Rights In Criminal Proceedings Research Articles

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.

Practice of the Constitutional Court of Ukraine on the Protection of Personal Rights in Criminal Judicial Procedure

The article deals with the analysis of the legal positions of the Constitutional Court of Ukraine in the sphere of protection of individual rights in criminal proceedings. It is substantiated that these rights are part of the system of fundamental constitutional values guaranteed by the Basic Law of Ukraine, the establishment and enforcement of which is the main duty of the state. These constitutional values are most threatened during a person’s investigation and trial, as well as in places of imprisonment. Understanding the content of these constitutional values, their fundamentality in the application of legislative provisions in criminal proceedings is the key to the effectiveness of the rule of law in this area and demonstrates the level of legal culture of society as a whole. The decisions of the Constitutional Court of Ukraine in the sphere of protection of individual rights in criminal proceedings have been analysed and it is determined that such decisions represent a significant share of decisions awarded by the Constitutional Court on protection of human rights and freedoms and address a wide range of criminal issues. Depending on the subject of consideration and the formulated legal positions of the Constitutional Court of Ukraine, the following types of decisions of the national body of constitutional control in the sphere of protection of individual rights in criminal proceedings are identified: regarding the requirements for normative legal acts (type, content); on the right of a person to legal aid; on restricting a person’s right to liberty; on protection, including judicial, rights and freedoms of a person at various stages of criminal proceedings - from entering information about a criminal offense in the Unified Register of pre-trial investigations to sentencing in the case; on guaranteeing, affirming and ensuring by the state the right to life, health and dignity of a person in sentencing and imposition of punishment. It is concluded that the Constitutional Court of Ukraine protects the rights and freedoms of persons in criminal proceedings by making decisions, including on constitutional complaints, at the highest constitutional level. After the publication of the decisions of the Constitutional Court, the legal positions set out in them, being in normative unity with the provisions of the Constitution of Ukraine interpreted in the decisions, become direct regulators of public relations, including determining the content and scope of constitutional human and civil rights.

On the Conceptual and Categorical Apparatus in the Field of Personal Rights Protection in Criminal Proceedings

The problem of protecting human rights and freedoms is one of the urgent and fundamental problems of modern legal theory and practice. The actualization of this problem is currently due to a significant update of the criminal procedure legislation. The solution to the problems of this protection is not possible without identifying and analyzing the theoretical basis for the protection of individual rights in criminal justice. In the course of the study, conclusions are drawn about the relationship between the concepts of “right”, “freedom” and “legitimate interest” that are similar in content. At the same time, it is noted that legal science proceeds from the fact that there is essentially no fundamental difference between the concepts of “right” and “freedom”, the concept of “legitimate interest” is a prerequisite for the implementation of the first two concepts. The article presents the positions previously expressed in legal science regarding the ratio of fairly similar general legal categories, such as “protection” and “preservation”. The author's point of view on the correlation of these concepts is expressed, it is concluded that the concept of “preservation” is broader in its content than the concept of “protection”, and includes the latter. It’s developed its own approach to understanding the protection of individual rights in criminal proceedings.

Definition of Guarantees of Personal Rights Ensuring in Criminal Proceedings

The article examines the theoretical and legal basis of the procedural guarantees of individual rights in criminal proceedings on the basis of theoretical and practical analytical data. The article also provides a detailed analysis of the scientific views of scholars and legislation on the theoretical aspects of the procedural guarantees of individual rights in criminal proceedings.

ЖИНОЯТ ПРОЦЕССИДА ШАХС ҲУҚУҚЛАРИ ПРОЦЕССУАЛ КАФОЛАТЛАРИНИНГ НАЗАРИЙ ВА ҚОНУНЧИЛИК АСОСЛАРИ

Ensuring reliable protection of the rights, freedoms and legitimate interests of citizens in the judicial system, as well as further strengthening public confidence in justice, the content of legal reforms is to ensure the rights of the individual. Accordingly, this article examines the theoretical and legal foundations of procedural guarantees of individual rights in criminal proceedings on the basis of theoretical and practical analytical data. The article also analyzes the scientific views of scientists on the theoretical aspects of procedural guarantees of individual rights in criminal proceedings.Keywords:law, law, standard, crime, criminal procedure, investigation.

