CONCERNING THE STRUCTURE OF PUBLIC LEGAL INTEREST IN CRIMINAL COURT PROCEEDINGS

В статье анализируется структура публичного законного интереса в уголовном судопроизводстве, входящих в него элементов на примере института домашнего ареста. Авторская модель публичного законного интереса участников уголовного процесса «привязана» к стадийности и может распространяться не только на вопросы, связанные с мерами пресечения. По мнению авторов, публичный законный интерес в контексте рассматриваемой проблемы воплощается в жизнь на основе нормативно установленного действия, содержащего конкретно сформулированные правила, устанавливающие четко определенные права и обязанности участников правоотношений. Данная деятельность сопряжена с определенными этапами (стадиями), которые в той или иной степени характерны соответствующей мере пресечения, и возможна в той стадии, где осуществляется оценка действий, предпринятых должностным лицом, осуществляющим производство по уголовному делу. Реализация публичного законного интереса, заявленного следователем, дознавателем на избрание домашнего ареста, зависит от того, как соответствующие устремления оценят другие должностные лица - руководитель следственного органа, прокурор (не обладающие правами реализации публичного законного интереса), то есть от их усмотрения. Законодатель не предоставляет следователю, дознавателю возможность «непосредственно» обратиться в суд - участнику процесса, наделенному правом реализовать их устремление на избрание меры пресечения. Подобные «преграды» не предусмотрены в законе для иных участников уголовного процесса, не наделенных публичной властью и стремящихся реализовать свой законный интерес. The article analyzes the structure of public legitimate interest in criminal proceedings, its constituent elements on the example of the institution of house arrest. The author's model of the public legitimate interest of participants in the criminal process is «tied» to the stage and can extend not only to issues related to preventive measures. According to the authors, public legitimate interest in the context of the problem under consideration is brought to life on the basis of a normatively established action containing specifically formulated rules establishing clearly defined rights and obligations of participants in legal relations. This activity is associated with certain phases (stages) that are more or less characteristic of the corresponding measure of restraint, and is possible at the stage where the actions taken by the official conducting the criminal proceedings are evaluated. The realization of the public legitimate interest declared by the investigator, the investigating officer for the election of house arrest depends on how the relevant intentions will be evaluated by other officials - the head of the investigative body, the prosecutor (who do not have the rights to realize the public legitimate interest), i.e. on their discretion. The legislator does not give the investigator, the inquirer the opportunity to turn «directly» to the court - a participant in the process, entitled to realize their intentions for the election of measures of restrain. Such «barriers» are not provided in the law for other participants in the criminal process who are not endowed with public authority and who seek to realize their legitimate interest.

Introducing a Levy Scheme to Online Educational Use of Copyrighted Works

It is common for teachers to use others' copyrighted works for the purpose of teaching. The current copyright law in many nations only exempts educational use in the context of offline classroom teaching. The use of others’ copyrighted material in online teaching may still constitute copyright infringement. To protect teachers from the chilling effect of copyright infringement, to safeguard the public's freedom to obtain knowledge, and to ensure the commensurability of the profits and responsibilities of online teaching platforms, this paper proposes a levy scheme for online teaching. Under the levy scheme, teachers are free to use others’ published work for the purpose of online teaching, provided that such use does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interest of the copyright owner. Online teaching platforms should remunerate the copyright owner of the work used in the platform according to the number of participants of the course that uses such work.

Beyond the Life Sentence – A Children’s Rights Lens on Sentencing for Murder

Children around the world who have been found responsible for murder continue to be sentenced to indeterminate or long periods of detention. This is in contravention of children’s rights standards which urge a ban on the life sentence and require that detention is used only for the shortest appropriate period of time. Nonetheless, the public and victims of crime have a legitimate interest in the protection of public safety and appropriate accountability for serious offending. Further, there is little guidance on what a rights compliant approach in such cases might involve. This work builds on previous studies of how children are sentenced for murder across the common law world and extends the analysis to a selection of European civil law jurisdictions. It explores and applies recent updated guidance from the Committee on the Rights of the Child and seeks to develop a framework for a children’s rights and human rights compliant approach to such cases.

Protection of minor rights in Russia and European Union countries

The goal of the study is to develop the problem of minor rights and legitimate interest protection theoretically. Discussion: A comprehensive analysis of the system for protection the rights of this category of citizens was carried out to achieve this goal. At the same time, special attention is paid to the basic concepts and approaches used for the implementation of the studied legal relations in Russia and the EU countries. Result: they revealed the features of minor right protection system in the Russian Federation and some EU states.

On the Conceptual and Categorical Apparatus in the Field of Personal Rights Protection in Criminal Proceedings

The problem of protecting human rights and freedoms is one of the urgent and fundamental problems of modern legal theory and practice. The actualization of this problem is currently due to a significant update of the criminal procedure legislation. The solution to the problems of this protection is not possible without identifying and analyzing the theoretical basis for the protection of individual rights in criminal justice. In the course of the study, conclusions are drawn about the relationship between the concepts of “right”, “freedom” and “legitimate interest” that are similar in content. At the same time, it is noted that legal science proceeds from the fact that there is essentially no fundamental difference between the concepts of “right” and “freedom”, the concept of “legitimate interest” is a prerequisite for the implementation of the first two concepts. The article presents the positions previously expressed in legal science regarding the ratio of fairly similar general legal categories, such as “protection” and “preservation”. The author's point of view on the correlation of these concepts is expressed, it is concluded that the concept of “preservation” is broader in its content than the concept of “protection”, and includes the latter. It’s developed its own approach to understanding the protection of individual rights in criminal proceedings.

