scholarly journals Application by an investigating judge of the practice of the European Court of Human Rights as a way to improve the effectiveness of judicial control in criminal proceedings

2019 ◽  
Vol 5 ◽  
pp. 290-294
Author(s):  
Iryna Shapovalova ◽  
Keyword(s):  
Human Rights ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
European Court

scholarly journals Standards for ensuring the legality of implementing unspount activities in criminal process through the prism of legal positions of the European court of human rights

2021 ◽  
pp. 111-123
Author(s):  
A. Tumanyants ◽  
I. Krytska
Keyword(s):  
Human Rights ◽  
Democratic Society ◽  
Order Conditions ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
National Legislation ◽  
Judicial Control ◽  
European Court ◽  
The Subject ◽  
Covert Activity

The analysis of the legal positions of the ECHR in the aspect of the subject of the article under consideration made it possible to conditionally single out the following standards for ensuring the legality of the implementation of covert activity in criminal proceedings:- predictability. Its essence lies in the fact that the grounds, procedural order, conditions, timing, the circle of persons and crimes in relation to which it is allowed to carry out covert activities should be as detailed, clear and accurate as possible in the criminal procedural legislation. Moreover, any person had the opportunity to familiarize himself with the relevant regulatory prescriptions and foresee the actions that can be carried out in relation to him;- warranty against abuse. The content of this standard can be disclosed by more detailed highlighting of clarifying provisions ("substandards"). These include: control of interference in human rights and freedoms; the certainty of the circle of persons in relation to whom it is possible to carry out secret activities; limited corpus delicti, for the purpose of investigation or prevention of which covert activity is allowed;; the existence in national legislation of procedures that facilitate the law of the implementation of covert activity in criminal proceedings; the temporary nature of the implementation of secret activities in the criminal process;- verifiability. The essence of this standard can be disclosed through the establishment of judicial control over the decision of the issue regarding the possible destruction of information obtained in the course of conducting covert activities, which is not relevant to criminal proceedings, as well as the requirement for the mandatory opening of decisions that were the basis for conducting covert investigative actions;- exclusivity. The main content of this standard is that covert activity in criminal proceedings can be carried out only in cases where the disclosure or prevention of a crime in another way is impossible or is too complicated;- proportionality of the intervention and its expediency. The essence of this standard is that the implementation of certain covert coercive actions that are associated with the restriction of human rights and freedoms must be proportionate to the goals for which such actions are directed. Moreover, these goals and the applied coercion must be necessary in a democratic society;- inadmissibility of tacit interference in the communication of some subjects. First of all, this requirement concerns the need to legislatively guarantee non-interference in communication between a lawyer and his client, a priest and an accused, etc., which means a ban on targeted control over the communication of certain subjects, as well as the obligation to destroy information obtained in the course of an accidental, situational interfering with their communication.

scholarly journals Judicial control over investigative (search) actions that require prior permission

2020 ◽  
Vol 9 (28) ◽  
pp. 151-158
Author(s):  
Vasyl Nastyuk ◽  
Oleksandr Mikhailov ◽  
Ekaterina Izbash ◽  
Vitalii Kondratenko
Keyword(s):  
Human Rights ◽  
Research Methods ◽  
Necessary Condition ◽  
Criminal Proceedings ◽  
Theoretical Concepts ◽  
National Legislation ◽  
Judicial Control ◽  
European Court ◽  
Clear Delineation ◽  
Prior Permission

The purpose of the article is to investigate the peculiarities of judicial control during investigative (search) actions that require prior permission on the basis of the analysis of legislation and modern theoretical concepts of the science of criminal process. Special research methods were also used in the work, in particular, comparative legal; special legal, logical-legal and systematic. The article is devoted to specific issues of judicial control, which, in accordance with the current legislation of Ukraine, is carried out when granting permission for investigative (search) actions that require it. The investigative (search) actions that require the prior permission of the investigating judge are identified. The norms of the international and national legislation are analyzed, which enshrines guarantees from illegal entry into the dwelling or other property of a person and carrying out of procedural actions there. Attention is drawn to the need for a clear delineation of investigative (search) actions, such as inspection and house search or other property of a person, since their substitution will lead to the court finding the evidence inadmissible. The position of the European Court of Human Rights on the criteria for the lawfulness of the search is outlined. Emphasis is placed on the specifics of conducting a house search or other property of a lawyer. It is concluded that the effective provision by the investigating judge of the rights, freedoms and interests of persons whose housing or other property is planned to be searched is a necessary condition for the realization of the principles of criminal proceedings.

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 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 PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

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.

Admissibility of Evidence Obtained by Torture and Inhuman or Degrading Treatment. Does the European Court of Human Rights Offer a Coherent and Convincing Approach?

2021 ◽  
Vol 29 (2) ◽  
pp. 127-153
Author(s):  
Wojciech Jasiński
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court ◽  
Depth Analysis ◽  
Degrading Treatment ◽  
Main Shortcoming

Abstract The paper presents and assesses the approach of the ECtHR to admissibility of evidence obtained through torture and inhuman or degrading treatment in the criminal process. The author examines the content of the standard, its justifications and the consistency of the ECtHR's reasoning. The paper refers both to the admissibility of statements and real evidence as well as to primary and derivate evidence obtained in violation of Article 3 echr. The admissibility of evidence obtained by oppressive conduct of private individuals is also analysed. The assessment of the Strasbourg Court’s case law indicates that its approach is quite nuanced and, unfortunately, inconsistent and incoherent. Its main shortcoming is the lack of an in-depth analysis of the rationale for the inadmissibility of evidence obtained by maltreatment and the piecemeal treatment of individual categories of such evidence devoid of attempt to comprehensively address its admissibility in criminal proceedings.

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