scholarly journals QUALITATIVE COMPONENT IN THE WORK OF PROCEDURAL ENTITIES AS A FACTOR OF EFFICIENCY OF CRIMINAL PROCEEDINGS IN BOSNIA AND HERZEGOVINA

2021 ◽  
Vol 59 (2) ◽  
pp. 45-60
Author(s):  
Sadmir Karović ◽  
◽  
Marina Simović ◽  
Keyword(s):  
Human Rights ◽  
Special Reference ◽  
Human Activity ◽  
Criminal Procedure ◽  
Mutual Relationship ◽  
Criminal Proceedings ◽  
Standard Of Proof ◽  
Qualitative Component ◽  
Criminal Matters ◽  
Relationship Interaction

Every human activity, regardless of its nature, type and other specifics, strives to achieve the highest possible efficiency. In that sense, it is necessary to observe the tendency of the efficiency of criminal proceedings in terms of clarifying and resolving certain criminal matters, as well as making a court decision. The efficiency of the criminal procedure is directly manifested and articulated through the criminal procedure activities that are undertaken by the criminal procedure subjects during the realization of the criminal procedure task. The intention of the authors is to recognize, identify and emphasize the key or most important aspects of the qualitative component in the work of the main and secondary criminal procedure subjects on which the efficiency of the criminal procedure directly depends. Also, attention and interest are focused on the mutual relationship, interaction and opposition of two tendencies, namely tendencies of efficiency of criminal procedure and tendencies of protection of basic human rights and freedoms with special reference to meeting the standard of proof in different phases of undertaking criminal proceedings.

scholarly journals Standard of proof «sufficient reason» in the criminal procedure of Ukraine

2019 ◽  
pp. 31-42
Author(s):  
M. Pohoretskiy ◽  
O. Mitskan
Keyword(s):  
Human Rights ◽  
Sufficient Reason ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Wide Range ◽  
Procedural Code ◽  
Reasonable Suspicion ◽  
Procedural Decisions

Based on the results of analysis of foreign doctrine, foreign procedural legislation, foreign law enforcement practice, the practice of the European Court of Human Rights. In the article explores problematic issues of the application of the standard of proof “sufficient reason” in the domestic criminal process. The relevance of the article is that the standard of proof “sufficient reason” or “probable cause” in the system of standard of proof in the domestic criminal process has a special place and using to accept most procedural decisions at the pre-trial investigation. The purpose of the article is to substantiation the main direction of using in the criminal proceed of Ukraine standard of proof “sufficient reason” taking into account the legal nature of this standard. In the article proved that “sufficient reason” is the standard of proof in the criminal proceed of Ukraine execution of which is based on “common sense” and in the factual analysis (assessment) of the whole set of facts and circumstance in their integrity, authorized entities with the use of special knowledges and experience on establishing “sufficient reason” for making appropriate procedural decision. Implementation of the standard of proof “sufficient reason” as well as “reasonable suspicion” doesn`t envisage a lack of doubt as guilty of the person. Sufficient is a possible knowledge about committing criminal offence by person with the difference that for the highest standard measures have to be higher. Moreover, within “flexible” standard of proof “sufficient reason” of the level of probability can also vary, depending on how much negatively appropriate procedural decision will affect the rights of the person. Prove that in the current Criminal procedural code of Ukraine the standard of proof “sufficient reason” is used to accept most procedural decisions at the pre-trial investigation stage in criminal proceedings, when the most reasonable suspicion of a committing person criminal offence is insufficient due to significant restrictions on human rights as a result of appropriate decision. At that, the flexible nature of the standard of evidence "sufficient reason", which consists in the required measure conviction the appropriate standard from the circumstances of the specific criminal proceedings, allows you to assert its suitability for Making a wide range of procedural decisions. Standard of proof “sufficient reason” is used for adoption of such procedural decisions: on the application of certain measures to ensure criminal proceedings; in addressing the issue of applying precautionary measures as a variety of measures to ensure criminal proceedings; in addressing the issue of individual investigative (detective) actions; in addressing the issue of granting permission for secret investigative (detective) actions and deciding on the use of the results of unspoken investigative actions in other criminal proceedings; when deciding on the placement of the person in the receiver-allocator for children (Part 4 art. 499 of the Criminal procedural code of Ukraine).

