scholarly journals CRIMINAL PROCEDURE FORM: CONCEPT, PROPERTIES, SYSTEM

2020 ◽  
pp. 5-20
Author(s):  
Vladimir A. Azarov ◽  
◽  
Alexandra V. Boyarskaya ◽  
Keyword(s):  
Criminal Procedure ◽  
Dynamic Structure ◽  
Full Time ◽  
Criminal Proceedings ◽  
Cooperation Agreement ◽  
Special Procedure ◽  
General Rules ◽  
Essential Properties ◽  
Judicial Proceedings ◽  
The Given

The article provides the analysis of various definitions of the criminal procedure form and formulates the authors’ position on the issue, based on the properties and the process of forming the legal phenomenon under study. It is proposed to understand the criminal procedure as the normative model of criminal procedure based on the dynamic structure of criminal pro-ceedings and embodying the instructions on the due order of criminal proceedings in all pos-sible ways of its implementation. Consistency and multi variance are examined in the given article as essential properties of the criminal-procedure form. The authors draw attention to the fact that, as a rule, priority is given to consistency while multivariance takes a back seat. At the same time, the question of the possibility of combining individual criminal-procedure forms often arises. It is concluded that legislators significantly underestimate the characteristic of multivariance, that in light of the tendency to deepen differentiation of the criminal procedure creates the problem of the combination of individual elements within the system of criminal-procedure forms. Conventional and differentiated criminal-procedure proceedings, their pre-trial and judicial parts, can overlap each other, line up consistently, forming different combinations, or be implemented in parallel. Specific examples of such combinations in the form of criminal proceedings of private prosecution, with the use of a special procedure of trial, abbreviated inquiry, the special procedure of trial under a pre-trial cooperation agreement are considered. The authors conclude that the combination of individual components of the criminal pro-cedure system should be implemented under some general rules. First, there must be at least one full-time evidence cycle in criminal proceedings, including all elements of proving. Secondly, the imposition or consistent implementation of criminal-procedure forms that simplify both pre-trial and judicial proceedings should be considered unacceptable. Particular attention should be paid to the exclusion of cases of the formation of "twice simplified" criminal-procedure forms, which allow the conviction of a person only based on his guilty plea. Thirdly, when introducing a new differentiated production into the procedural forms, the properties and options of its legal design (complicated or simplified), as well as all possible ways of combining it and interacting with other procedural forms should be clearly defined.

scholarly journals TOPICAL ASPECTS OF DCFTA IMPLEMENTATION IN THE JUDICIAL PROCEEDINGS

2021 ◽  
Vol 7 (1) ◽  
pp. 127-133
Author(s):  
Mariia Sirotkina ◽  
Olena Lomakina ◽  
Olena Shkarnega
Keyword(s):  
European Union ◽  
Criminal Procedure ◽  
The European Union ◽  
Criminal Proceedings ◽  
Association Agreement ◽  
Rules And Principles ◽  
Judicial Proceedings ◽  
European Standards ◽  
Rule Making ◽  
The Eu

