scholarly journals The European Court of Human Rights as Part of Criminal Procedural Legislation of Ukraine

2020 ◽  
Vol 90 (3) ◽  
pp. 235-244
Author(s):  
О. С. Розумовський ◽  
О. О. Кочура
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Supreme Court ◽  
Practical Implementation ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
European Court ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Right

The author has studied the issue of the origin and formation of the European Court of Human Rights after the Second World War, steps in the establishment and development of this Court, as well as the actions of the Member States to consolidate the development of the European Court of Human Rights at specialized conferences with the support of the Committee of Ministers. The list of regulatory and legislative acts adopted by the Verkhovna Rada of Ukraine for the establishment of the rule of law in regard to the understanding of human rights in the activities of Ukrainian courts has been researched. Since the Convention for the Protection of Human Rights and Fundamental Freedoms has become part of national legislation after its ratification by the Verkhovna Rada of Ukraine, more detailed study should be conducted regarding the urgent task of fully understanding the content of this international treaty and the main mechanisms for implementing its norms. The author has analyzed the implementation of the case law of the European Court of Human Rights on the example of its specific decisions into criminal procedural legislation of Ukraine by applying the decisions of the European Court of Human Rights by the Grand Chamber of the Supreme Court in its activities and problematic aspects of their practical implementation. Particular attention has been paid to the study of problematic aspects of the use of these decisions in practice by highlighting the rulings of the Grand Chamber of the Supreme Court issued in 2019. The author has analyzed the decisions of the European Court of Human Rights in regard to the conducted secret (search) actions by law enforcement agencies with further disclosure ob obtained evidence to the defense party; it has been also pointed out that the right to disclose evidence contained in criminal proceedings is not absolute to the defense and may be limited only in cases when there are the interests of national security, information protection or witness protection concerning the methods and forms of law enforcement agencies’ activity. The author has made propositions to resolve certain situations related to the implementation of the decisions of the European Court of Human Rights in Ukraine.

ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences

2021 ◽  
Vol 28 (3) ◽  
pp. 257-267
Author(s):  
Bohdan V. Shchur ◽  
Iryna V. Basysta
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Method Comparison ◽  
Scientific Basis ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
International Obligations ◽  
Grand Chamber ◽  
The Individual

In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations

scholarly journals The practice of the Supreme Court and the decisions of the European Court concluding violations of artic - le 3 of the Convention

2020 ◽  
pp. 413-417
Author(s):  
Alla Radzivill
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Supreme Court ◽  
European Convention ◽  
European Court ◽  
The Supreme Court ◽  
Effective System ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right

Law enforcement practice of the Supreme Court in cases involving torture in the light of the standards of the European Court ofHuman Rights. The article is devoted to the study of individual legal positions of the Supreme Court, their coordination with the practiceof the European Court of Human Rights. The author emphasizes that the decisions of the European Court should serve as precedents,which will make it impossible to produce diametrically opposite decisions on similar categories of cases. Analysis of the problem ofcriminal responsibility for torture allows us to form conclusions and suggestions that are important for the development of the theoryof criminal law and the improvement of law enforcement practice.The article deals with the issues related to the peculiarities of the interpretation and application of Article 3 of the European Conventionon Human Rights of the European Court of Human Rights. In particular, the scope of Article 3 has been analyzed; it has been de -fined, what is necessary to understand under concepts of torture, inhuman or degrading treatment or punishment. Substantive and proceduralaspects of violations of the prohibition of torture have been revealed, as well as positive and negative obligations of a state to providethe effective protection of the right. The standards of the appropriate assessment of ill-treatment and the main aspects of judicial qualificationof a particular form of mistreatment as torture have been analyzed. The procedural guarantees, which must be provided for each personat the stage of pre-trial investigation, non-observance of which leads to a breach of Article 3 of the Convention, have been determined.Creation of the effective system of protection of human rights and its efficiency is analysed in relation to the crime of “torture”in the context of European Convention on human rights, which must be in future stored and taken for basis for a further improvementand systematization of the single European standards in area of human rights.

