scholarly journals Appeal of report of suspicion during the pre-trial investigation

2019 ◽  
pp. 17-32
Author(s):  
N. Glynska ◽  
D. Klepka
Keyword(s):  
Case Law ◽  
Regulatory Framework ◽  
General Mechanism ◽  
Complex Nature ◽  
Effective Solution ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
The Third ◽  
The Subject ◽  
Procedural Decisions

One of the most important criminal procedural decisions is the notice of suspicion which is essential both for the criminal proceeding as a whole and for the person to whom this message is made. Therefore, compliance with the legality and validity of the notice of suspicion is important in the general mechanism of effective solution of the tasks of criminal proceedings, in particular, regarding appealing the notice of suspicion during the pre-trial detention investigation. On bases of the case-law analysis, a number of issues have been highlighted in connection with the appeal of report of suspicion during the pre-trial investigation. The purpose of the article is to cover the gaps and conflicts of the current criminal procedural legislation in the regulation of appealing the report of suspicion during the pre-trial investigation. The authors summarized the case law on consideration of complaints about suspected reports during the pre-trial investigation, which allowed to identify 3 variants of interpretation by the investigating judges of the «suspicion report» as a subject of appeal: 1. the subject of the appeal is only the procedure for the report of suspicion; 2. the subject of the appeal is only the report of suspicion as a procedural decision; 3. The subject of the appeal is the written report of suspicion as a procedural decision and the procedure for the implementation of the report of suspicion. It is justified that the third approach is correct. The authors support the view of the complex nature of the notion of suspicion. Particular attention is paid to the issue of challenging the validity of the suspicion report. In the article the practice of investigating judges who refuse to open proceedings on a complaint about the validity of a suspected report is evaluated critically. On the basis of the practice of ECtHR, the authors conclude that the validity of a suspicion report may be may be the subject of an appeal during the pre-trial investigation in view of the insufficiency of the evidence on which it is based. In addition, it is concluded that the appeal of the suspicion report is ineffective after two months from the bottom of the report of the suspected in crime and one month after the report of the suspected in offense. On the basis of the conducted research, the authors proposed to amend the current CPC in order to improve the regulatory framework for appealing the suspected report during the pre-trial investigation.

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

scholarly journals (Il)Legal evidence in criminal procedures in the case law of the Supreme Court of Cassation in 2019 and 2020

2021 ◽  
Vol 93 (2) ◽  
pp. 435-456
Author(s):  
Milana Pisarić
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Case File ◽  
Legal Evidence ◽  
The Supreme Court ◽  
The Subject ◽  
Illegal Evidence

The Criminal Procedure Code stipulates that court decisions may not be based on evidence which is, directly or indirectly, by itself or in the manner of obtaining it, contrary to the Constitution, this Code, other laws or the generally accepted rules of international law and ratified international treaties, except in proceedings conducted for the purpose of obtaining such evidence. Illegal evidence cannot be used in criminal proceedings and is therefore separated from the case file. If the judgment is based on illegal evidence, it can be challenged by the appeal against the judgment, but also by the request for the protection of legality. The subject of the paper is the analysis of the recent case law of the Supreme Court of Cassation (in the period from January 1, 2019 to December 31, 2020) regarding the requests for the protection of legality stated in connection with illegal evidence.

Principles of Acceptance and Mistakes in the Implementation of Criminal Procedural Decisions

2019 ◽  
Vol 9 (5) ◽  
pp. 1519
Author(s):  
Maral T. ABZALBEKOVA ◽  
Roza M. ZHAMIYEVA ◽  
Bakytzhan A. ZHAKUPOV
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Practical Relevance ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
Study Results ◽  
The Subject ◽  
Procedural Decisions ◽  
Goals And Objectives ◽  
Made In

The relevance of the study problem is caused by the need to ensure the legality, validity and substantiation of criminal procedural decisions, which ultimately leads to the achievement of goals and objectives of criminal proceedings. Purpose of the article: the purpose of the article is to develop the principles of decision-making by the subject of criminal procedural activity, as well as identifying the typical mistakes in their implementation. Study methods: The basis of problem solving in terms of criminal procedural decision-making and implementation is the system-based and activity approach and the methodological provisions of the decision-making theory, which allowed to identify patterns in the process of criminal procedural decision-making and implementation by the representative of criminal proceeding bodies and other participants of the proceeding. Study results: The principle systems of decision-making by the subject of criminal procedural activity is provided; the levels and stages of procedural decision-making and implementation are outlined, typical mistakes made by the subject of criminal procedural decision are determined taking into account the level of decision-making and the violated principle. Practical relevance: The identified patterns, principles, stages and levels of decision-making, as well as the typical mistakes formulated, will have a significant impact on improving the viability of decisions made in the criminal proceedings, and recommendations based on them contribute to ensuring the rule of law in the activities of judges, investigators, prosecutors and other participants in the proceedings.

