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Copyright of Právník is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Adil yargılanma hakkı, suç isnadı altındaki kişiye ceza muhakemesinde tanınan önemli bir haktır. Taraf olduğumuz Avrupa İnsan Hakları Sözleşmesi’nin 6’ncı maddesinde düzenlenen bu hak, ulusal hukukumuzda da Türkiye Cumhuriyeti Anayasası’nın 36’ncı maddesinde açıkça tanınmıştır. Adil yargılanma hakkı, alt unsur olarak çeşitli hak ve ilkeler içeren karma bir yapıya sahiptir. Alt unsurlarından çelişmeli yargılama ve silahların eşitliği ilkeleri önemli bir yere sahip olup yine adil yargılama hakkı kapsamındaki savunma ve müdafiden yararlanma haklarıyla yakından ilişkilidir. Çünkü adil bir ceza yargılaması için ceza muhakemesi sürecinde riayet edilmesi gereken ilkelerden olan çelişmeli yargılama ve silahların eşitliğinin gerçekleşmesinde, savunma ve müdafiden yararlanma hakları kritik bir konuma sahiptir. Öyle ki, anılan hak ve ilkeler birlikte adil yargılanma hakkının temelini oluşturmaktadırlar. Bu doğrultudaki önemlerine istinaden, çalışmada, ceza muhakemesinde adil bir yargılamanın gerçekleştirilmesinde çelişmeli yargılama ve silahların eşitliği ilkeleri bakımından müdafiin önemi incelenmiştir.

The article is devoted to the problematic issues of regulation of judicial control during consideration of applications for permission to conduct covert investigative (detective) actions and use their results for other purposes, in terms of ensuring the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The principle of fairness of a trial is interpreted in certain judgments of the European Court of Human Rights as the proper administration of justice, the right of access to justice, equality of parties, adversarial nature of the trial, reasonableness of the trial, etc. The construction of Article 6 of the Convention indicates the existence of the following key elements of the right to judicial protection: 1) the right to a hearing; 2) fairness of the hearing; 3) publicity; 4) reasonable time; 5) hearing by a court established by law; 6) independence and impartiality of the court. The author examines the key issues affecting the objectivity of court decisions in this area, imperfections of the procedures provided for in the criminal procedure legislation in terms of ensuring the fairness of the trial, reasonableness and motivation of the court decision. Special attention is paid to the problems of ensuring the independence and impartiality of the court as a factor that significantly affects the legality of such decisions, and the author suggests ways to improve the effectiveness of judicial control in this area. According to the author the legal regulation provided for by criminal procedure legislation in the area of judicial control over covert investigative (detective) actions, both in terms of consideration of applications for permission to conduct activities related to interference with private life and the use of the information obtained in another criminal proceeding or for another purpose, does not ensure compliance with the guarantees of the right to a fair trial provided for in Article 6 of the European Convention. Along with the need to take effective measures aimed at ensuring the independence of the judiciary and the impartiality of judges, criminal procedure legislation also needs to be improved. In particular, the article suggests that reforms should be aimed at overcoming "formalism" in the course of consideration of applications for permission to conduct covert investigative (detective) actions. [ABSTRACT FROM AUTHOR]

