scholarly journals Access to Justice in Ukrainian Criminal Proceedings During the COVID-19 Outbreak

2020 ◽  
Vol 3 (2-3) ◽  
pp. 115-133
Keyword(s):  
Fundamental Rights ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Council Of Europe ◽  
Democratic Development ◽  
Judicial Control ◽  
Legitimate Interests ◽  
Court Proceedings ◽  
Criminal Matters ◽  
Judicial Protection

This article examines relevant issues of criminal proceedings in the context of the COVID-19 pandemic in Ukraine. In the wake of the COVID-19 pandemic, many governments have focused their efforts on protecting democratic values and ensuring not only the rights and legitimate interests of their people, but also their lives and health. At the same time, the pandemic has affected not only the economies of countries, but also their democratic development and fundamental rights, which have always been a priority of any democratic society. Courts and law enforcement authorities have faced challenges that have been and still are adequately addressed in order to ensure that the rights and legitimate interests of those seeking judicial protection are respected. Each state independently assessed the degree of risks and the extent of permissible restrictions on the rights and freedoms of persons involved in the proceedings, so the present study analyses the different approaches that have been applied. At the same time, documents of the Council of Europe for the Efficiency of Justice (CEPEJ) have gained high importance, because they, among others, have developed tools for Council of Europe member states to address the problems of ensuring access to justice in the pandemic. The generalization and widespread discussion of such experiences is important, because it will be useful for states to further improve existing legislation, taking into account best practices. Based on a study of changes introduced in the Ukrainian legislation to prevent the spread of the coronavirus disease, conclusions are proposed about the nature and extent of the restrictions, as well as the principles on which they should be based and the guarantees to be provided. Recommendations that will contribute to improving the regulation of access to justice in criminal matters in a pandemic are also proposed. Key words: justice in the context of the COVID-19 pandemic; access to justice in the context of the COVID-19 pandemic; judicial control over the protection of rights, freedoms and legitimate interests of persons in criminal proceedings; the investigating judge; reasonable terms of criminal proceedings; publicity and openness of court proceedings; trial by videoconference.

THE HUMAN RIGHTS FUNCTION OF THE JUDICIARY IN ADMINISTRATIVE PROCEEDINGS: INSTITUTIONAL AND FUNCTIONAL ASPECTS

2021 ◽  
Vol 11 (2) ◽  
pp. 205-225
Author(s):  
V.V. MOVCHAN
Keyword(s):  
Human Rights ◽  
Judicial System ◽  
System Control ◽  
Judicial Process ◽  
Public Authorities ◽  
Legitimate Interests ◽  
Constitutional Right ◽  
Court Proceedings ◽  
Administrative Proceedings ◽  
Judicial Protection

The article reveals the theoretical aspects of administrative legal proceedings, as one of the forms of the exercise of judicial power, the features and significance of the administrative judicial process in the mechanism of protecting the rights and freedoms of man and citizen, the analysis is given of the constitutional foundations of the human rights function of the judiciary, its essence and content, procedural actions. The author reveals the historical aspects of the formation and development of judicial protection in Russia, oreign experience and models of administrative justice are considered, the importance of administrative proceedings in the implementation of the human rights function of the judiciary in the Russian Federation when considering disputes with the participation of public authorities and citizens and the exercise of the rights, freedoms and legitimate interests of citizens is revealed. The author substantiates the advantages of the judicial administrative process as a procedural form of implementation of the human rights function of the judiciary and the implementation of the constitutional right to judicial protection, analyzes the reform of the judicial system of the judicial system, the creation of courts of appeal and cassation in the system of arbitration and general jurisdiction, substantiates the conclusion that the reform of the system of courts of general jurisdiction created organizational and judicial framework for the specialization of judges and court proceedings, the system of institutional intra-system control of the legality and validity of judicial acts, institutionally and functionally ensured the implementation of the human rights function of the judiciary and the availability of judicial protection in the system of courts of general jurisdiction.

Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals Wzmocnienie praw procesowych jednostki w postępowaniu karnym w Unii Europejskiej - propozycje Komisji Europejskiej z listopada 2013 r.

