scholarly journals The authority of Criminal Cassation Court as part of Supreme Court about sending criminal proceeding from one trial to another

2019 ◽  
pp. 51-61
Author(s):  
N. Syza
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Procedural Law ◽  
Judicial Practice ◽  
Procedural Code ◽  
Court Of Appeal

One of the guaranties of justice by competitive trial is determined in art. 34 Criminal Procedural Code the procedure of sending criminal proceeding from one trial to another in connection with don`t fall within the jurisdiction or another legal circumstance which make impossible justice in this trial or can influence on judge`s impartiality and equity and for the purpose of providing for promptness and effectiveness in criminal proceeding. The purpose of article is: to reveal the authority of Criminal Cassation Court as a part of Supreme Court based on analysis of criminal procedural law and practice their using about sending criminal proceeding from one trial to another. For the results of research was concluding that the authority of Criminal Cassation Court as a part of Supreme Court about sending criminal proceeding from one trial to another steam from norm in art. 34 Criminal Procedural Code which provide for grounds and procedure for deciding whether to refer criminal proceedings to another court. If in a court of appeal or in a petition of a party or a victim the circumstances, which cannot be grounds for referring criminal proceedings to another court, are stated, or the request is made for resolving issues beyond its powers, stipulated by art. 34 of the Criminal Procedural Code, the Criminal Cassation Court as a part of Supreme Court refuses to grant the application (petition). Generalized the most common in judicial practice in the Criminal Cassation Court as a part of Supreme Court instances of refusal in satisfied submission (petition) about sending criminal proceeding from one trial to another, in particular if: appellant don`t have the authority; it`s matter of bringing criminal proceeding together and determining jurisdiction; substantiates the existence of circumstances that may be grounds for the removal of judges, but not for the transfer of criminal proceedings in accordance with art. 34 of the Criminal Procedural Code. Installed that Criminal Cassation Court as a part of Supreme Court at proceeding application (petition) about sending criminal proceeding from one trial to another refuses to satisfy them even in case where the issue of jurisdiction of criminal proceeding has already been resolved by the cassation court before, on similar grounds, justifying it in accordance with the requirement of p.5 art. 34 of the Criminal Procedural Code, disputes over jurisdiction between the courts are not allowed. Was figuring out the legal positions Criminal Cassation Court as a part of Supreme Court about limit in view to considering in art. 34 Criminal Procedural Code; questions about sending criminal proceeding from one trial to another which has already been submitted to a certain court, having carried out during the court residence. Having proposed for broad consideration of the matter, having entrusted the court to provide the Criminal Procedural Code with special procedures sending of criminal proceeding from one side to the last in the stage of pre-trial consideration and review of court decisions.

scholarly journals Practical aspects of determining the evidences obtained as a result of investigative (search) actions as inadmissible in the criminal proceeding.

2021 ◽  
Vol 3 (3) ◽  
pp. 298-303
Author(s):  
Artem Luchko
Keyword(s):  
General Concept ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Method ◽  
Collection Process ◽  
Criminal Procedure Law ◽  
Evidence Collection ◽  
Court Hearing

The article is devoted to the study of theoretical and practical aspects of determining the evidences obtained as a result of investigative (search) actions as inadmissible in the criminal proceeding. The criminal procedural law of Ukraine formulates general requirements which must be followed during the evidence-collection process: 1) the legal sources of evidences; 2) the proper registration of the course and results of procedural actions during criminal proceedings; 3) the evidence-collection process fulfilled by appropriate authorities; 4) legal method for obtaining evidences. Failure to comply with these requirements results in the inadmissibility of evidences. However, further study of theoretical and practical aspects of determining evidences as inadmissible has shown that some requirements are not so obvious so it is difficult to identify them immediately. Analyzing the judicial practice of Ukraine, researching the scientific works of domestic scientists, as well as studying the works of foreign experts in terms of the general concept of admissibility of evidences, we can see the need for legal determinancy, which requires criminal procedure law. It causes subjectivism and different interpretations of admissibility or inadmissibility of evidences, which create an incredible number of problems that complicate the conduct of criminal proceeding at both pre-trial investigation and court hearing. This is confirmed by a large number of cases related to the recognition of admissibility or inadmissibility of evidences. Uncertainty of the categorical-conceptual apparatus not only leads to incorrect application of criminal procedural law during the course of investigative (search) actions by pre-trial investigation bodies in order to gather and obtain admissible evidences, but also helps to facilitate ways to circumvent certain provisions of law.

