scholarly journals IMPACT OF MODERN TECHNOLOGIES ON FREE MOVEMENT OF EVIDENCE IN EUROPEAN UNION

2021 ◽  
Vol 59 (3) ◽  
pp. 123-140
Author(s):  
Marina Matić Bošković ◽  
Keyword(s):  
Service Providers ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Private Company ◽  
Electronic Evidence ◽  
Production Order ◽  
Access To Data ◽  
Proposed Regulation ◽  
The Right ◽  
Eu Fundamental Rights

According to the estimate of the EU Commission 85 percent of criminal investigations require electronic evidence, while in almost two thirds (65 percent) of the investigations where e-evidence is relevant. Investigation and prosecution of crime increasingly relies on the possibility to have access to data held by service providers, as private company. Modern criminal investigation and use of electronic evidence imposes challenges to the right to fair trial and rule of law standards. The paper identifies benefits and challenges of proposed EU instruments for facilitating e-evidence. The European Commission proposed Regulation of Production Order and Preservation Order with the aim to facilitate access to relevant data stored by service providers. The paper recognizes shortcomings of the proposed Regulation. The biggest challenge is lack of judicial oversight of orders, as a guarantee of fair trial. The paper includes recommendations and policy options for promoting judicial system for cross border access and collection of electronic data in line with EU fundamental rights standards.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

scholarly journals The Horizontal Effects of Charter Rights Given Expression to in EU Legislation, from Mangold to Bauer

2019 ◽  
Vol 12 (2) ◽  
pp. 185-215
Author(s):  
Elise Muir
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Special Issue ◽  
Max Planck ◽  
Eu Legislation ◽  
Scope Of Application ◽  
Effective Remedy ◽  
The Right ◽  
The Relationship ◽  
Eu Fundamental Rights

This paper investigates the relationship between legislative provisions and fundamental rights by analyzing the Egenberger, IR, Bauer, Max-Planck and Cresco cases. This paper understands these cases as an invitation to reflect on whether, and if so, to what extent, EU fundamental rights' legislation, read in conjunction with the Charter, could have an impact on the scope of application, substance and/or legal effects of the Charter. This paper argues that the Court of Justice's recent case law can be understood as allowing for EU legislative guidance on fundamental rights to interact in an upward process with the rights enshrined in norms with the same rank as EU primary law. This paper sheds light on the constitutional implications of the overlaps between legislation and constitutional norms on fundamental norms while other contributions in this special issue address effectiveness and the right to an effective remedy in a broader sense.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

Mutual Trust, Essence and Federalism – Between Consolidating and Fragmenting the Area of Freedom, Security and Justice after LM

2019 ◽  
Vol 15 (1) ◽  
pp. 17-47 ◽  
Author(s):  
Mattias Wendel
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
Eu Fundamental Rights

Mutual trust – Essence of EU fundamental rights – Values under Article 2 TEU – Intrinsic link between essence and values – Federalism – LM judgment – Rule of law crisis in Poland – Right to fair trial – Judicial independence – Fundamental right to an independent tribunal – Prohibition on transfers – Obligation to presume compliance with fundamental rights – Condition of ‘systemic deficiencies’ as a federal safeguard – Area of Freedom, Security and Justice – European Arrest Warrant – Dublin system

Remote Participation in Criminal Proceedings: Does the Reformed Italian Regulation Represent an Application Extension Able to Conflict with the Right to a Fair Trial?