scholarly journals Registration of Second FIR (First Information Report) in Sughran Bibi Case: A Landmark Judgement of the Supreme Court of Pakistan

2020 ◽  
Vol 3 (1) ◽  
pp. 113-122
Author(s):  
Rais Nouman Ahmad ◽  
Faiz Bakhsh ◽  
M. Danyal Khan ◽  
Sidra Kanwal
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Supreme Court ◽  
Significant Role ◽  
Criminal Trial ◽  
Judicial System ◽  
Law Enforcement Agencies ◽  
The Supreme Court ◽  
Police Report ◽  
The Status

The registration of First Information Report (FIR) has remained a challenging area for the judicial system of Pakistan; the multiplicity of the FIRs means separate investigation and separate police report. Precedents were available far and against the second FIR which had been creating perplexity and nuisance for law enforcement agencies. First Information Report is contaminated by the inclusion of exaggerated facts by the aggrieved parties. Moreover, there are several allegations on the working of police in Pakistan for drafting the FIR arbitrarily. Although FIR is a mere document to report the incident, however, it has gained a significant role in deciding the fate of a criminal trial in Pakistan. Therefore, it is imperative to examine the status of FIR in criminal-trail framework of Pakistan. To do this, Sughran Bibi Case is very significant in interpreting the status of multiplicity of FIRs in the criminal trail framework. Seven judges of esteemed Supreme Court decided the fate of second FIR in this human rights case. The study investigates the doctrinal aspects of the judgement by presenting a theoretical examination of the status of FIR, its evidentiary value, and effectiveness in the criminal trial framework.  

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 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 THE USE OF POSSIBILITIES OF LINGUISTIC EXPERTISE TO ESTABLISH SIGNS OF PROVOCATION

2021 ◽  
pp. 656-673
Author(s):  
N. Akhtyrska
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Interpersonal Communication ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
International Convention ◽  
Judicial Practice ◽  
European Court ◽  
Law Enforcement Officials

The article discusses topical issues of the use of evidence obtained as a result of covert (investigative) search actions (hereinafter - CISA), in particular, control over the commission of a crime. An analysis of the investigative and judicial practice testifies to the ambiguous interpretation of the tactics of the CISA, which leads to the ruling of acquittals by the courts, since signs of provocation are established in the actions of law enforcement officials. The judicial practice has not developed a unified approach to assessing the actual circumstances of control over the commission of a crime. Different interpretations are allowed by the courts of first instance and appeal. International convention standards provide for the possibility of such measures that are effective in the fight against corruption. The European Court of Human Rights (hereinafter - the ECHR) also recognizes the legality of covert operations in the fight against organized crime and corruption. At the same time, the ECHR points to a number of signs that allow determining the legality of such actions. In particular, the ECHR identifies two groups of criteria: substantive and procedural. Some relate to the nature of the actions of both parties themselves, while others allow the court to assess and verify the procedural grounds and the procedure for conducting the operation. Despite the fact that the Decisions of the European Court of Human Rights are considered a source of law and the courts of Ukraine are obliged to use them in legal proceedings, in practice a number of unresolved questions arise when assessing evidence. That is, whether they are reliable and proper. Alternatively, is there a provocation, that is, a criminal offense, excluding person’s accusation? The general criteria for provocation is the repeated offer by the agent to commit any illegal actions; verbal, organizational, psychological acts aimed at provoking, an attempt to evoke compassion, pity; use of friendly ties. The very fact of expressing “abstract readiness” (to hand over an unlawful benefit) on the part of law enforcement agencies is not a provocation. A new direction in expert practice, linguistic expertise, which solves questions of speech and law, is used in Ukraine in this category of criminal proceedings extremely rarely. Since the operational purchase, test purchase, special investigative experiment are carried out in conditions of direct establishment of interpersonal communication, the content of communication should be considered from the point of view of tactical characteristics (psychological, organizational, speech), for the presence of a call to commit illegal actions by insisting, persuasion: – the use of nihilistic culture, the prevailing illegal practice (“Everybody does it”, “You have to live”), – willingness to pay (“I collected money”), – involvement in the subject’s problems, which he/she can solve with the help of illegal benefits. Using the example of a specific criminal proceeding, the author reveals the mistakes of the investigating authorities and justifies the advisability of raising the level of awareness regarding the use of the possibilities of linguistic expertise to establish signs of provocation, indicating passive corruption or the exclusion of charges.