scholarly journals Prohibition of Certain Acts and Stipulated Prohibitions in Combination with Bail and House Arrest: First Six Months of Instrumentation

Lex Russica ◽  
2019 ◽  
pp. 129-138 ◽  
Author(s):  
E. V. Larkina
Keyword(s):  
Russian Federation ◽  
Preventive Measures ◽  
Automated System ◽  
Court Decisions ◽  
Federal Law ◽  
Criminal Proceedings ◽  
House Arrest ◽  
Judicial Practice ◽  
Procedural Code ◽  
The Russian Federation

Based on the study of court decisions, the article analyzes the first judicial-investigative practice of applying innovations in the system of procedural coercive measures — preventive measures in the form of a ban on certain actions, as well as bail and house arrest in combination with the prohibitions provided for in part 6 of article 105.1 of the Criminal Procedural Code of the Russian Federation. The subject of the study were 40 court decisions made by district and higher courts of 17 constituent entities of the Russian Federation. The author analyzes these decisions on preventive measures, the initiators of their election, the crimes charged with the accused, the stages of criminal proceedings at which they were taken. Decisions on the election of a ban on certain actions are analyzed according to the criteria: the number of simultaneous prohibitions; the time allowed to leave the premises; the places that the accused is forbidden to visit; the persons with whom they are forbidden to communicate. The analysis of the resolutions on the election of bail and house arrest with simultaneous establishment of certain prohibitions showed that the courts do not always properly motivate their decisions, subjected to defendants not covered by section 6 of article 105.1 of the Criminal Procedural Code of the Russian Federation prohibitions, permitted the defendants to take actions that do not provide their isolation from society. The data given in the article are accompanied by the author’s comments and references to the decisions set in the State automated system of the Russian Federation “Justice”. At the end of the study, the author provides conclusions and proposes to adjust in the near future the judicial practice of application of preventive measures following appropriate explanations of the Plenum of the Supreme Court of the Russian Federation, taking into account the changes made to the Criminal Procedural Code of the Russian Federation by the Federal law of 18.04.2018 No. 72-FZ.

scholarly journals Classifying Actions in Sentencing Based on the Classifying Criterion “Repeated”: Correlation between Criminal Procedural and Criminal Law Aspects

2021 ◽  
Vol 6 ◽  
pp. 3-11
Author(s):  
Iryna Basysta
Keyword(s):  
Supreme Court ◽  
Criminal Court ◽  
Guilty Verdict ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
The Supreme Court ◽  
Legal Effect ◽  
Procedural Code ◽  
State Of Affairs

Presently, different judicial divisions of the Criminal Cassation Court of the Supreme Court offer varying legal conclusions concerning the possibility to classify the actions of a person when sentencing based on the criterion of classification “repeated” varies. This conclusion follows from the analysis of the judicial Decree as of December 11, 2019 (Proceeding No. 51-4204 км 19, Сase No. 274/2956/17) of the Third judicial division of the Criminal Cassation Court, the Decree of the First judicial division of the Cassation Criminal Court as of July 10, 2018 (Proceeding No. 51-2475 км 18, Case No. 545/3663/16-к), and of the Decree as of February 27, 2019 (Proceeding No. 51-5205 км 18, Case No. 695/136/17) of the Second judicial division of the Criminal Cassation Court.Due to such a state of affairs, the already amalgamated division of the Criminal Cassation Court of the Supreme Court was making its own decision in Case No. 591/4366/18 (Proceeding No. 51-1122 кмо 20) on September 14, 2020. Yet, my opinion is that not all arguments and statements of facts provided in this decree can be agreed on without questions.In the process of the research, it was proved that the situation of the judge’s practicing their discretion powers concerning merging criminal proceedings into one proceeding (according to the requirements of Article 334 of the Criminal Procedural Code of Ukraine) is the only exceptional situation that provides for, in absence of the court’s guilty verdict in “the first criminal proceeding,” which for the legal classification of the repeated offence must take a legal effect, using the criterion of classifying the actions of the accused as “repeated” in the “next criminal proceeding.” Otherwise, we should be discussing violation of the constitutional foundation of presumption of innocence in the criminal proceeding and a securing proof of guilt.

scholarly journals Grounds for the cancellation or amendment of court decisions in criminal cases on appeal

2021 ◽  
Vol 12 (1) ◽  
pp. 52-72
Author(s):  
Aleksandr M. Panokin ◽  
Keyword(s):  
Legal Regulation ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedural Code ◽  
Separate Control ◽  
Criminal Procedure Law ◽  
The Individual ◽  
Court Of Appeal

