Procedural Rights Research Articles

Remote interrogation and confrontation: problems of practice and prospects

The article, based on the results of an empirical study conducted by the author, states the absence in the Russian Federation of a wide practice of remote interrogation and confrontation. The objective factor in the form of insufficient technical equipment of the preliminary investigation bodies is analyzed as the reason for this. A separate reason is the incompleteness of legal regulation, which excludes the indication in the law of an investigator who is obliged to establish the identity of a remotely participating person when applying the norms of Article 189.1 of the Code of Criminal Procedure of the Russian Federation, as well as the absence of legally regulated features of the investigator’s exercise of the authority to present material evidence, a document during remote interrogation and confrontation.It is indicated that such circumstances create the risk of incomplete provision of the procedural rights of an uncontrolled subject of the process, including for a reasonable period of criminal proceedings, a full and comprehensive investigation of the circumstances of the criminal case. In this regard, the author notes the need to allocate budgetary funds for sufficient technical support for the preliminary investigation bodies. There is also a proposal to improve the norms of the Code of Criminal Procedure of the Russian Federation in the part under consideration.

Refusal to open a lawsuit in a civil process

The article examines the refusal to open a lawsuit as a procedural duty of the court in civil proceedings. It is claimed that during the exercise of the right to file a lawsuit, a number of civil procedural duties appear before the court, which it must implement depending on what grounds will be established at the stage of opening the lawsuit. One of these duties is the duty of the court to refuse to open proceedings on the case, if grounds for this are established by the court. The view of the refusal to open proceedings on the case as a possibility of the court is denied, since «possibility» indicates a right, but the procedural right of the plaintiff cannot be opposed by the right of the court, because it does not correspond to the generally accepted idea of the corresponding relationship of rights and obligations. Fulfillment of an obligation is a condition for the realization of a certain right. Having exercised the right to file a lawsuit, the plaintiff presented the court with the need to fulfill a certain civil procedural duty, depending on what grounds he establishes. The reasons for refusing to open a lawsuit are analyzed and their exceptional nature is noted. The explanation of the mentioned grounds is carried out not only using the provisions of the doctrine of civil procedure, but also the modern practice of applying the norms of civil procedural legislation, including the legal positions of the Supreme Court. A classification of grounds for refusal to open a lawsuit is carried out in the context of their comparison with the prerequisites of the right to sue in the procedural sense (the right to file a lawsuit). It is noted that the prerequisites of the right to a lawsuit do not presuppose the emergence of civil procedural relations at the stage of opening a lawsuit. They point to the existence of the right to a lawsuit in statics, where the will of the person to initiate the opening of legal proceedings has not yet manifested itself.

Особенности рассмотрения запроса третейского суда о содействии в получении доказательств

International Commercial Arbitration is subject of Article 27, Law of the Russian Federation No. 5338‑1, July 07, 1993, while Arbitration Proceedings in the Russian Federation are described in Article 30, Federal Law No. 382-FZ of December 29, 2015. If a dispute settlement goes to institutional arbitration, a party or an arbitration court has the right to apply to a competent court with a subpoena of evidence. This article features the publication and execution of subpoena of evidence by arbitration court for the recovery of evidence. This category differs from other arbitration proceedings in that it requires a procedural appeal that initiates the proceedings, i.e., the subpoena of the arbitration court, and an applicant, i.e., the institutional arbitration court that is seeking assistance in the dispute. The author used the methods of teleological interpretation and functional analysis to justify the admissibility of normative provisions that exclude the right to issue a subpoena by ad hoc arbitrators and to send subpoena of evidence directly by the parties to the arbitration proceedings. The parties to the arbitration should be involved as interested parties. The applicant and the stakeholders have limited procedural rights and obligations since the court neither carries out jurisdictional activities nor considers the dispute per se, but coordinates assistance functions. As a result, some procedural shortcomings make it impossible to clarify the form and content of subpoena, as well as the type and content of documents that should be attached to it, e.g., an arbitration agreement, a state fee payment confirmation, a resolution on the arbitral panel, etc. The author also analyzed grounds for refusal to execute a subpoena of evidence. Excessive discretion and Delphic language should not violate the rights and legitimate interests of third parties, thus preventing them from participating in the arbitration.

