Procedural Rights Research Articles

Vliv judikatury Evropského soudu pro lidská práva na harmonizaci trestního řízení v Evropě

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is a standard-setting instrument for questions related to criminal procedure. Several ECHR provisions refer to the principle of fair trial, personal freedom, non-retroactivity, the right to appeal in criminal matters, and the right not to be tried or punished twice. With respect to the practice of human rights protection in Europe, jurisprudence developed by the European Court of Human Rights (ECourtHR) has crucial impact on the current understanding of those procedural standards. The importance of Strasbourg case-law for the development of common European rules is unquestionable. The practice of national criminal courts as well as national legal doctrine has been heavily influenced by judgments of the ECourtHR. The systematization of case-law concerning criminal procedure is today considered to be an import task of European and national criminal law experts. In this article several factors limiting the impact of Strasbourg case-law on the harmonization of criminal procedure law have been pointed out. The heterogeneity of 47 different European legal orders and the flexible way of implementation of ECourtHR judgments complicates the development of precise rules which are foreseeable to lawyers in European countries. The case overload crisis of the ECourtHR which has been deepening in the past years also may significantly weaken the mechanism and its impact on harmonization. In general, criminal procedure rules formulated by the ECourtHR are mostly regarded as minimum standards. Since the adoption of the Amsterdam Treaty there have been discussions and projects concerning the harmonization of criminal procedure within the European Union. A proposal for a framework decision on certain procedural rights in criminal proceedings throughout the European Union has been presented by the European Commission in 2004. The future of the proposal is uncertain as several EU member states oppose the idea of a legally binding instrument on criminal procedure rights. In any case, a new EU instrument of harmonization has to respect the standards already set out by the ECourtHR.

Paving the way to the New Pact on Migration and Asylum: Some reflections on Ministero dell’Interno (Joined Cases C-228/21, C-254/21, C-297/21, C-315/21, C-328/21)

The annotation analyses the CJEU preliminary ruling in the Ministero dell’Interno case, among the latest interventions of the Court interpreting the Dublin system. The Court confirmed its case law enhancing the prescriptiveness of procedural rights awarded to asylum seekers subject to transfer decisions, touching upon the rights to information and to be heard in take-back procedures. At the same time, the judges adopted a very conservative approach over possible rebuttals of the principle of mutual trust: national courts cannot rely on the divergence of assessments of asylum seekers’ protection needs between Member States to annul a transfer decision, even when such divergences concern the refoulement risks of the return to their country of origin. Ministero dell’Interno is symptomatic of a settled approach of the CJEU in its Dublin case law: the reliance on statutory interpretation when touching upon fundamental rights, and the envision of mutual trust as the fundamental premiss governing the system. The Court case law is presented vis-à-vis the recent adoption of the Asylum and Migration Management Regulation replacing the Dublin III Regulation. With this judgment, the Court provided useful insight into its future position on the soon-to-be-implemented new responsibility-sharing mechanism.

지적장애인 피의자 가족구성원의 형사절차 참여경험에 관한 연구

The objective of this study is to provide empirical evidence to support the development of practical interventions by examining the experiences of family members of suspects with intellectual disabilities within the criminal justice system. In-depth interviews were conducted with five family members who have participated in the criminal justice process involving an adult suspect with intellectual disabilities. The inductive analysis, of the qualitative data resulted in the identification of 18 meaning units, 7 subcategories, and 3 primary categories through thematic analysis. The three core categories identified were: The first category is 'Involvement in criminal incidents due to the characteristics of the person with intellectual disabilities,' The second category is 'Experiencing exclusion during the judicial process,' The third category is 'Shouldering the burden of dual responsibilities in resolving the incident and caregiving as a family member of a suspect with intellectual disabilities.' In light of these findings, we have proposed improvements to effectively safeguard the procedural rights of suspects with intellectual disabilities and alleviate the caregiving burden on family members.

