Legislative Development of Criminal Proceedings and Evidence in the Slovak Republic (1993-2021)

Background: In this article, the author focuses on the legislative development of criminal proceedings and evidence after the establishment of the Slovak Republic. This article pays special attention to the issue of evidence and means of proof. It also deals separately with the legal regulation of using information and technical means. It briefly suggests possible directions of development in the field of evidence, reflecting the current state of development of science and technology, as well as changes in the security situation. Methods: The scientific methods of historical analysis and legal comparison were used to process the research data. Results and Conclusions: Developments in this area are constantly advancing, and the area of evidence in criminal proceedings in the Slovak Republic will inevitably be subject to updating.

REASONABLENESS OF NOTARIAL ACTS AS A COMPONENT OF ENSURING STANDARDS OF LATIN NOTARIES: THE EXPERIENCE OF UKRAINE

Background: This article is devoted to the study of the rules of notarial acts, the observance of which ensures the reasonableness of notarial acts as exemplified by Ukraine as a state belonging to the countries with Latin notaries. At the same time, the standardisation of Latin notary standards in Ukrainian legislation is associated with certain problems that do not fully reveal the potential of the notary and its functions as a body of undisputed civil jurisdiction. In this regard, the purpose of the work is to determine the components of the procedural mechanism to ensure the reasonableness of notarial acts, identify those shortcomings in their standardisation that lead to litigation, and formulate proposals for further improvement of notarial law on this basis. Methods: In the present research, we used the following methods: logical, systemic, specific sociological, hermeneutic, and modelling. It is established that the reasonableness of notarial acts is ensured by compliance with the rules on submission of evidence documents, requests for evidence documents by a notary, the signing of notarial documents, sending documents for examination, the compliance of documents submitted for notarial acts with statutory requests, and clarifying the will of the persons concerned. Results and Conclusions: It is proved that a notarial act issued based on the actual circumstances established within the notarial case, confirmed by the relevant evidence provided by the notarial legislation, should be considered reasonable. The grounds for exercising the powers of a notary to demand documents are determined, and the need to differentiate the order of recovery depending on the subjects in which such information is requested is emphasised. The content of the notary’s powers to request documents is clarified, and the conditions under which the exercise of such powers should be considered the notary’s duty are determined. The necessity of extending the duties of a notary to establish the will and real intentions of the persons concerned to all notarial acts and, in this regard, the standardisation of such a duty as a general rule of notarial acts is substantiated. It is concluded that the distinction between documents for which the originals are subject to preservation in the notarial file and those that are photocopied then returned to interested persons should be made, taking into account the loss or preservation of their validity and legal significance after said notarial action. The author determines the grounds and conditions for sending a document for examination, which is a procedural action of a notary that can be made only at the initiative or consent of the person who submitted the document. The proposals on the tendencies of standardisation of the content of the requirements of the validity of notarial acts and the consequences of their violation are formulated.

Economics of Criminal Proceedings in View of Procedural Principles

This article was written as part of the Costs of a Criminal Trial in View of an Economic Analysis of Law research project. Part one contains deliberations on the impact of economic factors on the regulations concerning the criminal procedure. One needs to answer the question of whether such factors should be considered as affecting the principles on the basis of which the model of the criminal trial is being developed and whether there are any solutions that have been introduced specifically because of the profit and loss account related to the prosecution of a perpetrator. Part two focuses on the fundamental results and the conclusions of empirical studies carried out with respect to the expenses incurred by the State Treasury in criminal proceedings, considering the expenses incurred in serious cases, i.e., those examined in the first instance by regional courts, and in minor cases, which in the first instance are handled by district courts. Results and Conclusions: The article points out three fundamental factors determining the amount of the expenses, i.e., the fact of the accused being imprisoned during the proceedings, the use of scientific evidence (opinions produced by expert witnesses), and the participation of a public defender remunerated by the State Treasury.

Derivative Lawsuit in Ukraine: The Issue of Improving Legal Regulation

Background: Some jurisdictions provide for the right of members of a corporation to sue on its behalf and in its interests. This remedy is called ‘a derivative action’ (derivative lawsuit), and the right to file such a lawsuit is granted to a company’s members in case the wrongdoers are in its control, preventing the company from taking actions to protect its rights and interests – which is detrimental to the interests and rights of minority shareholders. However, derivative lawsuit’s regulation differs in each jurisdiction despite sharing common features, raising a variety of issues to be resolved. Methods: In this article, the author points out several issues and their possible solutions, which could be implemented in Ukrainian legislation: property qualification by itself cannot prevent abuse in filing a derivative lawsuit – extended ‘locus standi’ has to be implemented; holders of preferred shares have to be granted the right to file a derivative lawsuit; property qualification has to be substituted with a representation quota for members of non-entrepreneurial corporations; the circle of defendants should include major members (majority of members) and third parties, etc. Results and Conclusions: The concepts of a preventive derivative lawsuit and a derivative lawsuit for the invalidation of a company’s transaction and possible issues regarding them are analysed. Additionally, the necessity for implementing a ‘business judgement rule’ is emphasised.

Can We Make All Legal Norms into Legal Syllogisms and Why is That Important in Times of Artificial Intelligence?