Filing a lawsuit as a set of procedural actions at the stage of opening a lawsuit in a civil process

The article examines the concept, essence and legal nature of filing a claim in a civil process. The author critically evaluates the traditional view of filing a lawsuit as one procedural action that triggers the entire mechanism of protection of violated rights, freedoms, or interests in civil proceedings. Taking into account the need to observe the established procedure for the exercise of the right to file a claim, the point of view is substantiated that the filing of a claim is a set of procedural actions that determine the realization of the specified subjective procedural right. A list of procedural actions is given, with the help of which the right to file a claim is realized in the established order: the minimum permissible procedural actions and their increased number are determined. Based on this, it is concluded that the filing of a claim in a civil process can be presented in the form of abbreviated or extended legal composition. In the latter case, it is required to perform such a set of procedural actions, which are determined by the nature of the disputed legal relationship, the stated claim and the person of the applicant. Instead, the truncated composition of the lawsuit indicates that the plaintiff has certain procedural benefits. It is indicated that all procedural actions that must be taken by the plaintiff in order to comply with the established procedure for exercising the right to file a claim are mandatory, but their number may be different, depending on the type of legal structure that determines the realization of the right to file a claim. It is noted that despite the numerous procedural actions of the plaintiff, which form the legal structure of the right to file a lawsuit, only one behavior of the plaintiff at the stage of opening a lawsuit will be of decisive importance: submitting a claim statement to the court of first instance. Without this, the previous behavior of the plaintiff (preparation of a statement of claim of the prescribed form and content, payment of a court fee, etc.) will not have legal significance, since it does not indicate the will of the person to seek legal protection.

TOPICAL ISSUES OF THE LAWYER'S PARTICIPATION IN THE PRELIMINARY INVESTIGATION

The right to protection guaranteed by the Constitution of the Russian Federation is implemented at all stages of the criminal process. The main and mandatory stage of the criminal process is the preliminary investigation stage, in which an independent professional legal adviser, a lawyer who defends suspects and accused persons, takes an active part. Considering the powers and duties of a defense lawyer, the author comes to the conclusion that the lawyer acts as an independent participant in the criminal process in general and the stage of preliminary investigation in particular. The article analyzes the main directions of the lawyer-defender's participation in the adversarial process, which influence the course of the investigation and the formation of the evidence base in a criminal case. The public-legal nature of the lawyer's activity is noted, despite the fact that the bar is an institution of civil society, not the state. A distinction is made between the participation of a lawyer in criminal proceedings as a defender and as a representative. It is concluded that the correct and full use by a lawyer of his procedural rights is a key factor that contributes to the effectiveness of ensuring and protecting the rights of the defendant and contributes to the overall attitude towards fairness in the judicial process.

Certain aspects of the realization of the suspect’s right to defense in the criminal process of Ukraine

The article is devoted to the consideration of certain aspects of the implementation of the suspect’s right to defense in the criminal process of Ukraine. It is noted that one of the principles of criminal proceedings is ensuring the right to defense. Thus, according to Article 20 of the Criminal Procedure Code of Ukraine, a suspect, accused, acquitted, convicted person has the right to defense, which consists in giving him the opportunity to provide oral or written explanations about the suspicion or accusation, the right to collect and submit evidence, to take personal part in criminal proceedings, to use the legal assistance of a defender, as well as to exercise other procedural rights provided for by this Code.
 The author emphasized the multifaceted approaches to defining the definition of «protection», which is evidenced by the diversity of viewpoints of scientists on this issue.
 The article emphasizes that a person’s right to defense is connected with the initiation of criminal proceedings, namely from the time of entering information into the EDDR or informing a person of suspicion of committing a criminal offense and acquiring the status of a suspect.
 The participation of a defense attorney in the criminal process is an important guarantee of ensuring the suspect’s right to defense. An essential feature of the lawyer’s procedural status is the obligation to use the procedural rights granted to him in the interests of his client.
 It is noted that in European countries attention is paid to the principle of early access to legal aid. In order to effectively implement the suspect’s right to defense in the criminal process of Ukraine, it is also necessary to apply the precedent practice of the ECtHR.
 The author draws attention to the fact that among the main violations related to the participation of the defense counsel in criminal proceedings, it is appropriate to single out: failure to ensure the mandatory participation of the defense counsel in cases provided for by law; restriction of the right to freely choose a defense counsel; obstacles to the implementation of procedural rights, which are associated with obtaining free legal aid.