KAZAKHSTAN IN THE WORLD HUMAN RIGHTS PROTECTION SYSTEM

This paper analyzes the formation and development of the institution of law enforcement justice, shows the main directions of administrative reforms aimed at protecting human rights in the public life of Kazakhstan. The author considers human rights injustice as one of the elements of the human rights protection system in the Republic of Kazakhstan. Studying the preconditions for the creation of a system of law enforcement, the author pays special attention to the judiciary, aimed at ensuring the rule of law, judicial control in public administration, the establishment of a balance between government and citizens. These problems of legal regulation and legislative changes are of institutional nature and depend not only on the implementation of international human rights standards in law and penitentiary practice but also on positive changes in the legal status of convicts. The objectivity of the court representative, investigator, inquest officer, the prosecutor is a mandatory condition for the proper performance of his duties. This is reflected not only in the content of the decision but also in all the procedural steps that accompany its adoption. If this basic principle is violated, it is impossible to imagine real protection of human rights in criminal proceedings. The article describes Kazakhstan in the global system of human rights protection.

Strengthening the protection of the right to remain silent at the investigative stage: What role for the EU legislator?

This article reflects on the possible contribution of the European Union towards safeguarding the right to silence at the investigative stage of criminal proceedings in EU Member States. The analysis is not limited to the Directive 2016/343/EU and other procedural rights’ Directives. Rather, it focuses on the role of the EU as a legal and political player, pursuing the goal of enhanced protection of procedural rights in criminal proceedings. The article first examines compliance of the legal provisions of the four examined jurisdictions with the Directive. It then identifies the relevant areas, not addressed or insufficiently addressed in the existing EU instruments, which appear problematic as far as the effectuation of the right to silence is concerned. The article argues that a more detailed binding EU regulation is not an appropriate solution to address the existing problems. Instead, it suggests that the EU legislator should consider other, more indirect means of action.

THE ROLE OF THE GENERAL SUBJECTS OF HUMAN RIGHTS PROTECTION DURING COVERT INVESTIGATIVE (SEARCH) ACTIVITIES (ACTIONS)

This article analyzes the system of state bodies and officials who are more or less authorized (obliged) to ensure human rights, including in the conduct of covert investigative (search) actions. According to the tasks performed by each of such subjects, they are divided into two groups: general (those that determine the basis of domestic and foreign policy of the state and public administration strategy, have relevant coordination powers and solve constitutional and legislative strategic tasks in the specified area, or implement state policy in this direction, one of the powers of which is to approve or ensure human rights) and special (subjects of criminal proceedings who are directly involved in the appointment, conduct, and evaluation of the results of the CISA, and who are charged with the protection, protection (enforcement) of human rights in criminal proceedings, including the CISA.
 Key words: human rights, covert investigative (search) actions, guarantees of rights and freedoms, court investigative judge, participants in criminal proceedings.

Comparative Legal Analysis Of Issues Of Enforcement Of Rights Of Individuals In The Criminal Proceeding Of The Republic Of Uzbekistan And Republic Of Kazakhstan

The article provides a comparative analysis of the development of ensuring the rights of individuals in two post-Soviet republics; it also gives distinctive features and trends in the development of guarantees of rights in criminal proceedings. The issues of participation of prosecutors and lawyers in the criminal process, the role of public control over the criminal process are considered by the author.

