scholarly journals DISTURBED PRECEDENTING OF THE LAW IN PRACTICE OF THE COURT OF BOSNIA AND HERZEGOVINA

2017 ◽  
Vol 3 (9) ◽  
Author(s):  
Milan Blagojević
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Crimes Against Humanity ◽  
Criminal Sentencing ◽  
Criminal Proceedings ◽  
European Court ◽  
The Subject ◽  
The Hague ◽  
The Law ◽  
The Republic

The subject of this paper is one model developed in practice of theCourt of Bosnia and Herzegovina, and it is related to unconstitutional retroactiveimplementation of incrimination crimes against humanity. Foundationsof this problem are laid in the decisions of Hague Tribunal, andthen in the decisions of the European Court for Human Rights. These decisionsare afterwards accepted without any critique in practice of the Courtof Bosnia and Herzegovina in criminal proceedings led regarding this incrimination.This is the model of disturbed precedenting of the law. In thepaper this problem has been clarified by the author on one case from theCourt practice, which unfortunately is not the only example in reality. Theessence of this problem is in the Court sentencing verdicts reached againstindividuals. Namely, assertions that widespread and systematic attackagainst civilian population is carried out by the Army and Police of the Republicof Srpska are expounded in these verdicts, but not confirmed by validproofs and arguments. This is the way for criminal sentencing of not onlyindividuals (natural persons) but the Republic of Srpska as well, withoutenabling it to defend itself from such unfounded accusations. When theCourt of Bosnia and Herzegovina is trying to find arguments for such verdictsin the decisions of the Hague Tribunal and in the decisions of theEuropean Court of Human Rights, it is defective since decisions of these internationalinstitutions are defective as well. All this in final can cause seriousconsequences against the Republic of Srpska, which (these consequences)can be not only of criminal nature but of constitutional nature aswell.

Freedom of Religion and the Legal Status of Churches: A Case Study from the Serbian Constitutional Court

2020 ◽  
Vol 56 ◽  
pp. 487-507
Author(s):  
Tijana Surlan
Keyword(s):  
Human Rights ◽  
Canon Law ◽  
Legal Status ◽  
Freedom Of Religion ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Freedom Of Association ◽  
European Court ◽  
The Law ◽  
The Republic

This article offers a short study of the conjugation of freedom of religion, freedom of association and the legal status of religions and churches. Human rights are elaborated as defined in international human rights law, accentuated by the jurisprudence of the European Court of Human Rights. A compliance case that came before the Constitutional Court of the Republic of Serbia provides a national jurisprudential example useful for the analysis of relations between human rights and the legal status of a church. Analysis of the law is both horizontal and vertical: a description of norms is intertwined with a discussion of principles of identity and equality. The article explores whether the principles of human rights and freedoms and the norms regulating the legal status of a church are consistent with each other; whether these principles are independent and how their mutual relationship influences the application and interpretation of the law; and whether the norms prescribed by international law or in national jurisprudence can be applied independently of canon law, or whether application of the law has to take into account specific religious jurisdictions and relations between churches which are rooted in their autonomous canon law.

scholarly journals Lustration of Judges in Ukraine: National Insights and European Implications

2020 ◽  
pp. 226-245
Keyword(s):  
Human Rights ◽  
Empirical Analysis ◽  
Bosnia And Herzegovina ◽  
European Countries ◽  
Deep Insight ◽  
Social Feedback ◽  
Social Demand ◽  
European Court ◽  
The Law ◽  
Insight Into

This article primarily focuses on the Ukrainian judge lustration, analysed from diverse aspects. Ukraine’s legal lustration framework engenders two legal acts— the Law On Restoring Trust into Judicial Power in Ukraine (2014) and the law On Purification of Government (2014). Social feedback on adopting these Laws, their key objectives, provided instruments and efficiency issues are discussed. This research particularly scrutinises the fundamental European lustration standards, referencing a few European countries’ experiences: Albania, Bosnia and Herzegovina, Poland. Deep insight into national lustration procedures is given, considering the European Court of Human Rights’ relevant rulings and the Ukrainian Constitution’s provisions. Remarks on whether all lustration laws comply with the Ukrainian Constitution are offered. Addressing the High Council of Justice’s precedents, a judicial body entitled to verify the judges’ lustration results, an in-depth empirical analysis of those procedural results are provided. Overall, Ukrainian lustration embodies a unique phenomenon due to strong social demand formalized in specially designed regulation.

scholarly journals Standards for ensuring the legality of implementing unspount activities in criminal process through the prism of legal positions of the European court of human rights

