scholarly journals Victims’ Rights Looking Good on Paper — How Criminal Prosecution in Germany Fails Victims of Sexual Violence

2021 ◽  
Vol 22 (5) ◽  
pp. 800-816
Author(s):  
Anne-Katrin Wolf ◽  
Maja Werner
Keyword(s):  
Sexual Violence ◽  
Gender Stereotypes ◽  
Rape Myths ◽  
International Standards ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Minor Part ◽  
A Minor ◽  
State Protection

AbstractWhether in Germany or abroad, victims of sexual violence typically played only a minor part in criminal proceedings, serving primarily as witnesses due to the widespread public and objective nature of the trial.1 This led to victim disempowerment and a paternalistic method of State protection of victims.2 During the last decades, this perception underwent major changes in European legal systems, owing to a rising awareness of victim’s needs, especially in cases of sexual violence.3 International and European conventions and treaties played a major role4 by establishing an international regulatory framework. To implement those international standards, domestic criminal laws have changed significantly on both substantive and procedural levels. Today, Germany’s criminal procedure law contains many mechanisms for protecting victims. Nevertheless, in cases of sexual violence, the implementation of these mechanisms in criminal proceedings leaves much to desire due to the affect of gender stereotypes and rape myths. This Article argues that in these cases the law in action ultimately fails to meet international requirements.

scholarly journals Improvement of the Procedure of Application of Compulsory Measures of Educational Impact

2019 ◽  
pp. 106-114
Author(s):  
K. A. Tabolina ◽  
Z. R. Dzheyranova
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Educational Impact ◽  
Specialized Knowledge ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right ◽  
A Minor

The article is devoted to the problem of improvement of the procedure of application of compulsory educational measures in criminal proceedings against minors. The lack of proper regulation of the procedure for the application of compulsory educational measures and the existing legislative gaps determine the need for amendments and additions to the criminal law and criminal procedure law. It is proposed to grant the right to resolve the issue of termination of criminal prosecution and initiation of a petition for the application of a coercive measure of educational impact before the court to the prosecutor dealing with the criminal case brought before him with conviction or indictment. In order to resolve the question of the possibility of rehabilitating a minor through the use of compulsory educational measures, it is necessary to study his psyche using the specialized knowledge, which presupposes an expert opinion in the case. Exemption from criminal liability of minors under the rules of Article 90 of the Criminal Code of the Russian Federation should be treated as the duty rather than the right of the law enforcement agent. Approaches to the solution of the problem connected with execution of compulsory measures of educational impact have been formulated.

On the Consideration of a Criminal Case Against a Minor by Jury

2021 ◽  
Vol 2 ◽  
pp. 90-96
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Case ◽  
Jury Trial ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Scientific Discussion ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The functioning of the jury in Russia has demonstrated not only effectiveness, but also a number of problems that need to be resolved. Such problems include the personal jurisdiction of criminal cases by jury. The article reveals the legal positions of the Constitutional Court of the Russian Federation regarding the right of minors to trial a criminal case in a jury. The approaches to solving this issue that have developed in the judicial practice of individual foreign states are analyzed, the main directions for further scientific discussion regarding the right of minors to a jury trial are outlined. The purpose of the article is to disclose various approaches to the administration of criminal justice in the relations of minors with the participation of lay judges. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted both to the consideration of criminal cases with the jury, and the specifics of juvenile criminal proceedings. Using the comparative legal research method has allowed to reveal various approaches to the access of minors to jury trials in individual states. In Russian legislation and judicial practice the question of the right of minors to have a criminal case against them considered by a jury remains unresolved. The position of the Constitutional Court of Russia regarding the jurisdiction of such criminal cases is also controversial. The experience of foreign countries indicates that there is no universal way to ensure the right of a minor to a proper court. This issue is decided depending on the type of criminal process, the presence or absence of specialized juvenile courts. Any direct borrowing in this regard cannot be considered effective, but a generalization of foreign experience can create the necessary basis for optimizing both the work of the jury and criminal proceedings against minors.

scholarly journals Favorable Business Environment as a Criterion for Criminal Proceedings Effectiveness in Modern Russia

Lex Russica ◽  
2020 ◽  
Vol 73 (10) ◽  
pp. 73-80
Author(s):  
P. O. Panfilov
Keyword(s):  
Public Interest ◽  
Business Environment ◽  
Criminal Prosecution ◽  
Main Criterion ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Economic Rights ◽  
Social Effectiveness ◽  
Economic Relations ◽  
Criminal Procedure Law

