scholarly journals GARANTISMO, SISTEMA ACUSATÓRIO E A PRODUÇÃO DE PROVA EX OFFICIO PELO MAGISTRADO

2020 ◽  
Vol 2 (59) ◽  
pp. 210
Author(s):  
Teodoro Silva SANTOS ◽  
Nestor Eduardo Araruna SANTIAGO
Keyword(s):  
At Risk ◽  
Human Rights ◽  
Criminal Procedure ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Legal Process ◽  
Accurate Analysis ◽  
Criminal Process ◽  
Procedure Code ◽  
European Court

RESUMO Objetivo: A análise da possibilidade de produção de provas ex officio pelo magistrado, prevista na redação do inciso I do art. 156 do Código de Processo Penal, advinda da reforma implementada pela Lei nº. 11.690/2008, que alterou os dispositivos relativos à prova no Processo Penal à luz da Constituição e do Garantismo Penal. Metodologia: Métodos analítico e dedutivo, mediante pesquisa bibliográfica e documental de doutrina e jurisprudência, especialmente dos tribunais superiores brasileiros e do Tribunal Europeu de Direitos Humanos, no âmbito do modelo garantista constitucional e também legal. Resultados: A possibilidade de iniciativa probatória pelo juiz no processo penal antes de iniciada a ação penal, expressa no art. 156, inciso I, do Código de Processo Penal, com a redação advinda da Lei nº. 11.690/2008, contrapõe-se ao garantismo penal, bem como à Constituição, por colocar em risco a imparcialidade judicial. A norma se exprime como resquício de um regime inquisitorial, por afrontar os direitos e as garantias fundamentais, notadamente o princípio da imparcialidade, alcançado por meio do distanciamento do magistrado da função probatória. Contribuições: O tema é relevante, pois abre espaço para uma análise precisa da persecução da verdade no contexto do processo penal ante a possibilidade de atuação ex officio do juiz na produção de provas, fato este que se contrapõe ao sistema processual acusatório adotado no Brasil, centrado na existência de sujeitos processuais diversos e detentores de funções distintas: acusar, defender e julgar, em consonância com o princípio do devido processo legal e de outros princípios corolários deste. Palavras-chave: sistema acusatório; garantismo processual; produção de prova ex officio; imparcialidade. ABSTRACT Objective: To analyze the possibility of producing ex officio evidence by the magistrate, provided for in item I of article 156 of the Code of Criminal Procedure, arising from the reform implemented by Law no. 11,690 / 2008, which amended the provisions relating to evidence in the Criminal Procedure in the light of the Constitution and the Penal Guarantee. Methodology: Analytic and deductive methods, by way of bibliographic and documentary research of doctrine and jurisprudence, especially from the Brazilian higher courts and the European Court of Human Rights, within the scope of the constitutional and also legal guarantee model. Results: The possibility of evidential initiative by the judge in the criminal process before the beginning of the criminal lawsuit, expressed in Article 156, item I of the Criminal Procedure Code, with the wording granted by Law no. 11,690/2008, opposes the criminal guarantee, as well as the Constitution, for putting at risk the judicial impartiality. The law expresses as a remnant of an inquisitorial regime to affront fundamental rights and guarantees, notably the principle of impartiality, achieved by way of distancing the magistrate from the evidence function. Contributions: The topic is relevant, as it opens up an accurate analysis of the pursuit of the truth in the context of criminal proceedings given the possibility of ex officio action by the judge in the production of evidence, a fact that contrasts with the accusatory procedural system adopted in Brazil, centered in the existence of different procedural subjects and holders of different functions: accusing, defending and judging, in line with the principle of due legal process and other corollary principles thereof. Keywords: accusatory system; procedural guarantee; production of ex officio evidence; impartiality.

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.

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 PLEDGE AS A PRECAUTIONARY MEASURE IN CRIMINAL PROCEEDINGS: SOME PROBLEMATIC ASPECTS

2021 ◽  
pp. 171-178
Author(s):  
P. D. Denysiuk
Keyword(s):  
Human Rights ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Maximum Size ◽  
Precautionary Measure ◽  
Criminal Proceedings ◽  
Private Interests ◽  
Procedure Code ◽  
European Court ◽  
Precautionary Measures