2021 ◽  
pp. 111-123
Author(s):  
A. Tumanyants ◽  
I. Krytska
Keyword(s):  
Human Rights ◽  
Democratic Society ◽  
Order Conditions ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
National Legislation ◽  
Judicial Control ◽  
European Court ◽  
The Subject ◽  
Covert Activity

The analysis of the legal positions of the ECHR in the aspect of the subject of the article under consideration made it possible to conditionally single out the following standards for ensuring the legality of the implementation of covert activity in criminal proceedings:- predictability. Its essence lies in the fact that the grounds, procedural order, conditions, timing, the circle of persons and crimes in relation to which it is allowed to carry out covert activities should be as detailed, clear and accurate as possible in the criminal procedural legislation. Moreover, any person had the opportunity to familiarize himself with the relevant regulatory prescriptions and foresee the actions that can be carried out in relation to him;- warranty against abuse. The content of this standard can be disclosed by more detailed highlighting of clarifying provisions ("substandards"). These include: control of interference in human rights and freedoms; the certainty of the circle of persons in relation to whom it is possible to carry out secret activities; limited corpus delicti, for the purpose of investigation or prevention of which covert activity is allowed;; the existence in national legislation of procedures that facilitate the law of the implementation of covert activity in criminal proceedings; the temporary nature of the implementation of secret activities in the criminal process;- verifiability. The essence of this standard can be disclosed through the establishment of judicial control over the decision of the issue regarding the possible destruction of information obtained in the course of conducting covert activities, which is not relevant to criminal proceedings, as well as the requirement for the mandatory opening of decisions that were the basis for conducting covert investigative actions;- exclusivity. The main content of this standard is that covert activity in criminal proceedings can be carried out only in cases where the disclosure or prevention of a crime in another way is impossible or is too complicated;- proportionality of the intervention and its expediency. The essence of this standard is that the implementation of certain covert coercive actions that are associated with the restriction of human rights and freedoms must be proportionate to the goals for which such actions are directed. Moreover, these goals and the applied coercion must be necessary in a democratic society;- inadmissibility of tacit interference in the communication of some subjects. First of all, this requirement concerns the need to legislatively guarantee non-interference in communication between a lawyer and his client, a priest and an accused, etc., which means a ban on targeted control over the communication of certain subjects, as well as the obligation to destroy information obtained in the course of an accidental, situational interfering with their communication.

scholarly journals Zbrodnia katyńska przed Europejskim Trybunałem Praw Człowieka — refleksje nad wyrokiem z 21 października 2013 roku

2017 ◽  
Vol 43 ◽  
pp. 349-373
Author(s):  
Witold Kulesza
Keyword(s):  
Human Rights ◽  
Criminal Code ◽  
Prisoners Of War ◽  
Crimes Against Humanity ◽  
Criminal Proceedings ◽  
Russian Government ◽  
European Court ◽  
Communist Ideology ◽  
Russian State ◽  
Grand Chamber

The Katyń massacre before the European Court of Human Rights — reflections on the October 21, 2013 judgmentBoth the Nuremberg Tribunal in its judgment of Jan. 1, 1946 as well as the European Court of Human Rights’ Grand Chamber judgment of Oct. 21, 2013 in the case of Janowiec and Others v. Russia abstracted from a substantive decision on Russia’s responsibility for the Katyń massacre and failed to determine the consequences to be borne by the defending state, whose authorities decided upon the performance of the act in question. Contemporary Russian state denies that the murder of 22,000 Polish prisoners of war and inmates at the behest of the highest authorities of the USSR in 1940 was indeed a war crime. According to the position of the Russian government, represented before the ECHR, what took place was solely a crime committed by the administrative personnel who acted beyond their authority, the prosecution of which expired after 10 years, i.e. in 1950. The Russian side also claimed that it was not obliged to conduct an investigation on the matter and refused to disclose the content of the order to discontinue the criminal proceedings issued in 2004 to both the relatives of those who were murdered and to the ECHR. It also refused to recognize the murdered Polish prisoners of war as victims of political repression, claiming that it is unclear according to which criminal code they were sentenced to be shot. Russia’s position in denying the temporal jurisdiction of the ECHR and the ratione materiae with regard to the Katyń massacre which was in fact accepted by the ECHR in its judgment, should be subject to criticism. According to the statement of the court, Russia has not violated Article 2 of the Convention in its procedural aspect or Article 3 in its way of dealing with the relatives of the victims. The Court has lost the chance to contribute to appointing — in terms of human rights — a protection standard for a vital legal interest, which is currently the collective memory of the persecution of people because of their national, racial or religious background, ones who had become victims of war crimes and crimes against humanity, committed in the name of Nazi or communist ideology once pursued in Europe.

scholarly journals Results of an empirical study on the effectiveness of urgent measures in the Republic of Serbia

