scholarly journals Ensuring the Right of a Person Placed in a Psychiatric Care Hospital to Defense in Criminal Proceedings

2021 ◽  
pp. 42-50
Author(s):  
Anna Shatrova
Keyword(s):  
Psychiatric Care ◽  
Care Facility ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Care Hospital ◽  
Criminal Proceedings ◽  
Systemic Analysis ◽  
Criminal Procedure Law ◽  
Court Proceedings ◽  
The Right

The involvement of persons suffering from mental disorders into criminal court proceedings requires additional procedural guarantees of ensuring their rights. The procedural status of a person involved in proceedings regarding the application of compulsory medical treatment is not sufficiently well-defined in Russian criminal procedure. Such a normative construct makes it harder for this person to exercise their right to defense. The author examines some problems of ensuring a right to defense when making a decision on placing a mentally ill person in a psychiatric care facility. Based on a systemic analysis of current criminal procedure norms and international law standards of ensuring a just and fair court hearing in the category of criminal cases under consideration, the author presents ideas on improving the criminal procedure law and the practice of its enforcement. It is suggested that a special norm of procedural compulsion consisting in the forceful placement of a person in a psychiatric care hospital should be incorporated in law.

scholarly journals ON THE ISSUE OF EVALUATING THE FORENSIC STRUCTURAL ENGINEERING RESULTS IN CRIMINAL PROCEEDINGS

2020 ◽  
Vol 21 (1) ◽  
pp. 92-105
Author(s):  
D. Puchko
Keyword(s):  
Structural Engineering ◽  
Criminal Procedure ◽  
The Body ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
False Report ◽  
Criminal Procedure Law ◽  
Forensic Expert ◽  
Court Proceedings ◽  
The Right

Problematic issues of forensic structural engineering as a source of evidence while criminal proceedings in the aspect of evaluating its results have been analyzed. Taking into account the relevance of this type of forensic examination both for the investigation of criminal proceedings and for other types of court proceedings, main provisions concerning evaluation of a forensic report in the field of forensic structural engineering are considered. Relevant norms of the Criminal Procedure Code of Ukraine and of some foreign countries have been studied. It is concluded that, in fact, the approaches to the preparation of forensic report content are similar to the corresponding norms of the Ukrainian criminal procedure law. Certain discrepancies relate to the content of the report examination part – in some countries it does not contain a detailed description of the research course. In addition, according to Art. 242 of the Criminal Procedure Code of Ukraine, a defense can independently engage a forensic expert, therefore, Art. 102 needs improvement. And since the defense party is not endowed with the right to warn a forensic expert about responsibility for a knowingly false report and refusal without valid reasons to fulfill duties assigned to him, then the indicated norm must be supplemented for such cases – in the aspect of the forensic expert awareness on such responsibility. It is specified that the body (person) that appoints the forensic structural engineering  examination does not always ask a forensic expert questions within the framework of the subject of proof. Admissibility of evidence is primarily determined by its receipt based on compliance with law. The grounds are provided that may serve as a reason for accepting the forensic report as inadmissible evidence in the field of forensic structural engineering.

scholarly journals SEKUNDARNI POSITION OF CONSENSUAL PROCEEDINGS

2019 ◽  
Keyword(s):  
Criminal Procedure ◽  
Public Law ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Public And Private ◽  
Legal Norms ◽  
Private Interests ◽  
Criminal Procedure Law ◽  
Court Proceedings ◽  
The Right

The article discusses the situation of civil law and consensus in the criminal process for not serious crimes. The essence of consensual proceedings in the criminal process is determined, its procedural form is disclosed, which includes the agreement of the parties and the grounds for closing the criminal proceedings both at the stage of pre-trial investigation and court proceedings. Considering the division of the right to public and private, on the basis of the consensual provisions of the criminal process, it is necessary to indicate that they have different substances and are divided according to different classification criteria. Based on the general and theoretical provisions of the criminal process, the consensual developments of this work, we can determine that public and private law has two directions, which include the theory of interest and the theory of protection of private interests. In this case, we can talk about the material and formal signs of theoretical modifications, namely, to proceed from the content of regulated relations, which should be based on material conditions. That is, if the norms of public law regulate the interests of a person, then they are built on the material theory. How they regulate and what they regulate, we attribute to the legal norms. The conclusion is that in relation to the construction of legal relations between the subjects of the process, this question can be put on the basis of the content of the subjective right. The criminal process has the authority to interfere with the norms of public law in the private interests of the person, if provided for by criminal law. We believe that the criminal procedure law should take measures to limit the interference of public law in private interests. Based on the analysis of civil procedural legislation, recommendations were given on drafting an agreement in the criminal procedure in the procedural form on compensation for material damage.

