scholarly journals JUSTIFICATION OF SUSPICION DURING THE APPLICATION OF CRIMINAL PROCEEDING MEASURES

2021 ◽  
Vol 75 (2) ◽  
pp. 169-174
Author(s):  
Maryna Savchuk ◽  
◽  
Artem Shapar ◽  
Keyword(s):  
Human Rights ◽  
Crucial Role ◽  
Scientific Article ◽  
Precautionary Measure ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Proceeding ◽  
European Court ◽  
Criminal Procedure Law ◽  
Precautionary Measures

The scientific article contains information on the study of the concept of «reasonableness of suspicion», the study by the investigating judge of the evidence that substantiates the suspicion during the application of precautionary measures. The article analyzes scientific works on certain topics, decisions of the European Court of Human Rights and national legislation. The main problem is identified, which is related to the fact that the investigating judge in most cases, when considering a request for a measure of restraint, ignores the need to examine the evidence related to the examination of suspicion. The result of the above material is the fact that the notification of a person of suspicion can in no way justify the application of measures to ensure criminal proceedings. An important procedural step, which plays a crucial role in the pre-trial investigation stage, is the notification of a person of suspicion. Suspicion is presented to a person only on the basis of proper, admissible, sufficient and reliable evidence, it allows to suspect a person of committing a criminal offense. The pre-trial investigation body does not always establish all sufficient grounds for such a suspicion, so the question arises as to its validity. After the notification of suspicion, it is possible to apply one of the measures to ensure criminal proceedings, namely: a precautionary measure. The norms of the criminal procedure law oblige the court, when choosing a measure of restraint, to take into account the data underlying such a decision. The presence of a notice of suspicion is not an identical notion of the validity of the suspicion. In order to substantiate the suspicion, the parties to the criminal proceedings are obliged to provide the investigating judge with evidence of the circumstances to which they refer, which in turn entails the duty of the investigating judge, the court to verify and evaluate the evidence. The presence of risks does not justify the suspicion. The need to comply with the rule on the verification of «reasonableness of suspicion» is realized by establishing criteria that should be investigated and established by the investigating judge during the consideration of motions for the application of measures to ensure criminal proceedings.

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

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

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

scholarly journals On the New Rules Protecting Attorney-Client Privilege in Criminal Procedure in Russia

2018 ◽  
pp. 15-25
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Criminal Procedure ◽  
Point Of View ◽  
Federal Law ◽  
Criminal Proceedings ◽  
European Court ◽  
Procedural Code ◽  
Criminal Procedure Law ◽  
Further Development

In the article, an attempt is made to consider the recently introduced additional criminal procedural guarantees of the protection of attorney-client privilege from the point of view of the system of the Russian criminal procedural legislation and in the light of the practice of the European Court of Human Rights. The author comes to the conclusion that additional guarantees of protection of attorney-client privilege introduced by the Federal law № 73-FZ contribute to the further development of the adversarial principles of the Russian criminal proceedings. At the same time, some innovations seem to be controversial. The supplement introduced to part 2 of the Article 75 of the Russian Criminal Procedural Code (CPC) concerning inadmissibility of using advocatory items and documents as evidence come into conflct with the Article 17 of the CPC and do not constitute the whole legal system with other provisions of the criminal procedure law. The rules of part 3 of the Article 450.1 of the CPC, according to the author, are incompatible with part 5 of the Article 165 of the CPC regulating urgent procedures of investigative actions requiring judicial permission, as well as part 2 of the Article 450.1 of the CPC. The author makes a range of proposals to improve the legislation and its application.

scholarly journals The value of the ECtHR practice for making procedural decisions when conducting covert investigative (search) actions

2020 ◽  
pp. 158-169
Author(s):  
Olena Bilichak
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
European Convention ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Procedural Decisions

Based on the analysis of the provisions of domestic law, the practice of pre-trial investigation and court, the scientific article develops recommendations on how to take into account the decisions of the European Court of Human Rights in covert investigative (search) actions and use the results obtained in evidence. It is established that the current legislation provides for the possibility of conducting pre-trial investigation of serious and especially serious crimes of covert investigative (investigative) actions, which in most cases is related to intrusion into privacy and correspondence of a person protected by Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, knowledge of the content and consideration of the case law of the ECtHR in making procedural decisions on the conduct of pre-trial investigation by certain NSDCs and the use of the results obtained by them in court evidence is a strong guarantee of the legality of court decisions. When making certain procedural decisions regarding the materials of covert investigative (investigative) actions at the pre-trial and court stages of criminal proceedings, it should be taken into account that the right to secrecy of correspondence guaranteed by Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ensures the inviolability of all forms of communication between persons, both by means of communication and without them. All covert investigative (search) actions should be carried out only in accordance with the law. Audio and video materials submitted by private individuals and produced «with the help» of law enforcement officers cannot be considered admissible evidence. Carrying out NSRD to control the commission of a crime (Article 271 of the CPC of Ukraine) should exclude the possibility of provocation by the pre-trial investigation authorities. If their intelligence staff was involved in such a special operation, in the initial stages of its conduct the conduct of the pre-trial investigation body should be exclusively passive and limited to observation. In any case, the evidence in the criminal proceedings in which the relevant special operation took place should not be based only on its materials, and the burden of proof rests with the prosecution. Key words: criminal proceedings, European Court of Human Rights, covert investigative actions.

