scholarly journals Forms of Implementation of the Judiciary in Criminal Proceeding in the Context of the Procedural Status of the Courtas a Participant in Criminal Proceeding

2018 ◽  
Vol 5 (3) ◽  
pp. 111-119
Author(s):  
P A Lutsenko
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
State Institution ◽  
Judicial System ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Structural Mechanism ◽  
Criminal Proceeding ◽  
The One ◽  
Principle Of Legality

The article examines the procedural status of the court as a participant of criminal proceedings taking into account the specifics of its legal position and the functions to be implemented. The legal status of the court in criminal proceedings by the absence of public or personal interest in the outcome of the criminal case, which not only predetermines the adversarial form of the proceedings, but also guarantees the independence of the judicial authorities in the exercise of justice. The author concludes that the concept of «court» is collective, since on the one hand it is a state institution entering the judicial system, on the other hand - the judge is the bearer of power, considering the criminal case on the merits and decisions provided by law.The judicial system has a sign of instancionnosti, due to its internal hierarchical structure. The existence of judicial bodies predetermines the movement of criminal proceedings, is a structural mechanism for the implementation of the function of internal judicial control and supervision, and also protects the rights and legitimate interests of participants in the criminal Legal proceedings and other interested persons. The powers of the court are considered from the standpoint of the functional criterion, namely: the resolution of the criminal case on the merits; monitoring of the activities of the preliminary investigation bodies; consideration of complaints on actions (inaction) and decisions of officials, conducting proceedings in a criminal case; response to violations of the rights and freedoms of citizens, the principle of legality, established circumstances, which contributed to the commission of a crime by making a private determination or decision, in the course of criminal proceedings.

scholarly journals Forms of the exercise of judicial power in criminal proceedings in the context of the procedural status of the court as a participant in criminal proceedings

2019 ◽  
Vol 13 (3) ◽  
pp. 376-385
Author(s):  
P. A. Lutsenko ◽  
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
State Institution ◽  
Judicial System ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Structural Mechanism ◽  
Legitimate Interests ◽  
The One ◽  
Principle Of Legality

The article analyzes the procedural status of the court as a participant in criminal proceedings, taking into account the specifics of its legal status and its functions. The legal status of the court in criminal proceedings is determined by the lack of public or personal interest in the outcome of the criminal case, which not only determines the adversarial form of proceedings, but also guarantees the independence of the judiciary in the administration of justice. The author comes to the conclusion that the concept of “court” is collective, because, on the one hand, it is a state institution that is part of the judicial system, on the other hand, a judge is a carrier of power, considering a criminal case on the merits and making decisions stipulated by by law. The judicial system has a sign of instancedness, due to its internal hierarchical structure. The presence of judicial instances predetermines the movement of a criminal case, is a structural mechanism for the implementation of the function of internal judicial control and supervision and also protects the rights and legitimate interests of participants in criminal proceedings and other interested parties. The powers of the court are considered on the basis of a functional criterion, namely: resolution of the criminal case on the merits; control over the activities of preliminary investigation bodies; consideration of complaints about actions (inaction) and decisions of officials conducting criminal proceedings; response to the violations of the rights and freedoms of citizens, the principle of legality, established circumstances that contributed to the commission of a crime committed during the criminal proceedings by issuing a private ruling or decision.

scholarly journals CONSEQUENCES OF THE DECISION OF THE CONSTITUTIONAL COURT OF ROMANIA NO. 2/2017 ON THE EXTRAORDINARY APPEAL PATH OF THE REVIEW

2018 ◽  
Vol 11 (2) ◽  
pp. 68-75
Author(s):  
Mihaela Pătrăuș ◽  
Darius-Dennis Pătrăuș
Keyword(s):  
Central Element ◽  
The State ◽  
Judicial System ◽  
Criminal Case ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Initial Report ◽  
State Of Affairs ◽  
The One ◽  
Judicial Error

