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

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".

scholarly journals THE ROLE OF THE UNDERSTOOD IN THE DEPOSIT OF THE EVIDENCE IN THE IMPLEMENTATION OF CRIMINAL PROCEDURAL PROOF IN THE PRE-TRIAL STAGES

2021 ◽  
Vol 31 (5) ◽  
pp. 897-903
Author(s):  
V.V. Strukova
Keyword(s):  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Photographic Recording ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Points Of View ◽  
Video Material

The article is devoted to the study of procedural aspects related to the effectiveness of the functioning of the institution of attesting witnesses at the pre-trial stages in the framework of modern Russian criminal proceedings. The author considers the issues of the participation of the attesting witness as one of the subjects of proof in the conduct of investigative or other procedural actions, the list of which is enshrined in the current Criminal Procedure Code of the Russian Federation. Its role as a participant in the criminal process in the preservation (deposition) of evidentiary information in the implementation of "control" over the course and results of investigative actions carried out by the criminal prosecution authorities in the course of criminal proceedings is indicated. The situation concerning the improvement of the institution of attesting witnesses, in case the latter is not excluded by the legislator from the criminal procedure law, has been studied from various sides. Various points of view of both leading proceduralists and practitioners on the existing problem are considered: to preserve or exclude (cancel) the institution of attesting witnesses. In support of the author's position on the importance of witnesses as participants in criminal proceedings, examples from practice are given. The procedural status of an attesting witness and his main functions as a participant in the conduct of investigative actions in pre-trial proceedings are disclosed. The issues of the presence of attesting witnesses during the implementation of investigative actions and the use of technical means for fixing the latter have been studied. The features of video and photographic recording of the results of investigative actions in the volume with the participation of attesting witnesses and the obligation to further familiarize this participant with the received video material are revealed.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

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 Conciliation Procedures Involving Minors in Criminal Proceedings

2021 ◽  
Vol 2 ◽  
pp. 3-6
Author(s):  
Elena V. Markovicheva ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Procedure Law

The article reveals the possibilities of using conciliation technologies on minors in Russian criminal proceedings. The author analyzes the statutes of the draft law aimed at reforming the criminal procedure law and assesses the prospects for the use of special conciliation procedures as an alternative to criminal prosecution of minors.

STATE ACCUSER’S WAIVER OF PROSECUTION

2021 ◽  
pp. 57-62
Author(s):  
V. V. Stelmakh ◽  
Keyword(s):  
Law Enforcement ◽  
Social Orientation ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Public ◽  
Procedural Law ◽  
Prior Consent ◽  
Civil Proceedings ◽  
Legal Nature ◽  
The Russian Federation

The current Russian criminal procedural law provides the possibility of the state accuser’s waiver to handle the prosecution, which entails a mandatory cessation of criminal proceedings. However, some procedural aspects of the refusal to hold the charge are not fully regulated, which causes difficulties in law enforcement practice. The paper briefly analyses the legality of introducing compromise principles into criminal proceedings since the refusal to prosecute is often interpreted as a particular case of compromise. The author argues that concord is suitable for activity based on dispositivity and particular principles (civil proceedings), though cannot be a driving force of criminal proceedings of the public legal nature aimed at achieving the truth about the circumstances of a crime committed. The paper considers the possibility, within the framework of the current legislation, to prevent an unreasonable decision of the refusal to hold the charge. The author analyzes the ability of a victim to refer to the superior public procurator as well as to implement the criminal prosecution independently. The paper states that the current law in terms of the regulation of waiver of prosecution does not fully correspond to the purpose and social orientation of criminal proceedings. In this regard, the author analyzes the by-laws of the General Procurator of the Russian Federation arranging this procedure and providing for the necessity for prior consent of a procurator who approved the indictment. The paper concludes that the law needs to be adjusted to optimize the regulation of the waiver of prosecution and formulates concrete proposals.

scholarly journals CERTAIN PROCEDURAL ASPECTS OF THE BEGINNING OF CRIMINAL INVESTIGATION