scholarly journals Theoretical aspects of the European Court of human rights interpretation of the right to life in the context of law enforcement

2019 ◽  
Vol 7 (3) ◽  
pp. 36-40
Author(s):  
Valeriy Konnov
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Social Consequences ◽  
Right To Life ◽  
Law Enforcement Agencies ◽  
European Court ◽  
Legal Nature ◽  
Law Enforcement Officials ◽  
The Right

The article consider analyses some legal positions of the European Court of Human Rights which connected with the actions of law enforcement officials resulted with the death of suspects during detention. The author made the conclusion that a global understanding by the ECHR of the right to life doesn’t pay attention to the objective legal nature of criminal threats. The ECHR provides the idea that law enforcement agencies play the role of defender of society, but they don’t work as a power tool designed to protect specific actions that could entail social consequences.

scholarly journals DECISION OF THE EUROPEAN COURT ON HUMAN RIGHTS AS MANDATORY ELEMENT OF JUDICIAL CONTROLIN CRIMINAL PROCEEDING

2019 ◽  
pp. 284-294
Author(s):  
O. Plakhotnik
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
European Court ◽  
The Supreme Court ◽  
Draw Conclusion ◽  
Definition Of ◽  
Grand Chamber ◽  
And Function

The purpose of this article is opening of necessity of application of ECHR practice in the decisions of the investigating judge to increase the value of judicial control over the observance of rights, freedoms and interests of individuals in criminal proceedings. The article includes analysis of the current legislation on the definition of judicial review at the pre-trial investigation stage. Judicial control is revealed through the powers of the investigating judge in criminal proceedings. There were examined opinions of scientists in relation to determinations of judicial control and function of investigation judge on the stage of pre-trial investigation. It is possible to draw conclusion from the analysis of the last scientific researches, that expansion of scopes of judicial control in a criminal production, it is a next step to rethink the value of judicial control in criminal proceedings. Decisions taken by the investigating judge should be based on the principles of legality and rule of law. The conclusion about the need to study the application of ECHR investigating judges to strengthen the role of the court at the stage of pre-trial investigation and reduction of procedural errors that can become new ECHR judgments against Ukraine. Judicial statistics and decision of consequence judges content are analysed with the use of practice of ECHR for 2018 and beginning 2019 years. Out of analysis of judicial statistics a conclusion is made that tendency on application of practice of ECHR in 2019 is slowly, but grows. The necessity of wide use of practice of ECHR courts is examined during realization of judicial control in a criminal proceedings. The estimation is given to expansion of the list of proceedings that must be carried out with the permission of the investigating judge. It is analyzed the shortcomings of the application of the ECHR practice courts and disadvantages such as the decision by the investigating judge ruling, not under criminal procedural rules. The practice of the Grand Chamber of the Supreme Court is analysed. It is given the risks of the work of the investigating judge, who can relate to undue interference in the work of law enforcement. It is noted the decision of the ECHR “Volokhi against Ukraine” dated November 2, 2006. It is concluded that the judicial review of the investigative actions should also include the application of the ECHR practice, and application of ECHR in the activities of the investigating judge at the pre-trial investigation stage is a prerequisite for respect for the rule rights in criminal proceedings and the strategic task for Ukraine. Key words: European Court of Human Rights, court control, criminal proceedings.