2021 ◽  
Vol 63 (1) ◽  
pp. 19-43
Author(s):  
Aleksandar Bošković ◽  
Tanja Kesić
Keyword(s):  
Domestic Violence ◽  
Public Prosecutor ◽  
Preventive Action ◽  
Criminal Proceedings ◽  
The Public ◽  
Individual Number ◽  
The Subject ◽  
The Law ◽  
The Republic ◽  
The Individual

Contemporary legislation, not only criminal and criminal proceedings law, has entered a new stage, that is currently underway and that is reflected in significant reforms and new legislation, as well as seeking new solutions to increase efficiency in preventing and combating domestic violence. The Republic of Serbia embarked on this path by adopting the Law on Prevention of Domestic Violence, which should primarily intensify the preventive action of the competent state bodies in cases of domestic violence. The Law on Prevention of Domestic Violence started to be applied on June 1, 2017 and given the fact that it has been applied for the past three years, it is necessary to carry out an adequate analysis and to evaluate whether it has increased efficiency when it comes to combating domestic violence. In this regard, the subject of this paper is primarily the analysis of the practical application of urgent measures provided by the Law imposed by the police, the public prosecutor and the court. This research will cover a period of two years of applying of the law, i.e. the period from June 1, 2017 to May 31, 2019. During the research, the statistical method was used along with the methods of analysis, deduction, comparison and description. The paper will analyse: both the total and the individual number of urgent measures imposed by the police; territorial distribution of the imposed urgent measures on the territory of the Republic of Serbia; imposing of extended urgent measures by the court, and a significant aspect of this research will be dedicated to the issue of violations of the imposed urgent measures.

scholarly journals The Guarantees of the Human Rights of the Defendant in the Law System in Kosovo

2017 ◽  
Vol 5 (11) ◽  
pp. 7
Author(s):  
Armend Podvorica ◽  
Adelina Rakaj
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Practical Implementation ◽  
Constitutional Court ◽  
Law System ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Law ◽  
The Republic

The paper "The guarantees of the human rights of the defendant in the law system in Kosovo" aims to treat the access of the Republic of Kosovo in the delivery of constitutional guarantees and legal guarantees to protect the defendant in the criminal procedure. Within these guarantees, special emphasis is placed on the judicious acts in force that provide these guarantees in the Republic of Kosovo. A special analysis with regard to this paper is dedicated to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the practice of European Court of Human Rights (ECtHR), the Constitution of the Republic of Kosovo and the Criminal Procedure Code of Kosovo (CPCK). The analysis of those acts clarifies that the guarantees of the Legal System in Kosovo coincide with the rights of the defendant. Another dimension that finds space within the paper is the practical implementation of the guarantees provided by the aforementioned acts in terms of the rights of the defendant. The role of the Constitutional Court in the Republic of Kosovo in the past and now has been mainly analyzed in the formation of the constitutional and international guarantees, applicable in Kosovo concerning the rights of the defendant in the criminal procedure.

scholarly journals Reasonable Time in Criminal Proceedings of Ukraine in the Context of the European Court of Human Rights Case Law

2021 ◽  
Vol 11 (2) ◽  
pp. 701-715
Author(s):  
Bohdan Derdiuk ◽  
Serhii Kovalchuk ◽  
Snizhana Koropetska ◽  
Vasyl Savchenko ◽  
Oleksandra Smushak
Keyword(s):  
Human Rights ◽  
Practical Implication ◽  
Case Law ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Time Period ◽  
The Subject ◽  
Definition Of

The purpose of the paper is an analysis of the notion of reasonable time, period which is taken into account in their calculation and criteria for determining a reasonable time for criminal proceedings in Ukrainian criminal procedural legislation in the context of the European Court of Human Rights case law. The subject of the study is an analysis of Ukrainian criminal procedural legislation from the point of view of its conformity to the ECHR’s case law in the designation of a reasonable time, period which is taken into account in calculation of a reasonable time and criteria for its determining for criminal proceedings. The research methodology includes comparative legal, systematic, functional, formal legal and others methods. The results of the study. The period which is taken into account in calculation of a reasonable time and the criteria for its determining is studied comprehensively as a basis for definition of the notion of reasonable time. Practical implication. The range of suggestions for improvements of Ukrainian criminal procedural legislation relating content of reasonable time and mechanism used to their calculate is defined. Value / originality. Based on the results of an analysis the authors’ concept of reasonable time is proposed.

scholarly journals Anonymous Witnesses in England and Wales: Charting a Course from Strasbourg?

