scholarly journals CONCERNING DETENTION OF PERSONS IN CRIMINAL PROCEEDINGS: THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
Keyword(s):  
Human Rights ◽  
Preventive Measure ◽  
Criminal Proceedings ◽  
Human Right ◽  
Criminal Offense ◽  
Judicial Control ◽  
European Court ◽  
Domestic Legislation ◽  
Definition Of ◽  
The Right

ANNOTATION: the article outlines the problematic issues of the institution of detention, clarifies its relationship with the constitutional human right to liberty and security of a person, reviews the practice of the European Court of Human Rights regarding detention, focuses on the violation of the principle of legal certainty in the current procedural legislation. It is fundamentally important in the study to determine the subjective composition of the persons who are detaining, in particular, the attention is focused on their procedural status, a position is considered regarding the limited terms of reference of authorized officials, in terms of the right to detention solely for committing a crime for which a penalty of imprisonment is provided, unlike persons holding legal detention who are authorized to detain a person in the commission of a criminal offense regardless of the severity. The article deals with the manipulation of procedural rules, which correlates with the so-called hidden purpose and occurs by substituting administrative detention in the understanding of criminal procedural legislation and is the basis for violation of human rights. The concept of immediate judicial control is considered and supported, which provides for an obligation on an authorized official to deliver a detained person directly to a court to resolve the issue of the legality of detention, bypassing the pre-trial investigation authorities, where the detained person is still long (60 hours, since this period should not be exceeded to deliver the detainee to the investigating judge, where a decision is made on the selection of a preventive measure against him), pressure may be applied. It is indicated that there is no clear and comprehensive definition of the category «authorized official» in the current Criminal Procedure Code, which leads to the problem of a which leads to the problem of a narrowed or broader interpretation of this concept. Proposals for its normative consolidation are presented. The work is fundamentally different in that specific problems became the basis for the study of domestic legislation, which were subsequently supported by the decisions of the ECHR, but today they remain in the current legislation anyway. This is a comprehensive approach to the issue of legislative imperfections, and it focuses the legislator’s attention on them.

scholarly journals ON THE ROLE OF THE STATE IN ENSURING EFFECTIVE DEFENSE IN CRIMINAL PROCEEDINGS FOR THE PURPOSES OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
pp. 158-163
Author(s):  
M. H. Motoryhina
Keyword(s):  
Human Rights ◽  
The State ◽  
Special Role ◽  
Criminal Proceedings ◽  
Human Right ◽  
Defense Counsel ◽  
Legal Standards ◽  
Role Of The State ◽  
European Court ◽  
The Right

The article presents the issues on ensuring effective defense in criminal proceedings. Analysis of international legal documents, generalization of the practice of the European Court of Human Rights give grounds to divide international legal standards, that have been formed to facilitate the enforcement of the right to defense, into the following groups: 1) standards designed to facilitate the effectiveness of the defense by the accused him- or herself; 2) standards facilitating effective defense by the defense counsel; 3) standards, the adoption of which contributes to the effective defense maintained by the defense (when the defense is conducted jointly by the accused and the defense counsel) 4) standards that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense. The latter group of standards is important among others because the conduct of defense seems impossible without imposing certain requirements on the state and its bodies, and fixed guarantees of effective defense will turn into a declaration. The study of the case law of the European Court of Human Rights on maintaining effective defense in criminal proceedings allows us to state the lack of unity in its legal positions, since the issue of the effectiveness of ensuring the human right to defense in criminal proceedings depends on the specific circumstances of the case. The court notes that, on the one hand, the state can only intervene in the activities of defense counsel within the limits of public interests, given the independent nature of the legal profession. On the other hand, it cannot stand aside in the event of the discovery of violations of the standards for the conduct of defense in criminal proceedings, which assigns it a special role in maintaining effective defense for the suspect, the accused in criminal proceedings. Based on the analysis of the decisions of the European Court of Human Rights, standards are identified that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense: 1) the obligation of the state to conduct real (not illusionary or formal) defense for the suspect, the accused, since the appointment of a defense counsel does not ensure maintaining effective legal services; 2) the obligation to provide the defense team with the time and opportunity to conduct effective defense.

scholarly journals Proportionality of Interference with the Right to Peaceful Enjoyment of Property During the Seizure of Property in Criminal Proceedings in Ukraine

2020 ◽  
pp. 246-264
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Case Law ◽  
Criminal Proceedings ◽  
Human Right ◽  
European Court ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right ◽  
International Instruments

