scholarly journals Meaning of the Category “Validity of the Charge” in Criminal Proceedings

2021 ◽  
pp. 218-223
Author(s):  
Oksana V. Kachalova ◽  
◽  
Viкtor I. Kachalov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Sufficient Evidence ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Simplified Procedure ◽  
Special Order

The aim of the article is to identify the meaning of the category “validity of the charge” in criminal proceedings and the scope of its application. After analyzing the content and legal essence of this category, as well as procedural situations in which it is necessary to establish the validity of the charge, the authors come to the following conclusions. Any coercive measures against suspects and accused persons can be applied only if there are serious grounds to assume that a person is involved in the commission of a crime since the restriction of the most important constitutional rights of citizens who, by virtue of the presumption of innocence, are innocent of committing a crime is possible only in exceptional cases. The validity of the charge (suspicion) assumes that a person is involved in the commission of a crime, as well as the fact of the criminal prosecution of this person. It is established if there is sufficient evidence that a person may have committed a crime (a person was caught committing a crime or immediately after it was committed; the victim or witnesses identified the person as the perpetrator of the crime; obvious traces of the crime were found on the person or their clothing, with them or in their house, etc.). The validity of the charge may be confirmed by a decision to initiate a criminal case and bring a person as an accused, by protocols of detention, interrogations of the accused, the victim, witnesses, and other materials. In the procedural sense, the conditions for establishing the validity of the charge differ significantly. When resolving the issue of the use of detention and other preventive measures, the validity of the charge is established within the framework of a court session in the conditions of adversariality with the participation of the parties. When giving the court permission to conduct investigative and other procedural actions in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, to ensure the secrecy of the investigation, the issue is resolved in the absence of adversariality with the possible participation of only the prosecutor, the investigator, and the inquirer. The category “validity of the charge” is significant in legal terms in a criminal case with the special order of proceedings. A prerequisite for the court to consider a criminal case in a simplified procedure is the validity of the charge and its confirmation by the evidence collected in the case. The validity of the charge in the appointment of a trial in the special order provided for by Chapter 40 of the Criminal Procedure Code of the Russian Federation is established by the court outside the court session in the absence of the parties. In any of the above situations, the court is responsible for establishing the validity of the charge since failure to establish it means that the decision made is unfounded.

scholarly journals On the problem of establishing a condition for compensation for damage and making amends for damage when a criminal case (criminal prosecution) is terminated in connection with the appointment of a criminal law measure in the form of a court fine

2021 ◽  
Vol 4 ◽  
pp. 129-134
Author(s):  
I.V. Fatyanov ◽  
Keyword(s):  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Compensation For Damage

The article examines the ambiguity in the interpretation of article 76.2 of the Criminal code and article 25.1 of the Criminal procedure code of the Russian Federation to establish terms of compensation for the damage and (or) smoothing caused by the crime harm. The author substantiates the argument about the fallacy of considering this condition only formally, the author focuses on the mandatory establishment in this case of the characteristics of the identity of the guilty person and the measure of public danger of the committed act. The scientific novelty of the article lies in the approach proposed by the author to the study of the problem of establishing such a condition. In particular, the author considers it essential to solve such a problem to study the legal nature of compensation for damage and compensation for damage when a criminal case (criminal prosecution) is terminated on this basis. The author defines the specifics, identifies the main purposes of such a legal phenomenon in the context of a legal problem. The article concludes that if the preliminary investigation body and (or) the court (justice of the peace) the lack of property harmful consequences from the crime, the failure to make reparation is not to be considered as an obstacle to the termination of criminal proceedings on the grounds provided by article 25.1 of the Criminal procedure code of the Russian Federation, article 76.2 of the Criminal code of the Russian Federation. As a conclusion, the scientific work has prepared a specific text of the interpretation of the condition in the relevant explanations of the Supreme Court of the Russian Federation, which will exclude ambiguity on this issue from the law enforcement officer.

