scholarly journals The Legal Approach to the Provocation of Bribe as a Variety of Provocation of Crime in Case-law of the European Court of Human Rights

2021 ◽  
Vol 6 ◽  
pp. 18-27
Author(s):  
Mykhaylo Buromenskiy ◽  
Vitalii Gutnyk
Keyword(s):  
Human Rights ◽  
National Court ◽  
Criminal Activity ◽  
Case Law ◽  
Unique Type ◽  
Covert Action ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Degree Of Participation

The article gives a legal assessment of “provocation of bribe” as a kind of “provocation of crime”. The authors examine the relevant case-law of the European Court of Human Rights (ECHR) and find that the Court does not consider “provocation of bribe” as a provocation of a unique type of crime, but summarizes the situation of “provocation of crime”, including corruption crimes (including, giving a bribe, offering a bribe, receiving a bribe).The article pays special attention to the fact that the ECHR considers complaints of provocation of bribery in the context of the rights provided for in of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court’s position is that the existence of a proven provocation of a crime deprives a person of a fair trial from the very beginning of the proceedings. The article analyzes the signs of incitement to crime, which are an integral part of provocation of crime.The article emphasizes that the ECHR, when considering relevant cases, refers exclusively to the procedural aspect of bribery provocation, assessing the extent to which the bribery provocation affected the quality of the evidence obtained as a result. In case of considering relevant cases in the national court, the ECHR places the positive obligation to prove the absence of incitement (as a key sign of provocation of a crime) primarily on the prosecution.Based on the analysis of the case-law of the European Court of Human Rights, the authors draw attention to the fact that covert investigative and operational actions must be carried out in a passive way so as not to create any pressure on a person to commit a crime.The case-law of the ECHR also provides an opportunity to determine the limits of national courts’ examination of situations in which a defendant claims to be a victim of a “provocation of crime”. The national court must find out the following: 1) motives of decision-making on a covert action; 2) the degree of participation of the law enforcement agency in the commission of the crime; 3) the nature of any incitement or pressure experienced by the applicant; 4) reliable information about the defendant’s participation in such criminal activity.

scholarly journals Reflection of Decisions of the European Court of Human Rights on Impartiality and Independence of National Courts in Context of the Right to a Fair Trial

2021 ◽  
Vol 5 (1) ◽  
pp. 67-90
Author(s):  
Alla Demyda
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Principles Of Justice ◽  
The Right

The article focuses on the principle of impartiality and independence of judiciary as a part of the right to a fair trial according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, an account will be taken of the case law of the European Court of Human Rights in matters of applications from national judges. The article considers the reflection of the decision of the European Court of Human Rights on the amendment of national legislations and the amendment of the provisions of the national constitutions regarding the principles of justice.

scholarly journals Problematic aspects of the application of ECHR practice by the courts of Ukraine

2021 ◽  
pp. 19-23
Author(s):  
Oleksandr STOROZHENKO ◽  
Oksana PROHOROVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Original Text ◽  
Statistical Research ◽  
National Courts ◽  
Human Rights Practice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards

Introduction. Ukraine signed Convention for the Protection of Human Rights and Fundamental Freedoms many years ago to provide effective protection of fundamental rights for every human that stands out on its' territory. This document is interpreted by the European Court of Human Rights. Practice of this Court must be used by national courts of Ukraine to match international human rights' standards. However, according to results of statistical research, application of that legal positions by national judges aren’t correct enough. The purpose of the paper is to identify and analyze problematic issues of application of the case law of the European Court of Human Rights by national courts of Ukraine. The authors also wanted to investigate the national practice of using the ECHR' legal positions and to provide recommendations to address shortcomings in such application. Results. The paper considers the issue of application of the case law of the European Court of Human Rights by the national courts of Ukraine. The legal nature of ECHR decisions' is studied. Authors are stick to the idea that judgments of ECHR aren’t classic precedent. There are authors' opinions about the problem of applying the practice of the European Court of Human Rights, which has no official translation. They think that judges need to be taught professional English and French. So that they will be able to understand original text of judgments correct. There is also a thought about necessity of creating special database with Ukrainian translation of some judgments. Authors have also revealed problematic aspects of the application such as: erroneous, manipulative, formal references. There are some decisions of Ukrainian courts that have been analyzed by the authors. Erroneous references to decisions of the European Court of Human Rights in such cases have been determined. Authors stated that the reason of those defects is insufficient awareness of judges about the specifics of application legal positions of ECHR. Conclusion. According to the results of the work, the importance of education and training of future judges is stated. In addition, authors emphasized on necessity of further observations of this question.

scholarly journals Application of practice the European Court of Human Rights in providing temporary access to items and documents

2020 ◽  
Vol 5 (5) ◽  
pp. 210-215
Author(s):  
Alina Harkusha ◽  
Violeta Rets
Keyword(s):  
Human Rights ◽  
Positive Impact ◽  
Case Law ◽  
Criminal Proceedings ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article deals with problems of application of the case law of the European Court of Human Rights by national courts and criminal proceedings parties during the preparation of requests for temporary access to items and documents. The authors have established that the application of the case law of the European Court and compliance with the Convention for the Protection of Human Rights and Fundamental Freedoms has a positive impact on the efficiency and fairness of pre-trial investigation and justice in the consideration of such requests.

scholarly journals Provocation of a crime in the legal positions of the European Court of Human Rights and in the national judicial system

