scholarly journals Legal Framework of the Mechanism for the Elimination of Judicial Errors in Germany: A Comparative Legal Aspect

2021 ◽  
Vol 16 (3) ◽  
pp. 124-132
Author(s):  
A. G. Trofimik
Keyword(s):  
Legal Aspect ◽  
Legal Framework ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Legal Structure ◽  
Procedural Law ◽  
Judicial Practice ◽  
Judicial Errors ◽  
Assessment Of Evidence

The paper examines the legally enshrined principles of material truth (§ 244 II StPO) and free assessment of evidence (§ 261 StPO), as well as the doctrinal requirement for a comprehensive, complete and objective study of the circumstances of a criminal case from the standpoint of the legal mechanism for identifying and eliminating (eliminating) judicial errors in criminal proceedings in Germany. The meaning and functions of the named concepts for criminal proceedings have been determined. The influence of the principle of material truth (Untersuchungsgrundsatz, Aufklärungspflicht) and the principle of free evaluation of evidence on law enforcement are analyzed. Based on the analysis of the universal regulatory framework of the elimination of judicial errors and the corresponding judicial practice, comparing the current legal regulation of Germany with the Soviet criminal process, the author formulates hypotheses on the possibility of returning to the domestic criminal procedural law of truth as a special legal structure that guarantees the quality of the investigation of the circumstances of the criminal case and ensuring uniform judicial practice.

scholarly journals HOW TO SOLVE THE ISSUE OF TERMINATION CRIMINAL CASE UNDER ST. 25.1 CODE OF CRIMINAL PROCEDURE UNDER THE PURPOSE OF THE HEARING?

2018 ◽  
Vol 22 (2) ◽  
pp. 143-151
Author(s):  
T. K. Ryabinina ◽  
O. V. Petrova
Keyword(s):  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Legal Research ◽  
Judicial Practice ◽  
Analysis And Synthesis ◽  
Procedural Costs ◽  
General Scientific ◽  
Comprehensive Study

The article deals with the issues related to the legal regulation of the new grounds for termination of a criminal case or criminal prosecution - in connection with the appointment of the accused measures of a criminal nature in the form of a court fine and peculiarities of its application at the stage of appointment of the court session. As you know, the possibility of termination of the criminal case at this stage of the process is implemented at a preliminary hearing, where in conditions of competition, with the participation of the parties, that is, taking into account their opinion, the court, instead of appointing a trial, if there are necessary reasons, decides to terminate the criminal case or criminal prosecution, which is an important guarantee against unreasonable Moreover, the adoption of such a decision helps to reduce the time of criminal proceedings and its resolution, procedural costs, including material and organizational nature. As judicial practice in connection with application of the new basis of the termination of criminal case is only acquired, research of this question is actual and from the theoretical, and practical parties. The paper uses General scientific and special-legal research methods: analysis and synthesis, legal modeling, formal-legal. The scientific novelty of the research consists in the author's approach to the study of the problem, which allowed the author on the basis of a comprehensive study of the Institute of termination of criminal proceedings or criminal prosecution in connection with the appointment of the accused measures of a criminal nature in the form of a court fine to justify the need to improve both the procedure for resolving the issue of termination of a criminal case on this ground, and the legal regulation of the conditions of application of this ground.

scholarly journals Peculiarities of assessing evidence by the cassation court: contemporary practice

2021 ◽  
pp. 424-432
Author(s):  
Nadiia Drozdovych
Keyword(s):  
Analytical Data ◽  
Appellate Courts ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Local Courts ◽  
Assessment Of Evidence ◽  
The Right ◽  
Contemporary Practice

