scholarly journals Problematic issues of appealing against the decision of the investigating judge, the court on sending a person to a medical institution for a psychiatric assessment

2021 ◽  
pp. 328-334
Author(s):  
O.I. Tyshchenko
Keyword(s):  
Court Decision ◽  
Medical Institution ◽  
Criminal Proceedings ◽  
Psychiatric Assessment ◽  
Procedural Law ◽  
Legitimate Interests ◽  
Forensic Psychiatric ◽  
Constitutional Right ◽  
The Right ◽  
Judicial Protection

The article reveals the problem of appealing against the decision of the investigating judge, the court on sending a person to a medical institution for a psychiatric assessment, in particular: a) it is stated that sending a person to a medical institution for assessment is a form of restriction of his or her constitutional right to liberty, which is equivalent to detention. It is proposed to amend the Criminal Procedure Code (hereinafter – the CPC), which provides for the right to a separate appeal against a court decision on sending a person to a medical institution for assessment, decided in court before the court decision on the merits. The lack of possibility to appeal against such a court decision creates a potential danger of illegal restriction of a person’s constitutional right to liberty and security during their placement in a medical institution for the inpatient forensic psychiatric assessment (hereinafter – the IFPA), which violates the essence of the right to judicial protection; b) it is proved that the decision of the investigating judge, the court to send a person to a medical institution for the IFPA may limit not only the rights of the suspect, accused, but thus also affect the legitimate interests of others who do not have procedural status in criminal proceedings. It is determined the expediency of granting the right to appeal the said court decision to the victim and other persons whose interests it concerns; c) it is noted that the mechanism of prolongation of the term of the IFPA is not regulated in the domestic criminal procedural law, however judges continue it in the absence of a legislative basis. Therefore, it is expressed the scientific position on the rationality of appealing not only the decision of the investigating judge, but also the court’s decision to extend the term for sending a person to a medical institution for assessment. 

scholarly journals A new approach regarding to the recognition of an individual incapable

2021 ◽  
pp. 159-164
Author(s):  
I.Yu. Tatulich
Keyword(s):  
Legal Status ◽  
Court Decision ◽  
New Approach ◽  
Psychiatric Examination ◽  
Direct Participation ◽  
Civil Proceedings ◽  
Mandatory Participation ◽  
Forensic Psychiatric ◽  
The Right ◽  
Judicial Protection

The article is devoted to the analysis of the procedural order of consideration and resolution of cases related to the change of an individual’s legal status, namely - recognition of an individual incompetent. The article analyzes the updated procedure for declaring an individual incompetent. The author of the article draws attention to the fact that the legislator has expanded the range of litigants in this type of proceedings; has provided for the possibility of direct participation of the person in respect of whom the proceedings for recognition of his/ her incompetence were initiated, both in-person and his/ her participation in the case through a videoconference from the medical institution where such person is at that moment; has set the terms of the court decision on declaring an individual incompetent, for not more than two years; has granted the right to certain entities to apply for an extension of the decision declaring an individual incompetent, which may be filed no later than fifteen days before the end of two years; has granted a person who was declared incompetent the right to apply to the court with a request to cancel the court decision, etc.It is noted that the validity of a court decision declaring an individual incompetent, which is provided by law, requires certain clarifications. It is substantiated that the obligatory appointment of a forensic psychiatric examination during the consideration of the case and to confirm the request for extension of the decision validity also requires some clarification, depending on the individual’s state of disease. The author considers the views of scholars and practitioners regarding mandatory participation in the consideration of an individual’s incompetence cases and the cancellation of a court decision on such cases - a lawyer who will provide adequate judicial protection and effective civil proceedings. It is concluded that it is expedient to expand the range of entities authorized to initiate the issue of revoking a court decision declaring an individual incompetent, supplementing them with such a participant as a prosecutor, which in turn will guarantee access to court, promote fair judicial protection of rights, freedoms, and interests of the persons, making a lawful and reasonable decision.

