scholarly journals Standard of proof «sufficient reason» in the criminal procedure of Ukraine

2019 ◽  
pp. 31-42
Author(s):  
M. Pohoretskiy ◽  
O. Mitskan
Keyword(s):  
Human Rights ◽  
Sufficient Reason ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Wide Range ◽  
Procedural Code ◽  
Reasonable Suspicion ◽  
Procedural Decisions

Based on the results of analysis of foreign doctrine, foreign procedural legislation, foreign law enforcement practice, the practice of the European Court of Human Rights. In the article explores problematic issues of the application of the standard of proof “sufficient reason” in the domestic criminal process. The relevance of the article is that the standard of proof “sufficient reason” or “probable cause” in the system of standard of proof in the domestic criminal process has a special place and using to accept most procedural decisions at the pre-trial investigation. The purpose of the article is to substantiation the main direction of using in the criminal proceed of Ukraine standard of proof “sufficient reason” taking into account the legal nature of this standard. In the article proved that “sufficient reason” is the standard of proof in the criminal proceed of Ukraine execution of which is based on “common sense” and in the factual analysis (assessment) of the whole set of facts and circumstance in their integrity, authorized entities with the use of special knowledges and experience on establishing “sufficient reason” for making appropriate procedural decision. Implementation of the standard of proof “sufficient reason” as well as “reasonable suspicion” doesn`t envisage a lack of doubt as guilty of the person. Sufficient is a possible knowledge about committing criminal offence by person with the difference that for the highest standard measures have to be higher. Moreover, within “flexible” standard of proof “sufficient reason” of the level of probability can also vary, depending on how much negatively appropriate procedural decision will affect the rights of the person. Prove that in the current Criminal procedural code of Ukraine the standard of proof “sufficient reason” is used to accept most procedural decisions at the pre-trial investigation stage in criminal proceedings, when the most reasonable suspicion of a committing person criminal offence is insufficient due to significant restrictions on human rights as a result of appropriate decision. At that, the flexible nature of the standard of evidence "sufficient reason", which consists in the required measure conviction the appropriate standard from the circumstances of the specific criminal proceedings, allows you to assert its suitability for Making a wide range of procedural decisions. Standard of proof “sufficient reason” is used for adoption of such procedural decisions: on the application of certain measures to ensure criminal proceedings; in addressing the issue of applying precautionary measures as a variety of measures to ensure criminal proceedings; in addressing the issue of individual investigative (detective) actions; in addressing the issue of granting permission for secret investigative (detective) actions and deciding on the use of the results of unspoken investigative actions in other criminal proceedings; when deciding on the placement of the person in the receiver-allocator for children (Part 4 art. 499 of the Criminal procedural code of Ukraine).

APPLICATION OF EVIDENCE STANDARDS IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 2 (2) ◽  
pp. 67-74
Author(s):  
Maryna Horodetska ◽  
Keyword(s):  
Security Measures ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Standard Of Proof ◽  
Judicial Practice ◽  
Reasonable Suspicion ◽  
Standards Of Proof ◽  
Objective Side ◽  
Procedural Decisions

The article is devoted to the study of the application of standards of proof in criminal proceedings. The criminal procedural legislation for determination of standards of proof is analyzed. The international and national judicial practice of application of standards of proof is investigated. Peculiarities of application of standards of proof at different stages of criminal proceedings are revealed. Differences in the application of standards of proof in making different procedural decisions have been established. The standard of reasonable suspicion is investigated. It is determined that the establishment of the standard “reasonable suspicion” depends on: 1) the stage of pre-trial investigation; 2) the degree of restriction of individual rights during decision-making. The article concludes that the lowest level of suspicion is sufficient for the commencement of criminal proceedings - suspicion of the fact of committing a criminal offense. Such suspicion of the fact of committing a criminal offense corresponds to the establishment of the object and the objective side of the criminal offense. It was found that during the detention of a person for committing a criminal offense, in addition to the suspicion of committing a criminal offense, the standard of “suspicion of sufficient involvement of the detainee” must be achieved. A certain level of suspicion of sufficient involvement of the detainee in the commission of a criminal offense is necessary to justify his detention. It was found that the notification of a person's suspicion of committing a criminal offense (without the application of a precautionary measure against him) presupposes the achievement of the standard of proof - “sufficient grounds (evidence)”. Which is lower than the standard of «reasonable suspicion”, the achievement of which is necessary in case of restriction of the rights of the person in connection with the application of security measures, etc. It is established that the standard “reasonable suspicion” is not stable and is assessed depending on the course of criminal proceedings. Over time, the standard of proof of “reasonable suspicion” increases and should be supported by proof of new circumstances and risks.

