scholarly journals International Standards for Ensuring the Right to Liberty and Personal Security in Criminal Proceedings of Ukraine

2020 ◽  
Vol 9 (29) ◽  
pp. 250-257
Author(s):  
Valeriy Dmytrovych Pcholkin ◽  
Olena Valeriivna Fedosova ◽  
Liubov Vyacheslavna Kotova ◽  
Valentina Alexandrovna Merkulova
Keyword(s):  
System Analysis ◽  
International Standards ◽  
Criminal Proceedings ◽  
Personal Security ◽  
Legal Standards ◽  
European Court ◽  
European Values ◽  
Legitimate Interests ◽  
The Subject ◽  
The Right

The purpose of this research is to analyze international legal standards that guarantee the right to liberty and personal security in criminal proceedings. The subject of the study was the requirements of international acts, the decision of the European Court of Human Rights and the provisions of the current criminal procedural legislation of Ukraine on the issues of guaranteeing and securing of that right. The authors of the article used the following methods: dialectics, comparative legal, system analysis, formal logic. The relevance of the topic of this article depends on the fact that the current direction of the reform of the criminal procedural legislation is aimed at strengthening the legal guarantees for the protection of a person, protection of his rights, freedoms and legitimate interests in criminal proceedings. Such a fundamental right of every human being as the right to liberty and personal security is no exception to this. In this context, the legal mechanisms for the application of coercive measures need to be reviewed, re-evaluated and adjusted. This, of course, reflects the approximation of national law to international legal standards, European values, the establishment of the rule of law, and so on.

scholarly journals The right to information in criminal proceedings in the context of international legal standards.

2021 ◽  
Vol 3 (3) ◽  
pp. 266-271
Author(s):  
Oksana Pchelina
Keyword(s):  
Human Rights ◽  
International Standards ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Legal Standards ◽  
Court Proceedings ◽  
Right To Information ◽  
The Right ◽  
Procedural Rights ◽  
Material Evidence

It has been noted that such activities are a sphere of public life, which is inextricably linked with the need and possibility of coercion, which clearly indicates the restriction of certain human rights and freedoms to ensure the effectiveness of pre-trial investigation and trial. The provisions of international legal acts proclaiming and ensuring human rights and fundamental freedoms in criminal proceedings have been analyzed. It has been emphasized that in the specified international legal acts there is no interpretation of the right to information, and also it is not considered as the separate right. The essence of the right to information and its place in the system of human rights and freedoms has been determined. The author’s understanding of the concept of the right to information in criminal proceedings has been offered, its content has been revealed and its compliance with international standards of human rights and freedoms has been clarified. The right to information in criminal proceedings has been defined as the possibility and procedure for obtaining, using, disseminating, storing and protecting information provided by the criminal procedure legislation of Ukraine, which determines the principles of criminal proceedings and ensures the solution of its tasks. It has been emphasized that the right to information in criminal proceedings in the context of international legal standards is multifaceted in nature, which allows us to consider it in several aspects, namely as: the basis of criminal proceedings; providing information on procedural rights; informing the person about his / her detention, suspicion / accusation of committing a criminal offense; gaining access to information on material evidence; a ban on the disclosure of information obtained during the pre-trial investigation and court proceedings, and its use not to solve the problems of criminal proceedings.

scholarly journals Victims‘ rights: The European court of human rights' practice and legislation in Serbia

Temida ◽  
2015 ◽  
Vol 18 (3-4) ◽  
pp. 145-166
Author(s):  
Milica Kovacevic
Keyword(s):  
Human Rights ◽  
Real Life ◽  
Case Law ◽  
International Standards ◽  
Criminal Proceedings ◽  
Human Rights Practice ◽  
European Court ◽  
The Status ◽  
Specific Standard ◽  
The Right

