Published: 23rd March, 2015 Last Edited: 23rd March, 2015
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Human rights belong to all persons by virtue of their human nature. Criminal justice as a vital institution of our society plays a crucial role in maintaining public order, security and justice. However, there Ð°re serious problems of human rights violations by criminal justice agencies. Nowadays while newspapers focus mainly on the dramatic criminal issues: murder, rape, torture, disappearances, numerous institutions, which are charged with the duty of implementation of human rights standards at international, regional and local levels, most frequently deal with human rights violations during criminal proceedings, especially during the most confidential stage of criminal investigation. The growing internationalization of the criminal law administration points out to the fact that such cases are becoming even more important.
It becomes really difficult to control and provide protection of fundamental human rights during the process of criminal investigation, when a suspect is least protected and more vulnerable. In some parts of the world unacceptable methods of obtaining evidence, such as coercive interrogation with the use of torture or other ways of inhuman treatment, are still practiced dÐµspite being illegal. Furthermore, the credibility in evidence obtained from the unreasonable search and seizure shall be put in question.
It is necessary to point out that while some rights, such as the right to freedom from torture, are vÐ°lid for everyone at all times, the right to respect for one's private and family life may, however, be jeopardized, for instance through the various means of wiretapping. But do the ends always justify the means in trying to obtain information we think a detainee may have?
The "fruits of the poisonous tree" concept, which in numerous cases plays a crucial role for determination of guilt or innocence of the accused, must be carefully examined, as the admissibility of evidence, obtained unlawfully with serious violations of fundamental human rights, is an ambiguous issue not only in national jurisdictions, but also in the jurisprudence of the European Court of Human Rights. The most legal problems concerning evidence arise in criminal cases. Admissibility of evidence, obtained within the violations of human rights, shall be carefully examined and therefore restricted, because in number of cases such evidence is the only evidence for accusation, which might lead to wrongful conviction. Obviously, it undermines the rational of criminal justice, which is to avoid wrongful conviction. Thereupon, according to the opinion of the English law professor I.Dennis, unlawfully obtained evidence raises two kinds of problems concerning admissibility [1 ]. Despite the fact that both of them concern fairness and the principle of legality, they relate to two different aspects of fairness. Therefore, one problem is the impact of the evidence on rectitude of the decision. The other problem is the impact of the evidence on the moral and expressive authority of the verdict. Both these problems together with the problem of serious violations of human rights in obtaining evidence will be analyzed in the comparison of several domestic jurisdictions and the jurisprudence of the European Court of Human Rights.
The main focus of the I.H.Dennis' book "The law of evidence" is criminal evidence and its doctrinal analysis in common law system. The author examines different aspects of the law of evidence within the example of the English legal system. The author describes the theory of evidence, psychological research on information processing and retrieval, the process of socio-legal work on police investigations and the projects of jury research. Professor Dennis emphasizes that the law of evidence makes a significant influence not just on the presentation of evidence at trial but also on the collection of evidence prior to trial. Therefore, evidence one gets at trial is only as good as the evidence collected by the parties prior to trial. The author's research shows that the process of obtaining evidence predetermines the outcome of the final judgment. It leads to the conclusion that the decisions taken before trial during the process of the collection and preparation of evidence are the most crucial decisions taken in the whole adversarial process. In the first part Dennis describes the question of relevance and admissibility of evidence and comes to the conclusion that the evidence, which is irrelevant, is inadmissible. Having examined the exclusionary rule in the common law system, Dennis found out that even logically relevant evidence, which was obtained improperly, shall be forbidden for admissibility. In chapter 8 of the book Dennis examines the question of how the law of evidence deals with evidence that has been obtained by illegal or unfair means. In his research he explains why exclusion of non-confessional improperly obtained evidence has tended to be regarded as exceptional in common law system. The author argues that the principle of legitimacy and integrity of adjudication explains the reasons why a court may refuse to admit evidence, which has been obtained unlawfully. But then the question arises: what is the test for legitimacy that shall be applied in such case? The author is more concerned to use the concept of legitimacy as a limiting doctrine to explain why courts are justified in excluding otherwise apparently probative evidence because of the disrespect it would engender in courts which act upon evidence obtained by illegal methods.