Implementation of the principle of competition in the course of pre-trial investigation

The article is devoted to the study of the peculiarities of implementing the adversarial principle in the course of pre-trial investigation. Adversariality determines the image of the entire criminal process, since it implies its construction in which the functions of prosecution, defense and case resolution are separated from each other. This, in turn, gives the court’s verdict a special power of persuasion, increases its legal and social significance.
 The adversarial principle in the course of pre-trial investigation has its own structure, which consists of four interrelated elements: 1) the presence of the prosecution and the defense; 2) the presence of equal procedural rights for the prosecution and the defense; 3) the presence and clear separation of the functions of public prosecution, defense and trial; 4) the presence of an objective and impartial court.
 At the stage of pre-trial investigation, the adversarial nature of the parties is characterized by a number of circumstances, one of which is that the officials conducting the proceedings have power and administrative authority, unlike the defense. In the course of the study, the author substantiates the position that it is necessary to expand the powers of defense counsel with a view to intensifying his/her activities in implementing the principle of adversariality at the pre-trial investigation stage. In this regard, the author suggests that the CPC of Ukraine should include the following: a protocol form for recording the results of questioning of persons by the defense; provide for the liability of public authorities, local self-government bodies, enterprises, institutions, organizations, officials and individuals for failure to comply with the defense’s requests for the provision of necessary items and documents; supplement the CPC of Ukraine with a rule imposing on the investigator, prosecutor the obligation to timely notify the defense counsel of the time and place of the investigative (search) action in which he or she has the right to participate.

Transfer of probationers under EU law: Rehabilitation and the question of legitimacy in the Netherlands

This article analyses the thorniest issues raised by the implementation in the Netherlands of Framework Decision 2008/947/JHA, often referred to as ‘European Probation Order’. It delves into Dutch law and practice regarding mutual recognition of probation measures and alternative sanctions and analyses how the Netherlands deals with principled questions with respect to the legitimacy of the transfer of probationers, both as a mechanism in itself and with respect to the ultimate goal of promoting social rehabilitation. The analysis focuses on (i) the basic tenets of the Dutch implementation (goals, competent authorities and application in Dutch legal practice); (ii) challenging issues regarding the types of probation measures and alternative sanctions eligible for recognition and the implementation of refusal grounds and (iii) how procedural rights and informed consent of the sentenced person are dealt with in relation to social rehabilitation.

Matters related to key features of the by-law contestation administrative proceedings

The article points out that in cases concerning appeals against normative acts in the presence of obvious signs of its unlawfulness and violation of the rights or legitimate interests of a person who has filed a lawsuit against such an act, this lawsuit can be accompanied by an interim remedy stopping the effect of the respective normative act. This is allowed in exceptional cases when, on the basis of the evidence available in the case, the court is convinced that the contested act clearly contradicts the criteria of its lawfulness established by law on administrative proceedings. At the same time, one cannot claim that an exceptional case for stopping the effect of a normative legal act, when the norms of substantive law establish an alternative procedure for the exercise of rights affected by the contested normative legal act (in particular, if it is possible to act on the basis of normative acts having higher legal force). In addition, when deciding the issue of suspending the effect of a normative legal act, the court must observe the limits of judicial intervention in the activities of their issuers and respect their discretionary powers, primarily those that lie in the domain of their exclusive executive functions, especially those that are characterized by political and narrowly-specialized character.
 The author, moreover, maintains that in order to encourage plaintiffs to use their right to claim and procedural rights in good faith, it is proposed to establish the date when the plaintiff learned or should have learned about the violation of his rights and legitimate interests. It is also clarified that termination of a person’s participation in social relations, the participants of which are assigned rights and duties by the relevant normative act, as well as the termination of the normative legal act itself, is the starting point for calculating the timeframe for its appeal to court.
 The article also indicates that there are critical gaps in the legislative provisions, which give rise to uncertainty regarding the impact of the published announcement on the appeal of a normative act on timeframes of appeal to the administrative court for other addressees of the relevant normative legal act, as well as regarding the procedural status of those who expressed their intention to join before consideration of the case on its unlawfulness.