The central element of this extraordinary appeal is the judicial error. The review involves finding a legal error in the criminal case settled by a final judgment, which was based on an erroneous assessment of the state of affairs. Exercising appeals does not create a new procedural report, but only extends the initial report in this new procedural phase. In our judicial system, the unanimous classification is that appeals are divided into two categories: ordinary ways and extraordinary ways. Thus, before the decision, the case under Article 453 (1) (a) could be invoked as a ground for review only in favor of the convicted person or of the one to whom the waiver of the punishment or deferment of the punishment or termination of the criminal proceedings, if the review is aimed at obtaining an acquittal. Therefore, this case of revision could not be used to the detriment of the person who was acquitted or who was ordered to terminate the criminal proceedings, with the aim of reaching a decision on conviction, renunciation of the punishment or postponement of the application punishment.

scholarly journals A Criminal-Procedural Form: Essence, Problems, Trends and Prospects of Development

2020 ◽  
Vol 15 (9) ◽  
pp. 67-79
Author(s):  
S. B. Rossinskiy
Keyword(s):  
Preliminary Investigation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Public Interests ◽  
Procedural Understanding ◽  
The Public ◽  
The One ◽  
Definition Of ◽  
Further Development

The paper is devoted to the most general issues of theory and legislative regulation of the criminalprocedural form—the necessary attribute of proceedings in a criminal case. On the basis of a procedural understanding of the criminal-procedural form, distinguishing it from formalism as a negative phenomenon in law enforcement practice, the author concludes that the criminal-procedural form serves a high purpose predetermined by a set of legal guarantees ensuring the effectiveness and high quality of criminal case results. At the same time, the author considers the most important legal properties of the criminal-procedural form: unity, universality, obligatory nature. The author also analyzes related problems arising in lawmaking and in the activities of the preliminary investigation bodies, the prosecutor’s office, the court, the bar and other persons involved in criminal proceedings. The results of the study allowed the author to give his own definition of the criminal-procedural form, determine the main tendencies and outline the prospects for its further development in the context of finding a reasonable balance between the public interests of the society and the state, on the one hand, and the rights of an individual, on the other.

Questions of the effectiveness of the victim’s participation in the criminal proceedings of the Republic of Azerbaijan

2021 ◽  
Author(s):  
Jabir Khalilov ◽  
Nargiz Kafarova
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Speed Up ◽  
Legitimate Interests ◽  
The Republic ◽  
The Moment ◽  
The Right

This article discusses the criminal procedure status of the victim on the basis of the current legislation. A number of proposals are put forward to improve the legislation to ensure the effectiveness of the victim’s participation in the criminal process. The article analyzes a number of specific legal shortcomings that reflect the procedural situation of the victim, and indicates ways to solve them. At the same time, proposals are put forward for more effective protection of the legitimate interests of the victim both during the preliminary investigation and during the trial. For example, in order to speed up the participation of the victim in the criminal process, it is proposed to include a rule that from the moment of initiation of a criminal case, the issue of recognizing the person as a victim must be resolved within 10 days. The article then discusses the victim’s right to compensation, the right to mandatory familiarization with the materials of the criminal case, and the shortcomings of the norms that reflect the legal status of the victim as a participant in the prosecution.

scholarly journals The questions of territorial jurisdiction of advocating for the election or extension of pre-trial detention

2020 ◽  
pp. 10-20
Author(s):  
Oleg Aleksandrovich Kravchenko ◽  
Roman Valer'evich Fedorov
Keyword(s):  
Preliminary Investigation ◽  
Accurate Determination ◽  
Case Law ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Territorial Jurisdiction ◽  
Legal Situation ◽  
Administrative Proceedings ◽  
Principle Of Legality

Accurate determination of the place of preliminary investigation indicates adherence to the principle of legality in criminal proceedings and the achievement of goals on the protection of rights and lawful interests of the affected parties, as well as on protection of individual from wrongful and unfounded accusations and restrictions of their rights and freedoms. Science addresses the general questions pertaining to determination of the place of preliminary investigation, but does not give due attention to realization of discretionary powers of the higher investigating authority to determination of the place of preliminary investigation. The article reveals the essential conditions for application of such power by the investigating authority, and analyzes case law for compliance with these conditions. The conclusion is made that legislation does not contain clear and specific rules for determination of the place of preliminary investigation, including the territorial jurisdiction of advocating for the election or extension of pre-trial detention. The author describes the flaws in legal regulation associated with the possibility of determination of jurisdiction of a case in administrative proceedings, by means of law enforcement decision prior to the emergence of legal situation (for example, before  submission of a request for the election or extension of pre-trial detention) by lowering the rank of investigating authority, for example to district level. From the practical perspective, elimination of such flaws should facilitate the proper application of the corresponding legal norm, as well as accurate determination of the place of preliminary investigation.

