scholarly journals The standard of proof “beyond a reasonable doubt” in criminal proceedings of Ukraine in the context of the ECHR case-law

2021 ◽  
Vol 10 (46) ◽  
pp. 281-289
Author(s):  
Oleksandr Drozdov ◽  
Volodymyr Hryniuk ◽  
Serhii Kovalchuk ◽  
Liliia Korytko ◽  
Galyna Kret
Keyword(s):  
Research Methodology ◽  
Practical Implication ◽  
Case Law ◽  
Reasonable Doubt ◽  
Criminal Proceedings ◽  
Standard Of Proof ◽  
Legal Method ◽  
Methods Of Analysis ◽  
The Subject ◽  
The Individual

The purpose of the paper is to determine a content of the standard of proof “beyond a reasonable doubt” (SP “BRD”) in the ECHRcase law and Ukrainian criminal proceedings by defining the criteria that characterize it. The subject is the SP “BRD”, doctrine of Ukraine and case-law, including its criticism by the individual judges of the ECHR and Ukrainian scholars. The research methodology includes the methods of analysis, the method of synthesis, the methods of deduction and induction, comparative-legal method, systematic and formal-legal methods. The results of the study. The acceptability of the SP “BRD” in the Ukrainian criminal proceedings is substantiated, in particular, its compliance with the purpose of criminal procedural proof. Practical implication. The criteria which characterize the SP “BRD” in the ECHR’s and SC’s case law are highlighted.

scholarly journals Reasonable Time in Criminal Proceedings of Ukraine in the Context of the European Court of Human Rights Case Law

2021 ◽  
Vol 11 (2) ◽  
pp. 701-715
Author(s):  
Bohdan Derdiuk ◽  
Serhii Kovalchuk ◽  
Snizhana Koropetska ◽  
Vasyl Savchenko ◽  
Oleksandra Smushak
Keyword(s):  
Human Rights ◽  
Practical Implication ◽  
Case Law ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Time Period ◽  
The Subject ◽  
Definition Of

The purpose of the paper is an analysis of the notion of reasonable time, period which is taken into account in their calculation and criteria for determining a reasonable time for criminal proceedings in Ukrainian criminal procedural legislation in the context of the European Court of Human Rights case law. The subject of the study is an analysis of Ukrainian criminal procedural legislation from the point of view of its conformity to the ECHR’s case law in the designation of a reasonable time, period which is taken into account in calculation of a reasonable time and criteria for its determining for criminal proceedings. The research methodology includes comparative legal, systematic, functional, formal legal and others methods. The results of the study. The period which is taken into account in calculation of a reasonable time and the criteria for its determining is studied comprehensively as a basis for definition of the notion of reasonable time. Practical implication. The range of suggestions for improvements of Ukrainian criminal procedural legislation relating content of reasonable time and mechanism used to their calculate is defined. Value / originality. Based on the results of an analysis the authors’ concept of reasonable time is proposed.

scholarly journals Social and legal nature of bullying

2021 ◽  
Vol 10 (37) ◽  
pp. 78-85
Author(s):  
Volodymyr Shablystyi ◽  
Svitlana Obrusna ◽  
Yuriy Levchenko ◽  
Vitaliy Gluhoverya ◽  
Viktoriia Rufanova
Keyword(s):  
Research Methodology ◽  
Practical Implication ◽  
Structural Method ◽  
Clustering Method ◽  
Historical Method ◽  
Legal Method ◽  
Legal Nature ◽  
The Subject ◽  
The Difference ◽  
Definition Of

The aim of the article is to analyze the concepts of bullying and mobbing, to determine their social and legal nature, to formulate our own definition of these terms. The subject of the study is an analysis of the concepts of bullying and mobbing. The research methodology includes the following methods: system and structural method, formal and dogmatic method, historical method, clustering method, comparative and legal method, legal modeling method and others. The results of the study. The definition of bullying is comprehensively studied, its types are singled out, the phases of its development are determined. Practical implication. The difference between bullying and mobbing, as well as between bullying and conflict, is studied. Value / originality. Based on the research conducted the authors’ concepts of bulling and mobbing are proposed.

