The Procedural Laboratory for Studying the Historical Types of Criminal Proceedings

2021 ◽  
Vol 8 (2) ◽  
pp. 71-78
Author(s):  
Anna V. Lamteva
Keyword(s):  
Vertical Direction ◽  
Criminal Procedure ◽  
Point Of View ◽  
Ancient Rome ◽  
Criminal Proceedings ◽  
Democratic State ◽  
Court Proceedings ◽  
The Times ◽  
The Right

The article is devoted to the study of historical types of criminal proceedings in a vertical direction. The foremost archetypes of criminal procedure, which laid the technological and methodological foundations for formation of the investigative, adversarial, and mixed types of criminal proceedings, were analyzed. Arguments are given in favor of the fact that the initial reference point for criminal proceedings is the accusatory-adversarial type. The appropriate legal examples from the legislation of Athens and Ancient Rome are referenced in the article. An attempt is made to prove three hypotheses about the modern types of criminal procedure, the sequential system about the models of criminal procedure. Consideration is given to the archetype. The debatable issue regarding the active and passive positions of judges in the resolution of criminal cases on their merits was considered. The author's position in favor of the role of a judge as a non-initiative arbitrator between the parties was appropriate and justified only in the times of the rise of Athens and Ancient Rome. The judicial compositions of each case consisted of several hundred judges, which made it possible to make the right decision. The judges themselves were from the people. In particular, this is why, before our era, there were no dubious statistics in court proceedings from the point of view of the adversarial principle. It further explains why there were both convictions and acquittals in sufficient numbers for a democratic state. The modern procedural role of a judge is often reduced to the personal neutral, but at the same time active investigation of the evidence is presented by the parties. Much attention is given to the modern type of criminal process, which is called mixed. This content is considered in two ways as a symbiosis of investigative and adversarial types and also as a procedural duet of accusatory-adversarial and techno-centric models.

The Role of Criminalistic Classification and Defendants’ Typification in the Formation of Forensic Recommendations for Prosecuting in Court

Lex Russica ◽  
2020 ◽  
pp. 69-83
Author(s):  
S. L. Kislenko
Keyword(s):  
Decisive Role ◽  
Criminal Activity ◽  
Point Of View ◽  
Practical Significance ◽  
Public Prosecutor ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
First Case ◽  
Court Proceedings

Systemic characteristics of the doctrine dealing with the person committing a crime predetermine the complexity of the use of information about him or her in the process of criminal prosecution. Systemic information on the behavioral aspects of the person in the process of genesis of criminal and post-criminal activity, as well as its procedural status, will be of great importance in the work of law enforcement agencies as a systematic structure. Criminalistically significant aspects of criminal activity (and behavior) as a systemic holistic structure should be discussed when the decisive role of personal features is determined not only in the mechanism of the criminal act, but also beyond it. The activity of the person that takes place both before the criminal prosecution (criminal aspect) and during the proceedings (post-criminal aspect) should be investigated. Therefore, the identity of the defendant should be considered in the context of such categories as the identity of an offender and the identity of an accused (a suspect). The typification of defendants is necessary In order to improve the effectiveness of the prosecution of offenders in court proceedings. The classification approach allows us to develop targeted recommendations (methods, tactical complexes) to maintain the prosecution. Obtaining and using information about the identity of the defendant implies the need for the public prosecutor to interact with other authorities involved in prosecution process. The author comes to the conclusion that the study of personal and behavioral characteristics of the defendant has important theoretical and practical significance. In the first case, the generalization of such knowledge contributes to the development of criminalistic theory in general and its certain sections in particular. From a practical point of view, accumulation of such knowledge contributes to the formation of targeted criminalistic recommendations used to improve the effectiveness of criminal prosecution of persons who committed crimes within the framework of criminal proceedings.

scholarly journals Forms of Interaction between an Investigator and Bodies of Inquiry at the Initial Stage of Pre-Trial Proceedings