2020 ◽  
Vol 11 (11) ◽  
pp. 334-339
Author(s):  
Zubrytska M. V.
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Criminal Activity ◽  
Law Enforcement Officers ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The legal positions of the European Court of Human Rights contain clear criteria for distinguishing provocation of a crime that violates the requirements of paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, from lawful conduct in the use of secret methods in criminal proceedings: 1) verification of the validity of the provocation (material criterion of provocation); 2) the procedure for reviewing the complaint on provocation (procedural criterion of provocation); 3) methodology of assessment of the European Court of Human Rights. When considering a defendant's complaint about the presence of signs of provocation in the actions of law enforcement agencies, national courts must establish the following procedural criteria: 1) whether there were grounds for monitoring the commission of the crime; 2) what is the measure of interference of law enforcement officers in the commission of a crime; 3) the nature of the actions to which the accused was subjected. In the legal positions of the European Court of Human Rights, examples of provocation to commit a crime are, in particular, the following: law enforcement on its own initiative contact with the applicant in the absence of objective suspicion of his involvement in criminal activity or propensity to commit a criminal offense; 2) renewal of the proposal by law enforcement officers, despite the previous refusal, to insist, exerting pressure. Based on the analysis of the legal positions of the European Court of Human Rights, it was concluded that a new presumption has actually appeared in the criminal law of Ukraine - provocation of a crime. The basis for it is Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, as well as the decision of the European Court of Human Rights in cases of provocation. The presumption of provocation of a crime is that an accused who has stated that he committed a crime under the influence of provocative actions of law enforcement officers cannot be prosecuted unless the investigation and the court establish otherwise. In national jurisprudence, courts most often considered the following situations as provocation of a crime: detection of a crime in the absence of objective information about the preparation for the commission of a crime or the beginning of its commission; inciting (pushing) a person to commit a crime through active and persistent actions; violation of the procedural order of conducting procedural actions. Keywords: provocation of a crime, provocation of bribery, incitement, initiative, exposing a crime.

scholarly journals Topical Issues of the Application of the Case-Law of the European Court of Human Rights in the Criminal Process of Ukraine

2020 ◽  
Vol 9 (29) ◽  
pp. 6-14
Author(s):  
Viacheslav Viktorovich Shamrai ◽  
Yuliia Yuriivna Ivchuk ◽  
Vladislav Yegorovich Tarasenko ◽  
Hlib Omelianovych Fedorov
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Public Authorities ◽  
Criminal Process ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Fundamental Rights And Freedoms ◽  
The Right

The purpose of the article is to identify and analyze topical issues of the application of the case-law of the European Court of Human Rights (hereinafter - ECtHR) in the context of the implementation of the current criminal procedural legislation of Ukraine. To achieve this purpose, the authors have studied the scientific positions of the lawyers, the relevant provisions of the current legislation of Ukraine, the requirements of international legal acts and the case-law of the ECtHR. The general provisions of the criminal process science were methodological basis of the study. The authors of the article used the following methods of scientific knowledge: systematic, logical, semantic, comparative and documentary analysis. The place of the case-law of the ECtHR in the system of national legislation has been clarified, in particular the decisions of this Court are binding throughout Ukraine, and national courts have to apply the case-law of the ECtHR as a source of law. It is argued that the right of Ukrainian communities to seek the protection of their rights and freedoms under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - ECHR) is an additional guarantee against arbitrariness of the public authorities and officials who violated or restricted them. It was stated that even after implementation of the universally recognized norms and principles of international law in the sphere of protection of human rights and freedoms into current criminal procedural legislation of Ukraine, the facts of their violation occur. This, in turn, leads to the adoption of the ECtHR decisions against Ukraine, in which 90% of cases state violations of fundamental rights and freedoms guaranteed by the ECHR.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

scholarly journals Public Morality as a Legitimate Aim to Limit Rights and Freedoms in the National and International Legal Order

2019 ◽  
pp. 10-20
Author(s):  
Anna Młynarska-Sobaczewska ◽  
Katarzyna Kubuj ◽  
Aleksandra Mężykowska
Keyword(s):  
Human Rights ◽  
Moral Judgments ◽  
Moral Issues ◽  
National Courts ◽  
European Court ◽  
Starting Point ◽  
International Legal Order ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
The Impact

Domestic legislation and international instruments designed for the protection of human rights provide for general clauses allowing limitations of rights and freedoms, e.g. public morals. A preliminary analysis of the case-law leads to the observation that both national courts and the European Court of Human Rights, when dealing with cases concerning sensitive moral issues, introduce varied argumentation methods allowing them to avoid making direct moral judgments and relying on the legitimate aim of protecting morality. In the article the Authors analyse selected judicial rulings in which moral issues may have played an important role. The scrutiny is done in order to identify and briefly discuss some examples of ways of argumentation used in the area under discussion by domestic and international courts. The identification of the courts’ methods of reasoning enables us in turn to make a preliminary assessment of the real role that the morality plays in the interpretation of human rights standards. It also constitutes a starting point for further consideration of the impact of ideological and cultural connotations on moral judgments, and on the establishment of a common moral standard to be applied in cases in which restriction on human rights and freedoms are considered.

Functions of compensation for human rights violation in international and national judicial decisions

2021 ◽  
Vol 11 (1) ◽  
pp. 81-101
Author(s):  
Dmitry Kuznetsov
Keyword(s):  
Human Rights ◽  
Effective Means ◽  
National Court ◽  
Case Law ◽  
The State ◽  
Customary Law ◽  
Human Rights Violations ◽  
Complex Nature ◽  
European Court ◽  
International Responsibility

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

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