Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 69
Julio
Diciembre
2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 69 (Julio - Diciembre) 2021, 643-665
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/03/2021 Aceptado el 20/06/2021
Judicial Control over the Observance of
Human Rights and Freedoms during the
Detention of a Person
DOI: https://doi.org/10.46398/cuestpol.3969.40
Elizaveta Kuzmichova-Kyslenko *
Maryna Horodetska **
Iryna Smal ***
Dariia Hurina ****
Myroslav Pototskyi *****
Abstract
The purpose of this study was to identify problems in
performing the functions of the investigating judge related to the
protection of human rights and freedoms during detention and to
oer solutions to them. The study is based on the use of methods of
sampling and prognosis; system approach; descriptive statistics;
comparison and collation; descriptive analysis method. We found out that
the restriction of certain rights and freedoms of a person, detained on
suspicion of having committed a crime, is quite legitimate, but some rights
are violated due to abuse of police authority. The right to liberty and the
right to security of person, the right to eective remedy and fair trial, and
the right to respect for private and family life are most often violated during
detention. Judicial control should be carried out in compliance with the
following principles: immediacy, automaticity, conducting trial proceedings
within a reasonable time. In order to universalize judicial control over the
protection of human rights and freedoms during detention, we propose to
develop an international legal document, regulating the conduct of judicial
control.
* Senior Lecturer of the Department of Criminal Procedure, National Academy of Internal Aairs.
ORCID ID: https://orcid.org/0000-0003-3212-5652. Email: grenada.versage23@gmail.com
** Associate Professor of Department of Organization of Pre-trial Investigation of Kryvyi Rih Educational
and Scientic Institute, Donetsk Law Institute of the Ministry of Internal Aairs of Ukraine, PhD in
Law. ORCID ID: https://orcid.org/0000-0002-3228-6299. Email: loskutovagorodetskaya17@gmail.
com
*** Associate Professor of Department of Theory of State, Law and Phylosophy, Faculty of Law, Private
Higher Educational Establishment “Academician Stepan Demianchuk International University of
Economics and Humanities”, PhD in Philosophical Sciences. ORCID ID: https://orcid.org/0000-
0002-0278-3972. Email: Raisa_Academiya@ukr.net
**** Deputy head of the Laboratory of educational and scientic work of State Scientic Reserch Forensic
Centre of the Ministry of Internal Aairs of Ukraine, PhD in Law. ORCID ID: https://orcid.org/0000-
0002-4613-8561. Email: dariya.hurina17@gmail.com
***** Postgraduate student in Donetsk Law Institute of the Ministry of Internal Aairs of Ukraine. ORCID
ID: https://orcid.org/0000-0002-2979-9114. Email: myropotocki@gmail.com
644
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
Keywords: judicial control; investigating judge; pre-trial investigation;
human right; detention of a person.
Control judicial sobre la observancia de los derechos
humanos y las libertades durante la detención de una
persona
Resumen
El objetivo de este estudio fue identicar problemas en el desempeño
de las funciones del juez de instrucción relacionadas con la protección de
los derechos humanos y las libertades durante la detención para ofrecerles
soluciones. El estudio se basa en el uso de métodos de muestreo y pronóstico:
aproximación del sistema; estadísticas descriptivas; comparación y
colación; método de análisis descriptivo. Descubrimos que la restricción
de ciertos derechos y libertades de una persona, detenida por sospecha
de haber cometido un delito, es bastante legítima, pero algunos derechos
son violados por abuso de autoridad policial. El derecho a la libertad y el
derecho a la seguridad de la persona, el derecho a un recurso efectivo y a un
juicio justo y el derecho al respeto de la vida privada y familiar se violan con
mayor frecuencia durante la detención. Se concluye que el control judicial
debe realizarse de acuerdo con los siguientes principios: inmediatez,
automaticidad, desarrollo del proceso judicial en un plazo razonable. Con
el n de universalizar el control judicial sobre la protección de los derechos
humanos y las libertades durante la detención, proponemos además
desarrollar un documento legal internacional que regule la conducción del
control judicial.
Palabras clave: control judicial; juez de instrucción; instrucción
preliminar; derechos humanos; detención de una
persona.
Introduction
Human rights and freedoms are recognized as the highest value at both
national and international levels (Ren, 2017). That is why fundamental
rights and freedoms are the main object of protection of any democratic
constitutional state. Therefore, the development of new, more eective
means of ensuring these rights, is still relevant in the studies of various
branches of jurisprudence.
645
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
As stated in the Convention for the Protection of Human Rights and
Fundamental Freedoms (thereinafter – the Convention) (Wikipedia, 2021)
and in The Universal Declaration of Human Rights (thereinafter – the
Declaration) (United Nations, 2021), all people have equal rights, that is
to say, the law equally protects fundamental human rights and freedoms
of people, regardless of their personal and social characteristics. In light
of this, it ought to be noted that both victims of crime and the persons,
suspected of having committed a crime, have equal rights. Following this
line of reasoning, the main task of the entire system of criminal proceedings
is, should the need arise, to provide each person, subjected to the criminal
proceeding, with a real opportunity to protect his/her rights and freedoms,
at any procedural stage (Jackson and Summers, 2018).
But in reality, we often face with the fact that the rights and freedoms
of the oenders (especially those, who have already committed a crime)
may be secured somewhat worse than the rights of other participants
of criminal proceedings, such as victims, witnesses, etc., because the
oender is credited with negative characteristics, associated with his anti-
social and criminal behaviour (Landina, 2017). For this reason, national
legislation enshrines not only the rights of everyone without exception,
but also guarantees to ensure the rights of certain categories of persons,
in particular the ones, who have been detained on suspicion of having
committed a crime. In addition, it is necessary that authorised persons
should be appointed at the legislative level in order to perform the function
of supervising the observance of human rights during detention as a stage
of pre-trial investigation.