The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants

2018 ◽  
Author(s):  
PHPHMC van Kempen
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Procedure Law ◽  
Eu Directives ◽  
The Right

Mainly as a result of the nature of criminal procedure in the Netherlands, which until recently could be characterized as a modern moderate inquisitorial system, the fitness-to- plead principle has been rather underdeveloped here. This chapter analyses how the European Convention on Human Rights, EU Directives, and the increase of adversarial elements in an originally inquisitorial criminal justice system are now catalysing the fitness-to-plead principle. Fourteen recommendations will be provided for what is considered a necessary reinforcement of the legal position of defendants who possess insufficient abilities to adequately participate during criminal proceedings—both preliminary investigation and trial—or who are even unfit to stand trial. The recommendations are based on a detailed analyses of criminal procedure law of the Netherlands, case law of the European Court of Human Rights, and several EU Directives that are relevant for the fitness to plead principle..

scholarly journals Jurisprudence of the European court of human rights in the choice of precautionary measures in criminal proceedings: legal realities and perspectives

2020 ◽  
Vol 38 (Especial II) ◽  
pp. 443-458
Author(s):  
Svitlana Romantsova ◽  
Igor Zinkovskyy ◽  
Ruslan Komisarchuk ◽  
Olha Balatska ◽  
Lesia Strelbitska
Keyword(s):  
Human Rights ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Method ◽  
European Court ◽  
The Subject ◽  
Precautionary Measures ◽  
The Right ◽  
Method Analysis ◽  
Selection Of

The article deals with the problems of application of the decisions of the European Court of Human Rights (ECHR) in the selection of precautionary measures in criminal cases in accordance with Ukrainian law. Since the procedural legislation of Ukraine is currently not perfect in the framework of the establishment and regulation of the application of precautionary measures, the decisions of the ECHR serve as an indispensable regulator of this issue. The objective of the work is to study the peculiarities of the application of the jurisprudence of the European Court of Human Rights in the selection of precautionary measures in criminal proceedings. The subject of the investigation is the jurisprudence of the ECHR in the context of the choice of precautionary measures in the criminal process. The research methodology included and combined the dialectical method, logical and legal method, analysis, synthesis. By way of conclusion, the study shows that the practice of the ECHR is mandatory to take into account not only the courts but also the investigators and prosecutors, who legally have the right to request the court to apply such precautionary measures.

scholarly journals REASONABLE TIME OF CRIMINAL PROCEEDINGS: CRIMINALISTIC CHARACTER

2020 ◽  
Vol 6 (4) ◽  
pp. 101-111
Author(s):  
K. A. Korsakov ◽  
V. V. Konin ◽  
E. V. Sidorenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

In the Russian legal system, the understanding that justice should be not only timely, but also fast enough has matured for a long time. The delay in the investigation of a criminal case and its consideration by the court allows the guilty to avoid the deserved punishment in some cases, which calls into question the principle of inevitability of punishment on the one hand, and hinders the right to access justice, on the other hand. The term reasonable time for legal proceedings has emerged as a requirement of international law to be tried without undue delay. The right to a reasonable period of criminal proceedings is regulated by Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but this norm is not fully implemented to date, as evidenced by the decisions of the European court of human rights issued on complaints of violation by the Russian Federation of the provisions of the European Convention for the protection of human rights and fundamental freedoms. At the same time, the available research considers the requirement of reasonable terms in criminal proceedings from the standpoint of criminal procedure law, which is not fully justified. The article attempts to consider the problematic issues of reasonable terms of criminal proceedings from the perspective of criminology, as a science that has incorporated theoretical and practical issues of fighting crime, as well as the problems of criminalistic criteria in criminal proceedings.

scholarly journals THE USE OF SPECIAL KNOWLEDGE IN CRIMINAL PROCEEDINGS IN THE CONTEXT OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2021 ◽  
pp. 414-425
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Negative Consequences ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Knowledge Based ◽  
European Court ◽  
Criminal Offenses ◽  
Procedural Code ◽  
Special Knowledge

The article discusses the concept, types and essence of special knowledge in criminal proceedings, as well as their evidentiary value in pre-trial investigation and trial. It is analyzed the practice of the European Court of Human Rights on the appointment of a forensic examination. The objectives of criminal proceedings are to ensure a prompt, complete and impartial investigation and trial so that everyone who has committed a criminal offense is prosecuted to the best of his/her own fault. In addition, an innocent person is accused or convicted, no person is exposed, unjustified procedural coercion, and that due process is applied to each participant in criminal proceedings. It is emphasized that among the ways of collecting evidence by the parties to criminal proceedings listed in the Criminal Procedural Code of Ukraine, there are those that require the use of special knowledge, namely: requesting and obtaining expert conclusions and carrying out other procedural actions with the participation of a specialist. At the same time, the expert opinion is an independent source of evidence. Special knowledge in criminal proceedings is used in the investigation of any criminal offenses, but the Criminal Procedure Code of Ukraine does not define its concept, despite the fact that many scientific works have been devoted to the issue. Unfortunately, the legislator has not yet reflected the conclusions of scientists about the essence of special knowledge. It is considered examples of practice in the appointment and conduct of forensic examinations and the fact of violation of the law, when applying special knowledge. Based on the analysis of theoretical and various aspects of the use of special knowledge in criminal proceedings, a conclusion is made about the extremely important value of special knowledge for the process of proving and fulfilling the tasks of criminal proceedings. On the example of the decision of the European Court of Human Rights, attention is drawn to the inadmissibility of violations of the requirements of the current legislation in the work of an investigator, prosecutor, judge, since this can lead to negative consequences.

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.

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