scholarly journals Prospects of Improving the Mechanism of Judicial Protection in Russian Criminal Proceedings: Issues of Theory and Practic

2018 ◽  
Vol 12 (3) ◽  
pp. 387-395 ◽  
Author(s):  
Iraida Smolkova ◽  
Tatyana Vilkova ◽  
Roman Maziuk ◽  
Sergey Nasonov ◽  
Alexander Nichiporenko
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Two Dimensions ◽  
Criminal Court ◽  
Criminal Cases ◽  
Legal Standards ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Right ◽  
Judicial Protection

Evaluation of the trends of judicial protections development in accordance with constitutional and international legal standards is carried out through the prism of analyzing draft laws regulating court procedures and the reform of Russian court system. The author argue that it is not acceptable to limit the right to judicial appeal against the actions (inaction) and decisions of the preliminary investigation bodies and the prosecutor by introducing the obligatory preliminary examination of such complaints by the head of the investigation agency or the prosecutor according to the procedure set by Art. 124 of the Criminal Procedure Code of the Russian Federation. They also criticize the draft law according to which only the introduction and the resolution of the verdict are pronounced on all the criminal cases: if made into law, this will greatly limit the transparency of criminal court procedures and the right of the accused and their defense attorney to appeal the verdict. The authors identify the faults in the draft law aimed at simplifying the procedure of examining the appeals (petitions) against interim solutions because the elimination of the court investigation will limit the implementation of the adversarial principle at the stage the court of appeals proceedings. It is shown that the current reform of procedures of a jury trial is aimed at strengthening and improving the judicial protection mechanism. The authors summarize the conclusions of contemporary research that although some parameters of the jurys efficiency could vary depending of the number of the jurors, in general, a smaller or a greater number of jurors does not have a decisive impact on the quality of the verdict. They show the positive prospects of giving the Head of the Supreme Court of the Russian Federation the right to initiate the supervisory proceedings for criminal cases and of including in the Criminal Procedure Code of the Russian Federation the right of the RF Commissioner for Human Rights to submit cassation and supervision petitions. The analysis of draft laws allows the authors to evaluate the trends for improving the mechanism of court protection in the criminal court procedures of the Russian Federation in each of the two «dimensions» of judicial protection - the institutional and the functional one.

scholarly journals SPECIAL PROCEDURE OF TRIAL IN CASE OF CONSENT OF THE ACCUSED WITH THE CHARGE BROUGHT: THE CONSEQUENCES OF THE AMENDMENT TO THE LAW

2020 ◽  
Vol 6 (4) ◽  
pp. 80-87
Author(s):  
Ju. V. Kuvaldina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Judicial Reform ◽  
Criminal Cases ◽  
Procedure Code ◽  
Special Procedure ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Right ◽  
Special Order

The article makes assumptions about the possible consequences of changes made by the Federal Law as of July 20, 2020, No. 224-FZ in edition of the Part 1 of Article 314 of the Criminal Procedure Code of the Russian Federation. According to this amendment, criminal cases on grave crimes will now be considered in the general order, unless a pre-trial cooperation agreement is concluded with the accused. The relevance of this novel is due to the fact that the legislator has once again revised the approach to defining the criteria for simplifying the criminal procedural form. In this regard, practice in the near future may face new or, more precisely, well forgotten old problems related to the period of the beginning of the judicial reform in 1991. A number of issues related to ensuring the right of the accused to a special order of trial will require scientific understanding. The author analyzes foreign legislation, previously and current domestic criminal procedure legislation, opinions on this issue of representatives of the highest levels of the judicial system, prosecutor's office and the legal profession, scientists, statistical data and reviews of the activities of courts of general jurisdiction in criminal cases in 2019. The author comes to the conclusion that in Russia the possibility of applying a simplified procedure associated with the reduction or refusal of the judicial investigation was not directly dependent on the severity of the crime committed, and the reform of the special procedure for judicial proceedings undertaken by the legislator is untimely and is not provided with either personnel or material technical or financial resources. According to the author, the decrease in the number of sentences passed in a special order will occur due to the infringement of the right of those accused of serious crimes to be tried in the procedure provided for in Chapter 40 of the Criminal Procedure Code of the Russian Federation. In this regard, the article outlines the directions for the further development of a special procedure for judicial proceedings, strengthening its consensual nature and ensuring the guarantees of the rights of the accused and victims in this procedure.

