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 Can the Fight Against Crime Act as a Paradigm for the Legal Model of the Prosecutor's Activity?

2021 ◽  
Vol 15 (5) ◽  
pp. 613-623
Author(s):  
Nina Manova ◽  
Anna Churikova ◽  
Iraida Smolkova
Keyword(s):  
Law Enforcement ◽  
Preliminary Investigation ◽  
Real Life ◽  
Criminal Prosecution ◽  
Special Role ◽  
Criminal Proceedings ◽  
The Public ◽  
Life Model ◽  
Legal Model ◽  
The Russian Federation

The prosecutor plays a special role in counteracting crime, being the public officer whom the state made responsible for coordinating the activities of all law enforcement bodies, as well as for the legality and validity of criminal prosecution against persons who committed crimes. Today, alongside the legal model of the prosecutor’s activity provided for in the Criminal Procedure Code of the Russian Federation according to which the prosecutor performs the function of criminal prosecution nominally and is, in fact, removed from the participation in the pre-trial stages of the criminal process, there has also developed a rather autonomous real-life model of the prosecutor’s activities. In practice, the prosecutor still has an opportunity to influence the decisions regarding the initiation of a criminal case and indictment at the stage of preliminary investigation. The study of a prosecutor’s participation in the pre-trial proceedings, a survey of prosecutors, investigators and inquiry offices made it possible to conclude that rights and legal interests of the participants in the process are often sacrificed for the sake of indicators of the effectiveness of criminal prosecution and crime solving rates. The authors analyze the causes of this situation and reveal the drawbacks in the current normative model of the prosecutor’s activity. This analysis allowed them to conclude that there should be no conflict between such determinants of a prosecutor’s activity as counteracting crime and ensuring the rights of the participants of criminal proceedings if the legal model of the prosecutor’s activity is well-considered and carefully drawn. The lawmakers should see their task in finding a reasonable and clear balance between the abovementioned values; the absence of such a balance will inevitably result in a repressive approach to crime counteraction, which is absolutely unacceptable for the modern legal state. The authors describe the factors which, if taken into account, will make it possible to eliminate key problems of the legal model of the prosecutor’s work as well as the distortions and errors in its enforcement. They make a number of suggestions aimed at designing a model of the prosecutor’s activities that would contribute to effective crime counteraction without violations against rights and legal interests of persons in the sphere of criminal proceedings.

Judicial Nature of Evidence in Criminal Proceeding

2019 ◽  
Vol 10 (7) ◽  
pp. 1976
Author(s):  
Valery P. GMYRKO ◽  
Mykola Ye. SHUMYLO ◽  
Viacheslav V. VAPNIARCHUK ◽  
Oksana V. KAPLINA ◽  
Vasily P. SHYBIKO
Keyword(s):  
Law Enforcement ◽  
Procedural Knowledge ◽  
Judicial Interpretation ◽  
Criminal Proceedings ◽  
Proper Understanding ◽  
Legal Structure ◽  
Procedural Law ◽  
Legal Nature ◽  
Human Thinking ◽  
Fact Finding

The urgency of the problem stated in the article is conditioned by the necessity to determine the legal nature of the evidence in criminal proceedings and the evolution of the views of domestic scientists on this legal phenomenon. The purpose of the article is to consider the legal nature of the evidence in criminal proceedings and to determine their legal structure. The main approach to the study of this problem was to conduct a methodological analysis of the phenomena of ‘concept’ and ‘definition’, on the basis of which it was argued that judicial evidence has no essence, and only the function of being a symbolic representative of a certain factum probans (from Latin – something that should be proved). The publication concludes that the evidence in criminal proceedings is the result of human thinking operations and can be represented by the methodological construction ‘composition of criminal-judicial evidence’, which includes regulatory-procedural, knowledge, fact-finding and judicial-interpretation segments. In addition, the opinion expressed the inappropriateness of fixing evidence in the criminal procedural law and proposed a pragmatic approach to this issue, which is in line with current European jurisprudence. The materials of the article represent both theoretical and practical value. They can be used for further scientific investigation of evidence in criminal proceedings, as well as for a proper understanding and enforcement of law enforcement criminal proceedings.  

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

scholarly journals Discretionary Model of Legal Regulation of a Criminal Case and Criminal Prosecution Termination: Pro et Contra

2020 ◽  
Vol 15 (11) ◽  
pp. 214-222
Author(s):  
G. N. Kucherov
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Enforcement Officer ◽  
The Russian Federation ◽  
Law Enforcement Officer ◽  
The Law

The paper discusses the issues of choosing the most effective model of criminal proceedings termination, analyzes the proposed in the scientific literature model of refusal of the discretion of the law enforcement officer when making an appropriate procedural decision. The author, based on the practice of the European Court of Human Rights, the Constitutional Court of the Russian Federation and the decisions of the Plenum of the Supreme Court of the Russian Federation, studies the relationship between the principle of justice and the legality of procedural decisions to terminate a criminal case and criminal prosecution. The author concludes that the discretionary model of legal regulation of a criminal case and criminal prosecution termination is an effective means of achieving the purpose of criminal proceedings, allowing the law enforcement officer to make a fair decision, given the nature, degree of social danger of the crime, the circumstances of its commission, information about the identity of the person who committed the crime. Refusal of the discretion of the law enforcement officer in the matter of terminating a criminal case will not only not contribute to the humanization of legislation, but will mark the victory of formalism over justice in criminal proceedings.

