Defense Of Rights Research Articles

The Court of Justice in Staatsanwaltschaft Berlin v. M.N. (EncroChat): From cross-border, data-driven police investigations to evidence admissibility

The ruling of the Grand Chamber of the Court of Justice of the EU (CJEU) in Case C-670/22 Staatsanwaltschaft Berlin v. M.N. addresses the realities of data-driven police investigations in the light of the Directive 2014/41/EU on the European Investigation Order (EIO Directive). In particular, it examines the cross-border, digital investigation of the encrypted communication network EncroChat and the use and sharing of intercepted telecommunication data in criminal proceedings. In doing so, the CJEU offers clarifications as to the interpretation of the term ‘issuing authority’ under the EIO Directive and the proportionality requirements for issuing an EIO, taking into account its prior jurisprudence on the implications of access to traffic and location data for the private life of the persons concerned. More importantly, this CJEU ruling takes a stand on admissibility of intercepted data as evidence in criminal proceedings, considering the technical complexity of contemporary investigation measures and the secrecy of said police methods. Overall, although this judgment seems to hold no great surprises regarding the interpretation of the EIO Directive's provisions, it underscores the important role of the national legislator and national courts in striking the right balance between rearing the rewards of data-driven policing and safeguarding defence rights.

COMPLAINT AS A LEGAL REMEDY, THEORETICAL AND PRACTICAL ASPECTS

In criminal procedure, a "remedy" refers to a legal solution or course of action that is available to individuals who believe their rights have been violated during the criminal justice process. Remedies are designed to protect the rights of defendants and ensure that the criminal justice system operates fairly and in accordance with the law. Of course, the complaint as a regular legal remedy can be exercised within the specified legal deadlines and in the previous legal procedure. It's important to note that not all legal remedies follow these exact stages, and the specific procedures can vary based on the legal system and the type of case. Additionally, some legal issues may be resolved through administrative processes or through negotiation without ever entering the formal legal system. The judgments issued by the court, with which the party is dissatisfied and which have not yet taken the final form, are struck with legal means. The legal remedies are regulated by the provisions of the Code of Criminal Procedure and serve to exercise the legal remedy in case of dissatisfaction with the court's decision, therefore we can rightly conclude that the legal remedies are a kind of guarantee for the respect of the rights of the parties in the procedure. The purpose of this paper is to find, through research methods, how these legal remedies are regulated, the changes that have occurred in criminal legislation, their application in practice, where through comparative, statistical, normative and other methods, it will be more easy for us to reach correct conclusions. With the conviction that this work will bring innovation and be a summary for all those readers who intend to study this field in the future.

Peculiarities of modern judicial practice regarding negatoria defense of rights to land plots

Peculiarities of modern judicial practice regarding negatoria defense of rights to land plots

Naked statistical evidence and verdictive justice

AbstractWhat is it for the verdict of a criminal trial to be just? It is widely agreed that a Guilty verdict is just only if the defendant did the relevant deed, and only if his rights were not violated in the process of apprehending, charging, and convicting him. I argue that more is required: he must be found Guilty because he is guilty, and not solely for other reasons. The conviction must be based on the guilt. I argue that many rules of evidence and procedural rules designed to protect a defendant's rights also encourage fulfillment of this basing condition and that the condition helps to explain how an erroneous conviction involving no misconduct can nevertheless be a moral wrong. I argue that the condition also gives an explanation (among others) of why a naked statistic is insufficient for a just conviction.

피해자변호사제도에 대한 소고

The victim protection system appears to be focused only on victim protection in Korea. The victim lawyer system is one representative system that shows the tendency of this victim protection system. This study examined the victim lawyer system, mainly focusing on which victims could get legal assistance, and suggest improvement measures. In an adversarial system, the prosecutor and defendant are central to the procedure, while the victim is totally forgotten. However, the victim should be respected as a human being. As the victim is another stakeholder with the defendant and affected by the consequences of criminal procedure, the victim also shares a great interest in criminal procedure as a way of justice. Not only that, as one of the parties to the accident with the defendant, it would be fair if the victim could get the opportunity to participate in criminal procedure as the defendant has. At this point, the victims' protection and participation should be considered in the criminal system. However, there is a limitation that victims' protection and participation should not infringe on the defendant's rights. Only a few laws, including the Sexual Violence Punishment Act, provide the victim lawyer system. However, the victim lawyer's role should not be restricted to the victim's guardian but should be expanded to assist the victim in participating. Today, many victims want to participate in criminal procedure, and it's gaining remarkable consensus in society. As the law or system should reflect society or culture, the victim lawyer system necessarily expands to help victims' participation generally. Compared to Germany and France, this country introduced victim lawyers to assist victims' participation, and all the victims typically have the right to legal assistance. As ruling the victim lawyer system and nation-appointed lawyer system separate, it could help the victims participate in criminal procedure and protect vulnerable victims. Therefore, a victim lawyer system must be enacted in the Criminal Procedure Act to establish a general rule, and, in particular, some acts should deal with a nation-appointed lawyer system of victims to protect vulnerable victims.

