Rights In Criminal Proceedings Research Articles

범죄피해자의 형사절차 참여 강화 방안

Despite ongoing discussions regarding the guarantee of victims' participation rights in criminal proceedings, the legal status of victims remains inadequate. Meaningful discussions on strengthening victims' participation in criminal proceedings can only take place when shifting away from a state-centric approach to a victim-centered approach. Victims can demand prevention of harm to their lives or bodies by participating in criminal proceedings, and they can also assert their right to seek recovery for the harm they have suffered as a result of the crime.
 However, the current system is far from victim-centered and fails to be victim-friendly. Victims are being treated as unwelcome guests by investigative agencies, and concerns regarding harm to victims are not properly taken into account in the criminal proceedings. The victim attorney system, which can make significant contributions to the exercise of participation rights, remains inadequate. Furthermore, victims are unable to provide proper statements in criminal proceedings, and they are not adequately guaranteed their right to information about their own cases.
 To address these issues, measures such as operating investigative procedures that consider the rights of victims and the perspective of recovery, prioritizing the protection of victims' right to life, expanding the victim attorney system, granting victims a quasi-party status in criminal trials, and ensuring proper guarantees of the right to information are necessary.

Victim’s Paradigm in European Union Criminal Law

The victim’s legal status and participatory rights in criminal proceedings vary among the European Union member states, which can potentially hinder the harmonisation of the field of criminal law. The aim of this article is to reveal the main features that determine the victim’s paradigm in European Union criminal law by focusing on the rights which the member states are obliged to guarantee in their criminal justice systems. Considering that criminal proceedings must result in a fair balance of interests of the parties involved, this article concludes that, in the victim’s paradigm enshrined in the European Union legal acts concerning the area of criminal law, the victim must be endowed with certain procedural rights, however, for that very reason, as an actor of the criminal justice system, the victim might be required to participate in the proceedings.

The system of procedural guarantees of the participants’ rights in criminal proceedings during pre-trial investigation

The current criminal procedural legislation of Ukraine contains legal guarantees designed to ensure proper protection, safeguarding and realisation of the rights, freedoms and legitimate interests of participants in criminal proceedings. However, in the legal literature, there is no unified approach to defining the essence and content of the system of procedural guarantees of the rights of participants to criminal proceedings, which negatively affects the functioning of the entire system of criminal procedural guarantees, its efficiency and effectiveness. The stability and effectiveness of the studied system of guarantees is an indicator of the level of development of many areas of public life and the legal status of an individual in the State. In this context, the issue of guaranteeing the rights, freedoms and legitimate interests of participants to criminal proceedings during the pre-trial investigation is controversial for both legislators and scholars, and is important for every citizen of Ukraine, since pre-trial investigation and criminal procedural activities in general are associated with interference with a person's private life and restriction of his or her rights, freedoms and legitimate interests in cases provided for by law.
 An analysis of the essence of the system of procedural guarantees of the participants’ rights in criminal proceedings during pre-trial investigation has been made, and its structure and main constituent elements have been characterized. It has been proved that the system of the studied guarantees forms a set of conditions and means which are inextricably linked and interact.
 Based on the results of the study of scientific discussions and positions of procedural scholars, the author establishes that the system of procedural guarantees of rights, freedoms and legitimate interests of participants to criminal proceedings should be considered as a set of interrelated and interacting regulatory and organisational guarantees contained in the provisions of substantive and procedural law and regulatory legal acts.
 Based on the results of the study, it has been proposed to define the elements of the system of procedural guarantees of rights, freedoms and legitimate interests of participants to criminal proceedings during pre-trial investigation, namely: criminal procedural form, principles of criminal proceedings, procedural status of a person, measures to ensure criminal proceedings, measures to restore violated rights of a person, control and supervision of authorised bodies, legal sanctions.

