scholarly journals In the matter of some issues on the notice of accusation according to criminal procedural law of Ukraine

2020 ◽  
pp. 95-109
Author(s):  
Mykola Misechko
Keyword(s):  
The State ◽  
Procedural Law ◽  
Special Procedure ◽  
Legislative Regulation ◽  
Procedural Code ◽  
Basic Concepts ◽  
The Moment ◽  
The Right ◽  
Primary Form

The author examines the problematic issues of the essence of the notification of suspicion, its concept, meaning, which scientists interpret as: procedural activity, the meaning of which is the preparation by the investigator or prosecutor of a written notice of the suspicion and its delivery to the person in accordance with Art. art. 276-279 of the Criminal Procedural Code of Ukraine; procedural decision; procedural action; institute of criminal procedural law; pre-trial stage and the form of notification; pre-trial investigation stage; the first stage of formation of the state prosecution; the primary form of indictment against a specific person; commencement of the prosecution function. The ambiguous legislative regulation of the institution of notification of suspicion is considered, in particular, the absence of specific normative consolidation of the basic concepts of the institution of notification of suspicion and contradiction of the articles of the Criminal Procedural Code of Ukraine (Article 177 and Article 276), and chapter 22 of the Criminal Procedural Code of Ukraine, entitled “Notification of suspicion” regarding the connection of the procedural activity from the notification of suspicion with the array of the procedural actions of the investigator and / or prosecutor, the meaning of which is to establish legal and factual grounds for notification of suspicion (Art. 276), the drafting of a written procedural document (notice of suspicion) (art. 277) and its delivery to a person (art. 278). Attention is drawn to certain aspects when giving notice of suspicion and explaining rights to a person, as well as to typical procedural errors when notifying a person of suspicion, namely, acquisition of the procedural status of a suspect from the moment of actual delivery of mail with notification of suspicion; the formal explanation to suspects of the scope of their rights, the possibility of abuse by investigators and prosecutors of the right to apply a special procedure for notifying a person of suspicion. Key words:notice of accusation (suspicion notification), legal and factual grounds for suspicion notification, procedure for suspicion notification, notice of accusation submission, explaining rights to the suspect, notification delivery, typical procedural errors.

scholarly journals Whether the right of pursuit is constitutional property interest protectible against the state II part

2018 ◽  
pp. 89-105
Author(s):  
Nenad Tešić
Keyword(s):  
Organized Crime ◽  
The State ◽  
Good Faith ◽  
Property Interest ◽  
Freezing Procedure ◽  
Proceeds Of Crime ◽  
The Republic ◽  
The Moment ◽  
The Right ◽  
Subjective Rights

The author, in this paper, is looking for Ariadne’s thread, which would help us to find the way through the legal labyrinth composed of justified reaction of the state in the war against organized crime, from one side and what is considered an appropriate protection of secured creditor’s subjective rights, from the other side. He points out that in resolving a dilemma, does the mortgagee have the right to enforce its debt against the Republic of Serbia (right of pursuit), in case if the extended confiscation of property (proceeds of crime) includes subject-matter of mortgage, the court should take into account does the mortgagee know or should know about criminal origins of encumbered assets. The court should evaluate a good faith of the mortgagee, bearing in mind all the circumstances of the case, especially: 1) The moment of a mortgage establishment, i.e. whether the registration of mortgage is prior in time to the initiation of a property freezing procedure; 2) Overall business and other relations between mortgagee and mortgagor, i.e. are these parties associated in any other way? 3) Objective changes in the economic position of mortgagee and mortgagor, i.e.is the security agreement true or simulated, in particular, whether the value of the secured claim actually enhanced the property of the mortgagor and at what consideration.

scholarly journals GENERAL PRINCIPLES OF CIVIL JURISDICTION

2020 ◽  
Vol 10 (86) ◽  
Author(s):  
Nataliia Ryzhenko ◽  
◽  
Olena Korolova ◽  
Keyword(s):  
Civil Procedure ◽  
Judicial System ◽  
Unified Approach ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Territorial Jurisdiction ◽  
Procedure Code ◽  
Procedural Code ◽  
The Moment ◽  
Definition Of

