◽  
Fundamental Principle ◽  
International Standards ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Legal Literature ◽  
Domestic Legislation ◽  
Administrative Proceedings ◽  
High Level

Access to justice is a fundamental principle of criminal proceedings and one of the most important guarantees of criminal proceedings participants’ rights. Nevertheless, nowadays there is no single approach to concept and content of this legal category. The reason is a large number of related and similar terms which apply to domestic legislation of Ukraine and international legal acts, as well as lack of established scientific grounds regarding legal nature of access to justice, its purpose and essence. Thus, the purpose of the article is: 1) to analyze current legislation, international standards and scientific background in the domain of access to justice; 2) to define concept and content of access to justice in criminal proceedings of Ukraine. It needs to be mentioned that in comparison with civil, commercial and administrative proceedings, criminal procedural law regulates social relations which involve the most substantial interference with human rights. The high level of interference and limitations surely generates requirements for establishing in criminal proceedings certain guarantees (including access to justice), which have to be effective and efficient. However, this cannot be achieved without thorough and solid legal terminology which should exclude ambiguous interpretation of any legal categories and provide a basis for their proper understanding. Therefore, criminal proceedings require additional attention even to small details: subtleties of juridical technique, language constructs and so forth. In this regard, as it has already been mentioned, concept and content of access to justice in criminal proceedings of Ukraine remains problematic. It is concluded that the concept of access to justice (in criminal proceedings and in general) is insufficiently explored and current legislation contains a number of similar definitions with uncertain difference remaining between them. The same applies to the content of access to justice which has ambiguous interpretations in legal literature. It is suggested to streamline legal terminology in regard to access to justice.

Concept of Single Civil Procedure Code: Suggestions of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

2015 ◽  
Vol 3 (5) ◽  
pp. 0-0
Author(s):  
Екатерина Ганичева ◽  
Ekaterina Ganicheva ◽  
Андрей Габов ◽  
Andrey Gabov ◽  
Мария Глазкова ◽  
...  
Keyword(s):  
Russian Federation ◽  
Comparative Law ◽  
Civil Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Legislative Activity ◽  
The Government

This publication is the result of collective discussion at the Institute of Legislation and Comparative Law under the Government of the Russian Federation of the Concept of a common code of civil procedure adopted in 2014. The article deals with the problem of harmonization of legislation governing the consideration of the various categories of cases within the jurisdiction of the courts of general jurisdiction and arbitration courts. Particular attention is paid to the problems of access to justice, coordination of legislative activity, taking into account the future prospects of unification of the rules and institutions governing the procedural arrangements of civil, administrative and criminal proceedings. The article describes the objective relationship between the development of an of procedural law and the law on the judicial system, which must be taken into account when solving problems to ensure the effective operation of the courts at all stages of trial and in all judicial instances. Certain problems that arose after the unification of the higher judiciary authorities are reviewed, recommendations aimed at improving the structure and organizational forms of the Supreme Court of the Russian Federation are given.

REVIEW OF CASES ON NEWLY OPENED AND NEW CIRCUMSTANCES: UNFA-VOURABLE DISTINCTIONS OF THE CRIMINAL PROCEEDINGS

2021 ◽  
pp. 105-114
Author(s):  
Alia R. Sharipova ◽  
Keyword(s):  
Judicial Review ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Court Decisions ◽  
Court Cases ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Procedure Law ◽  
Administrative Proceedings