Background: The authors of the article refer to the institution of separate opinions of the judges of the European Court of Human Rights (hereinafter referred to as the European Court, the Court or the ECtHR). They emphasise that this phenomenon has not been sufficiently studied in the legal literature. However, given the leading role of the European Court, its progressive views and authority - primarily on the European continent, where it serves as an umbrella for those who have not found protection at the national level - a judge's opinion should not merely be an appendix to the Court's decision. Instead, it should be regarded as the driving force for the development of the doctrine, warranting academic study, consideration by practitioners at the national level, and a possible reference point for forecasting and shaping future interpretations of the provisions of the European Convention on Human Rights in ECtHR future decisions. Methods: In the article, the authors present the points of view of scientists and practitioners on the phenomenon of separate opinions, illustrating specific examples of what they consider to be the most interesting separate opinions attached to the decisions of the European Court of Human Rights. Based on substantive analysis, they formulate conclusions, emphasising the prospective doctrinal importance for world science, law-making and law-enforcement perspective for national legal systems, as well as unconditional axiological importance, because they play the role of a catalyst for creative judicial search, contribute to the support of judicial independence and personal responsibility. The special importance not only of the decisions of the European Court of Human Rights but also of individual opinions, according to the authors, stems from the fact that those key problematic issues that bring citizens before the ECtHR are a priori difficult for the entire European community. The authors analysed separate opinions, such as that of ECtHR Judge Elósegui, which was expressed in the ECtHR case Mortier v. Belgium, regarding the ratio of the provisions of Article 2 "Right to Life" ECHR and euthanasia. The authors also focused on the key conclusions made by the Portuguese ECtHR Judge Paulo Pinto de Albuquerque, who, in his nine-year tenure, independently or with colleagues, formulated more than 150 separate opinions. The authors particularly explore his opinions in two well-known cases, Bărbulescu v. Romania and Svetina v. Slovenia. Notably, in the former case, although the judge remained in the section in the minority, his separate opinion later turned into the opinion of the majority of the Grand Chamber of the ECtHR. Results and conclusions: The authors consider the phenomenon of a separate opinion of a judge of the European Court as a result of independent and deep thinking, an expression of the judge's individual legal awareness. This perspective is based on the author's immersion in the problems that were the subject of consideration by the panel of judges and found or, on the contrary, did not find their expression in the court decision. In examining separate opinions, the authors also pay attention to the specifics of their structural construction often employed by ECtHR judges. These skillfully structured opinions can serve as a valuable example for national courts, many of which are still in search of their individual legal style. [ABSTRACT FROM AUTHOR]

Background: The right to a fair trial is a critical part of national and international human rights frameworks. To protect this right, the rule of law should be implemented. Currently, the approach to trying individuals accused of grave international crimes, including genocide, is different, which gives an impression of inequality. For instance, the person accused of the al-Anfal genocide was tried by a national court and sentenced to the death penalty, whereas the person accused of the Srebrenica genocide was sentenced to life imprisonment by an international tribunal. Not to mention the lack of respect for the defendants' rights during the al-Anfal genocide's trial, including the principle of due process and the right to a fair trial. The main reason for the differing decisions in these two identical cases involving genocide arises from their trials in different courts and under different legal frameworks. This paper addresses the significance of these challenges for equality under international law and emphasises the difficulties in securing fair trials by examining these examples. Methods: This article analyses the application of the right to a fair trial for international criminals by using doctrinal methods. Specifically, it adopts a qualitative approach to examine relevant international statutes. To illustrate, the research chose to analyse and compare two case studies: the trial of Ali al-Majid, the leader of the al-Anfal genocide, and Ratko Mladic, the leader of the Srebrenica genocide. This comparison focuses on aspects such as judicial independence and overall fairness in the trials of war criminals. It involves desk-based research and data that are collected through the analysis of relevant literature from primary sources, such as international law instruments and secondary sources, including books and academic articles, about the inconsistency of fair trial standards in different judicial contexts. Results and conclusions: Different approaches in trials for similar crimes threaten global justice and the protection of individual rights and freedoms. One practical way to address this issue is to bring those accused of grave international crimes, including genocide, to appear before the International Criminal Court (ICC), providing fair trials and punishments. However, this article demonstrates that the doctrine of state sovereignty may pose challenges to creating a uniform framework for the prosecution of war criminals. Additional challenges arise with the existence of different legal and political systems across the world. The article argues that to ensure a fair trial and maintain international peace and security, it is necessary to overcome these challenges and adopt a uniform framework for the prosecution of those accused of grave international crimes. The ICC can be the solution. The international community can overcome these challenges by encouraging all countries to join the Rome Statue and give it the sole jurisdiction over grave international crimes such as genocide, war crimes, or crimes against humanity. [ABSTRACT FROM AUTHOR]

