Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights
Based on the analysis of theoretical approaches to the essence of the institute of detention of a person, the article substantiates the position that detention is a procedural action which has a temporary restrictive nature of the rights of a person who was detained during the commission or attempte...
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| Format: | Article |
| Language: | Ukrainian |
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Kharkiv National University of Internal Affairs
2024-09-01
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| Series: | Bulletin of Kharkiv National University of Internal Affairs |
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| Online Access: | https://visnyk.univd.edu.ua/index.php/VNUAF/article/view/796 |
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| author | M. М. Kolomoitsev |
| author_facet | M. М. Kolomoitsev |
| author_sort | M. М. Kolomoitsev |
| collection | DOAJ |
| description | Based on the analysis of theoretical approaches to the essence of the institute of detention of a person, the article substantiates the position that detention is a procedural action which has a temporary restrictive nature of the rights of a person who was detained during the commission or attempted commission of a criminal offence, immediately after the commission of a criminal offence or during the continuous prosecution of a person suspected of a criminal offence, and which aims to ensure further pre-trial investigation, clarification of the circumstances of the event which occurred.
Based on the generalisation of the provisions of international legal acts and taking into account the case law of the European Court of Human Rights, the author defines the standards for providing legal aid to a person detained on suspicion of committing a criminal offence. It is established that the special international standards, compliance with which is crucial for ensuring the rights of a detainee and which also guarantee the effectiveness of legal aid received by a detainee, include 1) the principle of confidentiality in the course of communication between a detainee and a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the rights of a detainee or their violation; 4) the principle of independent and free choice of one's legal position.
The following are proposed to be the sectoral international standards, compliance with which is crucial for ensuring the rights of a detainee, and which also guarantee the effectiveness of legal aid received by a detainee 1) the principle of confidentiality in the course of a detainee’s communication with a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the detainee’s rights or their violation; 4) the principle of independent and free choice of one’s legal position. The emphasis is placed on the fact that the prospects for further research should be to determine the legal mechanisms for implementing the outlined standards into the national practice of law enforcement and judicial authorities. |
| format | Article |
| id | doaj-art-a060bda00d144c349a0075778a4579d5 |
| institution | Kabale University |
| issn | 1999-5717 2617-278X |
| language | Ukrainian |
| publishDate | 2024-09-01 |
| publisher | Kharkiv National University of Internal Affairs |
| record_format | Article |
| series | Bulletin of Kharkiv National University of Internal Affairs |
| spelling | doaj-art-a060bda00d144c349a0075778a4579d52025-02-03T06:56:32ZukrKharkiv National University of Internal AffairsBulletin of Kharkiv National University of Internal Affairs1999-57172617-278X2024-09-01106318319310.32631/v.2024.3.15796Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human RightsM. М. Kolomoitsev0National Scientific Center “Hon. Prof. M. S. Bokarius Forensic Science Institute” of the Ministry of Justice of UkraineBased on the analysis of theoretical approaches to the essence of the institute of detention of a person, the article substantiates the position that detention is a procedural action which has a temporary restrictive nature of the rights of a person who was detained during the commission or attempted commission of a criminal offence, immediately after the commission of a criminal offence or during the continuous prosecution of a person suspected of a criminal offence, and which aims to ensure further pre-trial investigation, clarification of the circumstances of the event which occurred. Based on the generalisation of the provisions of international legal acts and taking into account the case law of the European Court of Human Rights, the author defines the standards for providing legal aid to a person detained on suspicion of committing a criminal offence. It is established that the special international standards, compliance with which is crucial for ensuring the rights of a detainee and which also guarantee the effectiveness of legal aid received by a detainee, include 1) the principle of confidentiality in the course of communication between a detainee and a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the rights of a detainee or their violation; 4) the principle of independent and free choice of one's legal position. The following are proposed to be the sectoral international standards, compliance with which is crucial for ensuring the rights of a detainee, and which also guarantee the effectiveness of legal aid received by a detainee 1) the principle of confidentiality in the course of a detainee’s communication with a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the detainee’s rights or their violation; 4) the principle of independent and free choice of one’s legal position. The emphasis is placed on the fact that the prospects for further research should be to determine the legal mechanisms for implementing the outlined standards into the national practice of law enforcement and judicial authorities.https://visnyk.univd.edu.ua/index.php/VNUAF/article/view/796criminal proceedingspre-trial investigationlegal aiddefencedefence counsellawyerinternational legal standardsprinciple. |
| spellingShingle | M. М. Kolomoitsev Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights Bulletin of Kharkiv National University of Internal Affairs criminal proceedings pre-trial investigation legal aid defence defence counsel lawyer international legal standards principle. |
| title | Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights |
| title_full | Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights |
| title_fullStr | Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights |
| title_full_unstemmed | Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights |
| title_short | Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights |
| title_sort | legal basis for providing legal aid to a detained person in the context of international standards and practice of the european court of human rights |
| topic | criminal proceedings pre-trial investigation legal aid defence defence counsel lawyer international legal standards principle. |
| url | https://visnyk.univd.edu.ua/index.php/VNUAF/article/view/796 |
| work_keys_str_mv | AT mmkolomoitsev legalbasisforprovidinglegalaidtoadetainedpersoninthecontextofinternationalstandardsandpracticeoftheeuropeancourtofhumanrights |