scholarly journals Digital Information Platforms as an Object of Normative Legal Regulation in the Sphere of Criminal Proceedings

2019 ◽  
Vol 13 (6) ◽  
pp. 873-883 ◽  
Author(s):  
Viсtor Grigoryev ◽  
Alexander Sukhodolov ◽  
Sergey Ovanesyan ◽  
Marina Spasennikova ◽  
Vladislav Tyunkov
Keyword(s):  
Large Scale ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Court ◽  
Digital Information ◽  
Criminal Proceedings ◽  
Digital Platforms ◽  
Road Map ◽  
Court Proceedings ◽  
Definition Of

While noting the general trend for the regulation of digital relations in the sphere of criminal court proceedings, the authors draw attention to the absence of a common approach to this work, or of a universal understanding of criminal procedure norms regarding digital relations, as well as to the drawbacks in preparing new norms that regulate digital relations. Problems connected with the regulation of electronic processes are not specific for Russia only. Laws of some countries do not recognize evidence obtained electronically, and view it as secondary. The results of implementing the road map of digital economy and the approaches to the definition and typification of digital platforms are the basis for laying the foundations of the criminal proceedings’ digitization in Russia. Large-scale growth of innovations for the platforms and an increasing complexity of their architecture enable the solution of a new research task — the spread of digital platforms to various sectors, in this case, to the sphere of criminal proceedings. The authors use the definition of a digital platform approved by the Russian Governmental Commission on Digital Development to formulate their own definition of a digital information platform as an object of normative legal regulation in the sphere of criminal proceedings and prove that it should belong to sectoral digital platforms. The value of the transition to the normative legal regulation of digital information systems in the sphere of court proceedings lies in the reduction of costs and the elimination of the subjective factor by using a package of digital technologies of data processing and changing the system of the division of labor while reaching the purpose of criminal justice. The authors also stress the inappropriateness of simplification and primitivism, when a criminal procedure system is mechanically viewed as a system of distributed registers (blockchain), or when digitization is used as an excuse for suggesting the abolishment of investigative departments as parasites in the digital reality where crime investigation and solution become a job for ordinary internet users.

scholarly journals Forms of Interaction between an Investigator and Bodies of Inquiry at the Initial Stage of Pre-Trial Proceedings

Lex Russica ◽  
2020 ◽  
Vol 73 (3) ◽  
pp. 70-79
Author(s):  
Yu. G. Torbin ◽  
A. A. Usachev ◽  
L. P. Plesneva
Keyword(s):  
Law Enforcement ◽  
Task Force ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Initial Stage ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right ◽  
To Receive

Despite the prolonged use of certain forms of interaction between the investigator and investigative agencies at the initial stage of pre-trial proceedings, the criminal procedure legislation still lacks some aspects of their implementation. This makes it necessary to study the current situation and substantiate the theoretical and practical provisions concerning interaction between an investigator and investigative agencies in the context of verification of the report of the crime in the light of the planned digitalization of domestic criminal proceedings. The author suggests that the forms of interaction, the application of which is expedient at the initial stage of pre-trial proceedings, include two procedural forms (giving written instructions to an investigative agency about carrying out operational search activities, obtaining explanations, obtaining assistance in carrying out investigative and other procedural actions) and two organizational forms (joint planning and formation of an investigative and task force). In order to increase the efficiency of criminal procedure at the initial stage of pre-trial proceedings, to ensure clarity of the language of criminal procedure law and its compliance with law enforcement, the auther proposes to amend Part 1 of Article 144 of the Code of Criminal Procedure by supplementing it with the right of authorized officials and bodies to give to investigative agencies mandatory written instructions for obtaining explanations, and to receive assistance from the investigative agency in carrying out verification actions. At the same time, the paper demonstrates the author’s approch to excluding obtaining explanations from the general list of procedural actions specified in Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation and conducted by authorized subjects of verification of the report of the crime. Also, the paper analyzes the importance of introduction of electronic document circulation into criminal proceedings from the point of view of efficiency of interaction between the investigator and investigative authorities at the initial stage of pre-trial investigation.

