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.

ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences

2021 ◽  
Vol 28 (3) ◽  
pp. 257-267
Author(s):  
Bohdan V. Shchur ◽  
Iryna V. Basysta
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Method Comparison ◽  
Scientific Basis ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
International Obligations ◽  
Grand Chamber ◽  
The Individual

In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations

scholarly journals The European Court of Human Rights as Part of Criminal Procedural Legislation of Ukraine

2020 ◽  
Vol 90 (3) ◽  
pp. 235-244
Author(s):  
О. С. Розумовський ◽  
О. О. Кочура
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Supreme Court ◽  
Practical Implementation ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
European Court ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Right

The author has studied the issue of the origin and formation of the European Court of Human Rights after the Second World War, steps in the establishment and development of this Court, as well as the actions of the Member States to consolidate the development of the European Court of Human Rights at specialized conferences with the support of the Committee of Ministers. The list of regulatory and legislative acts adopted by the Verkhovna Rada of Ukraine for the establishment of the rule of law in regard to the understanding of human rights in the activities of Ukrainian courts has been researched. Since the Convention for the Protection of Human Rights and Fundamental Freedoms has become part of national legislation after its ratification by the Verkhovna Rada of Ukraine, more detailed study should be conducted regarding the urgent task of fully understanding the content of this international treaty and the main mechanisms for implementing its norms. The author has analyzed the implementation of the case law of the European Court of Human Rights on the example of its specific decisions into criminal procedural legislation of Ukraine by applying the decisions of the European Court of Human Rights by the Grand Chamber of the Supreme Court in its activities and problematic aspects of their practical implementation. Particular attention has been paid to the study of problematic aspects of the use of these decisions in practice by highlighting the rulings of the Grand Chamber of the Supreme Court issued in 2019. The author has analyzed the decisions of the European Court of Human Rights in regard to the conducted secret (search) actions by law enforcement agencies with further disclosure ob obtained evidence to the defense party; it has been also pointed out that the right to disclose evidence contained in criminal proceedings is not absolute to the defense and may be limited only in cases when there are the interests of national security, information protection or witness protection concerning the methods and forms of law enforcement agencies’ activity. The author has made propositions to resolve certain situations related to the implementation of the decisions of the European Court of Human Rights in Ukraine.

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.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

La exclusiva función del actual recurso de casación contencioso-administrativo ante el Tribunal Supremo

2017 ◽  
pp. 303-328
Author(s):  
Miren Josune Pérez Estrada
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Judicial Independence ◽  
Legal Certainty ◽  
Application Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Supreme Court ◽  
Effective Remedy ◽  
New System

LABURPENA: Lan honetan kasazio-errekurtsoaren araubide berriak ekainaren 21eko 7/2015 Lege Organikoa indarrean jarri ondoren indarrean dagoen administrazioarekiko auzien jurisdikzioan dauzkan ondorioak aztertzen dira. Sistema horren protagonista berriaren azterketa eta xedea, kasazio-interesaren kontzeptu zehaztugabea eta Auzitegi Gorenaren administrazioarekiko auzien salaren hautazko iritzia jorratzen dira. Bestalde, zuzenbidearen aplikazioan uniformetasunaren teknika ezartzeak dakartzan arriskuak jasotzen dira. Zalantzan jartzen da sistema berria, Giza Eskubideen Europako Auzitegiak benetako babes judizialari dagokionez errekurtsoa eskuratzeari buruz daukan doktrina erreferente hartuta eta zuzenbidea aplikatzeko berdintasunaren, segurtasun juridikoaren eta independentzia judizialaren printzipioetan dauzkan alboko kalteei buruz hausnartzen da. Azken batean, oso gutxik eskuratu ahalko duten sistema esklusibo bat aztertzen da. RESUMEN: En este trabajo se analizan las consecuencias del nuevo régimen del recurso de casación, en el orden jurisdiccional contencioso-administrativo, vigente tras la entrada en vigor de la Ley Orgánica 7/2015, de 21 de junio. Se aborda el estudio y finalidad del nuevo protagonista de este sistema, el concepto indeterminado de interés casacional y su apreciación discrecional por la Sala de lo contencioso-administrativo del Tribunal Supremo. Además, se recogen los peligros que entraña la instauración de la técnica de la uniformidad en la aplicación del derecho. Se cuestiona el nuevo sistema tomando como referente la doctrina del Tribunal Europeo de Derechos Humanos sobre el acceso al recurso en relación con la tutela judicial efectiva y se reflexiona sobre los daños colaterales en los principios de igualdad en la aplicación del derecho, seguridad jurídica e independencia judicial. En definitiva, se examina un exclusivo sistema al que muy pocos tendrán acceso. ABSTRACT: This work analyzes the consequences of the new regime of the appeal in cassation for the contentious administrative order, in force after the entry into vigour of Organic Act 7/2015 of June 21st. We deal with the study and purpose of this new player in this system, the undefined concept of interest in appeal and its discretionary assessment by the Contentious-administrative chamber in the Supreme Court. Besides, hazards related to the implementation of the uniformity in the application of law technique are set out. The new system is disputed taking the European Court of Human Rights doctrine as a reference regarding the access to judicial review in connection with an effective remedy and we reflect on the collateral damages upon principles of equality in the application of law, legal certainty and judicial independence. In short, we examine an exclusive system accessible to too few.