The paper puts emphasis on the fact that some rights may be violated
during the detention of a person, namely the right to counsel (the right to
defence in pre-trial proceedings) (Soo, 2016), the right to privacy during
searches and taking of evidence in the pre-trial stage (Đurđević, 2016), the
right to information (if, at the time of arrest, the person is not informed of
his/her rights and the reasons for his/her arrest), the right to silence , etc
(Nastiuk et al., 2020; Allegrezza and Covolo, 2013).
At the same time, the detention of a person, suspected of committing a
crime, requires certain coercive measures, which provide for administration
of restrictions on human rights and freedoms on legal grounds. Current
trends in the development of national legislation, including criminal
procedure legislation, tend to implement basic international legal principles
ensuring the protection of human rights and freedoms (Billing, 2016).
Therefore, considerable attention is currently paid to judicial control over
the observance of human rights in pre-trial proceedings, including during
the detention of a person.
In order to exercise control over the provision of fundamental rights
and freedoms of a person during detention, procedural legislation of
646
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
certain countries provides for the institution of an investigating judge,
who carries out this judicial control (Rossinskiy, 2017). The institution of
an investigating judge provides additional guarantees for the observance
of fundamental human rights in criminal proceedings, which ensures due
course of law in legal suits (Sharenko, 2020). In general, attention is focused
on the problems of legislative control of the activities of the investigating
judge in the performance of his procedural obligations to ensure the rights
and freedoms of a person, detained on suspicion of having committed a
crime (Brants and Franken, 2009).
The practical signicance of studying the problem of judicial control
over the observance of human rights and freedoms during the detention of
a person is also accentuated by the fact that we have found very few works,
dedicated to this issue, most of which deal with it only cursorily in the
analysis of judicial control at the stage of pre-trial investigation. Thus the
functions of the investigating judge are considered through the prism of the
analysis of human rights and their violation during detention or notication
of suspicion of committing a crime (Bakyt, 2016); in the analysis of certain
human rights that are violated at dierent stages of criminal proceedings
(Yednak et al., 2020). Special attention is paid to the protection of children’s
rights in criminal proceedings in cases of suspicion of a wrongdoing or
detention (Mitsilegas, 2019), but with no particular focus on the role of the
investigating judge in these proceedings.
The research papers have not given consideration to the risks of
introducing the institution of an investigating judge (Radić, 2018), as
malpractice may occur in this sphere of activities, which shall be taken into
account when investigating the facts of misconduct by the investigating
judge (Nagy, 2016), in particular regarding restrictions on the right of
property (Muzychenko, 2017). Attention is given to the weaknesses of the
activities of the investigating judge in the protection of human rights in pre-
trial investigations (Kostin, 2015).
Instead, despite the importance of carrying out judicial control at the
national level, the main problems under investigation are almost complete
lack of rigorous research of the institution of judicial control and the role of
investigating judges, which they taken on with the purpose of enforcement
of human rights and freedoms during detention. And, since the detention of
a person limits such fundamental rights as the right to liberty and the right
to privacy, it is necessary to develop a clear and explicit mechanism for the
implementation of the task of the investigating judge to exercise judicial
control.
The purpose of the article. Given the above, the purpose of this study is
to identify problems in performing the functions of the investigating judge
related to the protection of human rights and freedoms during detention
and to develop ways to solve them. To that end, we will carry out the analysis
647
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
of theoretical provisions and criminal procedural legislation of individual
states concerning carrying out judicial control.
1. Methodology and methods
This study was carried out by stages, based on the logic of presentation
of the material, in order to achieve the goals and objectives set in the
article. These stages included: the search and selection of literary source
base; analysis of the material, presented in the selected literary sources
and evaluation of the results of these studies; identication of unsolved
problems in the eld of judicial control over the observance of rights and
freedoms during the detention of a person; determination of the purpose of
the article; formulation of conclusions and practical recommendations for
solving the issues under study; outlining prospects for further research in
this area.
This study used statistics on the level of legal recourses to the European
Court of Human Rights (thereinafter – ECtHR) regarding violations of
human rights and freedoms during detention in individual countries; the
data on fundamental human rights and freedoms that may be violated
during the detention of a person; the decisions of the ECtHR on violations of
human rights and freedoms during detention, enshrined in the Convention;
the analysis of criminal procedural norms of criminal procedure legislation
of dierent countries regulating the work of investigative judges. We have
taken into account the data on the number of judicial recourses to the
ECtHR by the citizens of dierent countries (the countries with the lowest
and the highest rates were selected), since the analysis of these data makes
it possible to assess the eectiveness of criminal procedure legislation of
individual countries on the enforcement of the rights and freedoms of the
persons, detained on suspicion of having committed a crime.
The empirical basis of the study were the decisions of the ECtHR on
violations of the provisions of Articles 5, 6 and 13 of the Convention, which
may be violated in cases of arbitrary detention or detention of a person in
violation of existing law (27 cases were analyzed). We have examined the
norms of the criminal law enforcement codes of 38 countries for analysis
of the provisions of the national criminal procedure legislation, which
determine the procedure for exercising judicial control over the observance
of human rights during the detention of a person, suspected of committing
a crime.
To reach the goal, the following methods were used in this study: the
method of systematic approach was used to study judicial control over the
observance of human rights and freedoms of people in detention as the
system of interrelated and interdependent procedural mechanisms and
648
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
to develop suggestions for improving statutory regulation of the work of
the investigating judge; the method of descriptive statistics, which was
used for processing, systematization and visual demonstration in the form
of tables of basic statistical indicators on violations of human rights and
freedoms in pre-trial proceedings; the method of comparison and matching
was used in order to establish logical patterns aecting the quantitative
indicators of violations of human rights and freedoms during detention;
the method of descriptive analysis was used to systematize, classify and
synthesize information on possible oenses, risks and weaknesses of the
activities of the investigating judge aimed at the protection of human
rights in prejudicial inquiries; the sampling method was used to select the
decisions of the ECtHR on violations of human rights and freedoms during
detention as the stage of prejudicial inquiry; the prognosis method was
used to develop suggestions and recommendations for improving statutory
regulation of procedural activities of the investigating judge.