HYA and Others: Reshaping participation at criminal trials in Europe

The recent decision of the Court of Justice of the European Union in HYA and Others has a significant impact on the use of untested witness statements in criminal proceedings. The case concerned the right to examine witnesses, which is protected under 6(3)(d) of the European Convention on Human Rights. The CJEU established a three-step test to determine whether the use of untested evidence violates the right to a fair trial and ruled out the use of ‘sole or decisive’ untested evidence in criminal proceedings. The Court also held that the right to examine witnesses is a fundamental right in criminal proceedings and falls within the scope of Article 8(1) of Directive 2016/343. The HYA and Others judgment sets a higher standard than that guaranteed by the ECtHR, preventing the use of sole or decisive witnesses in reaching a final conviction decision. Finally, the judgment extends the scope of defence rights in EU law and enhances the effectiveness of fundamental rights in criminal proceedings.

Legal regulation of the principle of proportionality in criminal proceedings under martial law

The article examines the legal regulation of the principle of proportionality in criminal proceedings under martial law. During the statement of the problem, it is noted that restrictions on human rights and freedoms during martial law must be commensurate with the specific situation of danger and the need to carry out effective criminal proceedings. In the course of disclosing the state of development of the relevant issues, it is noted that despite the fact that scientists paid attention to some aspects of the proportionality of the limitation of human rights and freedoms in the criminal process, there are currently separate problems of legal regulation of the principle of proportionality in criminal proceedings under martial law. During the presentation of the main material, it is indicated that the principle of proportionality should be used in every case of possible limitation of the fundamental right of a person in criminal proceedings. It is emphasized that the recognition of the principle of proportionality at the legislative level will protect against possible regulatory gaps regarding the requirement of proportionate restriction of human rights in criminal proceedings. Attention is focused on the fact that the normalized general principle of proportionality should apply to all circumstances of excessive procedural interference with the rights of a person, which cannot be comprehensively predicted objectively in the legislative prescriptions. It is emphasized that in criminal proceedings under martial law, in addition to the general principle of proportionality, a special principle of proportionality must be observed, which is related to the need to take into account the severity of the combat situation during the implementation of criminal procedural activities and ensure the rights of participants in criminal proceedings. It is concluded that the special principle of proportionality should be regulated in such a way as to potentially apply to all possible situations of criminal proceedings during martial law. It is determined that criminal procedural law must "require" that a special principle of proportionality be assessed in relation to each case of departure from the general procedure of criminal procedure. It is concluded that by applying the special principle of proportionality, the proportionality between the state (public) interest, enhanced by the "security" component, and the private interest is determined.

Topical Issues of Application of Decisions of Interstate Human Rights Bodies in Criminal Proceedings of the Russian Federation

The paper deals with the implementation of international standards for the protection of individual rights in criminal proceedings consolidated in the decisions of judicial and quasi-judicial intergovernmental human rights bodies. The author gives a characteristic of the main stages of interaction of the legal system of the Russian Federation with the system of international standards, perceived through the practice of the ECHR. The paper examines features of the execution of the ECHR acts after the Russian Federation withdrew from the Council of Europe. The article analyzes the legal foundations of the activities and legal properties of acts of quasi-judicial bodies of the United Nations in the context of the grounds for reviewing national judicial decisions in criminal cases. On the basis of Russian judicial practice, the legal model of sentence review based on international judicial and quasi-judicial acts is analyzed: the stable characteristics of this model are determined, the patterns of implementation of acts of quasi-judicial bodies of the United Nations in Russian judicial practice in criminal cases are described, the factors requiring improvement of this model are analyzed. It is concluded that the existing model of regulation of these relations is based on insufficiently clear provisions of the Criminal Procedure Code of the Russian Federation in their interpretation by the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation. This model does not fully take into account the specifics of individual legal acts of interstate human rights bodies. In conclusion, the article proposes the author’s concept of the reform of the model of resuming criminal proceedings in connection with these acts of interstate human rights bodies. As one of the conclusions, the paper notes that at the present stage of the development of criminal procedure, legislation and the practice of its application in the Russian Federation, the issues of implementation in domestic law of international human rights treaties through the execution of decisions of their control (judicial and quasi-judicial) mechanisms with competence to consider individual reports of victims of alleged violations of these treaties remain relevant.

