scholarly journals Evidentiary problems in the investigation of corruption crimes in Ukraine

2020 ◽  
Vol 9 (32) ◽  
pp. 117-124 ◽  
Author(s):  
Mikhailo Shcherbakovskyi ◽  
Ruslan Stepaniuk ◽  
Vasyl Kikinchuk ◽  
Oleksiy Oderiy ◽  
Liudmyla Svyrydova
Keyword(s):  
Human Rights ◽  
International Standards ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
Strict Adherence ◽  
Procedural Law ◽  
European Court ◽  
Timely Access

The fight against corruption in Ukraine is one of the main tasks of law enforcement agencies. However, the process of proving corruption crimes in criminal cases is accompanied by problems that negatively affect the quality of the pre-trial investigation. The purpose of the article is to identify and study typical investigative errors and develop recommendations on the proper use of means and methods of proof in criminal cases of corruption crimes, taking into account the norms of national legislation and international criteria for ensuring human rights in criminal proceedings. To achieve this goal, a comparative and systemic structural analysis of international and domestic regulatory legal acts and court decisions, a selective study of materials from criminal cases on corruption crimes were made. It has been established that the process of proving in cases of corruption crimes in Ukraine will fully comply with international standards for ensuring human rights, provided that operational officers, investigators, and prosecutors comply with the admissibility criterion of evidence, especially when using secret measures. Investigative errors that take place at the stage of pre-trial investigation in this category of criminal cases lead to the restriction of human rights and freedoms and consist in significant violations of the criminal procedural law when collecting, checking, and evaluating evidence, as well as when opening the collected materials to the defense. Preventing such violations requires strict adherence to the general requirements for conducting undercover activities, formulated in the decisions of the European Court of Human Rights and domestic courts. The proof must take into account the "fruit of the poisonous tree" doctrine of the inadmissibility of evidence derived from materials collected in violation of the law. The defense side should be provided with timely access to the materials of covert events, including the documents that served as the basis for their implementation. It is important not to allow actions that are regarded as a provocation (incitement) of the suspect to commit a corruption offense.

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 Topical problems of legislative regulation of defense mandatory participation in criminal proceeding

2021 ◽  
pp. 124-134
Author(s):  
T.V. Korcheva
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Criminal Procedure ◽  
International Standards ◽  
Criminal Proceedings ◽  
Human Rights Protection ◽  
Procedural Law ◽  
European Court ◽  
Legislative Regulation ◽  
Mandatory Participation

For a certain category of persons in particular cases legislator provides for a special procedure of criminal proceedings as well as mandatory participation of a defender (Article 52, The Code of Criminal Procedure) to create additional person defense guarantees in criminal proceedings. The article is devoted to study of problem aspects of legislative regulation of defense mandatory participation in criminal proceedings. The importance of defense mandatory participation is emphasized as rendering legal aid to a person in criminal proceedings. This article is devoted to study the importance of the mandatory participation of a defender in criminal proceedings and on the basis of obtained data, with due consideration of international standards of human rights protection in criminal proceedings, to submit substantiated author’s proposals as regards the expansion of the circle of grounds for the mandatory participation of a defender in Ukrainian criminal proceedings. Within the topic of study we analyzed criminal procedural legislation in force, research works in this area, decisions of European Court oh Human Rights, aiming to reveal deficiencies in law and submit author’s proposals as regards their elimination.  According to normative sense of Article 52, The Code of Criminal Procedure of Ukraine, the article gives classification of the grounds for mandatory participation of a defender depending on: 1) consideration of severity of a crime; 2) consideration of personal data of a defendant held criminally liable; 3) peculiarities of criminal proceedings.  Proposals are presented aimed to improve legislative regulation of Ukrainian criminal procedural law. It is proposed to add one more reason connected to the circumstance that the defendant denies suspicion against him/her and/or denies his/her guilt in commission of criminal offense. The proposal consists in addition to Article 52, Part 2, The Code of Criminal Procedure of Ukraine of new Item 10 postulating the mandatory participation of a defender in criminal proceedings against persons who deny a suspicion as specified in Suspicion Notice on deny pleading guilty at court session.