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals The Implementation of Preventive Detention in Vietnam: A Human Rights Approach

2019 ◽  
Vol 35 (3) ◽  
Author(s):  
Hoang Tam Phi
Keyword(s):  
Risk Factors ◽  
Human Rights ◽  
Competent Authority ◽  
Criminal Procedure ◽  
Preventive Detention ◽  
Viet Nam ◽  
Monitoring Tool ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Human Rights Based Approach

Preventive detention, according to the provisions of the criminal procedure code, is considered to be indispensable in the process of handling criminal cases. In the traditional view, this measure is not only for the purpose of preventing crimes but also to create a favorable condition for the competent authority to conduct criminal proceedings in the process of handling the case. This is a popular view in science and can be seen in the criminal procedure law of socialist countries, including Vietnam. In recent years, the adoption of a  rights-based approach in legislation and law enforcement has become recognized more and more by scholars and has changed the perception of preventive detention in criminal proceedings. The result is the birth of provisions on preventive detention based on the respect and protection of detainees’ human rights. This article will focus on analyzing preventive detention under a rights-based approach to provide the readers with a view arising from the need to respect, ensure, protect human rights in criminal proceedings and propose some recommendations on preventive detention on the basis of the human rights-based approach in order to improve the criminal procedure law in Vietnam. Keywords: Rights-based approach, Preventive detention, Detainee, Human rights of detainees. References: [1] Vũ Công Giao, Ngô Minh Hương, Tiếp cận dựa trên quyền con người - Lý luận và thực tiễn (Sách chuyên khảo), NXB. Đại học Quốc gia Hà Nội, Hà Nội, 2016.[2] Nguyễn Duy Sơn, Trần Thị Hòe, Tiếp cận dựa trên quyền con người trong hoạch định và thực thi chính sách ở Việt Nam, nguồn: http://lyluanchinhtri.vn/home/index.php/nguyen-cuu-ly-luan/item/595-tiep-can-dua-tren-quyen-con-nguoi-trong-hoach-dinh-va-thuc-thi-chinh-sach-o-viet-nam.html.[3] Chương trình phát triển Liên Hợp Quốc tại Việt Nam: http://www.un.org.vn/vi/component/docman/doc_details/115-a-human-rights-based-approach- toolkit.html?Itemid=266.[4] APT, Detention Monitoring Tool Factsheet Pre-trial detention Addressing risk factors to prevent torture and ill-treatment, Link: https://apt.ch/en/resources/detention-monitoring-tool-addressing-risk-factors-to-prevent-torture-and-ill-treatment/ (Truy cập lần cuối: 18/07/2019).[5] Trần Quang Tiệp, Về tự do các nhân và biện pháp cưỡng chế tố tụng hình sự, Nxb. Chính trị quốc gia, Hà Nội, 2005.[6] Gudmundur Alfredsson & Asjorn Eide (Chủ biên), The Universal Declaration of Human Rights: A Common Standard of Achivement (Tuyên ngôn Quốc tế Nhân quyền, 1948: Mục tiêu chung của nhân loại), Nguyễn Đăng Dung, Vũ Công Giao, Lã Khánh Tùng (Chủ biên bản dịch), NXB. Thanh niên, Hà Nội, 2017[7] Khoa Luật, ĐHQG Hà Nội, Giới thiệu Công ước về các quyền dân sự và chính trị (ICCPR, 1966), Nxb. Hồng Đức, Hà Nội, 2012.[8] Bùi Kiên Điện, “Vấn đề cưỡng chế tố tụng hình sự và nguyên tắc nhân đạo”, Tạp chí Luật học, Số 1, 2010.[9] Các quy tắc tiêu chuẩn tối thiểu của Liên hợp quốc về hoạt động tư pháp đối với người vị thành niên năm 1985 (Các quy tắc Bắc Kinh) theo Nghị quyết 40/33 ngày 29/11/1985 của Đại Hội đồng Liên Hợp Quốc.[10] Nguyễn Đăng Dung, Vũ Công Giao, Lã Khánh Tùng, Giáo trình lý luận và pháp luật về quyền con người, Nxb. Chính trị quốc gia, 2015, tr.164.[11] Tập hợp các nguyên tắc về bảo vệ tất cả những người bị giam hay tù dưới bất kì hình thức nào của Liên Hợp Quốc do Đại hội đồng Liên hợp quốc thông qua ngày 9/12/1988 theo Nghị quyết số 43/173.[12] Xuân Ân, Còn một số vi phạm trong các trại giam, tạm giữ, Báo Tiền phong (điện tử): https://www.msn.com/vi-vn/news/other/c%C3%B2n-m%E1%BB%99t-s%E1%BB%91-vi-ph%E1%BA%A1m-trong-c%C3%A1c-tr%E1%BA%A1i-giam-t%E1%BA%A1m-gi%E1%BB%AF/ar-AAEfrek (Truy cập lần cuối: 05/08/2019).[13] Trần Văn Độ, Hoàn thiện các quy định của Bộ luật Tố tụng hình sự về biện pháp tạm giam, nguồn: http://tks.edu.vn/thong-tin-khoa-hoc/chi-tiet/79/274 (Truy cập lần cuối: 12/10/2017).[14] Nghị quyết số 49-NQ/TW ngày 02 tháng 06 năm 2005 của Bộ Chính trị về Chiến lược cải cách tư pháp đến năm 2020.[15] Lê Minh Tuấn, “Hoàn thiện một số quy định của BLTTHS về tạm giam nhằm đáp ứng yêu cầu cải cách tư pháp”, Tạp chí Kiểm sát, Số 9, 2008.[16] Viện Kiểm sát Nhân dân Tối cao - Cục Thống kê.[17] Viện Kiểm sát Nhân dân Tối cao - Vụ kiểm sát tạm giữ, tạm giam, thi hành án hình sự (2010), Báo cáo tổng kết công tác kiểm sát việc tạm giữ tạm giam, quản lý và giáo dục người chấp hành án phạt tù từ các năm 2005 đến 2009, Hà Nội.[18] Viện Kiểm sát Nhân dân Tối cao - Vụ kiểm sát tạm giữ, tạm giam, thi hành án hình sự (2010), Báo cáo tổng kết công tác kiểm sát việc tạm giữ tạm giam, quản lý và giáo dục người chấp hành án phạt tù từ các năm 2010 đến 2014, Hà Nội.[19] Nguyễn Tiến Tài, Để tránh chuyện tạm giam vô thời hạn, nguồn: http://www2.hvcsnd.edu.vn/vn/Acedemy/Nghien-cuu-Trao-doi/76/325/De-tranh-chuyen-tam-giam-vo-thoi-han.aspx (Truy cập lần cuối: 05/08/2019).[20] Webside: https://danluat.thuvienphapluat.vn/chia-se-bo-luat-to-tung-hinh-su-cac-nuoc-166373.aspx (Truy cập lần cuối: 05/08/2019).  

