Definition of “Permission” in Russian Criminal Procedure

2016 ◽  
Vol 4 (10) ◽  
pp. 0-0
Author(s):  
Альберт Хайдаров ◽  
Albert Khaydarov
Keyword(s):  
Criminal Responsibility ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Court Judge ◽  
Foreign State ◽  
Procedure Code ◽  
Definition Of ◽  
The Right ◽  
Procedural Decisions ◽  
Article 5

The article deals with the definition of “consent” which understands as a the permission of the head of the investigative body for the production of the investigator or the resolution of the Prosecutor on the production of the investigator the corresponding investigative and other procedural actions and to their adopting procedural decisions in accordance with the paragraph 41.1 of article 5 of the Criminal Procedure Code. The author discovered a lack of conformity between the legal definition of “consent” and its use in the text of the Criminal Procedure Code. The definition of “consent” was examined in present article in its broadest sense, it was filled with new content, different from mentioned in paragraph 41.1 of article 5 of the Criminal Procedure Code. About the definition of "consent" was considered in the article as: 1) the power of the officials (authority), court (judge); 2) the right of a party to criminal proceedings to give consent to the production of the procedural actions or procedural decision; 3) condition of procedural agreements or condition for the adoption of procedural decisions; 4) consent of the two States on issues of international cooperation or the consent of the foreign state in bringing the citizen to criminal responsibility in Russia.

scholarly journals TO THE QUESTION ABOUT THE CONCEPT «PROCEDURAL COSTS IN CRIMINAL PROCEEDINGS»

Issues of Law ◽  
2020 ◽  
Vol 20 (4) ◽  
pp. 89-93
Author(s):  
S.M. Darovskikh ◽  
◽  
Z.V Makarova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Costs ◽  
The Russian Federation ◽  
Definition Of ◽  
Article 5

The article is devoted to the issues of formulating the definition of such a criminal procedural concept as «procedural costs». Emphasizing the importance both for science and for law enforcement of clarity and clarity when formulating the definition of criminal procedural concepts, the authors point out that the formulation of this concept present in the current Criminal Procedure Code of the Russian Federation is far from being improved. Having studied the opinions on this issue of the Constitutional Court of the Russian Federation, a number of procedural scholars, the authors propose their own version of the definition of the concept of «criminal procedural costs» with its allocation in a separate paragraph of Article 5 of the Criminal Procedure Code of the Russian Federation.

scholarly journals Application of preventive measures in the criminal process: current issues

2020 ◽  
pp. 122-126
Author(s):  
V.S. Suslova ◽  
O.I. Tyshchenko
Keyword(s):  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
Procedure Code ◽  
Wide Range ◽  
Definition Of ◽  
The Right ◽  
Criminal Matters

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

scholarly journals The essence and problems of substantiating certain types of decisions in criminal proceedings

2021 ◽  
Vol 136 (3) ◽  
pp. 98-104
Author(s):  
V.V. Djafarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Procedure Code ◽  
Mandatory Requirement ◽  
The Russian Federation ◽  
The Republic ◽  
Definition Of ◽  
Procedural Decisions

The article considers problems of substantiating certain types of decisions in the criminal process. The author’s views are based on recent changes in the criminal procedure legislation of the Republic of Kazakhstan and the existing experience of the Russian Federation. The article focuses on provisions of the current criminal procedure code of the Republic of Kazakhstan. The author refers to Russian proceduralists whose works are devoted to the problems of studying the validity of procedural decisions at the pre-trial stage. The author indicated types of decisions, which are not recognized as criminal procedural, but for which justification should be a mandatory criterion according to the criminal procedural legislation of the Republic of Kazakhstan. The article provisions justify the need to enshrine the definition of «reasonableness» in the Criminal Procedure Code of the Republic of Kazakhstan as a mandatory requirement that must be met when taking decisions by the prosecuting authorities.

scholarly journals Verification by the prosecutor of the legality and validity of the decisions made by the investigating judge regarding the applied security measures

2021 ◽  
pp. 341-345
Author(s):  
I.О. Merimerina
Keyword(s):  
Criminal Procedure ◽  
Appellate Court ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Precautionary Measures ◽  
Characteristic Features ◽  
Definition Of ◽  
The Right