scholarly journals The standard of proof “beyond a reasonable doubt” in criminal proceedings of Ukraine in the context of the ECHR case-law

2021 ◽  
Vol 10 (46) ◽  
pp. 281-289
Author(s):  
Oleksandr Drozdov ◽  
Volodymyr Hryniuk ◽  
Serhii Kovalchuk ◽  
Liliia Korytko ◽  
Galyna Kret
Keyword(s):  
Research Methodology ◽  
Practical Implication ◽  
Case Law ◽  
Reasonable Doubt ◽  
Criminal Proceedings ◽  
Standard Of Proof ◽  
Legal Method ◽  
Methods Of Analysis ◽  
The Subject ◽  
The Individual

The purpose of the paper is to determine a content of the standard of proof “beyond a reasonable doubt” (SP “BRD”) in the ECHRcase law and Ukrainian criminal proceedings by defining the criteria that characterize it. The subject is the SP “BRD”, doctrine of Ukraine and case-law, including its criticism by the individual judges of the ECHR and Ukrainian scholars. The research methodology includes the methods of analysis, the method of synthesis, the methods of deduction and induction, comparative-legal method, systematic and formal-legal methods. The results of the study. The acceptability of the SP “BRD” in the Ukrainian criminal proceedings is substantiated, in particular, its compliance with the purpose of criminal procedural proof. Practical implication. The criteria which characterize the SP “BRD” in the ECHR’s and SC’s case law are highlighted.

CRITICAL THINKING IN ACTIVITIES OF AN INVESTIGATOR (COURT)

2020 ◽  
pp. 10-17
Author(s):  
S. N. Merkulov ◽  
◽  
N. A. Panko ◽  
◽  
Keyword(s):  
Critical Thinking ◽  
Evaluation Method ◽  
Point Of View ◽  
Complex Nature ◽  
Criminal Proceedings ◽  
The Face ◽  
The Subject ◽  
Dynamic Structures ◽  
Correct Application ◽  
Negative Factors

The paper considers the concept of critical thinking of investigators, judges, and other subjects of criminal proceedings. Its application is determined by the realities of current investigative and judicial practice. The authors note the shortcomings of the mechanism for collecting and processing evidentiary information in the investigation (judicial examination) of criminal cases. The study shows the prospects of applying critical thinking to understanding the situation of the investigation (consideration) of a case. The paper presents the advantages of a situational approach to the examination of a criminal event under the influence of negative factors. Such factors are defined as those that lead to the destruction, distortion, or falsification of evidence. The situational approach guarantees the completeness and comprehensiveness of processing the obtained evidentiary information. From the informational point of view, the authors specify the static and dynamic structures of critical thinking of subjects of criminal proceedings. The paper defines the thinking of an investigator and the court as the process of transferring the circumstances of an event under investigation (consideration) into the system of elements of the subject of evidence. Critical thinking aims at resolving contradictions between the sources of evidence. The complex nature of thinking defines criticality. This allows the subject of criminal proceedings to make proper decisions in the face of negative factors. The reliability criterion becomes an indicator of the quality of critical thinking. This criterion is included in the system of the concept of critical thinking formulated in the paper. The structure of critical thinking includes the methodology of scientific research, scientific worldview, ways of forming internal beliefs, and algorithms for making heuristic decisions. The authors outline the ways of critical thinking formation among investigators and judges, and other subjects of criminal proceedings. The study shows that it is based on the system of professional knowledge of subjects of criminal proceedings, is confirmed by the development of practical techniques for analyzing carriers of forensic information. The correct application of the evaluation method to establish the reliability of evidence is called an indicator of mastering such thinking.

