scholarly journals The Prosecutor as a Subject of Prosecution in the Civil Procedural Order

2020 ◽  
pp. 98-106
Author(s):  
Irina I. Golovko ◽  
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
The Government

Based on the results of the study of federal regulatory legal acts and judicial practice, the author of the article substantiates the conclusion about the advisability of applying the concept “prosecution” to the activities of the prosecutor participating in hearings in civil-law cases. At present, only criminal prosecution by the prosecutor is enshrined in Article 37 of the Criminal Procedure Code of the Russian Federation. There are research works that justify administrative prosecution by the prosecutor. With regard to the prosecutor’s participation in the consideration of cases by courts outside of criminal proceedings, the issues of defining the role of the prosecutor as a subject of prosecution have not been raised in research. However, in connection with the enactment of laws on anti-corruption, on the reversion of civil servants’ property to the government, the issues of understanding the role of the prosecutor involved in civil proceedings acquire particular importance. In addition, civil liability has been established for offenses, e.g., in the form of liquidation of a legal entity by a court decision issued at the request of the prosecutor. The prosecutor is empowered to initiate the consideration of a case by the court upon the request to bring the perpetrator to civil liability, and the practice of considering such cases by the courts is being formed. In this regard, it is necessary to investigate the identified problem. The aim of this study was to analyze the approaches in the science of prosecutor’s activities, to form a conception of the prosecution by the prosecutor of persons who, according to the prosecutor, are guilty of committing an offense in the consideration of cases by courts in civil proceedings. As a result of the study, the features of the prosecutor’s participation in anti-corruption cases in civil proceedings that characterize the prosecutor’s activities as the prosecution of persons accused – by the prosecutor – of committing corruption offenses have been established. Attention has been drawn to other categories of civil cases in which the prosecutor also conducts prosecution. It has been emphasized that the prosecution is conducted only if the prosecutor applies to the court with a statement of claim, but not in the case of joining the case to give an opinion. The conclusion is made that there are theoretical and legal preconditions for separating the prosecution by the prosecutor in the civil procedural order. The established patterns and findings are aimed at ensuring the unity of approaches to defining the aims and objectives of the prosecutor’s activities in diverse directions, which contributes to increasing the efficiency of the prosecutor’s activities as a whole.

scholarly journals THE ROLE OF THE UNDERSTOOD IN THE DEPOSIT OF THE EVIDENCE IN THE IMPLEMENTATION OF CRIMINAL PROCEDURAL PROOF IN THE PRE-TRIAL STAGES

2021 ◽  
Vol 31 (5) ◽  
pp. 897-903
Author(s):  
V.V. Strukova
Keyword(s):  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Photographic Recording ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Points Of View ◽  
Video Material

The article is devoted to the study of procedural aspects related to the effectiveness of the functioning of the institution of attesting witnesses at the pre-trial stages in the framework of modern Russian criminal proceedings. The author considers the issues of the participation of the attesting witness as one of the subjects of proof in the conduct of investigative or other procedural actions, the list of which is enshrined in the current Criminal Procedure Code of the Russian Federation. Its role as a participant in the criminal process in the preservation (deposition) of evidentiary information in the implementation of "control" over the course and results of investigative actions carried out by the criminal prosecution authorities in the course of criminal proceedings is indicated. The situation concerning the improvement of the institution of attesting witnesses, in case the latter is not excluded by the legislator from the criminal procedure law, has been studied from various sides. Various points of view of both leading proceduralists and practitioners on the existing problem are considered: to preserve or exclude (cancel) the institution of attesting witnesses. In support of the author's position on the importance of witnesses as participants in criminal proceedings, examples from practice are given. The procedural status of an attesting witness and his main functions as a participant in the conduct of investigative actions in pre-trial proceedings are disclosed. The issues of the presence of attesting witnesses during the implementation of investigative actions and the use of technical means for fixing the latter have been studied. The features of video and photographic recording of the results of investigative actions in the volume with the participation of attesting witnesses and the obligation to further familiarize this participant with the received video material are revealed.

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 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 The Role of the Prosecutor in the Prevention and Elimination of Investigative Errors: Russian and German Experience

2018 ◽  
Vol 12 (3) ◽  
pp. 424-430 ◽  
Author(s):  
Holm Putzke ◽  
Aleksey Tarbagaev ◽  
Аleksandr Nazarov ◽  
Ludmila Maiorova
Keyword(s):  
Criminal Court ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Police Investigation ◽  
Leading Role ◽  
Procedure Code ◽  
Protection Of Human Rights ◽  
Court Proceedings

The paper is devoted to the prevention, identification and correction of mistakes during the preliminary criminal investigation because establishing the offence and all the circumstances that constitute evidence forms the basis for a just verdict, helps prevent crimes against justice and reach other goals of punishment. The authors present the conceptual and normative background for the model of permanent prosecutors supervision as the dominant control and supervision activity in the pre-trial criminal proceedings that allows to effectively implement the strategies of criminal prosecution and protection of human rights. This model establishes the authority of the prosecutor for the procedural management of the criminal prosecution in the criminal process as a significant supervision authority. The tasks of identifying, correcting and preventing (not making) mistakes in pre-trial investigations are equally urgent in Russia and in Germany. Although the Criminal Procedure Code of Germany gives the prosecutors office the leading role in the investigation, in practice the investigation is more often carried out by the police while the role of the prosecutor is reduced to summarizing the results of the police investigation and making the final decisions. At the same time, the prosecutors office has considerable powers of discretion regarding the initiation or non-initiation of criminal prosecution, the prosecutor uses his/her own discretion to determine the procedure and method of investigation. It is important to examine some aspects of the prosecutors role in German criminal court proceedings within the framework of correcting investigation mistakes in Russian criminal process. The model of prosecutors supervision presented in the paper does not preclude the legislative provisions for the transfer of some authority of the court to the prosecutor at the pre-trial stages of the criminal process. This model of prosecutors supervision allows timely and effective identification, correction and prevention of investigation mistakes at the pre-trial stages of criminal court proceedings.