Professor Michael Stockdale gives general overview of the role of the law of evidence, including confessions and improperly obtained evidence. The author tries to present the most significant principles of the exclusionary rule in the common legal system, using the examples of the relevant cases. Having examined the jurisprudence of the common law systems, the author comes to the conclusion that when considering whether a confession was obtained by oppression the court is entitled to take into account the characteristics of the defendant. The research conducted by the author shows that there is no common law defense of entrapment and the court does not posses discretion to exclude prosecution evidence at common law unless the probative value of the evidence is outweighed by its prejudicial effect. Another conclusion, which constitutes a significant importance for the jurisprudence of the European Court of Human Rights, is that the admissibility of unlawfully obtained evidence will not necessarily violate Art. 6 of the European Convention on Human Rights even where the evidence was obtained in violation of Art. 8. Such general overview gives the idea of the role of improperly obtained evidence in criminal proceedings in the common legal systems.
Profound comparative analysis of exclusionary rule is conducted in the Stephen C. Thaman's article "Fruits of the poisonous tree in comparative law", where the author examines historical development of the exclusionary rule in American and European continents and finds out that originally courts never questioned how evidence was obtained, but decided admissibility solely on relevance and probative value considerations. Further the author gives a brief review of the types of exclusionary rules articulated in modern codes, constitutions, and jurisprudence and then explores how these rules are interpreted when it comes to excluding the "fruits" of constitutional violations of the right to silence and human dignity during police interrogations and the right to privacy in one's home and confidential communications. Having conducted the comparative analysis, Stephen C. Thaman comes to the conclusion that whether a country begins with a seemingly categorical exclusionary rule for serious constitutional violations, or allows judges great discretion in deciding whether to use fruits of unconstitutional police behavior, the search for truth has largely prevails over the rights, guaranteed by the Constitutions of different countries, in relation to "fruits of the poisonous tree."
The question of admissibility of improperly obtained evidence in the jurisprudence of the European Court of Human Rights is examined in the Martha Spurrier's article "Gafgen v Germany: fruit of the poisonous tree." The author analyses a recent controversial decision of the European Court of Human Rights, in which the Court ruled that the presence of evidence obtained as a direct result of inhuman treatment does not render a trial automatically unfair. The analysis closely examines the reasoning behind the Court's decision and considers its implications for law enforcers and human rights advocates. The author argues that the Court bases its decision on two controversial distinctions which may prove groundless and, as a result, it would allow a decrease of principled language which may have negative consequences for human rights protection under arts 3 and 6 of the European Convention on Human Rights in criminal cases.
In the article "Special investigation techniques, data processing and privacy protection in the jurisprudence of the European Court of Human Rights" professor Toon Moonen tries to determine whether it is possible to find a balance between the duty of government to safeguard its citizens and the individual rights of those protected. The jurisprudence of the European Court of Human Rights is in the center of the analysis. The author examines the approach of the European Court to the protection of the right to privacy in cases of searches, wiretapping and surveillance, organized by the government for the security reasons. In the Part V the author deals with the right to fair trial and admissibility of evidence obtained from surveillance and wiretapping by the European Court of Human Rights. Professor Moonean indicates the distinct position of the Court, which is based on non-interference within the jurisdiction of national courts. The author argues, that the Court's conclusions on the merits of examined cases and admissibility of evidence rely on legal certainty, the necessity to use less intrusive techniques and proportionality of the interference with one's privacy or due process rights to the goals government seeks to defend.
