Procedural Safeguards Research Articles

The Expropriation of Sanctioned Assets: Does Ukrainian Jurisprudence Respond to Human Rights Concerns?

Abstract This policy and practice note raises human rights concerns about the Law of Ukraine ‘On Sanctions’ imposed during time of war. Despite its legitimate aim to stop the war aggression, the expropriation of sanctioned assets into state income, newly introduced in 2022, significantly risks human rights violations. The current jurisprudence in Ukraine on the expropriation of assets of sanctioned individuals and entities into state income raises the following four key human rights concerns: (1) duplication of the offence and punishment from national criminal law; (2) retroactive effect of the introduced sanction; (3) inadequate procedural safeguards for sanctioned persons; and (4) unlimited scope of persons and their assets that can be expropriated. This note argues that these significant drawbacks cannot be legitimized even in time of war.

Złożenie zabezpieczenia przez dłużnika oraz określenie przez sąd kwoty na zaspokojenie bieżących potrzeb. Uwagi na tle art. 821 § 1 k.p.c. oraz art. 821(1) k.p.c.

This article focuses on two issues: a security stipulated in Art. 821 § 1 of the Civil Procedure Code as regards the application of regulations on insolvency safeguard procedures and the nature of security in the court enforcement proceedings, as referred to in Art. 821 § 1 in fine of the Civil Procedure Code, and Art. 821(1) of the Civil Procedure Code, which provides for the court’s authority to define an amount necessary to meet the debtor’s ongoing needs during the suspension of enforcement proceedings. In the author’s opinion, the regulation is useless and questions the effectiveness of other protective regulations of the Civil Procedure Code. Keywords: enforcement proceedings, security, complaint about actions taken by the bailiff, appeal in court enforcement proceedings

REFUGEE STATUS AND TRANSFER TO THIRD COUNTRY: A CRITICAL APPRAISAL

The seminar paper, Refugee Status and Transfer to Third Country: A Critical Appraisal, explores the intricacies and difficulties linked to the transfer of refugees to third countries. The text delves into these transfers' legal and ethical aspects, emphasizing the possibility of diffusing responsibility and undermining refugee protection. The paper utilizes a qualitative research methodology, incorporating a thorough literature review, case studies, and document analysis to explore the legal frameworks, policy implications, and humanitarian consequences of refugee transfers. The study's findings highlight the intricate nature of refugee transfers, which aim to offer long-lasting solutions and ease the burden on frontline states but frequently encounter substantial obstacles. This study highlights the significance of strong legal and institutional frameworks, fair distribution of responsibilities, and a focus on human rights to safeguard the well-being and protection of refugees during transfer processes. The paper also emphasizes the possibility of responsibility diffusion and the politicization of refugee transfers, which can weaken the effectiveness of the international refugee protection regime. Ultimately, the paper argues for a fairer and more balanced approach to safeguarding refugees' well-being and human rights. It emphasizes the importance of upholding the dignity of refugees and fostering global collaboration and burden-sharing. There is a need to enhance legal and procedural safeguards, tackle the underlying factors that lead to forced displacement, and promote comprehensive integration programs in third countries. The study's theoretical framework and empirical analysis provide a more profound comprehension of the intricacies of refugee transfers and offer valuable insights for policymakers and practitioners involved in refugee protection.

Improving asset confiscation: in the quest for effective and just solutions

The quest for effectiveness in criminal law results in creating non-punitive sanctions based on evidentiary facilities and lowered standard of proof. European courts, while focusing on procedural safeguards, perceive the structure of criminal sanctions as an element of national penal policy and leave it to the national authorities. The latter may, however, be ready to sacrifice certain important aspects of criminal law, like judicial discretion or individual guarantees, for the sake of unspecified ‘effectiveness of legal regulations’. In case of asset confiscation such approach can result in forfeiture of significant quantities of property without the certainty that it actually comes from a crime. Therefore, it seems necessary to identify the framework of criminal law principles applicable to non-punitive sanctions, in order to receive – while interpreting legal provisions – an effect that is not only a (presumably) effective, but also a just solution. This paper contributes to this issue with particular emphasis on extended form(s) of asset confiscation.