The article is devoted to clarifying what the stage of an appeal in criminal proceedings is. During the investigation, the decisions of the investigating judge concerning the application of measures to ensure criminal proceedings are con-sidered to be appealed in accordance with the requirements of the Criminal Procedure Code of Ukraine. It was empha-sized that appealing the decisions of the investigating judge during the pre-trial investigation is an important guarantee of ensuring the protection of the rights and legitimate interests of the participants in the criminal proceedings. The list of persons who have the right to file an appeal is covered. The normative regulation of appealing against the decisions of the investigating judge is analyzed. The problematic issues of this activity and the definition of ways of normative regulation are considered. In the course of the research the works of scientists on the outlined issues are analyzed.The article examines the role of the prosecutor in verifying the legality and validity of decisions made by the investigating judge on the election, change, cancellation of measures to ensure criminal proceedings. Attention is drawn to the peculiarities of the prosecutor’s appeal of certain precautionary measures. Emphasis is placed on the peculiarities of the prosecutor’s filing of appeals, the quality of preparation of response documents. The peculiarities of appealing the decision of the appellate court, ruled on the results of the review of the decision of the investigating judge on the application of certain precautionary measures, have been studied. The characteristic features of appealing certain measures to ensure criminal proceedings have been identified and investigated.It is concluded that it is expedient to supplement the Criminal Procedure Code of Ukraine with provisions on the possibility for the prosecutor to appeal the decisions of the investigating judge on seizure of property, refusal, full or partial revocation of seizure of property, revocation of seizure of property, return of temporarily seized items and documents. measures in the form of a personal obligation or refusal to apply it, application of a precautionary measure in the form of a personal guarantee, application of a measure of restraint in the form of transfer of a juvenile suspect or accused under the supervision of parents, guardians, trustees or administration of a child care institution.

scholarly journals ДЕЯКІ ПРОБЛЕМИ ТИМЧАСОВОГО ВИЛУЧЕННЯ ТА АРЕШТУ МАЙНА ЯК ЗАХОДІВ ЗАБЕЗПЕЧЕННЯ КРИМІНАЛЬНОГО ПРОВАДЖЕННЯ

2019 ◽  
Vol 13 ◽  
pp. 520-528
Author(s):  
І. В. Гловюк
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Definition Of

Стаття присвячена дослідженню проблемних питань застосування тимчасового вилу­чення майна та арешту майна як заходів забезпечення кримінального провадження із урахуванням наявної судової практики. Указано та обґрунтовано некоректність норма­тивного визначення тимчасового вилучення майна. Відмічено прогальність нормативного визначення арешту майна в аспекті об'єктів, на які може бути накладено арешт. Сфор­мульовано пропозиції щодо внесення змін та доповнень до ч. 1 ст. 167 КПК щодо ви­значення поняття «тимчасове вилучення майна» та ч. 1 ст. 170 КПК щодо осіб, на майно яких може бути накладено арешт.   The article is dedicated to the research of problematic issues of exercise of temporary seizure of property and arrest of property as means for ensuring criminal proceedings considering relevant judicial practices. Author mentioned and justified his point of view regarding incorrectness of the normative definition of seizure. Author also indicated whitespaces of the regulatory definition of arrest of property in the aspect of objects that may be the subject for the arrest. Proposals for amendments and additions to the part 1 of the Art. 167 of the Criminal Procedure Code regarding the definition of «temporary seizure of property» and part 1 of the Art. 170 of the Criminal Procedure Code regarding the scope of persons whose property may be arrested have been made.

scholarly journals On Criminal Procedure and Criminalistic Measures of Counteracting Crimes Against Legal Entities

2021 ◽  
Vol 15 (1) ◽  
pp. 98-105
Author(s):  
Olga Aivazova ◽  
Galina Vardanyan ◽  
Irina Smirnova
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Relevant Information ◽  
Criminal Proceedings ◽  
Legal Entity ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Right ◽  
Legal Entities

