scholarly journals Theoretical and Practical Features of the Compensation for Harm Consideration by Filing a Civil Claim in Criminal Proceedings

2021 ◽  
Vol 16 (12) ◽  
pp. 144-155
Author(s):  
V. A. Kovalenko
Keyword(s):  
Criminal Proceedings ◽  
Property Damage ◽  
Legal Entity ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Domestic Legislation ◽  
Moral Damage ◽  
The Uk ◽  
The Right ◽  
Interim Measures

The paper examines the types of harm provided for by domestic legislation, their procedural features in a criminal case by filing a civil claim. The author argues that there is a need to amend the existing normative legal acts regulating the issues of compensation for harm caused by a crime, in particular, presents some arguments about the disclosure and legislative consolidation of the concept of “harm” in the framework of criminal proceedings. The author analyzes the gaps associated with compensation for property damage, in terms of the difficult simultaneous compensation for property and moral damage, as well as the lack of opportunity in the criminal procedure to recover lost profits. Some features of compensation for moral damage in relation to individuals and legal entities are investigated, for example, the issue of applying the rules for compensation for moral damage when a civil claim is filed by a legal entity. The process of proving the damage caused and the gaps in the issues of awarding compensation amounts in civil claims for compensation for damage, taking into account judicial practice, are considered. The author expresses her opinion on the matter of interim measures application in relation to the property of tortfeasor and imposing on the judge the obligation to render a decision in case of such a need, and not the right. Some differences between a civil claim for damages in criminal proceedings and civil proceedings are given, for example, the possibility of indexing the amounts subject to compensation has been analyzed. The analysis of some regulatory acts and the study of the procedure for compensation for harm caused by a crime in the UK. The author presents an argument about the development of scientifically grounded methodological recommendations that would fully reveal the existing gaps and problems in compensation for various kinds of harm caused by a crime.

scholarly journals Duty of Proving of a Civil Suit in Criminal Proceedings

2019 ◽  
pp. 137-144
Author(s):  
Serhii Krushynskyi
Keyword(s):  
Criminal Procedure ◽  
Active Part ◽  
Unanimous Opinion ◽  
Criminal Proceedings ◽  
Successful Performance ◽  
Property Damage ◽  
Civil Proceedings ◽  
Civil Suit ◽  
Legitimate Interests ◽  
The Right

The article is devoted to the analysis of some problematic questions related to the duty of proving of civil suit in criminal proceedings in Ukraine. In the criminal procedure doctrine there is no unanimous opinion of which subjects are required to engage into proving activities aimed at detection of civil suit circumstances in criminal proceedings. Concepts «duty of proving» and «burden of proving» are delineated by author. The position that the burden of proving is determined by the interests of participants in criminal proceedings was supported. The content of the burden of proving of civil suit in criminal proceedings covers the need to representation of evidence to justify (or refute) the amount of property damage, the depth of the suffering, and the amount of property compensation for non-pecuniary damage. The material and procedural interest of the civil plaintiff and the civil defendant in the outcome of the criminal proceedings encourages them to take an active part in the criminal procedural proving, in particular by representation of evidence available to them. The publicity (officiality) of criminal proceedings causes differences in the procedure for proving the grounds and size of a civil suit in criminal proceedings compared to civil proceedings. It is concluded that the duty of proving of civil suit circumstances lies on the prosecution party (investigator, prosecutor). The civil plaintiff, the civil defendant, their representatives are complete subjects of proving, but their activity in proving is a right, but not a duty. For the successful performance of their procedural functions, the defense of their legitimate interests, these persons are empowered to represent evidence, to participate in their research. So, they are given the opportunity to contribute to the correct resolution of criminal proceedings, in particular in the civil suit part. The subjects involved in the criminal proceedings who have a duty of proving should provide a possibility of realization of the right to represent evidence by other participants in the process.

scholarly journals Compensation of property damage caused to non-participants in criminal procedure in order of rehabilitation

2020 ◽  
pp. 221-230
Author(s):  
V. V. Muryleva-Kazak
Keyword(s):  
Property Rights ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Property Damage ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Right ◽  
Legal Entities

The article discusses the issue of the legal nature of the right to compensate harm, the effectiveness of usage of the criminal procedure mechanism for its protection and the reasonableness of the inclusion of relevant in the Criminal Procedure Code of the Russian Federation.Based on the analysis of judicial practice, it is concluded that the courts have difficulties in determining the appropriate way to protect the right to compensate harm caused in the course of criminal proceedings and the delineation of competence between arbitration courts and courts of general jurisdiction, which leads to a violation of the applicants’ right to access to justice and reduces the effectiveness of judicial protection.In addition, it is concluded that the criminal procedure form is not adapted to the consideration of civil disputes on compensation for harm, the author names the impossibility of collecting lost profits as one of the factors that reduce the effectiveness of the use of the criminal procedural mechanism for protecting property rights.Based on the interpretation of the criminal procedure rules provided in the article, the author concludes that legal entities have an opportunity to use criminal procedure remedies for violated property rights in more cases than individuals, which violates the principle of equality before the law and the court. The article provides ways to solve the identified problems.

