scholarly journals ON THE ROLE OF THE STATE IN ENSURING EFFECTIVE DEFENSE IN CRIMINAL PROCEEDINGS FOR THE PURPOSES OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
pp. 158-163
Author(s):  
M. H. Motoryhina
Keyword(s):  
Human Rights ◽  
The State ◽  
Special Role ◽  
Criminal Proceedings ◽  
Human Right ◽  
Defense Counsel ◽  
Legal Standards ◽  
Role Of The State ◽  
European Court ◽  
The Right

The article presents the issues on ensuring effective defense in criminal proceedings. Analysis of international legal documents, generalization of the practice of the European Court of Human Rights give grounds to divide international legal standards, that have been formed to facilitate the enforcement of the right to defense, into the following groups: 1) standards designed to facilitate the effectiveness of the defense by the accused him- or herself; 2) standards facilitating effective defense by the defense counsel; 3) standards, the adoption of which contributes to the effective defense maintained by the defense (when the defense is conducted jointly by the accused and the defense counsel) 4) standards that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense. The latter group of standards is important among others because the conduct of defense seems impossible without imposing certain requirements on the state and its bodies, and fixed guarantees of effective defense will turn into a declaration. The study of the case law of the European Court of Human Rights on maintaining effective defense in criminal proceedings allows us to state the lack of unity in its legal positions, since the issue of the effectiveness of ensuring the human right to defense in criminal proceedings depends on the specific circumstances of the case. The court notes that, on the one hand, the state can only intervene in the activities of defense counsel within the limits of public interests, given the independent nature of the legal profession. On the other hand, it cannot stand aside in the event of the discovery of violations of the standards for the conduct of defense in criminal proceedings, which assigns it a special role in maintaining effective defense for the suspect, the accused in criminal proceedings. Based on the analysis of the decisions of the European Court of Human Rights, standards are identified that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense: 1) the obligation of the state to conduct real (not illusionary or formal) defense for the suspect, the accused, since the appointment of a defense counsel does not ensure maintaining effective legal services; 2) the obligation to provide the defense team with the time and opportunity to conduct effective defense.

scholarly journals ASSESSMENT OF THE CONCLUSIONS OF «SCIENTIFIC JUDGES» IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2019 ◽  
pp. 125-137
Author(s):  
N. Akhtyrska
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Video Recording ◽  
The State ◽  
International Standards ◽  
Plain Language ◽  
Criminal Proceedings ◽  
Case File ◽  
European Court ◽  
The Right

The article, based on an analysis of judicial and investigative practices, highlighted the complex issues relating to the legal status of an expert and a specialist, ensuring their independence, evaluating and using the conclusions of an expert and a specialist by the court in strict compliance with and ensuring the principle of equality of the parties in the criminal process. The defense has the right to request the cross-examination of the expert, regardless of whether he was questioned at the pre-trial investigation stage. This does not exclude the possibility of using the previous testimony in court (protocol, audio, video recording), but only for the purpose of establishing contradictions. Refusal to satisfy the petition is a violation of the Convention requirements for a fair trial and equality of the parties. A tacit refusal of any guarantee of justice is not excluded, but at the same time, the existence of such a refusal must be proved «unequivocally». The court is obliged to accept as evidence from the defense the findings of the expert on the same issues on which the prosecution provided the findings of the state examination. The rules of admissibility of evidence may sometimes be contrary to the principles of equality of the procedural capacities of the parties and the adversarial process or otherwise affect the fairness of the proceedings. The rules for the admissibility of the conclusions of a specialist should not deprive the party of defense of the opportunity to effectively challenge them, in particular, by using them in the case or obtaining other opinions and conclusions. The state prosecution is obliged to disclose to the defense all available evidence (the conclusions of the examination for the benefit of the prosecution, and for the benefit of the defense). Hiding expert conclusions is a violation of the principle of equality of the parties. In the context of globalization, it is often necessary to use evidence obtained in the territory of a foreign state. All documents must be provided to the defense for review in plain language. If at the end of the investigation some documents are not translated and it is provided only after the start of the judicial review, the court is obliged to announce their contents and provide them for review. According to the Court, this does not constitute a violation of the right to defense. In case of poor-quality translation, the party has the right to request a re-transfer. If documents in a foreign language remain in the case file (without translation), this does not indicate a violation of convention standards if the arguments contained in these documents are not based on the indictment or conviction. Thus, in order to provide methodological assistance to law enforcement agencies and courts in the application of legislation related to the involvement of experts and the assessment of their findings, it is necessary to develop guidelines with regard to international standards, convention requirements, as well as to make changes and additions to existing legislation. Key words: criminal proceedings, «scientific judges», questioning of an expert, expert opinion, specialist opinion, European Court of Human Rights.