Admissibility of Evidence Obtained by Torture and Inhuman or Degrading Treatment. Does the European Court of Human Rights Offer a Coherent and Convincing Approach?

2021 ◽  
Vol 29 (2) ◽  
pp. 127-153
Author(s):  
Wojciech Jasiński
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court ◽  
Depth Analysis ◽  
Degrading Treatment ◽  
Main Shortcoming

Abstract The paper presents and assesses the approach of the ECtHR to admissibility of evidence obtained through torture and inhuman or degrading treatment in the criminal process. The author examines the content of the standard, its justifications and the consistency of the ECtHR's reasoning. The paper refers both to the admissibility of statements and real evidence as well as to primary and derivate evidence obtained in violation of Article 3 echr. The admissibility of evidence obtained by oppressive conduct of private individuals is also analysed. The assessment of the Strasbourg Court’s case law indicates that its approach is quite nuanced and, unfortunately, inconsistent and incoherent. Its main shortcoming is the lack of an in-depth analysis of the rationale for the inadmissibility of evidence obtained by maltreatment and the piecemeal treatment of individual categories of such evidence devoid of attempt to comprehensively address its admissibility in criminal proceedings.

scholarly journals Restrictions of individual’s rights, freedoms and legal interests within temporary access to items and documents: practical aspects.

2021 ◽  
Vol 3 (3) ◽  
pp. 277-284
Author(s):  
Andriy Melnychenko
Keyword(s):  
Human Rights ◽  
Statistical Data ◽  
Third Party ◽  
Human Rights Violations ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Control ◽  
Informed Decisions ◽  
Legitimate Interests

Temporary access to things and a document as an institution that restricts human rights and freedoms in criminal proceedings and its main properties have been studied. Attention is drawn to the problem of numerous risks of human rights violations during the application of temporary access to things and documents due to unfounded and weak argumentation of investigators' requests for temporary access, as well as a superficial assessment of circumstances by the investigating judge due to overload of requests. Statistical data have been studied, which indicate the need for consistent reform of judicial control in the direction of studying the materials and making informed decisions. Temporary access to things and documents in the criminal process is part of the institution of measures to ensure criminal proceedings. It attracts the attention of scholars because it has a rather complicated procedure for obtaining a decision on temporary access to things and documents, which must be provided by the investigating judge based on the results of the petition. The mechanism of judicial control indicates that this measure to some extent restricts the rights, freedoms or legitimate interests of a person – a participant in criminal proceedings or a third party. Related to this is the problem of the measure under investigation, which is the risk of violation of the rights of individuals, because every year the investigating judges receive a large number of requests for temporary access, and there are specific features in terms of providing temporary access to things and documents containing legally protected secret.

The Oxford Handbook of Criminal Process

2019 ◽  
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
European Convention ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court

This handbook examines various aspects of the criminal process, including the role of prosecutors in common law and civil law jurisdictions, the rights and duties of experts, victim rights in civil law jurisdictions, surveillance and investigation, criminal prosecution and its alternatives, evidence discovery and disclosure in common law systems, evidence law as forensic science, common law plea bargaining, appeals and post-conviction review, and procedure in international tribunals. The book is organized into eight parts covering topics ranging from criminal process in the dual penal state to interrogation law and practice in common law jurisdictions, empirical and comparative approaches to criminal procedure, prosecution-led investigations and measures of procedural coercion in the field of corruption, international corporate prosecutions, special procedures for white-collar and corporate wrongdoing in Europe, and trial procedure in response to terrorism. Also discussed are the roles of the European Convention on Human Rights and the European Court of Human Rights as guardians of fair criminal proceedings in Europe, double jeopardy or ne bis in idem in common law and civil law jurisdictions, plea bargaining vs. abbreviated trial procedures, restorative justice as an alternative to penal sanctions, and the pluralistic nature of international criminal procedure.