scholarly journals THE STATE OF SCIENTIFIC RESEARCH OF LEGAL AID IN UKRAINE IN THE SCIENCE OF CRIMINAL PROCEDURE

2020 ◽  
pp. 300-308
Author(s):  
О. В. Мартовицька
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Theoretical Research ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Important Place ◽  
Procedural Law ◽  
Scientific Papers ◽  
Constitutional Right ◽  
The Right

In the article, it has been emphasized the urgency of the issue of the state of legal aid research in Ukraine in the science of criminal procedure. It has been argued that the study of any issue cannot be carried out without the use of certain methods to cover the selected issue, and developed scientific approaches to its solution. It is no exception to the rule of legal aid research in Ukraine. Emphasis has been placed on the fact that a large number of scientific papers are devoted to the study of such an integral element of the institute of legal aid in Ukraine as free legal aid. It has been determined that the institute of legal aid is repeatedly studied both at the general theoretical level and in the branch procedural law. These developments allow us to develop common approaches to determining the nature and significance of legal aid, and the procedure for its provision depending on the type of process. It has been found that the criminal procedure legislation is imperfect, and thorough theoretical research to define the concept, nature and content of the right to legal aid in criminal proceedings, the place of this institution in the national mechanism of human rights and freedoms in Ukraine, and receiving legal aid, the mechanism of realization of this constitutional right by the subjects of the process at its various stages are absent or do not take into account the current changes in the legislation governing the provision of legal aid in general and in criminal proceedings in particular. It is determined that the methodology of legal aid research in Ukraine is primarily the integrated use of methods of both empirical and theoretical knowledge, as well as general methods of research on the formation and development of legal aid in Ukraine, ensuring and implementing the right to legal aid in general and in criminal proceedings in particular. Therefore, the methodology of legal aid research in Ukraine is represented not only by a set of research methods, but also by a system of scientific developments, which should be studied with the help of these methods in order to find a new way to solve the scientific problem. And a very important place in the system of such scientific works is given to textbooks, manuals and methodical recommendations, instructions.

scholarly journals The term of the inpatient forensic psychiatric assessment and its continuation in criminal proceedings

2021 ◽  
pp. 173-185
Author(s):  
O. I. Tyshchenko
Keyword(s):  
Criminal Liability ◽  
General Term ◽  
Medical Institution ◽  
Criminal Proceedings ◽  
Psychiatric Assessment ◽  
Legislative Regulation ◽  
Forensic Psychiatric ◽  
Precautionary Measures ◽  
Forensic Psychiatric Assessment

The article discusses the problematic issues of calculating the term for placing a person in a medical institution for the purpose of conducting the inpatient forensic psychiatric assessment (hereinafter referred to as the FPA) in criminal proceedings. Based on the materials of judicial practice: 1) a wide variability of the approaches of judges is demonstrated in the determination of the term for carrying out the FPA in the resolutions (since the legislator, in part 2 of Article 509 of the Criminal Procedure Code of Ukraine (hereinafter – the CPC), indicates only the upper limit of the time period for carrying out the FPA – up to two months); 2) the decisions of judges on the prolongation of the FPA are highlighted and analyzed. The necessity of legislative regulation of prolongation of the FPA term at the level of criminal procedural legislation of Ukraine is proved. In a comparative aspect, the normative regulation of the FPA term and the procedural mechanism of its prolongation in the criminal procedural legislation of the neighboring countries – Kazakhstan, Moldova, Uzbekistan, Estonia, etc. are illustrated. At the same time, the positive experience of foreign countries was recognized as suitable for adoption in the following aspects: (a) determination of the term of the FPA in days; (b) prolongation of the FPA at the reasoned request of the expert (commission of experts); (c) prolongation of the FPA for up to 30 days. In this case, the general term of a person’s stay during one FPA cannot exceed 90 days. However, if an additional or repeated FPA is required, its term must be recalculated. Attention is focused on the fact that the results of the assessments carried out may be different, but the establishment of a reliable mental state of a person acquires particular importance when deciding whether a person is subject to criminal liability. Therefore, it is emphasized that it is inexpedient to propose legislative regulation of the term limit for conducting the FPA in relation to a specific person in one criminal proceeding. It is concluded that since the issue of sending a person to a medical institution for a psychiatric assessment is resolved in the manner prescribed for submission and consideration of applications for precautionary measures (Part 2 of Article 509 of the CPC), it is logical that the prolongation of the inpatient FPA may occur in the order of extension of detention (Article 199 of the CPC).