The paper analyzes various scientific approaches to understanding the effectiveness of criminal proceedings. It is concluded that in the doctrine of criminal process effectiveness is connected with the achievement of its purpose and tasks different understanding of which causes different understanding of effectiveness. On the basis of the analysis of the criminal procedure law, it is substantiated that the main criterion of evaluation of the effectiveness of criminal proceedings includes its influence on creation of favorable business environement in the country. The author recognizes the possibility of dividing the effectiveness of criminal proceedings into legal and social ones. The author interprets the legal effectiveness of the criminal process as its ability to ensure the public interest of all members of the society related to the full and comprehensive establishment of circumstances of the criminal case, the incrimination of the offender, the fight against crime. It is proposed to consider the possibility of criminal procedural means to secure normal economic relations and favorable business environement as one of the components of social effectiveness.The paper proves that the means chosen to increase the social effectiveness associated with the implementation of economic rights and freedoms, negatively affect both itself and the legal effectiveness of the criminal process related to the implementation of its intended purpose. It is proposed to refuse to consider a favorable business environment as the main criterion for assessing the effectiveness of both the entire criminal process and its individual components. Effectiveness should come to the fore, and the criterion of such effectiveness includes public interests aimed at combating crime. It is concluded that even as a secondary component, favorable business environment as a criterion of effectiveness requires such legal means of ensuring it that would not reduce the guarantees of implementation of the highest public interest. It is substantiated that the creation of legal guarantees to protect business from criminal prosecution is unacceptable without creating a mechanism that can separate legal business from illegal business.

scholarly journals Draft Law on Criminal Misconduct given the German Experience of Legal Regulation

Lex Russica ◽  
2021 ◽  
pp. 133-141
Author(s):  
Ya. M. Ploshkina ◽  
L. V. Mayorova
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Offense ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.

scholarly journals Sanctions as a legal phenomenon in the law of Ukraine and international standards of their application

2021 ◽  
pp. 73-86
Author(s):  
Nataliia Iakymchuk
Keyword(s):  
Legal Regulation ◽  
The State ◽  
International Standards ◽  
Legal Responsibility ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Legal Nature ◽  
The Law ◽  
Restrictive Measures ◽  
Legal Entities

The article examines the theoretical and practical issues of application of the Law of Ukraine «On Sanctions» of August 14, 2014 and analyzes the existing views on the legal nature of such «legal phenomenon» as sanctions - special economic, financial and other restrictive measures (sanctions) provided by this Law. The article specifies the main issues facing the researchers of the Institute of Sanctions. The purpose of the article is coverage of the state of legal regulation and legal nature of such a phenomenon as sanctions (economic, financial) in the right to Ukraine. In order to achieve this goal, the author used a set of general and special methods that are characteristic of legal science. The article covers the issue of Ukraine's sovereign right to protection, in particular through the application of economic and other restrictive measures (sanctions) «to protect national interests, national security, sovereignty and territorial integrity of Ukraine, counter terrorist activity, as well as prevention of violations, restoration of violated rights and freedoms and legitimate interests of citizens of Ukraine, society and the state». The range of subjects against which sanctions can be applied has been studied, namely: a) foreign states; b) foreign legal entities; c) legal entities under the control of a foreign legal entity or a non-resident individual, foreigners, stateless persons; d) entities engaged in terrorist activities. Sanctions are defined as legal measures to respond immediately to violations of various rights, from encroachment on state sovereignty to the commission of a crime of an international nature, which are temporary, which are applied primarily through coercive measures, which are implemented using constitutional, financial, administrative, economic, criminal procedural, executive, economic procedural and other branches of law. The issues of the grounds for application of sanctions, their types and criteria for their delimitation, the term of application of sanctions, as well as the range of authorized entities in the field of their application are covered. The main approaches of scholars to the characterization of sanctions as measures of influence are investigated. It is noted that sanctions are measures of influence different from measures of legal responsibility, which may have a "non-criminal" nature. It is stated that sanctions are measures of influence that are applied, albeit in parallel, but in a systematic connection with the criminal prosecution imposed by the state or executed by it as a subject of international cooperation in the fight against crime. Their application is, firstly, due to the decision at the international or regional level on the application of international economic (financial) sanctions, personal sanctions in the course of criminal prosecution for acts of an international crime. However, Ukraine is obliged to adhere to international standards of the legal mechanism for the application of sanctions at the domestic level, to improve the procedural principles of their application, appeal procedures and amendments to the decision. We consider the participation of the Commissioner for Human Rights in the process of reviewing the decision on the application of sanctions and appealing the decisions necessary. Amendments to the Law of Ukraine "On Sanctions" are proposed in order to establish among the necessary grounds for the application of sanctions to individuals the opening of criminal proceedings against them, and for legal entities - the opening of criminal proceedings against related persons, as well as amendments to the Criminal Procedure Code of Ukraine, as it does not contain provisions on such preliminary measures (securing and stopping) as "sanctions". In addition, in general, the sanctions procedure requires greater transparency, and it is concluded that sanctions can be applied to Ukrainian citizens only if they are suspected of involvement in terrorist activities.