"FUQAROLIK SUD ISHLARINI YURITISH PRINSIPLARINI TAKOMILLASHTIRISH MASALALARI "

" This article provides a scientific and theoretical analysis of the principles of civil proceedings and issues of their improvement. It analyzes the views of legal scholars on the concept of the principle of legality in civil proceedings and its significance and develops a scientific definition of the concept of this principle. In particular, the principle of free law, which initiates and drives the civil process, as well as the principle of adversarial proceedings of the parties and their role in judicial practice, the opinions of legal scholars in this regard are scientifically and theoretically analyzed, and the civil procedural legislation of foreign countries is comparatively studied, scientific and theoretical conclusions and proposals are given. In the article, the author pays special attention to the issue of non-abuse of procedural rights and identifies its specific features. In addition, the manifestations of abuse of procedural rights were analyzed, scientific and theoretical concepts in this regard were studied, and a scientific definition of this concept was developed. At the same time, the principles of civil proceedings in the constitutions of foreign countries, including Japan, Greece, Bulgaria, Germany, as well as the civil procedural legislation of Russia, Estonia, Armenia, Ukraine, Belarus, Kazakhstan, and the Kyrgyz Republic, have been studied in comparison with national civil procedural legislation. Scientific and theoretical conclusions, proposals, and recommendations aimed at improving the principles of civil proceedings have been put forward. "

State Aid control in search of legitimacy: still a (long?) way to go. Reflections on T-486/18 RENV – Danske Slagtermestre v European Commission

In Danske Slagtermestre v European Commission, the General Court annulled the Commission decision finding that no State Aid was involved in the 2013 Danish reform on wastewater treatment contributions. The Court addressed two key issues: the violation of the principle of good administration (impartiality) in State Aid investigations and, on substance, the interpretation of the 'Notion of Aid' in cases involving public infrastructures. While the latter is a more typical (and technical) 'State Aid issue', related to the still-blurred boundaries of the 'Notion of Aid', the focus on impartiality is rather unconventional. The Court emphasized the importance of an unbiased handling of State Aid cases, as impartiality ensures equality of treatment, 'which is at the heart of the EU'. However, this promising statement has not been followed by an explicit overruling of the existing case law, which only offers a limited protection for third-party rights in State Aid procedures. As for the notion of State Aid, the Court examined the measure under the 'market economy operator principle', which it deemed applicable in light of a recent extensive interpretation by the Court of Justice. The ruling contains contentious statements, confirming the persistence of legitimacy issues in State Aid control, which should not be underestimated given the growing political dissatisfaction with Article 107 TFEU.

The legal status of corruption whistleblowers as participants in criminal proceedings: certain legislative gaps and prospects for overcoming them

The article examines the problematic issues of legal regulation of the status of corruption whistleblowers as independent participants in criminal proceedings, reveals the main terminological inconsistencies of normative legal acts regarding the formation of the «whistleblower» category, distinguishes the legal status of a corruption whistleblower from the status of an applicant, victim and witness, analyzes the main legislative gaps and proposes ways of improving the national legislation on granting whistleblowers with separate procedural rights and obligations at various stages of the criminal process. Taking into account the prospects for the implementation of European standards for the prevention of corruption and the need for the effective functioning of the institute of whistleblowers in Ukraine, it is proposed to: introduce at the legislative level a single (unified) definition of a whistleblower, in particular, a whistleblower should be considered a natural person who, in the presence of the belief that the information is reliable, reported possible facts corruption or corruption-related offenses committed by another person and not to establish a list of types of activities for acquiring whistleblower status, since tying the whistleblower status to specific types of activities may create unnecessary obstacles in practice when the question arises of a person’s fulfillment of this mandatory conditions; distinguish at the legislative level the legal status of the whistleblower from the applicant, the victim and the witness; to separate the concept of «rights» of whistleblowers from their «guarantees»; to ensure the whistleblower’s participation in investigative (procedural) actions as an independent participant in criminal proceedings; introduce a separate procedural decision regarding the recognition or refusal to recognize a person as a corruption whistleblower; to detail and simplify the procedure for paying the reward to the whistleblower; to ensure the payment of remuneration according to the proportional method with the possibility of involving other sources of funds, in addition to the state; to borrow the experience of foreign countries on issues of establishing certain types of punishments for prosecution of whistleblowers and on issues of developing special laws aimed at protecting and supporting corruption whistleblowers.