Observance of individual rights in criminal proceedings during martial law

The objective of the research was to identify threats to individual rights in criminal proceedings during martial law. The research involved system methods, descriptive analysis, systematic sampling, doctrinal approach and forecasting. Martial law introduced as a result of armed conflict carries important implications for criminal justice. Ensuring the observance of individual rights in criminal proceedings during this period applies to several crimes, the common feature of which is the time of their commission. The classification of subjects of prevention of infringement of such rights is presented. The prospects for improving the protection of individual rights in criminal proceedings require international assistance in the detection of crimes related to the armed conflict. It is concluded that ensuring the observance of individual rights in criminal proceedings during martial law requires combining the efforts of national and international specialists. Prospects for improving this process envisage international assistance with increased use of its results as evidence in national and international courts. It is appropriate to develop international recommendations for national law enforcement agencies and judicial bodies.

ЗАГАЛЬНА ХАРАКТЕРИСТИКА ПРЕДСТАВНИЦТВА У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ: ПОНЯТТЯ ТА ВИДИ

The Constitution of Ukraine provides for a person's right to legal assistance. The issue of protection of human rights in criminal proceedings is relevant today, when criminal procedural legislation is being reformed and improved. Representation is an independent institution in criminal proceedings, it is characterized by certain types depending on the criteria of division. The classification of representation, first of all, reveals its essence and content, the possibility of application in one or another situation. Representation in criminal proceedings arouses the public interest of scientists and practitioners regarding the creation of a mechanism for the protection of rights and freedoms, as well as the fulfillment of the duties of those subjects who turn to the representative for proper protection. After all, receiving legal aid in the process of criminal proceedings allows everyone to feel protected in communication with law enforcement agencies, representatives of the prosecutor's office and the court. The institution of representation occupies a fundamental place among the main problems of criminal procedural legislation and determines the peculiarities of the legal status of persons who can represent the rights and interests of subjects in criminal proceedings. Defenders can also exercise the procedural rights of the persons whose interests they represent, except in cases where the personal participation of the person is required. It should be noted that the following participants may have representatives in criminal proceedings: victim, suspect, accused, witness, civil plaintiff, civil defendant, as well as legal entities. Therefore, we believe that it is necessary to pay attention to the peculiarities of providing legal assistance to each of the subjects of the proceedings in accordance with the situation. The purpose of the article is to study the institution of providing legal aid to the subjects of criminal proceedings through the representation of their rights and interests in the criminal process.

Non-use of subjective rights in Russian criminal proceedings: Causes and consequences

The modern paradigm of criminal proceedings, which is based on the idea of the primacy of the protection of the individual, necessitates not only endowing the participants in the criminal process with a set of rights that allow them to defend their interests, but also ensuring the proper level of guarantees for the possibility of their implementation. The article examines the social and legal significance of the use of rights by participants in criminal proceedings, highlights and analyzes the possible causes and consequences of non-use. The author comes to the conclusion that the state and society are interested in the active use of their rights by authorized subjects. In criminal proceedings, the need for such an implementation is determined by the expansion of discretion and adversarial principle. As a result of the study, it was found that the non-use of subjective right in criminal proceedings can be both due to the will of the person (there is a waiver of subjective right), and not depend on it and be the result of lawful or unlawful behavior of representatives of public authorities conducting criminal proceedings. The reason for non-realization of a subjective right in a criminal process may also be the improper performance by officials of their duties to ensure that participants can exercise their rights, abuse of power or abuse of power. The article concludes that these reasons cause different social and legal consequences of non-use of subjective rights: both positive and negative.