The Association Agreement between the European Union and Ukraine is a new format of relations aimed at creating a deep and comprehensive free trade area (DCFTA) between Ukraine and the EU with the gradual integration of Ukraine into the internal market of the European Union. Focusing on the experience of rule-making of the EU member states, it is necessary to define and implement the legal rules and principles of the national judiciary, taking into account the rules and principles of European law (Chornomaz, 2016). In accordance with the strategy of European integration of our country, the adaptation of Ukrainian legislation is to approximate it with the modern European legal system, which will ensure the development of the political, entrepreneurial, social, cultural activity of Ukrainian citizens, economic development of the state within the EU to facilitate the increase of standards of living of the population. The implementation of the provisions of European legislation provided by the economic part of the Association Agreement (AA) is extremely important in the context of reforms, as the provisions can and should serve as a basis for a new model of socio-economic development of Ukraine. The deepening of the processes of humanization and democratization of Ukrainian society, the gradual introduction of principles and rules of European law into the national judiciary through reforms in the field of justice, inter alia, have led to qualitative updating of criminal procedure legislation of Ukraine, in particular: use of differentiated approach to legal conflicts between persons who have committed criminal offences, which do not pose a great public danger, and victims; simplification and reduction of the procedure of criminal proceedings; ensuring procedural savings; reduction of the caseload; allowing the parties of the conflict to resolve issues of exemption from criminal liability in case of reconciliation between the offender and the victim independently, the appointment of the negotiated punishment and release from serving with probation, etc. Given the specifics of the approach to improving relations with neighbouring countries on a differentiated basis, the EU seeks to identify and base on existing positive sources of sustainability, as well as to monitor and respond to weaknesses with the appropriate set of methods and resources at its disposal. The purpose of the article is to study a theoretical and practical definition of challenges of adaptation of Ukrainian legislation to the legislation of the European Union, institutional and organizational mechanisms of DCFTA implementation in the field of justice and certain norms of the current criminal procedure legislation. Ukraine is undergoing the second phase of radical reform of government structures; it has been continuing for 15 years but, unlike other countries, it is much more difficult for Ukraine to get rid of the burden of past problems. Judicial reform is also underway and domestic legislation is being significantly changed, including the transformation of the judicial proceedings. The topical issue of the development of judicial reforms is an imperfection, and sometimes a contradiction of regulations, which negatively affects the process of realization of rights and responsibilities of all subjects of public relations, slows down the development of Ukraine as a state governed by the rule of law. However, the introduction of institutions of concluding agreements, simplified proceedings, probation, and later mediation, into the criminal procedure legislation of Ukraine indicates the readiness of our state to change the concept of criminal procedure in accordance with the European standards, which will improve the situation of all parties to criminal proceedings. However, they need further completion and improvement. We are convinced that the introduction of such institutions will contribute to the legal development of society to achieve the European standards of restorative justice, which will encourage the further introduction of the latter in the legislation of Ukraine, resolving criminal conflicts by reaching a compromise between parties in cases specified by law. One of the ways to solve this problem in Ukraine is to regulate the process of adoption of regulations by the subjects of rule-making and taking into account the provision that legality as an objective property of law, in general, is the necessary condition and the main principle of the rule-making process.

scholarly journals Peculiarities of implementation of the principle of legality in the criminal process of Ukraine

2021 ◽  
Vol 1 (1) ◽  
pp. 253-257
Author(s):  
Oleksiy Skryabin ◽  
Dmytro Sanakoiev
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Limiting Factor ◽  
Criminal Proceedings ◽  
Legal Regime ◽  
Criminal Process ◽  
Procedural Law ◽  
Judicial Proceedings ◽  
Principle Of Legality ◽  
Discretionary Powers

The article analyzes the principles of criminal procedure, which are the expression of the prevailing political and legal ideas of the state, relate to the tasks and methods of judicial proceedings in criminal proceedings, are enshrined in law and operate throughout all stages and necessarily in its central stage. Modern theoretical ideas about the system of principles of criminal proceedings are still in the stage of active methodological and ideological rethinking. Discussions continue both on the concept and features of the principles of criminal proceedings, their system, and on the peculiarities of implementation at different stages of the criminal process. Violation of the principles of criminal procedure is a sign of illegality of decisions in the criminal and becomes the basis for the cancellation of these decisions. The principle of legality characterizes the legal regime of strict and mandatory observance of laws in law enforcement practice, which manifests itself in criminal proceedings, limits the discretionary powers of the pre-trial investigation, prosecutor's office and court. The principle of legality becomes an opportunity to transfer criminal proceedings from one procedural stage to another only on the basis of the law and in a strictly defined sequence. Legality is one of the guarantees of establishing the truth in a criminal case, which ensures the protection of human and civil rights and freedoms. The principle of legality is characterized by mandatory observance of laws in criminal proceedings, is a limiting factor in the discretion of the pre-trial investigation, prosecution and court. Due to the implementation of the principle of legality, the shortcomings and gaps in the criminal process that exist in criminal procedural law can be overcome.

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.