The article deals with the comparative analysis of the procedure and grounds for reviewing court cases under new and newly discovered circumstances in criminal and arbitration, civil and administrative proceedings. The author proceeds from the idea of common fundamental beginnings of justice in general, and therefore, all types of judicial activities - including an extraordinary review of judicial decisions, which have entered into legal force. The branch specifics of specific procedural institutions should have a special explanation based on the specifics of the branch itself. The author thinks that there is no key basis for reviewing the case on the newly discovered circumstances in the criminal trial and attempts to replace it with one of the new circumstances. In this part, the current criminal procedure law differs unfavourably from the Soviet Criminal Procedure Code (CPC) of the RSFSR of 1960 - among the newly discovered circumstances, there are no those that could indicate a miscarriage of justice made out of direct connection with someone's criminal actions. In the current CPC of the Russian Federation, the list of newly discovered circumstances is closed, and the list of new circumstances that entail the review of the court decisions is, on the contrary, open. Examples of academic papers and administrative enactments justifying such a replacement are given. The author gives his arguments against it and proposes to change the list of grounds for revision, referring to the regulation in other procedural branches, historical and foreign experience. A significant procedural difference of the considered type of extraordinary review of cases in criminal proceedings from other types of proceedings is found. It is the need for applicants to request a review from the prosecutor, not from the court. The greatest objection is the non-alternative procedure: the prosecutor is a participant in the criminal proceedings on the part of the prosecution, he is responsible for the undoubted proof of the charge, which is the basis of the sentence, the abolition of which is requested by another interested person. The negative impact of the prosecutor's mediation between the complainant and the court on access to justice and its quality is argued. It is pointed out that there is no need for prosecutorial checks to resolve the issue of judicial review of the case. The analysis of judicial statistics in different branches of justice shows that criminal proceedings differ sharply by the negligible number of judicial review cases due to newly discovered and new circumstances. The article calls into question the ability to explain this fact by a higher quality of sentences in criminal cases in comparison with other court decisions in other court cases.

CIVIL ACTION IN CRIMINAL PROCEEDINGS AS A UNIVERSAL MEANS OF REDRESS FOR PECUNIARY AND NON-PECUNIARY DAMAGE CAUSED BY CRIME

2021 ◽  
pp. 64-79
Author(s):  
Sergey V. Potapenko ◽  
◽  
Vladimir A. Sementsov ◽  
Keyword(s):  
Civil Rights ◽  
Point Of View ◽  
Moral Injury ◽  
International Standards ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Judicial Practice ◽  
The Individual

The article notes that sufficient reimbursement for injury to victims of crime is an urgent and global issue, for which solution international legal standards, which are regarded as general-ly recognized principles and regulations of international law and international treaties, as well as enactments containing their official interpretation, are significant. The article critically evaluates the point of view of some individual scientists who deny the need to stipulate the civil claim concept the in the Code of criminal procedure of the Russian Federation as it exists in modern Russian criminal proceedings not only due to the historical experience of the legislator, have long appreciated the evident advantages of the united proce-dure, but also in its consistency with foreign trends in the development of this concept, aimed at ensuring the implementation of international standards in the sphere of promotion and pro-tection of the human and civil rights. Despite the fact that the legislator applies different concepts in determining the conse-quences of torts (including crimes) in the regulations of substantive and procedural law as follows: harm and damage, there has been concluded that it is the injury (property or moral) that constitutes the attribute of obligations caused by the injury infliction, which allows the term to be used legitimately when covering issues of reimbursement for injury in criminal proceedings. Taking into account that a civil claim in criminal proceedings is a way to reimburse not only property, but also moral damage caused by a crime, the most urgent issues that need to be resolved are identified as follows: 1) lack of general doctrinal approaches to determining moral injury and its correlation with other types of injury; 2) inconsistency of the current investigative and judicial practice in determining the amount of compensation for moral injury; 3) ineffectiveness of procedural mechanisms for compensation for moral injury caused by a crime. The current judicial practice of refusing to satisfy claims for reimbursement of moral injury in the case of a crime against property, in the absence of violence against the victim and other actions affecting the life, health, and dignity of the individual has been recognized as not complying with the requirements of the law regulating the status of the victim and the civil plaintiff. According to the authors' point of view, the lack of unified approach to determining of the amount of moral injury caused by crimes is due to the evaluative nature of its definition, when there are no clear estimative criteria, which leads to a tendency to reduce the amount of reim-bursement, although reimbursement for moral injury in an adequate amount would more guarantee the restoration of violated rights of citizens in the sphere of criminal proceedings. Since moral injury can be the result not only of a crime, but also of illegal criminal prose-cution or illegal conviction of a person involved in its commission, it is necessary to establish a unified amount of reimbursement for the injury.

scholarly journals Development of National Procedural Law in the Second Half of the XIX – Early XX Centuries

2021 ◽  
Vol 80 (1) ◽  
pp. 156-164
Author(s):  
Д. В. Слинько ◽  
Л. І. Калєніченко
Keyword(s):  
Scientific Literature ◽  
Preliminary Investigation ◽  
Russian Empire ◽  
Judicial Reform ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Russian Empire ◽  
Administrative Proceedings ◽  
Substantive Law

