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.

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.

ANONIMNI SVEDOCI I ZAŠTITA LjUDSKIH PRAVA

2021 ◽  
pp. 277-296
Author(s):  
Veljko Turanjanin ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Step Test ◽  
European Convention ◽  
Criminal Proceedings ◽  
National Legislation ◽  
European Court ◽  
The Right ◽  
Insufficient Knowledge

Тhe author deals with the problem of anonymous witnesses in the context of the right to a fair trial in the jurisprudence of the European Court of Human Rights. One of the problems in the application of Article 6 of the European Convention on Human Rights is related to the testimonies of anonymous witnesses in criminal proceedings. The case law of the European Court of Human Rights has developed certain criteria that must be followed in national legislation, but it is obvious that there is insufficient knowledge regarding this problem, as well as the reluctance to apply the mentioned rules. The standards developed by the ECtHR are very important for national laws and jurisprudence. The author explains the development of a three-step test that needs to be examined when assessing a violation of the right to a fair trial, through an analysis of a multitude of judgments, in order to provide guidance on the application of Article 6 § 3 (d) of the European Convention on Human Rights. After introductory considerations, the author explains who can be a witness under the Convention, since this question is raised independently of national legislation, and then explains the right to examine witnesses, the admissibility of testimonies by anonymous witnesses and the examination of the three-stage test, and gives concluding remarks.

scholarly journals Ensuring the detection of property in the institute of property seizure

2021 ◽  
Vol 10 (42) ◽  
pp. 236-247
Author(s):  
Anastasiia Bazhenova ◽  
Anatolii Desyatnik ◽  
Hanna Mudretska ◽  
Inna Pakipova
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Criminal Procedure ◽  
General Interest ◽  
Legal Analysis ◽  
Legal Method ◽  
Procedure Code ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right

The article is devoted to the study of certain issues of property detection in the institution of seizure of property. On the basis of comparative legal analysis, the possibility of ensuring the detection of property using search and seizure within the Criminal Procedure Code of the past and modern Criminal Procedure Code of Ukraine and foreign countries was assessed. The rights of the victim under the Convention for the Protection of Human Rights and Fundamental Freedoms are analyzed in terms of his/her right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law to decide his/her civil rights and obligations. The application of the criminal procedural legislation of Ukraine is analyzed taking into account the practice of the European Court of Human Rights on the protection of human rights in relation to the rights of individuals or legal entities to peacefully own their property. Emphasis is placed on the fact that the previous provisions do not in any way restrict the right of the state to enact such laws as it deems necessary to exercise control over the use of property in accordance with the general interest. Scientific methods such as analysis, synthesis, formal-legal and comparative-legal method became the methodological basis of the research.

scholarly journals To Remain or Not to Remain Silent: The Evolution of The Privilege against Self-incrimination Ten Years After Marttinen v. Finland

2019 ◽  
Vol 6 (2) ◽  
pp. 136-151
Author(s):  
Tuomas Hupli
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Coercive Power ◽  
Inappropriate Use ◽  
European Court ◽  
The Law ◽  
The Right ◽  
Debt Enforcement

According to the judgment of the European Court of Human Rights (ECtHR) in Marttinen v. Finland, a debtor has the right to remain silent in a debt enforcement enquiry given that the following conditions are met: first, that the inquiry is held concurrently with a criminal procedure; and second, that the same questions of evidence are investigated in both of the concurrent proceedings. Under these circumstances, the debtor enjoys the privilege against self-incrimination in the enforcement enquiry. The scope of this article is to examine whether the debtor has not only the right to remain silent, but also the right to give false statements. The assessment of this problem is built on the moral grounds of the privilege itself, but also on the law reforms and changes in case law after the judgment in the Marttinen case. As a conclusion of this article, the problem of false statements should not be evaluated by equating silence with false statements, but by considering two basic questions. First, would the right to remain silent suffice to protect the privilege against self-incrimination; and second, whether the motives for providing false statements express the aim to achieve something else than protection against inappropriate use of coercive power.

scholarly journals Human Rights Waiver in Criminal Proceedings in Terms of the European Court of Human Rights: ‘Russian Cases’

2020 ◽  
Vol 3 (4) ◽  
pp. 50-58
Author(s):  
Irina Chebotareva ◽  
Olesia Pashutina ◽  
Irina Revina
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Widespread Occurrence ◽  
European Court ◽  
The Government ◽  
Grand Chamber ◽  
The Right

The article investigates the general position of the European Court of Human Rights on the admissibility and validity of the waiver of rights, the features of the European mechanism for protecting human rights in case of the waiver of the right; studies the case-law practices in criminal cases of the Court in relation to Russia where the Court considered the presence/absence of the waiver of the right. The practice of the ECHR reveals the widespread occurrence of human rights violations in the Russian criminal proceedings with the alleged waiver of the right in the framework of criminal procedure. These includes the situations when the Government claimed that the Applicant had waived his/her right and the Applicant did not agree with this fact and insisted that he had been deprived of the opportunity to exercise his/her right. According to the ECHR, violations of human rights established in the Convention are related not only to shortcomings in the legal system but also to improper law enforcement that does not comply with the Convention requirements. Based on the analysis of the ECHR’s general approaches to the waiver of the right, the authors revealed the compliance of the Russian criminal procedure with the requirements of the Court to the waiver of the right and the guarantees established for it. To achieve the objectives in the HUDOC database of the European Court, using search requests we identified cases against Russia considered by the Chamber and the Grand Chamber, in which the ECHR examined the issue of the presence/absence of the waiver of the right in the criminal procedure. As a result, 40 judgments in which the Court directly considered the issue of the presence/absence of the waiver of the right in the criminal procedure in Russia were selected. We studied and analysed the selected judgments.