Забезпечення поінформованості підозрюваного про його права в аспекті практики Європейського суду з прав людини

The article deals with the issues of proper informing of a suspect about his or her rights in criminal proceedings interms of the case law of the European Court of Human Rights.It was found on the grounds of the analysis of the Court’s legal position that information should be provided as soonas a person has been deprived of his or her liberty or as soon as possible, i.e. immediately. When it comes to the timelinessof informing a detained or arrested person, the Court emphasizes the importance of providing the necessary informationon the main legal and factual grounds for his or her detention, firstly, immediately and, secondly, in simple, unprofessionallanguage understood by him.Timely information also means that each arrested or detained person should be informed of his or her right to theassistance of counsel of his or her choice or appointed immediately at the time of arrest or detention, prior to questioningand when bringing charges.ECHR considers informing a person on the body of evidence underlying the charges to be another aspect of informationawareness in criminal proceedings. In accordance with the principle of equality of arms in the early stages of criminalproceedings, suspects have the right to access evidence that can enable them to challenge the legality of their detention.It is possible on the grounds of the research to emphasize the standards developed in the ECHR decisions that areinstrumental to the proper informing the suspect on his or her rights in criminal proceedings. These should include atleast the following: timeliness and promptness of information awareness in language understood on: the rights grantedby the law, the reasons for arrest; the right to remain silent (not to testify against oneself); to use legal assistance ofa defense counsel, including free of charge; the right to free choice of a defense counsel; to voluntarily, consciously,reasonably refuse legal assistance of a defense counsel; scope (nature) of charges; the body of evidence underlying thecharges; the right to an interpreter (if necessary, his replacement) and a written translation of at least the documents heor she signs into a language in which the accused is fluent.Key words: a suspect, a detained person, defense, defense party, right to defense.

ЗАСТОСУВАННЯ ПРОКУРОРОМ ТИМЧАСОВОГО ДОСТУПУ ДО РЕЧЕЙ І ДОКУМЕНТІВ ПІД ЧАС РЕАЛІЗАЦІЇ ФУНКЦІЇ ОБВИНУВАЧЕННЯ

The article is devoted to one of the effective means of obtaining evidence in criminal proceedings – temporary access to things and documents, the legal regulation of which is defined in Chapter 15 of the Criminal Procedure Code of Ukraine. Attention is drawn to a number of problematic issues related to the prosecutor's use of temporary access to things and documents in the exercise of the function of prosecution, the presence of which does not ensure the effectiveness of criminal procedural evidence and the effectiveness of this institution in criminal proceedings. According to the results of the study, the author concludes that the use of temporary units to temporarily access things and documents on the basis of a prosecutor's order makes it impossible to recognize the results of such action as evidence in criminal proceedings, as they do not meet the admissibility requirement. Prosecutorial oversight in criminal proceedings should not only ensure the inevitability of criminal punishment, but also ensure proper respect for human rights in criminal proceedings, respect for the individual, treatment as a person whose guilt has not yet been proven, and ensure impartiality and objectivity of the pre-trial investigation. Based on the results of the analysis of the decisions made by the investigating judge based on the results of consideration of the petitions, the author identified the grounds for the prosecutor's refusal to satisfy these petitions by the investigating judges. It is proposed to expand the procedural powers of the prosecutor as a subject of criminal procedural evidence, giving him the right to instruct operational units to conduct not only investigative (investigative) and covert investigative (investigative) actions, but also other procedural actions. Thus, taking into account the results of the analysis of scientific literature and materials of law enforcement practice, we can conclude that it is necessary to expand the procedural powers of the prosecutor as a subject of criminal procedural evidence by stating paragraph 5 Рart 2 of Art. 36 of the Criminal Procedure Code of Ukraine in the following wording: «to instruct the investigative (search) actions and covert investigative (search) actions or other procedural actions to the relevant operational units», as well as the need to supplement Part 1 of Art. 41 of the Criminal Procedure Code of Ukraine by the authority of operational units to carry out other procedural actions on behalf of the prosecutor.

Nadużycie prawa w procesie karnym

This paper analyses the issue of abuse of rights in criminal proceedings. Based on jurisprudence and doctrinal writings about the criminal proceedings, an attempt was made to provide a separate definition of this concept. Then the focus was shifted to seeking a legal basis for sanctioning manifestations of abuse of procedural right, referring to the current legal status, as well as formulating de lege ferenda postulates in this respect.