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Tuesday 13 March 2012 13.44 GMT First published on Tuesday 13 March 2012 13.44 GMT
W hile the euro and Greece have dominated the headlines in recent weeks, the European Union has – largely unnoticed – made three major decisions about Hungary. The parliament has called on the country "to respect the basic values and standards of the EU", the commission has threatened to suspend the allocation of substantial funding because of Hungary's excessive budget deficit. and it has begun what is called an "accelerated infringement procedure".
Europe's disapproval has been triggered by Hungary's new fundamental law. which came into force on 1 January and replaced the constitution that had transformed Hungary from a communist dictatorship to a liberal democracy by the time it joined the EU in 2004.
A constitution is the supreme law of a state, and as such perhaps the highest form of expression of will by its people, who are free to shape their political destiny accordingly. However, the 2012 Hungarian fundamental law is not quite the law of the people, but of the ruling party elected with 52.73% of the vote, which the complexity of the Hungarian electoral system turned into the critical mass of a two-third majority of seats in the one-chamber parliament – the requirement for adopting a new constitution. In fact, the Hungarian people were scarcely involved in the drafting process: adopting a new constitution was not part of the political manifesto, public consultation and debate were kept to a bare minimum during the few weeks that the process lasted, and there was no referendum giving the people the opportunity to accept or reject the fundamental law.
Opening with "God bless the Hungarians", a perhaps incongruous phrase in 21st-century Europe, the fundamental law abolishes the republican form of Hungary, creating a political regime of uncertain nature. Its preamble (the national avowal) is heavily influenced by the Christian faith and commits Hungary to a whole new set of values, such as family, nation, fidelity, faith, love and labour. Although the law contains the standard ingredients of a liberal constitution in that it defines and separates three branches of power and enshrines human rights, questions arise about its substance and spirit.
Whether the fundamental law meets the European standards of liberal democracy has been debated since its adoption. In particular, since the law's drafting stage, the Venice Commission (a body of independent experts providing advice on constitution-making and human rights under the Council of Europe) expressed serious concerns about the quality of its human rights provisions. The commission found issues with almost all the rights and freedoms recognised under the fundamental law, and especially those left out: the omission of an explicit commitment to prohibiting the death penalty and forced labour is particularly glaring.
In relation to the separation of powers, an essential foundation of liberal democracy, the main concern is the independence of the judiciary. The constitutional court. which had played a key role during the early years of the post-communist transition, putting in place the foundations of liberal democracy with its promotion of human rights protection and European standards, has had its powers significantly reduced. The EU is particularly concerned about the compulsory retirement of some 274 senior judges and prosecutors due to a reduction in the age limit from 70 to 62, a measure which is at the heart of the accelerated infringement procedure against Hungary initiated in January. Finally, the four ombudsmen (created by the previous constitution and each in charge of a specific area of human rights) were reduced to a single commissioner for fundamental rights, with immediate effect.
The 2012 fundamental law is clearly not a standard European constitution. While its preamble "does not recognise the communist constitution of 1949", its revision procedure follows a rule first established under article 15.3 of that constitution. The only formal requirement is a two-thirds majority vote in the one chamber parliament, a figure that the current government is almost certain to obtain in the next elections thanks to its electoral reform. A series of strategic appointments, starting with that of the president (who is apparently willing to sign and approve all legislation put before him) and continuing with appointments in the judiciary, the Hungarian national bank and the media council, have given the ruling party almost complete control of key institutions for the foreseeable future. This, placed against the backdrop of the most serious economic and financial crisis since the 1930s, creates an uncomfortable sense of déjà vu. The European parliament's resolution might lead to Hungary eventually losing some of its voting rights under the Lisbon treaty (article 7) for failing to respect the union's fundamental values. Is this a baptism by fire for the EU's commitment to democracy, dignity and the rule of law?