Patent Invalidation Procedures in the WTO Member BRICS Countries: India Provides a Model Legislation

Eighty percent of the world’s population lives in emerging markets, and a significant portion of this population is not receiving healthcare or at least is not receiving the healthcare they need. This is an issue experienced in all of the BRICS countries as well. The BRICS countries particularly need drugs for the treatment and management of infectious and communicable diseases. The affordability of healthcare is one of the key priorities of the BRICS countries. These goals may not necessarily be in line with the patent laws of the BRICS countries which are also members of the World Trade Organization (WTO). This article examines the patent invalidation procedures of the four WTO member BRICS countries, namely India, China, Brazil, and South Africa with the aim of evaluating the strengths and weaknesses of their procedural safeguards and learning from their experiences. The presence of a functional patent opposition model is of utmost importance for the BRICS countries, since this allows for the invalidation or opposition of patents that have been granted in their respective jurisdictions. However, except for India, none of the other WTO member BRICS countries have developed a well-thought-out patent opposition model. This study argues that the BRICS group provides a viable forum for India to promote its distinguished patent invalidation model. In turn, the WTO member BRICS countries can learn from India’s pro-health patent opposition model and reform their national patent laws to align with their public health priorities. This is especially important in the context of the pandemic like COVID-19, for example.

Remaining silent during investigative interviews: a perspective of prisoners convicted for a serious crime

ABSTRACT The right to remain silent is a fundamental procedural safeguard for people accused of a criminal offense. Practitioners draw conclusions from the fact that a defendant makes use of the right to silence. Conversely, we know little about defendants’ perspective of the right to silence and their understanding of the possible risks involved in invoking this right. It was the aim of the current study to provide insights on defendants’ decision to remain silent and the reactions and consequences they experienced. We conducted four focus group interviews with 29 prisoners who served a prison sentence for a serious crime of at least three years in the Netherlands or Belgium. Overall, prisoners were in favor of remaining silent and recommended remaining silent over the full duration of their investigation and trial, or at least the pre-trial stage. The presence of co-suspects, attitudes towards police, and perception of evidence strength played an important role in the decision to remain silent. Legal assistance informed prisoners’ strategy decisions, especially for first offenders. When interpreting the findings it is important to consider that interviewees were mostly convicted of serious multiple perpetrator crimes. This might have contributed to the strong emphasis on silence as preferred strategy.

Assessing the Legal Framework and Socioeconomic Impacts of Compensation for Wrongfully Convicted and Imprisoned Persons in Bangladesh: Challenges and Policy Recommendations

This study delves into the social consequences of convictions in Bangladesh, underscoring the pressing call for thorough legislative and policy changes. It critically assesses the structure and its shortcomings in offering just compensation to those wrongfully convicted, as exemplified by prominent cases like Jahalam, Abdul Jalil, Javed Ali and Sheikh Zahid. Through a research methodology involving literature reviews, case studies, interviews and surveys, the study sheds light on the psychological and financial burdens exonerees and their loved ones face. Comparative analyses of compensation mechanisms in countries like the United States, United Kingdom, Canada, and Australia reveal best practices and underscore the gaps in Bangladesh's current system. Recommendations include enacting specific compensation legislation, establishing a dedicated compensation fund, enhancing procedural safeguards, and offering comprehensive post-exoneration support. By implementing these measures, Bangladesh can better align with international human rights standards and uphold the constitutional rights of its citizens. This study aims to contribute to the broader discourse on justice reform, advocating for a structured and humane approach to addressing wrongful convictions. The findings underscore the importance of legal and institutional reforms in ensuring that justice prevails for those wrongfully convicted, ultimately reinforcing the integrity and fairness of Bangladesh's judicial system.