2015 ◽  
pp. 103-139
Author(s):  
Anastazja Gajda
Keyword(s):  
European Commission ◽  
Fundamental Rights ◽  
Presumption Of Innocence ◽  
Legal Regulations ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
The Right ◽  
Criminal Matters ◽  
The Eu

The aim of the study is to present the proposals of legal regulations presented by the European Commission in one of the fields of Area of Freedom, Security and Justice (JHA), i.e. within the framework of judicial cooperation in criminal matters. The European Commission’s proposals aim at strengthening of the rights of suspects/defendants in criminal proceedings in the EU. They consist of the right to a fair trial and include: strengthening of the presumption of innocence principle and the right to be present at the trial, special safeguards for children suspected or accused of a crime and the right to provisional legal aid for citizens suspected or accused of a crime. In the paper I analysed the most important provisions of the projects and showed that these proposals are intended to ensure the protection of fundamental rights within the JHA.

scholarly journals Problematic issues of appealing against the decision of the investigating judge, the court on sending a person to a medical institution for a psychiatric assessment

2021 ◽  
pp. 328-334
Author(s):  
O.I. Tyshchenko
Keyword(s):  
Court Decision ◽  
Medical Institution ◽  
Criminal Proceedings ◽  
Psychiatric Assessment ◽  
Procedural Law ◽  
Legitimate Interests ◽  
Forensic Psychiatric ◽  
Constitutional Right ◽  
The Right ◽  
Judicial Protection

The article reveals the problem of appealing against the decision of the investigating judge, the court on sending a person to a medical institution for a psychiatric assessment, in particular: a) it is stated that sending a person to a medical institution for assessment is a form of restriction of his or her constitutional right to liberty, which is equivalent to detention. It is proposed to amend the Criminal Procedure Code (hereinafter – the CPC), which provides for the right to a separate appeal against a court decision on sending a person to a medical institution for assessment, decided in court before the court decision on the merits. The lack of possibility to appeal against such a court decision creates a potential danger of illegal restriction of a person’s constitutional right to liberty and security during their placement in a medical institution for the inpatient forensic psychiatric assessment (hereinafter – the IFPA), which violates the essence of the right to judicial protection; b) it is proved that the decision of the investigating judge, the court to send a person to a medical institution for the IFPA may limit not only the rights of the suspect, accused, but thus also affect the legitimate interests of others who do not have procedural status in criminal proceedings. It is determined the expediency of granting the right to appeal the said court decision to the victim and other persons whose interests it concerns; c) it is noted that the mechanism of prolongation of the term of the IFPA is not regulated in the domestic criminal procedural law, however judges continue it in the absence of a legislative basis. Therefore, it is expressed the scientific position on the rationality of appealing not only the decision of the investigating judge, but also the court’s decision to extend the term for sending a person to a medical institution for assessment. 

scholarly journals Restrictions of individual’s rights, freedoms and legal interests within temporary access to items and documents: practical aspects.

2021 ◽  
Vol 3 (3) ◽  
pp. 277-284
Author(s):  
Andriy Melnychenko
Keyword(s):  
Human Rights ◽  
Statistical Data ◽  
Third Party ◽  
Human Rights Violations ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Control ◽  
Informed Decisions ◽  
Legitimate Interests

Temporary access to things and a document as an institution that restricts human rights and freedoms in criminal proceedings and its main properties have been studied. Attention is drawn to the problem of numerous risks of human rights violations during the application of temporary access to things and documents due to unfounded and weak argumentation of investigators' requests for temporary access, as well as a superficial assessment of circumstances by the investigating judge due to overload of requests. Statistical data have been studied, which indicate the need for consistent reform of judicial control in the direction of studying the materials and making informed decisions. Temporary access to things and documents in the criminal process is part of the institution of measures to ensure criminal proceedings. It attracts the attention of scholars because it has a rather complicated procedure for obtaining a decision on temporary access to things and documents, which must be provided by the investigating judge based on the results of the petition. The mechanism of judicial control indicates that this measure to some extent restricts the rights, freedoms or legitimate interests of a person – a participant in criminal proceedings or a third party. Related to this is the problem of the measure under investigation, which is the risk of violation of the rights of individuals, because every year the investigating judges receive a large number of requests for temporary access, and there are specific features in terms of providing temporary access to things and documents containing legally protected secret.

The European Commission’s e-Evidence Proposal – Critical Remarks and Proposals for Changes

2020 ◽  
Vol 28 (4) ◽  
pp. 333-353
Author(s):  
Maciej Rogalski
Keyword(s):  
Law Enforcement ◽  
Union Member ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Electronic Evidence ◽  
Production Orders ◽  
Criminal Matters ◽  
European Union Member States ◽  
European Production ◽  
The Eu

Abstract In response to problems that exist in practice pertaining to how law enforcement authorities in European Union Member States can obtain electronic evidence concerning the commission of a crime, on 17 April 2018 a Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (COM(2018) 225 final, 2018/0108 (cod)) was published. The proposal contains a series of new solutions aimed at speeding up and facilitating cooperation within the EU on obtaining electronic evidence in criminal matters. It is worth examining how the specific solutions accepted and the way they have been formulated may affect the fundamental rights of participants in criminal proceedings, particularly when that impact may be adverse. From this perspective, a detailed analysis is made of what entities will be authorised to issue European Production Orders, in relation to what kinds of electronic evidence, and under what conditions.