2. Results of the research
Detention of a person suspected of committing a crime is, in essence,
depriving him/her of his/her right to freedom of movement and to commit
certain actions, primarily aimed at eeing the scene of a crime. That is, it is
certain restriction of the rights of such a person in connection with his/her
illegal (criminal) behavior.
A detainee, alleged to have committed a crime, is entitled, like any
other person, to all the rights and freedoms clearly set forth in national
and international laws and regulations, as was mentioned above. At the
same time, application of certain repressive measures by the authorized
state agencies as the occasion requires (for example, detention, arrest,
keeping in custody, etc.) is associated with the violation of a number of
fundamental human rights and freedoms, aimed primarily at disciplinary
and correctional treatment of the oender. Herewith, the restriction of
certain rights and freedoms is quite legitimate (as it is carried out for the
benet of society and in the public interest as a whole), and some rights are
violated due to abuse of police authority. Based on the analysis of legislation
and the court practice of the European Court of Human Rights, it was found
that a number of human rights and freedoms are quite often violated during
detention (see Figure 1), although their list is not exhaustive.
649
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
Figure 1. Human rights and freedoms that may be violated during the
detention of a person
Source: own elaboration
All the afore-referenced rights and freedoms are clearly set forth in
the Convention. During detention of a person rst of all the provisions,
enshrined in Article 5 of the Convention “Right to liberty and security”,
which guarantees that no one has the right to detain a person, to limit his
rights, except the cases provided for by law, are violated . Along with this,
the following rights are very often violated: the right, provided under Article
13 of the Convention “Right to an eective remedy” , which guarantees the
person the possibility of defending his rights and freedoms in case of their
violation; provisions of Part 2 of Article 6 of the Convention, according
to which a person accused of any crime shall be presumed innocent until
proven guilty as prescribed by law and is not obliged to prove his innocence;
the right to respect for private and family life, the right to housing and
the right to correspondence, violation of which is permitted only in cases
prescribed by law (Article 8 of the Convention) (Wikipedia, 2021). And
650
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
these provisions have been violated and, unfortunately, continue to be
violated in many countries (see Tables 1-3).
Table 1. Number of appeals to the ECtHR (by articles of the Convention
and by states) for 2018 (Violations by Article and by State, 2018)
Country Number of Article of the Convention
5 6 8 13
Albania 1 0 0 0
Andorra 0 0 0 0
Denmark 0 0 0 0
Estonia 0 0 1 0
Finland 0 0 0 0
Iceland 0 0 0 0
Ireland 0 1 0 0
Liechtenstein 0 0 0 0
Luxembourg 1 1 0 0
Monaco 0 0 0 0
Norway 0 0 1 0
San Marino 0 0 0 0
Sweden 0 0 0 0
Armenia 8 7 0 1
Bulgaria 0 10 3 6
Greece 6 11 1 12
Hungary 2 11 2 6
Moldova 14 5 2 6
Romania 1 21 6 3
the Russian
Federation
99 68 26 67
Turkey 29 53 8 7
Ukraine 45 63 12 37
651
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
Table 2. Number of appeals to the ECtHR (by articles of the Convention
and by states) for 2019 (Violations by Article and by State, 2019)
Country Number of Article of the Convention
5 6 8 13
Albania 0 0 0 0
Andorra 0 0 0 0
Czech Republic 0 0 0 0
Denmark 1 0 0 0
Estonia 0 0 1 1
Finland 0 0 0 0
Germany 0 0 0 0
Ireland 0 1 0 0
Liechtenstein 0 0 0 0
Luxembourg 0 0 0 0
Monaco 0 0 0 0
Netherlands 0 1 0 0
San Marino 0 1 0 0
Sweden 0 0 0 0
Armenia 0 5 2 3
Bulgaria 0 4 2 5
France 0 7 1 1
Greece 5 10 0 7
Hungary 5 27 1 16
Moldova 9 27 4 3
Romania 2 11 4 0
Russian
Federation
90 76 22 43
Turkey 16 17 11 2
Ukraine 54 58 9 38
652
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
Table 3. Number of appeals to the ECtHR (by articles of the Convention
and by states) for 2020 (Violations by Article and by State, 2020)
Country Number of Article of the Convention
5 6 8 13
Austria 0 0 0 0
Andorra 0 0 0 0
Cyprus 0 1 0 0
Denmark 0 0 0 0
Estonia 0 0 0 0
Finland 0 0 0 0
Ireland 0 1 0 0
Liechtenstein 0 0 0 0
Luxembourg 0 0 0 0
Netherlands 0 0 0 0
San Marino 0 1 0 0
Sweden 0 0 0 0
Armenia 11 7 0 0
Azerbaijan 17 21 10 1
Bulgaria 6 4 7 3
Greece 0 9 1 7
Hungary 8 7 3 2
Moldova 2 15 2 2
Romania 1 14 10 3
Russian
Federation
82 63 24 27
Turkey 16 24 11 0
Ukraine 49 28 3 18
These data show that the number of appeals to the ECtHR for individual
countries remains stable (with minor changes). The number of human
rights violations depends not so much on the socio-economic standard of
living of people as on the level of democracy and ensuring the protection
of the human rights in the country: the higher the eective protection of
653
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
fundamental democratic principles, the fewer the number of appeals to the
ECtHR is according to the specied norms. This shows that the number of
violations of fundamental human rights and freedoms during the detention
of a person is lower in such countries.