Comparing Procedural Safeguards during the Primary Investigation Stage and Civil Compensation: Beijing Rules vs. Jordanian Legislation in Juvenile Justice

This study critically evaluates the privacy protections and civil compensation afforded to delinquent juveniles under Jordanian Juvenile Law No. 32 of 2014, comparing them with the United Nations Beijing Rules of 1985. The analysis is structured into three key sections: identifying the authority responsible for juvenile investigations, assessing the level of confidentiality during these procedures, and examining the support mechanisms available to delinquent juveniles throughout the investigative phase. The findings reveal that both the domestic legal framework and international treaties fail to adequately prioritize the best interests and protection of delinquent juveniles. While each source of law possesses its own strengths and weaknesses, they collectively underscore the need for substantial reforms to enhance the rights, well-being, and civil compensation for delinquent juveniles more effectively.

Дистанционное проведение отдельных следственных действий в России и некоторых странах ближнего зарубежья: сравнительный анализ

The rapid advancement of digital technologies has revolutionized various aspects of contemporary society, including the field of law enforcement and criminal justice. One significant development in this regard is the utilization of video conferencing systems (VCS) for conducting investigative actions remotely. This article seeks to explore the implementation of remote investigative actions in Russia and select neighboring countries, with a focus on the legal framework, practical implications, and potential challenges. Comparative analysis encompasses an examination of the legal provisions governing remote investigative actions in Russia, the Republic of Belarus, the Republic of Kazakhstan, and the Republic of Tajikistan. Particular attention is paid to Article 189.1 of the criminal procedural legislation of the Russian Federation, which regulates the conduct of investigative actions via video conferencing. The analysis evaluates the efficacy, feasibility, and adherence to procedural safeguards in remote interrogations, face-to-face confrontations, and presentations for identification. In conclusion, the analysis underscores both the advantages and shortcomings of remote investigative actions facilitated by video conferencing systems (VCS). While such technological advancements offer opportunities for efficiency and cost-effectiveness, concerns regarding procedural fairness, privacy protection, and technological limitations persist. Accordingly, there is a pressing need for legislative refinement and procedural guidelines to ensure the effective implementation of remote investigative actions while safeguarding the rights of all parties involved. Collaboration between legal experts, law enforcement agencies, and technology developers is essential to address these challenges and optimize the utilization of digital technologies in the criminal justice system.

Data justice in the “twin objective” of market and risk: How discrimination is formulated in EU's AI policy

AbstractBased on a focus on artificial intelligence (AI) policy in the European Union (EU), we explore the dominant approach taken to data justice in policy. More specifically, we ask how the particular issue of discrimination is translated into policy goals and measures as a way to address prominent concerns about AI. Looking at the stage of policy formulation, we provide an analysis of the way (non) discrimination is currently pursued within the EU's AI policy debate through the study of relevant policy documents and public consultations between 2017 and 2023. We argue that whilst the issue of discrimination has moved from the margins to the mainstream in policy debate, it has done so based on an understanding of discrimination as an inevitable risk of AI; such risk is specific to particular situations and the technological features of AI; the nature of this risk can be assessed and managed through a set of procedural safeguards; and such safeguards can be supported by the creation of a trustworthy AI market. Whilst this translation of justice is very important for contending with some of the critique surrounding the advancement of AI, it may also serve to contain and neutralize such critique in the interest of marketization.

Evaluation of the use of Court Video Conference Hearings in Angeles City, Philippines

The COVID-19 pandemic prompted courts worldwide to swiftly transition to online operations, including virtual hearings, to maintain continuity amid health concerns. This shift signifies a lasting impact on the justice system. Despite this, research on the effectiveness and challenges of court videoconferencing, particularly in the Philippines, remains limited. This study aimed to address this gap by employing a descriptive-evaluative approach and surveying 213 respondents, including court officers, prosecutors, lawyers, jail officers, and police officers, in Angeles City. The study assessed challenges such as procedural integrity and technical glitches, as well as perspectives on judicial efficiency and cost effectiveness. Findings revealed significant hurdles in videoconference hearings, yet respondents recognized their benefits in expediting case resolutions and enhancing security. Interestingly, there was no significant difference in evaluations across respondent groups. Interviews corroborated survey results, highlighting concerns and benefits of videoconference hearings. Addressing challenges while leveraging benefits is crucial, requiring investment in technological literacy, internet connectivity, and procedural integrity safeguards. Policymakers should also explore solutions to infrastructure limitations, fostering widespread adoption of videoconference hearings for a more effective and fair legal system.