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.

scholarly journals The subject of judicial control in consideration of complaints: controversial issues of legal regulation

2021 ◽  
Vol 2021 (2) ◽  
pp. 104-109
Author(s):  
El'vira Mirgorodskaya
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation

The purpose of this study was an attempt to theoretically understand the subject of judicial consideration of complaints against decisions, actions (inaction) of officials carrying out criminal prosecution. The research was carried out on the basis of comparative legal, formal logical, empirical, statistical methods. Judicial statistics for the year 2020 have been provided, and legislation has been studied from a historical and contemporary perspective, taking into account the practice of the Constitutional Court of the Russian Federation. The problem is that, in practice, for about 20 years the courts have had difficulties in determining the subject of complaints, since neither in theory nor in practice a consensus has been developed on this issue. The Criminal Procedure Code of the Russian Federation also does not contain a definition of the concept of «subject matter». The situation is aggravated by the presence of evaluative concepts in the text of the law, leading to a varied understanding of the subject of appeal by the courts, which leads to a violation of the constitutional rights of citizens at the pre-trial stages of criminal proceedings. In the article, taking into account the analysis of the practice of the Constitutional Court of the Russian Federation, legislation and the opinion of scientists, a recommendation was made to amend the Criminal Procedure Code of the Russian Federation to specify the subject of consideration of complaints in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation in order to eliminate existing contradictions in practice and increase the level of protection of individual rights in pre-trial proceedings.

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 Problems of Using Special Knowledge in Criminal Proceedings and Ways to Solve Them

2018 ◽  
Vol 5 (3) ◽  
pp. 106-110
Author(s):  
O Yu Antonov
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Special Knowledge ◽  
The Russian Federation ◽  
Improvement Of Legislation

In article actual problems of using of the conclusions and evidence of specialist parties and the court, appointment of judicial examination before initiation of criminal case, including problems realization of related innovations of the Criminal Procedure Code of the Russian Federation; the proposals on improvement of legislation, law enforcement practice.

scholarly journals Features of Obtaining, Evaluating and Using of Testimony of a Person Questioned in a Criminal Case of an Accomplice

2021 ◽  
Vol 16 (2) ◽  
pp. 102-113
Author(s):  
V. S. Shadrin ◽  
B. B. Bulatov
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Cooperation Agreement ◽  
Criminal Investigations ◽  
Procedure Code ◽  
The Russian Federation

Under Article 56.1 of the Criminal Procedure Code of the Russian Federation, an individual in whose respect the criminal case was separated into a separate proceeding due to the conclusion of a pre-trial cooperation agreement among the participants of the Russian criminal proceedings has appeared. This results in intensification of the discussion of the legal status of not only this individual, but also of a number of other actually existing similar participants. They include, inter alia, a convicted person questioned in the case of his accomplice previously allocated to a separate proceeding due to suspension for one reason or another and subsequently resumed; the person against whom the criminal case has been dismissed, etc. All of them are united by the fact that they are involved in criminal investigations against the accomplices to testify against their wrongful actions. This kind of testimony is of considerable specificity, as it is given by persons with the privilege against self-incrimination and interested in the outcome of the case. This predetermines significant nuances of the procedure of obtaining, evaluating and using such testimonies.

scholarly journals Problems of legal regulation of the stage of exciting a criminal case

2021 ◽  
Vol 4 ◽  
pp. 116-120
Author(s):  
M.A. Mityukova ◽  
◽  
N.A. Shishkina ◽  
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation

The lack of sufficient legal regulation of criminal procedural activity at the stage of initiating a criminal case causes the constant appeal of theorists and practitioners to the study of this stage. At the same time, the legislator has not yet made the necessary changes to the Code of Criminal Procedure of the Russian Federation. This study analyzes the methods of verifying reports of a crime, in particular, the problems of proper process fixing of received objects and documents when using such methods of collecting evidence as reclamation and presentation. Based on the analysis of theoretical provisions and investigative practice, problems are posed and conclusions are drawn about the need to fix the possibility of seizure in the Criminal Procedure Code of the Russian Federation when checking a crime report. The issues of the legal status of participants in the stage of initiating a criminal case at the stage of receiving and registering reports of a crime, during the production of investigative actions are also studied. Conclusions are drawn about the need to make changes to the Code of Criminal Procedure of the Russian Federation aimed at consolidating the legal status of the applicant, the victim, eyewitnesses and other participants in criminal proceedings.