2019 ◽  
Vol 9 (2) ◽  
pp. 187-201
Author(s):  
Giulia Angiolini
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Italian Law ◽  
European Court ◽  
Recent Reform ◽  
The Right ◽  
Remote Participation

The purpose of this paper is to try to analyse the Italian regulation of accused persons’ remote participation in criminal proceedings. The interest in this matter arises from the suspected frictions of the provisions at hand with fundamental rights to be guaranteed for a fair trial. These suspicions, aroused right after the introduction of the institute in Italian law, have been increased by the recent reform of the discipline of remote participation, and they become even clearer after a comparison of Italian regulation with those of other European Countries. Hence, an inescapable question occurs: will the European Court of Human Rights and the Italian Constitutional Court save the new regulation as they did with the previous one?

scholarly journals Komentarz na kanwie Uchwały Naczelnego Sądu Administracyjnego I FPS 1/21 – sądowa kontrola instrumentalnego wszczęcia postępowania karnego skarbowego a prawo do sądu

2021 ◽  
Vol 3 (31) ◽  
pp. 151-162
Author(s):  
Adam Szymacha ◽  
Kamil Rogalski
Keyword(s):  
Rule Of Law ◽  
Comparative Law ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legal Method ◽  
The Right ◽  
The Impact

The purpose of the article/hypothesis: The presented article focuses on a new resolution of the Supreme Administrative Court I FPS 1/21. In this resolution an assessment of instrumental initiation of criminal fiscal proceedings in order to suspend the running of the limitation period of a tax liability has been undertaken. The Supreme Administrative Court assessed that administrative courts have the right to examine the legitimacy of initiation of such proceedings. This position is important insofar as it also touches upon the issue of the right to a fair trial, as well as the right to property and legal certainty. The main aim of this article is to check the impact of this resolution on described fundamental rights. Methodology: This article will use the comparative law method. Especially the case law of different courts will be shown. The dogmatic-legal method will also be used as an auxiliary. Results of the research: This resolution is crucial for the fundamental right for fail trial. It has also impact on the right to property and principle of legal certainity. It may also be some element that strengthens the rule of law.

The EU Citizens’ Directive—An Introduction

2019 ◽  
pp. 1-17 ◽  
Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin
Keyword(s):  
European Union ◽  
Service Providers ◽  
Fundamental Rights ◽  
Free Movement ◽  
The European Union ◽  
Economic Activities ◽  
Charter Of Fundamental Rights ◽  
Free Movement Of Persons ◽  
The Right ◽  
The Eu

This introductory chapter provides an overview of the EU Citizenship Directive. The European Union Directive 2004/38 or the EU Citizenship Directive gives effect to the right which EU law provides to all EU citizens and their family members of any nationality to move, reside, and exercise economic activities if they so choose on the territory of any EU Member State. The right to move and reside anywhere in the EU is a right which is accorded to Union citizens by virtue of Articles 20(2)(a) and 21 of the Treaty on the Functioning of the European Union (TFEU) and enshrined in Article 45 of the EU Charter of Fundamental Rights. The right of free movement of persons in their capacities as workers, self-employed persons, or service providers straddles two of the four fundamental freedoms of the European Union—free movement of persons and services.

When it is (also) Algorithms and AI that decide on Criminal Matters: In Search of an Effective Remedy

2020 ◽  
Vol 28 (3) ◽  
pp. 280-304
Author(s):  
Giuseppe Contissa ◽  
Giulia Lasagni
Keyword(s):  
Fair Trial ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Innovative Solutions ◽  
Definition Of ◽  
Effective Remedy ◽  
The Right ◽  
Criminal Matters

Abstract The paper presents the main areas of application of predictive systems based on algorithmic and AI technology, and analyses their impact on fundamental rights and fair trial principles. It focuses in particular on the definition of the right to an effective remedy against decisions taken (also) with the support of algorithmic and AI systems, and proposes some innovative solutions on how to ensure compliance with this right in technologically advanced criminal proceedings.

Garcia Alva / Lietzow v. Germany

2001 ◽  
Vol 12 (1-2) ◽  
pp. 73-76 ◽  
Keyword(s):  
Fair Trial ◽  
Fundamental Rights ◽  
The Right

Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client's detention. In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted to review detention should in principle meet, to the largest extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure. The legitimate goal of an efficient investigation could not be pursued at the expense of substantial restrictions on the rights of the defence.

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