Without reference to the number of cases of violation of the provisions of
the Convention, in the vast majority of states there is a special mechanism
to ensure the protection of the rights of persons, detained on suspicion of
having committed a crime. In much of the world, the investigating judge is
the person, who monitors observance of human rights during detention.
As a rule, the institution of judicial control itself, the investigating judge,
his duties, as well as the grounds and mechanism of their performance are
dened at the legislative level and enshrined in the form of norms in the
national criminal procedure legislation (see Table 4).
Table 4. Norms of the criminal procedure legislation regulating the
institute of the investigating judge (by states) (Cornell Law School, 2021)
Country Article regulating the exercise of
judicial control
USA the Fourth Amendment of “The Bill of Rights”
France Article 137 of the Penal Code
England Article 38 (4) of the Magistrates’ Courts Act
Germany § 115 of the Penal Code
Ukraine Article 206 of the Penal Code
the Russian Federation Article 165 of the Penal Code
Kazakhstan Article 54 of the Penal Code
Moldova Chapter VIII Article 300 of the Penal Code
the Republic of
Macedonia
Article 289-290 of the Penal Code
the Republic of Bulgaria Article 65 of the Penal Code
Romania Section 3 Article 214 of the Penal Code
Turkey Article 103, Article 109 of the Penal Code
Instead, it should be noted that judicial control over the observance of
human rights and freedoms during detention (as well as during other stages
of the pre-trial investigation) is not provided for in the criminal legislation of
Albania, Ireland, Liechtenstein, Croatia, the Czech Republic, Mongolia, and
654
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
Saudi Arabia. In some countries, the function of control over the observance
of human rights and freedoms during detention is entrusted to other penal
procedure bodies: the prosecutor Netherlands (Criminal Procedure Code
of the Kingdom of Netherlands, 2012), (Criminal Procedure Code of the
Kingdom of Norway, 2013), the judicial police Bosnia and Herzegovina
(Criminal Procedure Code of the Federation of Bosnia and Herzegovina,
2014).
Having regard to the number of appeals to the ECtHR, the rulings of the
court, delivered by the ECtHR regarding human rights violations during the
pre-trial investigations, including during detention, as well as control over
the observance of human rights and freedoms in criminal proceedings, is
the necessary step and an important function for ensuring person-centered
administration of justice. Therefore, it has obviously become necessary
to regulate statutorily judicial control in the national criminal procedural
codes of as many countries as possible.
The need for judicial control over the observance of human rights during
the detention of a person suspected of committing a crime is evidenced by
the existing judgements of the ECtHR, delivered in cases of violation of
human rights and freedoms under Articles 5, 6 and 13 of the Convention,
which concern precisely the violation of the right to liberty and security, the
right to a fair trial and the right to an eective remedy (see Table 5).
Table 5. Judicial decision of ECtHR on violations of human rights and
freedoms provided for under Articles 5, 6 and 13 of the Convention
(Hudoc, 2021)
Article of the
Convention
Decision of the European Court of Human Rights
Article 5 “Right
to liberty and
security”
“Medvedev and others v France”, ECtHR 29 March 2010;
“Fox, Campbell and Hartley v The United Kingdom”, ECtHR 30
August 1990;
“Amuur v. France”, ECtHR 25 June 1996;
“Fedotov v. Russia”, ECtHR25 October, 2005;
“Khudobin v. Russia”, ECtHR 26 October 2006;
“Gusinsky v. Russia”, ECtHR 19 May 2004;
“Yagci and Sargin v. Turkey”, ECtHR 8 June 1995;
“Jabłoński v. Poland”, ECtHR 21 December 2000;
“I.A. v. France”, ECtHR 23 September 1998;
“Ilowiecki v. Poland”, ECtHR 4 October 2001;
“Vrencev v. Serbia”, ECtHR 23 September 2008;
“Korneykova v. Ukraine”,ECtHR of January 19, 2012;
“Gal v. Ukraine”, ECtHR 16 April 2015;
“Navalnyy v. Russia”, ECtHR April 9, 2019.
655
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
Article 6 “The
right to a fair
trial”
“Šubinski v. Slovenia”, ECtHR 18 January 2007;
“Nakhmanovich v. Russia”,ECtHR 2March, 2006;
“Ivanov v. Ukraine”, ECtHR 7 December 2006;
“Kiryakov v. Ukraine”, ECtHR 12 January 2012;
“Nakonechnyy v. Ukraine”,ECtHR January 26, 2012;
“Yurtayev v. Ukraine, ECtHR 31 January 2006;
“Korneykova v. Ukraine”, ECtHR 19January, 2012;
“Vera Fernández-Huidobro v.Spain”, ECtHR 6 January 2010;
“Correia de Matos v. Portugal”, ECtHR 4 April 2018;
“Lagerblom v. Sweden”, ECtHR 14 January 2003
Article 13
“The right to
an eective
remedy”
“Panteleyenko v. Ukraine”, ECtHR 29 June 2006;
“Smith and Grady v. United Kingdom”, ECtHR 27 September
1999;
“Aksoy v. Turkey”, ECtHR 18 December 1996
Judicial control is a special type of procedural activities at the stage of
pre-trial investigation, which in international law is called «Habeas Corpus
Act» (Sereda, 2016). In essence, judicial control at the stage of detention
of a person is a specic criminal procedure, aimed at ensuring respect for
the fundamental rights and freedoms of a person, detained on suspicion of
committing a crime, as well as ensuring redress for the violation of human
rights and freedoms in case of their violation by authorized government
bodies. The essence of judicial control is that it is the exercise of judicial
power at the stages of pre-trial investigation, aimed at ensuring the
lawfulness and compliance with the international legal principles of human
rights protection during certain procedural actions. The ultimate purpose
of judicial control is to ensure the principle of the rule of law, in particular
at the stage of detention of a person.
