scholarly journals REASONABLE TIME OF CRIMINAL PROCEEDINGS: CRIMINALISTIC CHARACTER

2020 ◽  
Vol 6 (4) ◽  
pp. 101-111
Author(s):  
K. A. Korsakov ◽  
V. V. Konin ◽  
E. V. Sidorenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

In the Russian legal system, the understanding that justice should be not only timely, but also fast enough has matured for a long time. The delay in the investigation of a criminal case and its consideration by the court allows the guilty to avoid the deserved punishment in some cases, which calls into question the principle of inevitability of punishment on the one hand, and hinders the right to access justice, on the other hand. The term reasonable time for legal proceedings has emerged as a requirement of international law to be tried without undue delay. The right to a reasonable period of criminal proceedings is regulated by Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but this norm is not fully implemented to date, as evidenced by the decisions of the European court of human rights issued on complaints of violation by the Russian Federation of the provisions of the European Convention for the protection of human rights and fundamental freedoms. At the same time, the available research considers the requirement of reasonable terms in criminal proceedings from the standpoint of criminal procedure law, which is not fully justified. The article attempts to consider the problematic issues of reasonable terms of criminal proceedings from the perspective of criminology, as a science that has incorporated theoretical and practical issues of fighting crime, as well as the problems of criminalistic criteria in criminal proceedings.

The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants

2018 ◽  
Author(s):  
PHPHMC van Kempen
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Procedure Law ◽  
Eu Directives ◽  
The Right

Mainly as a result of the nature of criminal procedure in the Netherlands, which until recently could be characterized as a modern moderate inquisitorial system, the fitness-to- plead principle has been rather underdeveloped here. This chapter analyses how the European Convention on Human Rights, EU Directives, and the increase of adversarial elements in an originally inquisitorial criminal justice system are now catalysing the fitness-to-plead principle. Fourteen recommendations will be provided for what is considered a necessary reinforcement of the legal position of defendants who possess insufficient abilities to adequately participate during criminal proceedings—both preliminary investigation and trial—or who are even unfit to stand trial. The recommendations are based on a detailed analyses of criminal procedure law of the Netherlands, case law of the European Court of Human Rights, and several EU Directives that are relevant for the fitness to plead principle..

The “Bolotnoe Affair” and the Implementation of the Right to Freedom of Assembly in the Russian Federation

2016 ◽  
Vol 41 (3-4) ◽  
pp. 396-426
Author(s):  
Mariya Riekkinen
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Court Cases ◽  
Legal Analysis ◽  
Parliamentary Elections ◽  
European Court ◽  
Moscow City ◽  
The Russian Federation ◽  
The Right

A series of protests across Russia, triggered by procedural violations during the 2011 parliamentary elections and results of the 2012 presidential elections, culminated on 6 May 2012 with a demonstration at Bolotnaia Square in Moscow. That demonstration led to violent clashes between protesters and the police. The dispersal of this demonstration and the subsequent criminal and administrative trials conducted against some of the protesters, as well as the controversy regarding the severity of some of the penalties imposed by the courts, became known as the Bolotnoe Affair. The Bolotnoe Affair is analyzed from the perspective of implementing the right to freedom of assembly in Russia. The main goal is to conduct a contextual legal analysis clarifying whether the right to freedom of assembly is adequately implemented in the legal order of the Russian Federation, in order to illustrate whether the protesters in the Bolotnoe Affair were able to express their opinions with regard to the procedure and results of the elections. The leading court cases relevant to the participatory rights of the protesters as exemplified by the appellate decisions of the Moscow City Court will also be examined. In particular, twelve decisions of the Moscow City Court during the period 2012–2014 (full texts of which are reproduced in publicly available legal databases) are reviewed, as well as two recent judgments in European Court of Human Rights (ECtHR) cases closely related to these earlier cases. Analyzing the Moscow City Court decisions vis-à-vis the judgments of the ECtHR, the author concludes that the Moscow City Court’s rulings did not conform with the provisions of the European Convention on Human Rights (echr) regarding the right to freedom of assembly and the right to liberty.