This article is devoted to the matters of providing evidence in criminal proceedings in the aspect of evidence assessment by the cassation court. The article states that evidence assessment takes place in the cassation court as a form of judicial activity that does not contradict and does not conflict with the norms of criminal procedural law concerning the powers of a cassation court to revise court rulings only within the scope of the matter of law. On the other hand, it points out the conformity of these conclusions at doctrinal, legislative and judicial practice levels. Based on the foregoing, it was established that evidence assessment by the cassation court has its own peculiarities through the prism of specifics of cassation proceedings. The foregoing is corroborated by analytical data of contemporary judicial practice of the Criminal Cassation Court of the Supreme Court (CCC SC). This article describes the results of an analysis of CCC SC rulings, which demonstrate most vividly the assessment of evidence by the court of this instance. In particular, it was established that this judicial activity manifests itself the most in the rulings that exercise the authority to overrule court rulings and close criminal proceedings, and also, to change judgments of local courts and resolutions of appellate courts due to the need to exclude certain evidence. The reasons for reversal of court rulings and for closing criminal proceedings, which overwhelmingly concern inadequate evidence assessment by courts of lower instances for the purpose of determining their quality (admissibility) and content, were analyzed. In the category of court rulings that changed judgments of local courts and resolutions of appellate courts and excluded certain evidence, judicial practice of the cassation court concerning recognition of evidence as inadmissible, because its quality is nonconformant with requirements of procedural form in view of the failure to observe the evidence gathering procedure, infringement of the investigation procedure, violation of the right to defense in the course of investigation, failure to comply with requirements to documentation and opening of evidence, or incorrect determination of the source of evidence, was demonstrated. As a result, a conclusion was drawn that the cassation court assesses evidence in the form of “assessment check”, which is a special form of implementing the principle of free assessment of evidence.

On the Consideration of a Criminal Case Against a Minor by Jury

2021 ◽  
Vol 2 ◽  
pp. 90-96
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Case ◽  
Jury Trial ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Scientific Discussion ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The functioning of the jury in Russia has demonstrated not only effectiveness, but also a number of problems that need to be resolved. Such problems include the personal jurisdiction of criminal cases by jury. The article reveals the legal positions of the Constitutional Court of the Russian Federation regarding the right of minors to trial a criminal case in a jury. The approaches to solving this issue that have developed in the judicial practice of individual foreign states are analyzed, the main directions for further scientific discussion regarding the right of minors to a jury trial are outlined. The purpose of the article is to disclose various approaches to the administration of criminal justice in the relations of minors with the participation of lay judges. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted both to the consideration of criminal cases with the jury, and the specifics of juvenile criminal proceedings. Using the comparative legal research method has allowed to reveal various approaches to the access of minors to jury trials in individual states. In Russian legislation and judicial practice the question of the right of minors to have a criminal case against them considered by a jury remains unresolved. The position of the Constitutional Court of Russia regarding the jurisdiction of such criminal cases is also controversial. The experience of foreign countries indicates that there is no universal way to ensure the right of a minor to a proper court. This issue is decided depending on the type of criminal process, the presence or absence of specialized juvenile courts. Any direct borrowing in this regard cannot be considered effective, but a generalization of foreign experience can create the necessary basis for optimizing both the work of the jury and criminal proceedings against minors.

scholarly journals COMPREHENSIVE ASSESSMENT OF EXPERT CONCLUSION IN CRIMINAL PROCEEDINGS

2020 ◽  
pp. 120-129
Author(s):  
O. Kravchenko ◽  
R. Zaveryko
Keyword(s):  
Due Process ◽  
Comprehensive Evaluation ◽  
Dominant Role ◽  
Individual Responsibility ◽  
Criminal Proceedings ◽  
Conceptual Issue ◽  
Procedural Law ◽  
Forensic Practice ◽  
Level Of Knowledge ◽  
Assessment Of Evidence

The authors of the article on the basis of analysis of scientific sources, forensic practice and legislation considers the conceptual issue of specifying the procedure of comprehensive evaluation of expert’s conclusion in criminal proceedings. There is a distinguishing features of this procedure is the following: the first stage examines the procedural form of the expert’s conclusion, the second – its content, the factual data on the basis of which the presence or absence of facts and circumstances relevant to criminal proceedings and subject to be proved. The criterion for assessing whether an expert’s conclusion is appropriate depends on the content of the conclusions provided to confirm or refute certain circumstances; confirmation of the reliability or inaccuracy of other evidence; the possibility or inability to use other evidence. The condition for the admissibility of an expert’s conclusion is compliance with the procedural form for conducting the examination and drawing up a conclusion, namely: compliance with the requirements of the criminal procedural law; due process registration of the appointment of the examination (decision, determination, petitions of the parties, etc.); the procedural independence and individual responsibility of the expert for the conclusion provided by him/her; immediacy of research; objectivity and reliability of the of the conducted research and conclusion; due documentation of the results of expert’s research. Objective reality indicates that doubts about the reliability of the expert’s conclusion will always be, however, if there are reasonable grounds for the unreliability of the expert’s conclusion, such a conclusion cannot be used in the process of proving. Consequently, there is a need for additional procedural actions aimed at obtaining data that confirm or refute the conclusion of the examination, among such actions is the appointment of a repeated examination. The dominant role in the criterion for assessing the sufficiency of evidence in the expert’s conclusion is played by the subjective conclusion of the initiator of the expert research, his/her inner conviction, which determines a different approach to the assessment of evidence in connection with a different level of knowledge and experience.

