scholarly journals The Role of the Court in Proving Criminal Cases: Unexpected Cross-Industry Analogies

Legal Concept ◽  
2020 ◽  
pp. 117-122
Author(s):  
Aliya Sharipova
Keyword(s):  
Burden Of Proof ◽  
Active Role ◽  
Negative Consequences ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
Procedural Law ◽  
Analysis And Synthesis ◽  
Special Rules

Introduction: consideration of the issue of truth in criminal proceedings is replaced by the issue of the active role of the court in collecting evidence. Avoiding rhetorical questions allows the discussion to be redirected from an ideological framework to a legal one. The purpose of the work is to identify the patterns of litigation of different branches of procedural law related to the participation of state bodies in the case in defense of a large public interest. It is assumed that the high interest of the authorized state bodies in making judgments in their favor in criminal cases and in arbitration tax cases leads to the same type of legal phenomena in these different proceedings. The determining method of the research was the method of comparative jurisprudence. Also, the study used the methods of historicism, system-structural analysis and synthesis. Results: on the example of criminal and arbitration tax cases, an adjustment of procedural law and its application to the needs of state bodies was found to facilitate their winning cases. This is manifested at the level of the introduction of “special” rules that facilitate proof for tax and law enforcement agencies. The period of work of the tax authorities without such adjustment was distinguished by an explosive growth in its quality. Conclusions: true adversarial nature allows government agencies to improve the level of their work in terms of proving the legally significant circumstances of court cases. The rejection of adversariality, replacing it with the active role of the court, entails the redistribution of part of the burden of proof to it, which has far-reaching negative consequences for the quality of justice in the categories of cases under consideration in general.

scholarly journals Criminal Proceedings: At the Intersection of Law and Economics

2021 ◽  
Vol 16 (2) ◽  
pp. 114-124
Author(s):  
S. O. Makhtyuk
Keyword(s):  
Criminal Justice ◽  
Distinctive Feature ◽  
Interdisciplinary Research ◽  
Law And Economics ◽  
Economic Regulation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedural Law ◽  
Modern Level

The paper demonstrates the connection between law and economics. The criminal procedure is considered from new positions of economic regulation. The main narrative of the work is the possibility and necessity of perceiving criminal proceedings as a system that exists not only according to the laws of jurisprudence. The importance of the synthesis of criminal procedural law and economics is dictated by the modern level of development of scientific knowledge, technologies and ideas. The traditional division of sciences is gradually giving way to complex, interdisciplinary research. The activity of subjects of criminal proceedings is no exception. The existing reality dictates: the investigation of criminal cases is a criminal procedural services provided by the investigation, prosecutor’s office and court on behalf of the state. Interaction with the consumers of these services in the person of citizens and the organization, the order and mechanism of cooperation of the competent authorities themselves with each other — this understanding makes the use of economic laws justified for the most effective criminal proceedings. The presented study makes it possible to re-evaluate the qualitative volume of criminal proceedings and offers a topical discourse on the role of seemingly completely different sciences in solving the problems of criminal justice. A distinctive feature of the work is the use of modern opinions, sources and materials in the preparation of the theses outlined in it.

scholarly journals right to receive legal assistance in criminal proceedings in Russia and in foreign countries

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Elena A. Kupryashina ◽  
Dmitry V. Boev ◽  
Anna A. Gileva ◽  
Anzhelika I. Lyakhova ◽  
Sergey F. Shumilin
Keyword(s):  
Integrated Approach ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Scientific Methods ◽  
Foreign Countries ◽  
Analysis And Synthesis ◽  
The Right ◽  
To Receive

The paper analyses the legislation of the Russian Federation and some foreign countries on the right of citizens to provide them with legal assistance in criminal cases, as well as the problems arising in its implementation. The paper also summarizes the experience of the studied countries in order to improve their legislation in this area of criminal justice. Methodologically, the work uses scientific methods of analysis and synthesis, as well as historical and comparative methods; all are given in an integrated approach. Among the conclusions, we underline the fact that some countries are introducing norms and tendencies from international law into their legal systems; the basic international principles of lawyer's activities, including principles for defenders, are fixed in the basic principles on the role of lawyers, which describe the right to receive free legal aid for those who are the poor; also that citizens have the right to choose a representative of their interests in the judiciary and have the opportunity to contact with their defenders at any time.

