scholarly journals Directions of improvement of normative regulation of judicial status of investigating judge

2020 ◽  
pp. 30-45
Author(s):  
Svitlana Sharenko
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Due Process ◽  
Control Function ◽  
Legal Regulation ◽  
Private Life ◽  
International Standards ◽  
Judicial Control ◽  
The Right

he article deals with legal regulation of the procedural status of an investigating judge. The author examines the standards that are formulated in the relevant international legal acts, in the practice of the ECHR, in the positions expressed by European experts, and relates to the activities of an investigating judge. They are classified into three groups: (a) Standards defining as a whole the requirements for the place and role of the court in the implementation of criminal justice, and therefore extend to all judicial functions, including judicial control function; b) standards defining the requirements for the organization and implementation of the judicial control function at the stage of pre-trial investigation; c) standards that determine the requirements for observance of human rights and freedoms, and thus serve as guiding points for subjects exercising judicial control powers. Standards defining in general the requirement for the place and role of the court in the implementation of criminal justice (such as the availability of justice, binding judgments, fair trial, due process hearing, equality before the law and the court, parties' competition, transparency of the judicial system etc.),as well as standards that define requirements for the observance of human rights and freedoms (such as the right to liberty and security of person, the right to respect for private life, the right to protection, etc.) have already been sufficiently studied at the level of special investigations. The subject of this study is international standards, which determine the requirements for the organization and implementation of judicial control at the stage of pre-trial investigation. The author examines the standards of protection of constitutional rights by the court, a standard for clearly demarcating the role of investigator, prosecutor and investigating judge in order to ensure real competition at the stage of pre-trial investigation; the standard of the materiality of the right of restriction; standard of urgency of judicial control; the standard of the prohibition of the participation of an investigating judge in the examination of the merits. Key words: standards of activity of an investigating judge, judicial control powers, judicial control, the investigating judge.

scholarly journals Directions of improvement of normative regulation of judicial status of investigating judge

Legal Ukraine ◽  
2019 ◽  
pp. 38-47
Author(s):  
Svetlana Sharenko
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Due Process ◽  
Control Function ◽  
Legal Regulation ◽  
Private Life ◽  
International Standards ◽  
Judicial Control ◽  
The Right

The article deals with legal regulation of the procedural status of an investigating judge. The author examines the standards that are formulated in the relevant international legal acts, in the practice of the ECHR, in the positions expressed by European experts, and relates to the activities of an investigating judge. They are classified into three groups: (a) Standards defining as a whole the requirements for the place and role of the court in the implementation of criminal justice, and therefore extend to all judicial functions, including judicial control function; b) standards defining the requirements for the organization and implementation of the judicial control function at the stage of pre-trial investigation; c) standards that determine the requirements for observance of human rights and freedoms, and thus serve as guiding points for subjects exercising judicial control powers. Standards defining in general the requirement for the place and role of the court in the implementation of criminal justice (such as the availability of justice, binding judgments, fair trial, due process hearing, equality before the law and the court, parties’ competition, transparency of the judicial system etc.), as well as standards that define requirements for the observance of human rights and freedoms (such as the right to liberty and security of person, the right to respect for private life, the right to protection, etc.) have already been sufficiently studied at the level of special investigations. The subject of this study is international standards, which determine the requirements for the organization and implementation of judicial control at the stage of pre-trial investigation. The author examines the standards of protection of constitutional rights by the court, a standard for clearly demarcating the role of investigator, prosecutor and investigating judge in order to ensure real competition at the stage of pre-trial investigation; the standard of the materiality of the right of restriction; standard of urgency of judicial control; the standard of the prohibition of the participation of an investigating judge in the examination of the merits. Key words: standards of activity of an investigating judge, judicial control powers, judicial control, the investigating judge.

scholarly journals Islamic criminal procedure law: human rights issues

2020 ◽  
Vol 23 (10) ◽  
pp. 47-57
Author(s):  
Yusif Mamedov
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Due Process ◽  
Economic Status ◽  
Burden Of Proof ◽  
The Law ◽  
The Right