Rights of nature and non-use of nature for environmental protection in Antarctica

ABSTRACT This article examines whether and to what extent a traditional international law regime can step in for the rights of nature, which are not yet recognised at the international level. It proceeds by analysing whether non-use measures in the Antarctic Treaty System (ATS), such as the suspension of fishing within marine protected areas, the moratorium on mining, and the restrictions to entry into Antarctic Specially Protected Areas, reflect the aims and values of the rights of nature and contribute to achieving the content of the rights of nature’s substantive and procedural rights. The focus on non-use measures is important as this is the type of conservation and management measures that, at least on paper, provide the highest possible form of environmental protection; use is prohibited and nature is hence given priority. This article finds that the aims of the non-use measures examined are quite reflective of fundamental elements of the rights of nature, but that ecocentric values are often accompanied by anthropocentric ones, especially in the older instruments. When it comes to substantive rights, while non-use measures adopted under the ATS have the potential to protect elements of nature and ensure that they can continue to exist and fulfil ecological functions, important issues remain, in particular exceptions and the limited material scope of non-use measures. Most problematic are procedural rights. While some noteworthy procedures enable a variety of interests to be represented and some checks and balances exist to promote compliance with obligations, States closely control key decision-making stages. In particular, the adoption of new non-use measures through consensus places the bar very high for their potential expansion. While non-use measures cannot replace the rights of nature, some best practices reflective of more ecocentric values and rights are noted, which could be further developed within the ATS or used in other regimes’ modifications or development.

“Democratizing punishment”? Federal prosecutors’ new anticorruption project and the Brazilian penal field

ABSTRACT Since the 2000s, Brazilian federal prosecutors increasingly worked on corruption and white-collar crime (WCC) cases. While scholars have focused on how this engagement impacted politics, few works examine its implications for the country’s penal field. In the context of the mass incarceration of working-class and racialized groups, does prosecutors’ focus on the powerful promote penal change or continuity? Using this issue’s concepts of professional trajectories, professional projects, and contexts, I investigate how prosecutors built their expertise on criminal law, how this process shaped their penal discourses and practices, and how these contrast with the country’s penal context. Empirically, I analyze prosecutors’ CVs and discourses on an anti-corruption bill. I find that prosecutors invested heavily in academic specialization and international training in criminal law, focusing on WCC. With this move, they created a new professional project, which breaks with traditional racialized tough-on-crime discourses and proposes measures to increase accountability for the powerful, seeking to “democratize punishment.” However, some of these discourses and practices reproduce traditional punitive approaches embedded in the Brazilian penal context, such as penal populism and the disavowal of procedural rights. Although prosecutors built their professional trajectories around corruption and WCC, their professional project may incidentally harm marginalized defendants.

Censoring Speech in Democracies: South Korea

In South Korea, both conservatives and progressives restrict allegedly harmful speech, claiming to protect democracy and individual rights. Conservatives restrict "pro-communist" and pro-LGBT speech, while progressives target racist slurs and especially "far-right" speech supporting Japanese colonial (1910–1945) or anti-communist (1948–1987) regimes. These controversial restrictions contribute to a global debate among proponents of liberal-democratic values ("liberals" or "democrats") about the relationship between procedural and substantive rights and norms (PRN, SRN). Procedural refers to formal-legal rights (e. g., free speech) and non-legal norms (impartial reporting) associated with fair procedures. Substantive refers to rights and norms associated with fair substantive outcomes, such as nondiscrimination and equal dignity. Proponents of a zero-sum perspective, including victim-rights and militant- democracy advocates, believe illiberal actors exploit PRN to harm vulnerable groups and/or democratic institutions. Therefore, liberal procedural rights (e. g., free speech) and norms (objectivity) should not be equally applied to harmful speakers. Conversely, positive-sum advocates argue that uniformly respecting procedural rights and norms for all persons (including allegedly illiberal ones) better protects everyone's overall rights (procedural and substantive). Despite South Korea's transition to civilian-led democracy, self-identified democrats, both conservative and progressive, continue to restrict PRN for certain speakers. Other democrats oppose such selective, and often arbitrary, restrictions. The ongoing contestation among zero- and positive-sum liberals shapes the meaning and direction of liberal democracy in South Korea.

