Defense Of Rights Research Articles

Beyond mutual recognition: the rules of joint investigation teams

The “Joint Investigation Teams” (JITs) are a new and effective tool for cooperation in criminal matters, based on a “spirit of solidarity” in carrying out cross-borders criminal investigations: synergistic forms of cooperation between both judicial andpolice authorities of the different Member States (or even non-EU Countries, if there are legal bases), which coordinate their actions and share the results obtained. JITs constitute an unprecedented form of judicial assistance: “non-rogatorial”, “hybrid”, “operational” and “self-sufficient” from an organizational point of view. Based on an agreement between competent authorities – both judicial (judges, prosecutors, investigative judges) and law enforcement – of two or more States, JITs are established for a limited duration and for a specific purpose, to carry out criminal investigation in one or more of the involved States. Despite the many advantages, the critical issues are not few: the balance between fight against international crime and right of defense; the lack of proper measures to approximate EU Member State’s criminal law and the resulting problem of admissibility of evidence collected abroad in the national trial; the interactions with other new cooperation tools, (MAE, EIO, etc.), with respect to which JITs can often act as an initial mechanism for an investigative activity that can be developed more widely.

Prevenzione e percezione di fenomeni corruttivi: istanze di difesa sociale e crisi del garantismo processuale penale

Constitutions and the International Charters of Rights are concerned to ensure the judicial verification of the unlawfulness of facts in compliance with the inalienable rights of the person and the presumption of innocence. Today, modern criminal procedural law, which has always been conditioned by different legal traditions, by different political-constitutional approaches and by the current "criminal emergencies", suffers further stress resulting from political and media communication on topics such as organized crime, terrorism and corruption, thus diverting the analysis from objective data and basing the discussion on questionable and instrumental evaluations. In this context, the demands of justice do not coincide with those of legality, but with those of social defense. In Italy, the disproportionate increase in anti-corruption measures has profoundly changed the procedural means of their assessment, with a clear danger for the rights of suspects and/or accused persons and with a consequent dangerous inquisitorial drift. At the international level, however, new and better measures are being tested. The long-term goal is to identify objective criteria in order to measure corruption in each country, using real-time data. Only objective indicators will make it possibleto conduct investigations that "measure" the corruption in countries in order to initiate more incisive actions to combat it.

Zooming In: Courtrooms and Defendants' Rights during the COVID-19 Pandemic.

COVID-19 placed unprecedented strains on criminal court systems, necessitating moves to digital platforms with little preparation. To study the influence of virtual courtrooms on defendant rights (e.g. effective assistance of counsel, speedy and public trials, among others), we qualitatively analyzed the journals of 44 student court watchers, documenting their observations of online court proceedings in a single state in the Northeastern United States. We find that virtual courtrooms are highly disorganized and fraught with technical malfunctions, compromising defendants’ appearances online, and impeding their ability to confer with counsel and address the court. Defendants with less access to digital platforms and incarcerated individuals are disproportionately impacted. Further, court actors tend to treat virtual court in a casual manner and are often unprepared to litigate cases, resulting in undue delays, and extended periods of pre-trial detention. Policy recommendations to improve technologies and administrative procedures are discussed.

Spanish criminal procedure examined: successes, opportunities and failures in the adaptation to EU requirements

This paper examines at what stage of the process of adaptation to European requirements the system of criminal justice in Spain finds itself. First, it focuses on its major achievements regarding the rights of suspects and accused (in particular, the reinforcement of the following guarantees: the right to information, the right to interpretation and translation, the right to legal assistance, the right to legal aid and personal data protection rules) as well as the protection of victims, as reinforced by the promotion of restorative justice. Secondly, the author reflects on areas requiring improvement on which the Spanish legislator might focus its attention in the short term: the protection of children who are accused in criminal proceedings, the legal treatment of internal complaints (and whistleblowers) and, finally, the presumption of innocence. Thirdly, it highlights some failures in the Spanish process of adaptation to European requirements: namely, delays, non-compliance with EU obligations and the lack of resources needed to implement required changes.