Pelanggaran Prinsip Miranda Rule pada Proses Penyidikan Perkara Pidana di Indonesia (Tinjauan Kasus Pengamen Cipulir Jakarta Selatan 2013)

The criminal justice system in Indonesia is plagued by various types of crimes, including official indifference, abuse of authority by officers, and human rights violations related to people's civil rights. The rights of suspects, which are fundamental human rights and are ingrained in them, are often ignored in the Indonesian criminal justice system, to the detriment of suspects. The case that attracted attention was an incident that occurred in 2013 in Cipulir, South Jakarta, where several buskers were accused of committing the crime of murder. This case surfaced after reports that detained buskers were not given their basic rights during the investigation process, which could be linked to a violation of Miranda Rule principles. This research aims to find out how the Miranda Rule principles guarantee the rights of suspects in the criminal justice system in Indonesia. The method used in this research is a normative method, using the concept of a statutory approach. The purpose of the results of this research is to understand that the Miranda Principle or known as Miranda rights is what happens when someone gives a warning to someone who is in danger. Namely the right to obtain/contact legal advisors/advocates. If unable, then given the opportunity to provide legal advice/advocate. The right to obtain legal assistance has been included in Articles 54, 55 and 114 of the Criminal Procedure Code. If he is unable to do so, the suspect has the right to be provided with legal advice by the relevant official or through an investigator, as regulated in article 56 paragraph 1 of the Criminal Procedure Code. As for Miranda Warning (Right To Remain Silent), it is not regulated explicitly, but its application can be interpreted implicitly in articles 52, 117 and 166 of the Criminal Procedure Code.

Staggered hybrid cartel procedures, the principle of good administration and non-settling parties’ rights of defence: C-251/22 P Scania v Commission

Staggered hybrid cartel procedures, the principle of good administration and non-settling parties’ rights of defence: C-251/22 P <i>Scania v Commission</i>

Analysis Of The Influence Of Fake Discount Price Labels For A Product In The Marketplace On The Concept Of Business Competition And Responsibility

: This study examines the fulfillment of the defendant's human rights during the judicial process in a premeditated murder case, based on Decision No. 319/Pid.B/2023/PN Smr. The case revolves around the defendant, who was accused and found guilty of premeditated murder. The study delves into various aspects of the judicial process, including the arrest, detention, trial proceedings, and the final verdict. It evaluates whether the defendant's rights were upheld in accordance with national and international human rights standards. Key findings highlight areas of compliance and potential violations, providing insights into the judicial system's handling of serious criminal cases. The research aims to contribute to the ongoing discourse on human rights within the Indonesian judicial framework, emphasizing the importance of safeguarding the rights of all individuals involved in criminal proceedings. This comprehensive analysis seeks to shed light on the effectiveness of existing legal protections for defendants, drawing attention to both strengths and weaknesses in the current system. Ultimately, the study underscores the necessity of continuous improvement in ensuring justice and human rights for all parties in criminal cases.

Ratio Decidendi Penjatuhan Putusan Bebas (VRIJSPRAAK) Dalam Pemalsuan Akta Otentik Oleh Notaris: Studi Putusan Nomor: 1216/Pid.B/2019/PN Jkt.Tim

Corruption is an extraordinary crime that causes state losses. Corruption is not only committed by individuals, but also by corporations. Problems that often arise in criminal acts of corruption committed by corporations are related to procedural law, especially related to proving corporate wrongdoing. In this regard, the author is interested in analyzing the evidence related to corruption committed by corporations in Decision No. 81/Pid.Sus/Tipikor/2018/PN.Jkt.Pst. This study discusses the problem of proving corruption committed by corporations and the judge's legal considerations in imposing a sentence on the Defendant. This study uses a normative juridical approach withresearch specifications prescriptive. This study also uses secondary data obtained through literature and documentaries and described systematically. The results of the study indicate that the criminal acts of corruption committed by corporations in Decision Number: 81/Pid.Sus/Tipikor/2018/PN.Jkt. evidenced by the suitability of evidence in the form of witness statements, expert statements, letters and statements from the defendant which proves that the defendant has fulfilled all the elements in the First Indictment, so that it has met the minimum limit of evidence, namely at least two valid pieces of evidence, the judge's conviction is obtained. that the defendant PT NKE was guilty of a criminal act of corruption. The basis for the judge's legal considerations is by taking into account the elements of the Articles of the First Indictment that have been fulfilled, namely by fulfilling the minimum limit of evidence and obtaining the judge's conviction, for which the Panel of Judges imposes a criminal sentence in the form of a principal penalty in the form of a fine and additional punishment in the form of payment of replacement money and the revocation of the defendant's rights to participate in the auction of government goods/services procurement.