Some issues of ensuring individual rights in criminal proceedings

Some issues of ensuring individual rights in criminal proceedings

사회보장적 의미에서의 범죄피해자보호

The most fundamental question in crime victim support is the basis and limitations of crime victim support. It is a question of how far the protection of crime victims will be possible in terms of practical support and intervention in addition to the guarantee of rights in criminal proceedings. If support for crime victims starts with the incomplete fulfillment of the state's crime prevention responsibilities, state intervention will be sufficient to return to the pre-crime state. However, if this is approached in terms of social security or social welfare, the living condition as a more complete and normal member of society should be guaranteed, but if it is approached in terms of crime victim relief, national intervention will always be limited to secondary intervention based on the principle of supplementation.
 In other words, depending on what ideology the state approaches crime victims with, the method or limit of national intervention in crime victims will differ in its direction. This is expected to have a great influence on the 4th Basic Plan for Crime Victims.
 Until recently, the most discussed categories are areas where it is difficult to set limits on the state's role, such as the scope of rescue for foreigners affected by crime in Korea, the possibility of rescue for domestic victims, intervention for victims of negligence, and recognition of indirect victims of non-crime victims. In this regard, the 4th Basic Plan already includes the expansion of the structure of victims of negligence resulting in death, domestic crime victims abroad, and domestic foreign crime victims. However, in that this is a basic plan, to what extent it will be realized is also a matter of future policy decisions.
 First of all, it would be liked to approach the extent to which crime victim protection will be possible from the perspective of social security and solidarity.
 It is necessary to organize the terms, and to examine specifically what the nation can help by organizing terms that are conceptualized as the basis for national intervention such as guarantee, welfare, compensation, relief and protection. And then would like to examine whether access to intervention in crime victims can be made in terms of community solidarity, and analyze the difference in crime victim protection based on existing theories and social security theories and principles of solidarity.

Об особенностях определения процессуального статуса лиц, которым причинен ущерб преступлением, по законодательству Вьетнама

Introduction: the determination of the procedural status of parties to criminal proceedings is an important step towards the full and comprehensive disclosure of criminal cases and ensuring the rights of these persons. However, currently, in practice, approaches to determining the procedural status of a person who has suffered damage are not uniform. This leads to the fact that the rights of these subjects in the judicial process are not properly enforced, affecting the overall effectiveness of compensation for damages in criminal cases. The purpose of the study is to analyze some provisions of the Criminal Procedure Code of the Socialist Republic of Vietnam (CPC SRV), 2015, which have fixed the procedure for determining the procedural status of subjects whose property damage is caused by a crime, and the difference between the victim and the civil plaintiff, as well as persons with interests and obligations in the case. The achievement of the research goal is due to the solution of the following tasks: the disclosure of the provisions of the Criminal Procedure Code of the SRV on victims, civil plaintiffs, persons with interests and obligations in the case, witnesses; the recognition of the procedural status of these entities by the competent authorities. Applying general scientific research methods, namely, the comparison of the current provisions of normative legal acts, their generalization, the author has identified the following results: the recognition of the legal status of victims is of great importance for ensuring their rights. There is a need to pay more attention during the investigation of criminal cases to the content of each specific case, the role of a person at different stages of the proceedings in determining the status of the victim in accordance with the Criminal Procedure Code of the SRV, 2015. The most important point for determining the status of a victim in a criminal case is to identify a direct causal relationship between the damage caused to this person and the criminal act. Conclusions: there are no provisions on the procedural form of the recognition of victims in the current Criminal Procedure Code of the SRV. In practice, this leads to the fact that their rights in criminal proceedings are not guaranteed and properly ensured.

International standards for criminal proceedings in emergency legal regimes

The article aims to study the theoretical and applied aspects of pre-trial research in emergency legal regimes such as: martial law, the state of emergency or the area of joint forces operation in Ukraine. International legal requirements for due process in criminal proceedings during emergency legal regimes are analyzed. It is claimed that the existing experience in Ukraine of normative regulation of criminal proceedings under the conditions of special legal regimes is inefficient, fragmentary, and therefore does not fully correspond to modern ideas about human rights and the democratic and legal state. The perspectives for the application of the jurisprudence of the European Court of Human Rights in criminal proceedings under emergency legal regimes are identified. It was concluded that the investigating authorities carry out all the means to establish the facts of the disappeared persons in the area of Operation of Joint Forces within the framework of the criminal process, which will allow to comply, in theory, with all the requirements for the effectiveness of the investigation. The basis for the formation of legislation on this subject should be the relevant law on missing persons.