The article discusses some aspects of proving in cases of crimes against legal entities. The criminalistic description of the victim represented by a legal entity determines specific details of applying criminalistic and criminal procedure measures aimed at the identification, investigation, detection and prevention of such crimes. Under the current Criminal Procedure Code of the Russian Federation, one of the elements of ordering criminal proceedings is the protection of rights and legal interests of organizations that became victims of crimes. Part 1 of Art. 42 of the Criminal Procedure Code of the Russian Federation details this guideline for the first time by giving legal entities, viewed as independent subjects of criminal procedure legal relations, the right to be recognized as victims of criminal actions if the crime inflicted damage on their property or business reputation. Nevertheless, the imperfections in the regulation of legal entities’ participation in criminal proceeding, and the insufficient attention to the specifics of realizing their rights and legal interests in comparison with the physical persons of a similar procedural status give rise to numerous problems. The complex of such problems has a negative impact on the effectiveness of investigating this category of crimes and, as a consequence, on the ability of criminal proceedings to produce the intended result. The literal interpretation of Part 1, Art. 42 of the Criminal Procedure Code of the Russian Federation points out that the consequences of such crimes must include the infliction of two types of damage simultaneously — «to property and to business reputation», which can hardly be considered a good de­finition from the standpoint of juridical technique. Quite naturally, the investigation and court practice shows that law enforcers, while collecting proof on the character and size of damage inflicted on legal entities as a result of a crime, usually limit themselves to proving material damage, and even this damage is not proven in full (the common omission being losses of expected income). As for the damage inflicted on business reputation of a legal entity, its establishment during criminal proceedings is still problematic and, in practice, there is usually a gap in proving it. The authors point out that incomplete character of evidentiary information regarding the infliction of damage on the business reputation of legal entities is inadmissible and present their recommendations for resolving this problem, including the use of specialist knowledge and the improvements in the tactics of specific investigatory actions aimed at obtaining criminalistically relevant information on the case.

ELECTRONIC EVIDENCE IN CRIMINAL PROCEEDINGS

2017 ◽  
Author(s):  
Anastasiia Antoniuk ◽  
◽  
Valeriia Rusetska ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Specialized Knowledge ◽  
Legal Proceedings ◽  
Electronic Evidence ◽  
Effective Implementation ◽  
Procedure Code ◽  
Definition Of ◽  
Developed World ◽  
Theoretical Issues

This article is devoted to the consideration of theoretical issues related to the introduction in Ukraine of the institution of electronic evidence of criminal proceedings. The article also raises the question of ways to obtain electronic evidence. The article notes that in the modern developed world there are more and more new types of crimes. In this context, we will consider crimes closely related to the use of information technology. Proving such crimes raises some difficulties. To date, it is relevant to consolidate the concept of electronic evidence in the Criminal Procedure Code of Ukraine and the formation of a methodology for their study. Also, the author of the article notes that among the unresolved and problematic aspects of using electronic evidence in criminal proceedings in Ukraine, scientists distinguish: the lack of a clear procedural procedure for obtaining them in accordance with the Criminal Procedure Code of Ukraine; lack of grounds for declaring electronic evidence inadmissible; difficulties in identifying and fixing electronic evidence due to the lack of specialized knowledge among investigators, which necessitates the involvement of specialists for conducting legal proceedings; lack of a developed methodology for studying such evidence; lack of uniform terminology and regulation at the legislative level. It is determined in the article that for the effective implementation of international law in the field of combating cybercrime, it is advisable to substantiate the need for a legislative definition of electronic evidence, sources of their formation, the admissibility of international cooperation through the exchange of electronic evidence, the expediency of using electronic methods of sending requests and responses about their implementation, the possibility application of control information supply for investigation of transnational computer crimes. Based on the above, the author offers his own definition of electronic evidence. It is concluded that it is necessary to legislatively consolidate the term "electronic evidence" and continue to study the category, the importance of developing a methodology for studying electronic evidence, the procedure for collecting and recording them.

scholarly journals Compensation of property damage caused to non-participants in criminal procedure in order of rehabilitation

2020 ◽  
pp. 221-230
Author(s):  
V. V. Muryleva-Kazak
Keyword(s):  
Property Rights ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Property Damage ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Right ◽  
Legal Entities

The article discusses the issue of the legal nature of the right to compensate harm, the effectiveness of usage of the criminal procedure mechanism for its protection and the reasonableness of the inclusion of relevant in the Criminal Procedure Code of the Russian Federation.Based on the analysis of judicial practice, it is concluded that the courts have difficulties in determining the appropriate way to protect the right to compensate harm caused in the course of criminal proceedings and the delineation of competence between arbitration courts and courts of general jurisdiction, which leads to a violation of the applicants’ right to access to justice and reduces the effectiveness of judicial protection.In addition, it is concluded that the criminal procedure form is not adapted to the consideration of civil disputes on compensation for harm, the author names the impossibility of collecting lost profits as one of the factors that reduce the effectiveness of the use of the criminal procedural mechanism for protecting property rights.Based on the interpretation of the criminal procedure rules provided in the article, the author concludes that legal entities have an opportunity to use criminal procedure remedies for violated property rights in more cases than individuals, which violates the principle of equality before the law and the court. The article provides ways to solve the identified problems.

