scholarly journals Should videoconference be elected over personal presence in criminal legal proceedings?

2021 ◽  
pp. 12-22
Author(s):  
Mariia Aleksandrovna Iurkevich
Keyword(s):  
Practical Experience ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Proceedings ◽  
Judicial Control ◽  
Legal Proceeding ◽  
European Court ◽  
Entire Complex ◽  
The Right

This article analyzes the conditions and legal ramifications of application of videoconference in various forms of criminal legal proceedings, highlighting practical issues emerging in arrangement of participation of parties in criminal proceedings via videoconference calls. As a product of digital technologies, videoconference is examined not only as a formal means of communication used by parties to a legal proceeding, but also as one of the means of exercising the right to a fair trial. The object of this research consists of communication and procedural relations arising between the parties to a legal proceeding with application videoconference. The subject of this research covers the entire complex of fairly recent norms for the Russian criminal procedural regulation governing application of videoconference on various stages of criminal proceedings on a case. The article contains practical recommendations by indicators that should be considered in determining optimal forms of participation in a criminal proceeding, as well as actions of parties that must be undertaken if during application of videoconference, the rights of the defendant are violated or the standards of fair trial are not being met. The article complies answers to the most topical questions on videoconference calls, taking into the consideration practical experience of the author, as well as relevant case law of the Russian courts and the European Court of Human Rights. The conclusion is made that application of videoconference is allowable in legal proceedings of the courts of first instance and courts of appeal in criminal cases heard in special order, cassation instance, supervisory instance, in execution of sentence, as well as within the framework of judicial control at pretrial stage in a criminal case, but only if procedural guarantees could be provided to all parties of the proceedings. In a trial by jury such technology is unacceptable.

ANONIMNI SVEDOCI I ZAŠTITA LjUDSKIH PRAVA

2021 ◽  
pp. 277-296
Author(s):  
Veljko Turanjanin ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Step Test ◽  
European Convention ◽  
Criminal Proceedings ◽  
National Legislation ◽  
European Court ◽  
The Right ◽  
Insufficient Knowledge

Тhe author deals with the problem of anonymous witnesses in the context of the right to a fair trial in the jurisprudence of the European Court of Human Rights. One of the problems in the application of Article 6 of the European Convention on Human Rights is related to the testimonies of anonymous witnesses in criminal proceedings. The case law of the European Court of Human Rights has developed certain criteria that must be followed in national legislation, but it is obvious that there is insufficient knowledge regarding this problem, as well as the reluctance to apply the mentioned rules. The standards developed by the ECtHR are very important for national laws and jurisprudence. The author explains the development of a three-step test that needs to be examined when assessing a violation of the right to a fair trial, through an analysis of a multitude of judgments, in order to provide guidance on the application of Article 6 § 3 (d) of the European Convention on Human Rights. After introductory considerations, the author explains who can be a witness under the Convention, since this question is raised independently of national legislation, and then explains the right to examine witnesses, the admissibility of testimonies by anonymous witnesses and the examination of the three-stage test, and gives concluding remarks.

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 Wybrane zagadnienia dotyczące zwalczania terroryzmu w kontekście prawa do rzetelnego procesu

2019 ◽  
pp. 163-179 ◽  
Author(s):  
Magdalena Matusiak-Frącczak
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
International Peace ◽  
Criminal Proceedings ◽  
Targeted Killing ◽  
Human Rights Protection ◽  
Judicial Control ◽  
Rights Protection ◽  
Peace And Security ◽  
The Right

Terrorism is nowadays one of the biggest threats to international peace and security. Nevertheless, its combatting must be compatible with the requirements of human rights protection, including the right to a fair trial. First the article discusses procedural guarantees of suspects of terrorist crimes in criminal proceedings. Then the article deliberates the aspects of judicial control of targeted sanctions. The next part will constitute the exploration of the legal professional privilege in the discussed area. Finally, the article will discuss the judicial control of targeted killing. The aim of the article is to prove that actually the right to a fair trial and the procedural guarantees enshrined therein constitute a guarantee to other human rights.

scholarly journals The right of the defense to request an explanation of the accusation during the criminal investigation phase

2021 ◽  
pp. 7-14
Author(s):  
Tatiana Vizdoaga ◽  
◽  
Adriana Esanu ◽  
Keyword(s):  
Fair Trial ◽  
European Convention ◽  
Criminal Investigation ◽  
Criminal Proceedings ◽  
Republic Of Moldova ◽  
European Court ◽  
The Right To Know ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

Pursuant to Article 66 paragraph (2) point 1) of the Code of Criminal Procedure, the accused has the right to know for what deed he is accused […], i.e. to be informed on the nature and cause of the accusation brought against him. If the person is not properly informed about the accusation, he is deprived of the right to ensure the possibility of preparing and exercising his defense, being seriously affected by the principles of a fair trial, guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the principle governing the exercise of rights by the accused in criminal proceedings guarantees the use of any means and procedures of defense, except those expressly prohibited by law, some prosecutors are reluctant to defenders’ requests to explain the accusation in criminal proceedings, context in which, in most cases, either declares them inadmissible or considers them unfounded. Such an approach does not reconcile the right to a fair trial; or, the clarity of what is set out in the indictment is also linked to the right of the accused to defend himself – as an indispensable element of the protection of the person against arbitrariness. Therefore, in this study, the authors will come up with pertinent arguments to annihilate the vicious practice of prosecutors to disregard the importance of predictability of the accusation in order to ensure the right to defense, as well as avoiding the conviction of the Republic of Moldova by the European Court for European Convention.