This paper discusses small claims disputes and a significant legal amendment from 2022 establishing that small claims disputes will primarily be handled through a written procedure. The court will only conduct a hearing if it determines that it is necessary to carry out the evidence process or to ensure a fair trial. The paper examines whether this new rule is constructive and how it relates to the fact that small claims disputes are not necessarily trivial or marginal cases within the total number of civil proceedings conducted before Croatian courts. It explores the circumstances that judges should consider when deciding on the method of conducting the procedure and also discusses other aspects and peculiarities of these numerous civil proceedings. [ABSTRACT FROM AUTHOR]

Copyright of Türkiye Adalet Akademisi Dergisi is the property of Justice Academy of Turkey and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista Brasileira de Direito Processual Penal is the property of Instituto Brasileiro de Direito Processual Penal and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This case law report (January-June 2024) discusses six cases before the European Court of Human Rights (hereinafter: ECtHR) and one case before the European Committee of Social Rights (hereinafter: ECSR). 1 The first case (O.R. v. Greece) concerned the lack of protection of an unaccompanied minor seeking international protection by the Greek government, in violation of the prohibition of torture in Article 3 ECHR. The second and fourth cases concerned possible violations of the right to a fair trial under Article 6 ECHR (Bernotas v. Lithuania and Đurić v. Serbia), the applicant complained about the unfairness of the administrative and judicial review procedures. The third case, Shylina v. Ukraine, concerned the question of whether the obligation for a payment of social security benefits to a specific bank account at the Ukrainian State Bank violated the right to property under Article 1 Additional Protocol ECHR (hereinafter: AP ECHR). The case of Diaconeasa v. Romania concerned the withdrawal of support for a physically disabled person. The last case before the ECtHR that will be discussed in this case law report is B.T. v. Russia. In this case, the Court had to review the difference in treatment between men and women with regard to parental leave for police officers in the light of the prohibition of discrimination under Article 14 ECHR. This case law report only discusses one case before the ECSR. In collective complaint 187/2019, the ECSR had to review the reduction of survivor's benefits in Italy in the event of cumulation with other income with several provisions of the European Social Charter. [ABSTRACT FROM AUTHOR]

The relevant article discusses the Albanian model of transitional comprehensive vetting of judges, state attorneys, and other judicial officials, considering the stance of the European Court of Human Rights presented in the case of Xhoxhaj v. Albania. The first part of the article briefly analyzes decisions of the Constitutional Court of the Republic of Croatia abolishing the legal model of periodic security vetting of judges since the Court referred to the Xhoxhaj case. The second part evaluates the circumstances that led to establishing the pertinent reevaluation system in the Republic of Albania. The decision of the Constitutional Court of the Republic of Albania, which justified the corresponding normative arrangement, is assessed in the third part. The central part of the article focuses on the Xhoxhaj judgment. Thus, its factual background, the reasoning offered by the majority, and dissenting opinions are thoroughly scrutinized. In conclusion, while appreciating comparative experiences, the article stresses that the fundamental constitutional rights should not be sacrificed for collective goals, no matter how important they are. After all, protecting the position of an individual is the gist of all modern constitutions.

The principle of judicial independence is a fundamental tenet of the rule of law and fair trial standards. The European Court of Human Rights (ECtHR) identifies four criteria for evaluating judicial independence: (a) the manner of a judge’s appointment; (b) the duration of such an appointment; (c) safeguards against external influence; and (d) the appearance of independence. The ECtHR also distinguishes several dimensions of judicial independence, including independence vis-à-vis the executive, parliament, other courts, and parties, as well as independence from judicial councils. Nevertheless, despite the existence of shared European principles on judicial independence, certain countries, particularly those undergoing transitions, encounter challenges such as political interference, corruption, and insufficient safeguards against dismissal. This results in a discernible disjunction between de jure and de facto judicial independence. This article poses the following research questions: What are the main approaches and common challenges for judicial independence in European countries based on the latest case law of the ECtHR? What lessons can be learned by Ukraine, as an EU candidate, from this case law in order to mitigate the gap between de jure and de facto judicial independence?