Ensuring the right to protection at the stage of appeal proceedings in criminal case: problems of theory and practice

2021 ◽  
Vol 15 (2) ◽  
pp. 7-16
Author(s):  
Oksana V. Kachalova ◽  
Sergey A. Vdovin
Keyword(s):  
Criminal Procedure ◽  
Theory And Practice ◽  
Criminal Case ◽  
Final Decision ◽  
Legal Representative ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
Criminal Procedure Law ◽  
The Right ◽  
Court Of Appeal

Introduction. The right of the accused to a defense in criminal proceedings is a prerequisite for the effective administration of justice, since it minimizes possible errors in the final decision in a case, which may result in the conviction of innocent persons, which contradicts the purpose of criminal proceedings and undermines citizens confidence in the judicial system. The purpose of the article is to identify systemic problems that impede the effective implementation of the right to defense at the stage of appeal, as well as to suggest ways to resolve them. Main results. The authors come to the conclusion that the structural and logical elements of ensuring the right of the accused to a defense at the stage of appeal proceedings in a criminal case are: subjects defending the accused; duties of a defense lawyer to exercise the right of the accused to defense at the stage of appeal proceedings in the case; subjects who, in accordance with the requirements of the criminal procedure law, are obliged to ensure the right of the accused to defense; the duties of the courts of first and appellate instances imposed on them by the criminal procedure law, corresponding to the rights of the accused, his defense lawyer and legal representative and forming in their totality a system of interim measures necessary for the realization of the accuseds right to defense; the powers of the accused, his defense counsel and legal representative, through which the constitutional right to defense is exercised; guarantees of the accuseds right to defense. The only ground for limiting the right to defense is abuse of the right by the defense. The fact of abuse of the right can only be established by the court, the abuse of the right cannot be evidenced exclusively by the external expression of the actions of participants in the process. The question of the presence or absence of abuse of the right to defense should be decided by the court on the basis of the totality of factual circumstances and procedural features of each individual situation. The system of powers that make up the content of the defendants right to defense at the stage of appeal proceedings in the case consists of two interrelated elements, including powers exercised at the stage of filing an appeal and before the start of the court session of the court of appeal, as well as the powers that the defense side has directly in consideration of a criminal case in a court session of the court of appeal. Conclusion. Thus, the effective provision of the right to defense at the stage of appeal proceedings requires a change in approaches on the part of legislator and law enforcement officers.

scholarly journals Realization of the Purpose of Criminal Proceedings by the Investigator and by the Defense Counsel: Opposition or Interaction?

2021 ◽  
pp. 15-24
Author(s):  
Svetlana Bulatova
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Defense Counsel ◽  
The Russian Federation ◽  
Court Proceedings ◽  
Independent Auditing ◽  
Case Based

The author discusses relationships between the prosecution and the defense during the preliminary investigation of a criminal case. Based on the analysis of contemporary Russian criminal procedure legislation and the links between the criminal procedure theory and criminalistics, the author concludes that it is necessary to single out the following forms of relationships between the defense counsel and the investigator: cooperation and counteraction to the investigation. The author, taking into account existing theoretical views, differentiates between these two concepts using the criterion of the legality of the actions of the sides. Correspondingly, it is suggested that cooperation is the activity of the sides carried out within the framework of the criminal procedure legislation and aimed at the realization of the purpose of criminal court proceedings as stated in Art. 6 of the Code of Criminal Proceedings of the Russian Federation. Using this as a basis, the author attempts to outline the procedural types of such interaction depending on the manner in which the defense counsel participates in proofing a criminal case. Firstly, there is a situation in which evidence is collected directly by the defense council. The author believes that in this case the investigator checks the evidence acting as an independent auditing body in the legal relationships and does not perform the function of the prosecution. Secondly, there is a procedural form of interaction when the defense counsel participates in the collection of evidence carried out by the side of the prosecution.

scholarly journals Topical Issues of Determining a Vehicle Driver's Intoxication in the Investigation of Road Traffic Offences

2018 ◽  
Vol 12 (3) ◽  
pp. 375-386 ◽  
Author(s):  
Julia Aksenova-Sorokhtei ◽  
Elena Baranovskaya ◽  
Olga Kuzmina ◽  
Аnna Makhanek
Keyword(s):  
Biological Samples ◽  
Traffic Accidents ◽  
Road Traffic ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Medical Screening ◽  
Systemic Analysis ◽  
Alcohol And Drug Abuse ◽  
The Right

Alcohol and drug abuse hold a special place among the phenomena accompanying the modern civilization because they have a negative impact on all aspects of society. One of the most dangerous types of crimes committed under the influence is road traffic accidents. The negative trend of this category of crimes necessitates their efficient investigation, the success of which greatly depends on the right measures of legal coercion aimed at determining the condition of the person driving a vehicle. Measures of administrative, administrative procedure and criminal procedure coercion are especially important in this process. The paper presents a systemic analysis of the norms of criminal and administrative law as well as criminal and administrative process that determine the procedure of testing and medical screening for intoxication. The authors also examine the issues of ordering and carrying out forensic examination to determine the condition of intoxication, and the procedure of acquiring biological samples for testing. They analyze court practice in the spheres of both administrative jurisdiction and criminal court procedure. The authors come to the conclusion that the procedure of screening a person driving a vehicle should be improved. Most problems associated with it are caused by the legal ambiguity regarding the choice of the medical institution that should carry out the chemical and toxicological analysis of bodily fluids. Besides, the law does not have any provisions for the double-screening of biological material to identify narcotics and psychoactive substances in the cases when preliminary screenings results are negative, as they often do not distinguish some types of narcotics, such as spices. In order to identify the condition of intoxication it is necessary for the medical screening to follow the procedure set out in the criminal procedure legislation, which should include obtaining of biological samples for testing and further forensic chemical and toxicological expertise.

