scholarly journals Unreasonableness of Reasonable Time in Criminal Proceedings

2020 ◽  
pp. 53-57
Author(s):  
Valery K. Znikin ◽  
◽  
Inna N. Razzorenova ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
Adequate Response ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Judicial Protection ◽  
Objective Investigation

The analysis of the criminal procedure law made it possible to conclude that there is a historically established tendency for a complete, comprehensive, and objective investigation with the principle of reasonable time. The authors emphasize the lack of legislative consolidation of the concept of “reasonable time”, which results in the lack of clarity in making a decision on its violation. The research into practice has shown that there are situations inconsistent with the principle of reasonable time that are not recognized as a violation of it. Having summarized the theoretical views and practices of applying the provisions of Article 125 of the Code of Criminal Procedure of the Russian Federation, the authors identify the obstacles in ensuring citizens’ access to justice and ensuring a reasonable period of criminal proceedings and propose the ways to improve the mechanism for ensuring judicial protection of the rights of individuals. They also stress out the need for legislative consolidation of the delivery of a court decision on the deadline for verification of a crime report or a timeframe for investigation in a criminal case. The conclusion is that a reasonable period of criminal proceedings is such a period that does not give rise to a contradiction between the actions of the participants in the criminal proceedings and the public’s demand for a timely and adequate response of the court to all abuses committed by these participants, entailing an increase in the duration of the criminal proceedings. As a consequence, the requirement for a prompt, complete, comprehensive, and impartial investigation is part of the “reasonable time” principle.

scholarly journals REASONABLE TIME OF CRIMINAL PROCEEDINGS: CRIMINALISTIC CHARACTER

2020 ◽  
Vol 6 (4) ◽  
pp. 101-111
Author(s):  
K. A. Korsakov ◽  
V. V. Konin ◽  
E. V. Sidorenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

In the Russian legal system, the understanding that justice should be not only timely, but also fast enough has matured for a long time. The delay in the investigation of a criminal case and its consideration by the court allows the guilty to avoid the deserved punishment in some cases, which calls into question the principle of inevitability of punishment on the one hand, and hinders the right to access justice, on the other hand. The term reasonable time for legal proceedings has emerged as a requirement of international law to be tried without undue delay. The right to a reasonable period of criminal proceedings is regulated by Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but this norm is not fully implemented to date, as evidenced by the decisions of the European court of human rights issued on complaints of violation by the Russian Federation of the provisions of the European Convention for the protection of human rights and fundamental freedoms. At the same time, the available research considers the requirement of reasonable terms in criminal proceedings from the standpoint of criminal procedure law, which is not fully justified. The article attempts to consider the problematic issues of reasonable terms of criminal proceedings from the perspective of criminology, as a science that has incorporated theoretical and practical issues of fighting crime, as well as the problems of criminalistic criteria in criminal proceedings.

SHORTENED TIMELINE OF APPEAL AGAINST INTERIM COURT DECISIONS MADE AT A PRE-TRIAL STAGE OF CRIMINAL PROCEEDINGS

2021 ◽  
pp. 38-49
Author(s):  
Polina O. Gertsen ◽  
Keyword(s):  
Russian Federation ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Medical Organization ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

The article deals with the problem of classifying interim decisions among those that are appealed in a shortened timeline, and determining the list of such decisions, as well as the closely related problem of determining the rules for calculating such a shortened timeline. Currently, the Criminal Procedure law provides for the possibility of appealing a number of interim decisions made at a pre-trial stage of criminal proceedings before the final decision Moreover, for appealing some interim decisions at a pre-trial stage of criminal proceedings, a general period of appeal is provided - 10 days from the date of the court decision, or the same period from the date of serving with a copy of the decision the person who is in custody, while for others a shortened timeline is 3 days from the date of the decision. Meanwhile, it follows from the literal interpretation of the Criminal Procedure Code of the Russian Federation that within a shortened three-day period, court decisions on the election of preventive measures in the form of a ban on certain actions, bail, house arrest, detention, the refusal to apply them or extend their application can be appealed. At the same time, such a conclusion is not confirmed either in the positions of the Plenum of the Supreme Court of the Russian Federation or in judicial practice. Based on the analysis of the criminal procedure law, the position of the Supreme and Constitutional Courts of the Russian Federation, scientific literature and practice, several problems are highlighted. Thus, the author states the discrepancy between the provisions of the Code of Criminal Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation when it comes to establishing the terms for appealing the court decision on a preventive measure in the form of bail. In addition, there is no single criterion for establishing shortened deadlines for appealing interim decisions, and there-fore, the list of such decisions requires analysis. In addition, the Criminal Procedure Code of the Russian Federation does not contain a norm that determines the rules for calculating daily terms. The author formulates several proposals for amendments. It is proposed to determine the criteria for a shortened appeal timeline as the restriction of the constitutional right to liberty and immunity of a person that requires the immediate judicial review of the lawfulness of such a decision. It is also necessary to correct the phrasing of Article 106 of the Criminal Procedure Code of the Russian Federation, which defines the procedure for applying a preventive measure in the form of bail, and establish the rule that appeal against such an interim court decision is filed according to the rules of Chapter 45.1 of the Criminal Procedure Code within ten days. The list of court decisions which must be appealed in a shortened timeline must be expanded by a court decision on putting a suspect or an accused into a medical organization providing medical or psychiatric care in hospital settings for forensic examination, as well as the extension of a person’s stay in a medical organization. In addition, the author has analyzed the approaches to the calculation of daily terms and proposes to amend Part 1 of Article 128 of the Criminal Procedure Code of the Russian Federation by establishing a single procedure for calculating daily terms, which does not take into account the day that served as a starting point of the term.