scholarly journals Initiation of Criminal Proceedings against a Particular Person as the Ground for Recognizing him as a Suspect (para 1, part 1, art. 46 of the Criminal Procedure Code of the Russian Federation)

Lex Russica ◽  
2021 ◽  
pp. 71-78
Author(s):  
I. V. Smolkova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Statistical Data ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Status ◽  
Legitimate Interests ◽  
The Russian Federation

The paper is devoted to the analysis of a new ground for recognition of a person as a suspect, introduced under the Code of Criminal Procedure of the Russian Federation, namely, the initiation of a criminal case against the person. The ground under consideration has caused controversial debates among criminal process scholars. The author has carried out a retrospective analysis of the legislative regulation of this ground for giving a person the status of the suspect. The paper evaluates various doctrinal approaches to its merits and disadvantages. The author also demonstartes the need for the new ground for recognition of a person as the suspect in law enforcement on the basis of statistical data, according to which more than half of criminal cases in Russia are initiated against a particular person. The study at question reveals an interconnection between initiation of proceedings upon commission of a crime and a particular person. The conclusion is substantiated that the recognition of a person as a suspect in case of initiation of criminal proceedings against him is aimed at ensuring his right to protection from criminal prosecution. However, the issuance of the order to initiate criminal proceedings against a particular person entails the possibility of implementation of coercive criminal procedural measures against him. It is shown that suspicion forms the substantive basis of recognition of a person as the suspect. The author criticises the approach according to which the issuance of the order to initiate criminal proceedings against a particular person forms an allegation that he has committed an act prohibited under the criminal law. Under this approach the assumption is made that can later be either proven or refuted in the course of further investigation. The author criticises the practice of dividing criminal cases into a judicial perspective and lacking such a perspective, which entails violations of the rights and legitimate interests of individuals suspected in committing crimes.

scholarly journals The Prosecutor as a Subject of Prosecution in the Civil Procedural Order

2020 ◽  
pp. 98-106
Author(s):  
Irina I. Golovko ◽  
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
The Government

Based on the results of the study of federal regulatory legal acts and judicial practice, the author of the article substantiates the conclusion about the advisability of applying the concept “prosecution” to the activities of the prosecutor participating in hearings in civil-law cases. At present, only criminal prosecution by the prosecutor is enshrined in Article 37 of the Criminal Procedure Code of the Russian Federation. There are research works that justify administrative prosecution by the prosecutor. With regard to the prosecutor’s participation in the consideration of cases by courts outside of criminal proceedings, the issues of defining the role of the prosecutor as a subject of prosecution have not been raised in research. However, in connection with the enactment of laws on anti-corruption, on the reversion of civil servants’ property to the government, the issues of understanding the role of the prosecutor involved in civil proceedings acquire particular importance. In addition, civil liability has been established for offenses, e.g., in the form of liquidation of a legal entity by a court decision issued at the request of the prosecutor. The prosecutor is empowered to initiate the consideration of a case by the court upon the request to bring the perpetrator to civil liability, and the practice of considering such cases by the courts is being formed. In this regard, it is necessary to investigate the identified problem. The aim of this study was to analyze the approaches in the science of prosecutor’s activities, to form a conception of the prosecution by the prosecutor of persons who, according to the prosecutor, are guilty of committing an offense in the consideration of cases by courts in civil proceedings. As a result of the study, the features of the prosecutor’s participation in anti-corruption cases in civil proceedings that characterize the prosecutor’s activities as the prosecution of persons accused – by the prosecutor – of committing corruption offenses have been established. Attention has been drawn to other categories of civil cases in which the prosecutor also conducts prosecution. It has been emphasized that the prosecution is conducted only if the prosecutor applies to the court with a statement of claim, but not in the case of joining the case to give an opinion. The conclusion is made that there are theoretical and legal preconditions for separating the prosecution by the prosecutor in the civil procedural order. The established patterns and findings are aimed at ensuring the unity of approaches to defining the aims and objectives of the prosecutor’s activities in diverse directions, which contributes to increasing the efficiency of the prosecutor’s activities as a whole.

