scholarly journals THE USE OF SPECIAL KNOWLEDGE IN CRIMINAL PROCEEDINGS IN THE CONTEXT OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2021 ◽  
pp. 414-425
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Negative Consequences ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Knowledge Based ◽  
European Court ◽  
Criminal Offenses ◽  
Procedural Code ◽  
Special Knowledge

The article discusses the concept, types and essence of special knowledge in criminal proceedings, as well as their evidentiary value in pre-trial investigation and trial. It is analyzed the practice of the European Court of Human Rights on the appointment of a forensic examination. The objectives of criminal proceedings are to ensure a prompt, complete and impartial investigation and trial so that everyone who has committed a criminal offense is prosecuted to the best of his/her own fault. In addition, an innocent person is accused or convicted, no person is exposed, unjustified procedural coercion, and that due process is applied to each participant in criminal proceedings. It is emphasized that among the ways of collecting evidence by the parties to criminal proceedings listed in the Criminal Procedural Code of Ukraine, there are those that require the use of special knowledge, namely: requesting and obtaining expert conclusions and carrying out other procedural actions with the participation of a specialist. At the same time, the expert opinion is an independent source of evidence. Special knowledge in criminal proceedings is used in the investigation of any criminal offenses, but the Criminal Procedure Code of Ukraine does not define its concept, despite the fact that many scientific works have been devoted to the issue. Unfortunately, the legislator has not yet reflected the conclusions of scientists about the essence of special knowledge. It is considered examples of practice in the appointment and conduct of forensic examinations and the fact of violation of the law, when applying special knowledge. Based on the analysis of theoretical and various aspects of the use of special knowledge in criminal proceedings, a conclusion is made about the extremely important value of special knowledge for the process of proving and fulfilling the tasks of criminal proceedings. On the example of the decision of the European Court of Human Rights, attention is drawn to the inadmissibility of violations of the requirements of the current legislation in the work of an investigator, prosecutor, judge, since this can lead to negative consequences.

scholarly journals JUSTIFICATION OF SUSPICION DURING THE APPLICATION OF CRIMINAL PROCEEDING MEASURES

2021 ◽  
Vol 75 (2) ◽  
pp. 169-174
Author(s):  
Maryna Savchuk ◽  
◽  
Artem Shapar ◽  
Keyword(s):  
Human Rights ◽  
Crucial Role ◽  
Scientific Article ◽  
Precautionary Measure ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Proceeding ◽  
European Court ◽  
Criminal Procedure Law ◽  
Precautionary Measures

The scientific article contains information on the study of the concept of «reasonableness of suspicion», the study by the investigating judge of the evidence that substantiates the suspicion during the application of precautionary measures. The article analyzes scientific works on certain topics, decisions of the European Court of Human Rights and national legislation. The main problem is identified, which is related to the fact that the investigating judge in most cases, when considering a request for a measure of restraint, ignores the need to examine the evidence related to the examination of suspicion. The result of the above material is the fact that the notification of a person of suspicion can in no way justify the application of measures to ensure criminal proceedings. An important procedural step, which plays a crucial role in the pre-trial investigation stage, is the notification of a person of suspicion. Suspicion is presented to a person only on the basis of proper, admissible, sufficient and reliable evidence, it allows to suspect a person of committing a criminal offense. The pre-trial investigation body does not always establish all sufficient grounds for such a suspicion, so the question arises as to its validity. After the notification of suspicion, it is possible to apply one of the measures to ensure criminal proceedings, namely: a precautionary measure. The norms of the criminal procedure law oblige the court, when choosing a measure of restraint, to take into account the data underlying such a decision. The presence of a notice of suspicion is not an identical notion of the validity of the suspicion. In order to substantiate the suspicion, the parties to the criminal proceedings are obliged to provide the investigating judge with evidence of the circumstances to which they refer, which in turn entails the duty of the investigating judge, the court to verify and evaluate the evidence. The presence of risks does not justify the suspicion. The need to comply with the rule on the verification of «reasonableness of suspicion» is realized by establishing criteria that should be investigated and established by the investigating judge during the consideration of motions for the application of measures to ensure criminal proceedings.

scholarly journals On the New Rules Protecting Attorney-Client Privilege in Criminal Procedure in Russia

2018 ◽  
pp. 15-25
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Criminal Procedure ◽  
Point Of View ◽  
Federal Law ◽  
Criminal Proceedings ◽  
European Court ◽  
Procedural Code ◽  
Criminal Procedure Law ◽  
Further Development