Limits of proof in criminal proceedings

2020 ◽  
pp. 82-86
Author(s):  
Aleksei Marochkin ◽  
Viktoriya Slyvnaya
Keyword(s):  
Criminal Procedure ◽  
Reasonable Doubt ◽  
Main Body ◽  
Criminal Proceedings ◽  
Research Activity ◽  
Judicial Practice ◽  
Evidence Collection ◽  
The Subject ◽  
European Standards ◽  
The Moment

Problem setting. Proving in criminal proceedings is evidence collection and research activity of special subjects of criminal proceedings. The specific purpose of prooving is to obtain knowledge that is close to reality. To achieve this purpose, the theory of criminal procedure operates with the concept of “limits of proof”. In view of the above, it is important to study this phenomenon, because, firstly, there is no legislative regulation, and secondly, there is no unity in the theory of criminal procedure on this issue. Target research. The aim of the work is to define the concept of the limits of proof; to find out the moment of reaching the limits of proof and cases of narrowing and expanding the limits of proof; to analyze case law on this issue. Analysis of recent research and publication. The question of determining the limits of proof, their relationship with the subject of prooving has been the subject of scientific research. In particular, the works of such researchers in the field of criminal procedure as A.R. Belkin, V.V. Vapnarchuk, G.F. Gorsky, Yu.M. Groshev, V.S. Zelenetsky, E.G. Kovalenko, L.D. Kokorev, R.V. Kostenko, R.D. Rakhunov, В.В. Rozhnov, V.G. Tanasovich, F.N. Fatkullin, A.A. Khmirov deserve attention. Article’s main body. The article discusses the concept and significance of the limits of proof in criminal proceedings, analyzes the differences between them and other procedural categories, and analyzes doctrinal developments regarding the criteria for reaching boundaries and judicial practice in cases of expanding or narrowing the limits of proof. Conclusions and prospect of development. Thus, the study allows us to state that the concept of the limits of proof in criminal proceedings is multifaceted and important because it aims to achieve fair trial. The limits of proof are individual for each specific criminal proceeding, and an important criterion for determining it is the standard of proof of guilt “beyond a reasonable doubt”. That is why the future study of this phenomenon in criminal proceedings becomes relevant due to the need to bring national criminal proceedings closer to European standards of justice.

scholarly journals Uncertain Certainty?: Making Sense of the European Court of Human Rights’ Standard of Proof

2019 ◽  
Vol 8 (2) ◽  
pp. 155-187
Author(s):  
Christine Bicknell
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Detailed Examination ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Making Sense ◽  
European Court ◽  
Single Standard ◽  
High Level

The European Court of Human Rights (ECtHR) declares a single standard of proof (‘SoP’): proof beyond reasonable doubt (‘brd’). Yet the accuracy of this claim and the threshold’s appropriateness have both been challenged. This article uniquely considers and clarifies the Court’s interpretation and application of its SoP. Demonstrating SoP is capable of both broad and narrow interpretations, it shows the Court interprets SoP only narrowly. This understanding confirms brd as the applicable standard, whose use is then considered through detailed examination of the case law. The analysis shows that although the Court’s conception and approach to brd necessarily accommodate some doubt, violations are found with a consistently high level of certainty. There is however, a striking inconsistency in references made to the Rules of Court. Moreover, the Rules do not fully capture the Court’s approach. Addressing this, as the article proposes, would strengthen both the consistency and legitimacy of relevant decisions.

scholarly journals The German “Verständigung” and Consensual Elements in German Criminal Trials

2020 ◽  
Vol 21 (6) ◽  
pp. 1134-1148
Author(s):  
Matthias Jahn ◽  
Charlotte Schmitt-Leonardy
Keyword(s):  
A Priori ◽  
German Law ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Trials ◽  
Legal Doctrine ◽  
Negotiated Agreements ◽  
Traditional Sense ◽  
The Subject ◽  
The Individual

AbstractNegotiated agreements in criminal proceedings have often been regarded as the embodiment of a negative wider trend towards the informalization of the criminal procedure, and have—especially in Germany—long been the subject of vivid controversies. A criminal proceeding in the traditional sense aims to establish the truth ex officio, which is achieved by means of a comprehensive inquiry into the facts conducted by the court during the trial, followed by a sentence that appropriately reflects the individual guilt of the defendant, which can then, in turn, achieve the procedural objective of “justice.” A streamlining of the extensive inquiry into the facts that the court would normally have to conduct via the consensual process of negotiation does not, a priori, fit the mold of a criminal procedure in the aforementioned sense. At the same time, the consensual termination of criminal proceedings—which also includes other forms of termination of the proceeding besides the concept of Verständigung, which occur by means of a preferment of public charges—is, in fact, more prevalent in practice these days than judgments rendered in adversarial trials are. Our Article focuses on the reasons why this stark contrast between legal doctrine and reality came to pass and which aspects of the implementation of the concept of consensus into the German law of criminal procedure still seem problematic.