Urgent Relief in Italian Civil Procedure

1985 ◽  
Vol 20 (4) ◽  
pp. 456-461
Author(s):  
Federico Carpi
Keyword(s):  
The United States ◽  
United States Constitution ◽  
European Convention ◽  
Access To Justice ◽  
General Rules ◽  
Rules Of Procedure ◽  
Legitimate Interests ◽  
The Right ◽  
Judicial Protection ◽  
Speedy Trial

Urgent relief imposes two basic requirements which influence both the procedure and the structure of the trial in which it is applied: avoiding prejudice and, in order to avoid prejudice, deviating from the general rules of procedure.As Calamandrei rightly noted in his fundamental work of 1936 (recently reprinted), the duration of the ordinary suit can lead to the danger that measures taken will be both useless and tardy. This is not a new viewpoint: it was a valid dictum in the Roman trial that “Si periculum est in mora, receditur a regulis iuris communis”.The thing which is new in our times is the consciousness in democratic legal systems that the judicial protection of rights and legitimate interests is not effective unless it is quickly obtainable. This observation applies to ordinary commercial rights, but above all it applies to non-commercial ones, for example rights of the person and his liberty. In other words, the time factor has become a vital one in guaranteeing and effecting access to justice.It is well known that the United States Constitution establishes the right to a speedy trial. Article 6 of the European Convention on Human Rights similarly states that everyone has the right to have his case decided “dans un d61ai raisonable”.

THE CONTRIBUTION OF THE EUROPEAN COURT OF JUSTICE TO THE AREA OF FREEDOM, SECURITY AND JUSTICE

2010 ◽  
Vol 59 (2) ◽  
pp. 255-301 ◽  
Author(s):  
Koen Lenaerts
Keyword(s):  
Fundamental Rights ◽  
Judicial Cooperation ◽  
Present Contribution ◽  
Treaty Of Lisbon ◽  
European Court ◽  
The One ◽  
Judicial Procedure ◽  
The Right ◽  
Criminal Matters ◽  
Judicial Protection

ABSTRACTThe aim of this article is to provide an overview of the European Court of Justice's (‘ECJ’) past and present contribution— both procedurally and substantively—to the Area of Freedom, Security and Justice. While it is too early to speculate what the ECJ's contribution to this area will be under the provisions of the Treaty of Lisbon, which entered into force on 1 December 2009, the latter's modifications to the ECJ's jurisdiction merit close attention. After describing how the procedural limitations that were imposed on the ECJ's jurisdiction by ex Title IV of Part Three of the EC Treaty and by ex Title VI of the old EU Treaty have been almost entirely eliminated by the Treaty of Lisbon, this article posits that not only does the latter Treaty improve significantly the judicial protection of private individuals, but it also facilitates the dialogue between the Union and the national judiciaries in the Area of Freedom, Security and Justice. Next, the article briefly explores the special ECJ procedures which may be followed in the Area of Freedom, Security and Justice in cases where time is of the essence. There, it is argued that, when having recourse to these procedures, the ECJ strives to strike the right balance between, on the one hand, swift judging and, on the other hand, the preservation of a qualitative and fair judicial procedure. As to substantive issues, drawing on examples from the fields of judicial cooperation in civil matters, asylum and judicial cooperation in criminal matters, it is argued that the ECJ's contribution to this area is largely grounded in the protection of fundamental rights. Finally, a brief conclusion supports the contention that the ECJ's contribution to the Area of Freedom, Security and Justice has favoured a ‘mutual borrowing’ of concepts and principles as between this area and other fields in relation to which the EU has competences, such as the internal market and competition. The Treaty of Lisbon having entered into force, an unprecedented level of coordination between different areas of EU law on both the procedural and substantive levels is to take place. Respect for fundamental rights will definitely be a unifying factor binding them all together.

scholarly journals THE IMPORTANCE OF RITUALS IN COURT PROCEEDINGS

2021 ◽  
pp. 16-21
Author(s):  
R. S. Prytchenko
Keyword(s):  
Middle Ages ◽  
Free Access ◽  
Access To Justice ◽  
Judicial Process ◽  
Sacred Values ◽  
Legal Perspective ◽  
Court Proceedings ◽  
Legal Forms ◽  
Perceptions And Expectations ◽  
Judicial Protection