scholarly journals Conciliation Procedures Involving Minors in Criminal Proceedings

2021 ◽  
Vol 2 ◽  
pp. 3-6
Author(s):  
Elena V. Markovicheva ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Procedure Law

The article reveals the possibilities of using conciliation technologies on minors in Russian criminal proceedings. The author analyzes the statutes of the draft law aimed at reforming the criminal procedure law and assesses the prospects for the use of special conciliation procedures as an alternative to criminal prosecution of minors.

Institute of bringing as an accused: on the “deprocessualization” and “dematerialization” of its essence and content in the criminal proceedings of Russia

2020 ◽  
Vol 7 (1) ◽  
pp. 98-105
Author(s):  
Nikolay N. Kovtun
Keyword(s):  
Criminal Responsibility ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Optimal Mechanism ◽  
Procedural Law ◽  
Legal Fiction ◽  
Legal Nature ◽  
Criminal Procedure Law

This work critically assesses the legal nature and practice of the institution of bringing as a defendant in criminal proceedings in Russia, particularly in its relation to the substantive legal act of bringing to criminal responsibility. The author argues that, due to the general bureaucratization of the process, both the first and second acts have actually lost their original purpose to be the determining material and procedural guarantee of individual and justice in criminal proceedings. Objectifying as a legal fiction, the act of bringing the accused as an accused in the doctrine of Russian criminal procedure law, done directly in practice, is increasingly characterized as an accusation of duty, initial, intermediate, and final, which respectively form the ideas of duty, intermediate, initial, and investigative-final criminal prosecution. This negates the role of the named defining acts. Hence, the paper suggests an optimal mechanism for their implementation according to the purposes and tasks of substantive and procedural law

scholarly journals Russian Llaw and International Standards of Pre-Trial Proceedings in Criminal Cases Against Minors

2018 ◽  
Vol 12 (3) ◽  
pp. 407-416
Author(s):  
Alexander Volevodz ◽  
Alexander Grinenko ◽  
Vasily Potapov ◽  
Elena Tsvetkova
Keyword(s):  
Juvenile Delinquents ◽  
International Standards ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
General Rules ◽  
The Law ◽  
Court Proceedings ◽  
Key Aspects

Pre-trial proceedings in criminal cases against minors are conducted according to general rules established by law. At the same time, international statutes set out special requirements aimed at the comprehensive protection of the rights and lawful interests of the above-mentioned category of people. Their comparison allowed the authors to identify a number of discrepancies and draw conclusions regarding the key aspects of improving Russian criminal procedure legislation regulating the pre-trial proceedings against minors. Pre-trial investigation against minors should only be conducted in the form of preliminary inquiry. Besides, all of its stages should provide conditions for the correction of juvenile delinquents, including the stage of pre-trial investigation. Organizations working outside the scope of criminal proceedings, including NGOs and human rights groups, should work with minors and correct their behavior irrespective of the process and results of pre-trial investigation and court proceedings. The law should include the provision for the confidentiality of information about the underage suspect and accused. In particular, the law should state that no information regarding the underage suspect or accused can be made public, even if this information will in the future result in court proceedings during a closed hearing. Before the case is referred to the court, the investigator or detective should decide if it is possible to terminate the criminal case (criminal prosecution) against the accused minor. Besides, the criminal case (criminal prosecution) can be terminated both on special grounds if coercive measures are taken against such a person, or on other grounds stated by law and applicable to adults.

scholarly journals Coercive Measures of Educational Influence in the Current Development of Legislation in Juvenile Delinquency Prevention

2021 ◽  
pp. 232-237
Author(s):  
Dmitry B. Laptev ◽  
Keyword(s):  
Criminal Law ◽  
Specific Form ◽  
International Standards ◽  
Negative Consequences ◽  
Closed Type ◽  
Criminal Procedure Law ◽  
A Minor ◽  
Criminal Legislation ◽  
And Control ◽  
Educational Influence