scholarly journals Criteria for Assessing the Violation of the Right to a Trial Within a Reasonable Time

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Miodrag Simović ◽  
Marina Simović
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Criminal Charges ◽  
The Right ◽  
Article 5

The well-known sentence in English Justice delayed is justice denied confirms historical awareness of the value of a speedy court decision. The right to a fair trial within a reasonable time applies to both civil and criminal proceedings. In a criminal trial, the issue of adjournment may also be regulated under Article 5 paragraph 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms when a person is detained. The rationale for the principle, in criminal proceedings, is “based on the need to allow the accused not to remain for too long in a state of uncertainty as to the outcome of criminal charges against him” (Kart v. Turkey, European Court of Human Rights, 2009). Furthermore, the variability of criminal proceedings that take too long - generally damages the reputation of the alleged offender. The European Court of Human Rights explained that “the reason for the verdict in so many lenghty proceedings is that certain contracting parties have not complied with the ‘reasonable time’ requirement under Article 6 paragraph 1 of the European Convention and have not prescribed a domestic remedy for this type of appeal” (Scordino v. Italy (no. 1) [GC], 2006-V).

scholarly journals Unreasonableness of Reasonable Time in Criminal Proceedings

2020 ◽  
pp. 53-57
Author(s):  
Valery K. Znikin ◽  
◽  
Inna N. Razzorenova ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
Adequate Response ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Judicial Protection ◽  
Objective Investigation

The analysis of the criminal procedure law made it possible to conclude that there is a historically established tendency for a complete, comprehensive, and objective investigation with the principle of reasonable time. The authors emphasize the lack of legislative consolidation of the concept of “reasonable time”, which results in the lack of clarity in making a decision on its violation. The research into practice has shown that there are situations inconsistent with the principle of reasonable time that are not recognized as a violation of it. Having summarized the theoretical views and practices of applying the provisions of Article 125 of the Code of Criminal Procedure of the Russian Federation, the authors identify the obstacles in ensuring citizens’ access to justice and ensuring a reasonable period of criminal proceedings and propose the ways to improve the mechanism for ensuring judicial protection of the rights of individuals. They also stress out the need for legislative consolidation of the delivery of a court decision on the deadline for verification of a crime report or a timeframe for investigation in a criminal case. The conclusion is that a reasonable period of criminal proceedings is such a period that does not give rise to a contradiction between the actions of the participants in the criminal proceedings and the public’s demand for a timely and adequate response of the court to all abuses committed by these participants, entailing an increase in the duration of the criminal proceedings. As a consequence, the requirement for a prompt, complete, comprehensive, and impartial investigation is part of the “reasonable time” principle.

scholarly journals The System of Procedural Principles of Proceedings in Administrative Offenses Cases

2020 ◽  
Vol 15 (11) ◽  
pp. 153-159
Author(s):  
A. R. Nobel
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
The Right ◽  
Procedural Decisions

The paper provides definitions of the principles and system of principles of proceedings in cases of administrative offenses. Based on the norms of the Constitution of the Russian Federation, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Code of Administrative Offenses of the Russian Federation and the practice of their application, the author substantiates the position that the principles of proceedings in cases of administrative offenses are, to varying degrees, enshrined in regulatory legal acts constituting legislation on administrative offenses, both directly and indirectly. The system of procedural principles of proceedings in cases of administrative offenses is revealed. The author includes the following principles in this system: open consideration; state language; direct examination of evidence; freedom to evaluate evidence; compulsory consideration of applications; freedom to appeal against procedural decisions; competition and equality of the parties; fair consideration of the case; ensuring the right to defense. The content of these principles having a pronounced procedural nature is formed through a systemic interpretation of the provisions of the Constitution of the Russian Federation, the European Convention on Human Rights, the Code of Administrative Offenses of the Russian Federation, the case law of the Constitutional Court of the Russian Federation and the European Court of Human Rights. The author concludes that, despite the existence of various ways of consolidating the procedural principles of proceedings in cases of administrative offenses, the greatest efficiency of their perception and application will be achieved only when the principles are reflected in a special chapter of the Code of Administrative Offenses of the Russian Federation.