scholarly journals Evidentiary problems in the investigation of corruption crimes in Ukraine

2020 ◽  
Vol 9 (32) ◽  
pp. 117-124 ◽  
Author(s):  
Mikhailo Shcherbakovskyi ◽  
Ruslan Stepaniuk ◽  
Vasyl Kikinchuk ◽  
Oleksiy Oderiy ◽  
Liudmyla Svyrydova
Keyword(s):  
Human Rights ◽  
International Standards ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
Strict Adherence ◽  
Procedural Law ◽  
European Court ◽  
Timely Access

The fight against corruption in Ukraine is one of the main tasks of law enforcement agencies. However, the process of proving corruption crimes in criminal cases is accompanied by problems that negatively affect the quality of the pre-trial investigation. The purpose of the article is to identify and study typical investigative errors and develop recommendations on the proper use of means and methods of proof in criminal cases of corruption crimes, taking into account the norms of national legislation and international criteria for ensuring human rights in criminal proceedings. To achieve this goal, a comparative and systemic structural analysis of international and domestic regulatory legal acts and court decisions, a selective study of materials from criminal cases on corruption crimes were made. It has been established that the process of proving in cases of corruption crimes in Ukraine will fully comply with international standards for ensuring human rights, provided that operational officers, investigators, and prosecutors comply with the admissibility criterion of evidence, especially when using secret measures. Investigative errors that take place at the stage of pre-trial investigation in this category of criminal cases lead to the restriction of human rights and freedoms and consist in significant violations of the criminal procedural law when collecting, checking, and evaluating evidence, as well as when opening the collected materials to the defense. Preventing such violations requires strict adherence to the general requirements for conducting undercover activities, formulated in the decisions of the European Court of Human Rights and domestic courts. The proof must take into account the "fruit of the poisonous tree" doctrine of the inadmissibility of evidence derived from materials collected in violation of the law. The defense side should be provided with timely access to the materials of covert events, including the documents that served as the basis for their implementation. It is important not to allow actions that are regarded as a provocation (incitement) of the suspect to commit a corruption offense.

Protection of the Rights and Legitimate Interests of Entrepreneurs in Cases of Crimes in the Sphere of Economic Activity

2021 ◽  
Vol 3 ◽  
pp. 92-98
Author(s):  
O. А. Zaytsev ◽  
Keyword(s):  
Economic Activity ◽  
Criminal Policy ◽  
Economic Activities ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Scientific Methods ◽  
The Supreme Court ◽  
Analysis And Synthesis ◽  
Legitimate Interests ◽  
General Scientific

The article examines the problematic issues of applying measures to protect the rights and legitimate interests of entrepreneurs in cases of crimes in the field of economic activity. The material-legal and criminal-procedural mechanisms used in the course of proceedings in this category of cases are examined. Special attention is paid to the analysis of the legal positions of the Supreme Court of the Russian Federation, reflected in the decisions of the Plenum of November 15, 2016 № 48 and October 3, 2017 № 33. The purpose of this study is to identify the most acceptable areas of activity of judicial and law enforcement agencies to protect the rights and legitimate interests of entrepreneurs involved in criminal proceedings. The objectives of the study are: a) to determine the specifics of criminal and criminal procedure legislation containing humane mechanisms for the category of cases under consideration; b) to highlight the positions of scientists who conduct research in this field of activity; с) substantiation of recommendations for the further development of criminal policy in the direction of liberalizing the current structure of crimes in conjunction with the improvement of criminal procedural forms of criminal proceedings. The methodological basis of the research was the dialectical method of cognition, General scientific methods of abstraction, analysis and synthesis, as well as special legal methods. Promising ways of development of criminal policy in the field of formation of legislation that allows the most effective protection of the rights and legitimate interests of entrepreneurs are proposed. The conclusion is made about the need for further scientific study of the system of material-legal and criminal-procedural mechanisms used in the proceedings on crimes committed in the sphere of business and other economic activities.