scholarly journals Proportionality of Interference with the Right to Peaceful Enjoyment of Property During the Seizure of Property in Criminal Proceedings in Ukraine

2020 ◽  
pp. 246-264
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Case Law ◽  
Criminal Proceedings ◽  
Human Right ◽  
European Court ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right ◽  
International Instruments

This article considers relevant science and law enforcement practice issues of state intervention’s legitimacy in the right to peaceful property enjoyment in criminal proceedings during property seizure. These issues are considered everywhere through international instruments’ prism, particularly the Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms, Article 1 of Protocol No. 1 to the Convention and the ECtHR case-law. Based on the ECtHR case law, the authors analyze the conditions under which the state may interfere in exercising a protected right, often called criteria for intervention. Based on the fact restrictions are permissible if they are prescribed by law, necessary in a democratic society and pursue a legitimate goal, the authors consider these conditions through the lens of national law enforcement practices of Ukrainian criminal proceedings. The authors emphasize the relevance of these criteria of the legality of individual rights restriction in criminal proceedings since when applying for property seizure, the Ukrainian legislator requires investigating judges to consider reasonableness and restriction proportionality of property rights, and apply the least onerous seizure method, not suspend or excessively restrict a person’s lawful business activities, or other consequences significantly affecting others’ interests. Due to the amendment of the Ukrainian criminal procedure legislation, the practice is slowly approaching the European Court of Human Rights practice’s European standards. However, proper systematic, logical and consistent court decisions limiting the human right to peaceful property possession remain critical. Based on the study, the authors offer a model of logical reasoning, following which the investigating judges can correctly formulate the motivational part of the decision to satisfy or deny the request for property seizure. Particular attention is paid to the reasonableness, suitability, necessity, and proportionality of the means of restricting the right to peaceful enjoyment of the property and describes each of them.

scholarly journals LEGAL STANDARDS OF THE EUROPEAN COURT OF HUMAN RIGHTS REGARDING REQUIREMENTS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINFL PROCEEDINGS

2020 ◽  
pp. 252-261
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
The State ◽  
International Standards ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Procedure Code ◽  
European Court ◽  
Protection Of Human Rights

The article deals with the requirements of the European Court of Human Rights regarding evidence and evidence, which are disclosed in the provision of paragraph 3 of Article 6 “The right to a fair trial” of the Convention for the Protection of Human Rights and Fundamental Freedoms, the latest practice of the Supreme Court regarding the criteria for admissibility of evidence and analysis of the current criminal procedural law. As you know, the attitude of the state towards the protection of human rights and freedoms is one of the indicators of its democracy. Ukraine has chosen the European Community as the main strategic vector of development. Such a vector provides for the unification of the regulatory framework in accordance with European legislation, as well as compliance by law enforcement agencies with international standards for the protection of the rights and freedoms of citizens. That is why, the corresponding rule is enshrined in the Criminal Procedure Code of Ukraine, providing that the rule of law in criminal proceedings is applied taking into account the practice of the European Court of Human Rights (part 2 of article 8). A detailed analysis of the provisions of the Criminal Procedure Code of Ukraine regarding the admissibility of evidence in criminal proceedings and the relationship of these norms with the legal positions of the European Court of Human Rights is carried out. They also examined the requirements of the European Court of Human Rights regarding the admissibility of evidence in decisions in which a violation by the state of the norms of the Convention was found, and in decisions in which such a violation was not found. So, summarizing and analyzing the practice of the ECHR, we saw that the Court emphasizes that a guilty verdict cannot be generally based only on inadmissible evidence, and if such a sentence is pronounced, then this is a violation of Article 1 6 of the Convention in respect of an unfair trial. Therefore, the investigator, prosecutor, investigating judge and judge should take into account the relevant practice of the ECHR and the norms of the Convention in their procedural activities in order to avoid these violations and to submit complaints to the European Court of Human Rights in the future.

scholarly journals Penyelenggaraan Pendidikan Kristen Sebagai Pemenuhan Hak Asasi Manusia

2020 ◽  
Vol 1 (1) ◽  
pp. 25-37
Author(s):  
Clartje Silvia E. Awulle
Keyword(s):  
Human Rights ◽  
Christian Education ◽  
Active Role ◽  
The State ◽  
Christian Higher Education ◽  
Human Right ◽  
Right To Education ◽  
National Education ◽  
Role Of The State ◽  
The Right

