scholarly journals The privacy observance of home, correspondence and conversations in the case law of the European Court of Human Rights with a glance to Iran’s criminal procedure law

2016 ◽  
Vol 6 (21) ◽  
pp. 177-199
Author(s):  
Alireza Taghipour
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
European Court ◽  
Criminal Procedure Law

Extradition of a Person: The National Law of Ukraine and the Case Law of the European Court of Human Rights

2021 ◽  
Vol 39 (9) ◽  
Author(s):  
Tatiana H. Fomina ◽  
Volodymyr I. Galagan ◽  
Zhаnnа V. Udovenko ◽  
Serhii Ye. Ablamskyi ◽  
Yana Yu. Koniushenko
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Offense ◽  
National Legislation ◽  
Procedure Code ◽  
European Court ◽  
Relevant Case ◽  
The Right

This article aims at establishing and emulating the relevant issues surrounding the detention of person presumed of committing a criminal offense outside the territory of Ukraine in respect with the provisions adumbrated by the European Court of Human Rights. The study was conducted through the prism of national legislation and the relevant case law of the European Court of Human Rights. The issues of realization of the detainee's rights, including the right to protection, were considered separately. According to the results of the study, certain ways to improve the provisions of the Criminal Procedure Code of Ukraine have been formulated.

scholarly journals On the New Rules Protecting Attorney-Client Privilege in Criminal Procedure in Russia

2018 ◽  
pp. 15-25
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Criminal Procedure ◽  
Point Of View ◽  
Federal Law ◽  
Criminal Proceedings ◽  
European Court ◽  
Procedural Code ◽  
Criminal Procedure Law ◽  
Further Development

In the article, an attempt is made to consider the recently introduced additional criminal procedural guarantees of the protection of attorney-client privilege from the point of view of the system of the Russian criminal procedural legislation and in the light of the practice of the European Court of Human Rights. The author comes to the conclusion that additional guarantees of protection of attorney-client privilege introduced by the Federal law № 73-FZ contribute to the further development of the adversarial principles of the Russian criminal proceedings. At the same time, some innovations seem to be controversial. The supplement introduced to part 2 of the Article 75 of the Russian Criminal Procedural Code (CPC) concerning inadmissibility of using advocatory items and documents as evidence come into conflct with the Article 17 of the CPC and do not constitute the whole legal system with other provisions of the criminal procedure law. The rules of part 3 of the Article 450.1 of the CPC, according to the author, are incompatible with part 5 of the Article 165 of the CPC regulating urgent procedures of investigative actions requiring judicial permission, as well as part 2 of the Article 450.1 of the CPC. The author makes a range of proposals to improve the legislation and its application.

scholarly journals To Remain or Not to Remain Silent: The Evolution of The Privilege against Self-incrimination Ten Years After Marttinen v. Finland

2019 ◽  
Vol 6 (2) ◽  
pp. 136-151
Author(s):  
Tuomas Hupli
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Coercive Power ◽  
Inappropriate Use ◽  
European Court ◽  
The Law ◽  
The Right ◽  
Debt Enforcement

According to the judgment of the European Court of Human Rights (ECtHR) in Marttinen v. Finland, a debtor has the right to remain silent in a debt enforcement enquiry given that the following conditions are met: first, that the inquiry is held concurrently with a criminal procedure; and second, that the same questions of evidence are investigated in both of the concurrent proceedings. Under these circumstances, the debtor enjoys the privilege against self-incrimination in the enforcement enquiry. The scope of this article is to examine whether the debtor has not only the right to remain silent, but also the right to give false statements. The assessment of this problem is built on the moral grounds of the privilege itself, but also on the law reforms and changes in case law after the judgment in the Marttinen case. As a conclusion of this article, the problem of false statements should not be evaluated by equating silence with false statements, but by considering two basic questions. First, would the right to remain silent suffice to protect the privilege against self-incrimination; and second, whether the motives for providing false statements express the aim to achieve something else than protection against inappropriate use of coercive power.

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 The restrictions of the right to inspect the case file in Bosnia and Herzegovina in light of the jurisprudence of the European Court of Human Rights

2021 ◽  
pp. 463-479
Author(s):  
Faruk Avdić
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Criminal Procedure ◽  
Case Law ◽  
Fair Trial ◽  
Case File ◽  
European Court ◽  
Starting Point ◽  
The Right ◽  
Procedure Codes

This paper aims to assess the compliance of the provisions of the criminal procedural legislation of Bosnia and Herzegovina dealing with the restrictions of the right to inspect the case file with the standards developed in the jurisprudence of the European Court of Human Rights. The working hypothesis laid out in this paper is that the right of the prosecutor to unilaterally restrict the defense right to access the case file during the investigation and to unilaterally decide which evidence he will use as the basis for the indictment does not satisfy the requirements stemming from the right to a fair trial. The starting point of this paper is the analysis of the case law of the European Court of Human Rights. Afterward, the paper turns to the consideration of the provisions of the criminal procedural legislation of Bosnia and Herzegovina dealing with the restrictions of the right to inspect the case file. In that purpose, this paper employs normative and formal dogmatic legal methods in analyzing the particulars of its subject. The conclusion of the paper is that the law of Bosnia and Herzegovina when it comes to the restrictions of the right to inspect the case file is not in line with the standards of the European Court of Human Rights. For this reason, there is a need for the amending of the Criminal Procedure Codes in force in Bosnia and Herzegovina with the aim of making these Codes compliant with the jurisprudence of the European Court of Human Rights in that respect.

