In this note, the author attempts to prove that the right to a fair trial is essentially a substantive right; that is, a right that combines the manifestations of a fundamental right. At the same ...time, this right imposes some positive duties on the State to provide for it. It has national and supranational regulations, and at the same
time reflects subjective law and axioms, as well as elements of procedural and substantive law. Attention is drawn to the fact that in Ukraine the legal nature of this right is implemented only partially, since neither legislation nor judicial practice recognize it as an independent object of protection.
Taking into account the provisions of Para 1, Art. 6 of the ECHRs and the case law of the ECtHR , the research proposes to define the scope of the applicability of the right to a fair trial proceeding from: (1) legally bound subjects, which may include not only courts within the judicial system of the country concerned on the basis of the law, but also other jurisdictional and quasi-judicial bodies; and (2) the procedures in which the guarantees of a fair trial must be observed. Depending on the existence or absence of a dispute over the rights in them the latter is divided into ‘disputed’, ‘conditionally disputed’ or ‘indisputable’. It is proved that the requirements of Art. 6, Para 1 of the ECHR do not apply to them, but that they are mandatory under the first two procedures. An attempt to analyse the recent positions of the ECtHR on the possibility of including protection measures in the scope of the application is made. Also, the author determines which of those protection measures provided in national law falls within the scope of this regulation. Furthermore, the author draws attention to the fact that the rights and duties to protect a person who is invoked must be ‘civil in nature’ in order to be covered by the guarantees of a fair trial. On the basis of certain criteria the author identifies procedures in the national legal system within which the right to a fair trial must be guaranteed.
Keywords: a right to a fair trial, substantive law, scope of applicability of the fair trial right, court, established by law, judicial procedures, legal dispute, diversification of judicial procedures, ‘civilistic’ rights and duties.
Commentary: Court proceedings against the alleged perpretrator of the Christchurch mosque attacks in 2019 led to what may be ground-breaking cooperation between the judicial system and the media to ...balance fair trial rights and a determination to (a) avoid retraumatisation and (b) prevent the court being used as a platform for white supremacist propaganda. The case, and the willingness of media to honour these imperatives, demonstrates the centrality of publicity in acts of terrorism known as ‘propaganda of the deed’. The research outlined in this article suggests that institutional cooperation can avoid ‘giving oxygen’ to perpetrators and their causes without sacrificing journalistic integrity or a duty to bear witness in the interests of open justice. A change of plea resulted in proceedings being limited to a sentencing hearing. A lengthy trial may have tested the robustness of the measures put in place but, nonetheless, the planning processes employed in New Zealand lead to a conclusion that they could provide a basis for similar cooperation in other judicial jurisdictions, such as Australia.
This article examines the meaning of fraudulent bankruptcy and the problems inherent in applications of fraudulent bankruptcy. It proposes how the regulation of fraudulent bankruptcy can be improved, ...and considers the historical development and legal regulation of the institute of fraudulent bankruptcy in foreign countries. Also considered is the amendment of fraudulent bankruptcy introduced by the Law on Insolvency of Enterprises of the Republic of Lithuania. The authors assert that the new law on insolvency proceedings has fundamentally changed the procedure for the examination of applications for fraudulent bankruptcy. They argue this to be the case since the court must decide not only on the grounds of fraudulent bankruptcy, but also on the persons who caused the fraudulent bankruptcy by the same decision. In such cases, also discussed is how the court must ensure the right to a fair trial and the effectiveness of insolvency (bankruptcy) proceedings is discussed, and the status of the person(s) involved and their procedural rights and obligations.
Libya's alleged violations of the African Charter on Human and Peoples' Rights - failure to protect a Libyan citizen - Saif-al-Islam Kadhafi - Muammar Gadhafi's son - arbitrary arrest and detention - ...right to a fair trial - exhaustion of local remedies - derogation - default judgment.
İnsan, biyolojik varlığı için suya ne kadar muhtaçsa, toplumsal varlığı için de adalete o kadar muhtaçtır. Adalete ulaşmak için çıkılan yol ise hassas ve meşakkatlidir. Adil bir karara ulaşmak için ...yargılamanın tabi olduğu ilke ve güvenceler vardır. Hakkı olana erişmek için herkes hak arama hürriyetine sahip olmalıdır. İstisnalar dışında yargılamalar aleni yürütülmelidir. Yargılama makul bir sürede sonuçlandırılmalıdır. Tabiî hâkim güvencesinin bir sonucu olarak yargılamayı yürütecek olan mahkemenin önceden kanunla belirlenmiş olması gerekir. Tüm bu güvenceler sağlanmış olsa dahi bağımsız ve tarafsız bir yargılama olmadan adil bir yargılamadan da bahsedilemeyecektir. Bağımsızlık, tarafsızlık için bir önkoşuldur. Ancak bağımsızlığı güvence altında olan hâkimin içsel yönüyle ilgili olan tarafsızlığı da sağlaması gerekir. Tarafsızlık için hâkimin yargılamayı önyargılarının tesirinde kalmadan yürütmesi ve sonuçlandırması gerekir. Çalışmada, yargılamanın önyargısız yürütülmesinin adil bir yargılama bakımından önemi ortaya koyulmaya çalışılacaktır. Önyargısız yargılanma hakkının önemi tarihin en büyük yargılama yanılgılarından olan Dreyfus davasıyla somutlaştırılmaya çalışılacaktır.
Human needs justice for his social existence as much as he needs water for his biological existence. The way to reach justice is delicate and arduous. There are principles and guarantees that the trial is subject to in order to reach a fair decision. Everyone should have the freedom to seek justice in order to access what is right. Proceedings should be conducted in public, with exceptions. The trial must be concluded within a reasonable time. As a result of the guarantee of the natural judge, the court that will conduct the trial must be determined by law in advance. Even if all these guarantees are provided, a fair trial will not be possible without an independent and impartial trial. Independence is a prerequisite for impartiality. However, the judge, whose independence is guaranteed, must also ensure impartiality, which is related to his internal aspect. For impartiality, the judge must conduct and conclude the trial without being influenced by his prejudices. In this study, the importance of conducting the trial without prejudice in terms of a fair trial will be tried to be revealed. The importance of the right to be tried without prejudice will be tried to be embodied in the Dreyfus case, which is one of the biggest misjudgments in history.
The right of access to a court is subject to certain limitations. While a number of these limitations may be created deliberately, in line with the function of the administrative justice system (e.g. ...restrictions on review by the higher courts, others may be more or less unintended consequences of the design of the administrative justice system (or application of relevant rules or case law). The article attempts to present possible forms of these limitations and tries to outline some of the main “bottlenecks” in the access to judicial protection in the context of Czech administrative justice. These limitations can be regarded mainly as formal and informal, and their recognition can result in increasing the efficiency of the functioning of judicial protection, in particular by simplifying procedural regulation in relation to the ongoing societal and technical changes.
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