Quality control in the DMA procedure: the exclusion of the Hearing Officer

ABSTRACT The DMA aims to ensure fairness and contestability in digital markets by imposing ex-ante obligations to designated gatekeepers. Enforcement of the regime was entrusted to the Commission and the procedure mirrors the antitrust regime. However, the designers of the Regulation opted to exclude a role for the Hearing Officer from market investigation proceedings. The Hearing Officer is an independent Commission Official whose main role is to safeguard the undertakings' procedural rights and rights of defence, decide on procedural disputes, and organize oral hearings. Despite some criticisms to the limited extent of their powers, the Hearing Officer fulfils an important role in competition proceedings. Exclusion of their competence from the DMA procedure may result in an increase to the Commission's decisional powers, reduce public trust, lower the quality of the procedure, and deprive it of the valuable oral hearing option.

The Legal Professional Privilege in Competition Law Cases – A Key Element in Protecting the Proper Administration of Justice

The legal professional privilege is an important principle underpinning the EU judicial system as it ensures the proper administration of justice, procedural efficiency and protects fundamental rights such as a client’s defence rights and the right to privacy enshrined in Articles 47 and 7 of the Charter. In competition cases, the European Commission has relied on an old ruling from the Court of Justice of the European Union (the ECJ), and only acknowledged one of these aims – the protection of the client’s defence rights. While the ECJ has recently received the chance to align the EU standard to that of the ECHR by broadening the scope of protection, the Commission appears unwilling to abandon its previous stance. It is important that the Commission shoulders the responsibility to ensure a procedure that is fair, and which acknowledges the basic principles underpinning a society governed by the rule of law. The current approach breathes life into questions on the legitimacy of its actions and the appropriateness of letting it take on the roles of enforcer, prosecutor and judge in competition cases, where companies not only risk having to pay fines of up to ten percent of their annual turnover, but now also appear to have to face the threat of divestitures should the Commission find that they are infringing the EU competition rules.

Digitalisation of the Preliminary Investigation Phase, Fundamental and Human Rights and the Principle of Openness - Balancing Conflicting Interests in the Review of Large Data Sets

The EU courts have divided an investigation into two distinct stages with different aims: the preliminary investigation phase and the contradictory phase. This paper examines issues related to the digitalisation of the preliminary investigation phase, from screening and open source intelligence to data processing during unannounced inspections or dawn raids. The question is how rights of defence are secured without jeopardising an investigation where data sets have grown beyond anything previously known. Within the context of the principle of openness of government activities in Finland and Sweden, the author sets out to find how the main rule of openness is balanced with the objectives of the preliminary investigation phase. The article examines case-law and literature, complemented with public statements from competition authorities, to find that a fair balance between conflicting interests has been achieved thus far. Examples of open questions currently subject to debate do, nonetheless, range from using personal apps for detection to whether national identity as per Article 4(2) of the Treaty on European Union can tip the balance between confidentiality of correspondence and cartel enforcement categorically in favour of the former. The Court of Justice will likely have to address the issue of national identity in the ongoing Ronos case.

Transparency Unveiled: Access to Information in Digital Markets Act Proceedings at Member State Level – The German and Austrian Experience

Access to information is essential in order to guarantee fundamental procedural rights under EU law – in particular in order to make full use of the right of defence. At the same time, access to information ensures the greatest possible transparency for all parties and stakeholders. As another key point, access to information is also crucial in order to strengthen private enforcement, which is the second essential pillar of the effective enforcement of EU law in competition law. This article outlines the options provided for accessing information in the context of the new DMA in selected Member States, namely Austria and Germany. This article is part 2 on the issue of ‘Transparency Unveiled: Access to Information in Digital Markets Act Proceedings’.