Lex Russica ◽  
2020 ◽  
Vol 73 (3) ◽  
pp. 70-79
Author(s):  
Yu. G. Torbin ◽  
A. A. Usachev ◽  
L. P. Plesneva
Keyword(s):  
Law Enforcement ◽  
Task Force ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Initial Stage ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right ◽  
To Receive

Despite the prolonged use of certain forms of interaction between the investigator and investigative agencies at the initial stage of pre-trial proceedings, the criminal procedure legislation still lacks some aspects of their implementation. This makes it necessary to study the current situation and substantiate the theoretical and practical provisions concerning interaction between an investigator and investigative agencies in the context of verification of the report of the crime in the light of the planned digitalization of domestic criminal proceedings. The author suggests that the forms of interaction, the application of which is expedient at the initial stage of pre-trial proceedings, include two procedural forms (giving written instructions to an investigative agency about carrying out operational search activities, obtaining explanations, obtaining assistance in carrying out investigative and other procedural actions) and two organizational forms (joint planning and formation of an investigative and task force). In order to increase the efficiency of criminal procedure at the initial stage of pre-trial proceedings, to ensure clarity of the language of criminal procedure law and its compliance with law enforcement, the auther proposes to amend Part 1 of Article 144 of the Code of Criminal Procedure by supplementing it with the right of authorized officials and bodies to give to investigative agencies mandatory written instructions for obtaining explanations, and to receive assistance from the investigative agency in carrying out verification actions. At the same time, the paper demonstrates the author’s approch to excluding obtaining explanations from the general list of procedural actions specified in Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation and conducted by authorized subjects of verification of the report of the crime. Also, the paper analyzes the importance of introduction of electronic document circulation into criminal proceedings from the point of view of efficiency of interaction between the investigator and investigative authorities at the initial stage of pre-trial investigation.

scholarly journals Ensuring the Right of a Person Placed in a Psychiatric Care Hospital to Defense in Criminal Proceedings

2021 ◽  
pp. 42-50
Author(s):  
Anna Shatrova
Keyword(s):  
Psychiatric Care ◽  
Care Facility ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Care Hospital ◽  
Criminal Proceedings ◽  
Systemic Analysis ◽  
Criminal Procedure Law ◽  
Court Proceedings ◽  
The Right

The involvement of persons suffering from mental disorders into criminal court proceedings requires additional procedural guarantees of ensuring their rights. The procedural status of a person involved in proceedings regarding the application of compulsory medical treatment is not sufficiently well-defined in Russian criminal procedure. Such a normative construct makes it harder for this person to exercise their right to defense. The author examines some problems of ensuring a right to defense when making a decision on placing a mentally ill person in a psychiatric care facility. Based on a systemic analysis of current criminal procedure norms and international law standards of ensuring a just and fair court hearing in the category of criminal cases under consideration, the author presents ideas on improving the criminal procedure law and the practice of its enforcement. It is suggested that a special norm of procedural compulsion consisting in the forceful placement of a person in a psychiatric care hospital should be incorporated in law.

Basic principles of the prosecutor in criminal proceedings under Criminal Procedure Code of Ukraine

2016 ◽  
Vol 8 (1) ◽  
pp. 111-122 ◽  
Author(s):  
Ihor Rohatiuk
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Basic Principles ◽  
Criminal Process ◽  
Criminal Proceeding ◽  
Procedure Code ◽  
The Times

