scholarly journals Draft Law on Criminal Misconduct given the German Experience of Legal Regulation

Lex Russica ◽  
2021 ◽  
pp. 133-141
Author(s):  
Ya. M. Ploshkina ◽  
L. V. Mayorova
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Offense ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.

scholarly journals Improvement of the Procedure of Application of Compulsory Measures of Educational Impact

2019 ◽  
pp. 106-114
Author(s):  
K. A. Tabolina ◽  
Z. R. Dzheyranova
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Educational Impact ◽  
Specialized Knowledge ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right ◽  
A Minor

The article is devoted to the problem of improvement of the procedure of application of compulsory educational measures in criminal proceedings against minors. The lack of proper regulation of the procedure for the application of compulsory educational measures and the existing legislative gaps determine the need for amendments and additions to the criminal law and criminal procedure law. It is proposed to grant the right to resolve the issue of termination of criminal prosecution and initiation of a petition for the application of a coercive measure of educational impact before the court to the prosecutor dealing with the criminal case brought before him with conviction or indictment. In order to resolve the question of the possibility of rehabilitating a minor through the use of compulsory educational measures, it is necessary to study his psyche using the specialized knowledge, which presupposes an expert opinion in the case. Exemption from criminal liability of minors under the rules of Article 90 of the Criminal Code of the Russian Federation should be treated as the duty rather than the right of the law enforcement agent. Approaches to the solution of the problem connected with execution of compulsory measures of educational impact have been formulated.

scholarly journals The idea of promotional compromise in the termination of criminal persecution and exemption from the criminal responsibility of the minor personnel with the application of forcedive measurement measures

2020 ◽  
Vol 6 (3) ◽  
pp. 168-173
Author(s):  
Alexander G. Markelov
Keyword(s):  
Russian Federation ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Final Decision ◽  
Criminal Process ◽  
The Russian Federation ◽  
A Minor

The article proposes an original approach explaining the obvious ideological nature of the existence in the Russian criminal process of an evidentiary compromise with a special procedure for stopping criminal prosecution and exempting a minor from criminal liability using coercive educational measures. The author rightly argues that in modern criminal proceedings there has been created a promising, at the same time, conflict-free criminal procedure form of resolving a criminal case on the merits. In particular, the legislator, with strict and strict observance of the principles of the criminal process, formed a special compromise and at the same time evidentiary procedure for the court to make a final decision on the criminal case in the form of termination of criminal prosecution and exemption from criminal liability of a minor with the use of compulsory educational measures. The work concludes on the unconditional effectiveness of this compromise order, as well as the need to further improve such alternative evidentiary proceedings in order to promptly resolve the criminal case and implement the purpose of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

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 PERANAN ALAT BUKTI DALAM PERKARA PIDANA DALAM PUTUSAN HAKIM MENURUT KUHAP

Yuridika ◽  
2017 ◽  
Vol 32 (1) ◽  
pp. 17
Author(s):  
Bastianto Nugroho
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Law Enforcement Officers ◽  
The State ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Examination Process

The trial of a criminal case is to find out whether a criminal offense has occurred in an event, therefore in the most important criminal proceedings the proceedings are proved. Evidence is a problem that plays a role in the examination process in court because with this proof is determined the fate of a defendant. The legal function in the State of Indonesia is to regulate the order of society in the life of the nation and the state, whereas the violation of the law itself is an event that must exist in every society and is impossible to be eliminated absolutely, because violation of law is an integral part of development More complex. One of the provisions governing how the law enforcement officers carry out the task in the field of repressive is the criminal procedure law which has the purpose of searching and approaching material truth, the complete truth of a criminal case by applying the provisions of criminal procedure law honestly darn precisely with The purpose of finding out who the perpetrator can be charged with is a violation of the law. 

scholarly journals ON THE LEGAL POSITION OF A WITNESS UNDERGOING A PUBLIC CRIMINAL PROSECUTION PROCESS

2020 ◽  
Vol 12 ◽  
pp. 23-26
Author(s):  
Andrey A. Boyarintsev ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Legal Nature ◽  
Legal Position

In the article, the author considers the category of “witness under suspicion”, specifying that within the framework of criminal procedure science, the study of the legal nature of this phenomenon is very relevant due to the approach demonstrated by the legislator to endow participants in criminal procedure relations who have signs that do not allow them to be fully attributed to any of the existing categories with an independent procedural status. The author also provides a justification for the need to review the existing legal mechanisms for ensuring the procedural interests of a witness against whom actual criminal prosecution is being carried out, and raises the problem of using the evidence obtained as a result of such activities to expose the accused in a criminal case.

Ensuring the right to protection at the stage of appeal proceedings in criminal case: problems of theory and practice

2021 ◽  
Vol 15 (2) ◽  
pp. 7-16
Author(s):  
Oksana V. Kachalova ◽  
Sergey A. Vdovin
Keyword(s):  
Criminal Procedure ◽  
Theory And Practice ◽  
Criminal Case ◽  
Final Decision ◽  
Legal Representative ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
Criminal Procedure Law ◽  
The Right ◽  
Court Of Appeal