Transparency Unveiled: Access to Information in Digital Markets Act Proceedings on EU Level

Access to information is essential in order to guarantee fundamental procedural rights under EU law – in particular in order to make full use of the right of defence. At the same time, access to information ensures the greatest possible transparency for all parties and stakeholders. Furthermore, access to information is also crucial in order to strengthen private enforcement, which is the second essential pillar of the effective enforcement of EU law in competition law. This article outlines the options provided for accessing information in the context of the new DMA on EU level. This article is part 1 on the issue of ‘Transparency Unveiled: Access to Information in Digital Markets Act Proceedings’.

The change in the legal classification of the criminal offense and the right to defense in the trial

Abstract Due process of law is not just a right. As a constitutional principle, it extends to some basic human rights and freedoms, with which legal procedures are carried out. It is a guarantee of vital importance in any democratic society, the responsibility for ensuring which falls on the justice system. The right to due legal process is characterized by duality. On the one hand, it is presented as a guarantee for every citizen against the unjust actions of state authorities and on the other hand it constitutes an obligation not to violate the rights of citizens without a regular legal procedure. In order to make the protection of basic human rights and freedoms as efficient as possible, the constitutional legislator has provided legal means of constitutional control. The control exercised by the Constitutional Court, when the individual claims the violation of this principle, also appears in the form of a fundamental right in itself and becomes possible through an individual constitutional appeal. Respect for due legal process according to the Constitution is sanctioned by article 42 of the Constitution of Albania where “freedom, property and rights recognized by the Constitution and by law cannot be violated without due process of law.” This provision obliges all public authorities to respect freedom and other human rights. As a guarantee for a due legal process, every person has the right for his case to be heard in a due, public, legal process and within a reasonable time by an independent and impartial tribunal, established by law, which shall decide both disputes concerning his rights and obligations of a civil nature, as well as for the validity of any criminal charges against him.” Article 15 of the Constitution of the Republic of Albania provides that basic human rights and freedoms are indivisible, inviolable and underlie the entire legal order. Based on the constitution, during the criminal process, everyone has the right to be informed immediately and in detail about the accusation against him, about his rights, as well as to be given the opportunity to notify his family or relatives. Everyone has the right to defend himself or with the help of a legal defense lawyer of his choice, to communicate freely and privately with him and to be provided with free defense when he/she does not have sufficient means. The right of defense must be real and its exercise must not be hindered, but the courts must take all legal measures in function of the fair process in order to give the individual the opportunity to defend himself in compliance with the principle of equality of arms, creating the opportunity for the accused to familiarize himself with the materials, evidence and results of the investigation in advance, to prepare and to exercise an effective defense with arguments in his favor in order to oppose the charge brought. Each party must be given a reasonable opportunity to present its case, under conditions, which do not place it in a less favorable position vis-à-vis the opponent. Main objective of this manuscript is the right of defense of the individual during the change of the legal qualification of the criminal offense, analyzing the criteria for its realization in the ordinary trial and further specifically in the trial.

범죄피해자 심리지원의 실태 및 개선방안

Recently, in April 2024, there was a shocking report about a teenager being stabbed by a neighbor in his 50s due to inter-floor noise conflict in an apartment complex, resulting in serious injuries and traumatic distress. The psychological shock experienced by victims of violent crimes like this is beyond imagination, necessitating a response. While the Crime Victim Protection Act is being enforced, providing financial and psychological support, it's time for proactive measures from the perspective of victims' human rights. Historically, the judicial system in Korea has prioritized the rights of suspects and defendants, often neglecting the needs of the victims. The purpose of this paper is to examine the current state of support for crime victims, particularly in terms of psychological support, and explore the problems of the crime victim psychological support system and seek improvement measures. Based on an analysis of the current state of the crime victim support system, previous research, and factual diagnosis, discussions were conducted on the problems and improvement measures of psychological support for crime victims. As a result, the following conclusions were reached: Firstly, there is a need for legal policy improvements, including shifting perceptions, focusing on psychological support, and proposing legislative amendments. Secondly, institutional improvement measures, such as enhancing professionalism, strengthening the role of centers, providing support from the victim's perspective, and preparing for remote counseling, are necessary. Thirdly, the continued development of the police's psychological system is essential.

