scholarly journals ECtHR Decisions That Influenced the Criminal Procedure of Ukraine

2021 ◽  
Vol 4 (1) ◽  
pp. 102-121
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Civil Rights ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
Legitimate Interests ◽  
European Standards ◽  
Close Relatives ◽  
The Right

As of 2020, 70 years have passed since the day of the adoption of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which Ukraine ratified in September 1997. It was from this date that the countdown to significant democratic transformations in Ukraine and the establishment of human and civil rights and freedoms began. In this article, the authors raise relevant issues of reforming the criminal process of Ukraine in the context of European standards. The old Code of Criminal Procedure of Ukraine was adopted in 1960 and was in force for almost half a century. During this time, it became obsolete and bore a significant imprint of the Soviet past, which was manifest in both the bodies that conducted the trial and had primarily repressive powers and the public interests that dominated the rights and legitimate interests of those involved in criminal justice. The conditions under which the first steps aimed at realising the importance of the Convention and the value of human rights enshrined in it took place were not easy. The path of reform processes in criminal proceedings was associated with the confrontation of the Soviet past with modern transformation. It was difficult to realise the need to harmonise national legislation with European standards of human rights and freedoms and consolidate their perception as one of the necessary conditions for Ukraine’s integration into the European legal space, as well as the need for a conceptually new worldview for both the people of Ukraine and law enforcement bodies – officers, judges, and prosecutors. The authors summarise the most important decisions of the ECtHR made on complaints against Ukraine during the period of the reform of criminal procedure legislation, analyse the problems identified by the ECtHR, and illustrate how the legislator implemented the ECtHR standards in national criminal procedure legislation. They note that on the basis of the Convention and the case-law of the ECtHR in criminal procedure legislation, important principles of criminal proceedings, such as adversarial proceedings, direct examination of evidence, the right to defence, the right not to testify against oneself and close relatives, and reasonable time are legitimised. For the first time, the legislation of Ukraine has enshrined a rule on the inadmissibility of evidence obtained as a result of a significant violation of human rights and freedoms. A separate segment of the article is devoted to the consideration of amendments to the criminal procedure legislation regarding the protection of the rights and legitimate interests of a person in respect of whom a measure of restraint in the form of custody is chosen. In order to ensure the right of a person to liberty and security, the position of an investigating judge and the institute of free legal aid have been introduced. In addition, the authors focus on the aspects of direct application of the Convention and ECtHR decisions in law enforcement practice without amending the legislation, as well as analyse the legislative perspectives arising from non-implemented ECtHR decisions. Keywords: European convention; human rights; criminal procedure; principles of criminal procedure; Ukraine; freedom from self-disclosure; the right not to testify against close relatives and family members; the right to defence.

scholarly journals Protection of Human Rights in the Criminal Procedure Legislation of the Republic Of Uzbekistan and Improved Reforms Taking Into Account Foreign Experience

2021 ◽  
Vol 58 (1) ◽  
pp. 1102-1115
Author(s):  
Botirjon Khayitbayevich Ruzmetov
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Sufficient Evidence ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Republic ◽  
Theory Of Evidence ◽  
The Right

In this article author had searched the questions devoted the protection of human rights in the criminal procedure legislation of the Republic of Uzbekistan and comparing with the legislation and worldwide experience of the foreign states.The article reveals the ongoing liberalization of the criminal law policy in the Republic of Uzbekistan, which is aimed at expanding human and fair norms, strengthening the protection of the rights, legitimate interests of a person andsociety. Against this background, the significance of investigative actions and the theory of evidence in the country's criminal procedural legislation is being revised. The development of science and technology leads to the improvement of methods of committing crimes using computer technology, taking into account which the timely disclosure and effective investigation of socially dangerous acts requires extensive use of mathematical tools and computer technologies.In this regard, changes are taking place in the investigative practice aimed at increasing knowledge in the field of computer technologies among law enforcement officials and increasing the responsibility of the personal of the investigative and judicial authorities in the implementation of their activities.The author emphasizes that despite significant restrictions on the rights and legitimate interests of a person in the conduct of investigative actions, all of them are necessary for obtaining sufficient evidence to expose the guilt of the offender, in the manner prescribed by law.Compliance by investigators, prosecutors and judges of all criminal procedural requirements established by the legislation of the country is a key requirement for the recognition of evidence as lawful and sufficient for a fair sentence.It should be noted that the article highlights that, since 1994, the Criminal Procedure Code of Uzbekistan enshrines the right to defense by involving a lawyer in the case from the moment a person is detained on suspicion of committing a crime, as well as the principle of equality of arms in criminal proceedings. An addition to the liberalization of legislation is the fact that now the courts are freed from such unusual functions as the execution of court decisions.In addition, the article expands on the author's proposals for improving the legislation of Uzbekistan, as well as expanding the power of lawyers, especially in the conduct of investigative actions, aimed at expanding the process of liberalization of criminal law in the country and improving the situation with the protection of human rights in the investigation of criminal cases.