The article analyzed court statistics on the consideration of requests for the application of precautionary measures by the courts of first instance and it is established that detention remains one of the most common. Was emphasized that the rulings of the European Court of Human Rights suggest that detention should be an exceptional precautionary measure. An alternative to it may be a pledge. The characteristics of pledge were described as precautionary measures, which are defined in the relevant provisions of the Criminal Procedure Code of Ukraine. The problematic issue of determining the amount of the pledge is considered. The case law of the European Court of Human Rights is analyzed and the main rules for determining the amount of pledge are highlighted: application of a differentiated approach; justification of the amount of pledge not only during the initial consideration of the request for the application of a measure of restraint, but also during the decision on the need to continue detention; accounting the amount of damages for which this person is accused. It was stated that the norms of the criminal procedure legislation in this part correspond to the practice of the European Court of Human Rights, and the amount of pledge is correlated with such indicators as the circumstances of the criminal offense; property status of the suspect, accused; data on his identity; the presence of risks of concealment, possible influence on the participants in criminal proceedings and various ways of obstructing the pre-trial investigation, referred to in article 177 Criminal Procedure Code of Ukraine. The issues of discussion regarding the maximum size of pledge and it is concluded that in Criminal Procedure Code of Ukraine are expanded list of conditions that the court considers the election of a preventive measure, and therefore the court will be able, within the statutory amount of pledge, to choose the one that can ensure a balance between the private interests of the person (won’t be excessive) and the interests of justice (ensure that suspects and accused perform their duties). It is argued that clarifying the legality of the origin of pledge and expanding the list of objects that can be recognized as pledge in the sense of a precautionary measure can only complicate the procedure for applying pledge.

scholarly journals Compliance with the principle of adversarial in disclosing the materials of covert investigative (detective) actions to the defense

2019 ◽  
pp. 81-89
Author(s):  
O.G. Yanovska
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
National Courts ◽  
Procedure Code ◽  
European Court ◽  
The Right

The defense has the right to have information about all elements of the procedural order of receiving the prosecution evidence, in particular, about the materials of the covert investigative (detective) actions (further - CIDA), which the latter intends to use against it in court. However, this right of defense is violated quite often. In addition, these issues remain unresolved at both the legislative and jurisprudence levels. The purpose of the article is to address some of the problematic issues that arise during the disclosing the materials of CIDA to the defense at the pre-trial stage of criminal proceedings. The research made it possible to draw the following conclusions from an analysis of the case-law of the national courts and of the European Court of Human Rights: 1) if the prosecution timely fulfilled the requirements of Article 290 of the Criminal Procedure Code of Ukraine (further - CPC of Ukraine), took all necessary and dependent measures aimed at declassification of materials that became the basis for the CIDA, but such materials were not declassified For reasons that did not depend on the prosecutor's procedural activity, there were no violations of the requirements of the said CPC of Ukraine by the prosecution. In such a case, the court shall evaluate the evidence obtained for their propriety and admissibility, as well as in combination with other evidence in the case, in accordance with the requirements of Article 94 of the CPC of Ukraine; 2) if the prosecution on his own initiative and/or at the request of the party of defense did not take the necessary measures, which depend on it and aimed at declassification of the materials which became the basis for the CIDA, in that case there is a violation of the rules of Article 290 of the CPC of Ukraine the consequences provided for in paragraph 12 of this Article; 3) if in the course of criminal proceedings in court, the prosecutor's repeated request for declassification of procedural documents which became the basis for the CIDA was granted and they were at the disposal of the prosecution party, then these procedural documents as received by the prosecution party after the transfer cases before the court should be opened in accordance with part eleven of Article 290 of the CPC of Ukraine.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

Extradition of a Person: The National Law of Ukraine and the Case Law of the European Court of Human Rights

2021 ◽  
Vol 39 (9) ◽  
Author(s):  
Tatiana H. Fomina ◽  
Volodymyr I. Galagan ◽  
Zhаnnа V. Udovenko ◽  
Serhii Ye. Ablamskyi ◽  
Yana Yu. Koniushenko
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Offense ◽  
National Legislation ◽  
Procedure Code ◽  
European Court ◽  
Relevant Case ◽  
The Right

This article aims at establishing and emulating the relevant issues surrounding the detention of person presumed of committing a criminal offense outside the territory of Ukraine in respect with the provisions adumbrated by the European Court of Human Rights. The study was conducted through the prism of national legislation and the relevant case law of the European Court of Human Rights. The issues of realization of the detainee's rights, including the right to protection, were considered separately. According to the results of the study, certain ways to improve the provisions of the Criminal Procedure Code of Ukraine have been formulated.

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.

Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals Institute of consent with accusation in criminal proceedings of Russia and foreign countries

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Sergey F. Shumilin ◽  
Petr A. Kolmakov ◽  
Aleksander A. Nasonov ◽  
Ekaterina A. Novikova ◽  
Oksana S. Shumilina
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Study ◽  
Procedure Code ◽  
Foreign Countries ◽  
Alternative Measures ◽  
Legal Consequences

The current study attempts to present the effects of a comparative legal study regarding the legal consequences of consent with accusation in Russia and foreign countries' criminal processes. It has been established that the institution of consent with accusation in the Russian criminal process does not have a significant effect on its reduction, and also does not determine the development and application of alternative measures of punishment for committing crimes. According to the current Criminal Procedure Code of Russia, consent with accusation concerning committing crimes of small and medium gravity entails the same consequences: release from criminal liability and reduction of the amount of punishment. Following the principle of fairness, the authors substantiated the most appropriate alternative penalties provided by the criminal procedure legislation of Germany and France.

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