In the article, an attempt is made to consider the recently introduced additional criminal procedural guarantees of the protection of attorney-client privilege from the point of view of the system of the Russian criminal procedural legislation and in the light of the practice of the European Court of Human Rights. The author comes to the conclusion that additional guarantees of protection of attorney-client privilege introduced by the Federal law № 73-FZ contribute to the further development of the adversarial principles of the Russian criminal proceedings. At the same time, some innovations seem to be controversial. The supplement introduced to part 2 of the Article 75 of the Russian Criminal Procedural Code (CPC) concerning inadmissibility of using advocatory items and documents as evidence come into conflct with the Article 17 of the CPC and do not constitute the whole legal system with other provisions of the criminal procedure law. The rules of part 3 of the Article 450.1 of the CPC, according to the author, are incompatible with part 5 of the Article 165 of the CPC regulating urgent procedures of investigative actions requiring judicial permission, as well as part 2 of the Article 450.1 of the CPC. The author makes a range of proposals to improve the legislation and its application.

scholarly journals The sources of forensic recommendations for collection, examination and use of evidence in criminal proceedings

2020 ◽  
Vol 4 (92) ◽  
pp. 166-176
Author(s):  
А.В. Коваленко
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Forensic Science ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Sound Sources ◽  
European Court ◽  
Criminal Offenses

The article is devoted to identifying the main sources of forensic recommendations for the collection, examination and use of evidence in criminal proceedings. The author emphasizes that the relevance, sufficiency, practicality and methodological literacy of these recommendations should be ensured by the use of appropriate scientifically sound sources for their formation. The sources of formation of such recommendations are: the most relevant provisions of forensic science; provisions of the legislation of Ukraine on criminal liability and provisions of the science of criminal law; provisions of the criminal procedural legislation of Ukraine and achievements of science of criminal procedure; legal positions formulated by the European Court of Human Rights; the practice of detection, investigation and trial of criminal offenses; scientific provisions of other (non-legal) sciences, which are integrated by forensic science and implemented in law enforcement practice.

scholarly journals Forensic description as an element of the methodology of investigation of criminal offenses against morality

2020 ◽  
Vol 3 (3) ◽  
pp. 161-167
Author(s):  
Mykola Yefimov
Keyword(s):  
Police Officers ◽  
Scientific Article ◽  
Turn Of The Millennium ◽  
Structural Elements ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Offenses ◽  
Special Knowledge ◽  
Investigation Process ◽  
Practical Recommendations

The scientific article is devoted to the study of some aspects of the investigation of criminal offenses against morality. Peculiarities of forensic characteristics as an element of the methodology of investigation of this category of criminal offenses are considered. The author emphasizes that any method of investigating certain types of criminal offenses has a certain structure, an important element of which is the forensic characteristics. The concept of forensic characteristics as an element of methodology, quantity, content and significance of structural elements of this scientific category remain vague and contradictory. Moreover, at the turn of the millennium, the question of the expediency of the existence of forensic characteristics as a scientific category in general became acute. Therefore, it should be borne in mind that the value of forensic characteristics can be divided into practical and theoretical. For police officers who are directly involved in the investigation, the most important thing is the practical application of a tool that will help in the investigation process. It is noted that the method of investigation of certain types of criminal offenses is a system of sci-entific provisions, as well as methodological and practical recommendations developed on their basis for the investigation of certain types and groups of criminally punishable acts. It is emphasized that the structure of the studied scientific category is as follows: forensic charac-teristics of criminal offenses; analysis of primary information and initiation of criminal proceedings; cir-cumstances to be proved in criminal proceedings; typical investigative situations; features of conducting initial investigative (search) actions, covert investigative (search) actions and other measures; features of further investigative (search) actions, covert investigative (search) actions and other measures; features of the use of special knowledge during the investigation of a criminal offense; preventive activities of the investigator in relation to the causes and conditions that contributed to the commission of a criminal offense; features of the investigator's activity at the final stage of the investigation.

The European Court of Human Rights on the ‘Access to a Lawyer’ Directive 2013/48/EU: the Quest for a Coherent Application of the Right to a Legal Assistance in Europe?

2021 ◽  
Vol 11 (2) ◽  
pp. 211-241
Author(s):  
Nasiya Daminova
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Direct Analysis ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Police Interrogation ◽  
European Court ◽  
Criminal Justice Systems ◽  
The Right ◽  
Due Process Rights

