scholarly journals DESIGNATED PURPOSE OF NON-DELEGATED PROCEDURAL RIGHTS OF SUSPECTS AND ACCUSED (DEFENDANTS) WITHIN CRIMINAL PROCEEDINGS

2019 ◽  
Keyword(s):  
Legal Regulation ◽  
Criminal Proceedings ◽  
Defense Attorneys ◽  
Trial Report ◽  
Personal Rights ◽  
Procedural Code ◽  
The Law ◽  
The Right ◽  
Procedural Rights ◽  
To Receive

The author of the article emphasizes the lack of regulation of the issue about the scope of the inalienable personal procedural rights of suspects and accused (defendants) within national criminal procedural legislation. The implementation of these rights can not be entrusted to other persons, in particular, their defense attorneys, legal representatives. Such procedural rights are called undelegated, since they are exercised directly by suspects and accused (defendants). Special attention is paid to the fact that such a gap in the law can not negatively affect the legal regulation of the procedural status of both suspects, accused (defendants), and other participants in the criminal proceedings, to whom the legislator delegates the rights of the latter, namely: a defense attorney, a legal representative, persons in respect of whom it is supposed to use coercive measures of a medical or educational nature or there was the issue about their application, their legal representatives. It is stated that there are no studies in modern procedural science, containing a close to exhaustive list of undelegated procedural rights of suspects and accused (defendants). We set the goal to single out a group of inalienable personal rights of suspects and accused (defendants) within the totality of their procedural rights that are exercised solely by them and can not be delegated to other participants in the criminal proceedings. The group of the above procedural rights includes such rights of suspects, accused (defendants) as: to be clearly and timely informed about their rights provided by the Criminal Procedural Code, as well as to obtain their explanation; to waive the right to counsel at any time of criminal proceedings; do not say anything on the merits of suspicion, accusations against them or at any time refuse to answer questions; to give explanations, testimonies in terms of suspicion, accusations or to refuse at any time to provide them; to demand compensation for damage caused by unlawful decisions, actions or omission of the agency involved in carrying out operative and search activities, pre-trial investigation, of a prosecutor’s office or courts, in the manner prescribed by the law, as well as restoration of reputation in case if suspicion, charge have not been confirmed; to conclude a guilty plea agreement or a reconciliation agreement with the victim. The procedural right of a suspect to state his testimony during the interrogation with his own hand is undelegated one. As for an accused (defendant), he can not delegate other participants in the criminal proceedings to exercise his right to receive clarification on the procedure for the preparation and use of the pre-trial report, refuse to participate in the preparation of the pre-trial report; to participate in the preparation of the pre-trial report, to provide information to the representative of the probation authority for the preparation of such a report, to submit own comments and clarifications. The author has grounded the purpose of the indicated procedural rights of suspects and accused (defendants).

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.

scholarly journals Exemption of a joint stock company from the obligation to provide information to a shareholder.

2020 ◽  
Vol 4 (3) ◽  
pp. 103-122
Author(s):  
Andrey V. Gabov
Keyword(s):  
Information Exchange ◽  
Legal Regulation ◽  
Joint Stock Company ◽  
Federal Law ◽  
Stock Company ◽  
Research Issues ◽  
The Law ◽  
Right To Information ◽  
The Right ◽  
To Receive