Based on the provisions of the criminal procedure legislation, the function
of judicial control over the observance of the rights of persons, detained
on suspicion of committing a crime, is performed by various subjects– the
investigating judge, the judicial police, the prosecutor. It would appear that
the subject of this function should be the investigating judge, as conducting
control over the observance of human rights and freedoms during pre-trial
investigations reveals the legal nature of his activities. Instead, the legal
nature of the prosecutor’s work is the prosecution on behalf of the state
or government, while the police, even the judicial police, are intended to
perform law enforcement functions.
This position is conrmed by the fact that in the criminal procedure
legislation of those countries, where the function of judicial control is
provided, it is clearly dened that the investigating judge is the judge of
the rst-instance court, whose procedural duty, in accordance with the
criminal procedure legislation, is to exercise judicial control over the
656
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
observance of fundamental human rights and freedoms at all stages of
criminal proceedings (Liga360, 2012).
The institution of the investigating judge is relatively new in many
countries, and therefore the attitude to the existence of such a specially
authorized person, whose duty is to exercise judicial control over the
observance of human rights and freedoms during his detention, is quite
ambiguous. The reason for this is that, on the one hand, performing by the
investigative judge of his procedural function of the observance of human
rights and freedoms of the detainee in pre-trial investigations is in some
cases excessively idealized and overemphasized.
Due to such inaccurate statements, judicial control is considered to be an
absolutely impeccable guarantee of the legitimacy of criminal proceedings,
especially with regard to certain investigative actions, such as the detention
of a person on suspicion of committing a crime. In fact, it is not consistent
with the reality, as judicial control is only an additional guarantee of respect
for human rights and freedoms during detention, along with other subjects
of criminal proceedings (the prosecutor, the judge, the defense counsel).
Judicial control, exercised by the investigating judge, takes place
in the manner prescribed by law. According to the general provisions of
international law, a detainee must be taken to court to verify the validity
and lawfulness of his detention within 24hours of his detention. But a
person must be brought before the court without undue delay so that the
investigating judge would conduct control over the observance of human
rights and freedoms of the detainee, which is emphasized in the criminal
procedure laws of some countries (in particular, of Ukraine – Article 209
of the Penal Code of Ukraine). However, national criminal procedure laws
rarely specify how the immediacy of taking a detainee to court should
be understood. Therefore, it is appropriate to oblige national criminal
procedure laws to regulate the period, during which a detainee should be
brought before an investigating judge by stating “immediately, that is not
later than 24 hours from the moment of detention”. Such explicitation will
reduce the risk of illegal administration of restrictions on persons who
have been detained illegally, as well as will reduce the likelihood of further
violation of their rights and freedoms.
Thus, in practice, there are often some diculties with the
implementation of this function, as judicial control over the observance
of rights and freedoms during the detention of a person is conducted not
in all cases. In particular, if a person is released without the prosecution
appealing to the investigating judge in order to establish the lawfulness
of detention, the released person will not be able to lodge a complaint of
unlawful detention. Similarly, if judicial control is not exercised, even if the
detention of a person is unlawful, the prejudicial inquiry of the case will
be continued and the authorized bodies will proceed to the next stage –
657
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
applying a measure of restraint. And in judicial proceedings on applying
a measure of such restraint, the investigating judge will not always assess
the lawfulness or unlawfulness of the person’s detention. In order to avoid
such a situation, that is, to ensure the restoration of the violated rights and
freedoms of a person during detention, judicial control should be carried
out automatically, without the necessity for a representative of any of the
parties of the criminal proceedings to make appropriate submissions before
the judge.
Disadvantages of carrying out judicial control may also be manifested in
judicial malfeasances by the investigating judge and in certain risks on the
part of a person detained on suspicion of committing a crime, which was
discovered in the study after examining theoretical and empirical sources
(see Figure 2).
Figure 2. Risks of judicial malfeasance
Provision on the automatic exercise of judicial control over the observance
of the rights and freedoms of a person, detained on suspicion of committing a
crime, may help to avoid judicial malfeasance on the part of the investigating
judge and the risks of illegal obstruction of justice by the detainee. It is also
necessary to establish timelines after which the investigating judge must
deliver informed judgement on the lawfulness/unlawfulness of the person’s
detention. This period may be up to 72 hours (3 days), during which the
investigating judge, having studied the circumstances of the case, must
make an informed judgement on lawfulness/unlawfulness of the detention
of a person, suspected of committing a crime.
658
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
Thus, the above mentioned indicates that the activities of the
investigating judge on the control over the observance of rights and
freedoms during the detention of a person are not devoid of diculties and
shortcomings. This is explained, rst of all, by insucient elaboration of
the problem of improving statutorily regulation of the functioning of such
a procedural institution. In order to eliminate the specied shortcomings
and to universalize judicial control over the protection of human rights
and freedoms during detention, it is necessary to develop an international
normative legal document, which will be binding on all State Parties to this
future document. It should regulate the concept, essence and principles of
exercising judicial control and determine the parties to criminal proceedings
that will exercise criminal justice.
The proposed document should include the following provisions:
- The concept of judicial control as specic criminal procedure, aimed
at ensuring respect for the fundamental rights and freedoms of
a person, detained on suspicion of committing a crime, as well as
ensuring redress for the violation of human rights and freedoms in
case of their violation by authorized government bodies.
- The subject of judicial control is the investigating judge.
- The principles of judicial control over the observance of human
rights and freedoms during detention are immediacy (the detainee
should be delivered to court within 24 hours of detention) and
automaticity (judicial control over the lawfulness of detention of
a person, suspected of committing a crime, should be carried out
through making appropriate submissions before the judge by a
representative of any of the parties to the criminal proceedings).
- Terms of judicial control and making an informed decision by the
investigating judge should be dened as 72 hours (3 days), during
which the investigating judge, having studied the circumstances
of the case, has to make an informed judgement on lawfulness/
unlawfulness of the detention of a person suspected of committing a
crime.