The article is devoted to the issue of the dissenting opinion of a judge, which is relevant to modern law enforcement practice and legal theory and which may be expressed when a judge who participated in a collegial consideration of a case does not agree with the position of the majority of the panel of judges. The authors analyse the existing approaches to the institution of dissenting opinions in different legal systems, the factors that negatively affect the existence of dissenting opinions in the justice system, provide examples of dissenting opinions of Ukrainian judges expressed in different jurisdictions, their significance for law enforcement practice and the public outcry they caused. It addresses the procedural issues that may potentially arise during the judicial proceedings and the formation of a dissenting opinion of a judge. The authors conclude that the institution of dissenting opinion is of undoubted value for justice and the authority of the court in the State and emphasise that the specifics of the text of a judge's dissenting opinion against the background of lapidary normative regulation by the rules of procedural law may indicate the genre independence of the content of a dissenting opinion in judicial discourse as compared to a court decision. The authors propose the concept of dissenting opinion, by which they mean an official legal position of a judge which is formed during collegial consideration of a case as a result of an internal conviction which does not coincide (partially does not coincide) with the position of the majority of judges in terms of reasoning or final conclusion, and which is formalised in a procedural document which is an act of competent (professional) and doctrinal judicial casual interpretation. In addition, the authors present synthesised features which characterise a judge's legal opinion as a dissenting opinion, including the statement that it is undoubtedly a phenomenon of a democratic society; it has the features of an institution of law, albeit with lapidary normative regulation; it is issued by a judge within his/her competence as a result of judicial discretion and inner conviction; has a prognostic and forward-looking character, since it sometimes serves as a means of overcoming outdated views that impede progressive legal development, evolution of sustainable approaches, and as a basis for the formation of a new legal position, which in the future may be transformed into a majority position and become a sustainable practice; besides, it is derivative, optional, as it is not binding, unlike a court decision, and is not an act of justice, as it is not issued in the name of the state and is not a mandatory part of a court decision. [ABSTRACT FROM AUTHOR]

The length of trials before a national court and their high costs are two of the main reasons for the emergence of arbitration. Arbitration facilitates shorter and cheaper trials and enables the trial to be conducted by experts according to the will of the parties involved. This is why arbitration is extremely important in settling commercial disputes that can last for a long time. However, over time, due to the growing interest in arbitration and the nature of the disputes brought before arbitration, the processes began to take longer with high costs. To overcome this difficulty, the concept of fast-track arbitration with simplified procedures and fast conduct of the process emerged. This study will present a legal analysis of fast-track arbitration, advantages and disadvantages of expedited arbitration, will emphasize the distinctive properties of expedited arbitration, taking into account provisions in comparative law. Here, the perspective and general principles of expedited arbitration regulated by arbitral institutions in Europe, America and Asia will be explained in detail. Finally, the relationship between the general principles of arbitration and the suitability of fast-track arbitration to those principles will be assessed. [ABSTRACT FROM AUTHOR]

Copyright of Zeszyty Naukowe KUL is the property of John Paul II Catholic University of Lublin, Wydawnictwo KUL and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The relevance of the subject under study was conditioned by the fact that in Ukrainian judicial practice, both judges and experts who are members of the Scientific Advisory Council of the Supreme Court have differed in their opinions regarding the possibility of disqualifying an heir from inheritance based on the requirements of Article 1224, Part 1 of the Civil Code of Ukraine. The purpose of this study was to clarify such general legal issues as the applicability and extension of the presumption of innocence in civil proceedings, and protection against violation of this principle in the resolution of certain civil law disputes. The methods of analysis, synthesis, comparison, generalisation, and case study were employed to examine the decisions of national courts of general jurisdiction of various instances, the Constitutional Court of Ukraine, and the European Court of Human Rights. It was stated that the deceased heir – the accused, who inflicted serious bodily injuries to his father – the testator, as a result of which the latter died, cannot be considered as having no right to inheritance, based on the analysis of the content of Article 1224, Part 1 of the Civil Code of Ukraine. The study proved that a form of condemnation by public authorities and posthumous conviction outside the scope of due process of law would be establishment by a court in a civil case of the circumstances of intentional deprivation of the testator’s life by an heir, where the former died at the time of the consideration of a civil dispute. It is unacceptable for a civil court to rely on the circumstances of the indictment and the grounds for closing criminal proceedings against a deceased defendant – an heir. Only a guilty verdict establishes a person’s guilt. If it is referred to in other procedural decisions, it is probable that the person will be socially stigmatised. A civil court may not assume the powers of a court that are exercised only in criminal proceedings when resolving a dispute over inheritance. The practical value of the study lies in the development of arguments for the court and participants in the trial. [ABSTRACT FROM AUTHOR]