Legislative Evolution in Romanian Criminal Proceedings: The Special Procedure for Compensation of Material or Moral Damages in Cases of Judicial Error

2010 ◽  
Vol 35 (4) ◽  
pp. 369-396
Author(s):  
Mircea Damaschin
Keyword(s):  
Criminal Procedure ◽  
Legal Framework ◽  
Potential Effect ◽  
European Convention ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Procedure Code ◽  
Special Procedure ◽  
Judicial Error

AbstractThis article analyzes the special procedure for compensating material or moral damages where there has been a wrongful conviction—or other wrongful injury to individual liberty—caused by error in Romanian criminal proceedings.This remedy is provided for by the 1969 Romanian Criminal Procedure Code; however (perhaps inevitably), tension has risen between these provisions and those of the 1991 Romanian Constitution resulting in amendments to both the Code and the Constitution. The most significant of these amendments have flowed from decisions of the Romanian Constitutional Court; in turn, the Constitutional Court has been guided in its determinations of constitutionality by interpretations of the 1950 European Convention on Human Rights.In the present article, the author presents the evolution of Romania's legal framework in this field, analyzing key decisions of the Romanian Constitutional Court. Also considered here is the jurisprudence of Romanian ordinary courts dealing with the compensatory remedy for material or moral damages awarded to victims of judicial error in Romanian criminal proceedings. The relevance here of the practice of the European Court of Human Rights, which has been critical of Romania in this regard, cannot be overestimated.Finally, this article considers the potential effect of changes contained the new Criminal Procedure Code, which has been adopted in mid-2010 by the Romanian Parliament.

scholarly journals HARMONIZATION OF CRIMINAL PROCEDURE AS A MEANS OF ENSURING THEIR UNIFORM APPLICATION

2021 ◽  
Vol 31 (3) ◽  
pp. 509-514
Author(s):  
D.V. Tat'yanin
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
High Quality ◽  
Red Tape ◽  
Judicial Proceedings ◽  
The Law ◽  
The Right ◽  
Different Content

The law of criminal procedure contains a number of rules with different content, which raises a number of questions in their interpretation and application. Decisions made using rules with different content lead to their appeal, often to annulment, which does not ensure the achievement of the appointment of criminal proceedings, but leads to unjustified red tape in criminal proceedings and the delay in making final decisions on them. The need to harmonize criminal procedure rules is related to ensuring high-quality and effective criminal proceedings, ensuring the protection of the rights of participants in criminal proceedings, the quality of the evidence process, both in pre-trial and judicial proceedings. The article addresses the problems of unification of criminal procedure rules containing such concepts as an investigator and urgent investigative actions. It is proposed to eliminate the contradictions in them in order to ensure their uniform application. The introduction of a single concept of investigator and refusal to use the profession of "forensic investigator" in this concept is justified, it is proposed to expand the number of participants who have the right to carry out urgent investigative actions, as well as to assign to them investigative actions carried out at the stage of initiating a criminal case.

scholarly journals Some Questions Arising in the Trial of Civil Lawsuits in the Criminal Court of First Instance

2021 ◽  
pp. 33-41
Author(s):  
Nataliya Osodoeva
Keyword(s):  
Criminal Procedure ◽  
Criminal Court ◽  
Material Damage ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Civil Process ◽  
Special Procedure ◽  
Civil Lawsuits ◽  
Court Of First Instance ◽  
Court Hearing

The article discusses some problems of considering a civil claim during a criminal court hearing. It is argued that settling a civil claim during criminal proceedings has a higher priority than a trial in a civil process. The author justifies the position according to which filing a lawsuit during criminal proceedings is a right and not an obligation of a person in a criminal trial. The author also believes that in filing a civil claim in a criminal process, the civil plaintiff should present proof of the incurred costs with the purpose of further recovery of the material damage; besides, the person who will pay the damage or compensate for the moral harm should be established. Based on the analysis of court practice, it is proven that the settlement of a civil claim during a special procedure of a criminal court trial is possible, however, the accused should agree not only with the accusation, but also with the size of the damage (harm). The cases in which the courts can eliminate violations of criminal procedure legislation during preliminary investigations are examined.