Principles have always been the cornerstones of criminal proceedings’ legal regulation affecting all participants of criminal process. Taking into account the accelerated pace of current law enforcement reforming it is necessary to mention the prosecution institute and key role of criminal proceedings’ principles presenting scientific background for further empirical findings. The majority of these principles defines the priority growth directions of criminal process as well as creates friendly environment for behavioral aspects of criminal proceeding parties. This article provides comparative analysis of the existing criminal procedural principles of the prosecutor’s role in the criminal proceedings with specification of the legality principle as a requirement for all subjects of the criminal proceedings, including the prosecutor, to use the norms and provisions of legal acts correctly, to comply it consistently and perform accurately, explores the historical origins of these principles and their determinants’ origin starting from the times of Kievan Rus and its unique judicial system and proves that the adversarial principle is closely connected with dispositivity of prosecutor’s participation in criminal proceeding. An emphasis is placed on correlation between the ‘principles’ and ‘foundations’ terms examined by Ukrainian and Soviet scholars and its application in relation to the newly adopted Criminal Procedure Code of Ukraine.

scholarly journals ON THE ISSUE OF EVALUATING THE FORENSIC STRUCTURAL ENGINEERING RESULTS IN CRIMINAL PROCEEDINGS

2020 ◽  
Vol 21 (1) ◽  
pp. 92-105
Author(s):  
D. Puchko
Keyword(s):  
Structural Engineering ◽  
Criminal Procedure ◽  
The Body ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
False Report ◽  
Criminal Procedure Law ◽  
Forensic Expert ◽  
Court Proceedings ◽  
The Right

Problematic issues of forensic structural engineering as a source of evidence while criminal proceedings in the aspect of evaluating its results have been analyzed. Taking into account the relevance of this type of forensic examination both for the investigation of criminal proceedings and for other types of court proceedings, main provisions concerning evaluation of a forensic report in the field of forensic structural engineering are considered. Relevant norms of the Criminal Procedure Code of Ukraine and of some foreign countries have been studied. It is concluded that, in fact, the approaches to the preparation of forensic report content are similar to the corresponding norms of the Ukrainian criminal procedure law. Certain discrepancies relate to the content of the report examination part – in some countries it does not contain a detailed description of the research course. In addition, according to Art. 242 of the Criminal Procedure Code of Ukraine, a defense can independently engage a forensic expert, therefore, Art. 102 needs improvement. And since the defense party is not endowed with the right to warn a forensic expert about responsibility for a knowingly false report and refusal without valid reasons to fulfill duties assigned to him, then the indicated norm must be supplemented for such cases – in the aspect of the forensic expert awareness on such responsibility. It is specified that the body (person) that appoints the forensic structural engineering  examination does not always ask a forensic expert questions within the framework of the subject of proof. Admissibility of evidence is primarily determined by its receipt based on compliance with law. The grounds are provided that may serve as a reason for accepting the forensic report as inadmissible evidence in the field of forensic structural engineering.

scholarly journals SEKUNDARNI POSITION OF CONSENSUAL PROCEEDINGS

2019 ◽  
Keyword(s):  
Criminal Procedure ◽  
Public Law ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Public And Private ◽  
Legal Norms ◽  
Private Interests ◽  
Criminal Procedure Law ◽  
Court Proceedings ◽  
The Right

The article discusses the situation of civil law and consensus in the criminal process for not serious crimes. The essence of consensual proceedings in the criminal process is determined, its procedural form is disclosed, which includes the agreement of the parties and the grounds for closing the criminal proceedings both at the stage of pre-trial investigation and court proceedings. Considering the division of the right to public and private, on the basis of the consensual provisions of the criminal process, it is necessary to indicate that they have different substances and are divided according to different classification criteria. Based on the general and theoretical provisions of the criminal process, the consensual developments of this work, we can determine that public and private law has two directions, which include the theory of interest and the theory of protection of private interests. In this case, we can talk about the material and formal signs of theoretical modifications, namely, to proceed from the content of regulated relations, which should be based on material conditions. That is, if the norms of public law regulate the interests of a person, then they are built on the material theory. How they regulate and what they regulate, we attribute to the legal norms. The conclusion is that in relation to the construction of legal relations between the subjects of the process, this question can be put on the basis of the content of the subjective right. The criminal process has the authority to interfere with the norms of public law in the private interests of the person, if provided for by criminal law. We believe that the criminal procedure law should take measures to limit the interference of public law in private interests. Based on the analysis of civil procedural legislation, recommendations were given on drafting an agreement in the criminal procedure in the procedural form on compensation for material damage.

