scholarly journals The role of free legal aid in the mechanism of access to justice

2020 ◽  
pp. 83-86
Author(s):  
Yurii Sverba
Keyword(s):  
Human Rights ◽  
Human Life ◽  
The State ◽  
Access To Justice ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Non Governmental Organizations ◽  
European Court ◽  
Wide Range ◽  
The Right

The article is dedicated to the analysis of Ukraine’s international obligations in the sphere of access to justice and, in particular,to legal aid.The case law of the European Court of Human Rights in the civil and criminal aspects relating to the criteria for the effectivenessof legal aid is reviewed, as well as the cases where such assistance should be provided free of charge by the state. Article 6 § 1 doesnot imply that the State must provide free legal aid for every dispute relating to a «civil right». There is a clear distinction betweenArticle 6 § 3 (c) – which guarantees the right to free legal aid in criminal proceedings subject to certain conditions – and Article 6 § 1,which makes no reference to legal aid. However, the Convention is intended to safeguard rights which are practical and effective, inparticular the right of access to a court.The national legislation governing the procedure for providing free legal aid is analyzed. The categories of persons eligible tofree secondary legal aid and the categories of cases in which such aid is provided are considered. As of today, there are 17 categoriesof persons eligible to free secondary legal aid. The Law lacks a single criterion for determining a person’s social vulnerability andprovides for a wide range of life circumstances that create the prerequisites for a person to obtain free secondary legal aid under thefollowing criteria: property, age, social status and case category.The institutional and regulatory development of the national legal aid system is described. Key directions for the development ofthe national legal aid system are outlined: improving the quality of the provision of free secondary legal aid and protecting the systemfrom political influence.The role and place of non-governmental organizations providing free legal aid in creating real access to justice was alsoexamined. As an example, the The Ukrainian Helsinki Human Rights Union promotes the development of humane society based onrespect to human life, dignity and harmonious relations between a person, state and nature through creation of a platform forcooperation between the members of the Union and other members of the human rights movement.It is stated that the interaction of the state legal aid system and non-governmental human rights organizations creates real accessto justice, and specifically to the European Court of Human Rights.

scholarly journals Some Approaches to Define the Concept of “Access to Justice”

2020 ◽  
Vol 11 (11) ◽  
pp. 208-213
Author(s):  
Sverba Y. I.
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
The State ◽  
Access To Justice ◽  
Constitutional Court ◽  
Legal Aid ◽  
Financial Barriers ◽  
European Court ◽  
The Right

The article is dedicated to the analysis of the concept of "access to justice". The national legislation, the case law of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as academic papers have been analyzed by the author. The author concludes that there are at least two approaches to define the concept of "access to justice": broadside and restricted one. The latter is inherent in Ukraine, since the Constitution stipulates that justice in Ukraine is exercised by the courts exclusively. The case law of the European Court of Human Rights explored in this article demonstrates a broad interpretation of the right to a fair trial, as quasi-judicial authorities are often empowered to make decisions that directly affect a person's rights and obligations. Foreign researchers are more progressive in determining the concept of access to justice: the latter is considered as an intention to resolve person's legal problems, not limited with access to classical judicial protection. Even though the access to justice concept is not legally defined, it includes the core elements as legal awareness of person’s rights; lack of financial barriers to access to the court; the right to free legal aid guaranteed by the state; a fair and independent court; a reasonable time to settle a dispute, as well as the enforcement of the judgment. The state could ensure the effective access to justice only if all of the said elements are implemented. At the same time, the states have both positive (to provide the right to free legal aid) and negative obligations (not to interfere with court activities, etc.). Keywords: access to justice, justice, right to a fair trial, rule

scholarly journals ACCESS TO JUSTICE IN CRIMINAL PROCEEDINGS: LEGAL STANCES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Lex Russica ◽  
2020 ◽  
pp. 56-67 ◽  
Author(s):  
T. Yu. Vilkova
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
European Court ◽  
Different Types ◽  
Protection Of Human Rights ◽  
The Right ◽  
Right Of Access