The authors have studied one of the current historical and legal problems concerning the development of procedural law in the Ukrainian lands, which were part of the Russian and Austro-Hungarian Empires in the second half of the XIX – early XX centuries. Based on the analysis of scientific literature and relevant regulatory material, it has been noted that the beginning of the reform of procedural legislation of the Russian Empire can be considered the introduction of the institution of forensic investigators by the imperial decree in June 1860. Thus, the preliminary investigation was separated from the police, and investigators were part of the staff of the judicial department. The next stage was the judicial reform of 1864. As a result of the reform, the judicial system and procedural law were completely changed. Substantive law was also partially amended under that influence; there was the separation of criminal proceedings from the civil one; procedural norms of administrative justice began to be formed in the Ukrainian lands during that period, and a new branch of knowledge within legal science emerged, which was aimed at searching for the essence and nature of procedural law. The development of procedural law in the Ukrainian lands, which were part of the Austrian and, since 1868, the Austro-Hungarian Empires, was characterized by the obsolescence and imperfection of procedural legislation and its focus on the establishment of imperial positions. At the same time, it is possible to state its certain democracy and succession. It has been concluded that national procedural law during that period was characterized by the preservation and strengthening of certain features of the medieval process (secular nature, rationality, phasing), by the separation of procedural law from the substantive, by the formation of procedural branches of law, by the codification of procedural legislation, by the separation of administrative proceedings from criminal and civil proceedings; the functions and competence of the authorities and their officials were differentiated.

Settlement of Labour Disputes through Mediation: Current Status of Legislation, its Practical Application and Development Perspectives

2016 ◽  
Vol 4 (6) ◽  
pp. 0-0
Author(s):  
Ирина Филипова ◽  
Irina Filipova
Keyword(s):  
Labor Law ◽  
Current Status ◽  
Successful Implementation ◽  
Practical Application ◽  
Procedural Law ◽  
Legal Literature ◽  
Labour Dispute ◽  
Labour Legislation ◽  
High Level ◽  
Labour Disputes

Russian legislation envisages the possibility of using mediation in labour disputes. At the same time, in practice mediation in labour disputes is rarely used. In legal literature, different reasons of this situation are identified: reluctance of the parties to pay for mediation, distrust of the mediator, absence of demand for mediation. It is important to understand that an employee is usually the initiator of a labour dispute. The author of this article believes that scarce application of mediation in the settlement of labour disputes lies in the high level of employees’ guarantees and rights in the Russian labor law and civil procedural law. First of all, the Labour Code provides plenitude of employee´s rights. If the employer violates these rights, the employee can go to court; the court will require the employer to restore the employee’s violated rights. Secondly, the employee is exempt from payment of judicial expenses. Thirdly, the employee may apply to the State Labour Inspectorate and the Prosecutor´s Office. Thus, the employee does not need the mediation procedure. It is more useful for employers, but employers have little knowledge about mediation. Foreign experience shows that for successful implementation of mediation in practice it is necessary to introduce the concept of mediation in labour legislation.

scholarly journals LEGAL STANDARDS OF THE EUROPEAN COURT OF HUMAN RIGHTS REGARDING REQUIREMENTS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINFL PROCEEDINGS

2020 ◽  
pp. 252-261
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
The State ◽  
International Standards ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Procedure Code ◽  
European Court ◽  
Protection Of Human Rights

The article deals with the requirements of the European Court of Human Rights regarding evidence and evidence, which are disclosed in the provision of paragraph 3 of Article 6 “The right to a fair trial” of the Convention for the Protection of Human Rights and Fundamental Freedoms, the latest practice of the Supreme Court regarding the criteria for admissibility of evidence and analysis of the current criminal procedural law. As you know, the attitude of the state towards the protection of human rights and freedoms is one of the indicators of its democracy. Ukraine has chosen the European Community as the main strategic vector of development. Such a vector provides for the unification of the regulatory framework in accordance with European legislation, as well as compliance by law enforcement agencies with international standards for the protection of the rights and freedoms of citizens. That is why, the corresponding rule is enshrined in the Criminal Procedure Code of Ukraine, providing that the rule of law in criminal proceedings is applied taking into account the practice of the European Court of Human Rights (part 2 of article 8). A detailed analysis of the provisions of the Criminal Procedure Code of Ukraine regarding the admissibility of evidence in criminal proceedings and the relationship of these norms with the legal positions of the European Court of Human Rights is carried out. They also examined the requirements of the European Court of Human Rights regarding the admissibility of evidence in decisions in which a violation by the state of the norms of the Convention was found, and in decisions in which such a violation was not found. So, summarizing and analyzing the practice of the ECHR, we saw that the Court emphasizes that a guilty verdict cannot be generally based only on inadmissible evidence, and if such a sentence is pronounced, then this is a violation of Article 1 6 of the Convention in respect of an unfair trial. Therefore, the investigator, prosecutor, investigating judge and judge should take into account the relevant practice of the ECHR and the norms of the Convention in their procedural activities in order to avoid these violations and to submit complaints to the European Court of Human Rights in the future.