The subject of research. Issues concerning the exercise of the right of shareholders to receive information are analyzed. The focus is on the issues of exemption of a joint-stock company from providing information. The development of the institute of the information provision to shareholders by joint stock companies are consistently analyzed. The main trends in the development of this institute are shown: gradually narrowing the ability of shareholders to exercise their right to receive information through such means as restriction, differentiation and exemption from providing information. Special emphasis is placed on the institute of exemption from providing information. The purpose of the article is to show the main drawbacks of the existing model of exemption of a joint-stock company from the obligation to provide information to shareholders and to formulate directions for the development of legislation. The author's main scientific hypothesis can be summarized as follows. The Federal law «On joint-stock companies» contained an initial defect in the description of information exchange between a shareholder and a joint-stock company. The shareholder's right to information was not described, in fact, it was «embedded» in the obligation of the joint-stock company to provide information. The subsequent changes to the law resulted in a narrowing of the rights of the shareholder, practically depriving the minority shareholder of the right to information. This defect has led to significant legal uncertainty when the joint-stock company exercises its right to be exempt from providing information. This uncertainty should be eliminated, because the regulatory goals for granting joint-stock companies an exemption from the obligation to provide information to shareholders (article 92.2 of the Federal law «On joint-stock companies» that counters sanctions pressure) are absolutely correct. At the same time, some of the grounds for exemption from the obligation to provide information to shareholders (article 92.1 of the Federal law «On joint-stock companies») must either be excluded or reformulated. The author notes the complete «break» between the current regulation and the ideas about information exchange between a shareholder and a joint-stock company, that initially inspired the creation of the law on joint-stock companies. The inclusion of sanctions in the law on joint - stock companies as a factor affecting the performance by a joint-stock company of its obligation to provide information to shareholders should be fully welcomed. However, the legal and technical design of the corresponding political and legal idea cannot be considered optimal. In this part, the legislation requires a complete renovation based on the principle of balancing constitutional values and the interests of the state, majority and minority shareholders. Description of research methodology. The research is based on a systematic analysis, as well as the interpretation of Russian legislation and doctrine. Information about the main scientific results. The development of legislation on joint-stock companies in terms of providing information is shown. It is shown that if legislator taking into account sanctions when regulating the obligation of a joint-stock company to provide information, the goals of legislative regulation fully comply with constitutional principles, but specific legal decisions cannot be considered optimal. Conclusions. It is concluded that development of legislation on joint-stock companies has led to a significant restriction of the ability of shareholders to receive information. The author formulated the priority of regulatory goals in countering sanctions pressure and offered specific directions for improving legal regulation.

Theories of human rights and its history

2021 ◽  
Vol 70 (09) ◽  
pp. 58-62
Author(s):  
Nigar Hafiz qızı Məmmədova ◽  
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
The State ◽  
Right To Education ◽  
Personal Rights ◽  
Criminal Charges ◽  
The Law ◽  
The Right ◽  
To Receive

Human rights are the opportunities that people have from birth to death. Regardless of race, nationality, gender, every person has certain rights. These rights must be applied regardless of where and in what position people live. No one has the right to receive these rights from people. But there are also some restrictive cases in this area. If a person violates the law or acts contrary to the national security interests of the state, then it is inevitable to make decisions within the framework required by the law. Human rights are norms that seek to protect people from serious political, legal and social exploitation. The most important of these rights are freedom of religion, the right to a fair trial on criminal charges, the right not to be tortured and the right to education. The philosophy of human rights is understood to answer questions about the existence, essence, validity, justification and legal status of human rights. Human rights are relations that determine the place and role of a person and a citizen in society and the state, the essence of the realization of a person's own capabilities and limits established by the state, as well as ways of ensuring and protecting. At the same time, the legal status of a person includes socio-economic, civil, political and personal rights and freedoms. Key words:human rights,ombudsman,social exploitation,occupied lands,refugees

scholarly journals RETURN OF COURT FEE IN CONNECTION WITH LEAVING THE APPLICATION WITHOUT CONSIDERATION IN THE CIVIL PROCEEDINGS OF UKRAINE

2021 ◽  
Vol 12 (2) ◽  
pp. 46-56
Author(s):  
Ulyana Vorobel ◽  
Keyword(s):  
Legal Regulation ◽  
Access To Justice ◽  
Civil Case ◽  
Administrative Procedure ◽  
Civil Proceedings ◽  
Procedural Code ◽  
The Law ◽  
The Individual ◽  
The Right ◽  
Judicial Protection

