Procedural rights for assertion of participatory governance in EU criminal justice

The aim of this study is to discuss the topic of plea negotiations in criminal procedures from a European perspective. The first part of the paper weighs up the advantages and disadvantages of the recent massive spread of negotiated justice in Europe and discusses the best way to reduce the risks involved with this phenomenon. The second part sets out to illustrate how the first EU Directives, adopted under Article 82 tfeu, have contributed to fairer legal institutions based on negotiations and agreements. The final part of the paper casts a glance at the future, and considers whether it would be appropriate for European institutions to adopt minimum standards on negotiated criminal justice.

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Victims and the sentencing process: developing participatory rights?

Legal Studies ◽

10.1111/j.1748-121x.2009.00134.x ◽

2009 ◽

Vol 29 (4) ◽

pp. 651-677 ◽

Cited By ~ 7

Author(s):

Jonathan Doak ◽

Ralph Henham ◽

Barry Mitchell

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Due Process ◽

Structural Parameters ◽

Policy Implications ◽

The Public ◽

Adversarial System ◽

Private Interests ◽

Procedural Rights

Recent years have seen a number of developments pertaining to the notion that victims should be afforded a ‘voice’ in the criminal justice system. The theoretical and structural parameters of the adversarial system are not, however, conducive to exercising such a role. For many, conferring procedural rights on victims jeopardises the due process rights of the accused, as well as the public nature of the criminal justice system. In light of the recent decision to roll out the ‘Victims' Focus Scheme’ across England and Wales, this paper explores a number of issues of principle that arise – not least the deeper policy implications of an apparent re-alignment of the normative parameters of the criminal justice system to incorporate the private interests of third parties.

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Procedural 'Rights' of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?

Modern Law Review ◽

10.1111/1468-2230.00083 ◽

1997 ◽

Vol 60 (3) ◽

pp. 317-333 ◽

Cited By ~ 18

Author(s):

Helen Fenwick

Keyword(s):

Criminal Justice ◽

Private Ordering ◽

Justice Process ◽

Criminal Justice Process ◽

Victims Of Crime ◽

Procedural Rights

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Favorable legal environment as a condition for the realization of criminal procedural rights and the proper performance of criminal procedural duties

Religación. Revista de Ciencias Sociales y Humanidades ◽

10.46652/rgn.v4i22.568 ◽

2019 ◽

Vol 4 (22) ◽

pp. 178-185

Author(s):

Evgeniy Petuchov ◽

Mariya Neymark ◽

Nina Dudko

Keyword(s):

Criminal Justice ◽

Criminal Procedure ◽

Legal Environment ◽

Criminal Proceedings ◽

Criminal Process ◽

And Performance ◽

Procedural Rights ◽

Proper Performance

The article investigates the problem of legal support of the participants of criminal proceedings for the implementation of the rights granted to them by the legislator and the proper performance of their criminal procedural duties. Obstacles to the implementation of criminal procedure rights and obligations of normative (gaps, conflicts of legislation) and organizational (illegal actions of subjects, their inaction) nature are identified. The existing views of scientific researchers on the correlation of rights and obligations in the sphere of criminal justice as paired legal categories are studied and analyzed. We analyzed the provisions of the current criminal procedure legislation in Russia from presence/absence of legal conditions ensuring realization of rights and performance of duties by the participants of the criminal process.

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The Impact of Legislative Harmonisation on Effective Judicial Protection in Europe's Area of Criminal Justice

Review of European Administrative Law ◽

10.7590/187479819x15840066091277 ◽

2019 ◽

Vol 12 (2) ◽

pp. 117-142

Author(s):

Valsamis Mitsilegas

Keyword(s):