scholarly journals INSTRUMENTI ZAŠTITE PROCESNIH PRAVA OBRANE U ISTRAZI PREMA ZAKONU O KAZNENOM POSTUPKU BOSNE I HERCEGOVINE

2021 ◽  
Vol 37 (2) ◽  
pp. 167-187
Author(s):  
Maja Pilić ◽  
Zdravko Rajić
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Bosnia And Herzegovina ◽  
Justice System ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Constitutional Right ◽  
The Right ◽  
Judicial Protection ◽  
Procedural Rights

With the entry into force of the Criminal Procedure Code of Bosnia and Herzegovina, the roles of the prosecutor and the court have been changed significantly compared to the earlier legislation, especially in the investigative procedure. According to the existing normative framework, the role of the court in the investigation is much more passive since at this stage of the procedure the court does not control the merits of conducting the investigation. The mixed accusatorial concept of investigation as the one existing in the criminal justice system of Bosnia and Herzegovina has led to certain restrictions on the rights of the defence in investigation. Investigation is an important stage in criminal proceedings that is conducted for evidence and data collecting necessary to decide whether to file an indictment or discontinue the proceedings, as well as for evidence that can be presented at the main hearing and upon which the judgment is rendered. It is therefore necessary to ensure that a proper and lawful investigation is conducted. This means to make sure that all parties involved in the investigation, especially defence are treated in a fair manner. The right to defence is a fundamental human and constitutional right guaranteed by international conventions. The right to defence results in several individual rights enjoyed by suspects in preliminary proceedings. In order to ensure effective judicial protection of the rights of the suspects, the paper analyses the domestic criminal justice system and presents comparative legal solutions regarding the protection of procedural rights of the defence in investigation. The fundamental issues in analysing regulatory framework in Bosnia and Herzegovina are the lack of effective judicial protection of procedural rights of the defence, the absence of an effective legal remedy to conduct an investigation facilitating the principle of a fair trial for defence and the principle of equality of arms in pre-trial proceedings. In addition, the paper analyses the issue of informing the suspect of an order for investigation, since according to applicable regulations, the suspect does not even need to know about an investigation conducted against him, which is a violation of the principle of right to a fair trial.

REVIEW ON THE MONOGRAPH OF OLEKSANDR TORBAS �DISCRETION IN THE CRIMINAL PROCESS OF UKRAINE: THEORETICAL JUSTIFICATION AND PRACTICE OF IMPLEMENTATION�

2020 ◽  
Vol 10 (4) ◽  
pp. 147-150
Author(s):  
Iryna Hloviuk ◽  
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
Criminal Process ◽  
Procedural Law ◽  
Current Period ◽  
Legitimate Interests

Current period of development of the legal system of Ukraine is characterized by variability of legislation that regulates, in particular, organization of judicial system and implementation of criminal proceedings. Unfortunately, criminal procedure legislation is no exception, given how many changes and additions have been made to the Criminal Procedure Code of Ukraine since its entry into force in 2020. Undoubtedly, like any other codified legal act, CPC of Ukraine in modern conditions cannot be unchanged, given the dynamics of public relations, the provisions of international law, decisions of ECtHR and number of attempts to solve identified problems of its application. Difficulties of criminal procedural law enforcement are manifested in such an area as the use of discretion of authorities in criminal proceedings, although without it application of legislation is ineffective. At the same time, lawful discretion in criminal proceedings should not turn into its opposite � arbitrariness, which will already violate rights and legitimate interests of individuals and legal entities. In criminal proceedings, given the imperative method of legal regulation and possibility of various coercive measures, including those related to the restriction of constitutional human rights, this issue is of particular importance, given, inter alia, that prosecution�s discretion applies within non-adversarial procedure, and the CPC of Ukraine does not always provide for the possibility of appealing such decisions in court. The peer-reviewed monograph consists of four chapters, which contain 10 sections. Structuring of the monograph is logical; the author analyse problems of discretion from questions of concept, signs and limits of discretion, and then moves to the characteristic of realization of discretion by judge, prosecutor, investigator, detective. In general, without a doubt, the monograph of Torbas O. O. �Discretion in the criminal process of Ukraine: theoretical justification and practice of implementation� is relevant, complete and fundamental scientific work, has scientific and practical value. Monograph of Torbas O.O. significantly enriches criminal procedure doctrine regarding the subjects of criminal proceedings, criminal procedure decisions and other areas.