scholarly journals SEPARATION OF POWERS BETWEEN PROSECUTOR AND THE HEAD OF THE INVESTIGATIVE BODY

2020 ◽  
Vol 24 (3) ◽  
pp. 760-779
Author(s):  
Nikita V. Babich
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
Separation Of Powers ◽  
Preliminary Investigation ◽  
Current Concept ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
Individual Concepts ◽  
Systemic Problems

Problems related to the delimitation of powers between the prosecutor and the head of the investigating body, as well as ways to resolve them, are in the constant focus of attention of representatives of legal science. The concept and model of differentiation of powers between such participants in criminal proceedings that was introduced in 2007, has led to serious problems, which are expressed in: - decrease in the quality of prosecutorial supervision of the preliminary investigation body in order to protect human and civil rights and freedoms at the stage of preliminary investigation; - lack of procedural independence of the investigator, priority of interdepartmental control over prosecutorial supervision; - duplication of prosecutors supervision; - large accusatory bias of the court, prosecution and investigation body and others. The negative side of such problems is that the rights and freedoms of man and citizen are violated in the first place at all stages of criminal proceedings. In this regard, the properly organized delineation of powers and functions between the prosecutor and the head of the investigating body will be standard for ensuring the rule of law; it will contribute to the fight against crime and speedy preliminary investigation in order to create the court basis to reduce the cases of incorrect court decision. The purpose of the scientific article is to analyze the provisions of the current concept and models of separation of powers between the prosecutor and the head of the investigating body, identify the main systemic problems in this area and formulate proposals for their elimination. To achieve this goal, the scientific article explores the features and problems of individual concepts and models for their implementation in organizing activities of prosecution body and preliminary investigation bodies to delimit the powers between the prosecutor and the head of the investigating body. In a scientific article, the author came to the conclusion that reforming the current concept and model of separation of powers between the prosecutor and the head of the investigating body in order to eliminate significant problems is not possible without a reform. A return to previous concepts and models is also unacceptable due to historical experience of their application. The necessity of reforming the foundations of the entire law enforcement system of criminal justice body as a whole and reviewing the legal status of the prosecutor at all stages of criminal proceedings is noted.

scholarly journals Managerial Competencies of an Investigator and the Specifics of Their Implementation in Crime Investigation

2019 ◽  
Vol 13 (6) ◽  
pp. 1017-1024
Author(s):  
Nikolai Lebedev ◽  
Yulia Lebedeva
Keyword(s):  
Public Service ◽  
Legal Status ◽  
Preliminary Investigation ◽  
Psychological Support ◽  
Criminal Proceedings ◽  
Community Members ◽  
Managerial Work ◽  
Managerial Competencies ◽  
Psychological Techniques ◽  
Special Complex

The authors describe the contents of managerial work of an investigator that includes the following elements: analysis of the investigative situation; provision of investigative leads; planning; taking investigative or other procedural actions; organization of interaction not only with the departments involved in investigative and criminalistic work, but also with other government and non-government bodies, public organizations and community members; making a decision to end preliminary investigation. They also describe the specific features of managerial work of an investigator while taking into account the variability of investigative situations and their contents, legal status of the participants of criminal proceedings, the deficit of time and the boundaries of investigative and other procedural actions, the necessity of psychological support of an investigator’s work, the presence of prosecutor's supervision that makes it possible to identify drawbacks in an investigator's work in time and quickly correct them, as well as of court control that underlines the importance of procedural actions that can only be sanctioned by a court decision. The opinions of scholars regarding the concept of «managerial competencies» and its contents are presented. The authors show that it is necessary to form and further improve the managerial competencies of an investigator on the basis of a competence approach used in public service, and to introduce a special complex of psychological techniques that show if an investigator possesses or lacks the competencies necessary for his work, in the process of psychological support of an investigator’s managerial activities. They also describe the correlations between the competencies of people that manage an investigation and the effectiveness of the work of agencies responsible for the pre-trial criminal proceedings in general. The specific features of implementing the competencies of an investigator in investigating crimes are described.