11. Privity of contract and third party rights

2019 ◽  
pp. 519-570
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

3. Subject matter

2018 ◽  
Author(s):  
L. Bently ◽  
B. Sherman ◽  
D. Gangjee ◽  
P. Johnson
Keyword(s):  
Subject Matter ◽  
Case Law ◽  
Copyright Law ◽  
European Court Of Justice ◽  
Dramatic Works ◽  
The Third ◽  
European Court ◽  
Musical Works ◽  
The Subject ◽  
Exhaustive List

This chapter is concerned with the subject matter, or types of creation, protected by copyright law as stipulated by the Copyright, Designs and Patents Act 1988. Eight categories of work are examined: literary works, dramatic works, musical works, artistic works, films, sound recordings, broadcasts, and published editions (or typographical works). The chapter considers the definitions of these categories of work in the case law and through the jurisprudence of the European Court of Justice. It also discusses three important issues. First, that legal categories do not necessarily correspond to the objects usually associated with copyright law. Second, that all types of subject matter that are protected by copyright are referred to as ‘works’. The third issue, and the most problematic, is whether the list of works must be treated as an exhaustive list.

SUBSTANTIVE LAW VIOLATION AS A BASIS FOR REVOCATION OF THE RULING

2018 ◽  
Vol 1 (XVIII) ◽  
pp. 231-241
Author(s):  
Piotr Kruszyński ◽  
Jan Kil
Keyword(s):  
Criminal Procedure ◽  
Case Law ◽  
Historical Evolution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Subject ◽  
Substantive Law

The subject of the article is an analysis of a violation of substantive law as the basis for the revocation of a ruling in Polish criminal proceedings. The study presents the historical evolution of the violation of substantive law as an appeal basis in consecutive criminal procedure codifications, starting from the Code of Criminal Procedure of 1928. The paper reviews and analyzes the case law regarding the pleasof theviolation of substantive law in criminal cases. In-depth consideration was given to the violation of substantive law as the basis for ordinary and extraordinary appeals in the criminal proceedings. The publication examines the legitimacy of recognition of violations of substantive law in the category of absolute appeal basis. Also, the violation of substantive law was confronted with the institution of gross injustice of the rulingstemming from Article 440 of Code of Criminal Procedure (kpk).

scholarly journals Reasonable Time in Criminal Proceedings of Ukraine in the Context of the European Court of Human Rights Case Law

2021 ◽  
Vol 11 (2) ◽  
pp. 701-715
Author(s):  
Bohdan Derdiuk ◽  
Serhii Kovalchuk ◽  
Snizhana Koropetska ◽  
Vasyl Savchenko ◽  
Oleksandra Smushak
Keyword(s):  
Human Rights ◽  
Practical Implication ◽  
Case Law ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Time Period ◽  
The Subject ◽  
Definition Of

The purpose of the paper is an analysis of the notion of reasonable time, period which is taken into account in their calculation and criteria for determining a reasonable time for criminal proceedings in Ukrainian criminal procedural legislation in the context of the European Court of Human Rights case law. The subject of the study is an analysis of Ukrainian criminal procedural legislation from the point of view of its conformity to the ECHR’s case law in the designation of a reasonable time, period which is taken into account in calculation of a reasonable time and criteria for its determining for criminal proceedings. The research methodology includes comparative legal, systematic, functional, formal legal and others methods. The results of the study. The period which is taken into account in calculation of a reasonable time and the criteria for its determining is studied comprehensively as a basis for definition of the notion of reasonable time. Practical implication. The range of suggestions for improvements of Ukrainian criminal procedural legislation relating content of reasonable time and mechanism used to their calculate is defined. Value / originality. Based on the results of an analysis the authors’ concept of reasonable time is proposed.

scholarly journals Criminalisation of Possession of Narcotics in Poland

2021 ◽  
Vol 9 (2) ◽  
pp. 42-71
Author(s):  
Katarzyna Banasik
Keyword(s):  
Final Section ◽  
Case Law ◽  
Criminal Proceedings ◽  
Current State ◽  
Historical Outline ◽  
Personal Use ◽  
European Regulations ◽  
The Subject

The subject of this paper is the issue of the criminalisation of the possession of narcotics in Poland. Particular attention is paid to the institution of the optional termination of criminal proceedings in cases when the person who has committed the offence is in possession of an inconsiderable amount of narcotics for personal use. The aim of the study is, among other things, to demonstrate how this institution functions in practice and to examine whether the Polish regulations are compatible with the international and the European regulations. The author first presents a historical outline of the criminalisation of offences involving an unlawful possession of narcotics, and then develops the idea of what should be understood by ‘possession’ of narcotics while also addressing the issue of ‘possession of narcotics within one’s own body’. In the further section of the paper, the author analyses the notion of ‘an inconsiderable quantity of narcotics’, presenting views expressed in the literature and showing disparities in interpretations of this notion in the case law. In the final section, the author presents conclusions and an assessment of the current state of the relevant Polish legislation.

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