3. Discussion
The institution of an investigating judge is one of the guarantors of the
observance of human rights and freedoms during detention of a person,
which can at the same time be viewed as manifestation of the interaction
between the court and the bodies of pre-trial investigation. That is why this
institution is important and necessary in criminal proceedings. This view
is conrmed by the exceptional importance of the rights and freedoms of a
659
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
person (Nastiuk et al., 2020), which are ensured in the process of judicial
control during the detention of a person. Moreover, it is noted that judicial
control is the main guarantee of respect for the rights (Aljinovic, 2019) of
persons detained on suspicion of committing a crime, as a separate type
of defendants, as well as excessive interference with their rights. However,
this is only one of the guarantees of observance of the rights of persons,
detained on suspicion of committing crimes.
Although there is an opinion that the exercise of judicial control
(Rossinskiy, 2017) in criminal proceedings is needless, as no special
functional responsibilities are performed when carrying out judicial
control. But it is dicult to agree with such a position, which is emphasized
in the study of the role of the investigating judge in ensuring human rights
in pre-trial proceedings (Kostin, 2015). In particular, this study underlines
the eectiveness of judicial control over the observance of the rights and
freedoms of detainees in the pre-trial investigation, in particular control
over the actions of the prosecuting ocial (the prosecutor) (Nowak, 2014).
In some studies, the rights, and freedoms of a person, guaranteed by an
investigating judge, include only the right to due process of law, the right to
liberty and the right to property, which are considered to be the key rights in
exercising judicial control (Bielousov et al., 2020). Although, in fact, during
the detention of a person, and at other stages of the pre-trial investigation,
other human rights (the right to information, the right to remain silent,
etc.) are violated as well, as mentioned above.
The concept of judicial control is also dened in dierent ways. Thus,
some studies state that pre-trial control consists exclusively in verifying the
legality and validity of decisions on detention (arrest or keeping in custody)
and in the elimination of wrongful incarceration of persons suspected of
committing a crime (Khanov, 2017). However, most scholars yet recognize
that judicial control is aimed precisely at protecting the fundamental human
rights and freedoms of a person in criminal proceedings and ensuring their
observance (Hinarejos, 2009).
The shortcomings, identied in the exercise by the investigating judge of
judicial control over the observance of human rights and freedoms during
detention indicate deciencies in the mechanism for exercising judicial
control. Therefore, it is impossible to consider this institution eective in
the form in which it exists in some countries (Soo, 2018). Consequently,
one cannot agree with excessive idealization and absolutization of judicial
control in accordance with the current legislation in individual countries
(Zinets, 2005).
Scientists have conducted very few researches in the criminal procedure
law doctrine, dedicated to the improvement of the activities of the
investigating judge in monitoring the observance of human rights and
660
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
freedoms in the pre-trial investigation. But even those few ones, that have
been conducted, rarely oer specic means of increase of eciency and
improvement, but only identify shortcomings and problems in the exercise
of judicial control by the investigating judge (Trukšāne, 2020). And the
few studies that contain practical recommendations, as a rule, relate only
to national legislation and do not go beyond the native country of the
researcher (Bortun, 2018). Instead, international law contains a number
of normative legal acts that elaborate on the procedure for ensuring human
rights and freedoms during the detention of a person (Pivaty and Soo,
2019), which indicates the importance of eliminating shortcomings in the
exercise of judicial control in this area at the international level. Improving
the conduct of judicial control over the observance of rights and freedoms
during the detention of a person may become a prospect of further research
in this eld of study.
Conclusions
The institution of an investigating judge is one of the guarantors of
respect for human rights and freedoms during detention of a person, which
at the same time can be seen as manifestation of the interaction between
the bodies of pre-trial investigation and the court. Consequently, this
institution is important and necessary in criminal proceedings.
Judicial control at the stage of detention of a person is a specic criminal
procedure, aimed at ensuring respect for the fundamental rights and
freedoms of a person detained on suspicion of committing a crime, as well
as ensuring redress for the violation of human rights and freedoms in case
of their violation by authorized government bodies.
The subject of this function should be an investigating judge – a judge
of the rst-instance court, whose procedural duty, in accordance with
the criminal procedure legislation, is to exercise judicial control over the
observance of fundamental human rights and freedoms at all stages of
criminal proceedings.
Judicial control must be exercised in accordance with the following
principles: the detainee should be delivered to the investigating judge
immediately, not later than 24 hours from the moment of detention;
judicial control should be exercised automatically, without the obligatory
request of a representative of any of the parties to the criminal proceedings;
the investigating judge, having studied the circumstances of the case, must
within 72 hours (3 days) deliver informed judgement on the lawfulness/
unlawfulness of the detention of a person suspected of committing a crime.
661
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
In order to eliminate shortcomings and universalize judicial control
over the protection of human rights and freedoms during detention, it is
necessary to develop an international normative legal document, which will
be binding on all State Parties to this future document and will regulate the
concept, essence and principles of exercising judicial control and determine
the parties to criminal proceedings that will exercise criminal justice.
This study opens the prospects of developing the most eective model
of procedural activity of an investigating judge and implementation of
the function of judicial control over the observance of human rights and
freedoms of a person detained on suspicion of committing a crime in
criminal proceedings in general on the basis of further collection of statistics
on individual countries on the number of violations of human rights and
freedoms during detention and on the number of appeals to the European
Court of Human Rights.
Bibliographic References
ALJINOVIC, Nevena. 2019. “Special Evidentiary Actions in the Context of
Judicial Control of their Application in Practice in the Republic of
Croatia” In: 44th International Scientic Conference on Economic and
Social Development – Split, 19-20 September 2019, pp. 69-80.