Theory and Practice of Procedural Defense With Illegal Evidence Exclusion Rule as Core

Procedural defense is a form of defense proposed by defense counsel based on criminal procedural law, aiming to safeguard litigation rights and supervise the legality of procedures. It is an important component of criminal defense. The illegal evidence exclusion rule is the core content of procedural defense and an important means to achieve judicial justice in criminal cases. This paper, taking the illegal evidence exclusion rule as its core, explores procedural defense from both theoretical and practical perspectives. Firstly, it defines the concept of procedural defense and reviews the development of the illegal evidence exclusion rule, elucidating its current status. Secondly, it categorizes four types of procedural defense: request-based, demand-based, defensive, and remedial, elaborating on their characteristics, application conditions, operational methods, and practical effects. Through a case analysis of the Zhang Guoxi Bribery Case, it demonstrates the specific application of procedural defense in practice. Thirdly, it discusses the value significance of procedural defense, pointing out that procedural defense not only embodies the value of procedural justice but also contributes to achieving the goal of substantive justice. It is of significant theoretical and practical value for safeguarding the litigation rights of defendants, supervising the procedural legality of prosecuting authorities, and promoting the efficiency and fairness of criminal proceedings. Finally, it analyzes the challenges and dilemmas faced by procedural defense in Chinas criminal procedural practice, mainly manifested in the lack of clear and perfect legal basis, the unfair and undemocratic practice environment, and the insufficiently significant and stable practical effects of procedural defense. Some improvement strategies and suggestions are proposed in order to provide reference for the healthy development and wide application of procedural defense.

CHALLENGES CONFRONTING VIGILANTE GROUPS IN EFFECTIVE CRIME CONTROL IN BENUE STATE, NIGERIA

Vigilante groups’ contributions to crime control are invaluable. However, the activities of vigilante groups have faced operational and institutional challenges. These challenges have negatively affected the operations of vigilante groups in crime control in Benue State. The study investigated the challenges of vigilante groups in crime control in Benue State with a view to suggesting ways of curbing those challenges for enhanced effectiveness of vigilante groups in Benue State. Three Local Government Areas – Katsina-Ala, Makurdi, and Oturkpo, were selected across the three Senatorial districts in Benue State for the study. The population of the study comprised vigilante operatives, religious leaders, traditional rulers and members of the public. The study adopted a survey design. Questionnaire and in-depth interview (IDI) were used to generate data from 367 respondents using the Taro Yamane sample size determination formula. Simple random sampling and purposive sampling were deployed for the selection of respondents and interviewees. Twelve interview sessions were conducted across the sampled Local Government Areas. The quantitative data were presented in frequency and percentages while qualitative data were presented in narrative form. The study identified lack of logistics, shortage of crime fighting equipment, absence of enabling legal instrument for the operation of vigilante groups, human rights violation, corruption, insufficient training among vigilantes and vested interests, as the challenges of vigilante group in the study area. The study recommends the enactment of laws recognizing vigilante groups; provision of needed crime fighting equipment by stakeholders; adequate funding, provision of logistic support as well as proper training and reorientation of vigilante operatives to respect the fundamental human rights of suspects.

‘We want kids, not nukes’: a critical discourse analysis of newspaper representations of children in anti-nuclear movements in Taiwan, 1987–2019

ABSTRACT Environmental Sociology has addressed gender, racial, and class dynamics within environmental movements, but the involvement of children, particularly in East Asia, remains under-researched. This article examines the representations of children in the news articles of Taiwanese anti-nuclear movements. With critical discourse analysis, the study examines 154 newspaper articles from two major newspapers published between 1987 and 2019. This article characterizes the representations of children in the news in three types: as slogans, as silent participants, and as defenders of rights. The paper shows that children have been reported in the news articles since the inception of the anti-nuclear movements, but their opinions were only recently reported. Dismissing children’s voices in the news articles could be related to undermining children’s capacity and agency to form views. The shifting representations of children in the news articles symbolize evolving power relations between children and adults, which are fluid, dynamic, and diverse rather than static. This article calls for a reflection on how children are represented in mass media and how the representations reveal the underlying presumption of children by adults.

Analysis of Paths to Effectively Safeguarding Property Owners Rights in Property Service Disputes from a Defensive Perspective

This paper begins by analyzing the current status of property service disputes, examining the complex legal relationships, widespread and voluminous disputes, and intense group struggles, revealing the true state of property service disputes. The article then focuses on introducing the main types of damage to property owners rights in property service disputes to demonstrate the necessity of safeguarding property owners rights from a defensive perspective. Simultaneously, it presents the concept, types, qualifications for exercising the right of defense, and the statute of limitations, comprehensively analyzing the real challenges faced by property owners in property service disputes, including issues such as the lack of legal provisions, the absence of clear standards for defining property service quality, obstacles to property owners exercising the right of defense due to internal and external factors, and jurisdictional attributes causing inconsistent judgments in similar cases. Finally, the paper proposes measures to improve the system for property owners right of defense and the protection of legitimate rights and interests in property service disputes, including the rational allocation of burden of proof, enhancing legal provisions for standardized discretion, refining the evaluation mechanism for the property service industry, and leveraging the primary role of the property owners committee and the supervisory role of property owners.