The Improvement of the Procedural Order for Checking the Reasons and Grounds for Initiating a Criminal Case

Legal Concept ◽  
2021 ◽  
pp. 189-194
Author(s):  
Natalia Solovyova ◽  
◽  
Pavel Fantrov ◽  
Vladimir Shinkaruk ◽  
◽  
...  
Keyword(s):  
Federal Budget ◽  
Criminal Procedure ◽  
The Body ◽  
Criminal Case ◽  
Law Enforcement Agencies ◽  
Criminal Process ◽  
Case Methods ◽  
The Status ◽  
Criminal Procedure Law ◽  
Procedural Costs

Introduction: the range of tasks facing the stage of initiating a criminal case is quite diverse, which leads to different interpretations of their content by the scientists-processualists. The authors of the paper assess the problems of determining the reasons and grounds for initiating a criminal case. The problem considered by the authors of the manuscript is relevant because of their insufficiently clear legislative definition and their related ambiguous interpretation. The purpose of the study: to identify the problems that hinder the improvement of the procedural order for checking the reasons and grounds for initiating a criminal case. The research objectives: to analyze the points of view of the scientists-processualists about the expediency of eliminating the first stage of the criminal process; to offer some recommendations for transforming the stage of initiating a criminal case. Methods: the methodological framework for the study is represented by a system of methods of scientific cognition, which should include: general scientific, systemic, institutional, and comparative legal. Results: the paper provides an assessment of the position of some researchers specializing in criminal procedure law on the need to eliminate the stage of initiating a criminal case, which the authors of the paper do not share, citing the following arguments: the considered stage of the criminal process acts as a kind of filter that separates the law enforcement agencies from procedural activities for the analysis of information that does not hide the signs of a criminally punishable act; will cause an increase in the burden on investigators and interrogators; the burden on the federal budget will increase due to the procedural costs. Conclusions: considering the possibility of improving the stage of initiating a criminal case, borrowing the experience of the representative countries of the Anglo-Saxon legal system, the authors of the paper conclude that as a result of this, the procedural status of some participants in the criminal process will change, which is alien to the Russian criminal procedure legislation: the replacement of the functions of the investigator by the prosecutor and the court; the exercise of the function of the body of inquiry by the investigator; the acquisition by the defender of the status of the subject of proof on a par with the investigator and the inquirer. It is noted that the attempt of the legislator to give evidentiary value to the information obtained during the preinvestigation check as an independent reason for initiating a criminal case was not successful.

THE PLACE AND THE ROLE OF A PERSON WHO CONCLUDED A PRE-TRIAL AGREEMENT IN THE SYSTEM OF THE PARTIES TO THE CRIMINAL PROCEEDINGS

2021 ◽  
pp. 42-47
Author(s):  
A. V. Orlov ◽  
◽  
K. P. Fedyakin ◽  
Keyword(s):  
Practical Interest ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Cooperation Agreement ◽  
Current Configuration ◽  
The Status ◽  
Criminal Procedure Law ◽  
History Of

The issues of specifying the procedural status of a person who concluded a pre-trial cooperation agreement are currently of research and practical interest. The divergence in settling some procedural aspects (starting with identifying the place and the role of the considered participant in the criminal proceedings and finishing with the feasibility of using the received information in evidence) brings to nothing the possibility of active participation of this person in the criminal case consideration. The authors attempt to analyze the most acute problems of determining the procedural status of the named subject of criminal proceedings to identify possible directions to improve criminal procedure law. To achieve target goals, the authors both analyzed the provisions of current criminal procedure legislation and considered the most interesting suggestions of scientists-processualists and practitioners on the improvement of legislative formulations describing the status of a person concluded a pre-trial cooperation agreement. Apart from this, the authors considered the history of the origin of this subject in the current national criminal procedure, showed the inconsistency of this figure in the current configuration of competitive criminal procedure. The authors propose introducing amendments to the texts of Articles 5, 74 of the RF Code of Criminal Procedure and discuss the necessity of moving Article 56.1 of the RF Code of Criminal Procedure to another chapter of the Code. Otherwise, according to the authors’ opinion, the participation of persons who concluded a pre-trial cooperation agreement in the criminal procedure will still rouse the censure of practitioners and face just criticism of the scientists-processualists.

