THE FUNDAMENTAL HUMAN RIGHT TO A FAIR TRIAL AS AN OBJECT OF PROTECTION OF THE INSTITUTION OF LEGAL RESPONSIBILITY OF A JUDGE

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Special Functions ◽  
Criminal Code ◽  
Fair Trial ◽  
Legal Responsibility ◽  
Scientific Article ◽  
Human Right ◽  
Protective Function ◽  
Legal Norms ◽  
The Status ◽  
Key Aspects

The scientific article reveals the key aspects of ensuring the fundamental human right to a fair trial as an object of protection of the institution of legal responsibility of a judge. It has been established that the basic principles of ensuring the human right to a fair trial are governed by the norms and provisions of such documents as: the Criminal Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Ukraine on Administrative Offenses, the Code of Labor Laws of Ukraine, the Law of Ukraine «On the Judicial System and the Status of Judges», Resolution of the Supreme Administrative Court of Ukraine of 15.09.2011 No. П/9991/335/11. It was found that the object of a disciplinary offense of a judge is a set of rights and duties of a judge to the legal and fair administration of justice and the fulfillment of other duties assigned to him by the judicial and procedural legislation. It was determined that today the judicial authorities in Ukraine have adopted and put into effect the Internal Labor Regulations of Courts. The functions of a judge's legal responsibility were considered and it was found that they are implemented at the general social level (they consist in achieving control over the judge's behavior in accordance with special legal norms), at the general legal level (they consist in the restoration of rights that were violated, and compensation for expenses incurred to restore rights, as a result of the commission of illegal actions by the judge; prevention of the commission of offenses by the judge; punishment of the judge and the imposition of restrictions on his rights on legal grounds as a result of the imposition of additional legal obligations on him), the level of aggregate (general) functions of legal responsibility (consists in the fact that legal responsibility judges acts as the basis of social development and is determined under the influence of the development of legal norms) and the level of special functions of bringing a judge to legal responsibility (consists in exercising influence on the regulation of legal relations between a judge and society). It has been proven that the key functions of a judge's legal responsibility are the punitive function, protective function, preventive function and the function of ensuring the activity of the judge and his behavior in accordance with special professional standards. It is proposed to conduct a comprehensive study of the problems of ensuring human rights to a fair trial, based on the peculiarities of bringing a judge to legal responsibility for unfair, illegal and unjust in violation of the standards and requirements for fulfilling official duties, with the prospects for further research.

scholarly journals Analytical support of the procedural decision-making process

2020 ◽  
Vol 4 ◽  
pp. 20-32
Author(s):  
F.B. Agayev ◽  
Keyword(s):  
Decision Making ◽  
Fuzzy Inference ◽  
Criminal Code ◽  
Information Support ◽  
Legal Research ◽  
Practical Action ◽  
Legal Norms ◽  
Procedural Law ◽  
Legal Method ◽  
The Status

In the process of legal research, private scientific methods are developed and used to study legal reality, such as the method of comparative jurisprudence, the method of interpretation (explanation) and the formal legal method. However, at the present stage of legal research, it is impossible to be limited only by these methods. Even legal scholars who consistently defend the status of dogmatic jurisprudence recognize that the application of these methods, with all their merits, sets a limiting framework in un-derstanding the practical action of positive law and the originality of its theoretical vision. Nevertheless, the application of these methods in the study of legal reality allows us to draw a conclusion about the general trends in the development of evaluative concepts that are fundamental in civil procedural law. It is offered an approach to the formation of a system of information support of procedural decision-making based on the application of fuzzy inference mechanism implemented in the logical basis of the feedforward multilayer neural network. Under this approach, a method to overcome the semantic uncer-tainty in the evaluation terms of procedural law is developed by using appropriate terms (fuzzy sets) of corresponding linguistic variables. As an example it is selected the Articles on “Violation of copyright or neighboring rights” of the Criminal Code of the Azerbaijan Republic based on which has been proposed formalism for the evaluation concept of “significant harm” in relation to the sanction applied. For mak-ing an adequate to evaluation concept notion it is proposed grading scale of possible sanctions, obtained on the basis of the description of the relevant legal norms in terms of fuzzy implicative rules.