Remote Criminal Proceedings in EU Law from the Perspective of Strengthening the Rights of the Accused

Abstract This article analyses remote proceedings as a new form of participation in the criminal process in the context of EU law, with particular reference to the question of whether remote participation could be considered (and established) as part of the defendant’s right to be present at their trial. The question of how technological developments may be used to strengthen the rights of the accused is also considered. The author explores the EU legal framework promoting the use of video conferencing tools as innovative technologies, while also considering the perspective that sees them as representing a practical risk to the observance of procedural rights. The requirement that a videoconference hearing must meet the standards established by the European Court of Human Rights is identified. Following this, the question of whether a videoconference hearing can become an instrument that balances the protection of the rights of the accused with progressive e-justice digitalisation processes when adequately regulated in EU law is addressed. The article concludes with proposals relating to the measures that need to be implemented to effectively protect the rights of the accused, along with steps that should be taken to amend the relevant legislation.

Remarks on access to justice and the digital divide from the aspect of procedural law

The COVID-19 pandemic has proved that the use of electronic means can significantly facilitate effective, physical access to justice and simplify the initiation and conduct of court proceedings; however, the phenomenon of digital divide has entered into centre of attention as well. The current paper aims to give a summary on the concept of digital divide in the context of procedural rights, primarily the right to an efficient access to justice. It will be examined, how digital solutions can be integrated into the conceptual and legislative framework of access to justice so that they can contribute to the enhancement of efficiency, while preventing the marginalization of the most disadvantaged social groups and the “elitization” of justice systems. The analysis is based on synthesis of international standards, jurisprudence, recommendations, and secondary literature. This way the results can provide an impetus for developing new solutions in this area to ensure the efficient access to justice for all even in the context of unprecedented technological, social and economic challenges.

Recognizing international protection. How institutional arrangements affect asylum decisions

ABSTRACT More than 70 years after the adoption of the United Nations’ 1951 Refugee Convention, there still exists large cross-country differences in terms of protection recognition. In this article, we argue that cross-country differences are likely due to different opportunity structures: because international protection stems from the administrative-legal procedures through which claims are examined, we investigate the institutional arrangements that make up Refugee Status Determination systems. We collect original data covering 14 European countries, Canada and South Africa over the years 2000–2020 and test the relationship between institutional arrangements and recognition rates. We find that the actors involved in the decision-making process matter: a plurality of actors likely leads to fairer outcomes, depending on which procedure or stage these actors are involved. Importantly, we report that extensive procedural rights, and guarantee of their enjoyment on the part of asylum seekers, significantly correlate with asylum seekers’ chances to see their claim recognized.

The Right of Parties in Criminal Proceedings to “Be Heard” in Court Debates

The guarantee of the implementation of the constitutional right to judicial protection in criminal proceedings is provided by a number of procedural rights of participants in criminal proceedings. These include the right of the parties to be “heard” by the court, which is most clearly manifested at the stage of judicial debate, which is interrelated with the principle of competitiveness and equality of the parties. Having no separate consolidation in the criminal procedure legislation, this right often remains without due attention of the courts, which is negatively reflected in legal practice in the form of judicial errors, entailing the cancellation of the sentence. Focusing on the right of the parties to “be heard” in court debates, clarifying its procedural role and significance should lead to strengthening guarantees of the rights of participants in the process to exercise the right to judicial protection in adversarial proceedings. Based on the analysis of the positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, procedural doctrine, judicial practice and certain aspects of judicial communication, readers are invited to look at the right of the parties to “be heard” in court debates as an important element of the adversarial nature of the parties in court debates.