2009 ◽  
Vol 73 (6) ◽  
pp. 508-529
Author(s):  
Jonathan Doak ◽  
Rebecca Huxley-Binns
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Criminal Courts ◽  
England And Wales ◽  
High Profile ◽  
European Court ◽  
Legislative Framework ◽  
The Subject ◽  
The Law ◽  
To Receive

The use of anonymous testimony in England and Wales has recently been the subject of a number of high-profile appellate decisions and legislative intervention. As the law currently stands, it is permissible for the criminal courts to receive such testimony, subject to certain safeguards. This article evaluates the position against the threshold for anonymous evidence laid down by the European Court of Human Rights. It is argued that such evidence is too readily admissible under the current legislative framework. As such, the rules regulating the use of anonymous testimony should be amended so that they comply fully with the fair trial rights of the accused.

scholarly journals UNFORESEEABILITY AND ABUSE OF CRIMINAL LAW DURING THE COVID-19 PANDEMIC IN SERBIA

2021 ◽  
Author(s):  
Veljko Turanjanin
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Executive Branch ◽  
State Of Emergency ◽  
Constitutional Review ◽  
The Rule Of Law ◽  
European Court ◽  
The Law ◽  
The Republic ◽  
The Government

The author deals with the problem of criminal measures and sanctions in the legislation of the Republic of Serbia during the Covid-19 pandemic. The executive branch of the government declared a state of emergency in the Republic of Serbia in March 2020. At the same time the so-called Crisis Headquarter was established with the authority to impose measures of criminal-legal nature. During the two-month state of emergency, through the Crisis Headquarter, the executive branch of the government was changing criminal laws and sanctions at an almost daily basis. It is debatable whether such laws meet the rule of law and the European Court of Human Rights standards. Many citizens failed to adapt their behavior to the imposed measures. On the one hand, the courts have fallen into the trap of double punishment, both for a crime and for a misdemeanor. On the other hand, justifications of the courts’ decisions are also questionable, especially those containing references to statements made by members of the crisis team through the media. Furthermore, the Constitutional Court didn’t rule on any of the numerous requests for constitutional review, but in September it came out with the view that since the state of emergency was over, its decision was unnecessary. The paper is comprised of several units. In the first place, the author explains the process of legal changes by analyzing all the laws and rules that were passed by the end of 2020, as well as data related to the punishment of residents whose behavior was not in accordance with existing legal solutions. Bearing in mind the standards of the rule of law and the European Court of Human Rights, the author then explains that the measures implemented by the Serbian authorities do not meet the basic required criteria, primarily the foreseeability of the law, as well as that the laws were abused for the purpose of the election campaign. The special attention is paid to curfews and the complete ban on leaving homes for senior citizens well as ban of contacting with the family members, and then the lockdown of the rest of the population. The actions taken by the authorities during the epidemic resulted in violation of human rights of their citizens, and experience shows that the only court that citizens will be able to turn to will be the European Court of Human Rights. The author believes that with this understanding of the law and respect for its own citizens, the European Union can only be a distant idea.

scholarly journals Free secondary legal aid as a method of implementing of constitutional humans rights within the criminal procedure

2020 ◽  
Vol 2 (2) ◽  
pp. 262-268
Author(s):  
Alina Harkusha ◽  
Olena Soldatenko
Keyword(s):  
Human Rights ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
International Courts ◽  
European Court ◽  
The Status ◽  
The Subject ◽  
Constitutional Right ◽  
Representation Of Interests

The article investigates the functionality of the Institute of Secondary Legal Aid in the aspect of exercising a person's constitutional right to defense, comprehensively examines the status of a defender in the process of providing secondary legal aid. In addition, attention was paid to the legal basis and standardization of professional legal assistance. The authors of the article outline the key theoretical and practical problematic aspects of the provision of free secondary legal aid by authorized entities in criminal proceedings in Ukraine. Defender's status in the process of providing secondary secondary legal aid has been established. The article investigates that the bar is the main institution that provides protection, representation of interests of persons entitled to legal aid. In addition, it is considered to be the subject of quality assistance, because it is the lawyers who are directly involved in setting up a free secondary legal aid system. In the course of this study it is found that the term “legal aid” in the context of the Law of Ukraine “On Free Legal Aid” combines the person’s right “to have a defense counsel appointed when the interests of justice (the nature of the case, the consequences for the accused and his ability to defend on their own) require it or when the person does not have sufficient funds to pay for this defender”. The quality of free legal aid depends on many factors. First of all, from how responsibly and me-ticulously the lawyer will perform his work. In particular, the lawyers discussed the thesis of incentives to provide quality assistance, as the large number of cases in the lawyer, hinders concentration, and as a result, reduces the level of positive decisions. In addition, free legal aid does not provide support to citizens in applying to international courts, such as the European Court of Human Rights. Assistance at the international level can be provided by the system of public receptions of the Ukrainian Helsinki Human Rights Union.

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