The value, concept and essence of appeal proceedings in civil cases

2020 ◽  
pp. 523-529
Author(s):  
Liliya Usich
Keyword(s):  
Human Rights ◽  
Knowledge Based ◽  
Civil Proceedings ◽  
High Prevalence ◽  
Domestic Legislation ◽  
The Russian Federation ◽  
Civil Cases ◽  
Judicial Errors ◽  
The Right ◽  
Judicial Protection

This work is devoted to identifying the significance of the appeal proceedings in civil cases. We emphasize that the right to judicial protection is one of the fundamental human rights. To achieve this goal, we set the following tasks: define the concept of appeal proceedings; characterize the essence of the appeal proceedings in civil cases. In the course of studying the issue, we use the methods of scientific knowledge, based on the results of which the appropriate conclusions are drawn: despite the wide recognition of the appeal proceedings in the Russian Federation, we note the need to improve the efficiency of this institution due to certain omissions in the legislation. As a result, we define what should be understood as an appeal – consideration of cases that have not entered into legal force. By virtue of this, the importance and significance of the appeal proceedings as an appeal tool, as well as the direct correction of judicial errors, is noted both by the norms of domestic legislation and by international human rights bodies. The indicated gaps in the legislation show the absence of clearly defined boundaries, which creates problems in determining the value and essence of the appeal proceedings both at the theoretical and practical levels. In particular, there is a controversy on the appeal proceedings’ importance. However, the doctrine identifies two main elements, the essence of the appeal proceedings is: 1) the repetition of the case; 2) verification of the judicial act. Nevertheless, despite the high prevalence of appeals in civil proceedings, the issue of improving the effectiveness of this institution is still relevant, which leads to the inefficiency of civil proceedings in general.

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 Issues of Protection of Personal Rights After the Death of the Victim in Civil Law

Law and World ◽  
2021 ◽  
Vol 7 (5) ◽  
pp. 124-144
Keyword(s):  
Human Rights ◽  
Civil Law ◽  
Property Damage ◽  
Personal Rights ◽  
Moral Damage ◽  
The Law ◽  
The Right

The protection of personal human rights is especially important after the death of the victim. First of all, it is necessary to determine what is meant by the personal rights of a person, what personal rights can be protected after the death of the victim, in order to determine what is meant by the protection of the personal rights of the deceased. Then it is necessary to find out what the characteristics of a person are, by whom, how and in what form these rights are protected, and what harm can be caused by the violation of personal rights. It is true that the violation of personal rights is not allowed by law, but, nevertheless, there are many facts around us when the personal rights of the deceased and the living are violated. It is also desirable to protect personal rights acquired at birth from being violated by others both during the life and after the death of the victim. It is true that a person with personal rights protects his life and can claim compensation for property and / or non-property damage, but after the death of the victim, the law prohibits relatives or friends of the deceased from claiming compensation. for moral damage in violation of these rights. However, if a person was rehabilitated after his / her death, but the unlawful condemnation of the victim or other illegal legal actions damaged both the name and reputation of the heir, it is recommended to give the victim’s heir the right to claim compensation for the damage directly caused to him.

Extradition Between European and African Countries: Overcoming the Challenges

2021 ◽  
Vol 11 (3) ◽  
pp. 288-319
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Court ◽  
European Countries ◽  
Criminal Proceedings ◽  
African Countries ◽  
European Court ◽  
Real Risk ◽  
Civil Proceedings ◽  
The Right

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 23 Restrictions on Prescription

2018 ◽  
Author(s):  
Pinzauti Giulia
Keyword(s):  
United Nations ◽  
Criminal Law ◽  
Case Law ◽  
Theoretical Framework ◽  
Historical Background ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Domestic Legislation ◽  
The Right