Advocacy Problems In Virtual Criminal Trials

The Coronavirus Disease (Covid-19) pandemic has caused criminal case trials to be held virtually. There are objections from advocates regarding the virtual trial of criminal cases. Advocates also question the guarantee of the fulfillment of the right to a fair trial. The purpose of this study was to determine and examine the implementation of advocacy for defendants by advocates in virtual criminal case trials and the obstacles faced about the implementation of advocacy for defendants by advocates in virtual criminal case trials. The approach used in this research is the legal approach. This research data collection technique was carried out through conventional and online literature searches. The data analysis technique used in this study is qualitative because the data is presented in a narrative-descriptive manner. The results showed that the advocate for the defendant was intended to provide legal assistance, confront and provide instructions to the defendant regarding the steps and efforts that must be taken while in front of the trial, and assist the defendant in acting. This of course will be difficult to obtain if the advocate cannot accompany the defendant directly during the virtual trial. In the end, the fulfillment of the defendant's rights in examining cases in court will be neglected. The obstacles faced by advocates in assisting defendants during online criminal case trials are the limited courtroom that has a teleconference device, unstable internet network that can even be disconnected, unclear timing of the trial, limited communication and coordination between the defendant and the advocate due to the defendant being in the office. correctional institutions or state detention centers, access to assistance by advocates for defendants also cannot be as flexible as a direct trial before a court, this will certainly affect the overall evidentiary process.

Advocacy Problems In Virtual Criminal Trials

The Coronavirus Disease (Covid-19) pandemic has caused criminal case trials to be held virtually. There are objections from advocates regarding the virtual trial of criminal cases. Advocates also question the guarantee of the fulfillment of the right to a fair trial. The purpose of this study was to determine and examine the implementation of advocacy for defendants by advocates in virtual criminal case trials and the obstacles faced about the implementation of advocacy for defendants by advocates in virtual criminal case trials. The approach used in this research is the legal approach. This research data collection technique was carried out through conventional and online literature searches. The data analysis technique used in this study is qualitative because the data is presented in a narrative-descriptive manner. The results showed that the advocate for the defendant was intended to provide legal assistance, confront and provide instructions to the defendant regarding the steps and efforts that must be taken while in front of the trial, and assist the defendant in acting. This of course will be difficult to obtain if the advocate cannot accompany the defendant directly during the virtual trial. In the end, the fulfillment of the defendant's rights in examining cases in court will be neglected. The obstacles faced by advocates in assisting defendants during online criminal case trials are the limited courtroom that has a teleconference device, unstable internet network that can even be disconnected, unclear timing of the trial, limited communication and coordination between the defendant and the advocate due to the defendant being in the office. correctional institutions or state detention centers, access to assistance by advocates for defendants also cannot be as flexible as a direct trial before a court, this will certainly affect the overall evidentiary process.

Analysis Of The Implementation Of The Non-Conviction-Based Concept In The Practice Of Asset Recovery Of Money Laundering Criminal Act In Indonesia From The Perspective Of Presumption Of Innocence

Purpose: This research aims to analyze the discourse on applying the non-conviction-based concept in the practice of restoring money laundering assets in Indonesia from the perspective of the presumption of innocence. Methodology: In this research, the method used was normative juridical using statutory, conceptual, and historical approaches. Results: The research results present a concept of the importance of the presumption of innocence and protection of the suspect's property before they are stated or convicted in court. Given the non-conviction-based concept in the assets recovery practice of money laundering crime, it is a mechanism for seizing state assets that criminals have taken, and it is possible to confiscate them again, even though the initial criminal act is not yet known for certain guilt so that it has the potential to castrate the suspect's human rights. Applications of this study: This article explains the importance of safeguarding the presumption of innocence and protecting the property rights of suspects. It is crucial to be used as a reference considering that the criminal procedural law system in effect in Indonesia is also inadequate to apply this concept. Thus, if this concept will be applied in the future, this study can be a reference in terms of drafting related regulations to safeguard against the presumption of innocence and the rights of suspects. Novelty/Originality of this study: The non-conviction-based concept in the asset recovery practice of money laundering crime is new. Therefore, the research presents to analyze whether the concept is under the existing legal system in Indonesia.