USING RESULTS OF STING OPERATION IN CRIMINAL CASES PROVING

2021 ◽  
pp. 132-136
Author(s):  
Кирилл Иванович ЛАРИН
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Cases ◽  
Procedure Code ◽  
The Russian Federation ◽  
Sting Operation

В статье рассматриваются проблемные вопросы, связанные с использованием в качестве доказательств результатов оперативного эксперимента. Предлагается отказаться от проведения оперативного эксперимента по инициативе оперативных подразделений и допустить его проведение исключительно в рамках рассмотрения сообщения о преступлении, на основании поручения следователя Следственного комитета в порядке статьи 144 УПК РФ. The article deals with problematic issues associated with the use of the results of an operational experiment as evidence. It is proposed to refuse to conduct an operational experiment on the initiative of operational units and allow it to be conducted exclusively within the framework of considering a report on a crime, on the basis of an order from an investigator of the Investigative Committee in accordance with Article 144 of the Criminal Procedure Code of the Russian Federation.

scholarly journals FEATURES OF THE IMPLEMENTATION OF THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS OF PRIVATE PROSECUTION

2020 ◽  
Vol 30 (6) ◽  
pp. 875-880
Author(s):  
E.F. Tensina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
Special Procedure ◽  
The Russian Federation ◽  
Procedural Rights

The article reveals the nature of the claim of a private prosecution, which establishes the freedom to dispose of material and procedural rights. The forms of manifestation of dispositive principles in the material and procedural aspects in the course of criminal proceedings are determined. Taking into account the nature of the claim of a private prosecution, various models of proceedings in criminal cases of a private prosecution and the peculiarities of the implementation of the provisions of the criminal procedure principle of the presumption of innocence are considered. The author critically assesses the legal constructions that allow the application of a special procedure for making a court decision in criminal proceedings of a private prosecution if the accused agrees with the charge brought. In particular, taking into account the provisions of the principle of the presumption of innocence, it is concluded that it is inadmissible to apply Chapter 40 of the Criminal Procedure Code of the Russian Federation when considering a criminal case of a private prosecution if it is initiated by filing an application directly with a magistrate in the manner prescribed by Art. 318 of the Code of Criminal Procedure of the Russian Federation or when investigating a criminal case of this category in the form of an abbreviated inquiry, regulated by Ch. 32.1 of the Criminal Procedure Code of the Russian Federation.

Prosecutor in the Court of Cassation in Criminal Cases

2016 ◽  
Vol 4 (2) ◽  
pp. 0-0
Author(s):  
Лев Бертовский ◽  
Lyev Byertovskiy ◽  
Дина Гехова ◽  
Dina Gekhova
Keyword(s):  
Russian Federation ◽  
Public Prosecutor ◽  
Federal Law ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Procedure Code ◽  
Moscow City ◽  
The Russian Federation ◽  
The Right

Federal Law No. 433-FZ «On Amendments to the Criminal Procedure Code of the Russian Federation and the Annulment of Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation» entered into force since January 1, 2013 in relation to the powers of prosecutors to lodge cassation representations against court’s decisions is under review in the article. The authors analyse judicial practice of cassation instance in Moscow City Court of 2014 year on criminal cases and demonstrate some omissions of prosecutors in consideration of cases in the court of cassation. The conclusion shows that a cassation representation should be prepared and submitted by subordinate to higher prosecutor, provided that public prosecutor shall obtain the right to apply directly to that prosecutor who has the right to lodge a cassation representation along with the project thereof. Such novel will positively influence to the quality of cassation representations prepared and made by prosecutors.

scholarly journals To the admissibility of the civil law exemption of property from arrest, imposed in the criminal proceedings: domestic and foreign experience

2017 ◽  
Vol 1 (3) ◽  
pp. 190-200
Author(s):  
Natalia Kashtanova
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
Judicial Protection

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.