An audio-visual resource to improve transparency in SAIL Databank’s data access process.

BackgroundSince 2007, SAIL Databank has been entrusted with anonymised health and administrative data for the population of Wales. This includes ~85% of primary and 100% secondary care health records, and a range of administrative data that includes education, employment, environment, housing, justice and social care data. This data is accessible to approved researchers who can demonstrate positive societal impact from its use. IntroductionIt has always been vital for SAIL Databank to build and maintain extremely high levels of trust amongst its stakeholders; data users, data providers and the public who are represented in the anonymised datasets. This trust has been earned through a robust range of technical, physical and procedural safeguards known as SAIL’s ‘privacy-by-design’. Public-facing information has been vital to maintain trust through transparency and manifests in SAIL’s data use register, publications register, and clear information offered via its website. This work represents the next evolution in SAIL’s commitment to transparency in creating an audio-visual representation of its data access process. Method Ensuring current available information on SAIL’s public facing website was clear and accessible through consultation with SAIL’s public involvement panel – The Consumer Panel. Streamlining and presenting this information based on Consumer Panel feedback. Maintaining SAIL’s commitment to Welsh language standards by translating this information. Consultation with colleagues and Swansea University procurement to identify a suitable creative agency to take forward the idea of a data access process animated video. Communicating requirements and providing briefing documents to the selected creative agency, Buffoon Media. Reviewing potential voiceovers for narration of animated video to ensure an accessible tone, pace and dual language delivery. Receipt of completed animated video placed alongside corresponding data access process text on SAIL’s website. ResultsProduction of an audio-visual resource that improves transparency around SAIL’s data access process and compliments its existing process guidance. This resource is freely and publicly accessible via its website, including components such as: Accessible design colours, fonts and presentation in keeping with SAIL’s existing brand. Use of images, graphics and animation that bring the process to life. A professional and accessible voice-over audio explaining each element within the process. A bi-lingual voice-over that recognises Wales’ large number of Welsh language speakers. Resource can be found at: https://saildatabank.com/data/apply-to-work-with-the-data/ ConclusionBuilding on SAIL’s commitment to trust and transparency since inception its anticipated that this new video resource will improve transparency for all of SAIL’s stakeholders in understanding and engaging with SAIL’s data access process.

The Commission strikes back: regulatory authority and legitimacy in European technology standardization. A commentary on Cantero Gamito and Kamara

This commentary intends to provide a scholarly reaction on the two papers in this Special Issue, that discuss the emerging European legislation in the field of technology standards. The contribution of Marta Cantero Gamito addresses the (draft) Artificial Intelligence Act (AIA), whereas the contribution of Irene Kamara covers the (draft) Cyber Resilience Act (CRA). Both pieces of legislation use the ‘New Approach’ regulatory technique, whereby the European Commission requests three European standards bodies to develop technical standards in support of its policies in the fields of AI and cyber resilience respectively. Drawing on the findings of these contributions, this paper starts from the premise that through its recent policy initiatives, the European Commission attempts to gain regulatory authority in the technological domains by tightening its regulatory muscle around ETSI. In doing so, the Commission invokes its concerns about ETSI’s legitimacy and procedural safeguards. Yet, as this commentary concludes, such practices are potentially detrimental to the EU’s role as a global technology actor but also to the legitimacy of European standardization.