Analysis of Anticipatory Breach and Unsafe Right of Defense

The unsafe right of defense is the system of the civil law system, and the anticipatory breach system is a unique system developed by the British and American law departments according to the jurisprudence. Both institutions are stipulated in the Civil Code, issued in 2020. The establishment of the unsafe right of defense system originated from the European law system. However, the establishment of the anticipatory breach system originated from the standard law system. The two are to reduce the losses caused by one party's default to the other party. At present, countries have introduced both systems, such as the introduction of France and Germany and the anticipatory breach system in the United States. Both institutions are of great practical significance in civil Law.

The Protection of Age-related Vulnerable Persons in Criminal Proceedings under German Law – An Examination Measured Against the European Guidelines

Population ageing is a phenomenon that affects our societies, with both the number and proportion of older people growing across Europe. This impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance, in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general. Those needs have been identified by the European Union. On 27 November 2013, the Commission adopted a Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.1 The aim of the Recommendation is to encourage Member States to strengthen the procedural rights of all suspects or accused persons who are not able to understand and effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities (‘vulnerable persons’). On 27 May 2021, the Council of the European Union invited the Member States to ensure the full implementation of the existing provisions.2 Consideration is being given to whether further action should be taken. This article assesses the extent to which the existing German criminal procedure law currently meets the standards for protecting older suspects and accused persons identified by the Recommendation of the Commission. By establishing minimum rules on the protection of procedural rights of suspects or accused persons in this field, the trust of Member States in criminal justice systems of other Member States can be strengthened and, thus, mutual recognition of decisions in criminal matters can be improved. In order to achieve the establishment of minimum rules, it is necessary to create a common understanding of the systems of the other Member States, which this article seeks to achieve. It also intends to provide insight into the German system that would be needed to decide, together with a consideration of the systems of the other Member States, whether further legislative action at the level of the European Union, in particular in the form of a Directive, is required.

Observance of the rights of suspects and accused during transportation in the context of modernization of special vehicles

Abstract: The subject of the study is the specifics of the transportation of suspects and accused in the Russian Federation. The object of the study is the conditions of detention and transportation of citizens in specialized cars. The authors consider in detail such aspects of the topic as the features presented in international practice and in our country to the requirements for these cars. Particular attention is paid to what complaints are sent by suspects and accused about the conditions of their detention, as well as at the time of movement in specialized vehicles. The paper presents the basic requirements for special vehicles designed to transport suspects and accused. В The main conclusions of this study are the minimization of the violations indicated in the article, while improving Russian legislation, striving in this direction to the norms of international law. A special contribution of the authors of the research topic is a practical overview of the main violations of the rights of suspects or accused. The novelty of the research lies in the systematization of the basic requirements for detention in temporary detention facilities. This scientific work can be considered as a set of measures to improve the content of these persons. The main approaches in this work can be used for a set of measures to prevent such violations against the individual.

Fortschritt in der Sackgasse? Von negativer Individualfreiheit zu funktionaler Fremdbestimmung