The article analyzes the legal regulation and practice of applying the grounds of appeal. The positive and negative sides of the statutory recognition of the grounds of appeal are revealed. The author comes to the conclusion that when establishing such grounds in the Criminal Procedural Code of the Russian Federation, the rules of formal logic and systematization of legislation were violated. The grounds of appeal do not form a unified system, they do not cover all possible violations that entail the delivery of unjust court decisions. As a result of the study, it can be affirmed that the absence of appeal grounds will protect the rights of the individual in criminal proceedings to the maximum extent by maximizing the extension of the subject of the appeal and verification of court decisions, and it will provide ample opportunity for the court of appeal to identify and eliminate any violations committed. In addition to this, it is necessary to increase the requirements for the reasoning of appeals, representations of professional participants in criminal procedures and the quality of the justification and motivation of decisions by courts of appeal. The absence of the grounds of appeal makes it necessary to provide a detailed answer to the arguments of the subjects of the appeal set out in the complaints, as a result of which the decision of the court of appeal becomes not only legal, reasonable, motivated and fair, but also convincing. Equally, the absence of such grounds guarantees the independence of judges and their high professionalism, as well as the demand for creative potential when reviewing court decisions. In turn, the consolidation in the criminal procedure law of various grounds for reviewing court decisions that have entered into legal force will make it possible to limit separate control and verification stages of the criminal process from each other.

scholarly journals The use of digital communication technologies in the context of a pandemic as a way to improve the effectiveness of justice

2021 ◽  
Vol 7 (1) ◽  
pp. 95-101
Author(s):  
E. V. Smakhtin
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Information Technologies ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Russian Federation

The article deals with the peculiarities of the activity of courts in making judicial decisions in the context of a pandemic. First of all, we are talking about the wider use of digital and information technologies in criminal proceedings, which have previously been repeatedly recommended by forensic science for implementation in judicial practice. Some recommendations of criminalistics are currently accepted by the Presidium of the Supreme Court of the Russian Federation in its Decision dated April 08, 2020 № 821 and Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of a new coronavirus infection (COVID-19) in the territory of the Russian Federation № 2, which provided appropriate explanations for their use in practice. In particular, we are talking about the possibility of using video conferencing systems for certain categories of criminal cases and materials that are considered urgent, although this is not provided for in criminal procedure legislation. It is concluded that it is necessary to change the current criminal procedure legislation, bring it into line with the Constitution of the Russian Federation, federal constitutional laws, federal laws and subordinate regulatory legal acts, including orders of the Judicial Department under the Supreme Court of the Russian Federation.

scholarly journals ILLEGAL AND UNCONTROLLED AMBER'S EXTRACTION AND MEASURES TO COMBAT IT

2020 ◽  
pp. 62-70
Author(s):  
O. Kuchynska ◽  
V. Nesterovskyi ◽  
O. Starenkyi ◽  
Y. Tsyganyuk
Keyword(s):  
Prevention And Control ◽  
Mineral Resources ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Procedural Code ◽  
And Control ◽  
Practical Recommendations

SignificantincreaseinthedemandforamberintheworldgaverisetoamultitudeofcomplexproblemsinUkraine, related not only togeology and mineral resources use, but also economy, legislation and other aspects of life.The prevention and control of crimes related to illegal amber's extraction are provided through various activities and methods. One of them is the implementation of the laws of Art. 240 of the Criminal Code of Ukraine through criminal prosecution. It is implemented by applying rules of criminal procedural law: individuals' actions qualification during adding data to the Unified Register of pre-trial investigations, enforcement of criminal proceedings, evidence providing in cases involving illegal amber's extraction, etc. Thus, as a consequence, there is a necessity to conduct theoretical and legal analysis, to develop practical recommendations to ensure the effective application of combatting measures against illegal amber's extraction during the implementation of evidence in criminal proceedings. In particular, the authors emphasize among these measures specific unspoken investigative actions, as they can provide appropriate, valid and credible evidence against illegal extraction of amber; individuals' actions qualification with the availability of actual grounds, which indicate commiting of moderate gravity crime, provided for by part 2, part 3 of Article 240 of the Criminal Code of Ukraine and Part 4 of Article 240 of the Criminal Code of Ukraine is defined as unjustified. In order to avoid issues mentioned above, it has been proposed to assume the possibility of conducting unspoken investigative activities in the current Criminal Procedural Code of Ukraine not only in relation to grave crimes or felonies, but also in relation to crimes of moderate gravity.

