Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

scholarly journals Practical Application of the Provisions of the Code of Criminal Procedure Regarding the Measure of Preventive Arrest

2021 ◽  
Vol 9 (1) ◽  
pp. 24-32
Author(s):  
Nicolae Silviu Pana ◽  
Ana Maria Pana
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Judicial Control ◽  
House Arrest ◽  
Procedure Code

Preventive measures are coercive criminal law enforcement institutions, aimed at the deprivation or restriction of individual liberty, by which the suspect or defendant is prevented from undertaking certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of its purpose. They have been instituted by the legislator for specific purposes, namely: to ensure the proper conduct of criminal proceedings, to prevent the abstraction of the suspect or defendant from trial and to prevent the commission of new offenses (art. 202 para. 1 of the Criminal Procedure Code). Preventive measures are not inherent in any ongoing criminal trial, but are exceptional measures (art. 9 para. 2 of the Criminal Procedure Code), and the court can decide to sease the measure or make use of the measure in the light of the specific circumstances of each case. Of the five preventive measures, three are deprivation of liberty - detention, house arrest and pre-trial detention, and two are non-custodial: judicial control and judicial control on bail. All these measures are only applicable to the natural person. Specific preventive measures may be taken against legal persons, but those are regulated by the provisions of art. 493 of the Criminal Procedure Code.

scholarly journals ON SOME COMMENTS ON THE NORMATIVE FORMULATIONS FOR THE PURPOSE OF CRIMINAL PROCEEDINGS

2021 ◽  
Vol 17 (1(63)) ◽  
pp. 127-133
Author(s):  
Виктор Николаевич ГРИГОРЬЕВ
Keyword(s):  
Russian Federation ◽  
Justice System ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legal Situation ◽  
Law Enforcement Officials ◽  
The Subject ◽  
The Russian Federation

The purpose of Russian criminal proceedings, which is very important among the modern social and legal institutions, is nevertheless deficient in its legal and regulatory form. It is noted that in the modern situation, some formulations of the purpose of criminal proceedings have come into conflict with the real social and legal reality. Purpose: to resolve contradictions between the formulations of the purpose of criminal proceedings and the actual social and legal reality. Methods: the author uses the methods of dialectical and formal logic, comparison, description, observation, interviewing, experiment, analysis, interpretation. Results: a theoretical basis has been developed for the choice, in the event of a conflict between the formulations of the purpose of criminal proceedings and the actual social and legal situation, of whether to change the normative formulation of the purpose of criminal proceedings or whether to change the procedure itself. In choosing the subject of reform, preference is given to traditional Russian values. Modern trends in Russian criminal proceedings do not fully reflect the needs of civil society in the Russian Federation. It is more accurate to assume that this is the result of a system of departmental and bureaucratic measures to distribute influence and burden. From a humanitarian standpoint, it would be more correct to return the criminal justice system to a state where it will again reflect the lost purpose, in particular, protecting individuals from unlawful accusations. The first step should be to remove from law enforcement officials the obligation to be unilateral in the examination of evidence and to represent only one party – the accusation (Chapter 6 of the Criminal Procedure Code of the Russian Federation), as well as to remove the normative prohibition for the preliminary investigation and inquiry bodies to gather evidence defending the accused (Part 2 article 15 of the Criminal Procedure Code of the Russian Federation).

scholarly journals A Justice of the Peace Court as a Regulator of Criminal Procedure Relationships Containing Right Abuse Attributes

2021 ◽  
pp. 3-8
Author(s):  
Danil A. Donika ◽  
Keyword(s):  
Comparative Analysis ◽  
Scientific Literature ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
The State ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Response Measures ◽  
Justice Of The Peace ◽  
Abuse Of Law

The article deals with the problem of abuse of subjective right in criminal proceedings at the stage of preliminary investigation. Based on a comparative analysis and study of foreign scientific literature, conclusions are drawn about the state of the issue under study in Russian criminal proceedings. Attention is focused on the need to work out procedural response measures by providing the magistrates’ courts and courts in general with additional, normative legal opportunities in order to effectively exercise judicial control at the pre-trial stage of the investigation in cases of abuse of law on the part of participants in the process.

scholarly journals On Classification of the Powers of an Investigating Judge in Criminal Proceedings of the Kyrgyz Republic

2020 ◽  
Vol 6 (11) ◽  
pp. 350-355
Author(s):  
A. Kalygulova
Keyword(s):  
Criminal Procedure ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Control ◽  
Relevant Object ◽  
Procedure Code ◽  
The Subject