2021 ◽  
Vol 1 (1) ◽  
pp. 52-60
Author(s):  
Dmуtrо Pylypenko ◽  
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Criminal Justice Reform ◽  
Time Limits ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
Legal Fact

The article analyzes the features of the beginning of criminal proceedings defined by the current criminal procedure law of Ukraine. The criminal procedural norms which define an initial stage in criminal proceedings are investigated. The provisions of the norms of the legislation which determine the legal fact of the beginning of proceedings in the case are analyzed. The positions of scientists in this regard are considered. In particular, the scientific concepts concerning the implementation in the norms of the current law of the provision that existed in the content of the Criminal Procedure Code of 1960, namely the decision to initiate a criminal case. The analysis of the practice of application of the current norms of the criminal procedural law in this regard for the author's point of view on the expediency of such a step is analyzed. The author's position on the preservation of the existing law within the existing provisions, on the commencement of criminal proceedings from the moment of entering information into the unified register of pre-trial investigations. This position is fully correlated with the provisions of the concept of criminal justice reform. There are also examples from the practical activities of law enforcement agencies, which were the basis for this conclusion. The article also examines the issue of determining the time limits for the start of pre-trial investigation in criminal proceedings and entering information into a single register of pre-trial investigations. The positions of scientists on this issue, which are quite different and sometimes polar, are analyzed. The author's attention is focused on certain difficulties that arise in law enforcement agencies during the proper initiation of criminal proceedings. It is emphasized that the term available in the current law for twenty-four hours is extremely insignificant for the correct determination of the qualification of the offense and its composition. It is proposed to increase the period to three days during which the investigator must enter information into the unified register of pre-trial investigations and initiate criminal proceedings. It is these time limits that must be sufficient for the investigator or prosecutor to properly comply with the requirements of the applicable criminal procedure law.

scholarly journals Newly Discovered and Exceptional Circumstances in Criminal Procedure of Some European States

2021 ◽  
Vol 4 (2) ◽  
pp. 44-66
Keyword(s):  
Criminal Procedure ◽  
European Countries ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
The Core ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
Principal Directions ◽  
Criminal Legislation

The article analyses the core and contents of the proceedings based on newly discovered or exceptional circumstances (hereinafter – PBNDEC) in the criminal procedure law of Ukraine and other European countries. The authors emphasize that the PBNDEC are not designed to eliminate shortcomings of the pre-trial investigation and the trial in criminal proceedings, providing the reserve function in discovering and correcting court errors, but rather serves its own purpose in the mechanism of legal defence. The order the criminal procedure activity during this stage is largely determined by the grounds for its implementation – newly discovered or exceptional circumstances (hereinafter – NDEC). The differences between both groups of such circumstances are provided. Procedural features of the PBNDEC, which separate them from the proceedings on appeal and cassation, are singled out. The goals of this stage in the criminal proceedings are formulated, and the significance of this stage has been revealed. The need for improvement in the criminal procedure legislation of Ukraine which regulates the PBNDEC has been justified. The articles answer the questions of how efficient the regulation of the PBNDEC in the criminal procedure law of Ukraine is: whether the regulation is in agreement with the standards, whether it is established in the criminal procedure law of European countries, whether any doctrine positions regarding the core of such a stage in criminal proceedings require rethinking or additional theoretical justification, and which, of the normative regulations of such form of appeal and review of the court decisions, the principal directions for improvement are. In order to obtain answers to the aforementioned and other questions, the legal nature and the models of PBNDEC in the criminal legislation of European countries are considered in section two of the article. Section three depicts the procedural specifics of the PBNDEC in the criminal legislation of Ukraine. Section four describes the definition, shows the goals and significance, and introduces the structure of this stage in the criminal proceedings. Section five embraces the characteristics of features of NDEC in the criminal legislation of Ukraine. In section six the grounds for the PBNDEC in the criminal procedure law of Ukraine are analysed.

scholarly journals The criminal responsibility for defamation of knowingly innocent