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

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

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

scholarly journals 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 APPLICATION OF SAFETY MEASURES TO PARTICIPANTS IN CRIMINAL PROCEEDINGS ON THE PART OF THE DEFENCE

2019 ◽  
Vol 29 (6) ◽  
pp. 823-829
Author(s):  
F.F. Zaripov
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Separate Group ◽  
Criminal Proceedings ◽  
Safety Measures ◽  
Criminal Process ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Rights And Interests

The article formulates the problems of procedural regulation of ensuring the safety of participants in criminal proceedings on the part of the defense in the process of criminal proceedings. It is noted that despite the hasty division of the participants in the criminal process into groups in accordance with the procedural function performed by them, the need to separate the participants in criminal proceedings standing upon the interests of the defense into a separate group is not disputed. Attention is drawn to the fact that the principle of protecting the rights and freedoms of man and citizen in criminal proceedings does not fully regulate the adoption of appropriate measures to ensure the safety of participants in the criminal process for the realization of their rights and interests. The necessity of making amendments and additions to the Code of Criminal Procedure of the Russian Federation (as the main source of criminal procedure law), as well as a number of other legislative acts related to the protection of human and civil rights and freedoms and to ensuring the safety of participants in criminal proceedings in all areas, is substantiated.

scholarly journals A COMPARATIVE LEGAL ANALYSIS OF CRIMINAL PROCEDURE LAWS OF RUSSIA AND THE REPUBLIC OF KAZAKHSTAN AIMED AT THE SEARCH FOR A WAY TO IMPROVE THE INSTITUTION OF SUSPICION

2020 ◽  
Vol 11 ◽  
pp. 68-72
Author(s):  
Olga S. Polikarpova ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Distinctive Features ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Russian Law ◽  
The Republic

The relevance of the article is due to the imperfection of the criminal procedure law of the Russian Federation in terms of the institution of suspicion. The author examines the distinctive features of the provisions of Russian law and the criminal procedure law of the Republic of Kazakhstan relating directly to the institution of suspicion and, in order to minimize permissible for criminal proceedings under Russian law, procedural violations, attention is drawn to the possibility of improving the reporting Institute by reforming criminal procedure law of the Russian Federation as a whole with a focus on the introduced in the criminal procedural legislation of the Republic of Kazakhstan the criminal procedural model.

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 RULES-PRINCIPLES OF CRIMINAL PROCEEDINGS: LAW AND THEORY

2020 ◽  
pp. 21-31
Author(s):  
Alexander M. Baranov ◽  
◽  
Pavel G. Marfitsin ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Fundamental Principle ◽  
Federal Law ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Individual Article ◽  
The Russian Federation ◽  
The Individual ◽  
Principle Of Legality