The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants

2018 ◽  
Author(s):  
PHPHMC van Kempen
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Procedure Law ◽  
Eu Directives ◽  
The Right

Mainly as a result of the nature of criminal procedure in the Netherlands, which until recently could be characterized as a modern moderate inquisitorial system, the fitness-to- plead principle has been rather underdeveloped here. This chapter analyses how the European Convention on Human Rights, EU Directives, and the increase of adversarial elements in an originally inquisitorial criminal justice system are now catalysing the fitness-to-plead principle. Fourteen recommendations will be provided for what is considered a necessary reinforcement of the legal position of defendants who possess insufficient abilities to adequately participate during criminal proceedings—both preliminary investigation and trial—or who are even unfit to stand trial. The recommendations are based on a detailed analyses of criminal procedure law of the Netherlands, case law of the European Court of Human Rights, and several EU Directives that are relevant for the fitness to plead principle..

THE ANALYSIS OF THE RECENT STANDARDS OF APPLYING COMPULSORY MEASURES ACCORDING TO THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS (The Analysis of the Criminal Procedure Code of Georgia and its Compliance with the Case Law of the European Court of Human Rights)

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 141-162
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Criminal Procedure ◽  
Case Law ◽  
Recent Case ◽  
European Convention ◽  
Procedure Code ◽  
European Court ◽  
Article 5

The present article – “The Analysis of the Recent Standards of Applying Compulsory Measures according to the Case Law of the European Court of Human Rights (The Analysis of the Criminal Procedure Code of Georgia and its Compliance with the Case Law of the European Court of Human Rights)” – discusses the recent case-law of the European Court of Human Rights on Article 5 of the European Convention together with the compliance of the Criminal Procedure Code of Georgia in terms of applying compulsory measures.

DISPUTE AS TO THE INTERPRETATION OF ARTICLE 540(3) OF THE CODE OF CRIMINAL PROCEDURE ALONG WITH AN APPROVING GLOSS TO THE RESOLUTION OF THE SUPREME COURT OF 26 JUNE 2014, CASE REF. NO. I KZP 14/14

2021 ◽  
Vol 2 (XXI) ◽  
pp. 301-313
Author(s):  
Patrycja Trzeja
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Criminal Procedure ◽  
Case Law ◽  
Legal Issue ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

This gloss aims to assess the position presented by the Supreme Court in its resolution of 26 June 2014 as to whether the need to resume proceedings, as referred to in Article 540 § 3 of the Code of Criminal Procedure, can only relate to proceedings in the case to which the decision of the European Court of Human Rights on the violation of the Convention for the Protection of Human Rights and Fundamental Freedoms relates, or also to other criminal proceedings in which there has been a violation of the provisions of the Convention similar to that found in the decision of this Court issued against Poland. The analysis includes the presentation of doctrinal and case law views, as well as the author’s own reflections. What is important, the considerations end with a polemic with the arguments appearing in the interpretation dispute, and an assessment of the very process of interpretation by the Supreme Court when considering the legal issue in question.

scholarly journals Compliance with the principle of adversarial in disclosing the materials of covert investigative (detective) actions to the defense

2019 ◽  
pp. 81-89
Author(s):  
O.G. Yanovska
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
National Courts ◽  
Procedure Code ◽  
European Court ◽  
The Right

The defense has the right to have information about all elements of the procedural order of receiving the prosecution evidence, in particular, about the materials of the covert investigative (detective) actions (further - CIDA), which the latter intends to use against it in court. However, this right of defense is violated quite often. In addition, these issues remain unresolved at both the legislative and jurisprudence levels. The purpose of the article is to address some of the problematic issues that arise during the disclosing the materials of CIDA to the defense at the pre-trial stage of criminal proceedings. The research made it possible to draw the following conclusions from an analysis of the case-law of the national courts and of the European Court of Human Rights: 1) if the prosecution timely fulfilled the requirements of Article 290 of the Criminal Procedure Code of Ukraine (further - CPC of Ukraine), took all necessary and dependent measures aimed at declassification of materials that became the basis for the CIDA, but such materials were not declassified For reasons that did not depend on the prosecutor's procedural activity, there were no violations of the requirements of the said CPC of Ukraine by the prosecution. In such a case, the court shall evaluate the evidence obtained for their propriety and admissibility, as well as in combination with other evidence in the case, in accordance with the requirements of Article 94 of the CPC of Ukraine; 2) if the prosecution on his own initiative and/or at the request of the party of defense did not take the necessary measures, which depend on it and aimed at declassification of the materials which became the basis for the CIDA, in that case there is a violation of the rules of Article 290 of the CPC of Ukraine the consequences provided for in paragraph 12 of this Article; 3) if in the course of criminal proceedings in court, the prosecutor's repeated request for declassification of procedural documents which became the basis for the CIDA was granted and they were at the disposal of the prosecution party, then these procedural documents as received by the prosecution party after the transfer cases before the court should be opened in accordance with part eleven of Article 290 of the CPC of Ukraine.

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