THE HUMAN RIGHTS FUNCTION OF THE JUDICIARY IN ADMINISTRATIVE PROCEEDINGS: INSTITUTIONAL AND FUNCTIONAL ASPECTS

2021 ◽  
Vol 11 (2) ◽  
pp. 205-225
Author(s):  
V.V. MOVCHAN
Keyword(s):  
Human Rights ◽  
Judicial System ◽  
System Control ◽  
Judicial Process ◽  
Public Authorities ◽  
Legitimate Interests ◽  
Constitutional Right ◽  
Court Proceedings ◽  
Administrative Proceedings ◽  
Judicial Protection

The article reveals the theoretical aspects of administrative legal proceedings, as one of the forms of the exercise of judicial power, the features and significance of the administrative judicial process in the mechanism of protecting the rights and freedoms of man and citizen, the analysis is given of the constitutional foundations of the human rights function of the judiciary, its essence and content, procedural actions. The author reveals the historical aspects of the formation and development of judicial protection in Russia, oreign experience and models of administrative justice are considered, the importance of administrative proceedings in the implementation of the human rights function of the judiciary in the Russian Federation when considering disputes with the participation of public authorities and citizens and the exercise of the rights, freedoms and legitimate interests of citizens is revealed. The author substantiates the advantages of the judicial administrative process as a procedural form of implementation of the human rights function of the judiciary and the implementation of the constitutional right to judicial protection, analyzes the reform of the judicial system of the judicial system, the creation of courts of appeal and cassation in the system of arbitration and general jurisdiction, substantiates the conclusion that the reform of the system of courts of general jurisdiction created organizational and judicial framework for the specialization of judges and court proceedings, the system of institutional intra-system control of the legality and validity of judicial acts, institutionally and functionally ensured the implementation of the human rights function of the judiciary and the availability of judicial protection in the system of courts of general jurisdiction.

scholarly journals PLACEMENT OF A PERSON IN A MEDICAL INSTITUTION IN ORDER TO CONDUCT A PSYCHIATRIC EXAMINATION: INTERNATIONAL STANDARDS AND NATIONAL REALITIES

2020 ◽  
Vol 73 (9) ◽  
pp. 2020-2025
Author(s):  
Olga I. Tyshchenko ◽  
Ivan A. Titko
Keyword(s):  
Mental Disorders ◽  
Synthesis Method ◽  
International Standards ◽  
Medical Institution ◽  
Structural Method ◽  
Sociological Research ◽  
Criminal Proceedings ◽  
Legal Method ◽  
Compliance Level ◽  
The Right