scholarly journals The restrictions of the right to inspect the case file in Bosnia and Herzegovina in light of the jurisprudence of the European Court of Human Rights

2021 ◽  
pp. 463-479
Author(s):  
Faruk Avdić
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Criminal Procedure ◽  
Case Law ◽  
Fair Trial ◽  
Case File ◽  
European Court ◽  
Starting Point ◽  
The Right ◽  
Procedure Codes

This paper aims to assess the compliance of the provisions of the criminal procedural legislation of Bosnia and Herzegovina dealing with the restrictions of the right to inspect the case file with the standards developed in the jurisprudence of the European Court of Human Rights. The working hypothesis laid out in this paper is that the right of the prosecutor to unilaterally restrict the defense right to access the case file during the investigation and to unilaterally decide which evidence he will use as the basis for the indictment does not satisfy the requirements stemming from the right to a fair trial. The starting point of this paper is the analysis of the case law of the European Court of Human Rights. Afterward, the paper turns to the consideration of the provisions of the criminal procedural legislation of Bosnia and Herzegovina dealing with the restrictions of the right to inspect the case file. In that purpose, this paper employs normative and formal dogmatic legal methods in analyzing the particulars of its subject. The conclusion of the paper is that the law of Bosnia and Herzegovina when it comes to the restrictions of the right to inspect the case file is not in line with the standards of the European Court of Human Rights. For this reason, there is a need for the amending of the Criminal Procedure Codes in force in Bosnia and Herzegovina with the aim of making these Codes compliant with the jurisprudence of the European Court of Human Rights in that respect.

scholarly journals Issues concerning divorce in European Court of Human Rights case law

2020 ◽  
pp. 228-232
Author(s):  
Oleksandra Bilyk
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Favourable Outcome ◽  
The Other ◽  
Reasonable Time ◽  
National Legislation ◽  
European Court ◽  
Polish Law ◽  
The Right ◽  
Domestic Law

The article deals with the case law of the European Court of Human Rights in the context of the individuals’ possibility to dissolveone’s marriage in general and other issues related to divorce.Starting with the case of Johnston and Others v. Ireland (1986) ECHR made it clear that a right to divorce cannot be derived fromArticle 12 of the Convention (Right to marry). The Court stated that drafters of the Convention had no intention to include in Article12 any guarantee of a right to have the ties of marriage dissolved by divorce. On the other hand, in case of F. v. Switzerland (1987)ECHR stated that if national legislation allows divorce, which is not a requirement of the Convention, Article 12 secures for divorcedpersons the right to remarry without unreasonable restrictions.In more recent cases the Court dealt with issues concerning the lengthy divorce proceedings that impaired applicants’ right tomarry again. In this aspect the Court would not exclude that a failure to conduct divorce proceedings within a reasonable time could incertain circumstances raise an issue under Article 12 of the Convention. However, in such cases the Court emphasizes more on the issueof the violation of Article 6 § 1 of the Convention in light of the failure of the domestic authorities to conduct the divorce proceedingsefficiently.Another side of divorce proceedings was reviewed in case of Babiarz v. Poland (2017) where the applicant complained that byrefusing to grant him a divorce the authorities had prevented him from marrying the woman with whom he had been living and had achild. The situation arose due to the provisions of Polish law that a divorce could not be granted if it had been requested by the partywhose fault it was that the marriage had broken down, if the other party refused to consent. In the Court’s view, if the provisions of theConvention cannot be interpreted as guaranteeing a possibility, under domestic law, of obtaining divorce, they cannot, a fortiori, beinterpreted as guaranteeing a favourable outcome in divorce proceedings instituted under the provision of that law allowing for adivorce.

THE ANALYSIS OF THE RECENT STANDARDS OF APPLYING COMPULSORY MEASURES ACCORDING TO THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS (The Analysis of the Criminal Procedure Code of Georgia and its Compliance with the Case Law of the European Court of Human Rights)

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 141-162
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Criminal Procedure ◽  
Case Law ◽  
Recent Case ◽  
European Convention ◽  
Procedure Code ◽  
European Court ◽  
Article 5

The present article – “The Analysis of the Recent Standards of Applying Compulsory Measures according to the Case Law of the European Court of Human Rights (The Analysis of the Criminal Procedure Code of Georgia and its Compliance with the Case Law of the European Court of Human Rights)” – discusses the recent case-law of the European Court of Human Rights on Article 5 of the European Convention together with the compliance of the Criminal Procedure Code of Georgia in terms of applying compulsory measures.

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”.

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