The Discursive Nature of the Prosecution and Defense

Introduction: the adversarial nature and equality of the parties are defined as the main principles of Russian criminal procedure (Part 3 of Article 123 of the Constitution of the Russian Federation, Article 15 of the Code of Criminal Procedure of the Russian Federation). The Constitutional Court of the Russian Federation defines the equality of the parties as the basis for the formation of the necessary guarantee of defense and fair trial of the case and states that the latter is impossible if the court has not assessed on the merits all the arguments and circumstances presented during the trial by its parties on the part of the prosecution and defense and has not provided them with equal procedural rights. The paper deals with the study of certain aspects of the balance of such categories as legal liability, criminal liability, prosecution, and defense. Purpose: to analyze the trends formed in the doctrine related to the resolution of urgent problems in terms of establishing the correlation of such concepts: legal liability, criminal responsibility, criminal procedural responsibility, prosecution, and defense. Methods: the general scientific dialectical method of cognition, a systematic approach, as well as the general scientific (deduction and induction) and specific scientific methods (logical and legal analysis and synthesis). Results: the current issues of the theory and law enforcement practice regarding the nature, types, and structure of prosecution and defense in criminal procedure are investigated. Conclusions: despite the ongoing discussions regarding the nature of the prosecution and defense in court procedure, a significant number of issues remain unresolved and require further detailed scientific analysis. First of all, the study of the defense function, which contributes to the realization of the rights granted to the accused, should certainly contribute to the development of new theoretical approaches and legislative innovations.

ABOUT THE PROBLEMS OF PROVIDING AN INTERPRETER TO INDIVIDUAL PARTICIPANTS IN THE VERIFICATION OF A CRIME REPORT

Verification of a crime report is a very important step in the criminal case in the future. However, the regulation of procedural legislation on the participation of an interpreter at this stage is rather weak. In practice, an interpreter is invited if the applicant, the person against whom the crime report is being checked, and in some cases other participants in the check do not speak the language of the proceedings. The current criminal procedure legislation does not regulate the procedural powers of an interpreter when considering a crime report. As a result, it is not possible to fully protect the procedural rights of individual participants in the pre-investigation check. With this in mind, the authors of the work conclude that there is a need for procedural regulation of the translator's participation in verifying a crime report and synchronizing the prescriptions of procedural and non-procedural legislation.

Знакомиться нельзя копировать, или История одной таможенной проверки

Although administrative procedures of customs control are regulated to a great extent, a review of the judicial practice provides evidence of violations of rights of verified persons during a customs inspection. The article uses the example of a specific legal case to review problems of protection of procedural rights of a non-public subject in customs relations. The author studies challenging problems of protection of rights and legal interests of persons audited by customs authorities based on materials of Ruling of the Constitutional Court of the Russian Federation No. 22-П of April 28, 2023. The paper reaches a conclusion about discretion of customs and judicial authorities not in favor of non-public subjects, which eventually is able to limit basic constitutional rights of citizens and organizations, in particular, the right to review documents and materials that directly relate to rights and freedoms of an individual in the interaction with public government authorities (Clause 2, Article 24 of the Constitution of the Russian Federation). The author assesses the position of customs and judicial authorities from the standpoint of mutual trust between government authorities and audited persons, fulfillment of legal expectations of an audited person, predictability of decisions and actions of government authorities, their responsibility for such decisions and actions.