To the Matter of Procedural and Legal Problems of Detaining a Person on Suspicion of Committing a Crime

2021 ◽  
Author(s):  
E.V. Bolshakov ◽  
◽  
I.D. Nazarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
The Moment

The subject of the research within the framework of the article is the criminal procedure institute for the detention of a person on suspicion of committing a crime. The legal nature of this institution is analyzed, and comments are given on the normative legal acts and judicial practice regulating the issues of detention. The theoretical basis of the research is based on the publications of the last two decades on this problem, in particular, reflecting the discussion of the process scientists S. A. Shafer, S. B. Rossinsky and A. A. Tarasov, the subject of which was the issue of the legal nature of a suspect detention in a criminal case. In the paper, the authors ask the following questions: What is the detention of a person on suspicion of committing a crime in accordance with the legislation of the Russian Federation? From what moment does the detained person acquire the status of a suspect? Is it possible to detain a person before initiating a criminal case? The study concludes that a person acquires the actual status of a suspect from the moment of direct detention, that is, before documenting this status and, as a result, before initiating a criminal case. Amendments to the articles of the Criminal Procedure Code of the Russian Federation are proposed, and the authors` versions of the definitions of the concepts «detention of a suspect», «the moment of actual detention» and «pre-trial proceedings» are given.

scholarly journals Problems of Implementing the Criminal Procedure Policy in Crime Prevention

2021 ◽  
Vol 15 (3) ◽  
pp. 401-408
Author(s):  
Igor Antonov ◽  
Igor Alekseev
Keyword(s):  
Crime Prevention ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
Social Conflicts ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Theory Of Law

The authors use a communicative approach to the theory of law in their analysis of criminal procedure policy and its role in crime prevention. This approach allowed them to determine the content of criminal procedure work that lies outside the scope of criminal law. This content is its ability to regulate social conflicts of criminal law character. Within this framework, the criminal procedure is viewed as a platform for resolving social conflicts, the sides use it to resolve a conflict between them in socially acceptable ways in the process of communication. The involvement of the aggrieved party in the process of communication in connection with the crime intensifies the correctional impact of the criminal process and its significance for crime prevention. The authors suggest using simplified measures of criminal procedure law for reforming this process and basing it on the procedure of terminating a criminal case with the imposition of a court fine as a measure of criminal law influence. They suggest using the same approach when terminating a criminal case due to the reconciliation of the sides, with one exception: during the reconciliation of the sides, only grounds provided for in Art. 76 of the Criminal Code of the Russian Federation should be proven. If they are established, the investigator is obliged to petition to the court and the court, having established their validity, should decide to terminate the criminal case.

scholarly journals SUATU KAJIAN YURIDIS TERHADAP PENGGUNAAN ALAT BUKTI ELEKTRONIK DALAM KEJAHATAN CYBER DALAM SISTEM PENEGAKAN HUKUM

2021 ◽  
Vol 3 (2) ◽  
pp. 11-25
Author(s):  
Ni Made Trisna Dewi,Reido Lardiza Fahrial
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
Law Enforcement Agencies ◽  
Electronic Evidence ◽  
Procedure Code ◽  
The Law ◽  
Witness Statements ◽  
And Function