It has been established that harsh Islamic punishments are practically not applied due to the high burden of proof and the need to involve an exhaustive number of witnesses. It has been proven that the Islamic criminal justice system provides the accused with basic guarantees. It is noted that according to Sharia, Islamic crimes are divided into three categories: Hadd, Qisas and Tazir. It is noted that Islamic criminal law provides that the accused is not guilty if his guilt is not proven. It is noted that equality before the law is one of the main legal principles of the Islamic criminal model, as all persons are equal before the law and are condemned equally regardless of religious or economic status (lack of immunity). There are four main principles aimed at protecting human rights in Islamic criminal law: the principle of legality (irreversible action), the principle of presumption of innocence, the principle of equality and the principle of ultimate proof. In addition, the Islamic criminal justice system provides defendants with many safeguards, which are always followed during detention, investigation, trial and after trial. It is established that such rights are: 1) the right of every person to the protection of life, honor, freedom and property; 2) the right to due process of law; 3) the right to a fair and open trial before an impartial judge; 4) freedom from coercion to self-disclosure; 5) protection against arbitrary arrest and detention; 6) immediate court proceedings; 7) the right to appeal. It is noted that if a person is charged, he/she has many remedies It is noted that the trial must be fair, in which the qadi (judge) plays an important role. It has been established that, in addition to the procedural guarantees, the qualifications and character of the qadi, as well as the strict requirements of Islamic rules of proof, are intended to ensure a fair trial in the case of the accused. Adherence to these principles has been shown to indicate that the rights of the accused are fully guaranteed under Islamic criminal law.

scholarly journals Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

scholarly journals PROTECTION OF THE RIGHT TO RESPECT FOR PRIVATE LIFE IN THE COURSE OF EDUCATIONAL ACTIVITIES IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

THE BULLETIN ◽  
2021 ◽  
Vol 2 (390) ◽  
pp. 262-267
Author(s):  
L. Yu. Fomina
Keyword(s):  
Human Rights ◽  
Private Life ◽  
International Standards ◽  
Educational Activity ◽  
Professional Activity ◽  
Educational Activities ◽  
European Court ◽  
The Right ◽  
Moral Attitudes ◽  
Legal And Ethical Requirements

The development of digitalization processes and their implementation in educational activities, the establishment of certain legal and ethical requirements for its participants determine the importance of ensuring privacy, identifying and preventing the actions that can be considered as interference with it, and specifying the limits of admissibility of such interference. The purpose of the article is to identify, analyze and generalize the rulings of the European Court of Human Rights regarding the protection of the right to respect for private life in relation to educational activities. Conclusions were made about broad understanding of private life and interference with it by the European Court of Human Rights in the framework of educational activities. It was pointed out that its content includes questions related to the teacher’s professional activity, the compliance of the participants in the educational activity with certain requirements for appearance and behavior, and control over their behavior using modern technologies. It was revealed that interference with private life in the course of educational activities is possible provided that certain criteria for its admissibility, connected with both moral attitudes of the subjects of such activities and with the developed international standards, are met.

scholarly journals Role of the Court in Protecting Human Rights in crime-control Model, Accrording to the Criminal Procedure Code of 2015

2018 ◽  
Vol 34 (1) ◽  
Author(s):  
Le Lan Chi
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Due Process ◽  
Crime Control ◽  
Criminal Procedure ◽  
University Of Pennsylvania ◽  
Study Guides

The court exercises the judicial power, thereby plays an important role in protecting human rights. However, such role varies across nations and models of criminal procedure. Vietnam, the country has been following the model of crime control, has its corresponding approach to the role of the court in protecting human rights. Notwithstanding, the current context of improving the rule of law and human rights has posed challenges and raised questions of changing the approach. Keywords The Court, adjudication, human rights, model, due-process, crime-control, the accused References [1] Herbert L. Packer, Two models of the criminal process, University of Pennsylvania Law Review, 1964, 1 (http://scholarship.law.upenn.edu/penn_law_review/vol113/iss1/1) [2] Joycelyn M. Pollock, Ethical Dilemmas and Decisions in Criminal Justice, Cengage Learning, Boston, 2015, p.116 [3] https://www.cliffsnotes.com/study-guides/criminal-justice/the-criminal-justice-system/which-model-crime-control-or-due-process [4] Fairchild, E. and Dammer, H. R., Comparative Criminal Justice System, 2nd ed. Belmont, Wadsworth Thomson Learning, 2001, p. 146 [5] Fairchild, E. and Dammer, H. R., Comparative Criminal Justice System, 2nd ed. Belmont, Wadsworth Thomson Learning, 2001, p. 148 [6] Đào Trí Úc, Hệ thống những nguyên tắc cơ bản của tố tụng hình sự Việt Nam theo Bộ luật tố tụng hình sự năm 2015 (in trong sách chuyên khảo “Những nội dung mới trong Bộ luật tố tụng hình sự năm 2015”, Nguyễn Hoà Bình (chủ biên), Nxb. Chính trị quốc gia – Sự thật, Hà Nội, 2016, trang 59.