The paper deals with rights and position of victims in international documents, with special reference to the standards created by the European Court of Human Rights through its practice. This paper aims to provide brief analysis of some of the most important international documents, which set forth basic rights for victims, including: right to participate in the criminal proceedings, right to protection and the right to compensation. The paper intends to analyze these key right (standards, principles) through relevant case law of the European Court of Human Rights, given that the wording of the relevant documents does not determine what entails the realization of a specific standard in real life. The main purpose of the article is to examine the compliance of regulations and practices in Serbia with international standards on the status and the rights of victims, from which some recommendations for improvement might arise.

scholarly journals The current issues of the protection of the rights, freedoms of participants of criminal proceedings at the stage of judicial consideration

2020 ◽  
pp. 71-82
Author(s):  
Oleksandr Omelchenko ◽  
Vladislav Rebezyuk
Keyword(s):  
Human Rights ◽  
International Experience ◽  
International Standards ◽  
Criminal Proceedings ◽  
Independent State ◽  
Legal Norms ◽  
Control Functions ◽  
Legitimate Interests ◽  
Court Proceedings ◽  
The Right

This article explores the issues of protecting of the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration. Consequently, examines of the current state and prospects of protecting the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration is carried out. The current problems and ways of solving the issue of protecting the rights and freedoms of participants in judicial proceedings are considered. This article deals with the issues concerning of the protection of rights and freedoms in criminal proceedings. An indicator of the availability of justice is a component of the right to a fair trial, the existence of an optimal system of court costs and developed mechanisms for providing legal assistance to the poor. Meanwhile, all court judgments should be based on the current Constitution of Ukraine, as well as on the current legislation, without contradicting with them. The International experience in protecting the human rights and freedoms is very important and has a significant impact on the domestic legislation of both our state and other democratic states as a whole. The International standards of fundamental human rights and freedoms and their legitimate interests is the basis that fills the international experience in protecting human rights, freedoms and legitimate interests. The main provisions of the Constitution of the community of democratic states on human rights and freedoms must comply with all international standards, since the protection of rights, freedoms and legitimate interests ensures the sovereign, democratic and independent state. Each civilized state must ensure the implementation of legal guarantees for the protection of the rights, freedoms and legitimate interests of its citizens, this will become the key to the democratic development of the state. To summarize, the public is interested in ensuring that the rule of law is guaranteed through fair, impartial and effective administration of justice. The prosecutors and the judges ensure at all stages of the trial the guarantee of human rights and freedoms, as well as the protection of public order. This covers respect for the rights of the accused and the victims. Protecting the human rights in criminal proceedings at the trial stage is one of the main challenges facing the courts, prosecutors and lawyers. The opportunities of judicial protection through a system of various forms of judicial review is not only an additional guarantee of rights and freedoms, but also a condition for their speedy restoration. Key words: court proceedings, organizational and legal mechanism, protection of the rights, court decision, court control functions, The European Court of Human Rights, legal decisions, legal norms, court proceedings, protection of freedoms, availability of the justice.

scholarly journals ON THE ROLE OF THE STATE IN ENSURING EFFECTIVE DEFENSE IN CRIMINAL PROCEEDINGS FOR THE PURPOSES OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
pp. 158-163
Author(s):  
M. H. Motoryhina
Keyword(s):  
Human Rights ◽  
The State ◽  
Special Role ◽  
Criminal Proceedings ◽  
Human Right ◽  
Defense Counsel ◽  
Legal Standards ◽  
Role Of The State ◽  
European Court ◽  
The Right