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Firstly, the charter of fundamental rights of the european union was. Explain this is that authors wanted to receive some different analysis on this topic. The legal protection of eu people would meaningfully increase and. This is not an example of the work written by our professional essay writers. Consequently the charter of fundamental rights of the european union was. Convention of human rights. This essay seeks to determine the role of the charter and thus. Eu's own laws and institutions, but is ultimately subservient to the echr. Nonetheless, to suggest this may be to wrongly write off the charter. Does the eu charter of fundamental rights threaten the supremacy of community law? article 53 of the charter: a fountain of law or just an inkblot. The best student essay, written during the current academic year, relating to the law of the. A wide range of learning methods and legal techniques, such as hypos, case briefs, debates, mini-moots, essay-writing, etc. Additionally, the course aims.Charter of fundamental rights | law teacher Charter of fundamental rights | law teacher
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For years, the European Commission has been planning a comprehensive package of telecommunications reform, with the aim of creating a "bill of rights" spelling out what individual European citizens should have a right to do online, and what kind of business environment they should expect. For instance, consumers should have the right to change their carriers while keeping their old phone numbers, reads paragraph 1 of the Telecoms Reform bill; and in paragraph 3, when a member state imposes a measure that a telecom business believes threatens free competition, it may raise the issue before a higher, continental authority that may trump national lawmakers.
But it's paragraph 10 that's been the cause of considerable debate. After the EC submitted the reform bill to the European Parliament (the lower house of the EU's legislative branch) it amended that paragraph with stronger language about the rights of a European citizen to Internet access -- language that attempts to quite literally equate the right of access to the right of free speech.
Last November, the text of that amendment looked like this: "No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent."
That language met with opposition from Parliament members who supported French President Nicolas Sarkozy. whose "three strikes" bill against alleged IP pirates was re-introduced in his country's parliament last week, after suffering a defeat there just one week earlier.
At the same time Pres. Sarkozy's bill was being resurrected, EU Parliament members came to agreement on compromise language about access assurance. At issue there was how best to phrase the part about "the judicial authorities" -- essentially, how to determine who gets to take that fundamental right away, and for what reasons. According to press reports. part of the debate revolved around whether a hardening of the language should be tucked in paragraph 10 itself, or perhaps in the preamble -- in an area of the bill that could be treated like the "small print" accompanying a pharmaceutical company's promise of instant relief.
"The rules therefore provide that any measures taken regarding access to or use of services and applications through electronic communications networks must respect the fundamental rights and freedoms of citizens, including in relation to privacy, freedom of expression and access to information and education, as well as due process," reads a dispatch from the EC this morning. "The new rules also clarify that the final word on this important matter of Internet access must be with a judicial authority."
But even with the support of both houses of the EU legislature, the bill cannot become law without the approval of the Council of Telecoms Ministers, which represent the collective regulatory power of the member states with respect to telecommunications. The Council has already voiced its opinion on telecoms matters in recent months; last month, for instance, it suggested watering down the part about the creation of an oversight authority with the power to nullify measures such as Sarkozy's, replacing it instead with a kind of grievance forum with only the power to render "opinions." The Council has appeared worried that the bill's reference to "a judicial authority" leaves open the door for bestowing arbitration power in personal rights matters to a tribunal, making it a kind of appeals court for individual citizens who may feel infringed upon by Sarkozy and leaders of other member states.
In her trademark style, European Commissioner for the Information Society and Media Viviane Reding effectively laid down the law for the Telecoms Ministers, saying that a vote against telecoms reform for this reason could be construed by their respective constituents as no less than a vote against fundamental human rights.
"Now the ball is in the court of the Council of Telecoms Ministers to decide whether or not to accept this package of reforms," stated Comm. Reding this morning. "This amendment is an important restatement of the fundamental rights of EU citizens. For many, it is of very high symbolic and political value. I call on the Council of Ministers to assess the situation very carefully, also in the light of the importance of the telecoms reform for the sector and for the recovery of our European economy. The Telecoms Council on 12 June should be used for a political discussion on whether agreement on the package is still possible or whether the discussion will have to start again with the new European Parliament in autumn."