ECHR rules regarding procedural guarantees which act as balancing factors in the event of the prosecution’s witness not appearing in court

The article examines the legal position of the European Court of Human Rights regarding the possibility of using as evidence the testimony of a witness who did not appear at the court hearing and was not questioned at the pre-trial stage.
 It is established that important procedural safeguards are a component of balancing factors, together with which compensate for the difficulties faced by the defense as a result of accepting unverified statements as evidence, which contribute to a fair trial. Reliable procedural guarantees should ensure a proper assessment of the credibility of the evidence in the case under consideration.
 It has been proven that the reliability of procedural guarantees is established by the European Court of Human Rights referring to cases where the prosecution witness did not appear at the court session, based on paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
 In accordance with the judicial practice of the Court, reliable procedural guarantees where highlighted, with the help of which this supranational body established or did not establish a violation of paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms in the event that the prosecution witness did not appeared at the court session. Examples are given and, for each of them, the views of the Court regarding the reliability of procedural guarantees are emphasized. These examples cover various aspects of the European Court of Human Rights’ consideration of the reliability of procedural guarantees, in particular: when a witness for the prosecution did not appear at the court session, but was able to be questioned at the pre-trial stage; the position in which the defending party found itself during the conduct of face-to-face bets; evaluation of the actions of the investigator during the conduct of face-to-face bets; the reasonableness of national courts’ efforts to locate an absent witness; the need for the consent of the accused and his lawyer to announce the testimony of an absent prosecution witness; assessment by national courts of the weight of the testimony of an absent witness given during the pre-trial investigation and others.

Phenotypic mismatch between suspects and fillers but not phenotypic bias increases eyewitness identifications of Black suspects.

Despite converging evidence that people more closely associate the construct of criminality with Black people who exhibit a more African facial phenotype than Black people who express a more European phenotype, eyewitness researchers have largely ignored phenotypic bias as a potential contributor to the racial disparities in the criminal legal system. If this form of phenotypic bias extends to eyewitness identification tasks, eyewitnesses may be more likely to identify Black suspects with an African rather than European phenotype, regardless of their guilt status. Further, in cases where the witness's description of the perpetrator does not contain phenotypic information, phenotypic mismatch between the suspect and the other lineup members may bias identification decisions toward or against the suspect. If witnesses can use elements of the lineup construction to guide their identification decisions rather than relying on their recognition memory, then the lineup should be deemed unfair due to suspect bias. The current study also investigated lineup presentation method as a procedural safeguard, predicting that that when lineups were presented simultaneously, there would be a significant two-way interaction of phenotypic bias and lineup composition, with a larger simple main effect of phenotypic bias when lineups were suspect-biased (i.e., the fillers were a phenotypic mismatch to the suspect) than when all lineup members shared the same phenotype. We expected that this interaction would be significantly smaller or non-significant for sequential lineups. Participants watched a mock crime video that contained a Black culprit with either a more African phenotype or a less African phenotype before attempting identifications from a photo array that contained a suspect whose phenotype always matched the culprit viewed in the video, but varied in culprit-presence, phenotypic match of the suspect and fillers, and presentation method. Participants did not identify Black suspects with Afrocentric features more often than Black suspects with Eurocentric features. However, witnesses made more identifications of suspects when the fillers did not match the suspect's phenotype compared to when all lineup members possessed similar phenotypic features. In sum, phenotypic bias did not influence our participant-witnesses' identification decisions, nor interact with lineup composition and lineup presentation type to affect identifications of suspects, suggesting that phenotypic bias may be less influential in match-to-memory tasks than other types of legal decision-making (e.g., determining guilt and sentencing). However, the suggestiveness created by failing to match fillers' phenotypes to the suspect's phenotype can be avoided with proper attention to fair lineup construction.

Responding to the danger of wrongful conviction for historical sexual abuse: A case for resurrecting abuse of process for delay?

This article examines the potential risk of wrongful conviction for defendants facing historical sexual abuse charges where there is substantial delay. This risk arises from problems with truth-finding based on witness testimony, challenges posed by missing evidence and the increasing erosion of procedural safeguards. This article considers two recent proposals for reform, including first, whether the Court of Appeal should be more prepared to revisit the factual basis of decisions in historical sexual offence appeals; or second, whether there is a need to strengthen procedural safeguards at trial through the doctrine of abuse of process for delay. This article concludes that, whilst there would be advantages to broadening the grounds for appeal, the criminal courts should be more prepared to stay substantially delayed claims for abuse of process where there is missing evidence. The current approach has the potential to be unfair and fails to protect those defendants who are most disadvantaged by delayed claims.