The article presents the issues on ensuring effective defense in criminal proceedings. Analysis of international legal documents, generalization of the practice of the European Court of Human Rights give grounds to divide international legal standards, that have been formed to facilitate the enforcement of the right to defense, into the following groups: 1) standards designed to facilitate the effectiveness of the defense by the accused him- or herself; 2) standards facilitating effective defense by the defense counsel; 3) standards, the adoption of which contributes to the effective defense maintained by the defense (when the defense is conducted jointly by the accused and the defense counsel) 4) standards that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense. The latter group of standards is important among others because the conduct of defense seems impossible without imposing certain requirements on the state and its bodies, and fixed guarantees of effective defense will turn into a declaration. The study of the case law of the European Court of Human Rights on maintaining effective defense in criminal proceedings allows us to state the lack of unity in its legal positions, since the issue of the effectiveness of ensuring the human right to defense in criminal proceedings depends on the specific circumstances of the case. The court notes that, on the one hand, the state can only intervene in the activities of defense counsel within the limits of public interests, given the independent nature of the legal profession. On the other hand, it cannot stand aside in the event of the discovery of violations of the standards for the conduct of defense in criminal proceedings, which assigns it a special role in maintaining effective defense for the suspect, the accused in criminal proceedings. Based on the analysis of the decisions of the European Court of Human Rights, standards are identified that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense: 1) the obligation of the state to conduct real (not illusionary or formal) defense for the suspect, the accused, since the appointment of a defense counsel does not ensure maintaining effective legal services; 2) the obligation to provide the defense team with the time and opportunity to conduct effective defense.

scholarly journals ASSESSMENT OF THE CONCLUSIONS OF «SCIENTIFIC JUDGES» IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2019 ◽  
pp. 125-137
Author(s):  
N. Akhtyrska
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Video Recording ◽  
The State ◽  
International Standards ◽  
Plain Language ◽  
Criminal Proceedings ◽  
Case File ◽  
European Court ◽  
The Right

The article, based on an analysis of judicial and investigative practices, highlighted the complex issues relating to the legal status of an expert and a specialist, ensuring their independence, evaluating and using the conclusions of an expert and a specialist by the court in strict compliance with and ensuring the principle of equality of the parties in the criminal process. The defense has the right to request the cross-examination of the expert, regardless of whether he was questioned at the pre-trial investigation stage. This does not exclude the possibility of using the previous testimony in court (protocol, audio, video recording), but only for the purpose of establishing contradictions. Refusal to satisfy the petition is a violation of the Convention requirements for a fair trial and equality of the parties. A tacit refusal of any guarantee of justice is not excluded, but at the same time, the existence of such a refusal must be proved «unequivocally». The court is obliged to accept as evidence from the defense the findings of the expert on the same issues on which the prosecution provided the findings of the state examination. The rules of admissibility of evidence may sometimes be contrary to the principles of equality of the procedural capacities of the parties and the adversarial process or otherwise affect the fairness of the proceedings. The rules for the admissibility of the conclusions of a specialist should not deprive the party of defense of the opportunity to effectively challenge them, in particular, by using them in the case or obtaining other opinions and conclusions. The state prosecution is obliged to disclose to the defense all available evidence (the conclusions of the examination for the benefit of the prosecution, and for the benefit of the defense). Hiding expert conclusions is a violation of the principle of equality of the parties. In the context of globalization, it is often necessary to use evidence obtained in the territory of a foreign state. All documents must be provided to the defense for review in plain language. If at the end of the investigation some documents are not translated and it is provided only after the start of the judicial review, the court is obliged to announce their contents and provide them for review. According to the Court, this does not constitute a violation of the right to defense. In case of poor-quality translation, the party has the right to request a re-transfer. If documents in a foreign language remain in the case file (without translation), this does not indicate a violation of convention standards if the arguments contained in these documents are not based on the indictment or conviction. Thus, in order to provide methodological assistance to law enforcement agencies and courts in the application of legislation related to the involvement of experts and the assessment of their findings, it is necessary to develop guidelines with regard to international standards, convention requirements, as well as to make changes and additions to existing legislation. Key words: criminal proceedings, «scientific judges», questioning of an expert, expert opinion, specialist opinion, European Court of Human Rights.

scholarly journals LEGAL STANDARDS OF THE EUROPEAN COURT OF HUMAN RIGHTS REGARDING REQUIREMENTS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINFL PROCEEDINGS

2020 ◽  
pp. 252-261
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
The State ◽  
International Standards ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Procedure Code ◽  
European Court ◽  
Protection Of Human Rights