The right to a custodial legal assistance has always been considered a key procedural guarantee in criminal proceedings, which allowed for the effective realisation of other ‘due process’ rights of the suspected or accused person. The ‘Access to a lawyer’ Directive 2013/48/EU is one of the outcomes of the massive legal reform which followed the famous Salduz ruling (2008), where the European Court of Human Rights (ECtHR) prominently stated that the accused shall be provided with assistance of counsel since the initial stages of police interrogation. At the same time, scholars have not paid attention to the possible effects of Directive 2013/48/EU on the practice of the Strasbourg Court. The aim of this paper is to shed light on the way the ‘Access to a lawyer’ Directive is perceived by the ECtHR, given the incredible uncertainty surrounding this issue. The author argues that - paradoxically - the Directive text seems to have had significant impact on the Ibrahim, Simeonovi, Beuze lines of reasoning, framing possible derogations from maximum guarantees of access to a lawyer stemming from the earlier Salduz judgement. Even though the ECtHR tends to avoid direct analysis of the Directive 2013/48/EU provisions, it seems to have accepted the lowest level of protection provided by this EU Law act. This could be rather problematic for the non-EU Convention signatories’ criminal justice systems, being encouraged to follow the standard of procedural guarantees stemming from the EU legal order - which these states preferred not to join (or were not allowed to join).

scholarly journals The admissibility of improperly obtained evidence: The universality of the problem and the diversity of approaches to solving it

Pravovedenie ◽  
2019 ◽  
Vol 63 (3) ◽  
pp. 460-480
Author(s):  
Pavel P. Stepanov ◽  
◽  
Gleb E. Besedin ◽  
◽  
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Due Process ◽  
International Criminal ◽  
Crime Control ◽  
Criminal Court ◽  
International Criminal Justice ◽  
Criminal Proceedings ◽  
European Court ◽  
The Law

The article focuses on the issue of acknowledging inadmissible evidence obtained in violation of the law. According to the authors, this issue can be encountered, in one way or another, in any procedural system (both at the national and international levels). In this regard, the authors substantiate the relevance and ambivalence of the issue for the Russian criminal proceedings. Also, the authors use the scientific works of scholars belonging to the Soviet, early post-Soviet and modern periods of the development of Russian criminal proceedings, as well as materials of judicial practice from various years in order to demonstrate the evolution of approaches to the solution of the topic. In order to demonstrate universality of the issue, the authors analyze, in a comparative legal sense, the approaches of leading foreign procedural systems. It is concluded that there is a tendency that foreign legal systems are searching for the recognition criteria of evidence obtained in violation of the law to achieve a balance between the two areas of criminal procedural policy: ‘due process of law’ and ‘crime control’. Usually, the violation of human rights committed in obtaining evidence per se does not entail the finding of such evidence as unacceptable. The authors focus on the same issue, but in the scope of international criminal justice which combines the approaches of both the investigative (inquisitorial) and the accusatory (adversary) criminal procedure traditions. It is indicated that the bodies of international criminal justice (in particular, the International Criminal Court), when forming their position on the issue under consideration, are guided in many respects by the law enforcement practices of international bodies for the protection of human rights (primarily, the decisions of the European Court of Human Rights). The authors conclude that it is possible to use the criteria for the inadmissibility of evidence specified in the Rome Statute and the decisions of the European Court of Human Rights for Russian criminal proceedings due to the transitional nature of the criteria.

scholarly journals Prevention of Criminal Offenses as One of the Tasks of Criminal Proceedings

2020 ◽  
Vol 79 (4) ◽  
pp. 86-91
Author(s):  
А. В. Рось ◽  
Р. М. Балац
Keyword(s):  
Crime Prevention ◽  
Historical Development ◽  
Criminal Proceedings ◽  
Topical Problem ◽  
Criminal Offense ◽  
Current State ◽  
Criminal Offenses ◽  
Practical Research ◽  
Procedural Code

The topical problem of preventing criminal offenses as a task of criminal proceedings has been studied. It has been established that the current state of crime in Ukraine and the negative tendencies that have occurred in the process of its development in modern conditions, in particular the growing number of criminal offenses, necessitates scientific and practical research to combat these socially dangerous phenomena, including in regard to the forms, methods and means of their prevention. The emphasis has been placed on crime prevention as the most socially dangerous acts. The historical development of crime prevention at different stages of society development has been studied. The author has analyzed regulatory acts of Ukraine, which contain the tasks on preventing criminal offenses within criminal proceedings. Certain terms have been defined, in particular: “prevention”, “preventive activities”, “cessation of criminal offenses and their relationship”. The author of the article hold the view that all the specified terms have a common feature, which is to carry out actions that prevent the commission of criminal offenses. The concept of “prevention of criminal offenses during the pre-trial investigation” has been formulated, which should be understood as the activities of investigators, interrogators, prosecutors aimed at applying certain procedural measures provided by the Criminal Procedural Code of Ukraine in order to prevent a person suspected of committing a criminal offense to commit criminally illegal or other actions that could destabilize the investigation of criminal proceedings. It has been concluded that it is necessary to further improve the functions of investigators (interrogators) on preventive activities during the pre-trial investigation of criminal proceedings to eliminate the identified causes and conditions that contributed to the commission of a criminal offense as one of the tasks of criminal proceedings.

