scholarly journals Classifying Actions in Sentencing Based on the Classifying Criterion “Repeated”: Correlation between Criminal Procedural and Criminal Law Aspects

2021 ◽  
Vol 6 ◽  
pp. 3-11
Author(s):  
Iryna Basysta
Keyword(s):  
Supreme Court ◽  
Criminal Court ◽  
Guilty Verdict ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
The Supreme Court ◽  
Legal Effect ◽  
Procedural Code ◽  
State Of Affairs

Presently, different judicial divisions of the Criminal Cassation Court of the Supreme Court offer varying legal conclusions concerning the possibility to classify the actions of a person when sentencing based on the criterion of classification “repeated” varies. This conclusion follows from the analysis of the judicial Decree as of December 11, 2019 (Proceeding No. 51-4204 км 19, Сase No. 274/2956/17) of the Third judicial division of the Criminal Cassation Court, the Decree of the First judicial division of the Cassation Criminal Court as of July 10, 2018 (Proceeding No. 51-2475 км 18, Case No. 545/3663/16-к), and of the Decree as of February 27, 2019 (Proceeding No. 51-5205 км 18, Case No. 695/136/17) of the Second judicial division of the Criminal Cassation Court.Due to such a state of affairs, the already amalgamated division of the Criminal Cassation Court of the Supreme Court was making its own decision in Case No. 591/4366/18 (Proceeding No. 51-1122 кмо 20) on September 14, 2020. Yet, my opinion is that not all arguments and statements of facts provided in this decree can be agreed on without questions.In the process of the research, it was proved that the situation of the judge’s practicing their discretion powers concerning merging criminal proceedings into one proceeding (according to the requirements of Article 334 of the Criminal Procedural Code of Ukraine) is the only exceptional situation that provides for, in absence of the court’s guilty verdict in “the first criminal proceeding,” which for the legal classification of the repeated offence must take a legal effect, using the criterion of classifying the actions of the accused as “repeated” in the “next criminal proceeding.” Otherwise, we should be discussing violation of the constitutional foundation of presumption of innocence in the criminal proceeding and a securing proof of guilt.

scholarly journals Reflections on the Legal Classification of Participants in Criminal Proceedings

Lex Russica ◽  
2021 ◽  
pp. 103-111
Author(s):  
V. S. Latypov ◽  
R. А. Ismagilov
Keyword(s):  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Modern Period ◽  
Foreign Countries ◽  
Administration Of Justice ◽  
Procedural Code ◽  
The Russian Federation

In the paper, the authors attempt to analyze the legislative classification of participants in criminal proceedings. The work contains an analysis of the ratio between the concepts of "participant" and "subject" of criminal procedural relations. Having studied the approaches available in the theory of criminal procedure that existed during the period of the Soviet criminal procedure legislation and in the modern period, the authors conclude that it is unacceptable to identify the concepts of "participant" and "subject" of the criminal proceedings. A participant in a criminal proceeding is a person who has certain characteristics, including the existence of rights, duties and responsibilities, as set out in the relevant criminal procedure norm or group of norms.Having applied the method of comparative legal analysis of domestic and foreign criminal procedure legislation, procedural theoretical constructions of the Soviet and modern period, the authors conclude that the legislator made an error in the presented classification and system of participants in the criminal procedure. In addition to the main criminal procedure functions, the authors focus on the existence of other functions that are no less important for the emergence and development of criminal procedure relations. It is stated that there is a need to change the approach to the legislative classification of participants in criminal proceedings, taking as a basis the existing experience of individual foreign countries. The authors propose to change the structure of section II of the Criminal Procedural Code of the Russian Federation, which makes it possible to avoid the currently existing procedural conflict related to the attribution of the investigator and the inquirer to the prosecution. It may also help to eliminate any doubts about the attribution of persons assisting in the administration of justice to the participants in the proceedings.

scholarly journals The authority of Criminal Cassation Court as part of Supreme Court about sending criminal proceeding from one trial to another

2019 ◽  
pp. 51-61
Author(s):  
N. Syza
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Procedural Law ◽  
Judicial Practice ◽  
Procedural Code ◽  
Court Of Appeal