Krivičnoprocesni značaj saslušanja osumnjičenog u prisustvu branioca

Particularly sensitive position of the suspect on the one hand, and the main task of criminal procedure embodied in comprehensive clarification and resolution of criminal matters on the other hand, motivated the legislator to provide special rules for questioning the suspect closely related to his special rights in criminal proceedings, of which the most important is the right to access counsel. In the following article, the author will first refer to the European standards of protection of the right to access defence counsel during the hearing of adult suspects, paying special attention to the European Court of Human Right case law and Directive 2013/48/EU, considering that Serbia has signed European Convention for the Protection of Human Rights and Fundamental Freedoms and aspires to become a member state of the European Union. In the end, the author will review relevant provisions of national legislation primarily contained in the Criminal Procedure Code, point out possible shortcomings and propose changes to ensure more efficient exercise of the right of access defence counsel to suspects.

Гарантии допустимости и действительности отказа от субъективного права в уголовном процессе: проблемы законодательного регулирования

Relevance. An element of the human rights system is the criminal procedure law, which allows to increase the degree of protection of the rights of persons in the field of criminal proceedings. The norms of the Criminal Procedure Code of the Russian Federation specify a significant change in the attitude of the state towards the individual, however, many provisions of the law remain imperfect, which gives rise to cases of violation of individual rights in criminal proceedings, emphasizes the importance of studying the issues of legal regulation of guarantees of the admissibility and validity of the rejection of subjective law. Purpose: the study of the problems of regulatory regulation of guarantees of the admissibility and validity of the rejection of subjective law, the development of proposals for further improvement of the criminal procedure law. Objective: to study the totality of the norms of the criminal procedure law that enshrine the guarantees of the admissibility and validity of the waiver of the right, doctrinal sources, in the part related to the topic of the study. Methodology. The basis of this research is a combination of the universal dialectical method of scientific cogni-tion, general scientific methods of analysis and synthesis, induction and deduction, and private scientific methods of cognition, such as: formal-logical, formal-legal. The authors also used methods of studying social phenomena in their concrete manifestation in specific conditions of place and time: the study of documents, observation. Results. A significant element in the hierarchical chain of the regulatory component, which forms the basis of guarantees of the admissibility and validity of the rejection of subjective law, is the criminal procedure law. Many of its provisions are aimed at ensuring the possibility of a person who has fallen into the sphere of criminal proceedings to express his will regarding the realization/non-realization of the benefits belonging to him. At the same time, the work of the legislator in this regard cannot be considered completed. Conclusion. Improving the legal regulation of guarantees of the admissibility and validity of the rejection of sub-jective law will contribute to the protection of the rights and legitimate interests of citizens, correspond to the purpose of criminal proceedings.

Termination of property rights in criminal proceedings

Termination of property rights in criminal proceedings

The principle of maximum tolerance in criminal policy: on the example of a draft law

The author’s hypothesis is that in modern Russian criminal policy there are some principles that are not declared, but the subjects of criminal policy are guided by them. The objectives of the study are to identify and disclose such principles, substantiate their existence and possible consequences of their application. To solve these problems, the author used: rules, techniques of formal and dialectical logic; abstraction and generalization; comparative legal and formal legal research methods; methods of interpretation of legal norms; study of documentary sources; ideal experiment; legal forecasting, the results of previous criminological research, etc. The article substantiates the conclusion that many legislative initiatives of recent years in the field of combating crime implicitly proceed from the principle of maximum tolerance for persons violating the criminal law. The implementation of this principle is shown in a number of draft laws and already adopted laws, as well as the law enforcement practice that has developed on their basis. The characteristic bill developed in 2021 is analyzed in detail. in the office of the Commissioner for Human Rights in the Russian Federation and presented to the expert community as strengthening the protection of human rights in criminal proceedings, aimed at further humanization of criminal legislation. The provisions of the draft law are compared with the principles of science, justice, the inevitability of criminal responsibility and punishment, etc. The forecast of what impact, if the bill is adopted, will be exerted on the criminogenic situation in the country and law enforcement practice is substantiated. The presented analysis, according to the author, is applicable to many draft laws based on this principle that have already been published or will appear in the future, as well as to those norms and institutions that have already been embodied in the current criminal, criminal procedure and penal enforcement legislation.