scholarly journals Proving Corruption in the Investigative and Judicial Practice of Ukraine: Problems and Solutions

2021 ◽  
Vol 80 (1) ◽  
pp. 101-108
Author(s):  
Р. Л. Степанюк ◽  
В. В. Кікінчук ◽  
М. Г. Щербаковський
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Scientific Literature ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
Judicial Practice ◽  
European Court ◽  
Problems And Solutions ◽  
Factual Data

The work is based on the analysis of the scientific literature, criminal and criminal procedural legislation of Ukraine, which regulates public relations associated with the identification, detection, investigation and judicial review of cases of illegal benefit by officials, on the precedents of the European Court of Human Rights on this issue, as well as the study and summarizing the materials of 200 criminal cases on illegal benefits considered by the courts of Ukraine in 2015-2019. It has been established that proof of corruption offences in criminal proceedings is the activity of the subjects of criminal proceedings, which consists of collecting, assessing and verifying factual data in order to establish circumstances relevant to the investigation. At the same time, procedural and tactical mistakes, as well as abuses on the part of prosecution agents, which lead to deficiencies in the process of proving the guilt of officials who commit corruption offences, are very common in the practice of the Ukrainian law enforcement agencies in this area.

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 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.

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 The Role of the Court in Proving Criminal Cases: Unexpected Cross-Industry Analogies

Legal Concept ◽  
2020 ◽  
pp. 117-122
Author(s):  
Aliya Sharipova
Keyword(s):  
Burden Of Proof ◽  
Active Role ◽  
Negative Consequences ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
Procedural Law ◽  
Analysis And Synthesis ◽  
Special Rules

Introduction: consideration of the issue of truth in criminal proceedings is replaced by the issue of the active role of the court in collecting evidence. Avoiding rhetorical questions allows the discussion to be redirected from an ideological framework to a legal one. The purpose of the work is to identify the patterns of litigation of different branches of procedural law related to the participation of state bodies in the case in defense of a large public interest. It is assumed that the high interest of the authorized state bodies in making judgments in their favor in criminal cases and in arbitration tax cases leads to the same type of legal phenomena in these different proceedings. The determining method of the research was the method of comparative jurisprudence. Also, the study used the methods of historicism, system-structural analysis and synthesis. Results: on the example of criminal and arbitration tax cases, an adjustment of procedural law and its application to the needs of state bodies was found to facilitate their winning cases. This is manifested at the level of the introduction of “special” rules that facilitate proof for tax and law enforcement agencies. The period of work of the tax authorities without such adjustment was distinguished by an explosive growth in its quality. Conclusions: true adversarial nature allows government agencies to improve the level of their work in terms of proving the legally significant circumstances of court cases. The rejection of adversariality, replacing it with the active role of the court, entails the redistribution of part of the burden of proof to it, which has far-reaching negative consequences for the quality of justice in the categories of cases under consideration in general.

scholarly journals THE USE OF POSSIBILITIES OF LINGUISTIC EXPERTISE TO ESTABLISH SIGNS OF PROVOCATION

2021 ◽  
pp. 656-673
Author(s):  
N. Akhtyrska
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Interpersonal Communication ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
International Convention ◽  
Judicial Practice ◽  
European Court ◽  
Law Enforcement Officials