scholarly journals SOME CONTROVERSIAL PROVISIONS OF THE PARTICIPATION OF THE DEFENDER IN THE EVIDENCE IN A CRIMINAL CASE

2020 ◽  
Vol 36 (4) ◽  
pp. 160-163
Author(s):  
T. B. Ramazanov ◽  
◽  
M. M. Magomaev ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
The Russian Federation ◽  
The Right ◽  
Material Evidence ◽  
Expert Study

In the article, the principle of competition and equality of the parties and the principle of comprehensiveness, completeness and objectivity in criminal proceedings are analyzed from the point of view of the powers and real capabilities of a lawyer participating as a defender in a criminal case. The code of criminal procedure of the Russian Federation, granting the defender the right to collect evidence, at the same time does not provide real opportunities for checking and evaluating evidence. Investigators often reject the defense lawyer's requests to attach material evidence to the case and appoint an expert study in order to determine the source of its receipt. In the Arsenal of the investigator there are not only procedural opportunities to find the source of evidence, but also the possibility of operational and investigative nature. In practice, the interaction of the investigator and the defense lawyer in pre-trial proceedings does not take into account the weaknesses of the defense party. The actual inequality of the parties should be specifically compensated by providing procedural benefits to the defense party, as the weaker one, by introducing additional rights and guarantees. The defence must be provided with the rights and opportunities to defend its position in equal measure with the prosecution.

scholarly journals CONSIDERATIONS RELATING TO CERTAIN ASPECTS OF THE APPEAL IN THE CRIMINAL PROCEDURE

2016 ◽  
Vol 10 (2) ◽  
pp. 12-18
Author(s):  
Barbu Denisa
Keyword(s):  
Preventive Measures ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Legal Remedies ◽  
The One ◽  
The Right ◽  
Judicial Error ◽  
Criminal Matters

The appeal constitutes a judicial mechanism made available to consumers and to the Prosecutor that aims straight for errors committed by a Court of law in its approach of jurisdiction. The term judicial error must be understood in this context as defined in its broad, drawing together both errors of fact and errors of law. Therefore, the appeal is made for the one dissatisfied with the Court decision as a veritable juridical panacea.The role of the right of appeal is not limited to conferring the possibility of requesting a new retrial of the case. They serve the interests of private individuals higher interests, being accused of public order needs. Thus, the existence of remedies is required by principles such as finding out the truth, the right to a fair trial and the reasons for the population’s confidence in the judiciary or the respect due to justice.The new code of criminal procedure1 has reformed the system of appeal may be exercised in criminal matters, giving them a generous space between regulators, art. 408 and 470. We meet thus, in penal matters, the following remedies: appeal, opposition, and cancellation, opposition in cassation, review and reopening of criminal trial resulting from the absence of the person convicted. Distinct from these, we encounter the complaint which may be made against preventive measures (judicial review and judicial control on security) prepared by the Prosecutor during criminal proceedings and which is addressed to judge rights and freedoms. Still exemplifying, we may meet and demand the cancellation or reduction of the fine, governed by art. 284 of NCPP, and the examples do not stop there. We must note that, in our opinion these latter examples may be considered legal remedies only in the usage of the term largo sensu „remedy”. From the etymological point of view, the appeal originates in French, designating a claim appel, a calling application, a request etc. addressed to persons or institutions in order that the latter to settle claims by the appellant.