The Victim – a Great Actor in a Minor Role? – A Comparative Perspective

2021 ◽  
Vol 11 (1) ◽  
pp. 112-128
Author(s):  
Łukasz Duśko ◽  
Mateusz Szurman
Keyword(s):  
Social Order ◽  
American English ◽  
Active Role ◽  
Criminal Court ◽  
Minor Role ◽  
Criminal Proceedings ◽  
The One ◽  
A Minor ◽  
To Receive

Recently, the role of the victim in criminal proceedings became more significant. An observation was made that the legal interests of the victim are much more severely affected by the crime than the collective legal interests in the form of public or social order. However, the differences in the rights the victim is vested with differ substantively between particular countries. The authors present the position of the victim in American, English and French law. The solutions provided for in these systems are confronted with legal regulations adopted in Poland, i.e. the home country of the authors. It shows, surprisingly, that the role of the victim in criminal proceedings has evolved somehow independently of the implementation of the concept of restitution. On the one hand, there are legal systems in which the criminal court may order the offender to pay compensation for the damage caused, but the role of the victim still remains marginal. On the other hand, there are systems in which the victim is not only entitled to receive restitution, but he or she also has significant powers which enable him or her to play an active role in the criminal proceedings.

scholarly journals Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining

2019 ◽  
Vol 22 (4) ◽  
pp. 494-541 ◽  
Author(s):  
Sari Luz Kanner ◽  
Dana Rosen ◽  
Yosef Zohar ◽  
Michal Alberstein
Keyword(s):  
Conflict Resolution ◽  
Alternative Dispute Resolution ◽  
Average Duration ◽  
Plea Bargaining ◽  
Active Role ◽  
Criminal Cases ◽  
Judicial Process ◽  
Legal Cases ◽  
Client Relations

This article examines the role of the criminal judge in light of the vanishing trial phenomenon and the emergent reality of many doors to process legal conflicts in both the civil and criminal domains. It focuses on judicial conflict resolution (JCR), which is any activity conducted by judges in order to promote consensual disposition of legal cases, in “Plea Bargains Facilitating Days” (moqed) in Tel-Aviv Magistrate’s Court. We conducted quantitative and qualitative analyses of data collected from observations of 717 hearings in 704 criminal cases and found that, on average, 5.55 (SD = 3.62) hearings were required for disposing of a case, and the average duration of a legal proceeding from indictment to closure was 548.55 (SD = 323.17) days. In most of the hearings the judges’ role was confined to managerial-bureaucratic decisions intended to enable the negotiation between the parties. JCR activities occurred in only 16.9 percent of the hearings, and we identified six types of JCR practices in the promotion of plea bargains: narrow and broad facilitation of negotiations between the parties, forecasting the legal outcome, negatively presenting the judicial process, using lawyer-client relations to promote agreement, and using Alternative Dispute Resolution (ADR) techniques. These findings are compared to previous findings on the roles of judges in civil pretrial proceedings, and the more active role of the civil judge in promoting settlements is discussed. We further discuss the possibility of expanding a therapeutic and rehabilitative approach in the framework of criminal JCR during preliminary hearing days, which become today the main door of criminal justice.

4. The course of the trial

Evidence ◽  
2019 ◽  
pp. 140-200
Author(s):  
Roderick Munday
Keyword(s):  
Criminal Proceedings ◽  
Criminal Cases ◽  
Trial Judge ◽  
The Core ◽  
The Subject ◽  
The Right

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: the right to begin; the role of the trial judge; the judge’s right to call a witness; examination-in-chief; hostile witnesses; cross-examination; re-examination; calling evidence relating to witnesses’ veracity; witness support; the Crown’s right to reopen its case; and special protections extended to various classes of witness in criminal cases. Many of the rules apply to civil and criminal proceedings alike. However, as elsewhere in this book, the accent will be on rules of criminal evidence.