The article examines the effectiveness of existing criminal legal instruments of educational influence on minors. On the basis of the analysis of strategic planning documents affecting children, changes in criminal and other federal legislation on the basis of the system for the prevention of juvenile neglect and delinquency, it is concluded that the task of bringing the legislation in question in line with international standards has not yet been solved. Criminal legislation in this area is not impeccable and needs to be finalized. Judicial statistics show a low demand for warning as an educational measure. At the same time, criminal legislation does not regulate a specific form of warning and does not answer the question of what negative consequences for a minor may occur if they have not made appropriate conclusions from the declared warning, but have not yet committed a new crime. In addition, the question of the element of coercion in the structure of this measure is raised, and the difficulties of its application are indicated, taking into account the existence in criminal law of rules on the insignificance of the act. It is proposed to remove warning from the list of compulsory measures of educational influence. Based on the analysis of the practice of implementing the obligation to make amends for the harm caused, it is concluded that the coercive element in the structure of this measure is conditional in cases when compensation is paid not by minors themselves, but by their parents. In this part, the measure in question seems ineffective. When considering the provisions governing the transfer of a minor to the surveillance of parents or other persons replacing them, attention is drawn to the absence of the types and limits of surveillance and control clearly defined in the law. In addition, it is concluded that there is a conflict that arises between the rules of criminal procedure law, which provides for negative consequences from failure to comply with the measure imposed on minors, and the provisions of criminal law, according to which the duties are imposed not on the minor, but on third parties. In the light of judicial statistics showing that it is extremely rare for minors to be sentenced to imprisonment for crimes of moderate gravity, the relevance of the provisions of the criminal law providing for the possibility of placing minors who have committed crimes in this category in a special educational facility of a closed type is questioned.

scholarly journals THE PROBLEMS OF THE REFORM OF CRIMINAL JUSTICE

2019 ◽  
pp. 207-213 ◽  
Author(s):  
V. M. Tertyshnyk
Keyword(s):  
Criminal Prosecution ◽  
Conceptual System ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Applicable Law ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
Third Person ◽  
Definition Of ◽  
The Right

The article covers the problem of optimization of regulatory and criminal proceedings in terms of the implementation of the principle of the adversarial parties. Analysis of the positive stories and shortcomings of the current CPC of Ukraine. Disclosed the problem to run the investigation and legal assistance and protection. The submitted proposals concerning improvement of the norms of the criminal procedure law. The principle of admissibility of intervention in human rights and the application of coercive measures in establishing the objective truths only in case of extreme urgency has become a basic principle of the criminal process. According to the applicable law of Ukraine “on advocacy and its activities” (p. 7 article 20) advocate in their activities has the right to “remove things, documents, copy them”. That is, it can only go about getting published, and not about “deleting”, without the consent of the holder of the document or thing. “Extract” is commonly understood as forced extraction, and side protection, by definition, its function may not to have establishing the authority. Finally, to protect enough of getting copies of documents, not delete documents, especially the absence of a duty to Act laid them in the proper way to store and share the Court. At first glance, insignificant legislative inaccuracy may only have character problem definitions, but in reality these “trivia” smear Vaseline give opportunity not so much for a parallel legal investigation, how, in practice, for the active counteraction to the inquest by hiding or destroying evidence. In today’s criminal counsel may participate in criminal proceedings in three different status: 1) as a defender of the suspect, accused, convicted, justified; 2) as a representative of the victim of physical persons; a legal entity that is affected civil plaintiff, civil respondent; third person; 3) as legal assistant to the witness. Prescription of the Constitution that exceptionally lawyer carries out representation of another person in court, as well as protection from criminal prosecution does not mean establishing the monopoly of lawyers to perform the function of protection. Wise will introduce a new conceptual system of legal assistance and protection: 1. Protection of the suspect can make as lawyers and other professionals in the field of law, for which there is no reason for removal. 2. Defendant and defendant in court should carry only a lawyer who offered to appoint judicial agent. 3. Legal assistance to victims, civil plaintiffs, civil and for third parties (art. 63 of the CPC of Ukraine) can make as lawyers and other specialists in the field of law, which can act in the procedural status of the representatives of the respective parties. 4. Legal assistance to witnesses, applicants to other participants of the process can make as lawyers and other professionals in the field of law. Implementation of the constitutional principles of legal assistance and protection in criminal proceedings requires a clear definition of the procedural status of the Defender, therepresentative and law agent, development and adoption of the law on the independent Institute the investigation, which has become an independent institution of the criminal procedural law.

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