Ensuring Human Rights in Criminal Proceedings in the Context of a Pandemic

The coronavirus pandemic has put a number of legal issues on the agenda of the world community – how to ensure the rule of law in the face of the need to save the lives and health of many people, how to achieve a reasonable balance in the ratio of various human rights in a pandemic situation, how to determine the criteria for proportionality of restrictions on essential human rights. The criminal justice authorities and courts have a serious task to ensure human rights, achieve the effectiveness of criminal proceedings and access to justice in the context of the coronavirus pandemic, on the one hand, and take the necessary measures to ensure the safety of persons involved in criminal proceedings, including their own, from the threat of COVID-19 infection, on the other. Measures that restrict human rights in the context of a pandemic must be implemented in accordance with the principles of the rule of law, respect for human rights, the rule of law, legal certainty and proportionality. Proportionality can be established by determining a reasonable balance of private and public interests in each particular situation, through an assessment of the affected interests in terms of their significance. In General terms, the rights and freedoms that provide the most significant benefits are given priority. The criteria for determining a reasonable balance between private and public interests and for resolving an emerging conflict of human rights are determined taking into account the immediate circumstances of the case (the epidemiological situation, the state of health of participants in the process, the urgency and significance of the proceedings for participants in criminal proceedings and the interests of justice, the ability to ensure the necessary sanitary and epidemiological requirements). The coronavirus pandemic has put on the agenda the issue of creating a strategy for the transformation of criminal justice institutions in emergency situations, when the normal mode of criminal proceedings is impossible due to objective reasons.

Evidentiary problems in the investigation of corruption crimes in Ukraine

The fight against corruption in Ukraine is one of the main tasks of law enforcement agencies. However, the process of proving corruption crimes in criminal cases is accompanied by problems that negatively affect the quality of the pre-trial investigation. The purpose of the article is to identify and study typical investigative errors and develop recommendations on the proper use of means and methods of proof in criminal cases of corruption crimes, taking into account the norms of national legislation and international criteria for ensuring human rights in criminal proceedings. To achieve this goal, a comparative and systemic structural analysis of international and domestic regulatory legal acts and court decisions, a selective study of materials from criminal cases on corruption crimes were made. It has been established that the process of proving in cases of corruption crimes in Ukraine will fully comply with international standards for ensuring human rights, provided that operational officers, investigators, and prosecutors comply with the admissibility criterion of evidence, especially when using secret measures. Investigative errors that take place at the stage of pre-trial investigation in this category of criminal cases lead to the restriction of human rights and freedoms and consist in significant violations of the criminal procedural law when collecting, checking, and evaluating evidence, as well as when opening the collected materials to the defense. Preventing such violations requires strict adherence to the general requirements for conducting undercover activities, formulated in the decisions of the European Court of Human Rights and domestic courts. The proof must take into account the "fruit of the poisonous tree" doctrine of the inadmissibility of evidence derived from materials collected in violation of the law. The defense side should be provided with timely access to the materials of covert events, including the documents that served as the basis for their implementation. It is important not to allow actions that are regarded as a provocation (incitement) of the suspect to commit a corruption offense.