Bail as a Preventive Measure: Some Problems and Ways to Improve Effectiveness

2021 ◽  
pp. 62-65
Author(s):  
Aleksey I. Tsyretorov ◽  
◽  
Andrey G. Anisimov ◽  
Keyword(s):  
Social Justice ◽  
Preliminary Investigation ◽  
Preventive Measure ◽  
Criminal Activity ◽  
Significant Problem ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
State Revenue ◽  
Justice Restoration

The bail serves to reduce the likelihood of the situation when the suspect or the accused flees from inquiry, preliminary investigation or trial, continues the criminal activity; threatens a witness and (or) other participants in criminal proceedings, destroys evidence, or otherwise obstructs a criminal case proceedings. Drawing on the structure of crimes committed in Russia, with more than half being property crimes such as theft and fraud, choosing bail as a preventive measure, if possible, seems to be a logical and apparently popular measure due to several circumstances. Most of the mercenary crimes are motivated by the illegal acquisition of property or money. Consequently, bail as a restraint measure affects the lucrative motivation of the suspect or the accused and is often adequate to the damage caused. A significant problem of social justice restoration in most criminal cases is the compensation for damage or harm, which in most cases is measured in monetary and property terms. In this case, the bail could become a real mechanism for compensation for such harm, because money or property in the case of bail is already available at the time of the trial and could be used to compensate for the harm caused. However, in reality, such compensation is not used. The conversion of bail to state revenue in case of violation by the accused or suspect of obligations related to the bail does not contribute to the solution of this problem.

Constitutional and legal issues of application of clause 1, part 1, article 39 of the Criminal procedure code of the Russian Federation

2021 ◽  
Author(s):  
Oleg Kravchenko
Keyword(s):  
Preliminary Investigation ◽  
Accurate Determination ◽  
Case Law ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Territorial Jurisdiction ◽  
Legal Situation ◽  
Administrative Proceedings ◽  
Principle Of Legality

Accurate determination of the place of preliminary investigation indicates adherence to the principle of legality in criminal proceedings and the achievement of goals on the protection of rights and lawful interests of the affected parties, as well as on protection of individual from wrongful and unfounded accusations and restrictions of their rights and freedoms. Science addresses the general questions pertaining to determination of the place of preliminary investigation, but does not give due attention to realization of discretionary powers of the higher investigating authority to determination of the place of preliminary investigation. The article reveals the essential conditions for application of such power by the investigating authority, and analyzes case law for compliance with these conditions. The conclusion is made that legislation does not contain clear and specific rules for determination of the place of preliminary investigation, including the territorial jurisdiction of advocating for the election or extension of pre-trial detention. The author describes the flaws in legal regulation associated with the possibility of determination of jurisdiction of a case in administrative proceedings, by means of law enforcement decision prior to the emergence of legal situation (for example, before submission of a request for the election or extension of pre-trial detention) by lowering the rank of investigating authority, for example to district level. From the practical perspective, elimination of such flaws should facilitate the proper application of the corresponding legal norm, as well as accurate determination of the place of preliminary investigation.

Suspicion and Charge Statuses in Criminal Remedial Activities

2015 ◽  
Vol 3 (7) ◽  
pp. 0-0
Author(s):  
Елена Сопнева ◽  
Elena Sopneva
Keyword(s):  
Legal Regulation ◽  
The Other ◽  
Theoretical Development ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Foreign Experience ◽  
Procedural Time ◽  
The One ◽  
The Right

The author analyzes legislative, theoretical and practical levels of suspicion and charge enforcement. The author identifies problems of understanding the concepts of suspicion and charge: during theoretical and legislative classification of these categories the author identifies the absence of sound differences in their essence. The author considers foreign experience in realization of the suspicion and charge statuses in criminal remedial activities. The author comes to the conclusion that on the one hand, the suspicion, due to its procedural demand and importance has the right for independent theoretical development and independent legal regulation and on the other hand, it can be considered as an alternative to charge, since the latter cannot be considered to be the only possible basis for a transfer of a criminal case to a court. The author also accepts the variant when suspicion takes principal procedural time and the charge is defined at the end of criminal proceedings when the case is transferred to a court to be considered on the merits.

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