From the moment of becoming valid the law of Ukraine «On amendments to the Commercial procedural code of Ukraine, Civil procedural code of Ukraine the Code of administrative procedure of Ukraine and other legislative acts» of 3 October 2017 jurisdiction of courts courts is defined through the concept of «jurisdiction». This article considers the practical and theoretical significance of the amendments made by this legislative act to the current Civil Procedure Code of Ukraine. The significance of civil jurisdiction and its classification are revealed. To date, the science of civil procedural law has not developed a unified approach to the definition of «jurisdiction» and «civil jurisdiction». With regard to substantive and subjective jurisdiction, it is emphasized that these aspects should be taken into account together. Territorial jurisdiction is defined in the Civil Procedure Code of Ukraine as jurisdiction. The instance jurisdiction determines the scope of powers of the court of each link of the judicial system of Ukraine, and the territorial (jurisdiction) determines the limits of powers between courts within one judicial link to hear cases in the first instance. In general, the rules of territorial jurisdiction are less strict than the rules of substantive jurisdiction, as the level of the court is considered appropriate, but violations of the rules of territorial jurisdiction may create additional inconveniences, which, however, usually do not objectively affect the content of the decision. The difficulty of establishing the jurisdiction of the court at this stage of updating the judicial system of Ukraine is due to significant changes in procedural law. The process of harmonization of procedural legislation has contributed to the consolidation of a single conceptual apparatus, which has so far been used mostly at the theoretical level. Thus, at the legislative level, the jurisdiction of the courts of Ukraine is determined exclusively by the jurisdiction, which in the Civil Procedure Code of Ukraine, the Commercial Procedure Code of Ukraine and the Code of Administrative Procedure of Ukraine is divided into substantive and subjective, instance, territorial. However, the analyzed provisions of the Civil Procedure Code of Ukraine demonstrate the need to further improve the rules of civil jurisdiction.

scholarly journals ISSUES OF THE EXECUTION OF JUDGEMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS IN UKRAINE AND THEIR POSSIBLE SOLUTIONS

2020 ◽  
Vol 33 (20) ◽  
pp. 23-29
Author(s):  
R. O. Nepyipa
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
The State ◽  
State Budget ◽  
Public Authorities ◽  
Special Procedure ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The article analyzes the problems of implementation of the decisions of the European Court of Human Rights by Ukraine. In this context, too, the key problems and peculiarities of the current state of implementation of Ukraine’s judgments of the European Court of Human Rights are highlighted. It is emphasized that the enforcement of judgments by Ukraine is an important guarantee of ensuring the right to a fair trial. However, the lack of proper enforcement is recognized by the European Court of Human Rights as a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is emphasized that the problematic issue in the implementation of ECHR decisions is that the state executor, as a representative of the public authority, receives a salary from the State Budget of Ukraine, but is obliged, according to executive documents, to act against his state. Thanks to the planned reform of the State Bailiffs’ Service of Ukraine, it is envisaged to create a private system of enforcement of court decisions, since a non-governmental institution would not be more effective in this case. The problem of determining the location of the collector by the ECtHR is considered. It is suggested that in order to find out the location (location) of the collector, in accordance with the ECtHR decision, a special procedure should be provided, a list of necessary actions to be taken by a state body. In particular, such actions may be sending requests to the last known place of work. It is emphasized that legal and political risks for Ukraine are that the violating state may be subject to various sanctions, such as deprivation of voting rights or suspension of membership, up to and including exclusion from the Council of Europe. It is proved that the source of inefficient work of the executive service should be sought, first of all, in imperfect legal regulation, numerous legislative restrictions, and insufficient state costs for the implementation of ECtHR decisions. The experience of Germany on the practice of implementing ECtHR decisions is considered and it is proposed to borrow the experience of foreign countries in the current situation. It is noted that an important step of Ukraine towards European statehood is to increase the level of national protection of citizens and to adopt a law that provides for the accountability of public authorities and their officials for inaction in the implementation of ECtHR decisions. Keywords: European Court of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, judgment, enforcement, general measures.

scholarly journals Appointment and Conduction of Examinations: Legislative and Practical Problems

2019 ◽  
Vol 86 (3) ◽  
pp. 80-88
Author(s):  
А. О. Наумова ◽  
М. С. Куча
Keyword(s):  
Experimental Testing ◽  
Legislative Regulation ◽  
Procedural Code ◽  
Technical Examination ◽  
The Right