The article discusses topical issues of the use of evidence obtained as a result of covert (investigative) search actions (hereinafter - CISA), in particular, control over the commission of a crime. An analysis of the investigative and judicial practice testifies to the ambiguous interpretation of the tactics of the CISA, which leads to the ruling of acquittals by the courts, since signs of provocation are established in the actions of law enforcement officials. The judicial practice has not developed a unified approach to assessing the actual circumstances of control over the commission of a crime. Different interpretations are allowed by the courts of first instance and appeal. International convention standards provide for the possibility of such measures that are effective in the fight against corruption. The European Court of Human Rights (hereinafter - the ECHR) also recognizes the legality of covert operations in the fight against organized crime and corruption. At the same time, the ECHR points to a number of signs that allow determining the legality of such actions. In particular, the ECHR identifies two groups of criteria: substantive and procedural. Some relate to the nature of the actions of both parties themselves, while others allow the court to assess and verify the procedural grounds and the procedure for conducting the operation. Despite the fact that the Decisions of the European Court of Human Rights are considered a source of law and the courts of Ukraine are obliged to use them in legal proceedings, in practice a number of unresolved questions arise when assessing evidence. That is, whether they are reliable and proper. Alternatively, is there a provocation, that is, a criminal offense, excluding person’s accusation? The general criteria for provocation is the repeated offer by the agent to commit any illegal actions; verbal, organizational, psychological acts aimed at provoking, an attempt to evoke compassion, pity; use of friendly ties. The very fact of expressing “abstract readiness” (to hand over an unlawful benefit) on the part of law enforcement agencies is not a provocation. A new direction in expert practice, linguistic expertise, which solves questions of speech and law, is used in Ukraine in this category of criminal proceedings extremely rarely. Since the operational purchase, test purchase, special investigative experiment are carried out in conditions of direct establishment of interpersonal communication, the content of communication should be considered from the point of view of tactical characteristics (psychological, organizational, speech), for the presence of a call to commit illegal actions by insisting, persuasion: – the use of nihilistic culture, the prevailing illegal practice (“Everybody does it”, “You have to live”), – willingness to pay (“I collected money”), – involvement in the subject’s problems, which he/she can solve with the help of illegal benefits. Using the example of a specific criminal proceeding, the author reveals the mistakes of the investigating authorities and justifies the advisability of raising the level of awareness regarding the use of the possibilities of linguistic expertise to establish signs of provocation, indicating passive corruption or the exclusion of charges.

scholarly journals Provocation of a crime in the legal positions of the European Court of Human Rights and in the national judicial system

2020 ◽  
Vol 11 (11) ◽  
pp. 334-339
Author(s):  
Zubrytska M. V.
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Criminal Activity ◽  
Law Enforcement Officers ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The legal positions of the European Court of Human Rights contain clear criteria for distinguishing provocation of a crime that violates the requirements of paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, from lawful conduct in the use of secret methods in criminal proceedings: 1) verification of the validity of the provocation (material criterion of provocation); 2) the procedure for reviewing the complaint on provocation (procedural criterion of provocation); 3) methodology of assessment of the European Court of Human Rights. When considering a defendant's complaint about the presence of signs of provocation in the actions of law enforcement agencies, national courts must establish the following procedural criteria: 1) whether there were grounds for monitoring the commission of the crime; 2) what is the measure of interference of law enforcement officers in the commission of a crime; 3) the nature of the actions to which the accused was subjected. In the legal positions of the European Court of Human Rights, examples of provocation to commit a crime are, in particular, the following: law enforcement on its own initiative contact with the applicant in the absence of objective suspicion of his involvement in criminal activity or propensity to commit a criminal offense; 2) renewal of the proposal by law enforcement officers, despite the previous refusal, to insist, exerting pressure. Based on the analysis of the legal positions of the European Court of Human Rights, it was concluded that a new presumption has actually appeared in the criminal law of Ukraine - provocation of a crime. The basis for it is Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, as well as the decision of the European Court of Human Rights in cases of provocation. The presumption of provocation of a crime is that an accused who has stated that he committed a crime under the influence of provocative actions of law enforcement officers cannot be prosecuted unless the investigation and the court establish otherwise. In national jurisprudence, courts most often considered the following situations as provocation of a crime: detection of a crime in the absence of objective information about the preparation for the commission of a crime or the beginning of its commission; inciting (pushing) a person to commit a crime through active and persistent actions; violation of the procedural order of conducting procedural actions. Keywords: provocation of a crime, provocation of bribery, incitement, initiative, exposing a crime.

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.

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