Principle 23 deals with statutory limitations (prescription, in French) aimed at protecting defendants from stale claims that might be difficult to counter. Statutory limitations refer to legal norms that regulate the effects of the passage of time in domestic systems. In criminal law, they provide for a maximum timeframe, or prescription period, within which criminal proceedings can be instituted or sentences enforced. The passage of time makes the gathering of evidence more difficult and may also reduce the effectiveness of criminal prosecution. Significant delays in criminal action may thus impair the accused’s right to a fair trial. Furthermore, criminal proceedings tend to lose legitimacy as time passes. After providing a contextual and historical background on Principle 23, this chapter discusses its theoretical framework and how the statutory limitations have been applied in practice under multilateral treaties, domestic legislation and case-law. It also examines the practice of United Nations organs.

scholarly journals On Criminal Procedure and Criminalistic Measures of Counteracting Crimes Against Legal Entities

2021 ◽  
Vol 15 (1) ◽  
pp. 98-105
Author(s):  
Olga Aivazova ◽  
Galina Vardanyan ◽  
Irina Smirnova
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Relevant Information ◽  
Criminal Proceedings ◽  
Legal Entity ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Right ◽  
Legal Entities

The article discusses some aspects of proving in cases of crimes against legal entities. The criminalistic description of the victim represented by a legal entity determines specific details of applying criminalistic and criminal procedure measures aimed at the identification, investigation, detection and prevention of such crimes. Under the current Criminal Procedure Code of the Russian Federation, one of the elements of ordering criminal proceedings is the protection of rights and legal interests of organizations that became victims of crimes. Part 1 of Art. 42 of the Criminal Procedure Code of the Russian Federation details this guideline for the first time by giving legal entities, viewed as independent subjects of criminal procedure legal relations, the right to be recognized as victims of criminal actions if the crime inflicted damage on their property or business reputation. Nevertheless, the imperfections in the regulation of legal entities’ participation in criminal proceeding, and the insufficient attention to the specifics of realizing their rights and legal interests in comparison with the physical persons of a similar procedural status give rise to numerous problems. The complex of such problems has a negative impact on the effectiveness of investigating this category of crimes and, as a consequence, on the ability of criminal proceedings to produce the intended result. The literal interpretation of Part 1, Art. 42 of the Criminal Procedure Code of the Russian Federation points out that the consequences of such crimes must include the infliction of two types of damage simultaneously — «to property and to business reputation», which can hardly be considered a good de­finition from the standpoint of juridical technique. Quite naturally, the investigation and court practice shows that law enforcers, while collecting proof on the character and size of damage inflicted on legal entities as a result of a crime, usually limit themselves to proving material damage, and even this damage is not proven in full (the common omission being losses of expected income). As for the damage inflicted on business reputation of a legal entity, its establishment during criminal proceedings is still problematic and, in practice, there is usually a gap in proving it. The authors point out that incomplete character of evidentiary information regarding the infliction of damage on the business reputation of legal entities is inadmissible and present their recommendations for resolving this problem, including the use of specialist knowledge and the improvements in the tactics of specific investigatory actions aimed at obtaining criminalistically relevant information on the case.

Dual Citizenship in Russia

2019 ◽  
Vol 76 (1-2) ◽  
pp. 57-68
Author(s):  
Alexander Salenko
Keyword(s):  
Russian Federation ◽  
State Policy ◽  
Constitutional Court ◽  
International Treaties ◽  
Dual Citizenship ◽  
Judicial Practice ◽  
Russian State ◽  
Domestic Legislation ◽  
The Russian Federation ◽  
The Right

In the USSR, the dual citizenship was expressly prohibited by the Soviet law. After Perestroika, a new stage of Russian statehood began: on 12 December 1993, the Constitution of the modern Russian Federation was adopted, which granted Russian citizens the right to have dual citizenship. Over the past twenty-five years, a new legislation has been adopted on the Russian citizenship, migration, and the state policy regarding compatriots living abroad. During these years, millions of Russian citizens have obtained second (multiple) citizenship, and with it came to questions, disputes and problems that required mediation of the Russian judiciary. In this regard, the main purpose of this article is to analyze the existing domestic legislation and international treaties of Russia on dual citizenship, to determine the dual citizenship regime in Russia - to examine the existing restrictions on the rights and freedom of persons with dual citizenship, and also to study the disputes on dual citizenship in the Russian Federation, in particular to scrutinize the judicial practice (leading cases) of the Constitutional Court of the Russian Federation. Based on an analysis performed in the article, the author draws conclusions regarding the further development of dual citizenship within the framework of the Union State of Belarus and Russia, and also investigates prospects of the Eurasian citizenship in the framework of the Eurasian Union. In addition, the author makes a proposal to Russian authorities to make information on registered Russian citizens with dual (multiple) citizenship more accessible and transparent, and also to adopt at the federal level a document on the Russian state policy regarding dual citizenship.

Sign in / Sign up

Export Citation Format

Share Document