It has been noted that the problems of procedural guaranteeing of the rights of victims, suspects (accused) in terms of reforming the criminal procedural legislation are relevant during the appointment and holding of the examination and require further research. The aim of this study is to analyze the current criminal procedural legislation on the appointment and conduction of examination and to develop propositions for its improvement. The authors of the article have analyzed the existing procedural legislation on the appointment and conduction of examination; have defined the problematic issues of procedural guaranteeing of the rights of victims, suspects (accused) in the appointment and conduction of examination; and have offered the ways to solve them; have substantiated the need for legislative regulation of additional and re-examination of explosive and technical examination and have provided forensic recommendations to eliminate these problems. Based on the conducted research, the authors have provided the following suggestions and recommendations: 1) to enshrine the right of the prosecution and defense parties in the Art. 243 of the Criminal Procedural Code of Ukraine (CPC) to independently appoint an examination; 2) to declare it appropriate to supplement Section 3 of the CPC with the Art. 56-1 “Rights of the victim in the appointment and conduction of examination”, which should enshrine the relevant rights; 3) to declare it expedient to supplement Section 20 of the CPC of Ukraine with the Art. 242-1, which should determine the rights of the suspect (accused) in the appointment and conduction of examination; 4) to standardize the procedure for the appointment of additional expertise in paragraph 11 of the Art. 101 of the CPC; 5) to standardize the procedure for the appointment of re-examination in paragraph 12 of the Art. 101 of the CPC; 6) to recommend investigators and judges to determine the expert’s questions depending on the objects of expert examination; 7) to improve the stage of experimental testing of objects in carrying out explosive examination.

On the Question of the Theoretical Foundations of Regulating Justifiable Defense in Criminal Legislation

2021 ◽  
Author(s):  
S.V. Parhomenko ◽  
Keyword(s):  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
Legislative Regulation ◽  
Russian Constitution ◽  
The Subject ◽  
The Moment ◽  
The Right ◽  
Criminal Legislation ◽  
Theoretical Foundations

The article considers the problem of creating effective criminal legal guarantees for the natural human rights realization in terms of legal regulation of such a circumstance that precludes the criminality of an act, as a necessary defense. The need for legislative regulation of the justifiable defense institution is proved by its social and legal purpose, proceeding from the idea of natural law. To make balanced legal decisions on the justifiable defense regulation in criminal law, it is necessary to identify the shortcomings of the previous theoretical and legal approaches. Basing on the analysis of the federal legislation provisions and the criminal law doctrine, the author proposes a model of legislative regulation of the studied norm. At the same time, it is argued that the subject of defense is the main addressee of the normative provisions on the justifiable necessary defense, it is he who should be able to obtain full information that affects the assessment of the legitimacy of his behavior: from the law and until the moment of implementation of the act of defense, and not at the stage of investigation on the fact of its illegality. Following the letter and spirit of the Russian Constitution, the legislator, who has defined the range of acts prohibited by the Criminal Code, must determine the ways of exercising the right to defense. The solution to this problem must have a differentiated approach, taking into account the value of the protected good and the typical nature of the situation in which this good is threatened with harm.

THE RIGHT TO HOUSING FOR YOUNG FAMILIES: PROBLEMS AND STATE PROGRAMS IN RUSSIAN FEDERATION

2019 ◽  
pp. 36-44
Author(s):  
Vladimir Viktorovich Bulgakov
Keyword(s):  
Russian Federation ◽  
The State ◽  
Factors Affecting ◽  
Scientific Methods ◽  
Legal Literacy ◽  
Constitutional Right ◽  
The Moment ◽  
The Right ◽  
State Programs ◽  
Dialectical Analysis

The relevance of this study is due to the importance of the constitutional right of everyone to housing, its inviolability and inalienability. Because of the acute housing problem in the Russian Federation, concerning the lack of funds for the purchase of housing, many young families who need housing and improved living conditions. The purpose of the study is to analyze the features of the constitutional right to housing, the state of this institution in modern Russia, whose task is to improve housing conditions in the country and provide young families with housing. We achieve the implementation of the tasks with the help of general scientific (dialectical, analysis, synthesis) and specific scientific methods (formal-legal, comparative-legal). We note a number of social and economic conditions and factors affecting the realization of the right to housing for young families in the framework of existing state support programs. We draw a conclusion that at the moment there are a lot of state programs aimed at maintaining the level of the population, which could fulfill the social obligation of the state to its citizens. At the same time, the legislator should pay special attention to improving the legal literacy of the population, the accuracy of the target program activities wording description, the development of a mechanism for their implementation, as well as the development of a methodology for calculating indicators of the effectiveness of such programs.