On the Harm of Imposing Risk of Harm

What is wrong with imposing pure risks, that is, risks that don’t materialize into harm? According to a popular response, imposing pure risks is pro tanto wrong, when and because risk itself is harmful. Call this the Harm View. Defenders of this view make one of the following two claims. On the Constitutive Claim, pure risk imposition is pro tanto wrong when and because risk constitutes diminishing one’s well-being viz. preference-frustration or setting-back their legitimate interest in autonomy. On the Contingent Claim, pure risk imposition is pro tanto wrong when and because risk has harmful consequences for the risk-bearers, such as psychological distress. This paper argues that the Harm View is plausible only on the Contingent Claim, but fails on the Constitutive Claim. In discussing the latter, I argue that both the preference and autonomy account fail to show that risk itself is constitutively harmful and thereby wrong. In discussing the former, I argue that risk itself is contingently harmful and thereby wrong but only in a narrow range of cases. I conclude that while the Harm View can sometimes explain the wrong of imposing risk when (and because) risk itself is contingently harmful, it is unsuccessful as a general, exhaustive account of what makes pure imposition wrong.

The Scope of the Right to Give Birth at Home as Reproductive Self-determination In the Legislation of Georgia and the Practice of the European Court of Human Rights

This article discusses the scope of the right to give birth at home as reproductive self-de- termination in the context of Georgian law and the case-law of the European Court. Georgia, like many other member states of the Council of Europe, unconditionally prefers the model of hospital delivery to protect maternal and fetal life and health. It is true that under Georgian law, home birth is not prohibited as such, however except for emergencies, medical staff is authorized to provide medical care only in a licensed medical premise. That equates to a restriction of the right. Despite the legitimate interest in restricting the right to give birth at home, scientific studies have confirmed the similarity between the consequences of home birth and hospital delivery in the case of low-risk pregnancies. The blanket ban on the right to give birth at home became the object of debate in the European Court in 2010. The court explained that the right to respect for private life enshrined in the Convention includes not only a person’s decision to become or not to become a parent, but also the choice of conditions. According to the court, childbirth is a unique and delicate moment in a woman’s life, and the determination of the place of childbirth is fundamentally related to a woman’s personal life. The European Court has discussed the availability and foreseeability of national legislation in the context of restricting the right to give birth at home. The Court has ruled that national authorities must ensure the clarity (if any) of the responsibility for providing obstetric services at home. However, the Court has still left open the issue of the need to restrict the right to give birth at home on the grounds of a lack of consensus among the member states of the Council of Europe and the complex socio-economic aspects of the issue.

Parties

This chapter examines the part of the European Rules of Civil Procedure which aims to ensure that the court is properly accessible to all persons who have a legitimate interest in bringing or defending proceedings, i.e., in vindicating or enforcing rights. Parties to litigation can be persons who are able to hold rights under substantive law. Lacking litigation capacity, parties must be represented according to applicable law. In appropriate cases, proceedings may be brought by several claimants or against several defendants as parties joined to the litigation. The court may order the consolidation of separate proceedings for the purpose of properly managing them. At any time after the commencement of proceedings, substitution or succession of a party by another person is possible if required by law or if it is necessary in the interest of good administration of justice. The chapter then considers cross-border issues, including the capacity of foreign nationals to be a party, as well as their litigation capacity.

Legal nature of individual proceedings in cases of granting the right to marriage

The scientific article is devoted to the study of the legal nature of separate proceedings in cases of granting the right to marry.It is established that a separate proceeding as a type of non-litigious civil proceedings is characterized by: 1) the absence of a dispute about the right, which, at the same time, does not exclude the existence of a dispute about the fact; 2) a special object of judicial protection – a legally protected (legitimate) interest, which is the needs and aspi-rations to use a specific material and (or) intangible asset, which may or may not be mediated by a certain subjective right. Protection of legally protected (legal) interest is carried out by the court by deciding on the presence or absence of legal facts relevant to the protection of rights, freedoms and interests of a person or creating conditions for the exercise of personal non-property or property rights or confirmation of the presence or absence of undisputed rights.It is determined that a separate proceeding in cases of granting the right to marry is a type of non-litigious civil proceedings for consideration of applications for confirmation of the presence or absence of legal facts that are im-portant for creating conditions for a person’s right to marry. It is substantiated that the legal nature of separate proceedings in cases of granting the right to marry is a set of substantive grounds for granting the right to marry and features of the procedural form of consideration by the court of relevant applications that mediate changes in family law. The court, establishing the presence or absence of legal facts, decides to grant a person the right to marry, thereby expanding the family law capacity of such a person due to the ability to exercise the right to marry before reaching marriageable age or marry between the adopter’s adopted child and the adopted child, as well as between children who have been adopted by an adoptive parent.