ALLEGREZZA, Silvia; COVOLO, Valentina. 2013. “The directive 2012/13/EU
on the right to information in criminal proceedings: status quo or step
forward?” In: EU Pravo. Available online. In: https://eu.pravo.hr/_
download/repository/3_-_The_Directive_201213EU_on_the_Right_
to_Information_in_Criminal_Proceedings--_status_quo_or_step_
forward.pdf. Date of consultation: 17/03/2020.
BAKYT, Aidar. 2016. “Authorization of the Barring Order by the Investigating
Judge: Problems of Legislative Regulation” In: Journal of Advanced
Research in Law and Economics (JARLE). Vol. 7, No. 19, pp. 989-994.
BIELOUSOV, Yuriy; VENGER, Volodymyr; ORLEAN, Andriy; KRAPYVIN,
Yevgen; SHAPUTKO, Svitlana; YAVORSKA, Vasylyna. 2020. The Role
of the Court in Criminal Proceeding. Publisher Klymenko Yu. Ya. Kyiv,
Ukraine.
BILLING, Fenella. 2016. The Right to Silence in Transnational Criminal
Proceedings: Comparative Law Perspectives. Springer International
Publishing. Switzerland, Ginevra.
BORTUN, Mykola. 2018. “Ensuring the Eectiveness of a Pre-trial Investigation
under Current Circumstances” In: Visnyk NAPU. Vol. 2, pp. 46-57.
662
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
BRANTS, Chrisje; FRANKEN, Sitjn. 2009. “The protection of fundamental
human rights in criminal process General report” In: Utrecht Law
Review. Vol. 5, No. 2, pp. 7-65.
CORNELL LAW SCHOOL. 2021. Fourth Amendment. U.S. Constitution
Annotated Toolbox. In: Legal Information Institute. Available online. In:
https://www.law.cornell.edu/constitution-conan/amendment-4. Date
of consultation: 17/03/2021.
CRIMINAL PROCEDURE CODE OF THE FEDERATION OF BOSNIA
AND HERZEGOVINA. 2014. In: Legislati online. Available online. In:
https://www.legislationline.org/download/id/8503/le/CPC_FBiH_
am2014_eng.pdf. Date of consultation: 17/03/2021.
CRIMINAL PROCEDURE CODE OF THE KINGDOM OF NETHERLANDS.
2012. In: Legislati online. Available online. In: https://www.
legislationline.org/download/id/6416/file/Netherlands_CPC_
am2012_en.pdf. Date of consultation: 17/03/2021.
CRIMINAL PROCEDURE CODE OF THE KINGDOM OF NORWAY. 2013.
In: Legislati online. Available online. In: https://www.legislationline.
org/download/id/8290/le/Norway_Criminal_Procedure_Act_1981_
am2013_en.pdf. Date of consultation: 17/03/2021.
ĐURĐEVIĆ, Zlata. 2016. The directive on the right of access to a lawyer in
criminal proceedings: lling a human rights gap in the European Union
Legal Order. Edited by Đurđević Zlata, Ivičević Karas. In: European
Criminal Procedure Law in Service of Protection of European Union
Financial Interests: State of Play and Challenges, pp. 9-25. Association of
European Criminal Law. Zagreb, Croatian
HINAREJOS, Alicia. 2009. Judicial control in the European Union: Reforming
jurisdiction in the intergovernmental pillars. Oxford University Press.
New York, USA.
HUDOC. 2021. European Court of Human Rights. Available online. In: https://
hudoc.echr.coe.int/Eng#%20. Date of consultation: 17/02/2021.
JACKSON, John; SUMMERS, Sarah. 2018. Obstacles to fairness in criminal
proceedings: individual rights and institutional forms. Hart Publishing.
Portland-Oregon, USA.
KHANOV, Talhat. 2017. “Judicial control over ensuring the rights of the
individual during the pre-trial investigation” In: KEU Bulletin,
Economics, Philosophy, Pedagogy, Jurisprudence. Available online. In:
https://articlekz.com/article/27815. Date of consultation: 17/02/2021.
663
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
KOSTIN, Mykhailo. 2015. The role of investigative judge in ensuring the
right of a person to launch the pre-trial investigation. In: Bulletin
of the High Qualication Commission of Judges of Ukraine.
Available online. In: https://webcache.googleusercontent.com/
search?q=cache:zdDQoNRZZ34J:https://www.vkksu.gov.ua/ua/
about/visnik-vishoi-kvalikatsiynoi-komisii-suddiv-ukraini/the-role-
of-investigative-judge-in-ensuring-the-right-of-a-person-to-launch-
the-pre-trial-investigation/+&cd=1&hl=ru&ct=clnk&gl=ua. Date of
consultation: 17/10/2020.
LANDINA, Anna. 2017. “Ensuring the right of the subject of the crime by the
principles of criminal law” In: Judicial appeal. Vol. 1, pp. 66-73. Available
online. In: http://nbuv.gov.ua/UJRN/Suap_2017_1_11. April 15, 2021.
Date of consultation: 17/03/2020.
LIGA 360. 2012. The investigating judge. In: Ligazakon. Available online. In:
https://ips.ligazakon.net/document/TM044324. Date of consultation:
17/03/2020.
MITSILEGAS, Valsamis. 2019. “The European Union and the Rights of
Individuals in Criminal Proceedings.” Edited by: D. K. Brown, J. I.
Turner, B. Weisser. In: The Oxford Handbook of Criminal Process.
Oxford, Oxford University Press.
MUZYCHENKO, T. O. 2017. Institute of Appeal the Investigating Judge’s Ruling,
that Restricts Right of Ownership during the Pretrial Investigation:
Concept, Features and Value. In: Sciences of Europe. Vol. 13, No. 4, pp.
100-103.