Background: The term ‘hard cases’ trace back to Herbert Lionel Adolphus Hart who was one of the first legal philosophers who directly used it in his works and Ronald Myles Dworkin to whom the development and establishment of this concept in legal language is linked. Even though these two legal philosophers in one of the most famous - The Hart–Dworkin – legal debate couldn’t agree on certain things, they both agreed that when dealing with hard cases, there is a need to act creatively in order to resolve such a case properly. The division of cases into easy ones and hard ones gradually lost its popularity, even in legal theory, but perhaps it can be resurrected and used these challenging times to help meet the challenges prompted by technology? Methods: This paper analyses the dichotomy of hard and easy cases as well as circumstances relating to the courts’ decision-making processes in such cases. The essay examines whether the solutions proposed by legal positivism (such as applying syllogisms and precedents) are sufficient to deal with easy cases. The paper also examines what factors analysed by legal realists have an impact on judges while making decisions in hard cases (for example, psychological factors, such as hindsight bias, intuition, hunches, the anchor effect, laziness, unwillingness to take responsibility, or the gambler’s fallacy, as well as social factors, like upbringing, life experience, social relations, gender, age, education, etc.). Given that the article is theoretical in nature, logical, systemic, teleological methods dominate. Both descriptive method and scientific research method were used as well. Results and Conclusions: The author concludes that easy cases should eventually be delegated to artificial intelligence to resolve, whereas hard cases will remain in the competence of human judges, at least until technological development reaches a certain level.

About Online First Articles and Academic Publishing

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E-evidence and e-court in the context of the Covid-19 pandemic: A study from Ukraine

The possibility of using information technology in courts can be called a novelty and a progressive innovation in Ukraine. This is is an important factor in improving the efficiency of the openness and transparency of justice and simplifies judicial procedure, shortens court proceedings and procedural time limits, reduces operating costs, and saves time for all the participants of the process while cases are under consideration. Due to the rapid spread of COVID-19, rapid judicial reforms have taken place around the world to ensure access to justice in this new environment. Insufficient levels of information and technical support for the courts in Ukraine, the lack of a single format for data exchange between automated document management systems of various instances and specialisations, imperfect information protection systems, and insufficient regulation of the information legislation remain problematic issues in the functioning of e-justice systems, all of which require further study. Addressing these issues will help justice in Ukraine to reach a new level in the coming years. Since the e-justice system is aimed at optimising the work of courts through the informatisation of processes, and electronic means of proof are designed to ensure the rights of litigants to use electronic information, the interaction of the notion of electronic evidence with the e-justice system is quite possible. This interaction will increase the efficiency of the judiciary and the quality of justice. This article examines the development of information technology in the courts of Ukraine, including during the COVID-19 pandemic, analyses court decisions rendered in the context of the pandemic, and reflects on the real state of the judicial system in the adoption and examination of electronic evidence. It should be noted that the procedure for processing, submitting, and examining electronic evidence is currently not fully regulated, so the use of electronic evidence in litigation is not always effective. All of the above indicates the need to refine the current procedural codes in terms of introducing clear rules for the collection, execution, submission, and examination of electronic evidence.

The Contribution of Forensic Examination to Ensuring the Right to a Fair Trial within ECtHR Case-law

In this note, the authors study legal and procedural cases of the application of forensic research in the observance of the common European procedural guarantee ensuring the balance of justice during a trial: Art. 6 of the European Convention on Human Rights (right to a fair trial). Based on the current legislation of the European Union and Ukraine, peculiarities of legal regulation and application of forensic expert research during court proceedings are analysed. It is emphasised that established the approaches and practice of applying specific expertise in the countries of the European Union have some peculiarities. It is established that one of the ways to ensure the fairness of a court decision is using forensic science. While comparing the legal framework for providing justice in Ukraine and the European Union, the authors stressed the need to develop a separate policy guideline (strategy, concept, etc.), such as the Vision for European Forensic Science Area used in EU countries. Detailed analysis of the ECtHR case-law on the application of Art. 6 has made it possible to illustrate the specifics of applying forensic science by complying with the fair trial requirement. It is concluded that the adoption of a fair court decision becomes possible when: 1) the practice of law enforcement and legal provisions related to the dispute context are taken into account; 2) the circumstances of the case are established with the use of content and reference to evidence; 3) non-legal phenomena are taken into account, such as ethical, social, moral requirements accepted in society, etc.

About Issue 4 of 2021

This is the last issue of Access to Justice in Eastern Europe in 2021, a year of great expectations and challenges. A hybrid form of existence – online and offline – occupies our lives, and we face a completely new reality. At the same time, this year is a year of great achievements, which I am delighted to share. For me, it is also a great honour and delight to present this issue’s contributions and briefly sketch an outline to draw attention to the themes.

Polish-Ukrainian Legal Services: A Sociological and Legal Study

The rapid development of contemporary Polish-Ukrainian relations and the emigration of Ukrainians to Poland and EU countries require more and more lawyers to provide cross-border legal services. However, the emerging barriers between the countries effectively limit the possibilities for cooperation. It is particularly important to determine the extent of involvement of Polish lawyers in Ukraine and Ukrainians in Poland and to explain the reasons for their lack of involvement. It is also important to determine the consequences of the observed problem and the development strategy for the future. The present research is part of a larger study on the internationalisation of the Polish justice system and the provision of cross-border legal services. Methodologically, the study has been performed through structured interviews among representatives of Polish lawyers and questionnaires among all Polish lawyers. It was supplemented by non-reactive methods: an analysis of statistical data, an anthropomastic analysis, a content analysis of websites, and a functional analysis of legal acts. The results of the study show that Polish lawyers do not practice in Ukraine at all, and no more than 20 Ukrainian jurists work in Poland. The reasons are the border barriers and the lack of demand for mutual legal services, as well as cultural differences. The low level of involvement of the Polish and Ukrainian Bar Associations also contributes to the low level of provision of cross-border legal services. Nevertheless, Ukrainian immigrants to Poland are increasingly becoming Polish lawyers. Currently, the involvement of Ukrainian lawyers in the Polish legal services market is slowly increasing. This confused situation will likely change later this decade.