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).

1. Criminal law in context

Criminal Law ◽  
2019 ◽  
pp. 1-31
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Social Contexts ◽  
European Convention ◽  
The Political ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Key Aspects ◽  
The Impact

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This introductory chapter answers the following questions: What is a crime? What purpose or function does the criminal law serve? What reasons are there for the criminalisation of some types of conduct? What are the purposes of punishment? What are the political and social contexts in which criminal law operates? The chapter provides an overview of key aspects of the criminal process, including mode of trial, the decision to prosecute, the burden and standard of proof, the functions of judge and jury, and sentencing. It also examines briefly discusses the impact of the European Convention on Human Rights on English law.

scholarly journals Standards for ensuring the legality of implementing unspount activities in criminal process through the prism of legal positions of the European court of human rights

2021 ◽  
pp. 111-123
Author(s):  
A. Tumanyants ◽  
I. Krytska
Keyword(s):  
Human Rights ◽  
Democratic Society ◽  
Order Conditions ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
National Legislation ◽  
Judicial Control ◽  
European Court ◽  
The Subject ◽  
Covert Activity

The analysis of the legal positions of the ECHR in the aspect of the subject of the article under consideration made it possible to conditionally single out the following standards for ensuring the legality of the implementation of covert activity in criminal proceedings:- predictability. Its essence lies in the fact that the grounds, procedural order, conditions, timing, the circle of persons and crimes in relation to which it is allowed to carry out covert activities should be as detailed, clear and accurate as possible in the criminal procedural legislation. Moreover, any person had the opportunity to familiarize himself with the relevant regulatory prescriptions and foresee the actions that can be carried out in relation to him;- warranty against abuse. The content of this standard can be disclosed by more detailed highlighting of clarifying provisions ("substandards"). These include: control of interference in human rights and freedoms; the certainty of the circle of persons in relation to whom it is possible to carry out secret activities; limited corpus delicti, for the purpose of investigation or prevention of which covert activity is allowed;; the existence in national legislation of procedures that facilitate the law of the implementation of covert activity in criminal proceedings; the temporary nature of the implementation of secret activities in the criminal process;- verifiability. The essence of this standard can be disclosed through the establishment of judicial control over the decision of the issue regarding the possible destruction of information obtained in the course of conducting covert activities, which is not relevant to criminal proceedings, as well as the requirement for the mandatory opening of decisions that were the basis for conducting covert investigative actions;- exclusivity. The main content of this standard is that covert activity in criminal proceedings can be carried out only in cases where the disclosure or prevention of a crime in another way is impossible or is too complicated;- proportionality of the intervention and its expediency. The essence of this standard is that the implementation of certain covert coercive actions that are associated with the restriction of human rights and freedoms must be proportionate to the goals for which such actions are directed. Moreover, these goals and the applied coercion must be necessary in a democratic society;- inadmissibility of tacit interference in the communication of some subjects. First of all, this requirement concerns the need to legislatively guarantee non-interference in communication between a lawyer and his client, a priest and an accused, etc., which means a ban on targeted control over the communication of certain subjects, as well as the obligation to destroy information obtained in the course of an accidental, situational interfering with their communication.

scholarly journals On the New Rules Protecting Attorney-Client Privilege in Criminal Procedure in Russia

2018 ◽  
pp. 15-25
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Criminal Procedure ◽  
Point Of View ◽  
Federal Law ◽  
Criminal Proceedings ◽  
European Court ◽  
Procedural Code ◽  
Criminal Procedure Law ◽  
Further Development