The article is devoted to the issue of classification of the powers of an investigating judge in criminal proceedings of the Kyrgyz Republic. The relevance and novelty of the study is caused by the introduction of a new procedural figure of the investigating judge, who exercises judicial control in pre-trial proceedings. The powers conferred by the Criminal Procedure Code of the Kyrgyz Republic to an investigating judge are varied in content. In this regard, the issue of the classification of the powers of an investigating judge is relevant. Object of research: the procedural figure of the investigating judge. The subject of the research: the powers of the investigating judge and their division by classification. Thus, the powers of an investigating judge, provided for in Article 31 of the Criminal Procedure Code of the Kyrgyz Republic, cover not only the issues of the existence of grounds for the application and extension of measures to ensure criminal proceedings, authorization of investigative and special investigative actions, as well as the resolution of issues arising between the participants in pre-trial proceedings, including those affecting the scope of proof in criminal cases. A proposal has been made to classify the powers of an investigating judge in criminal proceedings in the Kyrgyz Republic.

scholarly journals Protection of Human Rights in the Criminal Procedure Legislation of the Republic Of Uzbekistan and Improved Reforms Taking Into Account Foreign Experience

2021 ◽  
Vol 58 (1) ◽  
pp. 1102-1115
Author(s):  
Botirjon Khayitbayevich Ruzmetov
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Sufficient Evidence ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Republic ◽  
Theory Of Evidence ◽  
The Right

In this article author had searched the questions devoted the protection of human rights in the criminal procedure legislation of the Republic of Uzbekistan and comparing with the legislation and worldwide experience of the foreign states.The article reveals the ongoing liberalization of the criminal law policy in the Republic of Uzbekistan, which is aimed at expanding human and fair norms, strengthening the protection of the rights, legitimate interests of a person andsociety. Against this background, the significance of investigative actions and the theory of evidence in the country's criminal procedural legislation is being revised. The development of science and technology leads to the improvement of methods of committing crimes using computer technology, taking into account which the timely disclosure and effective investigation of socially dangerous acts requires extensive use of mathematical tools and computer technologies.In this regard, changes are taking place in the investigative practice aimed at increasing knowledge in the field of computer technologies among law enforcement officials and increasing the responsibility of the personal of the investigative and judicial authorities in the implementation of their activities.The author emphasizes that despite significant restrictions on the rights and legitimate interests of a person in the conduct of investigative actions, all of them are necessary for obtaining sufficient evidence to expose the guilt of the offender, in the manner prescribed by law.Compliance by investigators, prosecutors and judges of all criminal procedural requirements established by the legislation of the country is a key requirement for the recognition of evidence as lawful and sufficient for a fair sentence.It should be noted that the article highlights that, since 1994, the Criminal Procedure Code of Uzbekistan enshrines the right to defense by involving a lawyer in the case from the moment a person is detained on suspicion of committing a crime, as well as the principle of equality of arms in criminal proceedings. An addition to the liberalization of legislation is the fact that now the courts are freed from such unusual functions as the execution of court decisions.In addition, the article expands on the author's proposals for improving the legislation of Uzbekistan, as well as expanding the power of lawyers, especially in the conduct of investigative actions, aimed at expanding the process of liberalization of criminal law in the country and improving the situation with the protection of human rights in the investigation of criminal cases.

scholarly journals Restrictions of individual’s rights, freedoms and legal interests within temporary access to items and documents: practical aspects.

2021 ◽  
Vol 3 (3) ◽  
pp. 277-284
Author(s):  
Andriy Melnychenko
Keyword(s):  
Human Rights ◽  
Statistical Data ◽  
Third Party ◽  
Human Rights Violations ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Control ◽  
Informed Decisions ◽  
Legitimate Interests

Temporary access to things and a document as an institution that restricts human rights and freedoms in criminal proceedings and its main properties have been studied. Attention is drawn to the problem of numerous risks of human rights violations during the application of temporary access to things and documents due to unfounded and weak argumentation of investigators' requests for temporary access, as well as a superficial assessment of circumstances by the investigating judge due to overload of requests. Statistical data have been studied, which indicate the need for consistent reform of judicial control in the direction of studying the materials and making informed decisions. Temporary access to things and documents in the criminal process is part of the institution of measures to ensure criminal proceedings. It attracts the attention of scholars because it has a rather complicated procedure for obtaining a decision on temporary access to things and documents, which must be provided by the investigating judge based on the results of the petition. The mechanism of judicial control indicates that this measure to some extent restricts the rights, freedoms or legitimate interests of a person – a participant in criminal proceedings or a third party. Related to this is the problem of the measure under investigation, which is the risk of violation of the rights of individuals, because every year the investigating judges receive a large number of requests for temporary access, and there are specific features in terms of providing temporary access to things and documents containing legally protected secret.

scholarly journals The Problems of Implementing the Procedural Relationship Between the Prosecutor and the Investigator on Applying a Measure of Restraint in Judicial Control Proceedings (Through the Example of Detention)