The research explores the relationship between mediation and the right to a fair trial, examining whether mediation is a legal heritage or an anomaly within the legal sphere. The study analyzes the legal framework of mediation in Ukraine and other countries, along with international standards. It investigates the impact of mediation on the right to a fair trial and its role in Ukraine's European integration process. The methodology includes policy analysis, empirical research, and comparative methods. The findings suggest that mediation is a valuable addition to the legal system, promoting efficient dispute resolution and reducing the burden on courts. However, upholding clear standards and principles is crucial to ensure the protection of participants' rights and maintain the right to a fair trial. The research concludes that mediation can coexist harmoniously with traditional judicial processes, contributing to a more effective and just legal system. [ABSTRACT FROM AUTHOR]

Copyright of Socioloski Pregled is the property of Srpsko Sociolosko Drustvo and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Recent examples from the case law of the European Court of Human Rights and the Court of Justice of the European Union show that judicial independence across Europe is still under stress in certain countries. In the last four years, a rich body of jurisprudence has been developed by the ECtHR around the rights of judges: right to a fair trial, right to privacy, freedom of expression, right to liberty and security. These cases comprise a vital component of the rule of law references by the Strasbourg Court, which became more willing to include the protection of the rights of the members of the judiciary in the Convention's application sphere. The attacks against judicial independence at the origin of these cases are diverse, and there is no unique recipe for how to respond. The article posits that this jurisprudence can become one of the criteria to assess a state's compliance with the rule of law requirements. However, the results still depend too much on the political will of the states concerned. [ABSTRACT FROM AUTHOR]

Copyright of Public & Private International Law Bulletin is the property of Public & Private International Law Bulletin and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Public & Private International Law Bulletin is the property of Public & Private International Law Bulletin and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The purpose of this paper is to stimulate reflection on the use and significance of anonymous witness statements in the practice of the European Court of Human Rights. The analysis of selected leading cases in this area will provide an overview of the development of European judicial practice regarding the fact that the right of the defense is seriously compromised when such statements are accepted in criminal proceedings. A significant number of judgments represent a setback, particularly concerning the realization of the right to confrontation, which is characteristic of cases involving statements from anonymous witnesses. In such cases, the question arises as to what counterbalancing mechanisms could compensate for the denial of the accused’s rights when the identity of the individual providing incriminating statements is concealed. The statements of anonymous witnesses have, in a way, influenced the practice of the European Court of Human Rights regarding the establishment of a legal standard that has gradually taken on the role of a corrective mechanism, maintaining the balance between opposing parties. The question is whether such a corrective mechanism for the procedural protection of anonymous witnesses can preserve the interests of both sides.

The representative, whether legally appointed or chosen by the party, has an important role to play in the shaping of a case, from the moment the case is referred to the judicial authority, until exercising the right to appeal. Thus, if representation is not effective, the problem of a violation of the fundamental right to a fair trial arises. However, the real challenge lies in determining how the quality of representation can be assessed, who can decide on it and what remedies exist and are desirable in order to avoid the violation of the right to a fair trial, in terms of the right of access to justice, in civil matters, and also with regard to the right to be defended by a lawyer, in criminal matters.