NAGY, Sarah. 2016. “Use and Abuse of Pre-Trial Detention in Council of Europe
States: A Path to Reform” In: Loyola University Chicago International
Law Review. Vol. 13, No. 2. Available online. In: https://lawecommons.
luc.edu/lucilr/vol13/iss2/6. Date of consultation: 17/10/2020.
NASTIUK, Vasyl; MIKHAILOV, Oleksandr; IZBASH, Ekaterina;
KONDRATENKO, Vitalii. 2020. “Judicial control over investigative
(search) actions that require prior permission” In: Amazonia Investiga.
Vol. 9, No. 28, pp. 151-158. Available online. In: http://dx.doi.
org/10.34069/AI/2020.28.04.18. Date of consultation: 17/10/2020.
NOWAK, Celina. 2014. “Judicial Control of the Prosecutors’ Activities in the
Light of the ECHR” In: EUCRIM. Vol. 2, pp. 60-63.
PENAL CODE OF UKRAINE. 2001. Available online. In: https://www.
legislationline.org/documents/action/popup/id/16257/preview. Date
of consultation: 17/03/2020.
664
Elizaveta Kuzmichova-Kyslenko, Maryna Horodetska, Iryna Smal, Dariia Hurina y Myroslav
Pototskyi
Judicial Control over the Observance of Human Rights and Freedoms during the Detention
of a Person
PIVATY, Anna; SOO, Anneli. 2019. “Article 7 of the Directive 2012/13/EU on
the Right to Information in Criminal Proceedings: A Missed Opportunity
to Ensure Equality of Arms in Pre-Trial Proceedings?” In: European
Journal of Crime, Criminal Law and Criminal Justice. Vol. 27, No. 2, pp.
126-154.
RADIĆ, Ivana. 2018. “Right of the child to information according to the directive
2016/800/EU on procedural safeguards for children who are suspects or
accused persons in criminal proceedings” In: EU and Comparative Law
Issues and Challenges Series (ECLIC). Vol. 2, pp. 468-491. Available
online. In: https://doi.org/10.25234/eclic/7122. Date of consultation:
17/10/2020.
REN, Shuai-jun. 2017. “On the Value of Human Rights in the Socialist Core
Values” In: Journal of Wuhan University of Technology (Social Sciences
Edition). Vol. 6. Available online. In: https://en.cnki.com.cn/Article_en/
CJFDTotal-WHJT201706007.html. Date of consultation: 17/03/2021.
ROSSINSKIY, S. B. 2017. “Reections on the eciency of judicial control over
the production of investigative actions” In: Tomsk State University
Bulletin. Vol. 423, pp. 225-235.
SEREDA, K. 2016. “Habeas Corpus Act” procedure for compliance of domestic
legal regulation with international standards” In: Scientic Bulletin of
Uzhhorod National University. Vol. 41, No. 2, pp. 177-180.
SHARENKO, Svitlana. 2020. “Problematic Issues of the Activity of the
Investigating Judge in Executing Judicial Control for the Protection
of Human Rights” In: Law of Ukraine. Vol. 256. Available online. In:
https://heinonline.org/HOL/LandingPage?handle=hein.journals/
lawukrai2020&div=210&id=&page=. Date of consultation: 17/03/2021.
SOO, Anneli. 2016. “Potential Remedies for Violation of the Right to Counsel
in Criminal Proceedings: Article 12 of the Directive 2013/48/EU (22
October2013) and its Output in National Legislation” In: European
Criminal Law Review. Vol. 6, pp. 284-307. Available online. In:
https://doi.org/10.5771/2193-5505-2016-3-284. Date of consultation:
17/03/2021.
SOO, Anneli. 2018. “(Eective) Remedies for a Violation of the Right to Counsel
During Criminal Proceedings in the European Union: An Empirical
Study” In: Utrecht Law Review. Vol. 14, No. 1, pp. 18-60.
TRUKŠĀNE, Zane. 2020. “Limits of competence of an investigating judge
in the pre-trial criminal proceedings. Individual. Society” In: State.
Proceedings of the International Student and Teacher Scientic and
665
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 643-665
Practical Conference. Available online. In: https://doi.org/10.17770/
iss2019.5298. Date of consultation: 17/03/2021.
UNITED NATIONS. 2021. Universal Declaration of Human Rights. Available
online. In: https://www.un.org/en/about-us/universal-declaration-of-
human-rights. Date of consultation: 17/03/2021.
VIOLATIONS BY ARTICLE AND BY STATE. 2018. In: ECHR. Available online.
In: https://www.echr.coe.int/Documents/Stats_violation_2018_ENG.
pdf. Date of consultation: 17/03/2021.
VIOLATIONS BY ARTICLE AND BY STATE. 2019. In: ECHR. Available online.
In: https://www.echr.coe.int/Documents/Stats_violation_2019_ENG.
pdf. Date of consultation: 17/03/2021.
VIOLATIONS BY ARTICLE AND BY STATE. 2020. In ECHR. Available online.
In: https://www.echr.coe.int/Documents/Stats_violation_2020_ENG.
pdf. Date of consultation: 17/03/2021.
WIKIPEDIA. 2021. Convention for the Protection of Human Rights and
Fundamental Freedoms. Available online. In: https://en.wikipedia.org/
wiki/European_Convention_on_Human_Rights. April 15, 2021. Date
of consultation: 17/03/2021.
YEDNAK, Viacheslav; VITIUK, Dariya; KRUT, Kateryna; GROKHOLSKYI,
Vadym. 2020. “Ensuring the Rights of the Person When Notifying of
Suspicion or Detention on Suspicion of Committing a Criminal Oense”
In: Amazonia Investiga. Vol. 9, No. 25, pp. 423-428.
ZINETS, R. A. 2005. Judicial control at the stage of preliminary investigation:
procedural and organizational aspects. [PhD Thesis]. Volgograd, VA
Ministry of Internal Aairs of Russia. Moscow, Russia.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en julio de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 69
