scholarly journals Brak obowiązku stawiennictwa oskarżyciela publicznego na rozprawie w kontekście podstawowych zasad procesu karnego

2021 ◽  
Vol 28 (2) ◽  
pp. 125-136
Author(s):  
Aleksandra Limańska

The principle of legalism places upon the public prosecutor the obligation o pressing charges to a court of law and then to support this claim in the course of the lawsuit. It seems obvious that in order to execute this duty in an appropriate manner, the public prosecutor should attend the trial and actively participate in it. However, in regulation Art. 46 §2 k.p.k., which was introduced by way of an amendment issued on 11 March 2016, the legislator stipulated a regulation which permits the public prosecutor not to appear during the trial, if the preliminary legal proceedings concluded in the form of investigation. Obviously, the task of this regulation is to accelerate the proceedings in cases of lesser calibre, which are cases in which an investigation is conducted. However, it is necessary to consider the aforementioned regulation in the context of the basic principles of a criminal lawsuit and the analysis of the consequences of such regulations. Therefore, in the first instance one made reference to the most important regulations contained in the basis acts of international law, i.e. the European Convention of Human Rights and the International Covenant on Civil and Political Rights which emphasise above all the significance of independence and impartiality, as well as the principle of a quick and efficient operation of the procedure. It was also necessary to refer the substantive regulation to the principle of the contradictoriness of the criminal lawsuit, which stipulates inter alia the separation of lawsuit-related roles and the passivity of the court in reference to the initiative of the parties who argue their cases.

Author(s):  
Harrington Joanna

This chapter examines the judicial approach to the interpretation of the Canadian Charter of Rights and Freedoms. Attention is paid to the general interpretive techniques developed by the courts to determine both the content of Charter rights and their limitations, while also considering the judicial use of internal and external interpretive aids, including both foreign and international law, such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights. It is also argued that the national context plays an important role, with the interpretive role of the court ultimately to be guided by a sense of balance in protecting rights and recognizing their limitations.


2021 ◽  
Vol 70 (1) ◽  
pp. 103-132
Author(s):  
Shane Darcy

AbstractInternational law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.


2021 ◽  
Vol 194 ◽  
pp. 503-530

503Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Role of European Court of Human Rights — Judgments of European Court of Human Rights and Russian Constitutional Court — Whether interdependent — Resolution in case of conflicting judgments — Supremacy of Russian law — Russian Constitution — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionRelationship of international law and municipal law — Treaties — International instruments — Universal Declaration of Human Rights, 1948 — European Convention on Human Rights, 1950 — International Covenant on Civil and Political Rights, 1966 — Rights and duties — Rights of freedom of expression — Restrictions on rights — Whether necessary in democratic society — Public health and morals — Moral values — Relevance — Russian Constitution — Article 15(4) of Constitution — International law an integral part of Russian legal system — Implementation of international provisions — Constitutional recognition of traditional family values in Russian society — Respect for dignity of others and Russian morality — Prohibition of propaganda arousing hatred — Article 29(2) of Russian Constitution — Traditional family values in Russian society — Role of family — Russia’s legislative approach — Whether conforming with Russian Constitution — Whether contradicting International Covenant on Civil and Political Rights, 1966 or European Convention on Human Rights, 1950 — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionRelationship of international law and municipal law — Treaties — United Nations Convention on the Rights of the Child, 1989 — Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, 2007 — Rights of children — Traditional family values in Russian society — Russian Constitution — Protection of children from sexual exploitation and abuse — Dissemination of information related to sexual self-determination — Whether information damaging to health and development of children — Whether Russia obliged to create conditions for propaganda, support and recognition of same sex union under Constitution or international law — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian Constitution504International tribunals — European Court of Human Rights — Jurisdiction — Whether Court having competence to review conformity of Russian legislation with European Convention on Human Rights, 1950 — Constitutional requirement to exhaust domestic remedies before appealing to interstate bodies for human rights protection — Article 46 of Russian Constitution — Judgments of European Court of Human Rights and Russian Constitutional Court — Whether interdependent — Resolution in case of conflicting judgments — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionHuman rights — Prohibition on discrimination — Equality of all persons — Human dignity — Right to private life — Freedom of speech — Sexual self-determination — Sexual discrimination — Right to disseminate information related to sexual self-determination — Whether exercise of right violating rights of others — Rights of minors — Balancing of rights — Moral values — Relevance — Whether public activity unconditionally lawful under Russian Constitution — Approach under international instruments — Duties and restrictions — Universal Declaration of Human Rights, 1948 — European Convention on Human Rights, 1950 — International Covenant on Civil and Political Rights, 1966 — Articles 13, 17, 19, 29 and 55 of Russian Constitution — Traditional family values in Russian society — Role of family — Russia’s legislative approach — Whether conforming to Russian Constitution — Whether contradicting International Covenant on Civil and Political Rights, 1966 or European Convention on Human Rights, 1950 — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian ConstitutionHuman rights — Rights of children — Traditional family values in Russian society — Russian Constitution — Protection of children from sexual exploitation and abuse — United Nations Convention on the Rights of the Child, 1989 — Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, 2007 — Dissemination of information related to sexual self-determination — Whether information damaging to health and development of children — Whether Russia obliged to create conditions for propaganda, support and recognition of same sex union under Constitution or international law — Section 1 of Article 6.21 of Russian Administrative Offences Code — Whether compatible with Russian Constitution — The law of the Russian Federation