The right to be present at trial is under threat following the decision of the International Residual Mechanism for Criminal Tribunals' Trial Chamber to continue proceedings against Félicien Kabuga after finding him mentally unfit to stand trial. The Trial Chamber opted instead to hold an "alternative finding procedure", resembling a trial as closely as possible, albeit without the possibility of concluding with a verdict. This article engages with that decision through the lens of whether this approach complies with the accused's right to be present at trial. It concludes that the proceedings would be little more than a de facto trial that does not adequately respect the accused's right to be present. It also finds that should other international criminal courts and tribunals follow a similar approach the right to be present would be deprived of any real meaning. This could also, in turn, threaten overall fairness of the proceedings. [ABSTRACT FROM AUTHOR]

Copyright of Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi is the property of Ankara Haci Bayram Veli Universitesi Hukuk Fakultesi and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Istanbul Medipol Üniversitesi Hukuk Fakültesi Dergisi is the property of Istanbul Medipol University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Artificial intelligence (AI) is transforming various sectors, and the judicial system is no exception. The author explores the impact of AI on practicing judicial professions. The integration of AI into judicial systems offers significant benefits in terms of efficiency, access to justice, and decision-making accuracy. However, it also poses challenges that need to be addressed through careful implementation, ethical considerations, and continuous adaptation. Although the use of the AI in the judiciary is on the rise and varies from country to country, it brings potential risks for fundamental rights. In the article, the author assessed whether the use of AI by judicial professionals jeopardize the right to a fair trial, including the right to an independent and impartial court, equality of parties, etc. The author also evaluates whether some of the introduced tools, especially those predicting court decisions and recidivism, violate fundamental rights. Finally, the author assesses options for further development and use of AI by judicial professions.

This paper aims to bring to attention certain optional reasons for refusing the execution of a European arrest warrant, situations in which the courts can defeat the principle of mutual recognition and trust between the judicial authorities of the European Union states, which represents the “cornerstone” of judicial cooperation in criminal matters. The judicial enforcement authorities cannot refuse to execute a European arrest warrant except for reasons resulting from the Council Framework Decision No. 2002/584/JAI of 13 June 2002, however, in practice, the optional reasons for non-execution often raised problems, the wording of article 4 and article 4a leaving a margin in the judgment of the courts.

Adil yargılanma hakkı hem Türkiye’de hem de dünyada ülkelerin yargı erkinin en çok eleştiriye maruz bırakıldığı, Avrupa İnsan Hakları Sözleşmesi’nin (AİHS) 6. maddesinde güvence altına alınmış oldukça kapsamlı bir haktır. Bu hak, soruşturma aşamasından başlayarak olağan ve olağanüstü kanun yolları dâhil kovuşturma aşamasının sonuna kadar tüm yargılama sürecini kapsamaktadır. Adil yargılanma hakkı sadece ceza hukukuna özgü değildir. Bu hak, hukuk yargılaması ve idari soruşturmalar ile disiplin organları tarafından yapılan işlemleri de güvence altına alır. Hukuka aykırı delillerin adil yargılanma hakkı yönünden değerlendirilmesini amaçlayan bu çalışmada, hukuka aykırı delillerin yargılamada kullanılması konusu insan hakları hukuku yanında ceza hukuku yönünden de incelenmektedir. Çalışmada adil yargılanma hakkı ve “hukuka aykırı delil” konusu ulusal mevzuat ve AİHS hükümleri ile Avrupa İnsan Hakları Mahkemesi (AİHM) içtihatları yönünden incelenmektedir. Ayrıca hukuka aykırı delil kullanımı bakımından AİHM’nin oldukça tartışılan Gäfgen - Almanya kararı değerlendirilmektedir.