ТИМЧАСОВИЙ ДОСТУП ДО РЕЧЕЙ і ДОКУМЕНТіВ: ПРОБЛЕМНі ПИТАННЯ ПРАВОЗАСТОСОВНОї ПРАКТИКИ

The article explores the issues of the victim's involvement in the process of obtaining temporary access to things and documents. The current legislative provisions were analyzed, according to it only the parties to criminal proceedings have the right to appeal to the investigating judge during the pre-trial investigation or the court during the court proceedings requesting temporary access to things and documents. It is established that when a victim is not a part of the criminal proceedings, he is not empowered to apply to the investigating judge with a request for temporary access to things and documents. However, the practice of applying the law evidences about application another one approach to the solution of this issue, in particular, the existing court decisions on granting the investigative judge permission to the victim to temporary access to things and documents. This practice has led the Supreme Court to find that there is a lack of clarity, uncertainty about the legal rules regarding the victim's status and his rights in criminal proceedings, which constitutes an exclusive legal problem. In order to resolve this issue and to ensure the development of the law and the formation of a single law enforcement practice, the panel of judges concluded that it was necessary to refer the criminal proceedings to the Grand Chamber of the Supreme Court. In order to resolve this problem and to ensure the development of law and the formation of a uniform law enforcement practice, the panel of judges concluded that it was necessary to refer criminal proceedings to the Grand Chamber of the Supreme Court and to ask questions for clarification of the legislative provisions. On the basis of the generalized case law, it was concluded that there is no unity in approaches to granting the victim permission for temporary access to things and documents. It is concluded that the issues raised in the article are theoretical and practical issues of granting the victim permission for temporary access to things and documents which need their legislative solution.

Historical Trends of Human Rights Gone Criminal

While the traditional understanding of human rights is to restrain state authority to prevent abuses against the individual, in the last few decades human rights have been recast in a way that has made criminal law one of the main instruments for their promotion. The article explores how, since the 1970s, human rights have allowed penal power to move and expand around the globe. Five trends are explored: i) the rise of victims’ rights in criminal proceedings; ii) the emergence of UN instruments focusing on human rights enforcements by means of criminal law; iii) the development of transitional justice; iv) the promotion of human rights in international criminal law; and v) the imposition of positive duties in criminal matters by human rights bodies. The article argues that the universality of human rights has enabled criminal justice projects to spread and expand over time and space, mixing domestic and international elements. Victims’ rights advocates, NGOs, practitioners, academics, judges and policy-makers have been involved in this process. Yet, the expansion of penality by means of human rights has generally appeared as uncontroversial and important questions have been left unanswered. In particular, the assumptions underlying the idea that human rights require criminal accountability remain unexplored and unchallenged.

Суть поняття декларування щодо прав людини у кримінальному провадженні

Суть поняття декларування щодо прав людини у кримінальному провадженні

The current issues of the protection of the rights, freedoms of participants of criminal proceedings at the stage of judicial consideration

This article explores the issues of protecting of the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration. Consequently, examines of the current state and prospects of protecting the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration is carried out. The current problems and ways of solving the issue of protecting the rights and freedoms of participants in judicial proceedings are considered. This article deals with the issues concerning of the protection of rights and freedoms in criminal proceedings. An indicator of the availability of justice is a component of the right to a fair trial, the existence of an optimal system of court costs and developed mechanisms for providing legal assistance to the poor. Meanwhile, all court judgments should be based on the current Constitution of Ukraine, as well as on the current legislation, without contradicting with them. The International experience in protecting the human rights and freedoms is very important and has a significant impact on the domestic legislation of both our state and other democratic states as a whole. The International standards of fundamental human rights and freedoms and their legitimate interests is the basis that fills the international experience in protecting human rights, freedoms and legitimate interests. The main provisions of the Constitution of the community of democratic states on human rights and freedoms must comply with all international standards, since the protection of rights, freedoms and legitimate interests ensures the sovereign, democratic and independent state. Each civilized state must ensure the implementation of legal guarantees for the protection of the rights, freedoms and legitimate interests of its citizens, this will become the key to the democratic development of the state. To summarize, the public is interested in ensuring that the rule of law is guaranteed through fair, impartial and effective administration of justice. The prosecutors and the judges ensure at all stages of the trial the guarantee of human rights and freedoms, as well as the protection of public order. This covers respect for the rights of the accused and the victims. Protecting the human rights in criminal proceedings at the trial stage is one of the main challenges facing the courts, prosecutors and lawyers. The opportunities of judicial protection through a system of various forms of judicial review is not only an additional guarantee of rights and freedoms, but also a condition for their speedy restoration. Key words: court proceedings, organizational and legal mechanism, protection of the rights, court decision, court control functions, The European Court of Human Rights, legal decisions, legal norms, court proceedings, protection of freedoms, availability of the justice.