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 The Right to a Fair Trial before The European Court of Human Rights

2019 ◽  
Vol 2 (2) ◽  
pp. p133
Author(s):  
Alaa Mohamed Ismail Abdrabo
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Fair Trial ◽  
European Convention ◽  
New Work ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Charges ◽  
The Right ◽  
Right Of Access

Article 6 of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, applies to disputes relating to civil rights and obligations as well as to criminal charges. The right to a fair trial includes, inter alia, the right of access to a court, the right to be heard and the equality of arms between the parties. This challenging new work elucidates the meaning of the fair trial and looks at the fair trials jurisprudence of the ECHR.Article 6 of the European Convention on Human Rights has become the defining standard within Europe for determining the fairness of criminal proceedings. Its success has been attributed to the fact that it is not based on a particular model of criminal procedure.

scholarly journals “Equality of arms” in criminal procedure in the context of the right to a fair trial

2021 ◽  
Vol 25 (3) ◽  
pp. 602-621
Author(s):  
Fardin Y. Khalilov
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
Criminal Prosecution ◽  
Law Enforcement Agencies ◽  
European Standards ◽  
Mutual Relations ◽  
The Right

The level of realization of the right to a fair trial is one of the crucial indicators of democracy in any state. In order to ensure this right, all the minimum standards deriving from it must be clearly understood by law enforcement agencies and their practice must meet these standards. As equality of arms, the right to a fair trial, is not directly enshrined in the text of Article 6 of the European Convention on Human Rights (hereafter - the Convention) and is of implicit character; the issues like its essence, content and the way it should manifest in practice are open for discussion. For this reason, the focus on those issues is highly relevant. The aim of this article is, with reference to the case law of the European Court of Human Rights (hereafter - ECHR) and the modern doctrine based on this right, to explain the role of this principle and the essence of its mutual relations with the other elements of the right to a fair trial. Selected case law of ECHR bears great interest compared with other decisions and is discussed in the form of empirical materials of the study. From the doctrinal materials, interpretation of Article 6 of the Convention and theoretical sources related to the European standards in the criminal procedure are also analyzed. The article exercises methods of dialectical comprehension; they are determinism, induction, deduction, case studies and methods of law interpretation. As a result of the study, a unique doctrinal commentary has been obtained in the context of adversariality and impartial and independent court principles of the concept of equality of arms, as well as, interaction of the minimum rights of persons subject to criminal prosecution, guaranteed by the Convention.

scholarly journals The practice of the Supreme Court and the decisions of the European Court concluding violations of artic - le 3 of the Convention

2020 ◽  
pp. 413-417
Author(s):  
Alla Radzivill
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Supreme Court ◽  
European Convention ◽  
European Court ◽  
The Supreme Court ◽  
Effective System ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right

Law enforcement practice of the Supreme Court in cases involving torture in the light of the standards of the European Court ofHuman Rights. The article is devoted to the study of individual legal positions of the Supreme Court, their coordination with the practiceof the European Court of Human Rights. The author emphasizes that the decisions of the European Court should serve as precedents,which will make it impossible to produce diametrically opposite decisions on similar categories of cases. Analysis of the problem ofcriminal responsibility for torture allows us to form conclusions and suggestions that are important for the development of the theoryof criminal law and the improvement of law enforcement practice.The article deals with the issues related to the peculiarities of the interpretation and application of Article 3 of the European Conventionon Human Rights of the European Court of Human Rights. In particular, the scope of Article 3 has been analyzed; it has been de -fined, what is necessary to understand under concepts of torture, inhuman or degrading treatment or punishment. Substantive and proceduralaspects of violations of the prohibition of torture have been revealed, as well as positive and negative obligations of a state to providethe effective protection of the right. The standards of the appropriate assessment of ill-treatment and the main aspects of judicial qualificationof a particular form of mistreatment as torture have been analyzed. The procedural guarantees, which must be provided for each personat the stage of pre-trial investigation, non-observance of which leads to a breach of Article 3 of the Convention, have been determined.Creation of the effective system of protection of human rights and its efficiency is analysed in relation to the crime of “torture”in the context of European Convention on human rights, which must be in future stored and taken for basis for a further improvementand systematization of the single European standards in area of human rights.

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 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 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 The right to private communication using telecommunication means: National and international legal aspects of protection

2019 ◽  
Vol 68 ◽  
pp. 01021
Author(s):  
Olexandr Panasiuk ◽  
Larysa Grynko ◽  
Anna Prokhazka
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Legal Aspects ◽  
The State ◽  
European Countries ◽  
European Convention ◽  
Private Communication ◽  
Criminal Proceedings ◽  
The Right ◽  
Case Basis

Today's challenges dictate the need to strengthen the national and international legal mechanisms for the protection of personal data and the right to private communication. However, considered rights are not absolute. Legitimate restriction of guaranteed rights is possible, since these means of communication are a powerful tool in the investigation and disclosure of hard/very hard crimes, including transnational ones, especially considering the terrorist threats to Ukraine and other European countries. The possibility of restricting human rights, arising from the guarantees enshrined in the European Convention on Human Rights and consistently enshrined in the ECHR, demands from the state the least compulsory guarantee while interfering with the rights of individuals – to act “in accordance with the law”. Law protection of personal data and right to privacy are researched in the context of peculiarities of conducting investigative (search), secret investigative (search) and other procedural actions in criminal proceedings, which concern access to some telecommunication means (e.g., smartphones). Taking into account different functional purposes of technical means of telecommunication, access and collecting of evidence contained therein, should be carried out on a case-to-case basis, in a different procedural form, considering specifics of telecommunication technologies in each particular case.

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.  

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