scholarly journals Evidence – trial and pre-trial

2021 ◽  
Vol 7 (1) ◽  
pp. 89-94
Author(s):  
V. A. Lazareva
Keyword(s):  
Cognitive Activity ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Previous Period ◽  
Scientific Discussion ◽  
Objective Truth ◽  
Theory Of Evidence ◽  
Evidence Trial ◽  
Different Parts

The article again raises the question of the concept of proof in criminal proceedings. The adoption of the Code of Criminal Procedure in 2001, based on principles different from those of earlier times, did not lead to any noticeable revision of the postulates of the theory of evidence, including the concept of proof, but further aggravated the long-known contradictions. The incompatibility of the ideas of proving, which developed in the previous period of our history, as a cognitive activity aimed at establishing objective truth, with the principles of the presumption of innocence and competition is far from obvious to everyone, so the author of the article attempts to separate two fundamentally different approaches to the concept of proof between two fundamentally different parts of the criminal process and thereby reconcile the irreconcilable sides of the scientific discussion.

scholarly journals Is Formal Legal and Objective (Material) Truth Reconcilable in the CCP RF?

2019 ◽  
pp. 61-66
Author(s):  
Gennady Pechnikov ◽  
Vladimir Shinkaruk ◽  
Natalia Solovyova
Keyword(s):  
Russian Federation ◽  
Cognitive Activity ◽  
Point Of View ◽  
Type Model ◽  
Criminal Proceedings ◽  
Philosophical Approach ◽  
Criminal Process ◽  
Objective Truth ◽  
The Russian Federation ◽  
History Of Culture

The article critically evaluates the point of view on the coexistence of formally legal truth and objective (material) truth in today's Criminal Code of the Russian Federation, it also criticizes the position that there are no criteria that clearly distinguishing these truths and that the philosophical approach should not be disseminated on the criminal process, which should be taken autonomously from philosophy. The article defends the point of view that in the present Criminal Procedure Code of the Russian Federation competition is selfsufficient and excludes objective truth. Adversarial criminal process is characterized by formal legal truth, and objective truth requires a fundamentally different type (model) of criminal proceedings - an objectively true criminal process. The authors consider this model of criminal proceedings to be a higher, more perfect and fair type of criminal proceedings, in contrast to the adversarial (winning-losing) type of criminal process, in which the "right and fairness of the strong" prevails.The authors of the article firmly stand on the philosophy of the materialist dialectic; they believe that a philosophical approach is also necessary in the criminal process. In this regard, there are dialectical and non-dialectical (not taking into account the objective laws and rules of dialectics) criminal processes. Relativism of the adversary criminal process, its susceptibility to sophistry are obvious. Therefore, in a competitive duel of the parties, it is important to be more convincing in your arguments than your procedural opponent. We see an objectively-true model of the criminal process as a higher, more perfect and more equitable type of criminal proceedings. The intention of truth and the belief in the ability to prove it give a moral meaning to cognitive activity, whereas indifference to it was perceived throughout the history of culture as a threat to the moral existence of society.

scholarly journals Dispositivity principle in the criminal procedure of Azerbaijan Republic: concept and application in individual rights

2021 ◽  
Vol 25 (2) ◽  
pp. 504-520
Author(s):  
Gahraman V. Jafarov
Keyword(s):  
Criminal Procedure ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Legal Concept ◽  
Criminal Process ◽  
Analysis And Synthesis ◽  
The Will ◽  
Main Determinants ◽  
Procedural Rights

Unlike other principles of criminal procedure (such as legality, presumption of innocence, etc.), the principle of dispositivity (the principle of autonomy of the will of a participant in the proceedings) does not have an independent legal formula, enshrined in a separate article in the current criminal procedure legislation of Azerbaijan. In this regard, questions about the existence, concept, content, individual elements, manifestations, and scope of the principle are becoming relevant and at the same time highly disputable. The author aims to determine the essence of dispositivity, to consider its individual manifestations, as well as to develop scientifically sound recommendations for optimizing the application in practice of the norms of the Code of Criminal Procedure in regulating issues related to the dispositive basis of the criminal process. The set goals predetermined solution for such basic issues as study of the philosophical and legal concept of dispositivity; determination of determinants-manifestations of dispositivity in criminal proceedings as a whole; recognition of dispositivity as one of the autonomous principles of the modern criminal process of Azerbaijan. The study was conducted by methods of dialectical cognition based on the principles of reflection, comprehensiveness, unity of induction and deduction, determinism, contradiction, and unity of analysis and synthesis. The author has studied and summarized a great deal of doctrinal material and jurisprudence, and some selected judicial acts have been used as real models for casuistry of the issues addressed in the article. As a result of the study, the author substantiates that, despite the absence of an independent article in the CPC on this principle, dispositivity is an autonomous principle of criminal procedure, not covered by other principles; on the contrary, it enters into various correlative relations with them. In other words, the Code of Criminal Procedure does not provide a binding feature of the principle of criminal procedure. As the main determinants of the principle under study, the author proposes to consider a system of procedural rights of non-governmental participants in the proceedings that have the effect of initiating some kind of proceedings, and the consent of a participant category, which is a mandatory condition in the procedural decision-making mechanism of entities with power.