scholarly journals ВПЛИВ СУДОВОЇ ПРАКТИКИ ВЕРХОВНОГО СУДУ УКРАЇНИ НА СИСТЕМУ ДЖЕРЕЛ ЦИВІЛЬНОГО ТА ЦИВІЛЬНО-ПРОЦЕСУАЛЬНОГО ПРАВА УКРАЇНИ

2019 ◽  
Vol 12 ◽  
pp. 245-256
Author(s):  
А. І. Дрішлюк
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Scientific Article ◽  
Court Decisions ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Author Position ◽  
Research Author

Наукова стаття присвячена визначенню значення рішень Верховного Суду України, прийнятих за результатами розгляду заяв про перегляд судових рішень з мотивів неод­накового застосування судом (судами) касаційної інстанції одних і тих самих норм ма­теріального права в аналогічних правовідносинах, порядку і її вплив на систему джерел цивільного і цивільно-процесуального права, після законодавчого закріплення обов'язко­вості рішень Верховного Суду України для всіх суб'єктів владних повноважень (суб'єктів правозастосовчої діяльності). На підставі проведеного дослідження сформульована авторська позиція щодо систе­ми джерел цивільного права, судової практики, а також впливу останньої на трансфор­мацію системи джерел цивільного та процесуального права України на сучасному етапі її розвитку.   The scientific article is sanctified to determination of value of decisions of the Supreme court of Ukraine, statements accepted on results consideration about the revision of court decisions on reasons of different application by the court (by courts) of appeal instance of one the same norms of material right in analogical legal relationships, order and her influence on the system of sources civil and civil judicial law of Ukraine, after legislative fixing of obligatoryness of decisions of the Supreme court of Ukraine for all the subjects of imperious plenary powers (subjects of law using activity). On the basis of the conducted research author position is formulated in regard to the system of sources civil law, judicial practice, and also the influence of the last on transformation the system of sources civil and civil judicial law of Ukraine on the modern stage of its development.

scholarly journals Certain Aspects of Arrest of Property in Light of the Case Law of the Appeal Chamber of the High Anti-Corruption Court

2021 ◽  
Vol 7 ◽  
pp. 14-19
Author(s):  
Denys Bykov
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
General Rule ◽  
Case Law ◽  
Appeal Chamber ◽  
Material Objects ◽  
Criminal Proceedings ◽  
Suggested Approach ◽  
Procedural Law ◽  
Procedural Code

The article explores the problems of a temporary seizure and arrest of property in the course of pre-trial investigation in light of the case law of the Appellate Chamber of the High Anti-Corruption Court and the European Court of Human Rights. It is outlined that investigators face particular problems with differentiation of material objects that are subject to seizure upon the decision of an investigator or a prosecutor and may be used for the purposes of the criminal proceedings and those which fall into the category of temporarily seized property, and the legality of their seizure is subject to control by an investigating judge. Investigating judges face the same difficulties which result in decisions on arrest imposed on biological, biometric traces, cigarette butts and other material objects that are not subject to arrest for they do not belong to the category of property. The author analyses whether documents, personal notes, and other items of the kind may be regarded as property and the criteria to categorize them as such. It is concluded that if these items are used as evidence in the criminal proceedings but have no characteristics of property, are not objects of civil rights, have no historical, artistic, scientific, literary, economic, or any other significant value in general or for a certain individual, they are not subject to judicial control and arrest and should be attached to the criminal proceedings in accordance with the rules prescribed by the Criminal Procedural Code of Ukraine.The author pays particular attention to the unfortunate wording of Part 7 of Article 236 of the Criminal Procedural Code of Ukraine, which prescribes that seized objects and documents not included in the list of items to be found in the course of a search, contained in the decision of the investigating judge onpermission to conduct a search, are considered temporarily seized property. This legal norm makes the issue of whether certain items belong to the category of property dependent upon their inclusion in thelist or absence in the list, contained in the decision of the investigating judge. Such an approach contradicts the basic principles of the property law. Therefore, the norm should be excluded from Part 7 of Article 236 of the Code. The author also suggests to change the wording of Part 7 of Article 237 of the Code and to clearly outline that documents, as a general rule, are seized and items that fall into the category of property are temporarily seized.The suggested approach will lead to harmonization of the norms of criminal procedural law with those of civil law, setting clear and understandable criteria for defining the legal status of items seized or temporarily seized in the course of examination or search and fulfilling the tasks of effective and impartial pre-trial investigation.