This paper examines the organization of Christian education by the Theological College in the context of the fulfillment of human rights in the field of education. The writing of this paper uses qualitative discription methods and literature studies. In the context of human rights, the right to education is categorized as a positive right (positive right) because to realize these rights, it really requires an active role of the state so that the formulation of the right to education uses the term right to (right to) meaning that every citizen has the right to proper education as a basic human right that must be protected and fulfilled by the state with the aim that humans are protected their dignity, welfare and continuity of life. Having the opportunity to attend Christian education is a basic right of every Indonesian citizen who is a Christian who must be protected, guaranteed and fulfilled by the state. In the end all Christian citizens have the same opportunity to enjoy Christian higher education as a national education sub-system without discrimination. Abstrak Makalah ini mengkaji mengenai penyelenggaraan pendidikan kristen oleh Sekolah Tinggi Theologi dalam konteks pemenuhan hak asasi manusia (HAM) di bidang pendidikan. Penulisan makalah ini menggunakan metode qualitative discription dan studi literatur. Dalam konteks HAM, hak atas pendidikan dikategorikan sebagai hak positif (positive right) karena untuk merealisasikan hak-hak tersebut, sangat membutuhkan peran aktif negara sehingga rumusan hak atas pendidikan menggunakan istilah right to (berhak atas) artinya setiap warga negara berhak atas pendidikan yang layak sebagai hak dasar manusia yang harus dilindungi dan dipenuhi oleh negara dengan tujuan agar manusia terlindungi martabat, kesejahteraannya dan kelanjutan kehidupannya. Memperoleh kesempatan untuk mengikuti pendidikan kristen adalah hak dasar setiap warga negara Indonesia yang beragama kristen yang wajib dilindungi, dijamin dan dipenuhi oleh negara. Pada akhirnya semua warga negara Kristen memiliki kesempatan yang sama untuk menikmati pendidikan tinggi kristen sebagai sub sistem pendidikan nasional tanpa diskriminasi.

scholarly journals The role of free legal aid in the mechanism of access to justice

2020 ◽  
pp. 83-86
Author(s):  
Yurii Sverba
Keyword(s):  
Human Rights ◽  
Human Life ◽  
The State ◽  
Access To Justice ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Non Governmental Organizations ◽  
European Court ◽  
Wide Range ◽  
The Right

The article is dedicated to the analysis of Ukraine’s international obligations in the sphere of access to justice and, in particular,to legal aid.The case law of the European Court of Human Rights in the civil and criminal aspects relating to the criteria for the effectivenessof legal aid is reviewed, as well as the cases where such assistance should be provided free of charge by the state. Article 6 § 1 doesnot imply that the State must provide free legal aid for every dispute relating to a «civil right». There is a clear distinction betweenArticle 6 § 3 (c) – which guarantees the right to free legal aid in criminal proceedings subject to certain conditions – and Article 6 § 1,which makes no reference to legal aid. However, the Convention is intended to safeguard rights which are practical and effective, inparticular the right of access to a court.The national legislation governing the procedure for providing free legal aid is analyzed. The categories of persons eligible tofree secondary legal aid and the categories of cases in which such aid is provided are considered. As of today, there are 17 categoriesof persons eligible to free secondary legal aid. The Law lacks a single criterion for determining a person’s social vulnerability andprovides for a wide range of life circumstances that create the prerequisites for a person to obtain free secondary legal aid under thefollowing criteria: property, age, social status and case category.The institutional and regulatory development of the national legal aid system is described. Key directions for the development ofthe national legal aid system are outlined: improving the quality of the provision of free secondary legal aid and protecting the systemfrom political influence.The role and place of non-governmental organizations providing free legal aid in creating real access to justice was alsoexamined. As an example, the The Ukrainian Helsinki Human Rights Union promotes the development of humane society based onrespect to human life, dignity and harmonious relations between a person, state and nature through creation of a platform forcooperation between the members of the Union and other members of the human rights movement.It is stated that the interaction of the state legal aid system and non-governmental human rights organizations creates real accessto justice, and specifically to the European Court of Human Rights.

scholarly journals CONCERNING DETENTION OF PERSONS IN CRIMINAL PROCEEDINGS: THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
Keyword(s):  
Human Rights ◽  
Preventive Measure ◽  
Criminal Proceedings ◽  
Human Right ◽  
Criminal Offense ◽  
Judicial Control ◽  
European Court ◽  
Domestic Legislation ◽  
Definition Of ◽  
The Right

