scholarly journals O niekonstytucyjności § 95 ust. 2 zd. 2 Regulaminu urzędowania sądów powszechnych

2019 ◽  
Vol 116 ◽  
pp. 59-71
Author(s):  
Bartosz Łukowiak
Keyword(s):  
Fair Trial ◽  
Criminal Proceedings ◽  
Rules Of Procedure ◽  
Effective Remedy ◽  
The Right

ON THE UNCONSTITUTIONALITY OF § 9522 OF THE RULES OF PROCEDURE OF COMMON COURTSThe subject of this work is the issue of the constitutionality of § 9522 of the Rules of Procedure of Common Courts. Based on the analysis of regulations in the field of criminal proceedings, the author tries to demonstrate the non-compliance of this provision with the principle of the right to defence, the principle of the right to an effective remedy, the principle of the exclusivity of the act and the prohibition of creating apparent powers, and, therefore, proposes its own, different regulation of this issue, which would allow for compliance of national regulations with the standards of fair trial.

When it is (also) Algorithms and AI that decide on Criminal Matters: In Search of an Effective Remedy

2020 ◽  
Vol 28 (3) ◽  
pp. 280-304
Author(s):  
Giuseppe Contissa ◽  
Giulia Lasagni
Keyword(s):  
Fair Trial ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Innovative Solutions ◽  
Definition Of ◽  
Effective Remedy ◽  
The Right ◽  
Criminal Matters

Abstract The paper presents the main areas of application of predictive systems based on algorithmic and AI technology, and analyses their impact on fundamental rights and fair trial principles. It focuses in particular on the definition of the right to an effective remedy against decisions taken (also) with the support of algorithmic and AI systems, and proposes some innovative solutions on how to ensure compliance with this right in technologically advanced criminal proceedings.

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.

Expediting the ICC Criminal Process: Striking the Right Balance between the ICC and States Parties

2018 ◽  
Vol 18 (3) ◽  
pp. 383-425
Author(s):  
Hirad Abtahi ◽  
Shehzad Charania
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
Common Goal ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
State Involvement ◽  
Rules Of Procedure ◽  
The Right

When establishing the ICC, the sole permanent international criminal court, States ensured that they would play a legislative role larger and more direct than the ad hoc and hybrid courts and tribunals. States Parties have, however, acknowledged that, given the time they spend interpreting and applying the ICC legal framework, the judges are uniquely placed to identify and propose measures designed to expedite the criminal process. Accordingly, the ICC has followed a dual track. First, it has pursued an amendment track, which requires States Parties’ direct approval of ICC proposed amendments to the Rules of Procedure and Evidence. Second, it has implemented practices changes that do not require State involvement. This interactive process between the Court and States Parties reflects their common goal to expedite the criminal proceedings. The future of this process will rely on striking the right equilibrium between the respective roles of States Parties and the Court.

The Law of Interim Release in the Jurisprudence of the International Criminal Tribunals

2008 ◽  
Vol 8 (3) ◽  
pp. 589-626 ◽  
Author(s):  
Clemens Müller
Keyword(s):  
International Criminal ◽  
Case Law ◽  
The Other ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
International Criminal Tribunals ◽  
Depth Study ◽  
Rules Of Procedure ◽  
The Law ◽  
The Right

AbstractThe right of interim release during trial is an international recognized fundamental right of the accused which is deduced from the presumption of innocence. Although the ICTY has shifted to a more liberal practice, the other tribunals and the ICC are still applying the law of interim release in a restrictive manner. Decisions on interim release are not guided by clearly decisive factors to be applicable for every single accused in each case. Rather an examination of the particular facts of the case and the personality or character of the accused, surrounded by a framework of requirements set forth in the Rules of Procedure and Evidence, determine the practice on interim release. The way international criminal tribunals apply the law of interim release is, like international criminal proceedings as such, of a design sui generis. This article summarises the case-law concerning interim release at the international criminal tribunals. It gives an in-depth study on the requirements set forth in the Rules of Procedure and Evidence which the accused must fulfil to be provisional released.

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.

Monetary Compensation as a Remedy for Fair Trial Violations under International Criminal Law

2015 ◽  
Vol 18 (1) ◽  
pp. 71-99 ◽  
Author(s):  
Yahli Shereshevsky
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Fair Trial ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
International Crimes ◽  
Monetary Compensation ◽  
Effective Remedy ◽  
The Right

When international criminal courts face violations of the right to a fair trial, they encounter a dilemma: if they provide a significant remedy, such as a stay of proceedings, the remedy inevitably undermines the ability to punish the perpetrators of international crimes; on the other hand, if they grant a minimal remedy or no remedy at all, the right to a fair trial is undermined. This dilemma has led to the adoption of an interest-balancing approach to remedies. Under this approach, sentence reduction plays a prominent role in remedying fair trial violations that do not undermine the court’s ability to accurately determine the accused’s guilt. This Article argues that sentence reduction is an inadequate remedy, since it inevitably either harms the goals of international criminal sentencing or does not provide an effective remedy for violations of the right to a fair trial. Instead, monetary compensation should be the remedy for such violations. By granting monetary compensation, the court creates a separation between the punishment and the remedy and thus can usually provide an effective remedy for the accused without harming the main goals of international criminal justice.

The Right to a Fair Trial in International Law

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Human Right ◽  
The World ◽  
The Law ◽  
The Right

This book brings together the diverse sources of international law that define the right to a fair trial in the context of criminal proceedings. It aims to make the law accessible to counsel and meaningful to victims in courtrooms all over the world. By focusing on what the right to a fair trial means in practice, it seeks to bring to life the commitment made by over 170 states parties to the ICCPR. The book is subdivided into 14 substantive chapters each dealing with one component of the right to a fair trial. Each chapter collates and analyses international sources, highlighting both consensus and division in the international jurisprudence. The book aims to be the global reference for the most frequently litigated human right in the world.

12 Right to Equality

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Fair Trial ◽  
Equal Treatment ◽  
Equal Protection ◽  
Political Rights ◽  
Criminal Proceedings ◽  
Foreign Nationality ◽  
The Law ◽  
The Right ◽  
Procedural Rights ◽  
Equality Of Access

This chapter focuses on the right to equality before courts and tribunals, which requires that all parties to criminal proceedings are treated without discrimination. The right underlies the rule of law. It is codified in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), which provides ‘[a]ll persons shall be equal before the courts and tribunals’. It is also enshrined in Article 14(3), which refers to the minimum guarantees of a fair trial ‘in full equality’. This chapter considers three areas in which the right to equality before courts and tribunals may arise in criminal proceedings: equality of treatment, equality of arms, and equality of access. In terms of equal treatment, Article 26 of the ICCPR provides ‘that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds’. These grounds include ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Equality of treatment applies to all individuals, not just to defendants, and requires equal treatment by all organs of the state, not just judicial authorities. Meanwhile, equality of arms ensures that the same procedural rights are to be provided to all the parties to a case, ‘unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant’. It does not necessarily require mathematical equality between the prosecution and the defence. Equality of access issues may arise in criminal proceedings when a defendant’s access to court is hindered because of his detention, disability, or his foreign nationality, or when a defendant is forced to be tried before a military or special court rather than having access to a regular civilian court. The right to equality before courts and tribunals has been used relatively infrequently to vindicate fair trial violations, which may in part be attributed to the challenges of proving discrimination.

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