scholarly journals Arrest of Property in Bankruptcy Cases

2019 ◽  
pp. 93-102
Author(s):  
Oleksandr Biryukov
Keyword(s):  
Legal Status ◽  
Bankruptcy Law ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Legal Remedy ◽  
Procedural Code ◽  
Court Proceedings ◽  
The Right ◽  
Court Practice

This article focuses on the analysis of certain aspects of the application of security measures in liquidation procedure governed by Bankruptcy Law. Arrest of property (according to Ukrainian legislation terminology — a seizure of property) as a temporary tool of enforcing future court decisions is a fairly popular legal tool to protect the parties’ property interests in money disputes. In modern court practice application of this legal remedy creates some difficulties, particularly, in bankruptcy cases. When administering these cases, the judges sometimes consider petitions regarding imposing arrests of property or freeing restrictions over the property imposed in civil, administrative and criminal cases. In such situations, there is a need to answer a question whether the commercial court in a bankruptcy case has a power to free arrests or other restrictions on using the property imposed by other courts. Current legislation i.e. both procedural law and bankruptcy law does not contain clear rules on how the judges should aсt in such situations. Different approaches to the application of bankruptcy proceedings regarding arrest of property influence the court practice in general. Some economic courts establish that the release of the debtor’s assets from bans and arrests during the bankruptcy proceeding is totally in accordance with the current law, other courts rule that commercial procedural code does not allow to free property from arrest imposed, for example, in civil cases as this arrest is done by civil procedural law. Arrests attached in the criminal proceedings have different nature and purpose. It is known that in most cases in the criminal law property arrest serves as means to ensure possible future confiscation of property that may have been obtained in an illegal way. During such court proceedings a special review is conducted in order to discover whether property in acquired legally. Therefore, in order to cancel arrest of the property the procedure should be exercised in accordance with the rules of the criminal proceedings. However, while imposing new arrests of property in criminal proceedings it should be taken into account that the legal status of a person who was declared bankrupt has changed, i.e. he is deprived of the right to dispose the property which becomes a subject for sale at public tenders. The main conclusion of this article is that existence of certain different approaches to application of security measures in different court proceedings can be explained by the fact that during the development of procedural laws the nature of insolvency relations and the peculiarities of the legal mechanisms used in bankruptcy cases were not fully taken into account.

scholarly journals POPULATION AND WATER AS DEVELOPMENT FACTORS: THE ISRAELI AND MACEDONIAN CASE

2019 ◽  
Vol 34 (5) ◽  
pp. 1479-1485
Author(s):  
Jordanka Galeva
Keyword(s):  
Agricultural Development ◽  
Agricultural Sector ◽  
The State ◽  
Jordan Valley ◽  
Large Area ◽  
Agricultural Communities ◽  
Western Asia ◽  
To Come ◽  
The Moment ◽  
The Right

The State of Israel is located in Middle East (Western Asia) on the southeastern coastline of the Mediterranean Sea and northern shore of Red Sea, with total area of 21,640 sq km². The landscape is mixture of coastal lowland, central hillside area, Jordan Valley and Negev Desert, which occupies one-half of the total land. Taking into account the population (which at the moment of the creation of the Israeli state is 806,000 habitants), as well as, the large area of desert land, the Israelis faced two challenges: to increase the population (with aim to increase labor force and territorial settlement) and find a sustainable method to use and recycle water (as a key element for agricultural development). To accomplish the first goal, on July 5, 1950, the Israeli Assembly approved the Law of Return, which gives Jews the right to come and live in Israel, while for realization of the second goal, the largest contribution comes from the innovations of agricultural communities, known as kibbutz. The first part of the paper identifies Israel's immigration policies and Kibbutz water innovations that contributed to the development of the state. In order to find out whether population and water are factors for development in the Macedonian reality, the second part of the paper presents the situation of the population and the phenomenon of emigration, as well as the real state of the water resource and its use in agriculture. The research has demonstrated a completely different situation in the Macedonian case. While Israel is pursuing a liberal immigration policy to unite all Jews in its country, the Macedonian state faces constant emigration of its citizens to other countries. Low salaries and lack of a concrete strategy to motivate young people to stay in their country are the cause of increased emigration. Regarding the second factor, although there are good conditions for development of agriculture (such as climate, fertile soil and water) this sector is not a leader in contributing to the economy of the country and the state is ranked between the first countries to irrational use of water. The purpose of this paper is to examine how population factor and water factor-related to innovations and their use in the agricultural sector, have contributed to the development of the Israeli economy and whether Israeli experience can be applied to macedonian case.