REVIEW ON THE MONOGRAPH OF OLEKSANDR TORBAS �DISCRETION IN THE CRIMINAL PROCESS OF UKRAINE: THEORETICAL JUSTIFICATION AND PRACTICE OF IMPLEMENTATION�

2020 ◽  
Vol 10 (4) ◽  
pp. 147-150
Author(s):  
Iryna Hloviuk ◽  
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
Criminal Process ◽  
Procedural Law ◽  
Current Period ◽  
Legitimate Interests

Current period of development of the legal system of Ukraine is characterized by variability of legislation that regulates, in particular, organization of judicial system and implementation of criminal proceedings. Unfortunately, criminal procedure legislation is no exception, given how many changes and additions have been made to the Criminal Procedure Code of Ukraine since its entry into force in 2020. Undoubtedly, like any other codified legal act, CPC of Ukraine in modern conditions cannot be unchanged, given the dynamics of public relations, the provisions of international law, decisions of ECtHR and number of attempts to solve identified problems of its application. Difficulties of criminal procedural law enforcement are manifested in such an area as the use of discretion of authorities in criminal proceedings, although without it application of legislation is ineffective. At the same time, lawful discretion in criminal proceedings should not turn into its opposite � arbitrariness, which will already violate rights and legitimate interests of individuals and legal entities. In criminal proceedings, given the imperative method of legal regulation and possibility of various coercive measures, including those related to the restriction of constitutional human rights, this issue is of particular importance, given, inter alia, that prosecution�s discretion applies within non-adversarial procedure, and the CPC of Ukraine does not always provide for the possibility of appealing such decisions in court. The peer-reviewed monograph consists of four chapters, which contain 10 sections. Structuring of the monograph is logical; the author analyse problems of discretion from questions of concept, signs and limits of discretion, and then moves to the characteristic of realization of discretion by judge, prosecutor, investigator, detective. In general, without a doubt, the monograph of Torbas O. O. �Discretion in the criminal process of Ukraine: theoretical justification and practice of implementation� is relevant, complete and fundamental scientific work, has scientific and practical value. Monograph of Torbas O.O. significantly enriches criminal procedure doctrine regarding the subjects of criminal proceedings, criminal procedure decisions and other areas.

INCRIMINATION AND THE MODIFICATION OF INCRIMINATION IN HEARING

2017 ◽  
pp. 175
Author(s):  
Arita Upīte ◽  
Ilona Bulgakova
Keyword(s):  
Legal Regulation ◽  
Criminal Case ◽  
Full Understanding ◽  
Criminal Proceedings ◽  
Legal Literature ◽  
Court Hearing ◽  
The Way

The author of the research provides the explanation of the concept of criminal proceedings, its content, explores and analyzes the possibilities of amending the incrimination in court hearing process and its application in practice by studying and analyzing the legal literature, legal regulation and practice materials. Researching the Criminal Proceedings Law paragraphs 461 and 462 application in practice, the author has identified that public prosecutors, amending the incrimination in court hearing process, often indicate only the paragraph, without pointing the way the incrimination was amended, which does not allow to draw a conclusion if the way of incrimination amending has been understood correctly, as well as the incrimination amendment is used to clarify the incrimination and correct misspelling mistakes that have been made.The author of the research makes suggestions for improvement of mentioned regulations, because the incrimination must provide full understanding of its essence, without searching for additional explanations in criminal case materials.