scholarly journals Topical problems of legislative regulation of defense mandatory participation in criminal proceeding

2021 ◽  
pp. 124-134
Author(s):  
T.V. Korcheva
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Criminal Procedure ◽  
International Standards ◽  
Criminal Proceedings ◽  
Human Rights Protection ◽  
Procedural Law ◽  
European Court ◽  
Legislative Regulation ◽  
Mandatory Participation

For a certain category of persons in particular cases legislator provides for a special procedure of criminal proceedings as well as mandatory participation of a defender (Article 52, The Code of Criminal Procedure) to create additional person defense guarantees in criminal proceedings. The article is devoted to study of problem aspects of legislative regulation of defense mandatory participation in criminal proceedings. The importance of defense mandatory participation is emphasized as rendering legal aid to a person in criminal proceedings. This article is devoted to study the importance of the mandatory participation of a defender in criminal proceedings and on the basis of obtained data, with due consideration of international standards of human rights protection in criminal proceedings, to submit substantiated author’s proposals as regards the expansion of the circle of grounds for the mandatory participation of a defender in Ukrainian criminal proceedings. Within the topic of study we analyzed criminal procedural legislation in force, research works in this area, decisions of European Court oh Human Rights, aiming to reveal deficiencies in law and submit author’s proposals as regards their elimination.  According to normative sense of Article 52, The Code of Criminal Procedure of Ukraine, the article gives classification of the grounds for mandatory participation of a defender depending on: 1) consideration of severity of a crime; 2) consideration of personal data of a defendant held criminally liable; 3) peculiarities of criminal proceedings.  Proposals are presented aimed to improve legislative regulation of Ukrainian criminal procedural law. It is proposed to add one more reason connected to the circumstance that the defendant denies suspicion against him/her and/or denies his/her guilt in commission of criminal offense. The proposal consists in addition to Article 52, Part 2, The Code of Criminal Procedure of Ukraine of new Item 10 postulating the mandatory participation of a defender in criminal proceedings against persons who deny a suspicion as specified in Suspicion Notice on deny pleading guilty at court session.

scholarly journals Understanding of the concept of criminal procedure in the new Law on Criminal Procedure of Serbia

2006 ◽  
Vol 78 (9) ◽  
pp. 531-545
Author(s):  
Momčilo Grubač
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Judicial Investigation ◽  
Protection Of Human Rights ◽  
The Law ◽  
Administrative Proceedings

In this paper the author has outlined that the solutions introduced in the new Law on Criminal Procedure of Serbia concerning the concept of criminal procedure, its structure and scope are confusing and wrong. In his opinion those mistakes have caused the largest number of other wrong solutions in the new Law, especially in regulation of presentation of evidence. Unlike the former pre-criminal proceedings, which was constantly and justifiably considered to be with no criminal procedural effect, the new Criminal Procedural Law treats even the police "pre-investigation" and prosecution investigation as parts of the criminal proceedings and enables that verbal evidence (statements of the witnesses and accused) presented in those administrative proceedings can be used later for rendering the judgment in the later criminal proceedings. The author has demonstrated that by introducing the prosecution investigation instead of the judicial one investigation is not part of the judicial criminal proceedings anymore and that therefore principals of directness and contradictoriness in the main proceedings should have been more elaborated than before in the new Law, in stead of making them questionable by introducing number of new exemptions. According to the Law on Criminal Procedure the new criminal procedure now consists of the non-judicial investigation and judicial main criminal proceedings. In the field of legislature, this change has raised two major issues before the legislator: (1) to secure protection of human rights in the non-judicial investigation and (2) to secure court judgment that will be based on the evidence, presented according to the rules of contradictoriness and directness, in the judicial part of the criminal proceedings. Based on these requests, the evidence presented in the non-judicial previous proceedings cannot be used, in author's opinion, for rendering the judgment although the new Law allows that, even in a broader sense comparing it to the time when the investigation was a judicial activity.