The article researches the peculiarities of return of court fees in connection with the completion of a civil case without a court judgement in the form of leaving the application without consideration of legal regulation, analyzes the issues of this institute in judicial practice, and provides suggestions for improving its legal regulation. Attention has been drawn to the fact that since the court fee is one of the basic categories of access to justice, and therefore an element of the right of a person to judicial protection enjoyment, and the need to ensure the balance of interests of the state and the individual in regulating the legal basis of court fees payment, the grounds for the application of this procedural institute must be exhaustive and may not be subject to extended interpretation. Based on the comparative analysis of the legal regulation of the return of court fees institute, and in particular the legislative regulation of such grounds for its application as completion of civil proceedings without a court judgement in the form of leaving the application without consideration, it was found a legislative tendency to reduce the list of the very grounds for leaving the application without consideration, with the use of which the return of court fees is allowed. Examples of jurisprudence in the field of application of each ground of leaving the application without consideration through the prism of the institute of return of court fees have been given. Attention has been drawn to the fact that although in the process of amending the civil procedural legislation, which took place with the adoption of the Law of Ukraine "On Amendments to the Commercial Procedural Code of Ukraine, Civil Procedural Code of Ukraine, Code of Administrative Procedure of Ukraine and other legislative acts", such grounds as leaving by the plaintiff (his/her representative) of the courtroom was removed from the "general list" of grounds for leaving the application without consideration under Part 1 of Art. 257 CPC of Ukraine, it still exists, because it was left by the legislator in the article governing the consequences of non-appearance at the hearing of the parties (Part 6 of Art. 223 CPC of Ukraine). It has been constituted that item 4 of Part 1 Art. 7 of the Law of Ukraine "On Court Fees" provides the opportunity to return the court fee in case of completion of a civil case without a court judgement in the form of leaving the application without consideration on all grounds except those that constitute exceptions by law, and in particular the grounds established by items 3, 5 and 9 of Part 1 Art. 257 CPC of Ukraine, as well as Part 6 of Art. 223 CPC of Ukraine.

scholarly journals Public Prosecutor’s Inspection as a Guarantee of Compliance with the Law during Initiation of Criminal Proceedings

2017 ◽  
pp. 41-45
Keyword(s):  
Significant Role ◽  
Russian Federation ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Primary Method ◽  
Criminal Proceedings ◽  
Procedural Code ◽  
The Russian Federation ◽  
The Law ◽  
Compliance With The Law

The author states that the stage of initiation of criminal proceedings must serve as a barrier for unjustified criminal prosecution. It means that a significant role on this stage belongs to prosecutors. The primary method of enforcing the law is prosecutors’ inspection. However, a lack of appropriate legal regulation of prosecutors’ supervision in the Russian legislation on criminal procedure prevents effective application of prosecutors’ powers. A lack of systematic regulation of prosecutors’ inspection, legislative gaps and collisions result in significant inefficiency of the prosecutors’ supervision. The article sets out the results of the surveys conducted by the author among the employees of prosecutor’s offices. The majority of respondents found it necessary to define the «prosecutor’s inspection on compliance with law» in the Criminal Procedural Code of the Russian Federation. Also it is essential that the reasons, motives and limits of prosecutors’ inspection in the stage of initiation of criminal proceedings are defined in the legislation.

PROBLEM ASPECTS OF THE IMPLEMENTATION OF CRIMINAL PROCEDURAL NORMS OF PROTECTION OF THE VICTIMS FROM CRIME

2020 ◽  
pp. 72-76
Author(s):  
Яна Валерьевна Самиулина
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Rights ◽  
Criminal Proceedings ◽  
Effective Mechanism ◽  
The Russian Federation ◽  
The Individual ◽  
The Right ◽  
To Receive ◽  
Selection Of

