scholarly journals CORRELATION BETWEEN THE RIGHT OF ACCESS TO INFORMATION IN CRIMINAL PROCEEDINGS AND THE RIGHT GUARANTEED BY ART. 6(3)B OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS THROUGH ECTHR’S DECISIONS

2021 ◽  
pp. 250-253
Author(s):  
T.Yu. Marchenko
Keyword(s):  
Human Rights ◽  
Access To Information ◽  
Criminal Proceedings ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Right Of Access

scholarly journals ACCESS TO JUSTICE IN CRIMINAL PROCEEDINGS: LEGAL STANCES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Lex Russica ◽  
2020 ◽  
pp. 56-67 ◽  
Author(s):  
T. Yu. Vilkova
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
European Court ◽  
Different Types ◽  
Protection Of Human Rights ◽  
The Right ◽  
Right Of Access

The article is devoted to the analysis of the stances developed in the case law of the European Court of Human Rights regarding the content, scope, general principles of ensuring the right of access to justice, and permissible limits applied to restrict the right in question. The author has substantiated the conclusion that the European Court of Human Rights associates access to justice with Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, the concept of access to justice includes a number of elements: the right to have recourse to court; the right to have a case heard and resolved in compliance with the requirements of a fair trial; the right to have the judgment enforced; the set of safeguards that allow the person to exercise the rights under consideration effectively. According to the European Court of Human Rights, access to justice should be ensured at all stages including pre-trial (criminal) proceedings and reviewing of court decisions by higher courts. However, the right of access to justice is not absolute. The restrictions imposed must have a legitimate purpose and reasonable proportionality must be obtained between the means used and the goal determined. In view of the requirement mentioned above, the national legislation may provide for the particularities of application of Paragraph 1 of Article 6 of the Convention to proceedings in different types of courts and at different stages, for example, by establishing a certain procedure for the court to grant individuals the right to appeal to a higher court. The author has demonstrated the main directions of applying the legal stances of the European Court of Human Rights regarding access to justice to improve the Russian criminal procedural legislation and law enforcement practices, as well as for further scientific research.

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.

scholarly journals Implementation problems in criminal procedure the principles of equality and adversarial (for example, the possibility of filing by the defense of expert's opinion)

2021 ◽  
Vol 7 (1) ◽  
pp. 41-47
Author(s):  
Alexander P. Bozhchenko ◽  
Sergei L. Semenov ◽  
Igor M. Nikitin ◽  
Yuri V. Nazarov
Keyword(s):  
Human Rights ◽  
Fundamental Principle ◽  
Criminal Proceedings ◽  
Law System ◽  
Fundamental Freedoms ◽  
Expert’S Opinion ◽  
Protection Of Human Rights ◽  
Insignificant Difference ◽  
The Right ◽  
Implementation Problems

Background: The European criminal law system declares principles of competition and equality of parties as fundamental to ensure respect for human rights and fundamental freedoms. The domestic legal system also contains these concepts, but only the principle of competition, which includes equality, is declared as a fundamental principle. Such a seemingly insignificant difference in systems causes difficulties in implementing these principles in criminal proceedings, which is shown by the example of using special knowledge in the form of expert opinion and interrogation, and those few tools for the defense that can be used for qualified opposition by the prosecution, which builds its system of evidence on the experts conclusion. Vividly, implementation contradictions in the criminal process principles of equality and competition occur with the use of one of the parties (mostly by the defense) specialized knowledge in the form of imprisonment and interrogation specialist. Aims: This study aimed to analyze the problematic issues that arise in this case. Conclusion: Results of the study show the need for practical development and greater legal significance to the institution of participation of a specialist in criminal proceedings, both directly and separately through a written opinion, which meets not only the principles of modern improvement of the implementation of constitutional guarantees for justice, court access, and obtaining professional legal assistance, but also the provisions on the right to a fair trial, provided for in art. Six conventions for the protection of human rights and fundamental freedoms ETS N 005 (Rome, 4 November 1950) are ratified by the Russian Federation on March 30, 1998.

scholarly journals Criteria for Assessing the Violation of the Right to a Trial Within a Reasonable Time

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Miodrag Simović ◽  
Marina Simović
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Criminal Charges ◽  
The Right ◽  
Article 5