In his contribution, Hildebrand seeks to encourage a critical comparison with the traditional Islamic culture. At the beginning he describes the development and understanding of the prevailing concept of freedom in the West. In contrast to ancient ideas, freedom in modern Europe and North America was initially understood as a negative individual right of defense against the authorities. The French Revolution of 1789 resulted in the propagation of an ideal of equality, among other things, which ultimately led to the development of the ideal of the welfare state in Europe in an increasingly pronounced form. While it was initially about fighting social misery, over time this developed into an individual right to care and increasingly complex forms of participation emerged. According to the author, the welfare state became a state principle that governs all state activities. After the 1968 revolution, and at the latest since the 1970s, the concept of freedom has been given an additional important component through the idea of ever-advancing emancipation, a never-ending fight against all forms of discrimination, and the propagation of minority rights. The initially dominant understanding of freedom as a negative right to defend oneself became a positive, participatory understanding. The democracies of modern times do not run the risk of being overthrown by revolutions, but there is a risk of a creeping erosion of the institutions from which the democratic spirit threatens to dissipate. In his article, Daniel Hildebrand makes it clear how the ideas of progress, freedom and equality that emerged from the Enlightenment are ultimately reversed, in that the role of the state is constantly being strengthened and society is being permeated internally by the state. This results, among other things, from the fact that there is an inner contradiction between freedom and equality. The idea of a linear progression or an ever-advancing emancipation threatens to lead to a reversal into the absurd.

A culpabilidade como pressuposto do ilícito penal: considerações sobre a dissolução das fronteiras entre o ilícito e a culpabilidade

The present article intends to argue the normative correctness of the strict separation between the wrongdoing and the culpability. The arguments that demand separation are critically analyzed, especially those based on: a) the perspective of the offended and as also on his right of defense in relation of a non-culpable offense; b) the necessity to punish the accomplice of a typical and illicit act (which would not be achieved with an intrinsically culpable wrongdoing); and c) the need to ensure an objective reference object for the mistake of law. Then, based on nomotheoretical premises (= only those who have the competence to do so can argue the norm; the extent of the behavior’s norm and guarantee’s norm are distinguished etc.) and, above all, with a view to the specific function of Criminal Law (considered, here, as the protection of the norm and the reaction to the denial of its validity), it is argued that there are good reasons for the dissolution of the boundaries between wrongdoing and culpability, with consequences particularly relevant to the level of “dolus” and mistake, which are now examined in accordance with the responsibility principle

Between State Aid, Trade and Antitrust: The Mixed Procedural Heritage of the Foreign Subsidies Regulation and the Overarching Principle of Non- Discrimination

The FSR intends to fill a regulatory gap between trade law, State aid and antitrust law, and achieves this through a unique blend of familiar concepts and rules, drawing from the rich legal traditions of the EU State aid, antitrust, and trade defense regimes. This legal inheritance can be observed throughout the FSR’s procedural framework, including the structure of its review procedures, the Commission’s investigative powers, and the rights of defence of undertakings. Given its legacy, there will be a continuing dialogue between the FSR and these other regulatory systems, possibly with the FSR exerting its own influence, such as on due process rights under the State aid regime.

Systematization of property claims in civil law

The article deals with the problem of determining the list of real actions that could be taken to improve civil legislation and develop judicial practice. The main research method is comparative law. The article analyzes the civil codes of foreign countries on issues of property law protection, and also considers tort actions in defense of rights to things in common law. Attention is also paid to the historical development of the norms on the protection of property rights, starting from Roman private law. On the basis of historical analysis, a periodization of the development of ideas about real actions in civil law is proposed. On the basis of historical and comparative legal research, a system of real actions for Russian civil law de lege ferenda is proposed. The system of real actions includes five of its varieties and consists of the following methods of protection: a vindication action, a negatory action, an action for the recognition of a property right, an action for the acquisition of a property right, an action for the termination of a property right. At the same time, the problem of systematization of property actions remained unexplored for a long time due to the universal understanding of a negatory action. The rejection of such an interpretation of the negatory action allows us to take a new step and develop the revolutionary ideas of the pandektists in modern law.