The Influence of Cognitive Distortions on the Administration of Justice in Civil and Economic Cases

Subjects of evidentiary activity when assessing evidence in civil and economic disputes, like any person, are faced with certain biases (distortions). One of these biases is cognitive distortions. Purpose of the work: based on the analysis of doctrinal sources in the field of psychology and law, to identify what distortions the subjects of procedural relations encounter and how they influence the legal decision made. Brief conclusions. The author identified the following ten cognitive distortions that influence the decisions made by participants in the process: “confirmation bias”, “extreme decision aversion”, “black and white thinking”, “projective distortion”, “framing”, “priming effect”, “anchor heuristic”, “planning fallacy”, “availability heuristic”, “hindsight”. Accordingly, when assessing evidence and exercising procedural rights, you should analyze your actions and the activities of other entities for the impact of the indicated distortions on them. This will lead to improvement of the procedure for adopting a legal and justified judicial act.

THE DESTRUCTION OF EVIDENCE SEARCHED IN A SEARCH AND SEIZURE PROCEDURE

The article analyses the act of destroying evidence searched in a search and seizure procedure, and weather or not such an act is incriminated or should be incriminated if committed by the author of the original crime. The problem was raised as the need to respect the defendant’s privilege against self-incrimination extends to the right not to provide evidence against oneself. Therefore, the article is set to establish the correlation between perpetrating such an act and exercising a procedural right, form a criminal law, procedural law and human rights point of view.

Chinese Modernization of the Rule of Law: Governance Philosophy, Judicial Logic and Practice Review

The socialist rule of law with Chinese characteristics contains a wealth of practical wisdom in governance, and is a scientific methodology for our comprehensive construction of a socialist country under the rule of law. The Party's 20th National Congress deepened the understanding of the regularity of socialist rule of law construction, and expanded and innovated the practical dimension of socialist rule of law thought with Chinese characteristics. The socialist rule of law with Chinese characteristics is not a simple construction of the rule of law theory, but a two-way deepening and sublimation of the rule of law theory and the rule of law practice. China's rapid economic development and long-term social stability have broken the "Huntington paradox", which mainly relies on the following two aspects of the rule of law practice. The first is China's unique grass-roots governance model, which is typically represented by Fengqiao experience and Pujiang experience. Fengqiao experience and Pujiang experience are combined fists, closed-loop measures to solve grassroots conflicts and disputes, and typical experiences in the process of China's rule of law practice. The second is "strict justice" and "fair justice". In judicial practice, it is necessary for judicial justice to guarantee the procedural rights of litigants. As two basic practical concepts in the socialist rule of law with Chinese characteristics, the concept of grassroots governance and the concept of justice enrich the practical wisdom of the construction of the rule of law in our country and help the transformation of our social governance model.

The national doctrine of good faith in civil proceedings: a review of the main scientific works

The article examines the scientific works of national scholars on civil procedure and the practice of justice in civil cases with a view to understanding the evolutionary path of formation and development of national legal thought and legislation on such a legal phenomenon as the principle of good faith. The author analyzes the issues of good faith and misconduct in procedure, abuse of procedural rights, civil procedural liability and procedural coercion, and procedural duties as related legal categories of our study. This topic is insufficiently developed, as domestic proceduralists mainly focus their efforts on the problem of abuse of procedural rights in civil proceedings, with fragmentary attention to the issue of procedural good faith. The article examines the main works of modern Ukrainian researchers who have studied the issues of the principle of good faith in its various manifestations, which, in our opinion, are conceptually complete and serve the purposes of studying the chosen subject matter. The author summarizes that a number of researchers consider good faith through the interaction of the court and the parties in civil proceedings, characterize it as a comprehensive, evaluative legal category which distinguishes between lawful procedural behavior and abuse of procedural rights, and draw attention to the need for a legislative definition of the definition and criteria for abuse of law. The author examines related legal categories which allow identifying possible forms of abuse of procedural rights, classifies them and assesses the legal consequences of their exercise. The author proposes measures to encourage participants to the court proceedings to behave in good faith during the consideration and resolution of a civil case. The author determines that good faith in civil proceedings is of integrative importance and may include similar legal categories: prohibition of abuse of procedural rights; requirement of good faith fulfillment of procedural obligations; procedural estoppel or prohibition of other unlawful obstacles to the administration of justice.