Злоупотребление процессуальными правами и реализация дискреционных прав властными субъектами в досудебном производстве: понятие и соотношение

In the course of pre-trial proceedings, government entities are authorised to carry out procedural actions and make decisions, most of which are determined as a result of an assessment of the sufficiency of the grounds and conditions for this, based on internal conviction. Sometimes the discretionary rights of such participants are difficult to assess from the point of view of the validity and sufficiency of the information (evidence) available in the audit materials or the criminal case. This leads to appeals against the actions and decisions of officials as having been carried out with abuse of procedural authority. But can this right be abused? To answer this question, it is necessary to clarify the essence of abuse of procedural rights and determine their relationship with discretionary ones. In the course of the study, by analysing the available approaches and practices of applying the norms of the Criminal Procedure Code, it is concluded that an intentional dishonest act under the guise of the exercise of one’s procedural rights by a government entity, excluding the subsequent proper exercise by other participants in criminal proceedings of their procedural rights or their procedural duties within a reasonable time, should entail procedural, disciplinary or criminal liability depending on the consequences and be regarded as abuse. Abuses of the right by the prosecutor and the person in charge of the criminal case to timely grant the status of a participant, to charge, to cancel procedural decisions, during investigative actions, and when choosing measures of criminal procedural coercion have been identified and considered in relation to discrete powers. Some ways to overcome such abuses are presented.

Study on the Improvement of the Protection of Procedural Rights and Interests of Workers in Labour Dispute Arbitration

Arbitration of labour disputes, as an important way to protect the rights and interests of workers, aims to achieve better resolution of labour disputes and maintenance of labour relations through the front-loading of arbitration of labour disputes. With the continuous development of the society, labour dispute disputes are increasing, and the procedural rights and interests of workers in labour dispute arbitration are also more and more prominent. Based on this problem, China needs to carry out a series of reforms to the labour dispute arbitration system, to fill the gaps in the existing legal regulations, and to propose a series of targeted measures for the difficulties encountered by workers in labour dispute arbitration.

Злоупотребление правом профессиональными участниками судебного разбирательства в суде присяжных

The article examines the forms of abuse of procedural rights by professional participants in court proceedings in a jury trial, factors that determined their emergence and ways to overcome this phenomenon in legislative regulation and judicial practice. The author follows the position that abuse of rights in a jury trial consists of the actions (inactions) of participants of the proceedings, which, according to external signs, do not go beyond the limits of these rights (powers), but contradict the purpose for which they were provided to the participant of the proceedings and objectively do not correspond the purpose of legal proceedings and its principles. As a form of abuse of right on the part of the presiding judge, the article examines his refusal to wait for a juror who has not appeared, if this entails the annulment of the jury’s verdict and (or) the dissolution of the panel. It is argued that a typical abuse of law for the public prosecutor is the extra-procedural collection of information about jurors, which, in the event of a not guilty verdict, is used to justify the illegality of the composition of the jury panel that examined the criminal case. Examples of abuse of procedural rights by a defender are considered, including his use of the right to object to the presiding judge final instructions as an additional speech to the jury. Ways to minimise these forms of abuse of rights are proposed.

Revisiting Indonesian Legal Framework for Juvenile Justice: Ensuring Procedural Rights for Assault Offenders

Assault crimes are violent by nature and are often perceived as a serious threat to public safety. However, the complexity of each crime needs to be analyzed thoroughly in a legal procedure to make sure that important values and principles are applied. This is particularly important among juvenile offenders, where the enforcement of justice needs to be upheld without sacrificing the future of youth. This research is done to analyze the challenges in ensuring procedural rights for juvenile assault offenders in Indonesia. Through the normative legal research method combined with a statutory approach, this research uncovers the legal challenges that juveniles face in accessing their procedural rights in Indonesia’s juvenile justice system and how these challenges can be improved. Analysis of this research finds that the Indonesian legal framework is still lacking in many ways, particularly in ensuring the right to ease of access to information regarding the case and the protection of privacy. The analysisThe analysis also shows that these issues cause conflicts with other laws, constitutional principles, and international standards. This research not only highlights the gaps in Indonesia’s juvenile justice system but also lays a theoretical foundation for developing a more holistic and rights-based approach to juvenile justice reform.