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

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

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

scholarly journals Real Served Term in Case of Parole: Problems of Determination

2016 ◽  
Vol 4 (11) ◽  
pp. 0-0
Author(s):  
Руслан Долотов ◽  
Ruslan Dolotov
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Code ◽  
House Arrest ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Creation ◽  
The Right

The article is devoted to the practice of parole. The main goal of the study is to determine if is it properly to include a period of house arrest in six months term of imprisonment, necessary for the creation of the right to parole. The article proves that in practice they judge from the following conclusion: as the period of house arrest is included in the period of detention, and the detention period is included in the term of imprisonment, so when a real served term for parole is determined it is necessary to include in it the period of house arrest. The author explains that such conclusion is flawed since it is based on a dogmatic rather than systemic interpretation of the Criminal Code and the Criminal Procedure Code of the Russian Federation without understanding the role which plays set by the legislator six months term in case of parole in the system of criminal law measures.

scholarly journals Restriction of the access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation

2021 ◽  
pp. 58-69
Author(s):  
Tatiana Topilina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Soviet Space ◽  
The Russian Federation ◽  
The Right ◽  
Right Of Access

This article analyzes the problems of implementation of the right of access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation. The author carefully examines the legislation of the countries of post-Soviet space on filing a complaint against actions (omissions), as well as decisions of the prosecuting agency in pretrial proceedings. The subject of this research is the norms of the Russian and foreign legislation that regulate the right of access to justice in criminal proceedings. The object is the legal relations arising in the context of implementation of the right of access to justice. The article employs the universal systemic method of cognition; comparative-legal, formal-legal, and statistical methods; as well as logical analysis of the normative legal acts. It is indicated that restriction of the access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation is also established by the practice developed in law enforcement for evaluation of the complaint prior to its consideration involving  the parties with the possibility of making a decision on whether to remit or reject the complaint in the absence of legislatively specified grounds, which directly affects the number of addressed complaints. The conclusion is made on the need to specify the grounds for remitting the complaint of an applicant filed in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation, for the purpose of excluding the possibility of decision made by the court that is not based on the law on remitting or rejecting the complaint for consideration (the Article 125 of Code of Criminal Procedure Code of the Russian Federation).

scholarly journals Plea for justice when returning criminal cases to prosecutor by cassation court

2021 ◽  
Vol 108 ◽  
pp. 04001
Author(s):  
Olga Vyacheslavovna Yevstigneyeva
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Research Purpose ◽  
Criminal Case ◽  
Criminal Cases ◽  
Procedure Code ◽  
Principle Of Justice ◽  
Analysis And Synthesis ◽  
Criminal Procedure Law ◽  
The Russian Federation

Pre-requisites of the research are the establishment of cassation courts of general jurisdiction in Russia, as well as no clear procedure in the Russian Federation Criminal Procedure Code for returning criminal cases to the prosecutor by the cassation court upon the grounds causing the impaired position of the convict (or acquitted person). The research purpose is to formulate requirements based on the principle of justice to the legal institute of returning criminal cases to the prosecutor by the cassation court for circumstances showing the need to impair the position of the convict (or acquitted person). The Methods are abstraction, analysis and synthesis, induction and deduction, modeling, ascending from abstract to concrete. The article substantiates that the grounds to return a criminal case to the prosecutor provided for in the Russian Federation Criminal Procedure Code causing remission of a sentence under a cassation procedure represent a type of material breaches of criminal procedure law that affect the outcome of the case. When such circumstances cause an impaired position of the convict (or acquitted person), they must comply with the requirements of justice.

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.

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