Международно-правовые и конституционные основы ограничения прав и свобод участников уголовного судопроизводства

The restrictions of individual rights in criminal proceedings are legally based on provisions of international acts on human rights, provisions of the Constitution of the Russian Federation, and the Code of Criminal Procedure of the Russian Federation. The main goals for the achievement of which the rights and freedoms of the individual may be restricted include the satisfaction of the just requirements of morality, public order and general welfare; protection of the constitutional order, health, rights and legitimate interests of other people, ensuring the defense of the country and the security of the state. The rights which can be restricted under the Constitution of the Russian Federation, and which are implemented in the course of criminal proceedings, include the right to liberty and security of person; the right to privacy of correspondence, telephone conversations, postal, telegraphic and other communications; the right to privacy of home. The constitutional rights that can be restricted in criminal proceedings on the basis of the law without a direct indication in the relevant article of the Constitution of the Russian Federation are the right to private property (when seizing property) and the right to labour (in case of temporary suspension from office). Detention and house arrest in criminal proceedings may limit such constitutional rights as the right to freely seek, receive, transmit, and disseminate information; the right to peaceful assembly, rallies and demonstrations, marches and picketing; the right to access public service; the right to participate in the administration of justice; the right to education; the right to use cultural institutions, to access cultural property. The limits of individual rights can only be determined based on clear and justified criteria, providing for a balance of private and public interests (legality, reasonableness, proportionality). Legality implies that law establishes the restriction of human rights; the law cannot be arbitrary or unreasonable. Reasonableness means that the degree and nature of the restrictions correspond to those socially significant goals for the provision and protection of which they are introduced, and the grounds for the restriction correspond to the actual circumstances. Proportionality implies that socially significant interests can be placed above the rights of an individual only if they correspond to socially significant legitimate goals, and the scope of restrictions does not exceed the level necessary to protect public interests.

Object of complaints to the investigating judge regarding the judicial control of acts, actions / inactions to the criminal investigation body

The examination of complaints by the investigating judge, filed by the parties to the proceedings and other persons claiming the violation of their rights in criminal proceedings, is an important form of control for detecting and preventing violations of law and errors committed by criminal prosecution bodies and which carries out the operative activity of investigations.

СОГЛАШЕНИЕ О ПРИЗНАНИИ ВИНЫ КАК ГАРАНТИЯ ОБЕСПЕЧЕНИЯ ПРАВ ЛИЧНОСТИ В УГОЛОВНОМ ПРОЦЕССЕ

The article analyzes the issues of determining and concluding an agreement on admission of guilt, regulating relations to simplify the criminal process, protecting the interests of the individual in the framework of criminal proceedings. The author analyzes the positive experience of the United States, as a country where the institution of plea agreement is already widely used, and the possibility of applying this experience in the conditions of the Republic of Uzbekistan. It is argued that the consent of the suspect or the accused is not enough to conclude an agreement on the confession of guilt, and the will of the prosecutor as a party to the agreement is also necessary, since it is the latter that is indicated in the Criminal Procedure Code of the Republic of Uzbekistan as a subject with such powers. However, in order to ensure a balance in the framework of criminal proceedings and the protection of individual rights in criminal proceedings, in order to make the plea agreement legal force, it is necessary to involve a third party who could verify the admissibility of concluding such an agreement. The role of this third party that can influence the outcome of the agreement is the court, which is vested with the authority to approve or refuse to approve the agreement. The author, analyzing the experience of the United States, notes that in the future it is possible that an agreement on admission of guilt will take the parties in a completely different direction, since they seek to settle a criminal case by simplifying the procedure when an innocent person is ready to admit and conclude an agreement, rather than spend resources on acquittal.