CRIMINAL PROCEDURAL PRINCIPLES IN ENSURING PERSONAL RIGHTS IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 6 (10) ◽  
pp. 92-98
Author(s):  
Dildora Bazarova ◽  
Keyword(s):  
Analytical Data ◽  
Criminal Procedure ◽  
Legal Basis ◽  
Criminal Proceedings ◽  
Personal Rights ◽  
General Rules ◽  
The Individual

The principles of criminal procedure embody the general rules that form the basis for their implementation in the field, and determine the main directions of the process, in particular, the main tasks of the parties to the relationship.In this regard, this article examinesthe theoretical and legal basis of criminal procedural principles in ensuring the rights of the individual in criminal proceedings on the basis of theoretical and practical analytical data. The article also analyzes the scientific views of scholars on thetheoretical aspects of criminal procedural principles in ensuring the rights of the individual in criminal proceedings

Pre-trial cooperation agreement: criminal procedural and forensic aspects

2019 ◽  
Author(s):  
Elena Popova
Keyword(s):  
Higher Education ◽  
Professional Education ◽  
Preliminary Investigation ◽  
Federal State ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Cooperation Agreement ◽  
Special Procedure ◽  
Wide Range ◽  
State Educational

The textbook analyzes the rules governing the special procedure for making a pre-trial decision on cooperation, problems arising during their implementation, and offers recommendations for resolving these problems. To consolidate the passed material, various types of practical tasks and topics for writing abstracts and reports are offered. As part of the implementation of the practice-oriented approach in training, the texts of real (at the same time impersonal) procedural documents containing errors are presented, which are proposed to be identified using the material contained in the manual. Meets the requirements of the Federal state educational standards of higher education of the last generation. For students of educational institutions of higher education, studying in the direction of training 40.04.01 "Jurisprudence", as well as graduate students, students of additional professional education, teachers, scientists and employees of preliminary investigation, other law enforcement agencies, as well as a wide range of readers interested in criminal proceedings, criminology and advocacy.

scholarly journals SOME ISSUES OF ARRESTING SECURITIES IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 31 (6) ◽  
pp. 1092-1097
Author(s):  
R.M. Khusnutdinov
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
General Rules

The features of the seizure of securities in comparison with the general rules for the seizure of property in criminal proceedings are investigated. The purposes of arresting securities in criminal proceedings are analyzed. The question is raised about the reasons why the legislator separated securities from other property in relation to the possibility of arrest to ensure the execution of a sentence in part of a civil claim. The connection between the characteristic properties inherent only in securities, due to their economic and substantive nature, and the content of the criminal procedure prohibition, which is established by the court when seizing securities, is discussed. It is pointed out that it is necessary to develop criteria and limits for the establishment by the court in criminal proceedings of prohibitions on the exercise of rights on seized securities. The applicability of the general rules for the seizure of property in criminal proceedings in terms of the seizure and transfer of the seized property for custody to documentary and non-documentary securities is analyzed. The issue of developing criteria and other rules for making a decision on the seizure and transfer of seized securities for safekeeping, as well as a procedural mechanism for protecting the interests of participants in criminal proceedings from the loss of their value by seized securities, is being raised.

scholarly journals Court Discretion as Part of the Criminal Procedure Paradigm Structure

Legal Concept ◽  
2019 ◽  
pp. 166-173
Author(s):  
Ekaterina Azarova
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Fundamental Rights ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Law ◽  
Goals And Objectives

Introduction: the fundamental rights of citizens enshrined in the Constitution are accordingly reflected in the Code of Criminal Procedure of the Russian Federation. For more than fifteen years of the Code of Criminal Procedure application, the legislator has made about three hundred amendments that have increased its ambiguity and inconsistency. The very construct of its provisions is being built and in progress without a planned scientific and theoretical component of such building, without taking into account the empiricism of application. The Code of Criminal Procedure of the RSFSR was used as a constructive basis for the new law, where the stages of criminal process are the fundamental structure of the law. The presence and introduction of new types of judicial proceedings and related institutions as an additional “load” caused the “deflection” of the entire structure of the Criminal Procedure Code, the consequence of which was the increase of unceasing contradictions between the goals and objectives of criminal proceedings, its general conceptual provisions and the criminal process immediate stages. The author sets the purpose of the study, which consists in the justification of contradictions in the law. Methods: the methodological framework consists of the methods of historicism, systematicity, and comparative law. Results: grounded in the work the author’s point of view is based on the knowledge in criminal law. Conclusions: the study revealed that the court discretion is an integral part of the criminal procedure paradigm structure, as the perception by the court of the “truth” of the circumstances to be proved in a criminal case, interpreted by the opposite parties of the adversarial process, is only possible through the prism of assessing these circumstances by the court at its discretion, during the verification of evidence in a particular criminal case.

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