scholarly journals Appropriate subject of obtaining evidence of a criminal offense in the opinion of the court

2021 ◽  
Vol 66 ◽  
pp. 224-228
Author(s):  
A.-M.Y. Anheleniuk
Keyword(s):  
Criminal Procedure ◽  
Evidence Base ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Procedure Code ◽  
Evidence Collection ◽  
The Subject ◽  
The Right ◽  
Operational Unit

The article considers the collection of evidence by the prosecution, because it is in this order that the evidence base of criminal proceedings is most often formed. Thus, the prosecutor, investigator (investigator) acting under Articles 36, 40, 401 of the Criminal Procedure Code of Ukraine, as well as an employee of the operational unit pursuant to Article 41 of the Criminal Procedure Code of Ukraine on behalf of the investigator or prosecutor have the right to collect evidence. The purpose of the article is to study the affiliation of the subjects of evidence collection as part of the procedural form of the criminal process of Ukraine, taking into account the analysis of court decisions, namely the assessment of the evidence base as a basis for deciding on the merits of criminal proceedings. Cases of involvement of an improper subject in the pre-trial investigation, which are common and typical, are systematized. There are two types of improper subjects within the investigative (search) or procedural actions, namely the subject: 1) is not appointed in the manner prescribed by law, although according to current legislation according to the list of its powers may be appropriate; 2) does not have the authority under the law to make a specific decision or to conduct investigative (search) or procedural actions. An analysis of court decisions according to which courts provide an assessment of the procedural activities of the subjects of evidence collection in criminal proceedings at the stage of pre-trial investigation, including their relevance and admissibility. Thus, attention is paid to the assessment of courts on the legality of the presence of persons during investigative (investigative) or procedural actions; the correctness of fixing such a presence. In addition, the situations of appointment of relevant subjects in criminal proceedings to fulfill their powers are considered. It is proposed to supplement the first part of Article 236 of the Criminal Procedure Code of Ukraine with a provision that clarifies the grounds for the stay and authority of the employee of the operational and investigative service during the search.

scholarly journals Promotion of Justice as an Independent Criminal Procedure Function

2021 ◽  
Vol 15 (6) ◽  
pp. 786-796
Author(s):  
Vadim Latypov
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Modern Society ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
History Of ◽  
High Level ◽  
Correct Understanding ◽  
Procedural Decisions

The article proves the necessity of involving the persons assisting the parties and the Court into criminal proceedings. The author analyzes the promotion of justice as an independent criminal procedure function under Chapter 8 of the Criminal Procedure Code of the Russian Federation, which is carried out by both the participants of criminal proceedings and by other subjects of criminal law relations who do not have an independent procedural status. The conducted social and legal analysis made it possible to state that the development of the idea of the rule of law requires individuals to obtain a correct understanding of the organization of the modern society, its development trends, and the necessity of acquiring due legal awareness. The understanding of legal awareness varied throughout the history of our state but what remained unchanged were the ideas that it can be influenced and that it determines the development of law and the law enforcement itself. Citizens with the due level of legal awareness are ready to promote justice, which testifies to their high level of social development, a desire to be involved in law enforcement work, to bring justice and ensure legality of procedural decisions. The author shows that criminal proceedings in Russia require facilitation, but the majority of people are not ready to provide it for a number of reasons, which proves the need for a detailed analysis of promoting justice in the modern Russian criminal process. The conducted research stresses the theoretical and practical inadequacy of the three-part system of criminal procedure functions enshrined in the current Russian criminal procedure legislation. The author examines the possibility of singling out the promotion of justice as an independent criminal procedure institute necessary for making lawful, well-grounded and comprehensive procedural decisions by officials and state bodies. The author concludes that it is necessary to introduce changes in the Criminal Procedure Code of the Russian Federations which will foresee the possibility of renaming Chapter 8 of the Code. Besides, having analyzed the concept of «justice», the author presents his position of what should be understood as the promotion of justice.

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