2021 ◽  
Vol 10 (44) ◽  
pp. 241-251
Author(s):  
Vira Navrotska ◽  
Oksana Bronevytska ◽  
Galyna Yaremko ◽  
Roman Maksymovych ◽  
Vita Matolych
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Scientific Article ◽  
Criminal Prosecution ◽  
Innocent Person ◽  
Criminal Proceedings ◽  
Self Disclosure ◽  
Procedural Law ◽  
The Right

The scientific article analyzes the acute discussion in law enforcement practice and procedural science of the problem of the possibility of criminal prosecution of a suspect, accused of defaming a knowingly innocent person in the commission of a crime. The theoretical basis of the article are scientific works on criminal law and criminal procedural law (both domestic researchers and foreign experts). A set of general scientific, special scientific and philosophical methods of scientific knowledge has been used while preparing the scientific article, in particular dialectical, historical, comparative, dogmatic (formal-logical), system-structural analysis, modeling. It is substantiated in the article that the behavior of the suspect, accused, which is manifested in slandering of a knowingly innocent person, does not constitute the right to freedom from self-disclosure. It is also proved that both freedom from self-disclosure and the right to defense in criminal proceedings must have certain limits, in particular, it is rights and interests of other subjects protected by criminal law. We stated that the suspect or accused should be liable for misleading the court and pre-trial investigation bodies even if such deception was used to protect against the suspicion (or accusation), to avoid criminal liability.

scholarly journals THE PROBLEMS OF THE REFORM OF CRIMINAL JUSTICE

2019 ◽  
pp. 207-213 ◽  
Author(s):  
V. M. Tertyshnyk
Keyword(s):  
Criminal Prosecution ◽  
Conceptual System ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Applicable Law ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
Third Person ◽  
Definition Of ◽  
The Right

The article covers the problem of optimization of regulatory and criminal proceedings in terms of the implementation of the principle of the adversarial parties. Analysis of the positive stories and shortcomings of the current CPC of Ukraine. Disclosed the problem to run the investigation and legal assistance and protection. The submitted proposals concerning improvement of the norms of the criminal procedure law. The principle of admissibility of intervention in human rights and the application of coercive measures in establishing the objective truths only in case of extreme urgency has become a basic principle of the criminal process. According to the applicable law of Ukraine “on advocacy and its activities” (p. 7 article 20) advocate in their activities has the right to “remove things, documents, copy them”. That is, it can only go about getting published, and not about “deleting”, without the consent of the holder of the document or thing. “Extract” is commonly understood as forced extraction, and side protection, by definition, its function may not to have establishing the authority. Finally, to protect enough of getting copies of documents, not delete documents, especially the absence of a duty to Act laid them in the proper way to store and share the Court. At first glance, insignificant legislative inaccuracy may only have character problem definitions, but in reality these “trivia” smear Vaseline give opportunity not so much for a parallel legal investigation, how, in practice, for the active counteraction to the inquest by hiding or destroying evidence. In today’s criminal counsel may participate in criminal proceedings in three different status: 1) as a defender of the suspect, accused, convicted, justified; 2) as a representative of the victim of physical persons; a legal entity that is affected civil plaintiff, civil respondent; third person; 3) as legal assistant to the witness. Prescription of the Constitution that exceptionally lawyer carries out representation of another person in court, as well as protection from criminal prosecution does not mean establishing the monopoly of lawyers to perform the function of protection. Wise will introduce a new conceptual system of legal assistance and protection: 1. Protection of the suspect can make as lawyers and other professionals in the field of law, for which there is no reason for removal. 2. Defendant and defendant in court should carry only a lawyer who offered to appoint judicial agent. 3. Legal assistance to victims, civil plaintiffs, civil and for third parties (art. 63 of the CPC of Ukraine) can make as lawyers and other specialists in the field of law, which can act in the procedural status of the representatives of the respective parties. 4. Legal assistance to witnesses, applicants to other participants of the process can make as lawyers and other professionals in the field of law. Implementation of the constitutional principles of legal assistance and protection in criminal proceedings requires a clear definition of the procedural status of the Defender, therepresentative and law agent, development and adoption of the law on the independent Institute the investigation, which has become an independent institution of the criminal procedural law.

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