ANNOTATION: the article outlines the problematic issues of the institution of detention, clarifies its relationship with the constitutional human right to liberty and security of a person, reviews the practice of the European Court of Human Rights regarding detention, focuses on the violation of the principle of legal certainty in the current procedural legislation. It is fundamentally important in the study to determine the subjective composition of the persons who are detaining, in particular, the attention is focused on their procedural status, a position is considered regarding the limited terms of reference of authorized officials, in terms of the right to detention solely for committing a crime for which a penalty of imprisonment is provided, unlike persons holding legal detention who are authorized to detain a person in the commission of a criminal offense regardless of the severity. The article deals with the manipulation of procedural rules, which correlates with the so-called hidden purpose and occurs by substituting administrative detention in the understanding of criminal procedural legislation and is the basis for violation of human rights. The concept of immediate judicial control is considered and supported, which provides for an obligation on an authorized official to deliver a detained person directly to a court to resolve the issue of the legality of detention, bypassing the pre-trial investigation authorities, where the detained person is still long (60 hours, since this period should not be exceeded to deliver the detainee to the investigating judge, where a decision is made on the selection of a preventive measure against him), pressure may be applied. It is indicated that there is no clear and comprehensive definition of the category «authorized official» in the current Criminal Procedure Code, which leads to the problem of a which leads to the problem of a narrowed or broader interpretation of this concept. Proposals for its normative consolidation are presented. The work is fundamentally different in that specific problems became the basis for the study of domestic legislation, which were subsequently supported by the decisions of the ECHR, but today they remain in the current legislation anyway. This is a comprehensive approach to the issue of legislative imperfections, and it focuses the legislator’s attention on them.

scholarly journals Speed Traps and the Right of Silence

2011 ◽  
Vol 9 (1) ◽  
pp. 165-176 ◽  
Author(s):  
Dennis Kurzon
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Regulatory Regime ◽  
Human Right ◽  
Written Texts ◽  
European Court ◽  
Statutory Requirement ◽  
The Right ◽  
Right Of Silence

In two English cases which reached the European Court of Human Rights in the mid-2000s, it was argued that the statutory requirement on the part of a motorist who has been caught speeding to give the police information concerning the identity of the driver of the car at the time of the offence is a violation of the right of silence by which a person should not be put into a position that s/he incriminates him/herself. The right of silence is one of the conventional interpretations of Article 6 of the European Convention on Human Rights. As well as a study on the right of silence with regard to written texts, this paper also investigates the two cases in terms of icons and indices: a text may be indexical of a basic human right, and then may become an icon of that right. The European Court of Human Rights considers the particular section of the relevant statute as an icon of the "regulatory regime".

scholarly journals Collective Action Right as a Basic Human Right

2017 ◽  
Vol 6 (s2) ◽  
pp. 9-17
Author(s):  
Pir Ali Kaya ◽  
Ceyhun Güler
Keyword(s):  
Human Rights ◽  
Collective Action ◽  
Resistance Mechanism ◽  
European Convention ◽  
Social Rights ◽  
Human Right ◽  
Political Field ◽  
European Court ◽  
Social Interests ◽  
The Right

Abstract According to The European Social Charter, the European Convention on Human Rights, the ILO Conventions, the decisions of the European Court of Human Rights, the decisions of the European Social Rights Committee and the ILO supervisory bodies, the right to collective action is a democratic right that aims to protect and correct the economic and social interests of workers in the workplace or in another place appropriate for the purpose of action. The above-mentioned institutions accept the right to collective action as a fundamental human right. According to the decisions of the European Court of Human Rights, the right to collective action is regarded as a democratic right, including strike. In particular, the right to collective action is being used as a resistance mechanism against new working relations, which are imposed on working conditions, right to work and the right to organize. However, the tendency of this right to political field, leads to some debate about the legality of the right to collective action. In this context, In the decision of the European Court of Human Rights, the ILO's supervisory bodies and the European Committee on Social Rights, it is emphasized that collective action rights should be a basic human right. In this study, the legal basis of the right to collective action will be discussed in accordance with the decisions and requirements of the European Court of Human Rights and the decisions of the ILO supervisory bodies.

Extradition Between European and African Countries: Overcoming the Challenges

2021 ◽  
Vol 11 (3) ◽  
pp. 288-319
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Court ◽  
European Countries ◽  
Criminal Proceedings ◽  
African Countries ◽  
European Court ◽  
Real Risk ◽  
Civil Proceedings ◽  
The Right

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

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