In the article, an attempt is made to consider the recently introduced additional criminal procedural guarantees of the protection of attorney-client privilege from the point of view of the system of the Russian criminal procedural legislation and in the light of the practice of the European Court of Human Rights. The author comes to the conclusion that additional guarantees of protection of attorney-client privilege introduced by the Federal law № 73-FZ contribute to the further development of the adversarial principles of the Russian criminal proceedings. At the same time, some innovations seem to be controversial. The supplement introduced to part 2 of the Article 75 of the Russian Criminal Procedural Code (CPC) concerning inadmissibility of using advocatory items and documents as evidence come into conflct with the Article 17 of the CPC and do not constitute the whole legal system with other provisions of the criminal procedure law. The rules of part 3 of the Article 450.1 of the CPC, according to the author, are incompatible with part 5 of the Article 165 of the CPC regulating urgent procedures of investigative actions requiring judicial permission, as well as part 2 of the Article 450.1 of the CPC. The author makes a range of proposals to improve the legislation and its application.

scholarly journals The essence and problems of substantiating certain types of decisions in criminal proceedings

2021 ◽  
Vol 136 (3) ◽  
pp. 98-104
Author(s):  
V.V. Djafarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Procedure Code ◽  
Mandatory Requirement ◽  
The Russian Federation ◽  
The Republic ◽  
Definition Of ◽  
Procedural Decisions

The article considers problems of substantiating certain types of decisions in the criminal process. The author’s views are based on recent changes in the criminal procedure legislation of the Republic of Kazakhstan and the existing experience of the Russian Federation. The article focuses on provisions of the current criminal procedure code of the Republic of Kazakhstan. The author refers to Russian proceduralists whose works are devoted to the problems of studying the validity of procedural decisions at the pre-trial stage. The author indicated types of decisions, which are not recognized as criminal procedural, but for which justification should be a mandatory criterion according to the criminal procedural legislation of the Republic of Kazakhstan. The article provisions justify the need to enshrine the definition of «reasonableness» in the Criminal Procedure Code of the Republic of Kazakhstan as a mandatory requirement that must be met when taking decisions by the prosecuting authorities.

scholarly journals The value of the ECtHR practice for making procedural decisions when conducting covert investigative (search) actions

2020 ◽  
pp. 158-169
Author(s):  
Olena Bilichak
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
European Convention ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Procedural Decisions

Based on the analysis of the provisions of domestic law, the practice of pre-trial investigation and court, the scientific article develops recommendations on how to take into account the decisions of the European Court of Human Rights in covert investigative (search) actions and use the results obtained in evidence. It is established that the current legislation provides for the possibility of conducting pre-trial investigation of serious and especially serious crimes of covert investigative (investigative) actions, which in most cases is related to intrusion into privacy and correspondence of a person protected by Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, knowledge of the content and consideration of the case law of the ECtHR in making procedural decisions on the conduct of pre-trial investigation by certain NSDCs and the use of the results obtained by them in court evidence is a strong guarantee of the legality of court decisions. When making certain procedural decisions regarding the materials of covert investigative (investigative) actions at the pre-trial and court stages of criminal proceedings, it should be taken into account that the right to secrecy of correspondence guaranteed by Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ensures the inviolability of all forms of communication between persons, both by means of communication and without them. All covert investigative (search) actions should be carried out only in accordance with the law. Audio and video materials submitted by private individuals and produced «with the help» of law enforcement officers cannot be considered admissible evidence. Carrying out NSRD to control the commission of a crime (Article 271 of the CPC of Ukraine) should exclude the possibility of provocation by the pre-trial investigation authorities. If their intelligence staff was involved in such a special operation, in the initial stages of its conduct the conduct of the pre-trial investigation body should be exclusively passive and limited to observation. In any case, the evidence in the criminal proceedings in which the relevant special operation took place should not be based only on its materials, and the burden of proof rests with the prosecution. Key words: criminal proceedings, European Court of Human Rights, covert investigative actions.

Sign in / Sign up

Export Citation Format

Share Document