Concentrate Questions and Answers Human Rights and Civil Liberties

2018 ◽  
Author(s):  
Steve Foster
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Freedom Of Expression ◽  
Civil Liberties ◽  
Private Life ◽  
European Convention ◽  
Expert Advice ◽  
Questions And Answers ◽  
Human Rights Act ◽  
The Right

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights & Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; make your answer stand out from the crowd. After an introduction, it covers: the nature and enforcement of human rights and civil liberties; the European Convention on Human Rights; the Human Rights Act 1998; the right to life; freedom from torture and inhuman and degrading treatment; due process, liberty and security of the person, and the right to a fair trial; prisoners’ rights; the right to private life; freedom of expression; and freedom of religion, association, and peaceful assembly.

scholarly journals Intelligence bodies of the state in the mechanism of ensuring the constitutional rights and freedoms of man and citizen: international standards and legislation

2020 ◽  
pp. 6-18
Author(s):  
Yuriy Voloshyn ◽  
Vladimir Proschayev
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
The State ◽  
International Standards ◽  
Constitutional Rights ◽  
Full Member ◽  
Legal Provisions ◽  
Intelligence Agencies ◽  
The Law ◽  
The Right

The place and role of state intelligence bodies in the mechanism of ensuring constitutional rights and freedoms of man and citizen according to international standards and in the light of the newly adopted Laws of Ukraine «On the Foreign Intelligence Service of Ukraine» and «On Intelligence» are studied. It is proved that in Ukraine, as in other post-Soviet states that did not have intelligence legislation, but began to create it after the declaration of independence, the process of constitutional and legal regulation of intelligence agencies consisted of four stages (transitional, initial, basic and modern). Describing each stage, the authors stressed that the Ukrainian legislator is now in the fourth stage, which is characterized by the improvement of already adopted legislation on intelligence activities or the adoption of completely new laws based on new versions or amendments to constitutions (basic laws). It is emphasized that Ukraine has been one of the first states in the territory of the former USSR to adopt the fourth (modern) stage since the adoption of new legislative acts on the activities of intelligence agencies. Undoubtedly, the impetus for this was the amendment of the Constitution of Ukraine on the strategic course of the state to become a full member of Ukraine in the European Union and the North Atlantic Treaty Organization, which radically changed the direction and direction of intelligence use of available forces and means. It is noted that the newly adopted legislation was developed not out of thin air, but based on a set of already adopted regulations that fully reflect the complex threatening situation around Ukraine and clearly indicate the place of intelligence agencies in a single system of national security. It was necessary to summarize all the adopted preliminary normative material and summarize it in new legislative acts, which would in a new way regulate all issues of intelligence functioning in modern difficult conditions. The main positive points in the newly adopted laws are identified, namely: 1) granting categories that were previously used only in the theory of intelligence, the status of legal categories, which indicates the beginning of the process of forming a completely new set of special legal terms; 2) inclusion in the text of a separate article on the observance of human rights and freedoms in the conduct of intelligence activities; 3) inclusion in the Law of Ukraine «On Intelligence» of a separate section on the peculiarities of democratic civilian control over intelligence; 4) granting the right to intelligence agencies to conduct intelligence affairs. It is proposed to consider in the Ukrainian legislation some legal provisions of the legislation of European countries regarding parliamentary control, which, according to the authors, will significantly increase the effectiveness of control. It is substantiated that the Law of Ukraine «On Intelligence» should contain: - a list of principles of intelligence activities must be defined; - the obligation of the authorized judge of the court to draw up a decision on the refusal to grant permission to conduct an intelligence event is more correctly formulated; - the right of intelligence agencies to provide training, retraining and advanced training of persons involved in confidential cooperation, in the manner prescribed by law for intelligence officers, is more clearly defined. It is concluded that the newly adopted laws provide comprehensive guarantees of compliance with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and fully reflect the needs of intelligence agencies in the legal regulation of their activities in modern conditions.

Concentrate Questions and Answers Human Rights and Civil Liberties

2016 ◽  
Author(s):  
Steve Foster
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Freedom Of Expression ◽  
Civil Liberties ◽  
Private Life ◽  
European Convention ◽  
Expert Advice ◽  
Questions And Answers ◽  
Human Rights Act ◽  
The Right

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights and Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; make your answer stand out from the crowd; and find relevant further reading. After an introduction, it covers: the nature and enforcement of human rights and civil liberties; the European Convention on Human Rights; the Human Rights Act 1998; the right to life; freedom from torture and inhuman and degrading treatment; due process, liberty and security of the person, and the right to a fair trial; prisoners’ rights; the right to private life; freedom of expression; and freedom of religion, association, and peaceful assembly.