This article considers relevant science and law enforcement practice issues of state intervention’s legitimacy in the right to peaceful property enjoyment in criminal proceedings during property seizure. These issues are considered everywhere through international instruments’ prism, particularly the Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms, Article 1 of Protocol No. 1 to the Convention and the ECtHR case-law. Based on the ECtHR case law, the authors analyze the conditions under which the state may interfere in exercising a protected right, often called criteria for intervention. Based on the fact restrictions are permissible if they are prescribed by law, necessary in a democratic society and pursue a legitimate goal, the authors consider these conditions through the lens of national law enforcement practices of Ukrainian criminal proceedings. The authors emphasize the relevance of these criteria of the legality of individual rights restriction in criminal proceedings since when applying for property seizure, the Ukrainian legislator requires investigating judges to consider reasonableness and restriction proportionality of property rights, and apply the least onerous seizure method, not suspend or excessively restrict a person’s lawful business activities, or other consequences significantly affecting others’ interests. Due to the amendment of the Ukrainian criminal procedure legislation, the practice is slowly approaching the European Court of Human Rights practice’s European standards. However, proper systematic, logical and consistent court decisions limiting the human right to peaceful property possession remain critical. Based on the study, the authors offer a model of logical reasoning, following which the investigating judges can correctly formulate the motivational part of the decision to satisfy or deny the request for property seizure. Particular attention is paid to the reasonableness, suitability, necessity, and proportionality of the means of restricting the right to peaceful enjoyment of the property and describes each of them.

scholarly journals DECISION OF THE EUROPEAN COURT ON HUMAN RIGHTS AS MANDATORY ELEMENT OF JUDICIAL CONTROLIN CRIMINAL PROCEEDING

2019 ◽  
pp. 284-294
Author(s):  
O. Plakhotnik
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
European Court ◽  
The Supreme Court ◽  
Draw Conclusion ◽  
Definition Of ◽  
Grand Chamber ◽  
And Function

The purpose of this article is opening of necessity of application of ECHR practice in the decisions of the investigating judge to increase the value of judicial control over the observance of rights, freedoms and interests of individuals in criminal proceedings. The article includes analysis of the current legislation on the definition of judicial review at the pre-trial investigation stage. Judicial control is revealed through the powers of the investigating judge in criminal proceedings. There were examined opinions of scientists in relation to determinations of judicial control and function of investigation judge on the stage of pre-trial investigation. It is possible to draw conclusion from the analysis of the last scientific researches, that expansion of scopes of judicial control in a criminal production, it is a next step to rethink the value of judicial control in criminal proceedings. Decisions taken by the investigating judge should be based on the principles of legality and rule of law. The conclusion about the need to study the application of ECHR investigating judges to strengthen the role of the court at the stage of pre-trial investigation and reduction of procedural errors that can become new ECHR judgments against Ukraine. Judicial statistics and decision of consequence judges content are analysed with the use of practice of ECHR for 2018 and beginning 2019 years. Out of analysis of judicial statistics a conclusion is made that tendency on application of practice of ECHR in 2019 is slowly, but grows. The necessity of wide use of practice of ECHR courts is examined during realization of judicial control in a criminal proceedings. The estimation is given to expansion of the list of proceedings that must be carried out with the permission of the investigating judge. It is analyzed the shortcomings of the application of the ECHR practice courts and disadvantages such as the decision by the investigating judge ruling, not under criminal procedural rules. The practice of the Grand Chamber of the Supreme Court is analysed. It is given the risks of the work of the investigating judge, who can relate to undue interference in the work of law enforcement. It is noted the decision of the ECHR “Volokhi against Ukraine” dated November 2, 2006. It is concluded that the judicial review of the investigative actions should also include the application of the ECHR practice, and application of ECHR in the activities of the investigating judge at the pre-trial investigation stage is a prerequisite for respect for the rule rights in criminal proceedings and the strategic task for Ukraine. Key words: European Court of Human Rights, court control, criminal proceedings.

scholarly journals CONTENTS OF THE RIGHT TO CITIZENSHIP: CERTAIN ASPECTS

2021 ◽  
Vol 13 (3) ◽  
pp. 20-27
Author(s):  
Halyna Savchyn ◽  
◽  
Vitalina Borovikova ◽  
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Legal Regulation ◽  
European Convention ◽  
Human Right ◽  
Protection Measure ◽  
European Court ◽  
Definition Of ◽  
The Right ◽  
National Legislature