Access to a Court in Matters Concerning Disputes of an Individual with the Public Administration in the Republic of Poland vs. the Standards of the Council of Europe

2016 ◽  
Vol 16 (1) ◽  
pp. 111-125
Author(s):  
Ewa Wójcicka
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Access To Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Difference ◽  
The Republic ◽  
European Standards ◽  
Definition Of ◽  
The Right

Summary This paper focuses specifically on the fundamental part of the right to a fair trial, namely access to a court. The aim of this article is an attempt to analyse the difference between the requirements of European standards and how they are reflected in Polish legislation. First of all, I am going to analyze basic European standards specified in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Recommendation Rec(2004)20 on the judicial review of administrative acts and in the jurisprudence of the European Court of Human Rights. Then I will focus on selected aspects of the problem of judicial review of administrative acts specified in the Act of 30th August 2002 Law on Proceedings before Administrative Courts. I will discuss several specific topics from this field, which can be considered as crucial in relation to access to court, namely: definition of terms for access to justice by an individual, exhausting administrative remedies before judicial review, locus standi and legal aid.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

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 Human Rights Waiver in Criminal Proceedings in Terms of the European Court of Human Rights: ‘Russian Cases’

2020 ◽  
Vol 3 (4) ◽  
pp. 50-58
Author(s):  
Irina Chebotareva ◽  
Olesia Pashutina ◽  
Irina Revina
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Widespread Occurrence ◽  
European Court ◽  
The Government ◽  
Grand Chamber ◽  
The Right

The article investigates the general position of the European Court of Human Rights on the admissibility and validity of the waiver of rights, the features of the European mechanism for protecting human rights in case of the waiver of the right; studies the case-law practices in criminal cases of the Court in relation to Russia where the Court considered the presence/absence of the waiver of the right. The practice of the ECHR reveals the widespread occurrence of human rights violations in the Russian criminal proceedings with the alleged waiver of the right in the framework of criminal procedure. These includes the situations when the Government claimed that the Applicant had waived his/her right and the Applicant did not agree with this fact and insisted that he had been deprived of the opportunity to exercise his/her right. According to the ECHR, violations of human rights established in the Convention are related not only to shortcomings in the legal system but also to improper law enforcement that does not comply with the Convention requirements. Based on the analysis of the ECHR’s general approaches to the waiver of the right, the authors revealed the compliance of the Russian criminal procedure with the requirements of the Court to the waiver of the right and the guarantees established for it. To achieve the objectives in the HUDOC database of the European Court, using search requests we identified cases against Russia considered by the Chamber and the Grand Chamber, in which the ECHR examined the issue of the presence/absence of the waiver of the right in the criminal procedure. As a result, 40 judgments in which the Court directly considered the issue of the presence/absence of the waiver of the right in the criminal procedure in Russia were selected. We studied and analysed the selected judgments.

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