ABUSE OF CIVIL PROCEDURAL RIGHTS

2018 ◽  
Author(s):  
Iryna Cherevatenko ◽  
◽  
Kateryna Karachevtseva ◽  
Roman Krokhmal ◽  
Anna Kovalchuk ◽  
...  
Keyword(s):  
Case Law ◽  
Effective Protection ◽  
Procedural Law ◽  
Correct Definition ◽  
European Court ◽  
Procedural Code ◽  
Definition Of ◽  
The Right ◽  
Available Information ◽  
Procedural Rights

In the article, the authors reveal a topical issue in the field of civil procedural law, which concerns the abuse of civil procedural rights. Abuse of procedural rights is a significant obstacle to the administration of effective justice. The current level of regulation is in fact unsatisfactory. The correct definition of the criteria for the possible recognition by the court of the exercise by a party of procedural rights as an abuse is of great importance for the application of measures of procedural coercion. In general, to define the action as an abuse of rights, we should talk about a number of specific features: the exercise of the right against its purpose and its exercise outside the permitted limits. From which it can be argued that abuse can be both a specific action and inaction in the form of unjustified failure to perform a specific procedural duty. The question of the limits of the use of rights is more in line with the question of the proportionality of the procedural action and decision. According to part 2 of Art. 44 of the Civil Procedural Code of Ukraine established such a sign of abuse of rights as a contradiction of the principles of civil procedure. That is, an abuse of rights may be an act aimed at preventing a fair, impartial and timely consideration and resolution of cases, effective protection of rights or interests in accordance with part 1 of Art. 2 of the Civil Procedural Code of Ukraine. The authors of this article also analyze aspects of the concept of abuse of civil procedural rights. The problematic aspect is that the general tools of court authorization of abuse of rights (except of deprivation of the opportunity to take procedural action): warning, removal from the courtroom, temporary seizure of evidence for trial, reason, fine, seems questionable. Thus, the authors analyzed the theory, legislation and case law (including the case law of the European Court of Human Rights) on the abuse of procedural rights; systematized the available information and conceptually rethought the mechanism for preventing and authorizing the abuse of procedural rights. They also offered their vision of solving the problem.

GARANCIJE ŽIVOTA U KRALjEVINI SRBA, HRVATA I SLOVENACA – ODJECI VIDOVDANSKOG USTAVA U NjEGOVOM TRAJANjU I DANAS

2021 ◽  
Author(s):  
Dragana Ćorić ◽  
Keyword(s):  
Death Penalty ◽  
The State ◽  
Freedom Of Religion ◽  
Freedom Of Conscience ◽  
Personal Freedom ◽  
The Press ◽  
New Community ◽  
The Moment ◽  
The Right

The Constitution of the Kingdom of Serbs, Croats and Slovenes, adopted on June 28, 1921, established a certain framework of rights and freedoms of citizens in the new state, in a different way than it had been until then. The constitution did not recognize nobility, titles, "or any advantages by birth," except for the King and his family. It guaranteed personal freedom and freedom of religion - again within the limits allowed by law; freedom of conscience and the press, the right of association, assembly and agreement. He forbade greenery, abolished feudal relations, and on the day of liberation from foreign rule, the peons became, without compensation, the owners of the state land on which they had worked until then. This Constitution also provided for freedom from the death penalty and the principles of talion,except in cases of attacks on the King and members of the Royal House. The paper outlines the picture of life in the new community, as conceived by this constitution. The results of this constitution from the moment of its adoption to its repeal and onwards are analyzed. Since this constitution was the foundation of a new state and a new society, the analysis with previous acts is not possible, because there are no parameters of the same name for comparison. Therefore, this act can be considered only pro futuro, even after its repeal, because the echoes of this act still exist today.

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