В настоящей статье предпринята попытка исследовать отдельные проблемные аспекты института потерпевшего в российском уголовном процессе. В этих целях подвергнуты анализу правовые нормы, регламентирующие его процессуальный статус. Раскрываются отдельные пробелы уголовно-процессуального законодательства в сфере защиты законных прав и интересов потерпевшего. Автор акцентирует внимание на том, что совершенствование уголовно-процессуального законодательства в части расширения правомочий потерпевшего по отстаиванию своих нарушенных преступлением прав следует продолжить. На основании проведенного исследования действующего законодательства в части регламентации прав потерпевшего от преступления предлагается расширить перечень получаемых им копий постановлений, указанных в п. 13 ч. 2 ст. 42 УПК РФ. Автор предлагает включить в перечень указанной законодательной нормы право получения потерпевшим копии постановления об избрании конкретного вида меры пресечения, избранного в отношении подозреваемого (обвиняемого). Для создания действенного механизма защиты интересов потерпевших от преступления юридических лиц предлагаем ч. 9 ст. 42 УПК РФ изложить в следующей редакции: «в случае признания потерпевшим юридического лица его процессуальное право в уголовном процессе осуществляет представляющий его профессиональный адвокат». This article attempts to investigate certain problematic aspects of the institution of the victim in the Russian criminal process. For this purpose, analyzed the individual norms governing his procedural status. Separate gaps of the criminal procedure legislation in the sphere of protection of the legal rights and interests of the victim are disclosed. The author emphasizes that the improvement of the criminal procedure legislation in terms of the extension of the victim’s authority to defend his rights violated by the crime should be continued. On the basis of the study of the current legislation regarding the regulation of the rights of the victim of a crime, it is proposed to expand the list of decisions received by him, referred to in paragraph 13, part 2 of article 42 Code of Criminal Procedure. The author proposes to include in the list of the indicated legislative norm the right to receive the victim a copy of the decision on the selection of a specific type of preventive measure, selected in relation to the suspect (accused). To create an effective mechanism for protecting the interests of legal entities victims of a crime, we offer part 9 of art. 42 of the Code of Criminal Procedure of the Russian Federation shall be reworded as follows: «if a legal entity is recognized as a victim, his procedural right in criminal proceedings is exercised by the professional lawyer representing him».

scholarly journals ADMINISTRATIVE AND LEGAL REGULATION OF THE FUNCTIONING OF JUVENILE JUSTICE IN THE ENSURING OF CHILD RIGHTS

2020 ◽  
Vol 33 (20) ◽  
pp. 77-81
Author(s):  
N. Yu. Veselov
Keyword(s):  
Juvenile Justice ◽  
Social Relations ◽  
Legal Protection ◽  
Legal Regulation ◽  
Main Body ◽  
Criminal Proceedings ◽  
Rights Of The Child ◽  
The Law ◽  
Keywords Child ◽  
Legal Mechanism

Problem setting. Legal regulation is an integral component of the administrative and legal mechanism for ensuring the functioning of juvenile justice, through which the state regulates relevant social relations through law and the totality of legal means. Recent research and publications analysis. The following Ukrainian scientists tried to conceptually solve these issues: Ya. Kvitka, V. Levchenko, O. Maksimenko, N. Lesko, I. Ishchenko, O. Navrotsky. Paper objective. The purpose of the study is to obtain scientific and applied results on the presentation of options for legislative support of juvenile justice in other countries and to formulate proposals for improving the administrative and legal regulation of juvenile justice in Ukraine. Paper main body. The analysis of the legislation of other countries indicates that there are several conditional models of legal regulation of the peculiarities of ensuring the rights of the child in the exercise of juvenile justice. This division is based on the following criteria, such as the existence of a law in the country that establishes the general principles of the judicial and extrajudicial, administrative and legal protection of children’s rights; the existence of a separate law on juvenile justice, which codifies all the rules of law that determine the peculiarities of criminal proceedings against children; the existence of a separate law on juvenile justice, but which establishes the general principles of the operation of juvenile justice, public administration in this area, prevention of offenses, etc. Conclusions of the research. The expediency of adopting the Law on Juvenile Justice in Ukraine, which, in its content, will mainly be an act of administrative and legal nature, the Law «On Ensuring the Rights of the Child in Ukraine», the Law «On the Ombudsman of Ukraine» is substantiated. Keywords: child, minor, legal regulation, administrative law, juvenile justice, justice.

scholarly journals Legal status of the company's share in own authorized capital under the Law of Ukraine “On limited and additional liability companies”: problems of legal regulation