scholarly journals On quality assurance of judicial decisions in cases of environmental administrative offenses

2020 ◽  
Vol 11 (3) ◽  
Author(s):  
Uliutina Olena ◽  
◽  
Denisyuk Ilona ◽  
Keyword(s):  
Environmental Safety ◽  
Court Decision ◽  
Decision Quality ◽  
Court Decisions ◽  
Procedural Law ◽  
Judicial Practice ◽  
Principles Of Justice ◽  
Correct Application ◽  
Substantive Law

The article, based on the study of the requirements for the quality of court decisions in cases of environmental administrative offenses and the analysis of judicial practice, are made proposals to improve the quality of court decisions in this category of cases. Justice is analyzed as the main criterion for the quality of court decisions in cases of environmental administrative offenses, which covers the signs of legality and validity. It is concluded that the criteria for the legality of a court decision in cases of environmental administrative offenses are the correct application of: substantive law and compliance with procedural law, analogy of law or analogy of right in terms of both substantive and procedural rules; compliance of the resolution within her national, constitutional, sectoral principles, basic principles of justice, requirements of the rule of law. In terms of compliance with the requirement of validity of the decision is most pronounced subject – object specifics of offenses – their «environmental», because it is in investigating the circumstances of the case and assessing evidence, the judge must operate it knowledge and rely not only on administrative tort law, but also environmental, natural resources, which sets requirements for the use and protection of natural objects and resources, environmental safety, which have been violated. In order to improve the quality of court decisions in cases of environmental administrative offenses, it is proposed to adopt a document «On court decisions in cases of administrative offenses» in the form of a resolution of the Plenum of the Supreme Court. Keywords: legality of a court decision, validity of a court decision, resolution, justice, court, court decision, quality of court decision

CIVIL ACTION IN CRIMINAL PROCEEDINGS AS A UNIVERSAL MEANS OF REDRESS FOR PECUNIARY AND NON-PECUNIARY DAMAGE CAUSED BY CRIME

2021 ◽  
pp. 64-79
Author(s):  
Sergey V. Potapenko ◽  
◽  
Vladimir A. Sementsov ◽  
Keyword(s):  
Civil Rights ◽  
Point Of View ◽  
Moral Injury ◽  
International Standards ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Judicial Practice ◽  
The Individual

The article notes that sufficient reimbursement for injury to victims of crime is an urgent and global issue, for which solution international legal standards, which are regarded as general-ly recognized principles and regulations of international law and international treaties, as well as enactments containing their official interpretation, are significant. The article critically evaluates the point of view of some individual scientists who deny the need to stipulate the civil claim concept the in the Code of criminal procedure of the Russian Federation as it exists in modern Russian criminal proceedings not only due to the historical experience of the legislator, have long appreciated the evident advantages of the united proce-dure, but also in its consistency with foreign trends in the development of this concept, aimed at ensuring the implementation of international standards in the sphere of promotion and pro-tection of the human and civil rights. Despite the fact that the legislator applies different concepts in determining the conse-quences of torts (including crimes) in the regulations of substantive and procedural law as follows: harm and damage, there has been concluded that it is the injury (property or moral) that constitutes the attribute of obligations caused by the injury infliction, which allows the term to be used legitimately when covering issues of reimbursement for injury in criminal proceedings. Taking into account that a civil claim in criminal proceedings is a way to reimburse not only property, but also moral damage caused by a crime, the most urgent issues that need to be resolved are identified as follows: 1) lack of general doctrinal approaches to determining moral injury and its correlation with other types of injury; 2) inconsistency of the current investigative and judicial practice in determining the amount of compensation for moral injury; 3) ineffectiveness of procedural mechanisms for compensation for moral injury caused by a crime. The current judicial practice of refusing to satisfy claims for reimbursement of moral injury in the case of a crime against property, in the absence of violence against the victim and other actions affecting the life, health, and dignity of the individual has been recognized as not complying with the requirements of the law regulating the status of the victim and the civil plaintiff. According to the authors' point of view, the lack of unified approach to determining of the amount of moral injury caused by crimes is due to the evaluative nature of its definition, when there are no clear estimative criteria, which leads to a tendency to reduce the amount of reim-bursement, although reimbursement for moral injury in an adequate amount would more guarantee the restoration of violated rights of citizens in the sphere of criminal proceedings. Since moral injury can be the result not only of a crime, but also of illegal criminal prose-cution or illegal conviction of a person involved in its commission, it is necessary to establish a unified amount of reimbursement for the injury.

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