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Please use this identifier to cite or link to this item: https://elib.bsu.by/handle/123456789/30256
Title: Справедливое судебное разбирательство: международный опыт и законодательство Республики Беларусь
Other Titles: Fair Trial: International Experience and Belarusian Legislation (Ludmila Zaitseva)
Authors: Зайцева, Людмила Львовна
Keywords: ЭБ БГУ::ОБЩЕСТВЕННЫЕ НАУКИ::Государство и право. Юридические науки
Issue Date: 1999
Citation: Белорусский журнал международного права и международных отношений. — 1999. — № 2
Abstract: "Fair Trial: International Experience and Belarusian Legislation" The right to fair trial is a generally recognized international legal norm which directly concerns human rights. It is embodied in the Universal Declaration of Human Rights (article 10), the International Covenant on Civil and Political Rights (p. 1, art. 14) and the European Convention on Human Rights and Fundamental Freedoms (p. 1, art. 6). This principle is indissolubly connected with the right to effective restoration of violated rights and the recognition of the fact that the most adequate body able to provide such restoration is the court. Court protection provision and access to justice is valid only when the judicial body is actually capable of effective restoring of the violated right. In this connection the international community has elaborated and fixed in legal norms the mandatory forms of court procedure named the basic guarantees, which satisfy the notions of just court examination, first of all on criminal cases. In the opinion of the European Court on Human Rights one of the main elements of fair trial is its implementation on the basis of complete equality of the starting points for prosecution and defence which in procedure law is called the adversary principle. Taking into consideration its importance for the protection of citizens' rights, the Constitution of the Republic of Belarus fixed this principle in Article 115 in the following way: "justice is realized on the adversary principle and equality of the sides in the process". But this principle is still absent from the Criminal and Procedure Code. Besides, the adversary nature of the process envisions separation of main functions in litigation. Or, more correctly, separation of the settlement of the case pertaining to court from the functions of prosecution and defence and the impossibility of empowering one body or one person with them. The current criminal legislation of Belarus empowers the court with the functions not characteristic ofjustice which is indicative of the prosecutive bias in its activity. To this belong, in particular, serving of the copy of the indictment and its pronoucement in court, the obligatory first interrogation of the parties to the proceedings and referring the case for additional examination. Not only does the procurator have some preferential rights in the proceedings compared with the defence but he also exercises the supervision of legality which is contrary to the principle of justice and equality of the sides and does not agree with international and European standards. The withdrawal of the authority not usual for the court and the procurator will help to eliminate the prosecutive bias in court proceedings and to create the due conditions for competition. This would permit the court to realize its main duty of providing the fair trial proceedings and observation of the rights of the parties. Since the citizens' right to fair trial is one of the inalienable natural human rights, it must have a constitutional status. That is why it should be fixed in the Constitution of the Republic of Belarus and also in the Criminal and Procedure Code so as to bring national legislation as close as possible to international legal standards.
Description: Раздел - "Международное право", рубрика - "Международное право и внутригосударственное право"
URI: http://elib.bsu.by/handle/123456789/30256
Appears in Collections:Белорусский журнал международного права и международных отношений. — 1999. — № 2

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