The study aims to formulate the proposals aimed at optimizing the Chapter 2 of the Criminal Procedure Code of the Russian Federation (CPC of RF), which enshrines the principles of criminal justice. The authors of the given article examine the content of the rules-principles, i.e. legislative regulations that express and enshrine the principles of law. It is stated that we should distinguish the rules-principles and rules-beginnings, rules containing general permis-sions and prohibitions and rules-definitions because of the first receive development and logi-cal expression in the second. Attention is drawn to the fact that when discussing the nature of the court procedure we should bear in mind that principles make up the content exclusively of legal awareness. At the stage of drafting of the rules, the principles-ideas become regulatory and legal in nature. The developers of the CPC of the RF are criticized, as they did not take advantage of the scientifically valid system of principles of the criminal proceedings. The authors ask why among the rules-principles reflected in the Chapter 2 of the CPC of the Russian Federation, there was no place for many provisions, previously traditionally recognized as such; why the fundamental provisions of the regulation in other laws, including the Constitution of the Rus-sian Federation, were not enshrined in the CPC of the RF. Based on the analysis of the scien-tific literature and the provisions of the criminal procedure law, the authors conclude that one of the obvious omissions of the developers of the CPC of the RF is the non-inclusion of the provision on equality of all before the law and the court in the number of rules-principles. Objections were raised against the absence of other provisions in the CPC of the RF, previouslyconsidered fundamental for criminal proceedings, namely, publicity (officiality) of criminal proceedings, as well as comprehensiveness, completeness, the objectivity of investigation of all the circumstances of the case. Besides, the authors concluded that the contents of separate articles of Chapter 2 of the CPC of the RF, and, in fact, such independent principles, designated by the legislators as "Respect for the honour and dignity of the individual" (Article 9 of the CPC of the RF); "Immunity of the individual" (Article 10 of the CPC of the RF); "The sanctity of the dwelling" (Article 12 of the CPC of the RF); "The secrecy of correspondence, tele-phone and other negotiations, postal, telegraph and other communications" (Article 13 of the CPC of the RF) can be combined into one group, in Article 11 of the CPC of the RF "Protec-tion of human rights and freedoms in criminal proceedings”. Critical assessment is given to the content of Article 7 of the CPC of the Russian Federation, which is reduced to a formal prohibition for the court, prosecutor, investigator, investiga-tive body and interrogator to apply federal law or other rules contrary to the CPC of the Rus-sian Federation. The current version of Article 7 of the CPC, which enshrines the fundamental principle of legality in criminal proceedings, is inconsistent with modern theoretical views on the essence, content and meaning of the principle of legality in law. The authors conclude that the content of the rules-principles, their system, enshrined in Chapter 2 of the CPC of the Russian Federation, are imperfect and need to be adjusted under the fundamental theoretical developments.

scholarly journals The Adversarial System in Criminal Procedure: Norms and Implementation

2019 ◽  
Vol 8 (12) ◽  
pp. 4039-4042
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Adversarial System ◽  
The Supreme Court ◽  
Modern System ◽  
The Status ◽  
Criminal Procedure Law ◽  
The Russian Federation

The research is devoted to the analysis of the essence and place of the adversarial system in modern criminal procedure regulation. The existing acute debatability regarding the procedural status of the adversarial system in the criminal procedure law of the Russian Federation necessitates the appeal of scholars to this category. The purpose of identifying the true procedural nature of the adversarial system and the boundaries of its implementation is directly related to the determination of the correct place of this procedural category in the modern system of criminal procedure regulation. The analysis of modern scientific views on the procedural status of the adversarial system indicates the presence of diametrical views on the compliance of the adversarial system with the characteristics of an independent industry-wide principle. A controversial opinion about the extension of the principle of adversarial practice to the pre-trial stages of Russian criminal proceedings is noted. According to the authors, the current law enforcement practice confirms the implementation of the "pure" adversarial system only in the judicial stages of the criminal process. Taking into account the provisions of the Constitution of the Russian Federation and the position of the Supreme Court of the Russian Federation, the work provides an argumentation of the authors’ position on the advisability of changing the status and, accordingly, the place of the adversarial system in the structure of the Code of Criminal Procedure of the Russian Federation from the "industry-wide principle" to the "general condition of the trial".

scholarly journals Reasonable time for obtaining an expert opinion: problems of legislative definition and practice of article 144 application Criminal procedure code of the Russian Federation

2020 ◽  
pp. 145-150
Author(s):  
Nikolay Podol’nyy
Keyword(s):  
Expert Opinion ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
Expert Opinions ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Many

One of the many guarantees of fairness in criminal proceedings is the quality of consideration of a report of a crime at the stage of initiation of a criminal case. This quality is largely due to the quality of expert opinions. But the practice of applying the rule of article 144 of the Criminal procedure code of the Russian Federation faces difficulties in conducting expert research in the time allotted for considering reports of a crime. There is a question about the reasonableness of the timing of the expert opinion. This and related problems are discussed in the article provided.

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