2021 ◽  
Vol 11/1 (-) ◽  
pp. 31-36
Author(s):  
Volodymyr TSIUPRYK
Keyword(s):  
Legal Status ◽  
Limited Liability ◽  
General Meeting ◽  
Legal Regulation ◽  
Legal Nature ◽  
The Law ◽  
The Right ◽  
A Company ◽  
Authorized Capital ◽  
A Share

Introduction. Nowadays, the issue of determining the legal status of the company's share in the own authorized capital of LLC and TDV has become quite acute, as evidenced by the adoption on July 28, 2021 by the Commercial Court of Cassation in Case № 904/1112/20, in which the Court established a new approach legal nature of such a phenomenon and expressed his own position on the understanding of the legislation concerning the legal status of the share of LLC and TDV in its own authorized capital. Given that a limited liability company is the most popular type of legal entity that is chosen to conduct business in Ukraine, the analysis of this issue is relevant. Some scientific value for the development of the transfer of the participant's share are the works of individual authors devoted to the study of the legal nature of the share in the authorized capital but the problems arising around the legal status of the company. in their own authorized capital in these works were only mentioned along with others, but did not receive a detailed separate study. The purpose of the paper is to analyze the normative regulation of the legal status of the company's share in the own authorized capital of LLCs and ALCs, identification of shortcomings in their legal regulation and implementation, as well as the search for ways to eliminate them. Results. One of the most relevant decisions concerning the subject of this article is the Judgment of the Commercial Court of Cassation in case № 904/1112/20 of July 28, 2021. The court in this case found that the votes attributable to the share belonging to the company itself are not taken into account when determining the results of voting at the general meeting of participants on any issues. However, Ukrainian legislation does not contain any direct norms that would prohibit the exercise of the right to manage a company in relation to itself on the basis of a share in its own authorized capital. That is why the company cannot be a participant in relation to itself, although they seem logical, but do not have sufficient regulatory support, and therefore do not allow to be firmly convinced of their compliance with the law. In view of this, it can be stated that there is a significant gap in the national legislation on this issue, which, in our opinion, the Court failed to “fill” with this decision in the case. Conclusion. In the Ukrainian legislation at the level of the Law of Ukraine “On Limited and Additional Liability Companies” Article 25 defines the possibility for a company to acquire a share in its own authorized capital. However, the regulation of the legal status of such a share cannot be called sufficient, due to which in practice there are certain problems in the implementation of the provisions of the legislation concerning the share of the company in its own authorized capital. The solution of these legal problems is necessary to ensure the highest quality and clarity of the law, as well as to form case law with common approaches to understanding a single rule.

scholarly journals Issues of Protection of Personal Rights After the Death of the Victim in Civil Law

Law and World ◽  
2021 ◽  
Vol 7 (5) ◽  
pp. 124-144
Keyword(s):  
Human Rights ◽  
Civil Law ◽  
Property Damage ◽  
Personal Rights ◽  
Moral Damage ◽  
The Law ◽  
The Right

The protection of personal human rights is especially important after the death of the victim. First of all, it is necessary to determine what is meant by the personal rights of a person, what personal rights can be protected after the death of the victim, in order to determine what is meant by the protection of the personal rights of the deceased. Then it is necessary to find out what the characteristics of a person are, by whom, how and in what form these rights are protected, and what harm can be caused by the violation of personal rights. It is true that the violation of personal rights is not allowed by law, but, nevertheless, there are many facts around us when the personal rights of the deceased and the living are violated. It is also desirable to protect personal rights acquired at birth from being violated by others both during the life and after the death of the victim. It is true that a person with personal rights protects his life and can claim compensation for property and / or non-property damage, but after the death of the victim, the law prohibits relatives or friends of the deceased from claiming compensation. for moral damage in violation of these rights. However, if a person was rehabilitated after his / her death, but the unlawful condemnation of the victim or other illegal legal actions damaged both the name and reputation of the heir, it is recommended to give the victim’s heir the right to claim compensation for the damage directly caused to him.

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