scholarly journals Human Rights Waiver in Criminal Proceedings in Terms of the European Court of Human Rights: ‘Russian Cases’

2020 ◽  
Vol 3 (4) ◽  
pp. 50-58
Author(s):  
Irina Chebotareva ◽  
Olesia Pashutina ◽  
Irina Revina
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Widespread Occurrence ◽  
European Court ◽  
The Government ◽  
Grand Chamber ◽  
The Right

The article investigates the general position of the European Court of Human Rights on the admissibility and validity of the waiver of rights, the features of the European mechanism for protecting human rights in case of the waiver of the right; studies the case-law practices in criminal cases of the Court in relation to Russia where the Court considered the presence/absence of the waiver of the right. The practice of the ECHR reveals the widespread occurrence of human rights violations in the Russian criminal proceedings with the alleged waiver of the right in the framework of criminal procedure. These includes the situations when the Government claimed that the Applicant had waived his/her right and the Applicant did not agree with this fact and insisted that he had been deprived of the opportunity to exercise his/her right. According to the ECHR, violations of human rights established in the Convention are related not only to shortcomings in the legal system but also to improper law enforcement that does not comply with the Convention requirements. Based on the analysis of the ECHR’s general approaches to the waiver of the right, the authors revealed the compliance of the Russian criminal procedure with the requirements of the Court to the waiver of the right and the guarantees established for it. To achieve the objectives in the HUDOC database of the European Court, using search requests we identified cases against Russia considered by the Chamber and the Grand Chamber, in which the ECHR examined the issue of the presence/absence of the waiver of the right in the criminal procedure. As a result, 40 judgments in which the Court directly considered the issue of the presence/absence of the waiver of the right in the criminal procedure in Russia were selected. We studied and analysed the selected judgments.

scholarly journals Slepenu izmeklēšanas metožu lietošanas principu attiecināmība uz likumā “Par policiju” paredzētā kontrolpirkuma izpildi

2020 ◽  
Vol 2 (17) ◽  
pp. 89-107
Author(s):  
Mārcis Grinciuns
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
European Court ◽  
Investigation Methods ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Secret Investigation ◽  
The Right ◽  
Police Control

Rakstā tiek pētīta Eiropas Cilvēktiesību tiesas (ECT) pausto slepeno izmeklēšanas metožu (undercover operations) izpildes principu attiecināmība uz likumā “Par policiju” noteiktā kontrolpirkuma (turpmāk rakstā – policijas kontrolpirkums) izpildi. Policijas kontrolpirkums galvenokārt tiek veikts, lai atklātu administratīvos pārkāpumus, kuru izskatīšana nav piekritīga ECT, jo Cilvēka tiesību un pamatbrīvību aizsardzības konvencijas (turpmāk rakstā – Konvencija) 6. pantā noteiktās tiesības uz taisnīgu tiesu paredzētas apsūdzētajiem krimināllietās [1, angļu valodas versija]. Taču atsevišķos gadījumos arī administratīvais pārkāpums (vai disciplinārpārkāpums) var būt piekritīgs ECT kompetencei – tas atkarīgs no tā, kāda rakstura pārkāpums tiek izmeklēts un kāds sods par tā izdarīšanu paredzēts. ECT ir definējusi trīs kritērijus, pēc kuriem tā vērtē, vai pārkāpums atbilst krimināla pārkāpuma būtībai un ir piekritīgs Konvencijas 6. pantam. Aktuāls ir jautājums, vai likumpārkāpumi, kuru izmeklēšanā ir paredzēts izmantot policijas kontrolpirkumu, ir piekritīgi Konvencijas 6. pantam, un, ja tā, vai policijas kontrolpirkuma normatīvais regulējums ir atbilstošs ECT paustajiem slepenu izmeklēšanas metožu lietojuma principiem (nosacījumiem). The article examines the relevance of the principles of the use of secret investigation methods (undercover operations) expressed by the European Court of Human Rights (ECHR) to the test-purchase measure set out in the Law “On police” (police test-purchase). The police test-purchase mainly is used to detect administrative offences which are not subject to review by the ECHR, since the right to a fair trial provided in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) is reserved for defendants in criminal proceedings. The question is whether the offences, where police test-purchase is used as part of investigation, are subject to Article 6 of the Convention, and if so, whether the regulatory framework for police control is in line with the principles (conditions) of the use of secret investigative methods expressed by the ECHR.

scholarly journals The Right to a Fair Trial before The European Court of Human Rights

2019 ◽  
Vol 2 (2) ◽  
pp. p133
Author(s):  
Alaa Mohamed Ismail Abdrabo
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Fair Trial ◽  
European Convention ◽  
New Work ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Charges ◽  
The Right ◽  
Right Of Access