scholarly journals Waiver of rights in Russian criminal procedure: Issues of theory, legislative regulation, and law enforcement

2020 ◽  
Vol 11 (3) ◽  
pp. 651-665
Author(s):  
Irina N. Chebotareva ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Freedom Of Choice ◽  
European Court ◽  
The Russian Federation ◽  
The Difference ◽  
The Right

The article discusses the waiver of procedural rights as a particular legal phenomenon. The rationale for studying the waiver of rights in the Russian criminal procedure doctrine arises from the expansion of the spheres of disposition and adversarial nature in present-day Russian criminal procedure. In order to form an overall picture of the ‘waiver of rights’, the article describes its distinctive features and elements that characterize it. Additionally, the theoretical aspects of the waiver of rights in present-day Russian criminal procedures, as well as the legal regulation of a waiver, are analyzed. A waiver of subjective rights is understood as an expression of a legal person’s will in terms of failure to behave as provided for by objective law, which is characterized by voluntariness, awareness, and freedom of choice. It is asserted that any non-realization of rights by a subject is not considered a waiver. The difference is demonstrated in the understanding of the concept ‘waiver of rights’ in the approaches of the European Court of Human Rights, the Constitutional Court of the Russian Federation, as well as in the interpretation of the rules of criminal procedural legislation, which regulates a person’s ability to waive the rights granted to them by the Supreme Court of the Russian Federation. The article states that the disposition principle of legal regulation, applied by the legislator to participants in criminal proceedings defending their personal interests, presupposes the legislatively established possibility of a person to refuse to exercise the right unless it violates the more important public interest. Attention is given in the article to the necessity of guarantees that ensure voluntariness, awareness, and freedom of choice in case of a person’s waiver of their rights.

scholarly journals Analysis of the project “On amendments to certain legislative acts of the Russian Federation to provide the victim, suspect, accused with the possibility of reconciliation”

2020 ◽  
Vol 14 (3) ◽  
pp. 362-367
Author(s):  
N.V. Mashinskaya ◽  
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Criminal Procedure ◽  
Alternative Methods ◽  
Federal Law ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

The problem of legislative regulation of the procedure for reconciliation of the victim with the suspected, the accused until a certain time was only a subject of discussion in the scientific literature. At the same time the state’s need to find measures that can eliminate the consequences of crimes without the use of ordinary criminal procedures has actualized the work on introducing alternative methods of settling the criminal-legal conflict into criminal proceedings. Given the urgent need to apply this procedure in practice, the Interregional Public Center “Judicial and Legal Reform” has developed and posted on its website a draft federal law “On Amendments to Certain Legislative Acts of the Russian Federation to Provide the Victim, Suspect, and Accused with the Possibility of Reconciliation.” To implement the procedure for reconciliation in criminal proceedings, the drafters of the bill propose to include a new chapter in the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Criminal Procedure Code of the Russian Federation). The author of the article critically evaluates the attempt due to the inconsistency of a number of novels, their uncertainty and inconsistency with the norms of the criminal procedure law. To eliminate the existing shortcomings, it is proposed to provide a separate article defining the procedural status of the conciliator and to include the specified rule in Ch. 8 of the Criminal Procedure Code of the Russian Federation. As a guarantee of the right of the victim, suspect, accused to reconciliation, the introduction of an appropriate addition to the criminal procedure norms governing the legal status of the named participants in criminal proceedings is considered.

scholarly journals The Material and Procedural Aspects of Non Bis In Idem Principle in Proceedings on Administrative Offenses

2021 ◽  
Vol 4 ◽  
pp. 39-42
Author(s):  
Artem R. Nobel ◽  
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Russian Federation ◽  
Criminal Procedure ◽  
European Court ◽  
The Russian Federation ◽  
Administrative Responsibility

The essence of the principle of one-time administrative responsibility is considered, its concept and proposals for improving the provisions of the Code of Administrative Offenses of the Russian Federation are formulated. The conclusions are based on the provisions of the legislation on administrative offenses, the legal positions of the highest courts of the Russian Federation, the European Court of Human Rights, a comparative analysis of the current criminal and criminal procedure legislation. The operation of the principle non bis in idem in proceedings on the cases of administrative offenses is revealed by highlighting the material and procedural elements that make up its content.