SUBJECTS EXECUTING CUSTODIAL SENTENCES: CONCEPT, CHARACTERISTICS, CLASSIFICATION

2021 ◽  
pp. 82-88
Author(s):  
Ренат Зинурович Усеев
Keyword(s):  
Scientific Article ◽  
Correctional Institution ◽  
Correctional Institutions ◽  
Legal Basis ◽  
Legal Norms ◽  
Analysis And Synthesis ◽  
Deductive Method ◽  
The Status ◽  
The Subject ◽  
State Coercion

В последние десятилетия окончательно определена правовая основа служебной деятельности сотрудников уголовно-исполнительной системы и исправительных учреждений. Сотрудники исправительных учреждений помимо субъекта несения службы являются важным субъектом, на которого государством возложены полномочия по приведению в исполнение меры государственного принуждения - наказания (самостоятельно или в составе учреждения, органа). Субъекты, исполняющие наказания в виде лишения свободы, обладают определенными признаками. К ним относятся: внешняя обособленность, персонификация, способность вырабатывать, выражать и осуществлять персонифицированную волю, приобретение свойства субъекта права в силу юридических норм. Рассматриваемых субъектов следует классифицировать на три группы: 1) исправительные учреждения (территориальный орган ФСИН России); 2) коллективные субъекты, исполняющие наказания (администрация, персонал (работники) исправительных учреждений); 3) персональные субъекты, исполняющие наказания (начальник исправительного учреждения, сотрудник исправительного учреждения). Цель работы - показать роль и значение субъектов, исполняющих наказания в виде лишения свободы, определить их ключевые черты и установить виды (персональные, коллективные либо имеющие статус юридического лица). Методами исследования в научной статье явились универсальные методы (анализ и синтез, индукция и дедукция, аналогия и классификация); теоретические методы (абстрагирование, гипотетико-дедуктивный метод) и др. Выводы и результаты работы определяются достижением ее целей. In recent decades, the legal basis for the official activities of employees of the penitentiary system and correctional institutions has been finally determined. Employees of correctional institutions, in addition to the subject of service, are an important subject to whom the State has the authority to enforce a measure of state coercion - punishment (independently or as part of an institution, body). Subjects who execute sentences in the form of deprivation of liberty have certain characteristics. These include: external isolation, personification, the ability to develop, express and exercise a personalized will, the acquisition of the property of the subject of law by virtue of legal norms. The subjects under consideration should be classified into three groups: 1) correctional institutions (territorial body of the Federal Penitentiary Service of Russia); 2) collective subjects executing punishments (administration, staff (employees) of correctional institutions); 3) personal subjects executing punishments (the head of a correctional institution, a correctional institution employee). The purpose of the work is to show the role and significance of the subjects executing sentences in the form of imprisonment, to identify their key features and to establish types (personal, collective or having the status of a legal entity). The research methods in the scientific article were universal methods (analysis and synthesis, induction and deduction, analogy and classification); theoretical methods (abstraction, hypothetical and deductive method), etc. The conclusions and results of the work are determined by the achievement of its goals.

scholarly journals Competence as Prerequisite of the Participation of a Procedural Representative in the Court Trial

2019 ◽  
pp. 101-107
Author(s):  
Yurii RIABCHENKO
Keyword(s):  
International Standards ◽  
Legal Responsibility ◽  
Access To Justice ◽  
Human Right ◽  
Public Authorities ◽  
The Status ◽  
Procedural Code ◽  
Substantial Risk ◽  
Important Means ◽  
Definition Of

The article is devoted to importance of professional competences while carrying out procedural representation, as well as to determining on this basis the further directions of the development of the principles of participation of the representative in the civil trial. The author supports a scientific approach of the human right function and the representative one. The first function is a stipulated right of a person involved in the trial to have a professional help. The second one reflects the implementation of the appropriate procedural rights of a trustee by the procedural representative and carrying out the procedural duties of the trustee. As a result of the research it is necessary to recognize the actual approach of legislator, enshrined in Part 3, 4 Art. 58 of the Civil Procedural Code of Ukraine; according to this approach the alternative to the "advocacy monopoly" is the self-representation of the subject of public power or legal entity through an authorized person. It has also been determined that such approach is the most relevant to both public realities and established international standards of legal assistance. It is justified that this approach should not be considered as exemplary. The prospect of further development of the principles of participation in the court trial is determined to introduce an absolute advocacy monopoly, including participation of public authorities and legal entities in the case. It is proved that the implementation of the provisions of the draft Law of Ukraine dated 29.08.2019 № 1013 requires substantial support by developing special guarantees of access to the court. The author has attracted attention to the risks of amendments foreseen by this draft law. These risks include, in particular, the quality of legal aid. It has been pointed out the need to develop guarantees of competent decision-making by an individual regarding the issue whether a lawyer or a person with no professional skills will represent his or her interests in the court. There is a substantial risk of lack of access to justice in the case of non-professional procedural representative. It is pointed out that there are no effective guarantees of bringing to legal responsibility persons who do not have the status of a lawyer due to the improper conduct of the case. As to the lawyers, the important means is determined by bringing them to disciplinary responsibility. It has been supported the position of the legislator stated in the Law of Ukraine dated 18.12.2019, № 390–IX, regarding the definition of such a participation in the court as self-representation through an authorized person according to employment contract.