Legal Concept ◽  
2021 ◽  
pp. 57-64
Author(s):  
Vagip Abdrashitov ◽  
Davlatali Kakhkhorov ◽  
Violetta Gavrilova
Keyword(s):  
Preliminary Investigation ◽  
Historical Analysis ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Soviet Period ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Current State ◽  
Criminal Procedure Law

Introduction: the paper examines the problems of implementing the procedural relationship between the prosecutor and the investigator in the course of judicial control proceedings when applying the measures of procedural coercion in the form of detention. In the doctrine of criminal procedure, there are different positions of processualist scientists on improving the criminal procedure activities of the prosecutor and the investigator at the stage of deciding on applying a measure of restraint in the form of detention. The authors took a keen interest in the lack of a legitimate determination of the prosecutor’s opinion on the validity and legality of the request of the preliminary investigation bodies to choose detention in the course of judicial control proceedings. It is the written opinion of the prosecutor as a form of intervention at the pre-trial stages, especially in the course of judicial control proceedings when investigating the issue of choosing detention that contributes to the court’s taking a legitimate and reasoned decision. In this context, the authors set the goal of finding and improving the efficiency of the procedural model of relations between the prosecutor and the investigator on the issue of resolving a preventive measure in the form of detention in the course of judicial control proceedings. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are the methods of cognition, comparative law and historical analysis. Results: the authors analyzed the provisions of the criminal procedure norms of the Soviet period on this issue which helped to identify a number of shortcomings in that period and in the present one, which were inherited from the past. Conclusions: the existing procedural model of interaction between the prosecutor and the investigator in a detailed study of the problem of preventive measures in the form of detention, regulated by the current criminal procedure law, does not correspond to the current state policy in relation to the Russian prosecutor, who acts on behalf of the state at all stages of criminal proceedings. In this regard, the authors, based on the analysis of numerous positions of processalist scientists, as well as the judicial and investigative practice, proposed a procedural model of interaction between the prosecutor and the investigator during the judicial control proceedings, which can be applied in regulating the relationship between the prosecutor and the investigator when considering the issue of applying a measure of restraint in the form of detention.

ADDITIONAL GUARANTEES OF DEFENSE OF RIGHTS AND LEGITIMATE INTERESTS OF JUVENILE SUSPECTS, ACCUSED ON THE STAGE OF THE PRELIMINARY INVESTIGATION

2020 ◽  
pp. 176-184
Author(s):  
I. I. Kartashov ◽  
M. A. Kamyshnikova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
Juvenile Suspects

The article analyzes the provisions of the criminal procedure law to implement supplementary guaran-tees to defend the rights and legitimate interests of juvenile suspects, accused on the stage of preliminary inves-tigation. Based on the analysis of law enforcement practice, the authors propose changes to certain provisions of the Criminal Procedure Code of the Russian Federation

ON THE POSSIBILITIES OF INTEGRATING ARTIFICIAL INTELLIGENCE INTO CRIMINAL PROCEEDINGS

2021 ◽  
Vol 17 (5) ◽  
pp. 220-227
Author(s):  
ELENA PAPYSHEVA ◽  
Keyword(s):  
Artificial Intelligence ◽  
Formal Language ◽  
Preliminary Investigation ◽  
Digital Technologies ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
The State ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Machine Readable

This article examines the possibilities of using machine-readable law technologies in criminal procedural legislation and criminal proceedings; the analysis of the Concept of development of technologies of machine-readable law is carried out in order to determine the possibility of applying its provisions in the context of criminal procedural law. According to the author, the development of the technology of machine-readable law sets the legislator the task of starting the process of adapting the norms of the criminal procedure law to their subsequent presentation in formal language. Legislative acts should be structured as much as possible, within the acts, norms are more clearly divided into certain categories and groups with the building of logical connections between them. The norms of legislative acts need to be formalized, their content should not have legal and linguistic uncertainties, normative conflicts and broad discretionary powers. The conclusion is made about the need for legal transformations, formalization of the norms of the Criminal Procedure Code of the Russian Federation, based on the principle of legal certainty. If the adaptation of legislation to machine-readable norms is the future in the development of science and the system of legal regulation of the state, then the use of digital technologies in criminal proceedings is a matter of the present. It seems that modern digital technologies are sufficiently developed to start developing an automated information system at the state level that meets the formal requirements of the Criminal Procedure Code, within the framework of which a preliminary investigation will be carried out. Moreover, we are talking not only about the «electronic criminal case» in its generally accepted understanding. The author proposes the creation of a comprehensive universal program that provides for the automated application of the ontology of machine-readable law (descriptions in the formal language of many objects in the field of law and the connections between them) in the investigation of criminal cases using the method of teaching artificial intelligence based on a large array of data (including data, constituting the empirical base of research, which was studied in the development of private methods for investigating certain types of crimes).

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