Taking of biological samples for expertise under the legislation of Ukraine and its conformity with EU standards

2021 ◽  
Vol 28 (3) ◽  
pp. 290-300
Author(s):  
Viktoriia V. Rohalska ◽  
Oksana M. Bronevytska ◽  
Halyna D. Boreiko ◽  
Iryna S. Shapovalova ◽  
Iryna R. Serkevych
Keyword(s):  
Human Rights ◽  
Biological Samples ◽  
Comparative Method ◽  
Medical Intervention ◽  
Private Life ◽  
Criminal Proceedings ◽  
European Court ◽  
Procedural Code ◽  
Protection Of Human Rights ◽  
The Right

The analysis of investigative and judicial practice shows that some lawyers regard the refusal of a person to provide voluntarily biological samples for examination as an execution of his/her right not to testify against him/herself. Analysis of the provisions of separate Judgements of the European Court on Human Rights allows us to conclude that the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and concerns the most intimate aspects of private life, and compulsory medical intervention, even insignificant, constitutes an interference with this right. Therefore, the criminalprocedural characteristic of obtaining of biological samples for expertise is given in the article. The authors analyzed and answered the questions: which particular samples should be attributed to biological ones, and whether it is possible to refuse to voluntarily granting of biological samples for examination in accordance to the realization of the right not to testify against him/herself. The possibility of obtaining of biological samples for examination from a person who is not a party to criminal proceedings or has not acquired procedural status has been considered. The article as well deals with the legality of obtaining of samples for examination before submitting information into the Unified Register of Pre-trial Investigations. The algorithm of actions of obtaining of biological samples for examination, including the compulsory order, is proposed. The following general scientific research methods were used: the dialectical method of legal phenomena, with the help of which the concept and the legal nature of biological samples for examination were studied; the comparative method – in the process of comparing the norms of the Criminal Procedural Code of Ukraine (CPC) with the norms of the European Court of Human Rights (ECHR) and decisions of the ECHR, etc.

scholarly journals Theoretical and Applied Issues of Standardization of the Terms of Prejudicial Inquiry before Handling a Charge Sheet to a Person

2020 ◽  
Vol 90 (3) ◽  
pp. 224-234
Author(s):  
Т. О. Кузубова
Keyword(s):  
Criminal Proceedings ◽  
Criminal Offense ◽  
Advantages And Disadvantages ◽  
Judicial Practice ◽  
Specific Term ◽  
Criminal Offenses ◽  
General Rules ◽  
Procedural Code ◽  
A Charge ◽  
Legal Consequences

The latest amendments to the Criminal Procedural Code of Ukraine, which are related to the terms of inquiry before handling a charge sheet to a person, have been studied. The author has carried out the analysis of judicial practice of applying the provisions of the Criminal Procedural Code of Ukraine regulating prolongation of terms of prejudicial inquiry of crimes before handling a charge sheet to a person depending on gravity of a crime and other criteria, which are guided in practice by investigators, prosecutors while determining the urgency of criminal proceedings. The author has compared legal positions of scholars and practitioners, in particular lawyers and prosecutors, on the advantages and disadvantages of establishing clear terms for prejudicial inquiry of crimes before handling a charge sheet to a person. The author has provided the legal assessment of the procedure to cease the criminal proceedings in case of expiration of the terms of prejudicial inquiry before handling a charge sheet to a person. The author has conducted a comparative analysis of the legal consequences of the two general rules of prejudicial inquiry, namely: uncertainty of the terms for prejudicial inquiry of criminal offenses before handling a charge sheet to a person in the Criminal Procedural Code of Ukraine and regulation of clear terms for prejudicial inquiry of crimes before handling a charge sheet to a person in the provisions of the Criminal Procedural Code of Ukraine. The emphasis has been placed on the fact that the specific terms of prejudicial inquiry according to the theory of criminal procedure, are determined in the criminal procedural legislation in accordance with the severity of the criminal offense. At the same time, the author has emphasized that the gravity of the committed criminal offense should not determine the presence or absence of a specific term of prejudicial inquiry in conjunction with all the legal consequences of its clear establishment. The author has distinguished a number of applied issues related to the establishment of clear terms for the prejudicial inquiry of crimes before handling a charge sheet to a person, as well as the application of the rule to cease criminal proceedings in case of their completion. The author has suggested the ways to solve practical problems on the outlined issue, in particular, propositions to exclude destructive provisions from the Criminal Procedural Code of Ukraine, namely provisions setting the terms for prejudicial inquiry of crimes before handling a charge sheet to a person, and related provisions.

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.

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