The aim: The aim of this work is to identify the compliance level of modern practice of placement of a person in a medical institution in order to conduct the FPE to international standards and legal positions of the ECHR in terms of ensuring the right to liberty and security of person; formulation of scientifically substantiated proposals on the synchronization directions of national practices with the specified international standards. Materials and methods: During the preparation of the article the following was processed: scientific research on ensuring the rights of persons suffering from mental disorders in criminal proceedings; provisions of international agreements on the provision of psychiatric care; legal positions of the ECHR on the observance of persons’ rights suffering from mental disorders (15 judgments on this topic); criminal procedural legislation of individual states; results of generalization of national law enforcement practice; the results of a survey conducted by the authors of 18 psychiatrists who practice in the field of forensic psychiatric examinations (psychiatrists working in state psychiatric clinics in Odesa, Poltava, Kharkiv were interviewed). In the process of research a set of general scientific and special methods of cognition was used (comparative-legal method, system-structural method, generalization method, method of analysis and synthesis, method of sociological research, method of expert assessments, etc.). Results: According to the research results: a) legal positions of the ECHR on the observance of the rights of persons suffering from mental disorders are identified and generalized; b) the compliance level of modern practice of placing a person in a medical institution in order to conduct the FPE with international standards and legal positions of the ECHR in terms of ensuring the right to liberty and security of person (§ 1 of Article 5 of the Convention); c) the degree of extrapolation of these positions to the activities of psychiatrists is analyzed; d) the optimal ways of solving the existing problems in the aspect of ensuring the rights of a person when placing them in a medical institution for an inpatient FPE are proposed. Conclusions: The current national practice of placing a person in a medical institution for an inpatient FPE does not fully comply with the legal positions of the ECHR in terms of ensuring the right to liberty and security of person (in particular, there are deviations from the positions of the ECHR on: determining the documentary basis for the appointment of an inpatient FPE; interaction of police and medical workers in the field of psychiatry during the detention of a person with a mental disorder).

scholarly journals Duty of Proving of a Civil Suit in Criminal Proceedings

2019 ◽  
pp. 137-144
Author(s):  
Serhii Krushynskyi
Keyword(s):  
Criminal Procedure ◽  
Active Part ◽  
Unanimous Opinion ◽  
Criminal Proceedings ◽  
Successful Performance ◽  
Property Damage ◽  
Civil Proceedings ◽  
Civil Suit ◽  
Legitimate Interests ◽  
The Right

The article is devoted to the analysis of some problematic questions related to the duty of proving of civil suit in criminal proceedings in Ukraine. In the criminal procedure doctrine there is no unanimous opinion of which subjects are required to engage into proving activities aimed at detection of civil suit circumstances in criminal proceedings. Concepts «duty of proving» and «burden of proving» are delineated by author. The position that the burden of proving is determined by the interests of participants in criminal proceedings was supported. The content of the burden of proving of civil suit in criminal proceedings covers the need to representation of evidence to justify (or refute) the amount of property damage, the depth of the suffering, and the amount of property compensation for non-pecuniary damage. The material and procedural interest of the civil plaintiff and the civil defendant in the outcome of the criminal proceedings encourages them to take an active part in the criminal procedural proving, in particular by representation of evidence available to them. The publicity (officiality) of criminal proceedings causes differences in the procedure for proving the grounds and size of a civil suit in criminal proceedings compared to civil proceedings. It is concluded that the duty of proving of civil suit circumstances lies on the prosecution party (investigator, prosecutor). The civil plaintiff, the civil defendant, their representatives are complete subjects of proving, but their activity in proving is a right, but not a duty. For the successful performance of their procedural functions, the defense of their legitimate interests, these persons are empowered to represent evidence, to participate in their research. So, they are given the opportunity to contribute to the correct resolution of criminal proceedings, in particular in the civil suit part. The subjects involved in the criminal proceedings who have a duty of proving should provide a possibility of realization of the right to represent evidence by other participants in the process.

scholarly journals SYNCHRONIZATION OF PROCEDURAL AND FINANCIAL (BANKING) FUSE OF THE IMMUNITY OF PROPERTY RIGHTS

2021 ◽  
Vol 2 (37) ◽  
pp. 503-509
Author(s):  
V. Kantsir ◽  
V. Kushpit ◽  
A. Palyukh ◽  
I. Tsylyuryk ◽  
I. Kantsir
Keyword(s):  
Property Rights ◽  
Social Reproduction ◽  
Legal Status ◽  
Legal Regulation ◽  
Jel Classification ◽  
Criminal Proceedings ◽  
Legal Context ◽  
The Status ◽  
The Right ◽  
Judicial Protection