The well-known sentence in English Justice delayed is justice denied confirms historical awareness of the value of a speedy court decision. The right to a fair trial within a reasonable time applies to both civil and criminal proceedings. In a criminal trial, the issue of adjournment may also be regulated under Article 5 paragraph 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms when a person is detained. The rationale for the principle, in criminal proceedings, is “based on the need to allow the accused not to remain for too long in a state of uncertainty as to the outcome of criminal charges against him” (Kart v. Turkey, European Court of Human Rights, 2009). Furthermore, the variability of criminal proceedings that take too long - generally damages the reputation of the alleged offender. The European Court of Human Rights explained that “the reason for the verdict in so many lenghty proceedings is that certain contracting parties have not complied with the ‘reasonable time’ requirement under Article 6 paragraph 1 of the European Convention and have not prescribed a domestic remedy for this type of appeal” (Scordino v. Italy (no. 1) [GC], 2006-V).

scholarly journals Correlation of legal regulations on evidence and proof procedures with article 6 of the european convention on the protection of human rights and fundamental freedoms

2021 ◽  
Author(s):  
Angela Cuciurcă ◽  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Regulations ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Evidence And Proof ◽  
The Right ◽  
Criminal Matters

Evidence and evidence are of particular importance in criminal proceedings, as, together with evidence, they are closely linked to the realization of the principle of finding out the truth, as well as to the fact that in most criminal cases there are problems related to evidence and means of proof. The legality of the evidence depends on the issuance of a decision to convict or acquit the person in a criminal trial. Legal regulations are closely correlated with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Article 6, the right to a fair trial. In this context, a criterion of applicability of this article in criminal matters lies in the nature of the procedure; the text refers to the right to be tried by a court, in the sense of court, which must decide on the merits of any accusation in this matter criminal law, and the merits of an accusation are based on conclusive, pertinent and useful evidence administered by means of evidence and evidence procedures provided by law.

scholarly journals Slepenu izmeklēšanas metožu lietošanas principu attiecināmība uz likumā “Par policiju” paredzētā kontrolpirkuma izpildi

2020 ◽  
Vol 2 (17) ◽  
pp. 89-107
Author(s):  
Mārcis Grinciuns
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
European Court ◽  
Investigation Methods ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Secret Investigation ◽  
The Right ◽  
Police Control

Rakstā tiek pētīta Eiropas Cilvēktiesību tiesas (ECT) pausto slepeno izmeklēšanas metožu (undercover operations) izpildes principu attiecināmība uz likumā “Par policiju” noteiktā kontrolpirkuma (turpmāk rakstā – policijas kontrolpirkums) izpildi. Policijas kontrolpirkums galvenokārt tiek veikts, lai atklātu administratīvos pārkāpumus, kuru izskatīšana nav piekritīga ECT, jo Cilvēka tiesību un pamatbrīvību aizsardzības konvencijas (turpmāk rakstā – Konvencija) 6. pantā noteiktās tiesības uz taisnīgu tiesu paredzētas apsūdzētajiem krimināllietās [1, angļu valodas versija]. Taču atsevišķos gadījumos arī administratīvais pārkāpums (vai disciplinārpārkāpums) var būt piekritīgs ECT kompetencei – tas atkarīgs no tā, kāda rakstura pārkāpums tiek izmeklēts un kāds sods par tā izdarīšanu paredzēts. ECT ir definējusi trīs kritērijus, pēc kuriem tā vērtē, vai pārkāpums atbilst krimināla pārkāpuma būtībai un ir piekritīgs Konvencijas 6. pantam. Aktuāls ir jautājums, vai likumpārkāpumi, kuru izmeklēšanā ir paredzēts izmantot policijas kontrolpirkumu, ir piekritīgi Konvencijas 6. pantam, un, ja tā, vai policijas kontrolpirkuma normatīvais regulējums ir atbilstošs ECT paustajiem slepenu izmeklēšanas metožu lietojuma principiem (nosacījumiem). The article examines the relevance of the principles of the use of secret investigation methods (undercover operations) expressed by the European Court of Human Rights (ECHR) to the test-purchase measure set out in the Law “On police” (police test-purchase). The police test-purchase mainly is used to detect administrative offences which are not subject to review by the ECHR, since the right to a fair trial provided in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) is reserved for defendants in criminal proceedings. The question is whether the offences, where police test-purchase is used as part of investigation, are subject to Article 6 of the Convention, and if so, whether the regulatory framework for police control is in line with the principles (conditions) of the use of secret investigative methods expressed by the ECHR.