PROBLEM ASPECTS OF THE IMPLEMENTATION OF CRIMINAL PROCEDURAL NORMS OF PROTECTION OF THE VICTIMS FROM CRIME

2020 ◽  
pp. 72-76
Author(s):  
Яна Валерьевна Самиулина
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Rights ◽  
Criminal Proceedings ◽  
Effective Mechanism ◽  
The Russian Federation ◽  
The Individual ◽  
The Right ◽  
To Receive ◽  
Selection Of

В настоящей статье предпринята попытка исследовать отдельные проблемные аспекты института потерпевшего в российском уголовном процессе. В этих целях подвергнуты анализу правовые нормы, регламентирующие его процессуальный статус. Раскрываются отдельные пробелы уголовно-процессуального законодательства в сфере защиты законных прав и интересов потерпевшего. Автор акцентирует внимание на том, что совершенствование уголовно-процессуального законодательства в части расширения правомочий потерпевшего по отстаиванию своих нарушенных преступлением прав следует продолжить. На основании проведенного исследования действующего законодательства в части регламентации прав потерпевшего от преступления предлагается расширить перечень получаемых им копий постановлений, указанных в п. 13 ч. 2 ст. 42 УПК РФ. Автор предлагает включить в перечень указанной законодательной нормы право получения потерпевшим копии постановления об избрании конкретного вида меры пресечения, избранного в отношении подозреваемого (обвиняемого). Для создания действенного механизма защиты интересов потерпевших от преступления юридических лиц предлагаем ч. 9 ст. 42 УПК РФ изложить в следующей редакции: «в случае признания потерпевшим юридического лица его процессуальное право в уголовном процессе осуществляет представляющий его профессиональный адвокат». This article attempts to investigate certain problematic aspects of the institution of the victim in the Russian criminal process. For this purpose, analyzed the individual norms governing his procedural status. Separate gaps of the criminal procedure legislation in the sphere of protection of the legal rights and interests of the victim are disclosed. The author emphasizes that the improvement of the criminal procedure legislation in terms of the extension of the victim’s authority to defend his rights violated by the crime should be continued. On the basis of the study of the current legislation regarding the regulation of the rights of the victim of a crime, it is proposed to expand the list of decisions received by him, referred to in paragraph 13, part 2 of article 42 Code of Criminal Procedure. The author proposes to include in the list of the indicated legislative norm the right to receive the victim a copy of the decision on the selection of a specific type of preventive measure, selected in relation to the suspect (accused). To create an effective mechanism for protecting the interests of legal entities victims of a crime, we offer part 9 of art. 42 of the Code of Criminal Procedure of the Russian Federation shall be reworded as follows: «if a legal entity is recognized as a victim, his procedural right in criminal proceedings is exercised by the professional lawyer representing him».

scholarly journals HISTORICAL DEVELOPMENT STAGES OF CRIMINAL PROCEDURE IN ANCIENT ROME

2016 ◽  
pp. 0-0
Author(s):  
Нодиржон Хайриев ◽  
Nodirzhon Khayriev
Keyword(s):  
Historical Development ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Aspects ◽  
Ancient Rome ◽  
Development Stages ◽  
Procedural Law ◽  
History Of ◽  
Court Proceedings ◽  
Evaluation Of Evidence

This article studies historical-legal aspects of such issues as organization and development of criminal procedure in Ancient Rome, types of criminal procedure in this state, peculiarities of criminal procedure organization on the basis of the Laws of the twelve tables, legal status of officials, reviewing cases, as well as issues of guaranteeing fairness of the courts, specific to the ancient roman legal and institutional framework. Based on the historical development of the state and law, the author presents a different classification of the development stages of Ancient Rome and history of the Roman (Civil) Law. The author pays special attention to studying procedural law aspects, in particular, to the issues of particular characteristics of criminal procedure and judicial examination, evidence law, procedure of instituting court proceedings, hearings of cases in courts and adoption of relevant court decisions. The author conducts thorough analysis of the main stages of a criminal process, which, as the author assumes, consist of two parts — bringing of a suit, evaluation of evidence and documents, checking the accuser’s requirements, as well as reviewing claims under the lawsuit and submitted evidence, judicial examination.

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