The article focuses on defining the concept and historical roots of ritual. The ritual component of justice is analysed. The characteristics and role of rituals in modern justice are identified. The contemporary judiciary is becoming more and more isolated, its structure more complex and branched out, each of which serves as a safeguard against the errors of the previous one. However, above the last instance, there is still something that guarantees justice and inspires confidence in the human court. This is reminded by the judicial rituals that continue to accompany the judicial process. Court rituals are not only an accepted way of doing things; they also convey information that contains the answers to many of the questions that people subconsciously ask themselves when they come into contact with the courts in particular situations. The deeper one understands the origins and traditions of the judiciary, the greater is the trust in the court, which is so necessary in the modern conditions of the development of our society, when the very idea of justice and guarantees of judicial protection is proclaimed as one of the main legal values. Today, some part, perhaps a significant one, of this functional purpose of rituals has been irrevocably lost and one can speak of the end of the era of a society of sacred traditions. Rather, we can talk about the transformation of a number of ritual forms into legal forms by reducing their religious significance, and about the transfer of sacral significance to the values of modern secular civilisation – the independence of judges, free access to justice, etc. Today’s judicial rituals are as necessary for participants in the process as they were a thousand years ago, despite the fact that not many people think of them as such, perceiving them precisely from a legal perspective. The traditions of court rituals should not only be observed as a tribute to the past, but their performance should be conscious and filled with meaning in keeping with today’s demands, for trust in a court that looks and acts beyond the perceptions and expectations of observers is hardly possible. The court, both in the Middle Ages and today, differs from various pseudo-judicial organizations (such as the emergency courts, which are based on arbitrariness) precisely in judicial rituals – the attributes of a real judicial process. Just as rituals were important in times when the court was trusted by virtue of their observance, so today the court needs rituals when the very idea of justice and guarantees of judicial protection is proclaimed to be one of the most important legal values. The court today more than ever must conform to modern ideals which are hardly more sacred values than the divine justice in the medieval court.

scholarly journals THE COLLECTIVE ACTIONS HELD HOSTAGE BY THE AUTHORITARISM

2018 ◽  
Vol 1 (1) ◽  
pp. 85-99
Author(s):  
Ada Pellegrini Grinover
Keyword(s):  
Process Model ◽  
Social Process ◽  
Class Action ◽  
Fundamental Rights ◽  
Executive Power ◽  
Access To Justice ◽  
Collective Actions ◽  
Political Configuration ◽  
The Government ◽  
Judicial Protection

The judicial protection of  collective interests represents, at the end of the millennium, one of the most impressive conquests of the Brazilian legal system. The transindividual interests which are particular to mass society are full of political relevance and, to that extent, are capable of transforming stratified judicial concepts. The recognition of these interests and the need to protect them have highlighted their political configuration in Brazil. In this way, the theory of public liberty forged a new “generation” of fundamental rights. In the same way, one can note that, at the constitutional level, the concepts of jurisdiction and litigation were renewed, while some fundamental guarantees were reformed. The most notable revolution, however, might have taken place in the procedural sphere, departing from an individual process model toward a social process model In Brazil, the Judiciary power has also taken advantage of class action lawsuits in terms of rationalization and work projection. The social objective of the judicial function was lost in view of the fragmentation and the pulverization of conflicts, always regarded as individual. There is a notable tendency to replace atomized decisions with a molecular treatment of litigation. Nevertheless, the Executive power has revealed itself to be inattentive to the reality of collective action and has tried to reduce its effectiveness, limiting access to courts, compressing the associative moment, and diminishing the role of the Judiciary. In this perspective, many years after the introduction of judicial protection for collective and diffuse interests in Brazil, the balance would have been positive, had the government not adopted an authoritarian line when applying legal treatment to the matter. It is possible to affirm that collective actions are a part of the current legal routine, despite the attacks which they suffer. The Judiciary power is significantly implanted in this context, it is conscious of its new role and of its renewed importance, and by way of its sentences, it was capable of occupying a position of leadership which points toward future challenges. The only note that rings false in this context is the attitude of the government with relation to the use of Provisional Measures to reverse such a situation, attacking collective actions and trying to diminish their efficiency in order to limit the access to Justice, to frustrate the associative moment and to make the Judiciary seem less important. The Legislative power, complacent or inattentive, has not been able to resist the attacks and to react to the attitudes of the government.

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