scholarly journals WITNESS IMMUNITY IN CRIMINAL PROCEEDINGS AS AN INDICATOR OF THE MATURITY OF THE LEGAL SYSTEM

2021 ◽  
Vol 17 (2(64)) ◽  
pp. 123-132
Author(s):  
Александр Алексеевич ТАРАСОВ
Keyword(s):  
Legal System ◽  
System Analysis ◽  
Criminal Procedure ◽  
Political Life ◽  
International Exchange ◽  
Criminal Proceedings ◽  
General Rules ◽  
Analysis And Synthesis ◽  
Criminal Procedure Law ◽  
The Right

Witness immunity, that is, the right of persons expressly referred to in the criminal procedure law to refuse to testify about circumstances, is considered in the special literature as one of the criminal procedure institutions, relating to the procedural status of the witness or the rules for his or her interrogation. Purpose: to demonstrate that the list of persons having witness immunity and the legal characteristics of the circumstances to which they are entitled not to testify, and the general rules for interrogating such persons, and exceptions to these general rules are indicators of the level of development of the national criminal procedure and legal system of a particular State. Methods: the author uses the methods of structural-system analysis and synthesis, comparative jurisprudence. The author's comparative analysis of Russian and German criminal procedure law clearly demonstrates the social and economic conditionality of the methods of securing witness immunity and the possibility of international exchange of law enforcement experience. The main conclusion from the study is the following: the legal significance of the criminal procedural institution of witness immunity goes far beyond the actual criminal procedure, and this institution has significant dynamics, reflecting changes in the socio-economic and political life of society.

scholarly journals CLOSED COURT HEARING AS AN INDEPENDENT SECURITY MEASURE FOR PARTICIPANTS IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 31 (2) ◽  
pp. 286-290
Author(s):  
R.M. Ramazanov
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Court Judge ◽  
Independent Form ◽  
The Russian Federation ◽  
The Right ◽  
Court Hearing

The publicity of the trial in the Russian criminal trial has been one of the important provisions for several decades and is expressed in the realization of the right of citizens to be present in court when considering and resolving a criminal case. However, an open criminal court may be limited if the grounds listed in Part 2 of Art. 241 of the Code of Criminal Procedure of the Russian Federation are established as an exception to the general condition of the trial. One of these grounds is a closed court hearing, which is considered as an independent form of ensuring the safety of participants in the process and their loved ones. The creation of safe conditions for citizens to participate in the court session allows the court to establish and verify the evidence collected in the case (Article 73 of the Code of Criminal Procedure of the Russian Federation). At the same time, security applies not only to participants from the defense or prosecution, other participants in the process, but also in relation to the court (judge). A closed hearing is one of several security measures (part 3 of article 11 of the Code of Criminal Procedure of the Russian Federation). The decision of the matter and the holding of a trial in private can only be determined if there are strictly established procedural grounds. Such a decision should be motivated.

scholarly journals Final and Intermediate Court Decisions in the Context of Unification and Differentiation of Court Proceedings in Criminal Procedure

2019 ◽  
pp. 97-105
Author(s):  
S. V. Burmagin
Keyword(s):  
Content Analysis ◽  
Structural Analysis ◽  
Subject Matter ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Court Proceedings ◽  
Legal Concepts

The paper investigates normative-legal concepts of final and intermediate court decisions in criminal proceedings. Having carried out verbal and semantic and subject-content analysis of these definitions, the author reveals their drawbacks in terms of the terminology used and fictiousness in terms in the context of their subject matter. It is stated that the concept of an interim court decisions includes heterogeneous judicial acts fundamentally different in their nature and purpose. On the basis of the provisions of the theory of differentiation of criminal proceedings and the application of the method of systemic and structural analysis of the procedural activity of the criminal court, it is concluded that judicial acts and the final decisions of higher courts have common characteristics of final court decisions and should not be classified as interim, i.e. auxiliary. It is proposed to limit the concept of an interim judgment to a set of preparatory decisions, decisions to enforce and organizational decisions taken by the court in the course of preparation and conduct of a trial in any criminal proceedings.

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