Criminal Justice ◽

Mutual Recognition ◽

Eu Law ◽

Criminal Proceedings ◽

Minimum Standards ◽

Judicial Protection ◽

Procedural Rights ◽

The Impact ◽

The Relationship ◽

The Eu

By focusing on the adoption of EU minimum standards in the field of procedural rights in criminal proceedings, this article will assess the relationship between secondary law harmonisation, and the principles of effectiveness of EU law and of effective judicial protection in Europe's area of criminal justice. This article will begin by exploring the third pillar legacy on harmonisation, by focusing on what the EU has not done (i.e.to legislate on a horizontal instrument on defence rights) and what the EU has done (i.e.to legislate specifically on judgments in absentia with the specific purpose of clarifying, and in some instances limiting, the grounds for refusal in a number of EU mutual recognition measures). The analysis will then examine the impact of the entry into force of the Lisbon Treaty and will evaluate critically the impact of EU harmonisation measures on defence rights on effective judicial protection. The analysis will focus on the relationship between EU law and national law, as well as on the relationship between EU law and the Charter and ECHR. Great emphasis will be placed on the strengthening of enforcement avenues offered by the normalisation of EU criminal law after Lisbon. These avenues have the potential to ensure that, even minimum, harmonisation measures in the field of defence rights can have a real impact on enhancing effective judicial protection and achieving the effectiveness of EU legislation on the ground.

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Defense Rights, Duties, Norms, and Practices in Common Law and Civil Law Jurisdictions

The Oxford Handbook of Criminal Process ◽

10.1093/oxfordhb/9780190659837.013.11 ◽

2019 ◽

pp. 188-208

Author(s):

Ed Cape

Keyword(s):

Criminal Justice ◽

Common Law ◽

Civil Law ◽

Fair Trial ◽

International Norms ◽

National Identities ◽

Normative Standards ◽

The Right ◽

Procedural Rights

This chapter compares defense rights, duties, norms, and practices in common law and civil law jurisdictions. It first provides an overview of international norms regarding defense rights, focusing on the elements of the right to fair trial that are substantially reflected in international normative instruments. It then examines the “role” of the suspects and the accused in common law and civil law systems, along with the range of defense rights, at both the investigative and trial stages, and how they may be articulated, using the European Union’s procedural rights program as an exemplar. It also highlights the challenges to implementation across both adversarial and inquisitorial jurisdictions. Finally, it asks whether normative standards may be meaningfully applied across jurisdictions in the context of different procedural traditions, and the significance of criminal justice processes in the development and confirmation of national identities.

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INSTRUMENTI ZAŠTITE PROCESNIH PRAVA OBRANE U ISTRAZI PREMA ZAKONU O KAZNENOM POSTUPKU BOSNE I HERCEGOVINE

Pravni vjesnik ◽

10.25234/pv/11997 ◽

2021 ◽

Vol 37 (2) ◽

pp. 167-187

Author(s):

Maja Pilić ◽

Zdravko Rajić

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Bosnia And Herzegovina ◽

Justice System ◽

Fair Trial ◽

Criminal Proceedings ◽

Constitutional Right ◽

The Right ◽

Judicial Protection ◽

Procedural Rights

With the entry into force of the Criminal Procedure Code of Bosnia and Herzegovina, the roles of the prosecutor and the court have been changed significantly compared to the earlier legislation, especially in the investigative procedure. According to the existing normative framework, the role of the court in the investigation is much more passive since at this stage of the procedure the court does not control the merits of conducting the investigation. The mixed accusatorial concept of investigation as the one existing in the criminal justice system of Bosnia and Herzegovina has led to certain restrictions on the rights of the defence in investigation. Investigation is an important stage in criminal proceedings that is conducted for evidence and data collecting necessary to decide whether to file an indictment or discontinue the proceedings, as well as for evidence that can be presented at the main hearing and upon which the judgment is rendered. It is therefore necessary to ensure that a proper and lawful investigation is conducted. This means to make sure that all parties involved in the investigation, especially defence are treated in a fair manner. The right to defence is a fundamental human and constitutional right guaranteed by international conventions. The right to defence results in several individual rights enjoyed by suspects in preliminary proceedings. In order to ensure effective judicial protection of the rights of the suspects, the paper analyses the domestic criminal justice system and presents comparative legal solutions regarding the protection of procedural rights of the defence in investigation. The fundamental issues in analysing regulatory framework in Bosnia and Herzegovina are the lack of effective judicial protection of procedural rights of the defence, the absence of an effective legal remedy to conduct an investigation facilitating the principle of a fair trial for defence and the principle of equality of arms in pre-trial proceedings. In addition, the paper analyses the issue of informing the suspect of an order for investigation, since according to applicable regulations, the suspect does not even need to know about an investigation conducted against him, which is a violation of the principle of right to a fair trial.

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