Introduction. The right of the accused to a defense in criminal proceedings is a prerequisite for the effective administration of justice, since it minimizes possible errors in the final decision in a case, which may result in the conviction of innocent persons, which contradicts the purpose of criminal proceedings and undermines citizens confidence in the judicial system. The purpose of the article is to identify systemic problems that impede the effective implementation of the right to defense at the stage of appeal, as well as to suggest ways to resolve them. Main results. The authors come to the conclusion that the structural and logical elements of ensuring the right of the accused to a defense at the stage of appeal proceedings in a criminal case are: subjects defending the accused; duties of a defense lawyer to exercise the right of the accused to defense at the stage of appeal proceedings in the case; subjects who, in accordance with the requirements of the criminal procedure law, are obliged to ensure the right of the accused to defense; the duties of the courts of first and appellate instances imposed on them by the criminal procedure law, corresponding to the rights of the accused, his defense lawyer and legal representative and forming in their totality a system of interim measures necessary for the realization of the accuseds right to defense; the powers of the accused, his defense counsel and legal representative, through which the constitutional right to defense is exercised; guarantees of the accuseds right to defense. The only ground for limiting the right to defense is abuse of the right by the defense. The fact of abuse of the right can only be established by the court, the abuse of the right cannot be evidenced exclusively by the external expression of the actions of participants in the process. The question of the presence or absence of abuse of the right to defense should be decided by the court on the basis of the totality of factual circumstances and procedural features of each individual situation. The system of powers that make up the content of the defendants right to defense at the stage of appeal proceedings in the case consists of two interrelated elements, including powers exercised at the stage of filing an appeal and before the start of the court session of the court of appeal, as well as the powers that the defense side has directly in consideration of a criminal case in a court session of the court of appeal. Conclusion. Thus, the effective provision of the right to defense at the stage of appeal proceedings requires a change in approaches on the part of legislator and law enforcement officers.

Institute of bringing as an accused: on the “deprocessualization” and “dematerialization” of its essence and content in the criminal proceedings of Russia

2020 ◽  
Vol 7 (1) ◽  
pp. 98-105
Author(s):  
Nikolay N. Kovtun
Keyword(s):  
Criminal Responsibility ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Optimal Mechanism ◽  
Procedural Law ◽  
Legal Fiction ◽  
Legal Nature ◽  
Criminal Procedure Law

This work critically assesses the legal nature and practice of the institution of bringing as a defendant in criminal proceedings in Russia, particularly in its relation to the substantive legal act of bringing to criminal responsibility. The author argues that, due to the general bureaucratization of the process, both the first and second acts have actually lost their original purpose to be the determining material and procedural guarantee of individual and justice in criminal proceedings. Objectifying as a legal fiction, the act of bringing the accused as an accused in the doctrine of Russian criminal procedure law, done directly in practice, is increasingly characterized as an accusation of duty, initial, intermediate, and final, which respectively form the ideas of duty, intermediate, initial, and investigative-final criminal prosecution. This negates the role of the named defining acts. Hence, the paper suggests an optimal mechanism for their implementation according to the purposes and tasks of substantive and procedural law

scholarly journals DEPARTMENTAL MONITORING OR(AND) PROSECUTOR’S SUPERVISION FOR INVESTIGATION?

2020 ◽  
Vol 6 (72) (2) ◽  
pp. 292-300
Author(s):  
V. M. Togulev
Keyword(s):  
Criminal Procedure ◽  
Significant Part ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Investigations ◽  
The Past ◽  
The Right ◽  
Almost All

As a result of the 2007-2010 reform, the prosecutor’s office lost the right to initiate criminal investigations and independently investigate them, a significant part of the prosecutor’s authority to supervise the investigative activities of the investigator was transferred from the prosecutor to the head of the investigating authority. These changes have been mixed among practitioners and process scientists. The author considers it inappropriate to return to the prosecutor the right to initiate criminal proceedings, since the prosecutor will have to carry out the whole complex of procedural and investigative actions referred to in art. 144 Code of Criminal Procedure. There is no need to return to the prosecutor’s office and the investigative function, since the prosecutor’s office will become a body of criminal prosecution and supervision and investigation, which will affect the objectivity of its actions and will nullify all the reforms of the investigation carried out over the past 20 years. Nor should powers be transferred to the prosecutor, which as a result of the reform passed to the head of the investigative body. Almost all the powers of the head of the investigative body to implement departmental control over the procedural activities of the investigator to some extent also belong to the prosecutor using special methods of prosecutorial response. The specificity is that the head of the investigating authority uses both the methods of previous and subsequent control, and the prosecutor mainly uses the subsequent one. It is proposed to provide the prosecutor with only one additional authority in relation to the investigator: to give the prosecutor the right, when approving the indictment, to exclude certain points of the charge from it or to re-qualify the charge to a less serious one instead of returning the criminal case to the investigator for these purposes.

scholarly journals ASPECTS OF ENSURING RIGHTS OF PERSONS DURING EXPERT-EXAMINATION IN CRIMINAL PROCEDURE

2015 ◽  
Vol 1 (70) ◽  
pp. 29
Author(s):  
Marina Sumbarova
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Trial ◽  
Criminal Procedure Law ◽  
Key Issues ◽  
Forensic Expert ◽  
The Right

The key issues in this article are related to procedural activity of participants of criminal procedure at investigation of crimes and, in particular, the victim are considered. The separate criminal procedure provisions relating to the legal characteristic of the victim are defined; situations of a legal regulation of appointment and production of examinations are analyzed during pre-judicial criminal trial, the characteristic of the right of acquaintance of participants of criminal trial with the judgment and questions of interaction of the persons directing process with the expert at investigation of crimes. In the conclusion in the context of the designated problems, the author offers recommendations of organizational and tactical character for improvement of interaction of the investigator and the forensic expert at investigation of crimes and, in particular, at purpose of examinations. In the conclusion offers on a being of the executed research on improvement of concrete standards of the criminal procedure law are also formulated.

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