scholarly journals Problems of using formal means of proof in russian criminal proceedings

2021 ◽  
Vol 7 (1) ◽  
pp. 115-119
Author(s):  
S. V. Mokrushin
Keyword(s):  
Criminal Procedure ◽  
Regulatory Framework ◽  
Point Of View ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Objective Truth ◽  
Characteristic Features

The article deals with the problem of the need to establish the objective truth in a criminal case in the context of consolidation in the criminal and criminal procedure legislation of the norms on the use of formal means of proof along with evidence. The article describes the characteristic features of various types of formal means of proof, reveals their significance in the Russian criminal process, and also highlights the most problematic issues of using formal means of proof to achieve the goals of criminal proceedings. The author suggests approaches to solving this problem from the point of view of achieving a reasonable balance of using the advantages that formal means of proof provide, if necessary, to minimize the negative aspects of their use, taking into account modern means and methods of obtaining evidence. The author substantiates the idea of the need to make changes to the relevant regulatory framework, which should eliminate the existing one at the present time.

The Principle of Presumption of Innocence in Criminal Proceedings and Problems of Its Implementation

2020 ◽  
pp. 86-91
Author(s):  
N. Yu. Borzunova ◽  
K. L. Maksimova ◽  
A. M. Tsechoev
Keyword(s):  
United States ◽  
United States Of America ◽  
The United States ◽  
Criminal Case ◽  
Football Players ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Plea Bargain ◽  
European Court ◽  
Theoretical Issues

The article deals with the specific features of the presumption of innocence principle and the problems of its implementation in Russia and the United States of America, as well as theoretical issues of this concept. The materials of practice reflecting violations of the principle of presumption of innocence are presented, and various opinions of legal scholars on the implementation of the principle of presumption of innocence are given. Examples from practice are analyzed, including cases that have a high public profile: the criminal case against two football players Pavel Mamaev and Alexander Kokorin, the decision of the Strasbourg European Court of human rights in the case “Fedorenko V. Russia” and the criminal case of the famous American producer Harvey Weinstein. The article analyzes the “plea bargain” that is used in the United States of America. The problems of implementing the principle of presumption of innocence and ways to solve them are outlined.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

DEFINITIONS OF CATEGORIES PURPOSE AND TASKS OF CRIMINAL PROCEEDINGS IN THE MODERN CRIMINAL PROCESS

2018 ◽  
Author(s):  
Svitlana Patiuк ◽  
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Modern Theory ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Norms ◽  
State Changes ◽  
The Individual ◽  
Goals And Objectives ◽  
Functional Purpose

"Definitions of categories, the goal and objectives of criminal proceedings in modern criminal proceedings" analysed the legal norms and provisions of doctrinal concepts to determine the goals and objectives of criminal proceedings. The author formulated conclusions and generalizations that since criminal proceedings are a sphere of state activity, it depends on the direction of the political course of the state, changes in state policy, which always leads to a change in the ideology of the criminal process as a whole, including the transformation of goals and objectives criminal proceedings. The purpose and objectives of criminal proceedings depend on the historical form of the criminal process, a common feature of which is the ratio of freedom (interests) of the individual and the state, expressed in the procedural position of the main participants in the process. Criminal procedure legislation and doctrine define the resolution of a dispute (conflict) between the state and the accused arising as a result of the commission of a crime as the goal of the criminal process in most countries in which the adversarial nature of criminal proceedings prevails. As the goal of criminal proceedings in the modern theory of criminal procedure, it is proposed to consider the protection of the individual, society and the state from criminal offences in the settlement of criminal-legal conflicts arising as a result of these offences. The goal in the criminal process determines the setting of tasks and represents the ultimate conclusion from the sum of all the tasks being implemented. The task of criminal proceedings should be determined taking into account the functional purpose of the subjects of criminal proceedings, and therefore the task is the fulfilment of his duty by a participant in criminal proceedings, which is determined by his functional purpose, based on the principle of competition of the parties.

On the Consideration of a Criminal Case Against a Minor by Jury

2021 ◽  
Vol 2 ◽  
pp. 90-96
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Case ◽  
Jury Trial ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Scientific Discussion ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The functioning of the jury in Russia has demonstrated not only effectiveness, but also a number of problems that need to be resolved. Such problems include the personal jurisdiction of criminal cases by jury. The article reveals the legal positions of the Constitutional Court of the Russian Federation regarding the right of minors to trial a criminal case in a jury. The approaches to solving this issue that have developed in the judicial practice of individual foreign states are analyzed, the main directions for further scientific discussion regarding the right of minors to a jury trial are outlined. The purpose of the article is to disclose various approaches to the administration of criminal justice in the relations of minors with the participation of lay judges. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted both to the consideration of criminal cases with the jury, and the specifics of juvenile criminal proceedings. Using the comparative legal research method has allowed to reveal various approaches to the access of minors to jury trials in individual states. In Russian legislation and judicial practice the question of the right of minors to have a criminal case against them considered by a jury remains unresolved. The position of the Constitutional Court of Russia regarding the jurisdiction of such criminal cases is also controversial. The experience of foreign countries indicates that there is no universal way to ensure the right of a minor to a proper court. This issue is decided depending on the type of criminal process, the presence or absence of specialized juvenile courts. Any direct borrowing in this regard cannot be considered effective, but a generalization of foreign experience can create the necessary basis for optimizing both the work of the jury and criminal proceedings against minors.