scholarly journals (Il)Legal evidence in criminal procedures in the case law of the Supreme Court of Cassation in 2019 and 2020

2021 ◽  
Vol 93 (2) ◽  
pp. 435-456
Author(s):  
Milana Pisarić
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Case File ◽  
Legal Evidence ◽  
The Supreme Court ◽  
The Subject ◽  
Illegal Evidence

The Criminal Procedure Code stipulates that court decisions may not be based on evidence which is, directly or indirectly, by itself or in the manner of obtaining it, contrary to the Constitution, this Code, other laws or the generally accepted rules of international law and ratified international treaties, except in proceedings conducted for the purpose of obtaining such evidence. Illegal evidence cannot be used in criminal proceedings and is therefore separated from the case file. If the judgment is based on illegal evidence, it can be challenged by the appeal against the judgment, but also by the request for the protection of legality. The subject of the paper is the analysis of the recent case law of the Supreme Court of Cassation (in the period from January 1, 2019 to December 31, 2020) regarding the requests for the protection of legality stated in connection with illegal evidence.

scholarly journals Repeated proceedings against suspected illicit wealth – justifiable protection of public interest or violation of human rights?

2021 ◽  
Vol 8 ◽  
pp. 38-56
Author(s):  
Skirmantas Bikelis
Keyword(s):  
Public Interest ◽  
Criminal Liability ◽  
Organised Crime ◽  
Reasonable Doubt ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
Standard Of Proof ◽  
Res Judicata ◽  
Legal Strategies ◽  
Repeated Assessment

The internationally acknowledged need for effective legal measures against illicit enrichment that is perceived as the key policy tool against organised crime and corruption triggered rapid developments in the variety of those legal measures. Lithuania may serve as a sole-standing example of a jurisdiction that enacted a great variety of legal strategies against illicit enrichment – criminal liability both for money laundering and illicit enrichment and also extended powers of confiscation, civil confiscation and tax fines for unexplained income. This diversity of measures leads to the issue of competition arising between them and also carries the risk that measures may be used repeatedly and arbitrarily against persons and their property.The paper focuses on the issue of the legitimacy of repeated investigation and assessment of suspicious assets in civil confiscation proceedings and extended powers of confiscation.The analysis is divided into two parts where fundamentally different legal situations are discussed. In the first situation, repeated assessment of the origin of the assets takes place in proceedings of similar legal nature (proceedings aiming to restore legal order). The second situation appears where reassessment takes place in proceedings of a different nature – in the restorative proceedings after failure to prove the illicit origin of the assets in the punitive proceedings.While the first situation rather clearly falls within the scope of the principle of legal certainty and the rule res judicata that prohibit repeated proceedings for the same issue in the same circumstances against the same person, the second situation is more open to debate. Punitive proceedings use the standard of proof beyond reasonable doubt and the presumption of innocence is in play. These safeguards are designed to protect defendants from unfounded conviction, but they may be considered excessive for other legal issues such as the recovery of damages or the proceeds of illicit activities. In addition, in the context of civil confiscation, public interest in effective protection from organised crime and corruption comes into play. Therefore, there are strong arguments for giving priority to public safety over the principle of legal certainty that would protect defendants from repeated assessment of their assets in other proceedings with a lower standard of proof or even the reversed presumption of the illegality of unexplained wealth.Finally, the paper addresses the question of whether extended powers of confiscation qualify for restorative or punitive proceedings. The answer to this question is the key argument of whether civil confiscation proceedings can legitimately follow criminal proceedings where the court failed to confiscate the assets on the grounds of extended powers of confiscation. The paper argues that extended powers of confiscation are of a restorative nature. Therefore, when assets have already been investigated in proceedings of civil confiscation and their origin has been assessed as lawful in the light of extended powers of confiscation, re-consideration of their origin should be deemed as infringing the principle of legal certainty, unless the decision in the criminal proceedings was barred by lack of formal grounds.