scholarly journals About stage institute criminal proceedings

2015 ◽  
Vol 2 (3) ◽  
pp. 158-161
Author(s):  
L V Brusnitsyn
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation

The article considers the problem, requiring a permit to stage a criminal case, and the shortcomings of the normative expression of this problem in the Criminal Procedure Code of the Russian Federation; also addresses certain aspects of authority in this stage of the inquiry under departmental acts of the Russian Federation Prosecutor’s Office, shows the need to bring those acts into line with the Criminal Procedure Code of the Russian Federation.

scholarly journals The Interaction of the Investigator, the Head of the Investigative Body and the Prosecutor in the Initiation and Implementation of Criminal Prosecution

Legal Concept ◽  
2021 ◽  
pp. 41-48
Author(s):  
Valentina Lazareva
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Legal Concept ◽  
Procedure Code ◽  
The Russian Federation

Introduction: criminal prosecution is a specific legal concept that means a certain type of law enforcement activity. Having introduced this concept into legal use, the Criminal Procedure Code of the Russian Federation pointed to the purpose of this activity – the exposure of a suspect accused of committing a crime (Paragraph 56 of Article 5), its compliance with the scheduling criminal proceedings (Part 2 of Article 6), types (Chapter 3) and subjects (Chapter 6). The content of this activity, the methods of its implementation indicate that the criminal prosecution coincides with the procedural activities of the inquirer, investigator and prosecutor, that is, it is carried out through the performance of each of the named persons of their powers. This allows us to put forward and substantiate the thesis that a preliminary investigation is a criminal prosecution carried out in the procedural form of a proceeding or inquiry, that is, an activity aimed at identifying and exposing a person, a suspect, or an accused of committing a crime, whose efficiency depends on a properly organized procedural interaction of the entities carrying out this activity, which together form the prosecutorial power of the state. The purpose of the study: to identify the reasons for the lack of effective cooperation of the criminal prosecution authorities and suggest the ways to eliminate them. The objectives of the study: to characterize the role (function) of the bodies, inquiry, investigation, prosecutor’s office in pre-trial proceedings in a criminal case, to formulate and base the conclusion that pre-trial proceedings in a criminal case are a form of criminal prosecution as a common type of criminal procedural activity for the inquirer, investigator and prosecutor. The dialectical, logical, systematic, structural-functional and other general scientific research methods were used in the preparation of the paper; as well as the comparative-legal, formal-legal and other specific scientific methods. Results: the paper shows that the reform of the preliminary investigation bodies, which resulted in the removal of investigators from administrative subordination to the prosecutor, the redistribution of powers between the prosecutor and the head of the investigative body in favor of the latter, did not lead to the expected increase in the procedural independence and independence of the investigator, but had a negative impact on the level of legality of pre-trial proceedings. The amendments made to the Criminal Procedure Code of the Russian Federation in 2007 and later proved to be insufficiently thought out; they are not logical and do not conform well with other norms of criminal procedure law. The shortcomings of the legal regulation of the procedure for exercising the powers of the head of the investigative body and the prosecutor, their interaction with the investigator and among themselves, were only partially corrected by Law No. 404-F of December 28, 2010. Conclusions: the need to improve the efficiency of interaction of the investigator with the head of the investigative body and the prosecutor requires a serious revision of a number of norms of the Criminal Procedure Code of the Russian Federation.

scholarly journals Problems of the implementation of the principles of criminal proceedings in special consideration of the case

2020 ◽  
Author(s):  
I.G. Rogava ◽  
N.E. Danilenko
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Special Consideration ◽  
Criminal Proceedings ◽  
Cooperation Agreement ◽  
Procedure Code ◽  
The Russian Federation ◽  
Assessment Of Evidence ◽  
Special Order

The article examines the features of the operation of the principles of criminal proceedings, applied in a special order. The problems of compliance of this form of production with such principles of criminal proceedings as adversarial and equality of the parties, immediacy, orality, free assessment of evidence, publicity are called. Ways of solving the identified problems are proposed by making appropriate changes to the Criminal Procedure Code of the Russian Federation in the form of an indication in the verdict passed in a special court procedure, the analysis of evidence and their assessment by the judge, as well as limiting the range of cases in which it is possible to conclude a pre-trial cooperation agreement.

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