Battles Over Symbols: The “Religion” of the Minority Versus the “Culture” of the Majority

2013 ◽  
Vol 28 (1) ◽  
pp. 67-104 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Religious Symbol ◽  
Anti Semitism ◽  
European Tradition ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Grand Chamber ◽  
The Right

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

scholarly journals NE BIS IN IDEM PRINCIPLE IN THE CRIMINAL LEGISLATION OF BOSNIA AND HERZEGOVINA AND COURTS’ JURISPRUDENCE

2019 ◽  
Vol 34 (5) ◽  
pp. 1439-1444
Author(s):  
Miodrag N. Simović ◽  
Marina M. Simović ◽  
Vladimir M. Simović
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Offence ◽  
Ne Bis In Idem ◽  
International Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The paper is dedicated to ne bis in idem principle, which is a fundamental human right safeguarded by Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This principle is sometimes also referred to as double jeopardy.The principle implies that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which s/he has already been finally convicted or acquitted (internal ne bis in idem principle), and that in some other State or before the International Court (ne bis in idem principle in respect of the relations between the states or the State and the International Court) the procedure may not be conducted if the person has already been sentenced or acquitted. The identity of the indictable act (idem), the other component of this principle, is more complex and more difficult to be determined than the first one (ne bis).The objective of this principle is to secure the legal certainty of citizens who must be liberated of uncertainty or fear that they would be tried again for the same criminal offence that has already been decided by a final and binding decision. This principle is specific for the accusative and modern system of criminal procedure but not for the investigative criminal procedure, where the possibility for the bindingly finalised criminal procedure to be repeated on the basis of same evidence and regarding the same criminal issue existed. In its legal nature, a circumstance that the proceedings are pending on the same criminal offence against the same accused, represents a negative procedural presumption and, therefore, an obstacle for the further course of proceedings, i.e. it represents the procedural obstacle which prevents an initiation of new criminal procedure for the same criminal case in which the final and binding condemning or acquitting judgement has been passed (exceptio rei iudicatae).The right not to be liable to be tried or punished again for an offence for which s/he has already been finally convicted or acquitted is provided for, primarily, by the International Documents (Article 14, paragraph 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms). The International framework has also been given to ne bis in idem principle through three Conventions adopted by the Council of Europe and those are the European Convention on Extradition and Additional Protocols thereto, the European Convention on the Transfer of Proceedings in Criminal Matters, and the European Convention on the International Validity of Criminal Judgments.Ne bis in idem principle is traditionally associated with the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Likewise, no derogation from Article 4 of Protocol No. 7 shall be made under Article 15 of the Convention at the time of war or other state of emergency which is threatening the survival of the nation (Article 4, paragraph 3 of Protocol No. 7). Thereby it is categorised as the irrevocable conventional right together with the right to life, prohibition of torture, prohibition of slavery, and the legality principle. Similarly, ne bis in idem principle does not apply in the case of the renewed trials by the International criminal courts where the first trial was conducted in some State, while the principle is applicable in the reversed situation. The International Criminal Tribunal for Former Yugoslavia could have conducted a trial even if a person had already been adjudicated in some State, in the cases provided for by its Statute and in the interest of justice.

scholarly journals Suživot negatorijske zaštite od imisija i prava na život u zdravoj životnoj sredini

2018 ◽  
Vol 39 (1) ◽  
pp. 241-268 ◽  
Author(s):  
Gabrijela Mihelčić ◽  
Maša Marochini Zrinski
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Causal Link ◽  
Minimum Level ◽  
Healthy Environment ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Domestic Regulation

The authors analyse the national protection from emissions, in the first place, a property law component of this regime. Domestic regulation of the protection of property rights from harassment was brought in the perspective of the protection that the European Court of Human Rights provides for the right to live in a healthy environment, primarily through the protection of rights under Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to respect for private and family life and home). In the context of the latter, the authors have analysed the interpretative methods used by the European Court and explored the following features: the requirement that environmental and environmental impacts and disturbances violate the Convention right, that is, the existence of a specific Convention causal link; the category of minimum level of severity; oscillation of the "quantum" of minimum level of severity within conventional "fluctuations"; and the scope (and type) of protecting the right to live in a healthy environment through the paradigm of the positive / negative obligations of the Contracting States.

Does Self-isolation Violate the Right to Liberty? An Analysis of the European Court of Human Rights’ Practice in Light of the Ukrainian Experience

2020 ◽  
Vol 27 (4) ◽  
pp. 368-385
Author(s):  
Yana Litins’ka ◽  
Oleksandra Karpenko
Keyword(s):  
Human Rights ◽  
Stress Test ◽  
European Convention ◽  
Legal Systems ◽  
Human Rights Practice ◽  
Rapid Action ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

Abstract COVID-19 became a stress-test for many legal systems because it required that a balance be found between rapid action to prevent the spread of the disease, and continued respect for human rights. Many states in Europe, including Ukraine, chose to enforce an obligation to self-isolate. In this article we review what the obligation to self-isolate entails in the case of Ukraine. We also analyse whether such an obligation should be viewed as a deprivation or a mere restriction of liberty, and if it is permissible under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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