Religious tourism management: prospects for development in Ukraine

2020 ◽  
pp. 109-116
Author(s):  
Panchenko Svitlana
Keyword(s):  
Research Methodology ◽  
Marketing Research ◽  
Systemic Activity ◽  
Tourism Management ◽  
Methods Of Analysis ◽  
Religious Tourism ◽  
The Subject ◽  
Management Functions

The subject of the study is the management of religious tourism. the purposeof the study are ways to improve the sphere of religious tourism with the help ofthe main management functions. the research methodology consists in the application of methods of analysis, synthesis, comparison, generalization, forecasting,as well as in the use of systemic, activity, historical and cultural approaches.theresults of the work – proposals are presented for solving the problems of religioustourism, taking into account the specifics of this sphere. The problematic issuesin the field of religious tourism from the point of main management functions arehighlighted. conclusions – the study found that religious tourism has great potential in terms of management and marketing research in the field of tourism.

scholarly journals Administrative justice as a deterrent to the implementation of tasks within criminal proceedings

2021 ◽  
Vol 10 (40) ◽  
pp. 93-99
Author(s):  
Ihor Paryzkyi ◽  
Serhii Matvieiev ◽  
Serhii Bratel ◽  
Pavlo Komirchyi ◽  
Artem Zubko
Keyword(s):  
Structural Method ◽  
Criminal Proceedings ◽  
Synthesis System ◽  
Dialectical Method ◽  
Research Results ◽  
Methodological Basis ◽  
Legal Method ◽  
The Subject ◽  
Practical Implications ◽  
Administrative Justice

The purpose of the article is to clarify the problems of the institution of administrative justice of Ukraine in the context of the implementation of tasks within criminal proceedings. Subject of research: The subject of the research is the shortcomings in the administrative justice of Ukraine that can create obstacles to achieving the objectives within criminal proceedings. Methodology: The methodological basis of the article are general and special methods of legal science, in particular: dialectical method, logical and semantic method, methods of analyses and synthesis, system and structural method, formal and legal method, method of generalization. Research results: The bases for administrative justice in Ukraine are characterized, its value and main shortcomings are determined. Practical implications: The problems of administrative justice, which are a deterrent to solving problems in criminal proceedings, are analyzed. Value / originality: The consequences of the considered legal incompatibilies are determined and the ways to overcome them are suggested.

scholarly journals VERIFICATION AND ASSESMENT OF AN EXPERT’S CONCLUSION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 120-138
Author(s):  
O. Baulin ◽  
O. Izotov
Keyword(s):  
Legal Regulation ◽  
Reasonable Doubt ◽  
Presumption Of Innocence ◽  
Structural Elements ◽  
Criminal Proceedings ◽  
Scientific Validity ◽  
Standard Of Proof ◽  
Current State ◽  
Procedure Code ◽  
The Supreme Court

The article considers the procedural and forensic aspects of the verification and assessment of an expert’s conclusion in criminal proceedings, its regulation under the current legislation of Ukraine. The authors define the assessment of the expert’s conclusion and indicate its structural elements and features, as well as what is its difference from the verifying the expert’s conclusion, since the latter is characterized not only by the operations of mental activity, but also by the conduct of investigative (search) and other procedural actions. It is noted that the verification of the expert’s conclusion in criminal proceedings always precedes its assessment. The assessment of the expert’s conclusion includes the analysis of the follows: – compliance with the procedural rules for the appointment, conduct and execution of the xamination; – competence and adequacy of an expert; – expert’s conclusions on compliance with the tasks assigned to him/her; – completeness and scientific validity of the conclusion; – the data of the conclusion regarding its relevance; – compliance of the expert’s conclusion with other evidence collected in criminal proceedings. The subjects carrying out criminal proceedings pay particular attention to the modern practice of assessing the expert’s conclusion. The approach is perceived critically, according to which only the categorical conclusion of the expert has evidentiary value, and the court cannot base the judgment on the probabilistic conclusion. Based on the provisions of the principle of the presumption of innocence, and on the example of the assessment of the conclusions of the forensic medical examination on the probabilistic cause of the death of the victim, which was made by the Supreme Court, applying the standard of proof beyond reasonable doubt, the authors point to the obligatory use of probabilistic expert conclusions by courts to justify its acquittals. The article draws conclusions about the current state and limits of legal regulation of the assessment of an expert’s conclusion in criminal proceedings, the rules of which, according to the authors, do not need to be fixed in a separate article of the Criminal Procedure Code of Ukraine.

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