Abuse in the electronic transaction because it is formed from an electronic process, so the object changes, the goods become electronic data and the evidence is electronic.  Referring to the provisions of positive law in Indonesia, there are several laws and regulations that have set about electronic evidence as legal evidence before the court but there is still debate between the usefulness and function of the electronic evidence itself, from that background in  The following problems can be formulated, How do law enforcement from investigations, prosecutions to criminal case decisions in cybercrimes and How is the use of electronic evidence in criminal case investigations in cybercrimes This research uses normative research methods that are moving from the existence of norm conflicts between the Criminal Procedure Code and  ITE Law Number 19 Year 2016 in the use of evidence.  The law enforcement process of the investigator, the prosecution until the court's decision cannot run in accordance with the provisions of ITE Law Number 19 of 2016, because in interpreting the use of electronic evidence still refers to Article 184 paragraph (1) KUHAP of the Criminal Procedure Code stated that the evidence used  Legitimate are: witness statements, expert statements, letters, instructions and statements of the accused so that the application of the ITE Law cannot be applied effectively The conclusion of this research is that law enforcement using electronic evidence in cyber crime cannot stand alone because the application of the Act  - ITE Law Number 19 Year 2016 still refers to the Criminal Code so that the evidence that is clear before the trial still refers to article 184 paragraph (1) KUHAP of the Criminal Procedure Code and the strength of proof of electronic evidence depends on the law enforcement agencies interpreting it because all electronic evidence is classified into  in evidence in the form of objects as  so there is a need for confidence from the legal apparatus in order to determine the position and truth of the electronic evidence.   Penyalahgunaan didalam transaksi elektronik tersebut karena terbentuk dari suatu proses elektronik, sehingga objeknya pun berubah, barang menjadi data elektronik dan alat buktinya pun bersifat elektronik. Mengacu pada ketentuan hukum positif di Indonesia, ada beberapa peraturan perundang-undangan yang telah mengatur mengenai alat bukti elektronik sebagai alat bukti yang sah di muka pengadilan tetapi tetap masih ada perdebatan antara kegunaan dan fungsi dari alat bukti elektronik itu sendiri, dari latar belakang tersebut di atas dapat dirumuskan masalah sebagai berikut, Bagaimana penegakkan hukum dari penyidikan, penuntutan sampai putusan perkara pidana dalam kejahatan cyber dan Bagaimanakah penggunaan bukti elektronik dalam pemeriksaan perkara pidana dalam kejahatan cyber Penelitian ini menggunakan metode penelitian normatif yakni beranjak dari adanya konflik norma antara KUHAP dengan Undang-undang ITE Nomor 19 Tahun 2016 dalam penggunaan alat bukti. Proses penegakkan hukum dari penyidik, penuntutan sampai pada putusan pengadilan tidak dapat berjalan sesuai dengan ketentuan Undang-undang ITE Nomor 19 Tahun 2016, karena dalam melakukan penafsiran terhadap penggunaan alat bukti Elektronik masih mengacu pada Pasal 184 ayat (1) KUHAP disebutkan bahwa alat bukti yang sah adalah: keterangan saksi, keterangan ahli, surat, petunjuk dan keterangan terdakwa. sehingga penerapan Undang-undang ITE tidak dapat diterapkan secara efektiv. Kesimpulan dari penelitian ini adalah penegakan hukum dengan menggunakan alat bukti elektronik dalam kejahatan cyber tidak bisa berdiri sendiri karena penerapan Undang-Undang ITE Nomor 19 Tahun 2016 tetap merujuk kepada KUHP sehingga alat bukti yang sah di muka persidangan tetap mengacu pada pasal 184 ayat (1) KUHAP dan Kekuatan pembuktian alat bukti elektronik tersebut tergantung dari aparat hukum dalam menafsirkannya karena semua alat bukti elektronik tersebut digolongkan ke dalam alat bukti berupa benda sebagai petunjuk sehingga diperlukan juga keyakinan dari aparat hukum agar bisa menentukan posisi dan kebenaran dari alat bukti elektronik tersebut.

Execution of a Sentence in the Structure of Criminal Proceedings: Procedural Stage or Special Court Proceedings?

2020 ◽  
Vol 1 ◽  
pp. 97-106
Author(s):  
V. V. Nikolyuk ◽  
◽  
L. A. Pupysheva ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Self In Relation ◽  
The Supreme Court ◽  
Court Proceedings

The article analyzes the concept of execution of a sentence as an independent stage of the criminal process (the stage of criminal proceedings). Arguments are given that point to its certain illogicality and inconsistency. The authors on the basis of existing legislation and taking into account the positions of Plenum of the Supreme Court additionally reasoned and substantiated the thesis of the existence of the criminal process self in relation to a criminal case of criminal procedure, regulated by Chapter 47 of the Code of criminal procedure.

scholarly journals THE OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE AND PRELIMINARY INVESTIGATION: PROBLEMS OF THE OBJECT AND THE OBJECTIVE SIDE

2018 ◽  
Vol 2 (2) ◽  
pp. 97-105
Author(s):  
Alexandra Vladimirovna Boyarskaya
Keyword(s):  
Russian Federation ◽  
Complex Analysis ◽  
Preliminary Investigation ◽  
Legal Protection ◽  
Criminal Procedure ◽  
Criminal Code ◽  
The Body ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
The Russian Federation

The subject. The article is devoted to the investigation of the main direct object and the circle of victims are subjected of harm by criminal acts stipulated by pts. 1, 2 of art. 294 of the Criminal Code of the Russian Federation.The purpose of the paper is to identify does the art. 294 of Criminal Code of the Russian Federation meets the other provisions of criminal procedure legislation.The methodology of research includes methods of complex analysis, synthesis, as well as formal-logical, comparative legal and formal-legal methods.Results and scope of application. The content of art. 294 of the Criminal Code of the Russian Federation does not comply with the provisions of the criminal procedure law. The discrep-ancy lies in terms of the range of participants in criminal proceedings and the functions performed by them, as well as the actual content and correlation of such stages of criminal proceedings as the initiation of criminal proceedings and preliminary investigation. In addi-tion, the current state of art. 294 of the Criminal Code of the Russian Federation does not take into account the ever-widening differentiation of criminal proceedings.The circle of victims listed in pt. 2 of art. 294 of the Criminal Code of the Russian Federation should be supplemented by such participants in the criminal process as a criminal investi-gator, the head of the investigative body, the head of the inquiry department, the head of the body of inquiry. At the same time, the author supports the position that the criminal-legal protection of the said persons should cover not only their activities at the stage of preliminary investigation, but also of the entire pre-trial proceedings as a whole.The circle of criminal acts provided for in art. 294 of the Criminal Code of the Russian Fed-eration, should also be specified with an indication of encroachment in the form of kidnapping, destruction or damage to such a crime as materials of criminal, civil and other cases, as well as material evidence.Conclusions. The content of art. 294 of the Criminal Code of the Russian Federation does not comply with the provisions of the criminal procedure law. The author formulates the conclusion that the circle of victims listed in pt. 2 of art. 294 of the Criminal Code should be broadened and joins the position that the criminal-legal protection of these persons should cover not only their activities at the stage of preliminary investigation, but also of the entire pre-trial proceedings as a whole.