Vulnerabilidade de refugiados venezuelanos durante a pandemia: atuação de organizações da sociedade civil

It deals with the development of actions in favor of Venezuelan refugees by civil society organizations during the coronavirus pandemic in Brazil. It aims to identify how civil society develops actions to ensure a core of minimum survival conditions for Venezuelan refugees.The method of qualitative and exploratory analysis was adopted, in which bibliographic and doc-umentary sources are used. The research was devel-oped with the aim of describing the condition of vul-nerability that the refugee experiences; then, the im-pacts that the pandemic caused on Venezuelan refu-gees and the state action in the development of pub-lic policies are demonstrated; Finally, the role of civil society organizations in the elaboration of strategies so that refugees could have access to food, housing, emotional support and defense of rights was dis-cussed. It is concluded that the participation of civil society in the elaboration of actions was fundamental to support Venezuelan refugees during the corona-virus pandemic. Refugees make up a group of vulner-able people and face great difficulties in accessing health care and in realizing their rights; associated with these conditions, the lockdown directly affected the lives of these people who saw their income re-duce and had difficulties accessing public services and benefits.

A antropologia brasileira vista nos dados da ABA coletados na Pesquisa Global de Práticas Antropológicas. De uma nação imaginária à defesa de direitos

Abstract The article explores the characteristics of Brazilian anthropology identified by analyzing the response of more than 300 Brazilian anthropologists to the GSAP. Even if there is a movement towards internationalization, the data shows that majority of anthropologists in the country conduct research in Brazil and are employed by universities. The article argues that the thematic foci most often chosen are due to the anthropologist's public role in combining research with defense of rights since the 70’s. Social or cultural anthropology are the topical expertise of the majority of Brazilian anthropologists, followed by ethnology. The thematic foci most often cited are: ethnicity and social identity; urban anthropology; political anthropology; Indigenous peoples and colonialism; gender and sexuality. In a Brazilian society where democracy is not consolidated, an anthropological study rarely fails to raise a political debate, either among anthropologists, as it was the case for racial quotas or, either, confronting segments of society or government. In this sense, Brazilian anthropology’s focus on national social and political issues cannot be considered from the European or American point of view to be the same as “anthropology at home”. The voices of Anthropologists are present in the public arena and in many cases have influenced state practices.

BRIEF CONSIDERATIONS REGARDING THE RESPECT FOR THE RIGHT OF DEFENCE OF THE ACCUSED PERSON DURING CRIMINAL PROSECUTION, IN THE LIGHT OF THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS. CASE STUDY.

By the entry into force of the current Code of Criminal Procedure on 01.02.2014, the national legislator aimed to create a clear, accessible and predictable judicial system for all participants involved in a criminal proceeding, but also to place this system on the pillars of new principles in order to precisely respect human rights and fundamental freedoms.
 Its objectives have been specifically set out from the very preliminary theses of the adoption of the Code of Criminal Procedure, among which we mention that of establishing an appropriate balance between the requirements for an effective criminal proceeding and respect for the fundamental human rights of all participants in a criminal trial.
 This was a pressing need, because Romania ratified the European Convention on Human Rights (hereinafter E.C.H.R.) on 20.06.1994, introducing the obligation to respect it by the national judicial bodies, an aspect subsequently transposed into the internal legislation by adopting Article 20 of the Constitution (amended in 2003), as well as by introducing Article 1 (2) of the current Code of Criminal Procedure.
 Although the role of the European Court of Human Rights (hereinafter E.Ct.H.R.) is not defined by a court of judicial review of the decisions adopted by the national courts, not being able to modify or abolish them, it plays a subsidiary role to the national judicial systems which subsequently must verify the compatibility of internal legislation with the mandatory requirements of the European Court.
 From the content of the File on Romania, drawn up by the Strasbourg Court Registry, published in January 2021, as well as of its Report for 2020, both published on the website of this institution, it results that between 1997 (the date of the first conviction against Romania) and December 2020, a number of 1578 judgments and decisions passed against our country, and this ranks it in the top four member countries, after Turkey (convicted in 3742 cases), Russia (convicted in 2884 cases) and Italy (convicted in 2424 cases). Statistics also show that, after Romania, there are Ukraine (convicted in 1499 cases), Poland (convicted in 1197 cases), France (convicted in 1048 cases), Bulgaria (convicted in 737 cases) and Moldova (convicted in 473 cases).
 At the end of 2020, our country was convicted in 82 cases by E.Ct.H.R., and an analysis of the violated fundamental rights shows that the most common is the right to a fair trial provided for in Article 6 of E.C.H.R. (in 82 cases) which includes the right of defence of the person accused of having committed a criminal offence in its content.
 In accordance with Article 6 (2) and (3) from E.C.H.R.: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law... Everyone charged with a criminal offence has the following minimum rights: to be promptly informed of the nature and cause of the accusation against him in a language which he understands and in detail...; to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