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.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 547-559 | European Forum Insight of 22 September 2023 | (Table of Contents) I. Does the Aranyosi and Caldararu test represent the sole and unchanging solution to fundamental rights issues in the EAW system? - II. The Aranyosi and Caldararu test remains unchanged: the ECJ ruling in Puig Gordi - II.1. Facts of the case and preliminary questions - II.2. The Court’s reasoning - III. The Aranyosi and Caldararu test is not the only answer to fundamental rights issues in the EAW system: The ECJ ruling in E. D. L. - III.1. Facts of the case and preliminary question - III.2. The Court’s reasoning - IV. Commentary: towards a renewed understanding of the Aranyosi and Caldararu test - IV.1. Two cases, two approaches: why? - IV.2. The ultimate (but not the only) remedy for securing fundamental rights - V. Conclusions | (Abstract) This Insight offers a combined reading of the ECJ rulings in Puig Gordi and E. D. L., with a view to investi-gating their impact on the theorisation and place of the Aranyosi and Căldăraru test in the EAW frame-work. Notwithstanding multiple calls for overcoming that twofold assessment, the Court has strenu-ously upheld the test’s structure in subsequent case-law. Against this background, the Puig Gordi and E. D. L. rulings give further insight into the ECJ's approach towards securing fundamental rights in the EAW system. On the one hand, the Court in Puig Gordi has halted any aspiration to modify the Aranyosi and Căldăraru test; on the other hand, the E. D. L. ruling clarified that the test does not constitute the only avenue to protect the defendant’s fundamental rights. In this light, the Insight shows that the Aranyosi and Căldăraru test shall be construed as the ultimate remedy to that aim. Executing authorities shall undergo the two-step assessment only if the EAW Framework Decision does not afford any alternative legal avenue to avoid serious risks of violation of the defendant’s fundamental rights. This approach is likely to project the fundamental rights discourse in the EAW context to a new dimension. The ECJ’s ex-plicit refusal to modify the Aranyosi and Căldăraru test may dissuade further calls in that direction. Con-versely, the ECJ reasoning discloses that the EAW Framework Decision may afford valuable and under-estimated alternatives to the two-step test, whose potential still needs to be explored.

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The active involvement of a person in court proceedings is essential for his effective participation and is a reflection of his right to be heard. The right to be heard is one of the basic procedural rights, which implies that a person should be allowed to express his concerns as well as his experience that what he said has be taken into account in the decision-making process. Competent authorities are obliged to listen to the participants in the procedure and talk with them, not about them. Although in some situations this will be difficult and incomprehensible, especially in relation to children or persons deprived of legal capacity, everyone capable of expressing their will and preferences in some way needs support to facilitate that expression. That is, to every person should be made possible to participate in court proceedings in such a way that they can influence its outcome by articulating their will. In this paper, we will analyze the child's right to be heard and express his opinion, and in this regard, we will warn about the inconsistency of the provisions of the Croatian general procedural regulation - the Law on Civil Procedure with the provisions of the Croatian Family Law, as well as international regulations and practice. We will refer to the question of the procedural legitimation of the child in court proceedings in which his rights are decided. Also, we will analyze the issue of the procedural legitimation of a child in family law disputes, in which the individual rights of the child are adhesivelly decided in accordance with the principle that everyone should have the opportunity to actively participate in the litigation that is conducted about his rights and interests. [ABSTRACT FROM AUTHOR]

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The COVID-19 pandemic significantly disturbed people's lives all over the world for many months and it has had a weighty impact on all spheres of life, both in terms of the private sphere of individuals and in relation to the functioning of state institutions, including courts. To protect public health and limit the number of infected citizens, it became necessary for state authorities to introduce emergency measures, some of which resulted in far-reaching restrictions on human rights – and the right to a fair trial was no exception. This article aims at presenting the way in which the Polish judiciary functioned during the pandemic, as well as the main problems related to exercising the right to a fair trial during the COVID-19 pandemic, including a lack of openness of court proceedings, remote hearings and the removal of the collegiality of judicial adjudication in most civil cases. [ABSTRACT FROM AUTHOR]