SHORTENED TIMELINE OF APPEAL AGAINST INTERIM COURT DECISIONS MADE AT A PRE-TRIAL STAGE OF CRIMINAL PROCEEDINGS

2021 ◽  
pp. 38-49
Author(s):  
Polina O. Gertsen ◽  
Keyword(s):  
Russian Federation ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Medical Organization ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

The article deals with the problem of classifying interim decisions among those that are appealed in a shortened timeline, and determining the list of such decisions, as well as the closely related problem of determining the rules for calculating such a shortened timeline. Currently, the Criminal Procedure law provides for the possibility of appealing a number of interim decisions made at a pre-trial stage of criminal proceedings before the final decision Moreover, for appealing some interim decisions at a pre-trial stage of criminal proceedings, a general period of appeal is provided - 10 days from the date of the court decision, or the same period from the date of serving with a copy of the decision the person who is in custody, while for others a shortened timeline is 3 days from the date of the decision. Meanwhile, it follows from the literal interpretation of the Criminal Procedure Code of the Russian Federation that within a shortened three-day period, court decisions on the election of preventive measures in the form of a ban on certain actions, bail, house arrest, detention, the refusal to apply them or extend their application can be appealed. At the same time, such a conclusion is not confirmed either in the positions of the Plenum of the Supreme Court of the Russian Federation or in judicial practice. Based on the analysis of the criminal procedure law, the position of the Supreme and Constitutional Courts of the Russian Federation, scientific literature and practice, several problems are highlighted. Thus, the author states the discrepancy between the provisions of the Code of Criminal Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation when it comes to establishing the terms for appealing the court decision on a preventive measure in the form of bail. In addition, there is no single criterion for establishing shortened deadlines for appealing interim decisions, and there-fore, the list of such decisions requires analysis. In addition, the Criminal Procedure Code of the Russian Federation does not contain a norm that determines the rules for calculating daily terms. The author formulates several proposals for amendments. It is proposed to determine the criteria for a shortened appeal timeline as the restriction of the constitutional right to liberty and immunity of a person that requires the immediate judicial review of the lawfulness of such a decision. It is also necessary to correct the phrasing of Article 106 of the Criminal Procedure Code of the Russian Federation, which defines the procedure for applying a preventive measure in the form of bail, and establish the rule that appeal against such an interim court decision is filed according to the rules of Chapter 45.1 of the Criminal Procedure Code within ten days. The list of court decisions which must be appealed in a shortened timeline must be expanded by a court decision on putting a suspect or an accused into a medical organization providing medical or psychiatric care in hospital settings for forensic examination, as well as the extension of a person’s stay in a medical organization. In addition, the author has analyzed the approaches to the calculation of daily terms and proposes to amend Part 1 of Article 128 of the Criminal Procedure Code of the Russian Federation by establishing a single procedure for calculating daily terms, which does not take into account the day that served as a starting point of the term.

7 International Treaties in Russian Judicial and Arbitral Practice

2020 ◽  
Author(s):  
Butler William E
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
International Treaties ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Russian Constitution ◽  
The Russian Federation

This chapter explores the role of Soviet and post-Soviet Russian courts in interpreting and applying international treaties. It is clear that Soviet courts dealt more frequently with treaties than the scanty published judicial practice of that period suggests. This early body of treaties may also have contributed to the emergence in the early 1960s of priority being accorded to Soviet treaties insofar as they contained rules providing otherwise than Soviet legislation. Whatever the volume of cases involving treaties that were considered by Soviet courts prior to 1991, the inclusion of Article 15(4) in the 1993 Russian Constitution transformed the situation. A further transformation occurred when the Russian Federation acceded to the 1950 European Convention on Human Rights and Fundamental Freedoms and began to participate in the deliberations of the European Court for Human Rights in Strasbourg.

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