The article deals with the requirements of the European Court of Human Rights regarding evidence and evidence, which are disclosed in the provision of paragraph 3 of Article 6 “The right to a fair trial” of the Convention for the Protection of Human Rights and Fundamental Freedoms, the latest practice of the Supreme Court regarding the criteria for admissibility of evidence and analysis of the current criminal procedural law. As you know, the attitude of the state towards the protection of human rights and freedoms is one of the indicators of its democracy. Ukraine has chosen the European Community as the main strategic vector of development. Such a vector provides for the unification of the regulatory framework in accordance with European legislation, as well as compliance by law enforcement agencies with international standards for the protection of the rights and freedoms of citizens. That is why, the corresponding rule is enshrined in the Criminal Procedure Code of Ukraine, providing that the rule of law in criminal proceedings is applied taking into account the practice of the European Court of Human Rights (part 2 of article 8). A detailed analysis of the provisions of the Criminal Procedure Code of Ukraine regarding the admissibility of evidence in criminal proceedings and the relationship of these norms with the legal positions of the European Court of Human Rights is carried out. They also examined the requirements of the European Court of Human Rights regarding the admissibility of evidence in decisions in which a violation by the state of the norms of the Convention was found, and in decisions in which such a violation was not found. So, summarizing and analyzing the practice of the ECHR, we saw that the Court emphasizes that a guilty verdict cannot be generally based only on inadmissible evidence, and if such a sentence is pronounced, then this is a violation of Article 1 6 of the Convention in respect of an unfair trial. Therefore, the investigator, prosecutor, investigating judge and judge should take into account the relevant practice of the ECHR and the norms of the Convention in their procedural activities in order to avoid these violations and to submit complaints to the European Court of Human Rights in the future.

scholarly journals The right to receive qualified legal assistance in criminal proceedings: The concept, the relationship with the right to defense

2021 ◽  
Vol 21 (2) ◽  
pp. 198-205
Author(s):  
Galina I. Sedova ◽  
◽  
Vasilina Yu. Gromak ◽  
Keyword(s):  
International Standards ◽  
Criminal Prosecution ◽  
Legal Assistance ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Scientific Representations ◽  
Legitimate Interests ◽  
Definition Of ◽  
The Right ◽  
To Receive

Introduction. An important achievement of modern criminal procedure legislation and law enforcement practice is the implementation of international standards and democratic legal institutions concerning the strengthening of guarantees of respect for the rights, freedoms and legitimate interests of participants in criminal proceedings. Among them is the right of a person to receive qualified legal assistance. In this regard, it becomes important to analyse the system of scientific views and studies on the issue of qualified legal assistance and its relationship with the right to protection determined by the Constitution of the Russian Federation, and to determine the main characteristics to which such assistance should correspond. Theoretical analysis. The mechanism of procedural support of the right of a person against whom criminal prosecution is being carried out to receive qualified legal assistance is identified, and proposals are formulated to improve the legal guarantees of ensuring legal activity in its implementation. Empirical analysis. A definition of the right to qualified legal assistance has been developed, which represents the rights of a suspect, accused, or victim to use the help of a lawyer with legal education, who is part of the professional legal community, with a confirmed status, in order to ensure the implementation of the purpose of criminal proceedings – in terms of protecting the rights of victims of crimes – and all components of the right to protection from criminal prosecution and prosecution, which are enshrined in the current legislation at all stages of criminal proceedings. Results. The authors carried out a study on scientific representations of the right to qualified legal aid and the distinction between the right to protection and the right to qualified legal aid.

scholarly journals Implementation of the competitiveness of the parties during the trial in the criminal proceedings of Ukraine

2020 ◽  
pp. 70-76
Author(s):  
N. Syza ◽  
I. Syzyi
Keyword(s):  
Supreme Court ◽  
General Procedure ◽  
Case Law ◽  
Equal Rights ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Legitimate Interests ◽  
Court Proceedings ◽  
The Right