STATE ACCUSER’S WAIVER OF PROSECUTION

2021 ◽  
pp. 57-62
Author(s):  
V. V. Stelmakh ◽  
Keyword(s):  
Law Enforcement ◽  
Social Orientation ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Public ◽  
Procedural Law ◽  
Prior Consent ◽  
Civil Proceedings ◽  
Legal Nature ◽  
The Russian Federation

The current Russian criminal procedural law provides the possibility of the state accuser’s waiver to handle the prosecution, which entails a mandatory cessation of criminal proceedings. However, some procedural aspects of the refusal to hold the charge are not fully regulated, which causes difficulties in law enforcement practice. The paper briefly analyses the legality of introducing compromise principles into criminal proceedings since the refusal to prosecute is often interpreted as a particular case of compromise. The author argues that concord is suitable for activity based on dispositivity and particular principles (civil proceedings), though cannot be a driving force of criminal proceedings of the public legal nature aimed at achieving the truth about the circumstances of a crime committed. The paper considers the possibility, within the framework of the current legislation, to prevent an unreasonable decision of the refusal to hold the charge. The author analyzes the ability of a victim to refer to the superior public procurator as well as to implement the criminal prosecution independently. The paper states that the current law in terms of the regulation of waiver of prosecution does not fully correspond to the purpose and social orientation of criminal proceedings. In this regard, the author analyzes the by-laws of the General Procurator of the Russian Federation arranging this procedure and providing for the necessity for prior consent of a procurator who approved the indictment. The paper concludes that the law needs to be adjusted to optimize the regulation of the waiver of prosecution and formulates concrete proposals.

scholarly journals PROCEDURAL POSITION OF THE EXPERT IN CRIMINAL AND CIVIL PROCEEDINGS

2019 ◽  
Vol 5 (1) ◽  
pp. 42-46
Author(s):  
I. V. Buromskiy ◽  
Yu. V. Ermakova ◽  
E. S. Sidorenko
Keyword(s):  
Comparative Analysis ◽  
Russian Federation ◽  
Civil Law ◽  
Medical Examination ◽  
Federal Law ◽  
Procedure Code ◽  
Civil Proceedings ◽  
Civil Proceeding ◽  
The Russian Federation ◽  
Forensic Expert

The article presents a comparative analysis of the procedural position of the expert in criminal and civil proceeding. There are considered main differences and similarities of the rights, duties and responsibilities of the expert which regulated by the Criminal Procedure Code of the Russian Federation, the Civil Law Code of the Russian Federation, the Federal Law «About state forensic expert activity in the Russian Federation», the Order of organization and production of forensic medical examination in the state forensic expert institutions of the Russian Federation.

scholarly journals SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

2020 ◽  
Vol 30 (5) ◽  
pp. 747-752
Author(s):  
A.I. Shmarev
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.

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 Criminogenic role of “private patronage” as a corruption-causing factor in the judicial act in light of the activity of modern “mafia” groups

2021 ◽  
pp. 190-217
Author(s):  
Nadezhda Pavlovna Novitskaya
Keyword(s):  
Decision Making ◽  
Case Law ◽  
Legal Regulation ◽  
Judicial System ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation ◽  
The Government ◽  
Definition Of

This article explores the causes for the emergence of “corruption-causing factors” in judicial acts, indicates correlation between “corruption-causing factors” and “private patronage” on the part of mafia institution (modern mafia groups), which is the highest “specific economic enterprise or industry that produces, encourages, and sells private patronage”, including interference in justice through corruption and bribery. The case law on the topic is analyzed. The object of this research is the activity of judges in assessing legally valid circumstances in relation to the responsibility of judges. The subject of this research is the norms of Russian legislation that regulate the activity of judges in assessing legally valid circumstances, as well as the texts of judicial acts on claims under the Article 125 of the Criminal Procedure Code of the Russian Federation, civil and administrative cases of the courts of St. Petersburg, and the responsibility of judges. The author notes the absence of definition of “corruption-causing factor” in the judicial act, its characteristics, responsibility of the judges for decision-making that contain “corruption-causing factor”, effective judicial bodies that “investigate” the disciplinary misconduct of judges. It is underlined that the implementation of the institution of investigative judge was anticipatory. The scientific novelty is substantiated by the fact that this article is first to outline the concept of “corruption-causing factor” in the judicial act as the grounds for bringing the judge to disciplinary responsibility. The conclusion is made that this is a comprehensive issue; thus, the longer it would take to solve the questions of effective legal regulation of the mechanism of judicial responsibility, the more it would augment the risks of proliferation of the “corruption-causing factor” in the judicial system, which destroys confidence in the government authorities and deteriorates the state from within.

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