scholarly journals Kriminālprocesuāla, civilprocesuāla vai administratīvi procesuāla konfiskācija

2021 ◽  
pp. 568-575
Author(s):  
Gunārs Kūtris ◽  
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Important Challenge ◽  
The Law

The confiscation or forfeiture of crime proceeds is an important challenge in the fight against crime in every country. The Latvian Criminal Procedure Law (2005) provides ability of confiscating criminally acquired property before the sentencing of the guilty person, as well as the ability to apply extended confiscation for a convicted person. However, in recent years, practices and amendments to the law show trends that raise doubts about respect for human rights and principles of criminal proceedings in confiscation processes. The article deals with other countries’ experience in the confiscation of property of uncertain origin in various processes – administrative, civil and criminal proceedings. The summary gives the author’s conclusions on the legally correct confiscation process.

scholarly journals Protection of Human Rights in the Criminal Procedure Legislation of the Republic Of Uzbekistan and Improved Reforms Taking Into Account Foreign Experience

2021 ◽  
Vol 58 (1) ◽  
pp. 1102-1115
Author(s):  
Botirjon Khayitbayevich Ruzmetov
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Sufficient Evidence ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Republic ◽  
Theory Of Evidence ◽  
The Right

In this article author had searched the questions devoted the protection of human rights in the criminal procedure legislation of the Republic of Uzbekistan and comparing with the legislation and worldwide experience of the foreign states.The article reveals the ongoing liberalization of the criminal law policy in the Republic of Uzbekistan, which is aimed at expanding human and fair norms, strengthening the protection of the rights, legitimate interests of a person andsociety. Against this background, the significance of investigative actions and the theory of evidence in the country's criminal procedural legislation is being revised. The development of science and technology leads to the improvement of methods of committing crimes using computer technology, taking into account which the timely disclosure and effective investigation of socially dangerous acts requires extensive use of mathematical tools and computer technologies.In this regard, changes are taking place in the investigative practice aimed at increasing knowledge in the field of computer technologies among law enforcement officials and increasing the responsibility of the personal of the investigative and judicial authorities in the implementation of their activities.The author emphasizes that despite significant restrictions on the rights and legitimate interests of a person in the conduct of investigative actions, all of them are necessary for obtaining sufficient evidence to expose the guilt of the offender, in the manner prescribed by law.Compliance by investigators, prosecutors and judges of all criminal procedural requirements established by the legislation of the country is a key requirement for the recognition of evidence as lawful and sufficient for a fair sentence.It should be noted that the article highlights that, since 1994, the Criminal Procedure Code of Uzbekistan enshrines the right to defense by involving a lawyer in the case from the moment a person is detained on suspicion of committing a crime, as well as the principle of equality of arms in criminal proceedings. An addition to the liberalization of legislation is the fact that now the courts are freed from such unusual functions as the execution of court decisions.In addition, the article expands on the author's proposals for improving the legislation of Uzbekistan, as well as expanding the power of lawyers, especially in the conduct of investigative actions, aimed at expanding the process of liberalization of criminal law in the country and improving the situation with the protection of human rights in the investigation of criminal cases.