The article reveals the essence of the principle of adversarial proceedings of the parties and the peculiarities of its implementation during the trial in the criminal proceedings of Ukraine. The theoretical views of scientists, which determine the essence of adversarial proceedings and the role of the court in criminal proceedings, are considered. Through the prism of the parties' adversarial proceedings, the norms of the Criminal Procedure Code of Ukraine (CPC) are analyzed, which determine the general procedure of court proceedings, as well as the procedural form of individual court actions. Amendments to the CPC to provide introductory speeches at the beginning of the trial to both the prosecution and the defense, which are aimed at ensuring equal rights of the parties and expanding the adversarial nature of the parties at this stage. The problems of ensuring the adversarial nature of the parties have been clarified, taking into account the case law of the Supreme Court and the European Court of Human Rights (ECtHR). The analysis of the case law of the ECtHR concluded that ensuring the right to a fair trial in criminal proceedings presupposes that the trial, including procedural elements, must be adversarial and in this process the principle of equality of arms and defense must be ensured. Attention is paid to the peculiarities of the parties' adversarial proceedings in special court proceedings, jury trials and criminal proceedings in the form of private prosecution. It is established that in the case law of the Supreme Court the participation of the prosecutor in the trial of criminal proceedings in the form of private prosecution is recognized as a guarantee of equality and adversarial proceedings, as well as protection of the rights and legitimate interests of the victim. Such participation is obligatory, except in the case when the prosecutor refused to support the state prosecution, and the victim agreed to support the prosecution in court

ENSURING THE RIGHT OF THE SUSPECT TO GET ACQUAINTED WITH THE CASE MATERIALS IN THECRIMINAL PROCESS

2021 ◽  
Vol 6 (2) ◽  
pp. 76-81
Author(s):  
Kamoliddin Mavlanov ◽  
Keyword(s):  
Comparative Analysis ◽  
Sufficient Time ◽  
Criminal Proceedings ◽  
Relevant Issue ◽  
Current State ◽  
Foreign Countries ◽  
Legitimate Interests ◽  
The Subject ◽  
Effective Organization ◽  
The Right

This article is aimed at protecting the rights and legitimate interests of a suspect in the course of criminal proceedings, during which it is his right to protection that has beeninvestigated. Awareness of persons defending their interests in criminal proceedings, based on the materials of work at the early stages of the process, affects the effective organization of protection. The subject, who is obliged to prove, will have to provide the suspect with sufficient time and conditions to organize his defense. The article uses a comparative analysis to study the current state of our national criminal procedure legislation on the relevant issue, the experience of developed foreign countries

scholarly journals Jurisprudence of the European court of human rights in the choice of precautionary measures in criminal proceedings: legal realities and perspectives

2020 ◽  
Vol 38 (Especial II) ◽  
pp. 443-458
Author(s):  
Svitlana Romantsova ◽  
Igor Zinkovskyy ◽  
Ruslan Komisarchuk ◽  
Olha Balatska ◽  
Lesia Strelbitska
Keyword(s):  
Human Rights ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Method ◽  
European Court ◽  
The Subject ◽  
Precautionary Measures ◽  
The Right ◽  
Method Analysis ◽  
Selection Of

The article deals with the problems of application of the decisions of the European Court of Human Rights (ECHR) in the selection of precautionary measures in criminal cases in accordance with Ukrainian law. Since the procedural legislation of Ukraine is currently not perfect in the framework of the establishment and regulation of the application of precautionary measures, the decisions of the ECHR serve as an indispensable regulator of this issue. The objective of the work is to study the peculiarities of the application of the jurisprudence of the European Court of Human Rights in the selection of precautionary measures in criminal proceedings. The subject of the investigation is the jurisprudence of the ECHR in the context of the choice of precautionary measures in the criminal process. The research methodology included and combined the dialectical method, logical and legal method, analysis, synthesis. By way of conclusion, the study shows that the practice of the ECHR is mandatory to take into account not only the courts but also the investigators and prosecutors, who legally have the right to request the court to apply such precautionary measures.

Sign in / Sign up

Export Citation Format

Share Document