The Role of Covert Policing and the Use of Its Results in Criminal Proceedings Involving Unlawful Restraint for Ransom

2017 ◽  
Vol 9 (1) ◽  
pp. 123-0
Author(s):  
Zbigniew Niemczyk
Keyword(s):  
Law Enforcement ◽  
Subject Matter ◽  
The State ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Specific Manner ◽  
The Subject ◽  
Ultimate Objective ◽  
High Level

The article is concerned with the subject matter of covert policing involving cases where a hostage is unlawfully taken and detained with the purpose of forcing other persons to act in a specific manner. Such activities, being among the most difficult procedures relevant to the work of law enforcement agencies, are usually conducted in conditions determined by a rapidly changing factual situation, high level of criminal conspiracy and the state of permanent risk to the hostage’s life, the saving of which is the ultimate objective of public officers. Due to these factors, covert policing related to this kind of cases — given its nature and its investigative potential — becomes extremely important. The author’s aim is to determine the essence and functions of covert policing, and in particular to present conditions which must be met to adequately process covertly obtained intelligence for the needs of criminal proceedings.

scholarly journals Penal Mediation as the Concept of Restorative Justice in the Draft Criminal Procedure Code

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Emmanuel Ariananto Waluyo Adi
Keyword(s):  
Law Enforcement ◽  
Restorative Justice ◽  
Criminal Procedure ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
The Public ◽  
Procedural Law ◽  
Private Realm ◽  
Procedure Code ◽  
The Law

The law recognizes both litigation and non-litigation settlement mechanisms, but it is almost not explicitly regulated for non-litigation settlement in criminal cases. Non-litigation in criminal recognizes the concept of restorative justice for the public interest, which is different from the private realm in civil. The concept of restorative justice exists to rehabilitate the state of criminals so that they are accepted back into the community. The concept of restorative justice is manifested in the mediation mechanism in criminal law in the form of penal mediation, but penal mediation does not yet have a legal umbrella. The non-progressive normative application of the law results in the overcapacity of prisons/remand centres. Currently, the Draft Criminal Procedure Code (hereinafter as RKUHAP) is being drafted, which does not yet regulate the application of non-litigation solutions. Later, it can be applied by law enforcement agencies so that problems such as overcapacity prisons are resolved and the creation of peaceful order in the community. This study aims to provide a view of the concept of penal mediation in criminal procedural law to serve as an aspiration for the consideration of the parties involved in the preparation of the substance of the RKUHAP. This paper uses a normative approach with technical analysis using hermeneutic analysis and interpretation methods.

scholarly journals The Role of the Prosecutor in Coordinating the Activities of the Bodies of Inquiry and Preliminary Investigation in the Implementation of Criminal Prosecution

Legal Concept ◽  
2021 ◽  
pp. 12-20
Author(s):  
Nina Manova
Keyword(s):  
Preliminary Investigation ◽  
Practical Experience ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
The Public ◽  
Real Model ◽  
Essential Components ◽  
General Scientific

Introduction: one of the most influential actors in the system of law enforcement agencies of any state, in any system of criminal proceedings, is the prosecutor; in this connection, the purpose of the work was to study his role in coordinating the activities of the bodies of inquiry and preliminary investigation in the implementation of criminal prosecution. Methods: the methodological framework for the work consists of the general scientific (dialectical, systemic, structural-functional, logical, etc.) and the specific scientific (formal-legal, comparative-legal, etc.) research methods. Results: the author’s position presented in the paper is based on the analysis of the legislative regulation, the knowledge accumulated in the theory of the criminal procedure and practical experience of the coordination and personal implementation of the criminal prosecution activities by the prosecutor in the pretrial stages of the criminal process. Conclusions: as a result of the study, the role of the prosecutor as the organizer and head of the criminal prosecution carried out by the inquirer and the investigator is justified; the mistakes made in reforming the procedural position of the prosecutor in pre-trial proceedings are revealed; the essential components in the real model of the prosecutor’s activity that were not taken into account by the legislator are identified: the nature of the prosecutor’s relationships with other participants in the process and his key role in the implementation of criminal prosecution (his responsibility for the legality of the pre-trial criminal prosecution, and the duty to maintain the public prosecution in court).

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