Judicial Nature of Evidence in Criminal Proceeding

2019 ◽  
Vol 10 (7) ◽  
pp. 1976
Author(s):  
Valery P. GMYRKO ◽  
Mykola Ye. SHUMYLO ◽  
Viacheslav V. VAPNIARCHUK ◽  
Oksana V. KAPLINA ◽  
Vasily P. SHYBIKO
Keyword(s):  
Law Enforcement ◽  
Procedural Knowledge ◽  
Judicial Interpretation ◽  
Criminal Proceedings ◽  
Proper Understanding ◽  
Legal Structure ◽  
Procedural Law ◽  
Legal Nature ◽  
Human Thinking ◽  
Fact Finding

The urgency of the problem stated in the article is conditioned by the necessity to determine the legal nature of the evidence in criminal proceedings and the evolution of the views of domestic scientists on this legal phenomenon. The purpose of the article is to consider the legal nature of the evidence in criminal proceedings and to determine their legal structure. The main approach to the study of this problem was to conduct a methodological analysis of the phenomena of ‘concept’ and ‘definition’, on the basis of which it was argued that judicial evidence has no essence, and only the function of being a symbolic representative of a certain factum probans (from Latin – something that should be proved). The publication concludes that the evidence in criminal proceedings is the result of human thinking operations and can be represented by the methodological construction ‘composition of criminal-judicial evidence’, which includes regulatory-procedural, knowledge, fact-finding and judicial-interpretation segments. In addition, the opinion expressed the inappropriateness of fixing evidence in the criminal procedural law and proposed a pragmatic approach to this issue, which is in line with current European jurisprudence. The materials of the article represent both theoretical and practical value. They can be used for further scientific investigation of evidence in criminal proceedings, as well as for a proper understanding and enforcement of law enforcement criminal proceedings.  

Fundamentals of the evidentiary process in the light of judicial practice in criminal cases

2020 ◽  
Author(s):  
Elena Bryanskaya ◽  
Anna Altunina
Keyword(s):  
Driving Force ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice

The monograph gives an idea of the process of proof in a criminal case. The process of proof is the driving force behind all criminal proceedings. In this regard, issues related to the concept, types and nature of evidence, their recognition as inadmissible, and their argumentative power are considered. The article presents the material that reveals the stages of the proof process. It is addressed to students, undergraduates, postgraduates, researchers and practitioners specializing in criminal evidence.

scholarly journals Matters related to Court Session Scheduling and Choice of Court Procedure in Criminal Proceedings: Problems, Errors, and Solutions

Lex Russica ◽  
2021 ◽  
pp. 112-124
Author(s):  
A. Yu. Safronov
Keyword(s):  
Criminal Trial ◽  
Criminal Case ◽  
Criminal Punishment ◽  
Criminal Proceedings ◽  
Court Judge ◽  
The Supreme Court ◽  
Judicial Proceedings ◽  
The Will ◽  
Judicial Errors

The paper considers one of the key stages of court work in criminal proceedings, namely the initial preparation stage for a court session in a criminal trial and scheduling of the said session while choosing the procedure rules (general or special, provided for in Chapter 40 of the Code of Criminal Procedure). The paper analyzes the latest changes in legislation regulating these issues, ambiguities and uncertainties that give rise to judicial errors made at this stage, including those related to the choice (determination) of the procedure for judicial proceedings, their impact on the future fate of the criminal case and the final court decision (sentence).Studying the cases of specific judicial precedents (including the Supreme Court of the Russian Federation), the author emphasizes the reasons these errors can be caused by. Examples of the actions of the parties (both the prosecution and the defense) that significantly affect this stage and even determine it, as well as the final court document, including in terms of criminal punishment, are given. The author shows that, at the will of only the prosecution (the state prosecutor and (or) the victim), the defendant (convicted), who conscientiously contributes to justice and fully admits his guilt at all stages of the investigation and judicial consideration of the criminal case, is deprived of the benefits provided to him by law (privileges in the appointment of criminal punishment), which even the judge (court) considering the criminal case cannot influence. The difficulties of the court (judge) in deciding on the choice of the procedure for trial in a criminal case and the legislative uncertainty in the issues under consideration are revealed. Specific ways of solving the problems under consideration of scheduling a court session in a criminal trial are proposed.

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.

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