scholarly journals Criminal law characteristic of certain restrictive measures

2021 ◽  
pp. 251-260
Author(s):  
YU.M. Plish
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Criminal Code ◽  
Scientific Article ◽  
New Concepts ◽  
The Status ◽  
General Part ◽  
Legislative Changes ◽  
The Moment ◽  
Restrictive Measures

Domestic criminal law is being in constant dynamics, so it means that the norms of the current legislation are being improved, new, previously unknown, criminal-legal categories are being introduced, recommendations of in¬ternational institutions are taken into account, etc. Not an exception in this process is chapter XIII-1 of the General part of the Criminal Code of Ukraine, which regulates restrictive measures (these provisions came into force on January 11, 2019). From the moment of the regulation of restrictive measures in the Criminal Code of Ukraine, they have acquired the status of criminal-legal measures. Restrictive measures have a specific purpose - to protect the victim from a person who has committed a socially dangerous act, to protect against committing a socially danger¬ous act in relation to the victim in the future, to minimize the interaction between the person, who is in a dangerous state, and the victim, if such has the significant risks.This scientific article analyzes the conditions of application of restrictive measures in criminal law, in particular, it is determined that the concept of «crime related to domestic violence» is broader than the concept of «domestic violence» in Article 126-1 of the Criminal Code of Ukraine and can be used not only in the commission of this crime, but also in other socially dangerous acts that have signs of domestic violence; some considerations regarding the improvement of the grounds for the application of restrictive measures are highlighted; the correlation between the requirements of international acts and current provisions on restrictive measures is considered.A detailed analysis of the types of restrictive measures that are in the Criminal Code of Ukraine was made. The need for some legislative changes and additions is argued, this concerns the wording of the names of types of restric¬tive measures; new concepts that should be enshrined at the legislative level; meaningful content of such varieties. The conclusion was made that the regulation of restrictive measures in the Criminal Code of Ukraine is a positive step, but due to the novelty of this legal category there is a need for their partial editing and changes.

scholarly journals THE STATUS AND SIGNIFICANCE OF LEGAL RESPONSIBILITY IN THE LEGAL SYSTEM OF RUSSIAN SOCIETY

2018 ◽  
Vol 6 ◽  
pp. 752-756
Author(s):  
Damir Y. Shapsugov ◽  
Yuri N. Radachinsky ◽  
Andrey V. Kurochkin
Keyword(s):  
Social Relations ◽  
Legal System ◽  
Legal Culture ◽  
Legal Framework ◽  
Legal Responsibility ◽  
Russian Society ◽  
New Approach ◽  
Legal Norms ◽  
Legal Studies ◽  
The Status

Only a few scientific works in Russian legal studies are devoted to the status of legal responsibility in the Russian legal framework. This article examines the status of legal responsibility in the legal system of Russian society and proposes a new approach and defines the relationships between legal responsibility and legal awareness, legal culture, and regulation of social relations on the basis of authors’ consecutive studies as well as other viewpoints presented in the literature. Authors outlined the features of legal responsibility in the context of Russian legal framework and social relations, highlighting criteria of legal behavior and Russian legal norms contributing to the development of this phenomenon.  

scholarly journals CRIMINAL OFFENSES AGAINST OFFICIAL DUTY, WITH SPECIAL ANALYSIS OF THE CRIMINAL OFFENSE, ABUSE OF OFFICIAL POSITION AND AUTHORIZATION, ACCORDING TO CRIMINAL LEGISLATION AND PRACTICE

2019 ◽  
Vol 30 (6) ◽  
pp. 1479-1486
Author(s):  
Tose Panov
Keyword(s):  
Criminal Code ◽  
Criminal Offense ◽  
Legal Norms ◽  
Official Position ◽  
Special Analysis ◽  
Criminal Offenses ◽  
The Status ◽  
The Republic ◽  
Basic Characteristics ◽  
Criminal Legislation