Some aspects of the abuse of rights in civil and economic proceedings

The article is devoted to the analysis of abuse of procedural rights in civil and economic proceedings. The views and approaches to the problem of abuse of rights available in the legal literature are considered.
 Based on the review of scientific literature, the conclusion has been made that there are two general theoretical constructs for understanding the concept of “abuse of procedural rights” within the framework of two approaches. The first approach involves the definition of abuse of procedural rights as misuse of procedural rights, and the second approach – as a type of procedural offence. The article analyses the national legislation on the subject matter of the study.
 It is argued that the abuse of procedural rights is a certain situation which participants to court proceedings find themselves in, whose rights are violated and are directly related to the rights of the person who abuses them. The exercise of procedural rights is carried out by one party to the dispute within certain limits, as long as it does not contradict the interests of the other party. Violation of these limits leads to the emergence and existence of such a legal phenomenon as abuse of rights.
 It is established that abuse of procedural rights means that one of the parties to a dispute, which formally has certain rights, unlawfully exercises them, violating the extent and type of behaviour defined by the procedural law, while taking advantage of the fact that these rights cannot be objectively clearly defined by means of direct prohibitions. In other words, when exercising their rights, the parties to the dispute do not take into account all the actual circumstances and do not take into account the possible harm to each other’s interests.
 Attention is drawn to the fact that the diversity of procedural rights in civil and commercial proceedings gives rise to a corresponding number of types of their abuse by the parties to a case. Due to the absence of a clear list in current legislation of the types of abuse of procedural rights and the existence of certain judicial practice in resolving this category of cases, it should be noted that there are various classifications by scholars.

On the Concept of Information in Criminal Proceedings

Information gains special importance in the modern criminal process, it becomes a valuable resource in the implementation of procedural rights. The article is devoted to the issues of procedural information research. Most theories view information as a component of the process of cognition, as data regarding the committed crime. Such an interpretation somewhat limits its significance for the criminal process and makes it possible to view information only as the contents of proof. At the same time, the absence of a common view on the procedural understanding of information leads to certain difficulties in determining the limits of the rights to information for the criminal procedure participants. In order to understand information as a criminal procedure category, it is necessary to research its essence. Such an approach will contribute to specifying terminology, deriving key procedural attributes, and to the categorization of this concept. The author examines various doctrinal viewpoints on this issue, presents the philosophical understanding of information, and its legislative definition. There is a comparison of concepts from the criminalistic and the criminal procedure doctrines. The key attributes of information are formulated and the methods of its classification are presented.

Human Rights and the Periphery: Righting the Deprivation of the Sama Dilaut as Indigenous Maritime Peoples in the Southern Philippines

The Sama Dilaut identify their source of homeland and identity as peoples of the sea. Despite their procedural rights guaranteed under international and domestic legal instruments, they remain in the periphery within the informal hierarchy of ethnicities, not because they are resource-poor but because they are capability- and freedom-deprived. As opposed to material deprivation, this study focuses on rights deprivation, that is, the alienation of their indigenous context and perspective in human rights interpretation and fulfillment. Using qualitative methods specifically phenomenology and key informant interviews, it first queries their lived experiences of deprivation on land, at sea, and horizontal (community) and vertical (State) levels. Second, it critically examines pathways and solutions to enjoy their rights and freedoms fully. The results focus on their concept of human rights (kapatut manusiya) and their communally-identified four significant lived deprivations vis-à-vis desired freedoms. These are related to knowledge and education (pangalaman or panghati), indigenous culture and spirituality and religious beliefs (pangaddatan and pag-omboh or pag-paybahau), traditional and diversified economic life (pag-usaha or pagkalluman), and socio-political leadership and participation (panglima or nakura). This study contributes to putting the international human rights landscape into perspective through the lens of the Sama Dilaut, who are freedom-deprived yet rich in (maritime) culture and worldview.

LAWYER AT THE PRELIMINARY INVESTIGATION STAGE: OPPORTUNITIES FOR PARTICIPATION IN THE ADVERSARY PROCESS

The constitutional right to defense is exercised at all stages of the criminal process. The main and mandatory stage of the criminal process is the preliminary investigation stage. An independent professional legal adviser - a lawyer - takes an active part in this stage. The author of the article examines the powers and responsibilities of a defense lawyer. The article analyzes the main directions of participation of the defense lawyer in the adversarial process, which influence the course of the investigation and the formation of the evidence base in the criminal case. The public legal nature of a lawyer’s activity is noted, despite the fact that the legal profession is an institution of civil society, not the state. A distinction is made between the participation of a lawyer in criminal proceedings as a defender and as a representative. It is concluded that the correct and full use by a lawyer of his procedural rights is a key factor that contributes to the effectiveness of ensuring and protecting the rights of the client and contributes to the general attitude towards fairness in the legal process.