Abstract. The article is devoted to analysis of the effectiveness of the main procedural legal and financial (banking) mechanisms designed to ensure the protection of property rights’ immunity. The legally regulated procedures of such protection are analyzed on platforms — both procedural and legal as well as financial and economic. There is no doubt that only in a state where the immunity of property is declared and guaranteed to the person can be provided the development of economic, intellectual, socially oriented activities. The effect of the principle of immunity of property rights is not absolute, but its restrictions are possible only on the grounds and in the manner prescribed by law. The topicality of the inviolability of property rights is due to the role of law as a platform for citizens’ property independence and their participation in the processes of social reproduction. The guarantee of property independence is the right of ownership of property and non-property rights, which is realized by giving a person the right to freely, unimpededly, and fully exercise the rights of the owner of personal property. The compliance of the inviolability of property rights during criminal proceedings is not properly ensured in the current CPC (The Criminal Procedure Code) of Ukraine; in particular, the movement of confiscated property is not regulated, which questions the novelty of inviolability. To improve the procedure for the protection of property rights, this is necessary to regulate at the legislative level the mechanism of protection and restoration of property rights of persons victimized by criminal offenses. The etymology of «inviolability» guarantees by law the protection of the status of the person from any encroachment. Inviolability in the economic and legal context is mainly understood as a person’s legal status, which is an unalterable guarantee against unauthorized restrictions by the state institutions — law enforcement, financial, court, and individuals and legal entities. An attempt is made to accumulate most of the latest achievements (both legislative, theoretically investigative and applied) on the issues of legal regulation of the studied financial and legal relations, based on which scientific views are substantiated, and proposals are developed to improve regulations in this area. The main vectors of economic and legal mechanisms for the protection of the inviolability of property rights, which would correlate with generally accepted European and world standards, have been identified. Keywords: the inviolability of property rights, property rights, principles of proceedings, judicial protection, seizure of property, financial guarantee, financial risks. JEL Classification G28; К14 Formulas: 0; fig.: 0; tabl.: 0; bibl.: 12.

scholarly journals HAS THE 2015 AMENDMENT TO THE CRIMINAL CODE CHANGED THE PRACTICE OF APPLYING PROTECTIVE MEASURES? RESEARCH REPORT

Probacja ◽  
2021 ◽  
Vol 2 ◽  
pp. 31-52
Author(s):  
Małgorzata Pyrcak-Górowska
Keyword(s):  
Criminal Code ◽  
Protective Measure ◽  
Research Report ◽  
Psychiatric Facility ◽  
Criminal Proceedings ◽  
Protective Measures ◽  
Procedural Law ◽  
Before And After ◽  
Forensic Psychiatric ◽  
Social Harmfulness

The article is the result of the research on the practice of applying a protective measure in the form of placement in a forensic psychiatric facility an insane perpetrator, before and after July 1st, 2015. The purpose of the research was to determine whether and how outpatient protective measures influenced the practice of applying psychiatric detention in case of insane persons, in particular, whether outpatient treatment is used instead of placement in a psychiatric facility in the case of committing offences with a lower degree of social harmfulness. The purpose of the research on the procedural law was to determine whether the judicature of the Supreme Court emphasizing the procedural standard in cases concerning the discontinuation of proceedings against an insane perpetrator affected the observance of procedural guarantees of insane perpetrators in criminal proceedings. The conclusions of the research are based on the statistical data of the Ministry of Justice, the General Prosecutor’s Office and the file research. The conclusions of the research are as follows: there was no significant change concerning the practice of imposing placement in a psychiatric facility on insane perpetrators after July 1st, 2015. The types of prohibited acts the commission of which justify placing the perpetrator in a psychiatric facility have not changed significantly. On the other hand, the procedural guarantees of the insane perpetrator are respected to a slightly higher degree at present. Therefore, it should be considered whether the conditions for the application of placement in a psychiatric facility should not be restricted only to a situation where the perpetrator poses a threat to selected, most important legal goods.

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