In this paper the author will try to analyze and describe the basic characteristics of the criminal offenses against official duty, and he will pay special attention to the criminal act "Abuse of official position and authority" from Article 353 of the Criminal Code of the Republic of Macedonia as a general and fundamental criminal offense against official duty. The basic elements of the criminal offense will be analyzed, starting with the status of the perpetrators, the acts of committing, the consequences of the offense, the guilt of the perpetrator, and in the end are presented the qualified forms of this criminal act. Through the outburst of the legal norms, and the stated statistics we will try to give freshness to the legal text, and that is the main contribution of this paper.

scholarly journals Documents in the Criminal Code of Ukraine: Content and Their Relationship

2020 ◽  
Vol 89 (2) ◽  
pp. 284-298
Author(s):  
M. I. Fialka
Keyword(s):  
Scientific Research ◽  
Specific Area ◽  
Criminal Code ◽  
Scientific Article ◽  
Characteristic Functional ◽  
Legal Norms ◽  
Medical Sector ◽  
Different Types ◽  
Functional Orientation ◽  
Criminal Legislation

The subject matter of the scientific research carried out within the scientific article are documents as features of corpus delicti provided in the criminal legislation of Ukraine. The purpose of this article is to study the problem of the existence of the document, its varieties and their relationship in the structure of the Criminal Code of Ukraine. Achieving this purpose within the study became possible due to the implementation of the relevant tasks, namely: to determine the list of criminal and legal norms, which provide the presence of a document in the form of certain features of corpus delicti; to establish the main content and essence of each type of the document; to establish the relationship of different types of documents in the structure of the Criminal Code of Ukraine. General scientific methods have been mainly used in the process of scientific research, namely: analysis, generalization, systematic approach and study of documents. This, in turn, provided an opportunity to formulate the novelty of the scientific research, which is to establish the content of the concepts of different types of documents within the Criminal Code of Ukraine and to establish their interdependence. Based on the study of the essence of the term of the “document” and its varieties, it has been emphasized the presence of certain characteristics, namely: the basic concept is the “document”; each type of document provided in the Criminal Code of Ukraine is used in a specific area of activity of society and the state (financial sphere, sphere of public administration, sphere of state secrets, medical sector, etc.); the content of information or data contained in the document is directly related to the scope of its use; the characteristic functional orientation of the document, as a rule, is directly reflected in its specific title (for example, the financial document is used in the financial sphere). It has been concluded that the concept of the “document” and its varieties are correlated with each other as general and specific. In this case, the document is understood as a general, and its varieties – as its specific forms.

scholarly journals Official of operating units: status and powers

2021 ◽  
Vol 108 ◽  
pp. 03012
Author(s):  
Nikolay Nikolaevich Bukharov ◽  
George Vladimirovich Bushin ◽  
Andrey Ivanovich Kurtyak ◽  
Bladimir Denis Rivera Siles
Keyword(s):  
Legal Status ◽  
Methodological Approach ◽  
Sequential Algorithm ◽  
Scientific Article ◽  
Federal Law ◽  
Legal Norms ◽  
Advantages And Disadvantages ◽  
Criminal Intelligence ◽  
The Status ◽  
Operating Units

The scientific article is dedicated to the research of the status and powers of an official of operating units and official and legal relations arising when enforcing the norms of law legislated in the Federal Law “On Operational Investigative Activities”. Objective: to perform the scientific research of the status and powers of an official of operating units; to analyze the legislation regulating this legal status, powers of the official of operating units. Methods. In the work, the authors used the formal, logical, sociological, historical, and dialectic methods. The scientific article is based upon the sociological, theoretical, and historical methods, on the knowledge technique of the legal status of an official, theory of powers, and the comparative analysis of the legislative regulations. The main methodological approach used in the scientific article is the criminal intelligence theory developed in the works by Russian lawyers. Main results: the research allowed revealing the advantages and disadvantages of the legislative and regulatory framework regulating the legal status and powers of an official of operating units and also the significant mistakes in the case law. Conclusion and grounding of the novelty of work: basing upon the analysis of the current Federal Law “On Operational Investigative Activities”, it can be concluded that officials can be logically subdivided into the main and derivative types according to their powers. The main types of officials are the following: 1) officials of operating units; 2) derivative positions – criminal intelligence investigator. A complex of federal laws and other statutes and regulations of the Ministry of Internal Affairs of the Russian Federation that legislate the concept of the official of operating units determine the structure and content of the legal status of an official; in general, it can be called legislation regulating the legal status of the officials. The novelty of the work is in the grounding of the new approach to the understanding of the legal status of officials of operating units and their powers; this approach is based upon the theory of legal status and the theory of operational and investigative activity. The criteria of the novelty are corresponded to: the authors’ understanding of the concept “official of operating units”; improvement of the characteristics of the legal nature and legal status of an “official of operating units”; evaluation of legal norms of the Federal Law “On Operational Investigative Activities”; recommendations of improvement of the Federal Law “On Operational Investigative Activities”; development of the methods of the legal status of an “official of operating units” aimed at creating a sequential algorithm for solving qualified tasks. The main objective of the research in this scientific article is the creation of a detailed and clear concept of an “official of operating units” and also revealing the main powers of these officials.