The Intersections of Public Rights and Private Rules: An Analysis of Human Rights in Forestry and Fisheries Certification Standards

AbstractThis article systematically evaluates whether, how, and to what extent twelve prominent forestry and fisheries certification schemes address human rights in their standards. In line with the broader cross-fertilization of the fields of international human rights and environmental law and policy, our results demonstrate that human rights norms and considerations – primarily Indigenous, labour, and procedural rights – are increasingly reflected in the rulemaking of these schemes. At the same time, our analysis also demonstrates the mixed and underwhelming performance of certification standards in protecting human rights norms, including those relating to women, children, racialized and ethnic minorities, persons with disabilities, Indigenous peoples, workers, 2SLGBTQIA+ communities, and peasants and rural peoples. Through descriptive statistics, we also show that levels of human rights adherence vary significantly across schemes and that standards developed in the forestry sector tend to outperform those for fisheries. Our methodology and results add a new dimension to efforts to assess the stringency, equity, and legitimacy of private authority in the environmental field.

Activation of the Victim’s Role in Pre-trial Proceedings: Remote Forms of Participation

The article discusses the issues of activating the role of the victim in pre-trial proceedings as part of the implementation of the “minimum standard rules for the treatment of victims of crimes and abuse of power”. Since active participation in the investigation of a criminal case increases the level of satisfaction of the victim with the justice system, it is proposed to expand the relevant procedural possibilities, while not shifting the burden of proof to him. The beginning of the victim’s interaction with law enforcement agencies should be his participation in the inspection of the scene of the incident. The author proposes to provide the victim with the opportunity to participate in this investigative action remotely, using video conferencing. This will not only increase the level of confidence of the victim in law enforcement agencies, but also provide instant feedback between the investigative task force and the victim of the crime, allowing to correctly determine the direction of the ongoing investigation. The article notes that the victim acquires the full range of procedural rights from the moment the relevant decision is made. The author believes that the victim should be able to immediately familiarize himself with this document, as well as receive other information on the criminal case both personally and remotely, using information and communication technologies. It is noted that it is necessary to organize pre-trial proceedings in accordance with the needs of the victim, giving him the opportunity to choose the form of participation (in person or remotely), as well as the use of a personal digital device to participate in investigative actions through video conferencing. It is proposed to amend the legislation allowing the use of household messengers in the production of remote investigative actions, or the creation of an electronic service on the mobile platform of public services for video conferencing with government agencies.

Accessibility of Justice in the Context of Its Digitalization

The article discusses certain aspects of the implementation of the principle of accessibility of justice in the context of the widespread introduction of informatization and digitalization. Based on the study of the legislative framework, the doctrine of procedural law, the law enforcement activities of the Constitutional Court of the Russian Federation and the European Court of Human Rights, the author problem of the impact of digitalization on ensuring accessibility of justice and the right to judicial protection is being investigated. The problems of using information technologies in the course of the administration of justice are highlighted, as well as the issues arising in connection with their use by the parties and the court. The debatable aspects of the use of information technologies in the framework of certain types of legal proceedings are touched upon, in particular, in the context of the practical implementation of the adopted procedural novels, ensuring the equality of participants in legal proceedings, and resorting to simplified procedures for considering and resolving cases. It is noted that the use of digital technologies solely for the purpose of procedural economy and solving organizational issues of courts is unacceptable, as well as their mandatory implementation if it does not ensure the equality of participants in legal proceedings, the real effect of the constitutional right to judicial protection, and also goes against the principle of access to justice. In the context of limited legal regulation, the material and technical base of domestic courts, the author comes to the conclusion that it is necessary to preserve the traditional form of administration of justice, paperwork, as well as a deep and comprehensive analysis of the use of implemented technologies through the prism of accessibility of justice and the expansion of normative and real guarantees for the exercise of procedural rights.