One of the guaranties of justice by competitive trial is determined in art. 34 Criminal Procedural Code the procedure of sending criminal proceeding from one trial to another in connection with don`t fall within the jurisdiction or another legal circumstance which make impossible justice in this trial or can influence on judge`s impartiality and equity and for the purpose of providing for promptness and effectiveness in criminal proceeding. The purpose of article is: to reveal the authority of Criminal Cassation Court as a part of Supreme Court based on analysis of criminal procedural law and practice their using about sending criminal proceeding from one trial to another. For the results of research was concluding that the authority of Criminal Cassation Court as a part of Supreme Court about sending criminal proceeding from one trial to another steam from norm in art. 34 Criminal Procedural Code which provide for grounds and procedure for deciding whether to refer criminal proceedings to another court. If in a court of appeal or in a petition of a party or a victim the circumstances, which cannot be grounds for referring criminal proceedings to another court, are stated, or the request is made for resolving issues beyond its powers, stipulated by art. 34 of the Criminal Procedural Code, the Criminal Cassation Court as a part of Supreme Court refuses to grant the application (petition). Generalized the most common in judicial practice in the Criminal Cassation Court as a part of Supreme Court instances of refusal in satisfied submission (petition) about sending criminal proceeding from one trial to another, in particular if: appellant don`t have the authority; it`s matter of bringing criminal proceeding together and determining jurisdiction; substantiates the existence of circumstances that may be grounds for the removal of judges, but not for the transfer of criminal proceedings in accordance with art. 34 of the Criminal Procedural Code. Installed that Criminal Cassation Court as a part of Supreme Court at proceeding application (petition) about sending criminal proceeding from one trial to another refuses to satisfy them even in case where the issue of jurisdiction of criminal proceeding has already been resolved by the cassation court before, on similar grounds, justifying it in accordance with the requirement of p.5 art. 34 of the Criminal Procedural Code, disputes over jurisdiction between the courts are not allowed. Was figuring out the legal positions Criminal Cassation Court as a part of Supreme Court about limit in view to considering in art. 34 Criminal Procedural Code; questions about sending criminal proceeding from one trial to another which has already been submitted to a certain court, having carried out during the court residence. Having proposed for broad consideration of the matter, having entrusted the court to provide the Criminal Procedural Code with special procedures sending of criminal proceeding from one side to the last in the stage of pre-trial consideration and review of court decisions.

scholarly journals The use of digital communication technologies in the context of a pandemic as a way to improve the effectiveness of justice

2021 ◽  
Vol 7 (1) ◽  
pp. 95-101
Author(s):  
E. V. Smakhtin
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Information Technologies ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Russian Federation

The article deals with the peculiarities of the activity of courts in making judicial decisions in the context of a pandemic. First of all, we are talking about the wider use of digital and information technologies in criminal proceedings, which have previously been repeatedly recommended by forensic science for implementation in judicial practice. Some recommendations of criminalistics are currently accepted by the Presidium of the Supreme Court of the Russian Federation in its Decision dated April 08, 2020 № 821 and Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of a new coronavirus infection (COVID-19) in the territory of the Russian Federation № 2, which provided appropriate explanations for their use in practice. In particular, we are talking about the possibility of using video conferencing systems for certain categories of criminal cases and materials that are considered urgent, although this is not provided for in criminal procedure legislation. It is concluded that it is necessary to change the current criminal procedure legislation, bring it into line with the Constitution of the Russian Federation, federal constitutional laws, federal laws and subordinate regulatory legal acts, including orders of the Judicial Department under the Supreme Court of the Russian Federation.

scholarly journals Referring a Case to the Highest Division of the Supreme Court in the Criminal Procedure Legislation of Ukraine and European Countries

2021 ◽  
Vol 4 (1) ◽  
pp. 143-165
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
European Countries ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Supreme Court ◽  
Uniform Law ◽  
Grand Chamber ◽  
Court Practice

The article aims to examine one of the elements of the formal mechanism of maintaining court practice unity in criminal proceedings of Ukraine and European countries – referring a case to the highest division of the Supreme Court. Similar to the Ukrainian criminal procedure legislation, the grounds for referring a criminal case and the procedure of its application are provided in the legislation of Estonia, Italy and Lithuania. At the same time, the Ukrainian legislator has established a number of special features, however, the wording of the relevant articles of the Criminal Procedure Code of Ukraine is not perfect. The article provides answers to such questions as how forceful the provisions of criminal procedure legislation of Ukraine are, to what extent of effectiveness the Supreme Court exercises its legal authority regarding the unity of court practice in criminal proceedings, and whether the controversies in legal positions of the structural divisions of the Supreme Court have been successfully avoided. In order to achieve the stated aims, parts 2 and 3 are devoted to the examination of the grounds for referring a case in criminal proceedings of Ukraine and European countries. Part 4 outlines the shortcomings of the content of some articles of the Criminal Procedure Code of Ukraine concerning the procedure of the referral of a criminal case to the highest division of the Supreme Court. Part 5 provides the analysis of the validity of decisions made by the boards of judges at the Supreme Court on the referral of criminal proceedings to its higher judicial divisions – the joint chamber of the Criminal Cassation Court and the Grand Chamber of the Supreme Court. On the basis of the study of the judgements of boards, the judicial chambers of the Criminal Cassation Court and the Grand Chamber of the Supreme Court, in part 6 the question is answered on whether the Supreme Court of Ukraine managed to perform its duty on the assurance of court practice unity in such an area as criminal proceedings. Keywords: exclusive legal problem, development of law, formation of uniform law enforcement practice, the Supreme Court, criminal proceedings, Ukraine.

ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences

2021 ◽  
Vol 28 (3) ◽  
pp. 257-267
Author(s):  
Bohdan V. Shchur ◽  
Iryna V. Basysta
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Method Comparison ◽  
Scientific Basis ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
International Obligations ◽  
Grand Chamber ◽  
The Individual

In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations

Execution of a Sentence in the Structure of Criminal Proceedings: Procedural Stage or Special Court Proceedings?

2020 ◽  
Vol 1 ◽  
pp. 97-106
Author(s):  
V. V. Nikolyuk ◽  
◽  
L. A. Pupysheva ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Self In Relation ◽  
The Supreme Court ◽  
Court Proceedings

The article analyzes the concept of execution of a sentence as an independent stage of the criminal process (the stage of criminal proceedings). Arguments are given that point to its certain illogicality and inconsistency. The authors on the basis of existing legislation and taking into account the positions of Plenum of the Supreme Court additionally reasoned and substantiated the thesis of the existence of the criminal process self in relation to a criminal case of criminal procedure, regulated by Chapter 47 of the Code of criminal procedure.

9 Criminal Justice

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Final Section ◽  
Common Law ◽  
Criminal Court ◽  
Criminal Cases ◽  
The Supreme Court ◽  
The Right

This chapter selects five issues within the sphere of criminal justice to exemplify how the Irish Supreme Court has made its mark in the field. It looks first at the Court’s approach to the principle that prosecutions should be ended if they are unfair to the defendant and then moves to related issues surrounding use of the Special Criminal Court. It considers whether the Supreme Court has done enough to police the Special Criminal Court and whether reforms are necessary in that domain. In examining the Supreme Court’s views on the right to bail and on the admissibility of evidence which has been obtained unconstitutionally or otherwise illegally (with particular reference to the Damache and JC cases), comparisons are made with other common law jurisdictions. A final section looks at the Supreme Court’s position regarding the retrospectivity of declarations of incompatibility in criminal cases.

The Fourth Amendment's Exclusionary Rule: Blurring the Line Between Rule and Exception

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
Liz Heffernan
Keyword(s):  
United States ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Deterrent Effect ◽  
Criminal Proceedings ◽  
Exclusionary Rule ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

The admissibility of unlawfully obtained evidence in criminal proceedings has generated controversy throughout the common law world. In the United States, there has been renewed debate in recent years over the propriety of the judicially-created exclusionary rule as a remedy for violations of the Fourth Amendment guarantee against unreasonable searches and seizures. When defining the scope and purpose of the rule, the US Supreme Court has placed ever increasing emphasis on the likely deterrent effect which suppressing evidence will exert on law enforcement. This article explores the consequent restriction of the exclusionary rule evinced in the contemporary case law including United States v Herring in which the Supreme Court expanded the scope of the so-called "good faith" exception. In conclusion it offers reflection from the perspective of another common law country, Ireland, where the exclusion of unconstitutionally obtained evidence has been the subject of debate.

scholarly journals Classification of crimes in designing criminal procedure regulations

2019 ◽  
pp. 130-137
Author(s):  
A. G. Kulev ◽  
L. O. Kuleva
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Great Influence ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Procedural Code ◽  
The Russian Federation ◽  
Substantive Law

The rules on categorization of crimes are substantive and legal by their nature. Nevertheless, they have a great influence on the state and development of criminal procedural matter. It is proposed to divide the provisions of the Criminal Procedural Code of the Russian Federation, which reflect the provisions of Art. 15 of the Criminal Code of the Russian Federation, into two groups. The first group includes the norms of criminal proceedings that are a kind of logical continuation of criminal law regulations related to exemption from criminal liability and punishment. The second group consists of strictly procedural rules that are not directly dependent on the substantive law: the composition of the bench, jurisdiction and competence of criminal cases, bail hearing, negotiations control and recording, the return of a criminal case to the prosecutor. Particular attention is given to the possibility for the court to change the classification of crimes. Based on the studied theoretical sources and court practice, the authors make suggestions aimed at improving the existing criminal procedure legislation and optimizing its application in the framework of the issues raised.

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