Article 6 of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, applies to disputes relating to civil rights and obligations as well as to criminal charges. The right to a fair trial includes, inter alia, the right of access to a court, the right to be heard and the equality of arms between the parties. This challenging new work elucidates the meaning of the fair trial and looks at the fair trials jurisprudence of the ECHR.Article 6 of the European Convention on Human Rights has become the defining standard within Europe for determining the fairness of criminal proceedings. Its success has been attributed to the fact that it is not based on a particular model of criminal procedure.

scholarly journals Judicial Control as a Guarantee of Non-Interference in Private Life During the Pretrial Investigation

Dixi ◽  
2021 ◽  
Vol 23 (2) ◽  
pp. 1-18
Author(s):  
Volodymyr I. Galagan ◽  
Serhii Ye. Ablamskyi ◽  
Zhаnnа V. Udovenko ◽  
Victoria V. Ablamska
Keyword(s):  
Justice System ◽  
Private Life ◽  
Public Order ◽  
Topical Issue ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
European Court ◽  
Justice Process ◽  
Effective Role ◽  
The Right

The article is devoted to the topical issue of judicial control over non-interference in the private (personal and family) life of participants in criminal proceedings. The study was conducted in the context of the analysis of the practice of the ECHR, the legal positions of which should be consistently applied in criminal proceedings, evidence of this are the legal requirements on this issue. The notion and concept of judicial control is a necessity component that helps in guaranteeing the respect of human dignity and integrity. It is a common and established principle that, during the pre-trial process, it is the position of those ensuring justice in making sure that the life of persons is respected and safeguarded. It is noted that in accordance with the national legislation of Ukraine, judicial control is a separate function of the court's activities at the stage of pre-trial investigation, directly carried out by the investigating judge. The situation will become precarious and detrimental when the private life of persons is not respected to the fullest. Therefore, it is the responsibility of those ensuring public order during the pre-trial investigation phase in ensuring the respect of the private life of the presumed suspect for the proper implementation of the justice process. In ensuring this right, it is established that the empirical and analytical methods of research are necessary in order to show the effective role played by the European Court of Human Rights in respecting the right to private life during the interrogative phase of inquiry. From the findings, it is seen that, though the Court has played a prominent and pertinent role in the respect of private, the suspect continues in experiencing difficulties when it's private life is at at stake, and it always affects the extent of the justice system.

scholarly journals Principle of the Rule of Law in the Case-law of the European Court of Human Rights

1970 ◽  
pp. 373-379
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Fair Trial ◽  
Court Decisions ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
European Court ◽  
The Law ◽  
The Right

The article is devoted to the interpretation of the principle of rule of law in the practice of the European Court of Human Rights. The concept of the rule of law, along with democracy and human rights makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the ECHR. The Preamble to the ECHR states that the governments of European countries are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. The rights most obviously connected to the rule of law include: the right of access to justice, the right to a fair trial, the legal principle that measures which impose a burden should not have retroactive effects the right to an effective remedy, anyone accused of a crime is presumed innocent until proved guilty etc. The author concludes that there is an expediency of grouping separate requirements of the rule of law in the practice of the ECtHR around concepts, which are concluded to be elements of the rule of law in a democratic society. Such elements of the rule of law in the practice of the ECHR are recognized as legality, legal certainty, fairness of a trial and the priority of human rights. Legality supposes that authorities need a legal basis for measures which interfere with a right of an individual, as well as quality requirement for the law such as accessibility, foreseeability and no arbitrariness. Legal certainty encompasses foreseeability in application of the law; non-retroactivity of legislation; the principle of res judicata; mandatory execution of court decisions and consistency of judicial practice. Fair trial requirements devoted into two groups: general requirements (access to court, independent and impartial tribunal, execution of court decisions etc.) and requirements for criminal proceedings (presumption of innocence, principle nullum crimen sine lege etc.) It is noted that the legality, legal certainty, fairness of a trial are formal requirements of the rule of law, thus the priority of human rights is a substantive (material) requirement of the rule of law. The aforementioned testifies to the natural-legal approach that the ECHR is guided by in interpreting the rule of law in its practice, understanding it primarily as the rule of human rights.

12. The Right to a Fair Trial in Civil and Criminal Cases

2020 ◽  
pp. 277-312
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Criminal Cases ◽  
Legal Proceedings ◽  
National Courts ◽  
Fair Hearing ◽  
Civil Cases ◽  
The Right ◽  
Right Of Access

This chapter examines the provisions of the European Convention on Human Rights (ECHR) on the right to a fair trial in criminal and civil cases, explaining that Article 6 of ECHR holds that the Strasbourg Court has no jurisdiction to reopen national legal proceedings or to substitute its own findings of fact for the conclusions of national courts. The chapter examines the interpretation by the Strasbourg Court of the protections provided by Article 6 in the extensive jurisprudence on this Article and discusses issues concerning the overall requirements of a fair hearing, right of access to court, and the extraterritorial effect of Article 6.

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