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This article critiques the European Court of Human Rights' recent extensive case law on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), and particularly the right to legal assistance in criminal trials. The article examines the significant and ongoing impact of the judgments in Ibrahim (2016) and Beuze (2018) and argues that the recent case law reflects buyer's remorse on the part of the Court for its landmark judgment in Salduz (2008). Article 6 is among the most heavily litigated provisions of the ECHR, and this article is the first extended scholarly analysis of the post-Beuze case law. The article identifies two interrelated trends in the most recent case law: first, the Court taking a number of analytical steps that allow it to overlook the text of Article 6(3) in favour of an impressionistic assessment of the overall fairness of the proceedings; and, second, the Court providing Governments with multiple opportunities to advance public interest justification arguments despite continued pronouncements that Article 6 is an unqualified right. The article suggests that the jurisprudence is weakening the Article 6 guarantees. [ABSTRACT FROM AUTHOR]

This paper examines the intersections of fundamental rights and European banking supervision. It contributes to a more nuanced and refined understanding of the importance of European Union (EU) fundamental rights for supervised banks in the absence of an EU-wide administrative code. Since 2014, the European Central Bank (ECB) has assumed prudential supervisory tasks for supervised entities. Fundamental rights set clear boundaries as to how the ECB may exercise supervisory discretion to adopt measures that may adversely affect a supervised bank. The Court of Justice of the European Union declares void any measure whose adoption infringes upon a person's fundamental rights. Thus, fundamental rights are a powerful counterbalance to the standard of limited review established by the EU judiciary for European Banking Supervision activities. Every supervised entity may unequivocally enjoy the same rights of defence faced with any measure adversely affecting it, irrespective of whether the measure has been adopted under EU or national law. [ABSTRACT FROM AUTHOR]

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In this article, we argue that a majority of the Constitutional Court, in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma & Others [2021] ZACC 18 ('Zuma II'), erred in its reasoning and outcome when it sentenced former South African President Jacob Gedleyihlekisa Zuma to 15 months' imprisonment for contempt of court, without affording him the Constitution's Section 35(3) fair trial rights. We argue that Mr Zuma was owed fair trial rights - in particular the Section 35(3)(o) right 'of appeal to, or review by, a higher court' - in Zuma II because the primary relief sought against him was direct imprisonment. We go on to argue that the majority should have referred the case against Mr Zuma to a High Court of appropriate jurisdiction - not the National Prosecuting Authority, as the minority in Zuma II suggested. In making this suggestion, we depart from a core finding of Zuma II's minority: that motion proceedings are, inherently, unable to offer the protection of a fair trial. In Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State & Others [2021] ZACC 28 ('Zuma III'), Mr Zuma asked the Court to rescind Zuma II. We argue that Mr Zuma's rescission application was a non-starter and that the minority's efforts in Zuma III to overturn Zuma II in terms of Section 172(1) and Section 173 of the Constitution failed as well. To the extent that Zuma III dealt with South Africa's international law obligations, we argue that they were irrelevant to Mr Zuma's rescission application. However, by denying Mr Zuma an opportunity to appeal or review Zuma II, we argue that South Africa may have breached its obligations under Article 14(5) of the International Covenant on Civil and Political Rights. [ABSTRACT FROM AUTHOR]

The main task of the presented commentary is primarily the analysis of the decision of the European Court of Human Rights (ECtHR) in the case of Erik Adamčo v. Slovakia (Application no. 19990/20) dated June 1, 2023. This analysis specifically considers the implications for legal practice in the conditions of the Slovak Republic. The legal framework focuses on cooperating individuals and their testimonies during criminal proceedings, particularly considering the necessity of perceiving the proportionality of using such evidence in relation to guarantees securing the overall fairness of the proceedings. Examining this question is particularly significant in cases involving statements of individuals who admitted to committing criminal activities in the initial stages of criminal proceedings and subsequently agreed to cooperate with the prosecution in order to obtain certain benefits. The inherent issue in this regard is not merely the use of this type of evidence but rather the manner in which it is utilised, emphasising the perception of the benefits associated with its provision.

Copyright of Collected Papers of Zagreb Law Faculty / Zbornik Pravnog Fakulteta u Zagrebu is the property of Sveuciliste u Zagrebu, Pravni Fakultet and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)