CONCERNING THE STRUCTURE OF PUBLIC LEGAL INTEREST IN CRIMINAL COURT PROCEEDINGS

2021 ◽  
pp. 26-30
Author(s):  
Алексей Викторович Дашин ◽  
Петр Михайлович Малин ◽  
Алексей Васильевич Пивень
Keyword(s):  
Preventive Measures ◽  
Criminal Court ◽  
Public Authority ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
The Public ◽  
House Arrest ◽  
Legitimate Interest ◽  
Court Proceedings ◽  
Constituent Elements

В статье анализируется структура публичного законного интереса в уголовном судопроизводстве, входящих в него элементов на примере института домашнего ареста. Авторская модель публичного законного интереса участников уголовного процесса «привязана» к стадийности и может распространяться не только на вопросы, связанные с мерами пресечения. По мнению авторов, публичный законный интерес в контексте рассматриваемой проблемы воплощается в жизнь на основе нормативно установленного действия, содержащего конкретно сформулированные правила, устанавливающие четко определенные права и обязанности участников правоотношений. Данная деятельность сопряжена с определенными этапами (стадиями), которые в той или иной степени характерны соответствующей мере пресечения, и возможна в той стадии, где осуществляется оценка действий, предпринятых должностным лицом, осуществляющим производство по уголовному делу. Реализация публичного законного интереса, заявленного следователем, дознавателем на избрание домашнего ареста, зависит от того, как соответствующие устремления оценят другие должностные лица - руководитель следственного органа, прокурор (не обладающие правами реализации публичного законного интереса), то есть от их усмотрения. Законодатель не предоставляет следователю, дознавателю возможность «непосредственно» обратиться в суд - участнику процесса, наделенному правом реализовать их устремление на избрание меры пресечения. Подобные «преграды» не предусмотрены в законе для иных участников уголовного процесса, не наделенных публичной властью и стремящихся реализовать свой законный интерес. The article analyzes the structure of public legitimate interest in criminal proceedings, its constituent elements on the example of the institution of house arrest. The author's model of the public legitimate interest of participants in the criminal process is «tied» to the stage and can extend not only to issues related to preventive measures. According to the authors, public legitimate interest in the context of the problem under consideration is brought to life on the basis of a normatively established action containing specifically formulated rules establishing clearly defined rights and obligations of participants in legal relations. This activity is associated with certain phases (stages) that are more or less characteristic of the corresponding measure of restraint, and is possible at the stage where the actions taken by the official conducting the criminal proceedings are evaluated. The realization of the public legitimate interest declared by the investigator, the investigating officer for the election of house arrest depends on how the relevant intentions will be evaluated by other officials - the head of the investigative body, the prosecutor (who do not have the rights to realize the public legitimate interest), i.e. on their discretion. The legislator does not give the investigator, the inquirer the opportunity to turn «directly» to the court - a participant in the process, entitled to realize their intentions for the election of measures of restrain. Such «barriers» are not provided in the law for other participants in the criminal process who are not endowed with public authority and who seek to realize their legitimate interest.

scholarly journals CRIMINAL PROCESS IN A PANDEMIC AND THEN

2020 ◽  
Vol 6 (3) ◽  
pp. 84-90
Author(s):  
V. A. Lazareva
Keyword(s):  
Russian Federation ◽  
New Technologies ◽  
Legal Regulation ◽  
Document Management ◽  
Electronic Document ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
The Russian Federation ◽  
The Government ◽  
Democratic Principles

Due to the emergence of a new coronavirus infection (COVID-19), measures aimed at limiting its spread have made it impossible to administer justice in compliance with its democratic principles, implying the possibility of personal participation of all interested parties in court procedures to effectively defend their interests. In this regard, on April 8, 2020, the Presidium of the Supreme Court of the Russian Federation adopted a decree recommending that the courts, among other measures, intensify the work of Internet receptions, ensure the reception, processing and registration of documents submitted to the courts in electronic form, including in the form of an electronic document, consider cases and materials of urgent nature in court hearings using the video-conferencing system and (or) the web-conference system. Despite the fact that in accordance with the program for the development of the Russian judicial system, approved by Decree of the Government of the Russian Federation dated December 27, 2012 № 1406, the modernization of the work of courts based on digital technologies has already begun in the country, their development in criminal proceedings lags behind other methods of administering justice. Given this circumstance, as well as the actual absence in the criminal process of electronic document management and legal regulation of the grounds and procedure for conducting a trial in the mode of a web conference, the article attempts to determine the limits of the possibilities of using new technologies in criminal proceedings, to substantiate the conclusion that that the use of digital technology in criminal proceedings is not only possible, but necessary, as well as to determine the direction of development of criminal proceedings in this direction.

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