scholarly journals Study of the legal category "official" as a factor in improving the quality of law in the field of operational investigation.

2019 ◽  
Vol 2019 (3) ◽  
pp. 152-157
Author(s):  
Андрей Куртяк ◽  
Andrey Kurtyak
Keyword(s):  
Law Enforcement ◽  
Legal Status ◽  
Legal Responsibility ◽  
Scientific Article ◽  
Sociological Research ◽  
Search Activity ◽  
Legal Norms ◽  
Survey Results ◽  
Internal Affairs

The scientific article presents the results of sociological research, the purpose of which is to identify the legal status of an official carrying out operational investigative activities in the internal Affairs bodies. The empirical base of the study was the results of the survey on specially designed questionnaires of 307 respondents, including employees of operational units (156 people) and employees of structural units (94 people) authorized to carry out operational investigative activities, cadets of the 5th course of specialization of the St. Petersburg University of the Ministry of internal Affairs of Russia, trained in the direction of training «40.02.02-law Enforcement (Profile: Operational investigative activities of the Internal Affairs bodies)» (57 people), as well as analytical reports, reviews, materials operatively-search activity, 2018. The obtained information is processed using the methods of sociology, theory of state and law and other branches of law. Objective information is classified and divided into six conditional factors based on the methodology developed by the author. In the course of quantitative and qualitative analysis of empirical material (survey results and interviewing of practitioners), graphs, tables, charts were compiled. The study is aimed at determining the legal status of a single entity as an official, identifying the features of the formation of the conceptual apparatus of the official, his functions, powers and legal responsibility, as well as to substantiate the relevance of the criteria for law enforcement in the field of operational and investigative activities, the Specification of the legal category «official» contributes to the development of recommendations for law-making bodies in order to improve the quality of legal norms of law in the field of operational and investigative activities of internal Affairs bodies.

scholarly journals On the question of the concept of the right to a fair trial

2020 ◽  
pp. 171-173
Author(s):  
Ihor Zavalniuk
Keyword(s):  
Fair Trial ◽  
Practical Implementation ◽  
Unified Approach ◽  
Human Right ◽  
Legal Proceedings ◽  
Judicial Practice ◽  
The Status ◽  
The Concept Of Law ◽  
Definition Of ◽  
The Right

The article studies the concept of the right to a fair trial with the aim of its possible further improvement in constitutional andlegal science and the development of a unified approach to the application of the right to a fair trial on practice in the exercise of justicein Ukraine. The special significance of justice is noted in the human right to fair trial, which determines the purpose and appointmentof legal proceedings. The relationship between the right to a trial and the right to a fair trial has been determined. Comparing the conceptsof the right to trial and the right to a fair trial, the following two assumptions can be made: 1) the right to a fair trial is one of theelements of the right to trial, and therefore they are related as general and particular; 2) in modern democracies, given the priority consolidationof the requirement of justice in many norms of current legislation (for example, the purpose of the Law of Ukraine «On theJudicial System and the Status of Judges» is to ensure the right of everyone to a fair trial), the right to a court cannot be considered outsidethe concept of justice.The article considers the consolidation of the concept of “court” as an etymological component of the right to a fair trial in le -gislation. The concept of the right to a fair trial is considered and analyzed. The concept of the right to trial was further developed. Itis determined that the «emphasis» in determining the right to a fair trial is not on the concept of law and not on the concept of a court,but precisely on the fact that the right to a trial should be considered through the prism of justice.Modern approaches to the definition of the concept of the right to a fair trial are characterized by their fragmentation and lack ofa unified approach to understanding it, and, as a consequence, to its application in judicial practice. The development of a unified comprehensiveapproach to understanding the right to fair trial is essential for its correct practical implementation. It seems that these unresolvedissues should underlie further research.

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