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 Digital rights persons carrying out a preliminary investigation

2021 ◽  
pp. 108-115
Author(s):  
A. N. Pershin
Keyword(s):  
Private Information ◽  
Human Life ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
The Internet ◽  
Data Sets ◽  
Significant Information ◽  
Digital Rights ◽  
Criminal Procedure Law

The emergence of the Internet and intangible digital objects of value to humans led to the proclamation of the concept of “digital human rights” in civil substantive law. In criminal procedure law this term is not absent. In this case, the investigator collects information about the circumstances to be proved in a criminal case under the conditions of digitalization of all human life processes. The Internet network has combined a large number of data sets of government agencies, commercial organizations, and individuals. The investigator’s access to these data sets and their study would allow optimizing the investigator’s activities by quickly collecting the necessary information for the criminal case and using it as evidence. To this end, the article gives the concept of” digital rights “ of an investigator, suggests an approach to creating such rights in criminal procedure legislation, and defines the problems of organizing the collection of criminally significant information from public and private information systems on the Internet. 

scholarly journals PERANAN ALAT BUKTI DALAM PERKARA PIDANA DALAM PUTUSAN HAKIM MENURUT KUHAP

Yuridika ◽  
2017 ◽  
Vol 32 (1) ◽  
pp. 17
Author(s):  
Bastianto Nugroho
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Law Enforcement Officers ◽  
The State ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Examination Process

The trial of a criminal case is to find out whether a criminal offense has occurred in an event, therefore in the most important criminal proceedings the proceedings are proved. Evidence is a problem that plays a role in the examination process in court because with this proof is determined the fate of a defendant. The legal function in the State of Indonesia is to regulate the order of society in the life of the nation and the state, whereas the violation of the law itself is an event that must exist in every society and is impossible to be eliminated absolutely, because violation of law is an integral part of development More complex. One of the provisions governing how the law enforcement officers carry out the task in the field of repressive is the criminal procedure law which has the purpose of searching and approaching material truth, the complete truth of a criminal case by applying the provisions of criminal procedure law honestly darn precisely with The purpose of finding out who the perpetrator can be charged with is a violation of the law. 

scholarly journals The institution of suspicion and the initial stage of the criminal process: interrelated prospects of development

2021 ◽  
Vol 2021 (4) ◽  
pp. 121-131
Author(s):  
Ol'ga Polikarpova
Keyword(s):  
Criminal Procedure ◽  
Radical Change ◽  
Criminal Case ◽  
Initial Moment ◽  
Criminal Prosecution ◽  
Constitutional Rights ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Initial Stage

The article considers the question of the interdependence of the improvement of the institution of suspicion and the transformation of the initial stage of the Russian criminal process. The article highlights the problem of the legislative limitation of the period of the procedural status of a person as a suspect in the event of a criminal case being initiated not against him, but upon the commission of a crime and insufficient evidence of the involvement/non-involvement of such a person in a criminal offence committed at the initial stage of the investigation, which often does not allow avoiding unreasonable restrictions on the constitutional rights and freedoms of this participant in criminal proceedings. The relevant experience of some post-Soviet states that followed the path of a radical change in the criminal procedure model after the collapse of the USSR is analysed. The article compares the provisions of the criminal procedure legislation of the Russian Federation and the Kyrgyz Republic directly related to the institution of suspicion, including the moment of triggering criminal prosecution and the duration of a suspect’s keeping the specified procedural status. The arguments given in the article substantiate the need to reform the initial moment of the emergence of the procedural status of a suspect in Russian criminal proceedings and the associated expediency of abolishing the stage of initiation of a criminal case in order to increase the guarantee of the rights and legitimate interests of the person introduced into the procedural status we are analysing.

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