scholarly journals Prevention of torture of persons deprived of liberty in Serbia: the State of affairs and challenges

Temida ◽  
2019 ◽  
Vol 22 (1) ◽  
pp. 79-104
Author(s):  
Natasa Tanjevic
Keyword(s):  
Human Rights ◽  
International Law ◽  
Justice System ◽  
International Standards ◽  
Criminal Sanctions ◽  
Degrading Treatment ◽  
The Republic ◽  
State Of Affairs ◽  
The Right

According to numerous international documents, the Constitution of the Republic of Serbia as well as relevant laws and by-laws related to the criminal justice system in general and the field of execution of criminal sanctions in particular, there is an absolute prohibition of torture, inhuman or degrading treatment or punishment and of inviolability of physical and psychological integrity od people. Thus, the most important international documents related to the prohibition of ill-treatment of persons deprived of liberty are analysed in the paper. Moreover, the aim of the paper is to determine the extent to which Serbian legislation complies with the international standards in this field. In order to identify possible shortcomings in this area and, consequently, the needs for improving the protection of persons deprived of liberty from torture, special attention is given to the role of independent monitoring mechanisms in the prevention of torture. This is particularly important if bearing in mind that the right to physical integrity and human dignity falls under the human rights category and that the prohibition of torture has a special status in international law and is treated as an imperative norm, thus, binding every state.

scholarly journals Observance of right to private life (personal privacy) inviolability by pre-trial investigation agencies

2020 ◽  
pp. 118-122
Author(s):  
Oleksandr Kalynovskyi ◽  
Serhii Tkachenko
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Crime Scene ◽  
Legal Regulation ◽  
Private Life ◽  
Negative Consequences ◽  
Personal Privacy ◽  
Criminal Proceedings ◽  
Sensitive Data ◽  
The Right

Article outlines the legal guarantees of personal privacy inviolability, reveals the content of the right to privacy and provides recommendationsfor pre-trial investigation agencies to conduct certain investigative (search) actions in penal institutions.The European Court of Human Rights refers all issues related to collection, storage, use and provision of access to informationabout person’s life to the sphere of private life. In its practice, the ECHR did not formulate a proper interpretation of the “private life”concept, but only noted the comprehensive nature of this term which does not have an exhaustive definition.Such principle of criminal process as non-interference in private life is reflected in Article 15 of the Criminal Procedure Code ofUkraine, which states that in the course of criminal proceedings non-interference in private (personal and family) life is guaranteed toeveryone.Information about a person’s private life obtained in accordance with the procedure provided for in the Criminal Procedure Codeof Ukraine may be used exclusively for the goals of criminal proceedings. Everyone with access to information about private life isobliged to prevent its disclosure.Authors emphasize that the pre-trial investigation agencies process information with restricted access while performing the tasksassigned in accordance with job descriptions. This may include official or confidential information along with sensitive data – in thesecases unjustified disclosure can lead to serious consequences.Sexuality is defined as one of the most important components of “private life” conceptual framework, which, as the EuropeanCourt of Human Rights has repeatedly emphasized, is the most intimate sphere of life. This domain includes issues related to homosexualrelationships, gender identity and sex life in general. In such cases, it is the protection of the human right to the development ofone’s personality that is crucial. Due to the natural intimacy of these issues it acquires a degree of protection against interference.Based on the analysis of the legal regulation of the crime scene examination in places of detention, authors concluded that thisprocedure is not clearly regulated, and it requires the investigator to properly prepare and comprehend the algorithm of one’s actions,use audio / video recorders and for the investigative action parties and established security in penal institutions for search and involvementof attesting witnesses, involvement of other investigative (search) actions parties, including the stage of crime scene examination.Information about person’s private life, obtained in the course of pre-trial investigation, even if this person is staying at the place ofdetention, must be duly protected from possible disclosure and access of third parties.The fact of interference with a person’s private life (personal privacy) is a violation of human dignity, personal independence andintegrity. Therefore, pre-trial investigation agencies should be able to clearly observe the balance between the interests of the individual,society and the state during criminal proceedings, and each procedural decision and action must be properly executed, as violation ofcriminal procedure entails the loss of not only evidence, but can also lead to negative consequences in connection with the disclosureof information about the private life of a person.In addition, the pre-trial investigation agencies do not have the right to seize the client-lawyer correspondence, personal medicaldocumentation, including sensitive data, during investigative (search) actions in places of temporary isolation (places of detention)without clearly defined judicial procedures, while investigators must inform the person in details about the aim and procedure of itsperformance.

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