THE FIGHT AGAINST MONEY LAUNDERING AND TERRORISM FINANCING: THE PORTUGUESE EXPERIENCE

Contextualização do tema:When it comes to investigating terrorism and, consequently, money laundering, the consideration of balancing the defence of rights and liberties becomes less stringent in the eyes of States. They tend to automatically replace community or the collective interest. It is, therefore, important to question if the weighting and balancing result from the legal text. Objetivos: One of the legal instruments is Act 83/2017, of August 18th, and we will review its regime by introducing its main measures and assessing the (dis)respect for fundamental rights. Metodologia: For the development of the research, the inductive method was used from the literature review.Resultados: The number of entities and duties leads us to conclude that States, without any doubt, cannot fight these crimes on their own. They must unite, apply measures that can produce effects in every country, but even when doing so, they need their citizens to help them in this fight; such citizens are those that deal with financing activities, those who deal with criminals themselves or even those with relation to people that have political or economic power.

Rusetis enobrivi p’olitik’a da sakartvelo t’ariel put’karadzis c’ignis — kartvelologiis tanamedrove gamoc’vevebis mixedvit /რუსეთის ენობრივი პოლიტიკა და საქართველო ტარიელ ფუტკარაძის წიგნის — „ქართველოლოგიის თანამედროვე გამოწვევების” მიხედვით/ [Language Policy of Russian Empire and Georgia according to Tariel Putkaradze’s Book — Contemporary Challenges of Kartvelology

Tarel Putkaradze was a versatile public figure and state-minded scholar, who never abandoned patriotic as well as common human values. The proposed article examines one of the poignant problems, which is the legal state of the Georgian language during the period of Georgia’s annexation by the Russian Empire, explored in Tariel Putkaradze’s monograph entitled Contemporary Challenges of Kartvelology (2019).Through well-substantiated discussion and by providing the relevant documents, the scholar demonstrates with clarity the purpose of the Russian Empire, to ban the Georgian language from the Georgian church and, first of all, from churches of Megrelia and Svaneti.In a few lines, Tariel Putkaradze offered a clear and precise description and assessment of the hostile imperial politics of Russia: “At the end of the 19th century and the beginning of the 20th, following the military conquest of the Caucasus, the officials of the Russian empire launched a meticulously elaborated language policy, pursuing the “divide and conquer” plan. By declaring some of the regional idioms of Georgians as independent languages, they tried to accomplish the linguistic and ethnic fragmentation of Georgians. The very path was maintained by the Bolsheviks. Today, the same is being accomplished by the Kremlin” (p. 26).An insidious language policy of Russia which was often accompanied by the demonstration of force and repressions against the defenders of rights of the Georgian language met appropriate resistance and confrontation on the part of the outstanding representative of the Georgian people. Many of the national problems, those of utmost importance dealt with in the book, are extremely urgent and substantial for the development of Georgia and the Georgian nation. საკვანძო სიტყვები: რუსეთის ენობრივი პოლიტიკა საქართველოში, ქართველოლოგია, ტარიელ ფუტკარაძე. Keywords: Russian language policy in Georgia, Kartvelology, Tariel Putkaradze.

Continuarea judecăţii sau restituirea cauzei la procuror? Despre consecinţele procedurale naţionale ale deciziei CJUE din cauza C-282/20 ZX

Continuarea judecăţii sau restituirea cauzei la procuror? Despre consecinţele procedurale naţionale ale deciziei CJUE din cauza C-282/20 ZX