1997 ◽  
Vol 31 (1-3) ◽  
pp. 223-244
Author(s):  
Bert Swart

According to Article 13 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him. The essence of both provisions could be rephrased by saying that criminal sanctions may only be imposed on a person by an independent and impartial tribunal and only if that person has been able to defend himself against a charge during a hearing that satisfies all requirements of a fair trial.Realities, of course, are rather different. In almost all national systems of justice there is an increasing tendency to develop procedures that allow for imposing sanctions without the necessity of a criminal trial. Their main purpose is usually to relieve the system of a burden of cases with which it cannot really cope. Basically, there are two strategies to reduce the workload of courts and public prosecutors. The first is to invite the suspect to waive his right to trial in exchange for certain favours. This usually occurs in the form of an agreement between the public prosecutor and the suspect, while quite often the cooperation of the court that would have tried the case is also required. The second solution is to grant sanctioning powers to administrative bodies and to allow individual persons an appeal against their decisions to an independent and impartial tribunal.


2005 ◽  
Vol 28 (3) ◽  
pp. 699-729
Author(s):  
Jacques Zylberberg

This essay undertakes a review of national and international law to demonstrate that law is mainly an ideological and variable instrument of the State and of the United Nations, which is a by-product of the states. In this perspective, the author opposes the pragmatical ideology of resistance against the sovereign state to the juridical legitimation and the behaviour of the States who reluctantly have conceded some civil and political rights. Those rights are endangered by the growing bureaucratization of the state, the inflation of the juridical norms and rules, in addition to the permanent repressive characters of the State. The criticism of the contradiction and the variation of the rule of law when it relates to "human rights" is also extended to international law as well as to the international organizations.


2021 ◽  
Author(s):  
Bartosz Pacholski

The subject matter of this commentary, which instigates the Views of the Human Rights Committee of 27 January 2021, is the protection of one of the fundamental human rights – the right to life. The Committee, as an authority appointed to oversee compliance with the International Covenant on Civil and Political Rights, had to decide on the issue of Italy’s responsibility for failing to provide assistance to a boat in distress, even if the area in which the vessel was located was not within the territory of this state and other acts of international law attribute the responsibility for executing the rescue operation to a third country. According to the Committee’s views, which applied extraterritorial approach to the protection of the right to life, whenever states have the opportunity to take action for the protection of human rights they should do everything possible in a given situation to help people in need.


Author(s):  
Michael Hamilton

This chapter traces the broad contours of the right to freedom of speech as it has evolved in international law, principally under Article 19(2) of the 1996 International Covenant on Civil and Political Rights (ICCPR or ‘the Covenant’). Any speech protective principles deriving from the international jurisprudence are qualified by the following factors: the contextual contingency of the value of speech, the inherently limited reach of international scrutiny, the changing nature of the marketplace, and emerging forms of censorship. The chapter then outlines the key human rights treaty protections for freedom of speech, before further exploring the scope of the right. It examines the permissible grounds for speech restriction, highlighting two contested categories of speech—namely, incitement to hatred and glorification of terrorism—where international law not only concedes the low value of such speech, but specifically mandates its prohibition in domestic law. States that introduce broadly framed speech restrictions may claim to be acting in satisfaction of this prohibitory requirement. In consequence, the intensity of any ensuing international scrutiny will inevitably be substantially reduced.


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