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The right to a fair trial of legal persons throughout the case law of the ECHR and the CJEU
Mariia Sokolova, 2023, izvirni znanstveni članek

Opis: The ambition of this article is an analysis of the right to a fair trial of legal entities through the prism of the jurisprudence of the ECtHR and the CJEU. Despite the factual admission of the right to a fair trial to companies in the case law of the Courts, the absence of a strong theoretical foundation and persuasive explanation in their judgments raises ambiguity as to the ECtHR and the CJEU positions in that regard. In that context, the article examines landmark cases of both Courts and relevant doctrinal considerations concerning the application of guarantees provided by the right to a fair trial to legal persons. The ECtHR case law is considered inconsistent and the Strasbourg court, it appears, tries to avoid any far-reaching conclusions. The CJEU in its case law, due to the inherent focus of EU law on economic values, interprets the right to a fair trial of companies broadly, and sometimes, broader than it is needed. It is concluded that the issue requires more attention from both the Courts and legal scholars, in the view of serious consequences the ignorance and unfounded admission of any fundamental right could entail to the society and economy.
Ključne besede: the right to a fair trial, the right to an effective legal remedy, legal persons, companies, fundamental rights of companies, ECHR, Charter of Fundamental Rights
Objavljeno v DKUM: 18.04.2024; Ogledov: 114; Prenosov: 4
.pdf Celotno besedilo (426,22 KB)
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Trial by jury in Russia : from the cornerstone of the judicial reform to the constitutional history artifact
Anna Gurinskaya, 2015, izvirni znanstveni članek

Opis: Purpose: The article explores the process of gradual legislative encroachment on the constitutional right to be tried by jury in Russia that had started in 2008 when offenders accused of committing terrorist crimes were denied the right to opt for the jury. The objective is to show how the initial use of the security argument made possible further limitations of this right. Design/Methods/Approach: The research is based upon qualitative analysis of documents (drafts of legal bills, explanatory notes to the drafts, minutes of the Parliamentary hearings), decisions of the Constitutional Court of the Russian Federation and judges’ dissenting opinions, statements of public officials, media reports. Findings: Jury trial that was once a cornerstone of the major judicial reform of the 1990-ies risks becoming a constitutional history artifact. The process of its curtailment came as a result of the inability of this institute to get adjusted to the realities of the Russian criminal process as well as of the need of the state to meet the challenges of the risk society. It is argued that the use of security argument allowed for the initial bill aimed at limiting this right for terrorists to be adopted swiftly and without much debate. It also opened the window of opportunity for further limitation of this right that came under vague agenda of victims’ protection and case review system reform. The author demonstrates that decisions of the Constitutional Court of Russia have played a significant role in promoting limitations of jury trials. Practical Implications: The approach used in the article can be applied to researching other cases of limiting citizens’ rights in the name of security. Originality/Value: The article represents an attempt to provide empirical evidence of the ‘security paradoxes’ described in the security literature.
Ključne besede: trial by jury, comparative criminal justice, Russian criminal justice, security, human rights, fair trial
Objavljeno v DKUM: 16.04.2020; Ogledov: 938; Prenosov: 37
.pdf Celotno besedilo (359,02 KB)
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