Conceptual problems of the rehabilitation institute in criminal proceedings

2020 ◽  
pp. 278-286
Author(s):  
Anton Fedyunin ◽  
Natalya Peretyatko
Keyword(s):  
Law Enforcement ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Legal Analysis ◽  
Legal Basis ◽  
Criminal Proceedings ◽  
Legal Nature ◽  
Legitimate Interests ◽  
Conceptual Problems ◽  
Industry Affiliation

We consider procedural and legal problems of ensuring the rights and legitimate interests of the rehabilitated person in criminal proceedings. The purpose of the work is to study the problems of industry affiliation of the rehabilitation institute, the grounds for rehabilitation, and analyze the phi-losophical and ethical categories that make up the legal basis of the rehabili-tation institution. We analyze the legislative regulation of the rehabilitation institution and identify contradictions in the current legislation in the studied sphere of legal relations, as well as focus on the possibility of violating the rights and legitimate interests of rehabilitated person stipulated by law. The methodological basis of the study consists in the use of traditional general logical and special legal methods – logical, formal and legal, analysis and generalization of law enforcement practice. We propose the author’s concept about the nature and legal nature of the rehabilitation institution as an inter-disciplinary institution, which consists in the fact that rehabilitation consists in the idea of complete innocence. A literal (adequate) interpretation of the concept of rehabilitation in this case means the presence of three key ele-ments: 1) the criminal prosecution of a person was unfair (illegal, un-founded); 2) the application of measures of criminal procedural coercion and (or) criminal punishment to him was illegal (unreasonable); 3) there were no grounds for prosecuting him, or there were grounds for excluding him. The study allows us to conclude that the rehabilitation institution of innocent needs further improvement, based on its thorough legal regulation, since, be-ing an interdisciplinary institution, it can ensure the observance and respect of the rights and freedoms of individuals and citizen only if the contradictions in the current legislation are eliminated.

scholarly journals HYPERBOLIZATIONOF THE ACT OF THE COMMENCEMENT OF PRELIMINARY INVESTIGATION AS A NEGATIVE FACTOR TO THE REALIZATION OF A STAGE OF A CRIMINAL CASE

Issues of Law ◽  
2020 ◽  
Vol 20 (2) ◽  
pp. 103-112
Author(s):  
L. L. Abramova ◽  
Keyword(s):  
Law Enforcement ◽  
Negative Impact ◽  
Preliminary Investigation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Constitutional Courts ◽  
The Russian Federation ◽  
Initiation Stage ◽  
Formal Procedures

In the article, the author returns to the discussion of the need to formalize an act on the initiation of a new criminal case on the grounds of an additional detected crime or a newly established person during the investigation of the “main” case. Based on the analysis of law enforcement practice, the inefficiency of the current procedural mechanism for initiating criminal proceedings when a number of formal procedures are performed is demonstrated. The content of the article consistently analyzes the legal positions of the Supreme and constitutional Courts of the Russian Federation, the provisions of retrospective and current criminal procedure legislation, certain aspects of departmentalregulation, the opinions of authoritative scientists, and the positions of practitioners. Based on these arguments, the thesis is formulated that the reasons for this situation have developed historically and are due to the hyperbolization of the meaning of the act on the beginning of a preliminary investigation in modern legislation and law enforcement practice. This has an extremely negative impact on the effectiveness of criminal proceedings in General, and does not contribute to the implementation of the tasks of the criminal case initiation stage in particular. The author focuses on the fact that the institution of criminal proceedings and criminal prosecution should not be equated. The decision to initiate a criminal case may contain an initial, hypothetical qualification of the committed act, which should not create obstacles to the” testing “ of a person in one proceeding for involvement in the Commission of several similar acts and subsequently the presentation of a single charge in one case.

scholarly journals Public Prosecution in the System of Criminal Procedural Functions

2019 ◽  
pp. 183-193
Author(s):  
V. N. Isaenko
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Semantic Content ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
Procedural Law ◽  
Procedural Code ◽  
The Russian Federation ◽  
Definition Of

The paper discusses the concept and types of criminal procedural functions, analyzes the points of view of legal scholars who at various times formulated the corresponding definition. According to the author, the semantic content set by the legislator is set forth in Art. 5 of the Criminal Procedural Code of the Russian Federation is an important contribution to the improvement of the conceptual apparatus of criminal procedural law; it is intended to ensure uniformity of interpretation of the concepts they designate and, consequently, uniformity of action of the relevant criminal procedure institutions. At the same time, the Criminal Procedural Code of the Russian Federation has no definition of the concept of criminal procedure function. Based on the analysis of the norms of the Criminal Procedural Code of the Russian Federation and the opinions of jurists who expressed opinions on the concept of the criminal procedure function, it is proposed to include an additional clause in Art. 5 of the Criminal Procedural Code of the Russian Federation that would contain this concept in the proposed edition of the author. It is also proposed to divide the criminal procedural functions into two groups in connection with their performance by the participants of the criminal process both at the pre-trial and at the trial stages. The opinion is expressed on the independent nature of the function of assisting criminal proceedings carried out by its other participants, referred to in Ch. 8 of the Criminal Procedural Code of the Russian Federation. The content of the function of supporting public prosecution as a form and stage of criminal prosecution and its place in the system of other criminal procedure functions are analyzed. The author proposes a definition of the concept of public prosecution, which is considered as a necessary element and at the same time as a special form of the function of the prosecution in criminal proceedings. This activity differs significantly in terms of tasks, subject and conditions of execution from the accusatory activities of the investigating officer, investigator, body of inquiry in pre-trial proceedings.

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".

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