scholarly journals Certificate immunity in criminal, civil, arbitration and administrative proceedings: a comparative analysis

2021 ◽  
Vol 3 ◽  
pp. 77-82
Author(s):  
A.R. Sharipova ◽  
Keyword(s):  
Comparative Analysis ◽  
Large Scale ◽  
Legal Consciousness ◽  
Criminal Proceedings ◽  
Legal Information ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Rights Of The Child ◽  
Kinship Relations ◽  
Administrative Proceedings

The author compares the normative consolidation of the institution of witness immunity in four procedural branches of law: criminal procedural, civil procedural, arbitration procedural and administrative procedural. The universal essence of this institution is determined for all types of legal proceedings under consideration and the need for a single regulation is assumed. The existence of a moral and ethical basis for exemption from witnessing is substantiated. The relationship is established between the development of this institution and the development of the branch of procedural law as a whole, the influence of the institution on the legal consciousness of citizens. Comparative analysis of industry regulation reveals a number of differences that are unjustified by industry specifics. These include a different list of close persons who are subject to family-related witness immunity. The rationale is given for the expediency of expanding the circle of close persons with witness immunity due to quasi-family and quasi-kinship relations. The disadvantage of criminal procedural witness immunity is the absence among its carriers of arbitration assessors, representatives who provide legal assistance and do not have a lawyer status, Commissioners for the Rights of the Child and Commissioners for the Protection of Entrepreneurs, mediators and judicial conciliators. The author argues on the basis of comparison with other procedural branches of the need to supplement the list of holders of «official» witness immunity in criminal proceedings. The existence of norms governing relations related to exemption from witnessing is stated in sources other than procedural codes. The conclusion is made about the need for a large-scale comparison and generalization of legal information related to witness immunities in order to develop a uniform normative consolidation for all industries.

scholarly journals Evidentiary problems in the investigation of corruption crimes in Ukraine

2020 ◽  
Vol 9 (32) ◽  
pp. 117-124 ◽  
Author(s):  
Mikhailo Shcherbakovskyi ◽  
Ruslan Stepaniuk ◽  
Vasyl Kikinchuk ◽  
Oleksiy Oderiy ◽  
Liudmyla Svyrydova
Keyword(s):  
Human Rights ◽  
International Standards ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
Strict Adherence ◽  
Procedural Law ◽  
European Court ◽  
Timely Access

The fight against corruption in Ukraine is one of the main tasks of law enforcement agencies. However, the process of proving corruption crimes in criminal cases is accompanied by problems that negatively affect the quality of the pre-trial investigation. The purpose of the article is to identify and study typical investigative errors and develop recommendations on the proper use of means and methods of proof in criminal cases of corruption crimes, taking into account the norms of national legislation and international criteria for ensuring human rights in criminal proceedings. To achieve this goal, a comparative and systemic structural analysis of international and domestic regulatory legal acts and court decisions, a selective study of materials from criminal cases on corruption crimes were made. It has been established that the process of proving in cases of corruption crimes in Ukraine will fully comply with international standards for ensuring human rights, provided that operational officers, investigators, and prosecutors comply with the admissibility criterion of evidence, especially when using secret measures. Investigative errors that take place at the stage of pre-trial investigation in this category of criminal cases lead to the restriction of human rights and freedoms and consist in significant violations of the criminal procedural law when collecting, checking, and evaluating evidence, as well as when opening the collected materials to the defense. Preventing such violations requires strict adherence to the general requirements for conducting undercover activities, formulated in the decisions of the European Court of Human Rights and domestic courts. The proof must take into account the "fruit of the poisonous tree" doctrine of the inadmissibility of evidence derived from materials collected in violation of the law. The defense side should be provided with timely access to the materials of covert events, including the documents that served as the basis for their implementation. It is important not to allow actions that are regarded as a provocation (incitement) of the suspect to commit a corruption offense.

Sign in / Sign up

Export Citation Format

Share Document