The Oxford Handbook of Criminal Process

2019 ◽  
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
European Convention ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court

This handbook examines various aspects of the criminal process, including the role of prosecutors in common law and civil law jurisdictions, the rights and duties of experts, victim rights in civil law jurisdictions, surveillance and investigation, criminal prosecution and its alternatives, evidence discovery and disclosure in common law systems, evidence law as forensic science, common law plea bargaining, appeals and post-conviction review, and procedure in international tribunals. The book is organized into eight parts covering topics ranging from criminal process in the dual penal state to interrogation law and practice in common law jurisdictions, empirical and comparative approaches to criminal procedure, prosecution-led investigations and measures of procedural coercion in the field of corruption, international corporate prosecutions, special procedures for white-collar and corporate wrongdoing in Europe, and trial procedure in response to terrorism. Also discussed are the roles of the European Convention on Human Rights and the European Court of Human Rights as guardians of fair criminal proceedings in Europe, double jeopardy or ne bis in idem in common law and civil law jurisdictions, plea bargaining vs. abbreviated trial procedures, restorative justice as an alternative to penal sanctions, and the pluralistic nature of international criminal procedure.

JUDICIAL DOCTRINE AS A SOURCE OF CRIMINAL PROCEDURE LAW OF UKRAINE: GENERAL GNOSEOLOGICAL (EPISTEMIOLOGICAL) RESEARCH (PART ТWO)

2021 ◽  
Vol 2 (2) ◽  
pp. 49-57
Author(s):  
Artem Shapar ◽  
◽  
Yuriy Yelaiev ◽  
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Scientific Article ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Doctrine ◽  
Criminal Process ◽  
Procedural Law ◽  
Relationship Of

In this scientific article, the continuation of the gnoseological (epistemological) research of legal doctrine as a source of criminal proceedings is carried out. In this scientific work, theoretical perception of scientific concepts of Ukrainian and foreign legal scholars in the field of legal doctrine as a source of law (in general), taking into account the legal significance of legal doctrine as a source of criminal procedural law (in particular) is carried out. In this scientific work, the attention is paid to the research of the fundamental and systemic relationship of legal doctrine with other sources of criminal proceedings (in particular, with the Decision of the Constitutional Court of Ukraine on a particular constitutional and judicial case). The text of this scientific article studies, inter alia, the fundamental and systemic relationship of Legal Doctrine with Separate Opinion of the Judge of the Constitutional Court of Ukraine (in a particular constitutional and judicial case), as sources of criminal procedural law of Ukraine. At the same time, the peculiarities of constitutional and judicial legal regulation in the field of criminal proceedings and in combination with the study of theoretical and legal and philosophical and legal bases (foundations) of the abovementioned two sources of criminal process in Ukraine are taken into account. The scientific knowledge of the theoretical and legal and philosophical and legal relationship of the Legal Doctrine with the Separate Opinion of the Judge of the Constitutional Court of Ukraine (as sources of criminal procedural law of Ukraine) is carried out with consideration of the scientific and theoretical features, specified in the text of Separate Opinion of the Judge of the Constitutional Court of Ukraine of legal (in particular, philosophical and legal, doctrinal and legal, general and legal, criminal and procedural) definitions. In the text of this scientific article, the attention is paid to the humanistic legal doctrine on which the acts of international law in the field of human rights (in particular, human rights in the field of criminal procedure) are based. In this scientific article, the attention is paid to legal doctrine as a manifestation of a person's ability to learn (including knowledge of the sphere of criminal process).

scholarly journals Issues in separation of criminal procedural functions

2018 ◽  
Vol 40 ◽  
pp. 01010 ◽  
Author(s):  
S. Kaija
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Special Focus ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
The Law ◽  
Insight Into

The term ‘criminal procedural function’. has historically been used by scientists. In order to identify primary issues in procedural functions, the competition principle was analyzed. This strengthened such important issues as separation of prosecution and court functions, parties’ equality, independence of courts etc. Therefore, the concept of three concept functions – prosecution, defence and adjudication - was developed in criminal proceedings. In the context of the Criminal Procedure Law having taking effect, this term was included into the law, including the principle of separation of criminal procedural functions. The aim of this paper is to offer the insight into interpretation of the concept of the criminal procedural function with the special focus on specific issues in function separation. Section 17 of Criminal Procedure Law determines the function of control of restrictions of human rights in a pre-trail. The functions of prosecution, defence and adjudication do not determine their priority over all other criminal procedural functions. These functions are claimed to be separate and therefore cannot be applied to the same person. This paper examines the equivalence of procedural functions as one of the most fair of the court elements. In the end, key conclusions are summarized.

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