scholarly journals KAJIAN HUKUM KEWENANGAN PENYELIDIKAN ANTARA KEPOLISIAN, KPK DALAM PEMBERANTASAN PIDANA KORUPSI DARI KELEMBAGAAN NEGARA

2020 ◽  
Vol 17 (1) ◽  
Author(s):  
Sumiaty Adelina Hutabarat
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Criminal Code ◽  
Law Enforcement Agencies ◽  
The Supreme Court ◽  
The Law ◽  
The Republic ◽  
The Right ◽  
National Police ◽  
The Relationship

<p>There are two law enforcement agencies combating corruption, namely the Corruption Eradication Commission (KPK) and the Police, having the same authority, but in implementing authority there are differences, for example in the application of laws that govern the two institutions.The problem that becomes the study of this research is how the problem of the existence of the KPK as an institution to eradicate corruption has the authority regulated in RI Law No. 30 of 2002 concerning the Corruption Eradication Commission, whose authority lies with the Police regulated in RI Law No. 2 of 2002 concerning the National Police of the Republic of Indonesia which refers to the Criminal Code The results of the study showed that the resolution of the dispute between the Police and the Corruption Eradication Commission in the investigation of corruption was carried out by coordinating the Corruption Eradication Commission and the Police in Corruption Criminal Investigations. Law number 30 of 2002 concerning the Corruption Eradication Commission regulates the relationship between the performance of the KPK and the Police regarding investigations, investigations and prosecutions.Settlement of authority disputes between the Police and the KPK should be the authority of the Supreme Court, due to judicial review under the Supreme Court Law. The right to test the law is the application of a balanced and balanced government. The Corruption Eradication Commission was formed by the Law 30/2002 whereas the Indonesian Police was formed by the 1945 Constitution, article 30 paragraph 4.</p><p><strong>Keywords : <em>Authority, investigation, KPK</em></strong></p><p><strong> </strong></p>

scholarly journals Provocation of a crime in the legal positions of the European Court of Human Rights and in the national judicial system

2020 ◽  
Vol 11 (11) ◽  
pp. 334-339
Author(s):  
Zubrytska M. V.
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Criminal Activity ◽  
Law Enforcement Officers ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The legal positions of the European Court of Human Rights contain clear criteria for distinguishing provocation of a crime that violates the requirements of paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, from lawful conduct in the use of secret methods in criminal proceedings: 1) verification of the validity of the provocation (material criterion of provocation); 2) the procedure for reviewing the complaint on provocation (procedural criterion of provocation); 3) methodology of assessment of the European Court of Human Rights. When considering a defendant's complaint about the presence of signs of provocation in the actions of law enforcement agencies, national courts must establish the following procedural criteria: 1) whether there were grounds for monitoring the commission of the crime; 2) what is the measure of interference of law enforcement officers in the commission of a crime; 3) the nature of the actions to which the accused was subjected. In the legal positions of the European Court of Human Rights, examples of provocation to commit a crime are, in particular, the following: law enforcement on its own initiative contact with the applicant in the absence of objective suspicion of his involvement in criminal activity or propensity to commit a criminal offense; 2) renewal of the proposal by law enforcement officers, despite the previous refusal, to insist, exerting pressure. Based on the analysis of the legal positions of the European Court of Human Rights, it was concluded that a new presumption has actually appeared in the criminal law of Ukraine - provocation of a crime. The basis for it is Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, as well as the decision of the European Court of Human Rights in cases of provocation. The presumption of provocation of a crime is that an accused who has stated that he committed a crime under the influence of provocative actions of law enforcement officers cannot be prosecuted unless the investigation and the court establish otherwise. In national jurisprudence, courts most often considered the following situations as provocation of a crime: detection of a crime in the absence of objective information about the preparation for the commission of a crime or the beginning of its commission; inciting (pushing) a person to commit a crime through active and persistent actions; violation of the procedural order of conducting procedural actions. Keywords: provocation of a crime, provocation of bribery, incitement, initiative, exposing a crime.

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