Search, evidentiary procedure for discovering and removing documents and material means of evidence

The paper deals with the importance of the legislative framework governing domicile search and the procedure by which it can be ordered. Domicile search is decisive in solving the criminal case by obtaining evidence necessary to establish the facts or circumstances in which the crime was committed and to identify the perpetrator. A house search is a criminal procedure in which judicial authorities carry out certain searches of residential premises in order to obtain physical evidence of certain crimes. The searches require "legality" and participation in appropriate procedural safeguards against arbitrariness and abuse in order to respect the human rights enshrined in the Romanian Constitution and also in the European Convention on Human Rights, especially with respect for private and family life. I am trying to analyse to what extent the new legal provisions fall within the guarantees imposed by human rights law. To do this, I look at the search warrant procedure and the legal conditions that judicial authorities must follow during the home search procedure.
 Domiciliary search is regulated in Articles 157-164 of the NCPP, and in Art. 27 of the Romanian Constitution and art. Article 8 of the ECHR expressly provides that the conduct of this procedure presupposes respect for the inviolability of the person's domicile and private life.

A digitalizáció egyes kihívásai a büntetőeljárásban

Aim: Recent technological developments and their potential consequences pose novel challenges to criminal justice. Digital transformation is a necessary consideration for a modern and effective justice system; however, the rise of information technologies must also be reconciled with procedural safeguards that ensure the right to a fair trial. The aim of this study is to shed light on certain aspects of how digital technologies might affect our interpretation of some of the basic principles of criminal procedure, with an emphasis on the taking of evidence, where such fundamental requirements as the principle of immediacy have perhaps recently been somewhat neglected in favour of conducting the procedure within a reasonable timeframe.Methodology: Our legal framework and justice system must adapt to the advent of the digital age. Certain phenomena, such as Big Data analysis, social media, data and privacy protection, cryptocurrencies, as well as artificial intelligence have recently attracted special attention from legal scholars from all fields of law. The findings of this study are based on the review of the relevant literature in the field of digital technologies and law, as well as legislation and case law from the last few decades and potential future developments.Findings: The expansion of digital technologies into nearly all aspects of our lives is ever-present in our global collective awareness. The digital revolution challenges our previous concepts about communication, access to information and data protection, and has also already changed the way we think about work, education, or commerce. Technology has a massive potential for criminal justiceas well, including the right to a fair trial within a reasonable time. However, it may also contribute further to recent tendencies in the taking of evidence where procedural safeguards such as the principle of immediacy are sacrificed in favour of efficiency.Value: Digital technologies open a vast array of possibilities for criminal justice, however, also allow for new forms of criminality to emerge. Digitalisation and criminal procedure have numerous implications beyond the scope of this study (e.g. predictive policing) that merit further research.

The victim as a prosecuting party: Their rights and procedural safeguards

The victim as a prosecuting party: Their rights and procedural safeguards

Relations Developing in Arbitration Proceedings and the Subject of Civil Procedure Law

The paper examines the question of whether relations developing in arbitration proceedings are included in the subject of civil procedure law. The author describes the positions of researchers and the arguments justifying them. In the paper, the author derives a criterion for the unification of public relations under the subject of civil procedure law. As such a criterion the paper defines an objective social need or interest in the legal regulation of certain public relations in a unified system of procedural safeguards (in a civil procedural form), taking into account the nature of these relations and ensuring to the maximum extent the real protection of the rights and legally protected interests of persons. It is concluded that the legal regulation of public relations developing with the arbitral tribunal is designed to satisfy the need for a qualitatively different procedure for resolving civil cases as compared with the system of justice. These relations objectively are non-procedural in their nature and are not included in the subject matter of law of civil procedure. In confirmation, the fact is given that in arbitration proceedings there is a rejection regarding procedural guarantees that are fundamental for civil procedure law.