The article is devoted to the research of current tendencies changes of the content of the right of citizenship under the influence of general integration processes and practices of European Court of human rights. The content of the right of citizenship is subjected under new tendencies assessment taking place in the process of realization of the Association Treaty between Ukraine and European Union. Analyzing the notion of citizenship in the context of Constitution, national legislature, European convention of citizenship differentiation of formal and legal status of an individual, legal relations between an individual and a state, combination of rights and duties according to the current tendencies of the conception of citizenship evolution are carried out. It’s indicated in the work that according to the current realization of the content of the right of citizenship it’s appropriate to maintain practical intention of regulation of legal nature and essence of absent nationality, improving of contextual and legislative principles concerning citizenship and legal identity of an individual in Ukraine as one of the basic constitutional human right. The right of citizenship, as institution of constitutional law, in recent years was proved as subjective right, changing owing to interpretation of citizenship by European Court of human rights within conventional rights and freedoms. At the same time a state, that is the subject of the definition of citizenship policy, regulates all spectrum of issues, connected with citizenship and derivative from above mentioned institution by national legislature. The sphere of citizenship minimally influenced by the norms of international law, that refers legal regulation of citizenship to the internal affairs of a state. A state owns the possibilities to determine a circle of citizens, correcting grounds of citizenship admission, setting restriction for citizens. The right of citizenship is a protection measure of possible behavior directing for the gratification of human interests, appeared in connection with acquirement, changing and outgoing of citizenship. The effectiveness of guarantees of the realization of right of citizenship in Ukraine consists of making legal guarantees that are contained in the norms of laws and depends on logic and systematic expediency, accurate focus and certainty relating specific subject and appropriate social relationship.

scholarly journals Speed Traps and the Right of Silence

2011 ◽  
Vol 9 (1) ◽  
pp. 165-176 ◽  
Author(s):  
Dennis Kurzon
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Regulatory Regime ◽  
Human Right ◽  
Written Texts ◽  
European Court ◽  
Statutory Requirement ◽  
The Right ◽  
Right Of Silence

In two English cases which reached the European Court of Human Rights in the mid-2000s, it was argued that the statutory requirement on the part of a motorist who has been caught speeding to give the police information concerning the identity of the driver of the car at the time of the offence is a violation of the right of silence by which a person should not be put into a position that s/he incriminates him/herself. The right of silence is one of the conventional interpretations of Article 6 of the European Convention on Human Rights. As well as a study on the right of silence with regard to written texts, this paper also investigates the two cases in terms of icons and indices: a text may be indexical of a basic human right, and then may become an icon of that right. The European Court of Human Rights considers the particular section of the relevant statute as an icon of the "regulatory regime".

scholarly journals Collective Action Right as a Basic Human Right

2017 ◽  
Vol 6 (s2) ◽  
pp. 9-17
Author(s):  
Pir Ali Kaya ◽  
Ceyhun Güler
Keyword(s):  
Human Rights ◽  
Collective Action ◽  
Resistance Mechanism ◽  
European Convention ◽  
Social Rights ◽  
Human Right ◽  
Political Field ◽  
European Court ◽  
Social Interests ◽  
The Right

Abstract According to The European Social Charter, the European Convention on Human Rights, the ILO Conventions, the decisions of the European Court of Human Rights, the decisions of the European Social Rights Committee and the ILO supervisory bodies, the right to collective action is a democratic right that aims to protect and correct the economic and social interests of workers in the workplace or in another place appropriate for the purpose of action. The above-mentioned institutions accept the right to collective action as a fundamental human right. According to the decisions of the European Court of Human Rights, the right to collective action is regarded as a democratic right, including strike. In particular, the right to collective action is being used as a resistance mechanism against new working relations, which are imposed on working conditions, right to work and the right to organize. However, the tendency of this right to political field, leads to some debate about the legality of the right to collective action. In this context, In the decision of the European Court of Human Rights, the ILO's supervisory bodies and the European Committee on Social Rights, it is emphasized that collective action rights should be a basic human right. In this study, the legal basis of the right to collective action will be discussed in accordance with the decisions and requirements of the European Court of Human Rights and the decisions of the ILO supervisory bodies.

Extradition Between European and African Countries: Overcoming the Challenges

2021 ◽  
Vol 11 (3) ◽  
pp. 288-319
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Court ◽  
European Countries ◽  
Criminal Proceedings ◽  
African Countries ◽  
European Court ◽  
Real Risk ◽  
Civil Proceedings ◽  
The Right

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

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.

O’Keeffe v. Ireland: overview and analysis

2017 ◽  
Author(s):  
James Gallen
Keyword(s):  
Human Rights ◽  
Sexual Abuse ◽  
Tort Law ◽  
European Convention ◽  
Human Right ◽  
Vicarious Liability ◽  
European Court ◽  
Effective Remedy ◽  
The Right ◽  
The Impact

James Gallen’s chapter reviews the case and the contributions of Adrian Hardiman and Conor O’Mahony to this book. Gallen argues that their discussion reveals the tension between the principle of subsidiarity and the right to effective protection and an effective remedy in the European Convention on Human Rights. The chapter argues that the case of O’Keeffe v Ireland also raises concerns about the European Court of Human Right methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in tort. A further section examines the impact of the decision for victims of child sexual abuse and identifies that the decision provides the potential for an alternative remedy to the challenging use of vicarious liability in Irish tort law.

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