The Content of Fundamental Rights

Balsamo, Antonio

doi:10.1007/978-3-319-72462-1_3

Cited by 8 publications

(2 citation statements)

References 50 publications

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“…However, in criminal law of the European Union, there is a clear tendency to strengthen the role of the victim and strengthen the possibility of his or her active participation in the criminal procedure, 57 which are crucial determinants of Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime. 58 Member states are expected to facilitate the referral to mediation and other restorative justice services, 59 which may include various consensual forms, and this implies adequate protection of the interests of victims in these procedures. The interests of victims can be protected only if the possibility of their effective participation in consensual procedures is prescribed by law.…”

Section: Position and Role Of The Victimmentioning

confidence: 99%

Judgment Based on Agreement of the Parties: Analysis from the Perspective of Practitioners’ Experience in Croatia

2023

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The paper contains an analysis of judgments based on agreement of the parties, a Croatian model of plea bargaining, drawing on the experiences of three groups of practitioners: judges, state attorneys, and defence counsels. Previously conducted comparative legal analysis, as well as analysis of the Croatian normative framework and jurisprudence, was not able to provide answers to a number of questions about the motivation of the parties to negotiate, on the negotiation procedure which is not recorded in the protocol, about the real and the ideal role of the court, and about the real position of the parties and the victim. Hence, these issues were researched through semi-structured interviews with 60 practitioners and then further discussed in four focus groups. Some of the findings uncovered systemic inconsistencies in everyday legal practice in a number of areas. For instance, judgment based on agreement of the parties is more readily used in cases of serious offences, while other consensual forms of proceedings tend to be used for less serious offences. Informal negotiations at all stages of the criminal procedure have proven to be very popular with practitioners and sometimes even encouraged by judges. Yet, the issue of judicial control of the plea agreement divided the respondents, even though the right to judicial review of criminal prosecution is a fundamental principle of Croatian criminal procedure, which covers not only the fundamental issues of legality and voluntariness of the concluded agreement, but also the purposefulness of the proposed sanction. The victim's position in the plea-bargaining procedure is considered to be adequate, at least as long as the victim is involved, and there is a tendency to consult the victim even in cases when his or her consent is not required by law. Finally, although it is generally considered that defence rights are well protected, there are problematic issues, namely tariffs or the 'take it or leave it' offer, as well as the wide discretion of the state attorney when deciding to enter into negotiations and reach agreement. The qualitative analysis of the findings, which is presented in this paper, should contribute to drafting specific proposals for improvements in the legislation and practice of the judgment based on agreement of the parties in Croatian law. Many of these findings may also be relevant for other legal systems, especially those of the continental European legal tradition, since they may face the same problems and questions related to plea bargaining as a global phenomenon.

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Section: Position and Role Of The Victimmentioning

confidence: 99%

Judgment Based on Agreement of the Parties: Analysis from the Perspective of Practitioners’ Experience in Croatia

2023

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“…The ECtHR has stated that the right against self-incrimination is not absolute. 59 Rather, the right in question will be violated only when the degree of compulsion destroys its very essence. 60 In determining whether a proceeding has extinguished the very essence of the right against self-incrimination, the ECtHR analyses, in particular, the nature and degree of the compulsion employed, the existence of any relevant safeguards in the proceedings, and the use made by the authority of the coercively obtained evidence.…”

Section: Is the Right Against Self-incrimination Absolute Or Relative?mentioning

confidence: 99%

A Comparative Analysis of the Case Law of the European Court of Human Rights on the Right against Self-Incrimination

Veas

2022

Rev. Bras. Dir. Proc. Penal

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The right against self-incrimination can be understood as the right of all persons to remain silent and not to be forced to collaborate with an investigation against them. Despite of its fundamental importance, the right against self-incrimination raises several theoretical and practical discussions. Can defendants refuse to produce documentary evidence? Does this right apply to administrative and civil proceedings? What degree of coercion is necessary to trigger the application of this right? This article aims to analyse the evolution and current state of the case law of the European Court of Human Rights in order to elucidate how the European court has resolved the questions posed above.

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The Hybrid Nature of Banking Supervision

Lasagni

2019

Banking Supervision and Criminal Investigation

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The Content of Fundamental Rights

Cited by 8 publications

References 50 publications

Judgment Based on Agreement of the Parties: Analysis from the Perspective of Practitioners’ Experience in Croatia

Judgment Based on Agreement of the Parties: Analysis from the Perspective of Practitioners’ Experience in Croatia

A Comparative Analysis of the Case Law of the European Court of Human Rights on the Right against Self-Incrimination

The Hybrid Nature of Banking Supervision

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