The article is devoted to the analysis of the stances developed in the case law of the European Court of Human Rights regarding the content, scope, general principles of ensuring the right of access to justice, and permissible limits applied to restrict the right in question. The author has substantiated the conclusion that the European Court of Human Rights associates access to justice with Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, the concept of access to justice includes a number of elements: the right to have recourse to court; the right to have a case heard and resolved in compliance with the requirements of a fair trial; the right to have the judgment enforced; the set of safeguards that allow the person to exercise the rights under consideration effectively. According to the European Court of Human Rights, access to justice should be ensured at all stages including pre-trial (criminal) proceedings and reviewing of court decisions by higher courts. However, the right of access to justice is not absolute. The restrictions imposed must have a legitimate purpose and reasonable proportionality must be obtained between the means used and the goal determined. In view of the requirement mentioned above, the national legislation may provide for the particularities of application of Paragraph 1 of Article 6 of the Convention to proceedings in different types of courts and at different stages, for example, by establishing a certain procedure for the court to grant individuals the right to appeal to a higher court. The author has demonstrated the main directions of applying the legal stances of the European Court of Human Rights regarding access to justice to improve the Russian criminal procedural legislation and law enforcement practices, as well as for further scientific research.

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 Advocacy as a tool for the realization of the fundamental right of a person to professional legal assistance

2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Status ◽  
Legal Profession ◽  
The State ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Legal Assistance ◽  
The Right ◽  
Legal Entities

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.

Risk and the European Convention on Human Rights: Towards a New Approach

2009 ◽  
Vol 11 ◽  
pp. 353-375 ◽  
Author(s):  
Christopher Hilson
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Nuclear Radiation ◽  
European Convention ◽  
Access To Justice ◽  
Public Concern ◽  
Initial Attempt ◽  
Liberal Conception ◽  
European Court ◽  
The Right

Abstract The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.

Extradition Between European and African Countries: Overcoming the Challenges

2021 ◽  
Vol 11 (3) ◽  
pp. 288-319
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Court ◽  
European Countries ◽  
Criminal Proceedings ◽  
African Countries ◽  
European Court ◽  
Real Risk ◽  
Civil Proceedings ◽  
The Right

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

scholarly journals The right to private communication using telecommunication means: National and international legal aspects of protection

2019 ◽  
Vol 68 ◽  
pp. 01021
Author(s):  
Olexandr Panasiuk ◽  
Larysa Grynko ◽  
Anna Prokhazka
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Legal Aspects ◽  
The State ◽  
European Countries ◽  
European Convention ◽  
Private Communication ◽  
Criminal Proceedings ◽  
The Right ◽  
Case Basis

Today's challenges dictate the need to strengthen the national and international legal mechanisms for the protection of personal data and the right to private communication. However, considered rights are not absolute. Legitimate restriction of guaranteed rights is possible, since these means of communication are a powerful tool in the investigation and disclosure of hard/very hard crimes, including transnational ones, especially considering the terrorist threats to Ukraine and other European countries. The possibility of restricting human rights, arising from the guarantees enshrined in the European Convention on Human Rights and consistently enshrined in the ECHR, demands from the state the least compulsory guarantee while interfering with the rights of individuals – to act “in accordance with the law”. Law protection of personal data and right to privacy are researched in the context of peculiarities of conducting investigative (search), secret investigative (search) and other procedural actions in criminal proceedings, which concern access to some telecommunication means (e.g., smartphones). Taking into account different functional purposes of technical means of telecommunication, access and collecting of evidence contained therein, should be carried out on a case-to-case basis, in a different procedural form, considering specifics of telecommunication technologies in each particular case.

scholarly journals Unilateral declarations and the European Court of Human Rights: Between efficiency and the interests of the applicant

2018 ◽  
Vol 25 (5) ◽  
pp. 607-630 ◽  
Author(s):  
Lize R Glas
Keyword(s):  
Human Rights ◽  
The State ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
European Court ◽  
Unilateral Declaration ◽  
Human Rights Violation

Faced with numerous repetitive applications, the European Court of Human Rights (ECtHR) has welcomed the unilateral declaration mechanism as a way to handle these efficiently. In a unilateral declaration, the state admits a human rights violation and promises to provide redress to the applicant. On that basis, the Court strikes out an application and does not deal with its merits. Some authors and non-governmental organizations warn against losing sight of the applicants’ interests whilst relying on unilateral declarations. Against this background, this article aims to establish whether unilateral declarations are indeed (mostly) used to dispose of repetitive applications and how this procedure works in practice. The second aim is to determine whether the interests of the applicants are sufficiently protected when the Court rules on unilateral declarations. The analysis is based on all 1285 unilateral declarations, which the states parties to the ECHR have proposed in the five years following 2 April 2012.

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