scholarly journals ON A PROSECUTOR AS A SUBJECT OF PROVING ON PRE-TRIAL STAGES OF A NATIONAL CRIMINAL PROCEDURE

2020 ◽  
Vol 12 ◽  
pp. 27-30
Author(s):  
Aleksey A. Zakharyan ◽  
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Scientific Methods ◽  
Foreign Countries ◽  
The Subject ◽  
Forensic Tools ◽  
The Right

The participation of the prosecutor in the criminal process covers both his judicial and pre-trial stages. It is well known that the prosecutor in the Russian criminal process acts as the subject of evidence, not only as the state prosecutor, but mainly as the person conducting the criminal process or observing (supervising) his proceedings in the pre-trial stages of criminal proceedings. In the doctrine of the Russian criminal process, starting with the Charter of the Criminal Procedure of 1864 and up to and including the modern Code of Criminal Procedure of 2001, the prosecutor, to one degree or another, acted as a full-fledged subject of evidence in the preliminary investigation. In the current legal regulation of the prosecutor, despite a number of sign if I can t deformations of his procedural status, it can be attributed to full-fledged subjects of evidence. After the well-known reform of June 5, 2007, which significantly affected the procedural status of the prosecutor at the pre-trial stages of the criminal process, the prosecutor, in the opinion of many well-known procedural scientists (the positions will be given in the presentation of the material), ceased to be a full-fledged subject of proof, since the participation of the prosecutor in evidence is associated with the availability of authority to collect, verify and evaluate evidence. The Russian prosecutor is deprived of forensic tools, he does not have the right to independently collect evidence by carrying out investigative actions, and in relation to the investigation he is deprived of even the authority to give the investigator binding instructions on collecting and verify in evidence. Based on the objectives of the study, the author assesses the content of the powers of the prosecutor as the subject of evidence in the pretrial stages of Russian criminal proceedings When writing the article, the author used general scientific methods (analysis, induction, deduction and others and private scientific methods (formal logical, comparative, legal). Based on analysis of the latest trend since forming the pre-trial stages of the criminal process of foreign countries, it is proposed to clarify the procedural status of the prosecutor in pre-trial proceedings.

scholarly journals On the Prospects for Improving the Stage of Completion of the Preliminary Investigation and the Powers of the Prosecutor

2021 ◽  
Vol 17 (2) ◽  
pp. 70-78
Author(s):  
A. V. Spirin
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Controversial Issues ◽  
Criminal Process ◽  
Historical Experience ◽  
The Right

The article is devoted to the consideration of ways to reform the stage of completion of pre-trial proceedings in the Russian criminal process. The author analyzed proposals on the transfer to the prosecutor of powers to draw up the final document of pre-trial proceedings, the right to bring the accused to trial, and the separation of these activities of the prosecutor into a separate stage of the process. An appeal to the historical experience of legal regulation of controversial issues, an analysis of the norms of criminal procedure legislation of Kazakhstan make it possible to justify the conclusion: most of the proposals considered are premature. At the same time, the powers of the prosecutor at the end of pre-trial proceedings need to be expanded and specified.

scholarly journals ON THE USE OF VIDEOCONFERENCING IN PRE-TRIAL CRIMINAL PROCEEDINGS

2020 ◽  
Vol 16 (4-2) ◽  
pp. 67-76
Author(s):  
Регина Шагеева
Keyword(s):  
Preliminary Investigation ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Dialectical Logic ◽  
Advantages And Disadvantages ◽  
Judicial Practice ◽  
Foreign Countries ◽  
Legal Foundations ◽  
Challenging Situation ◽  
The Right

An urgent issue at the current stage of the development of criminal procedure is the use of videoconferencing in pre-trial criminal proceedings. The interest in this topic is caused both by the lack of legal regulation and ongoing discussions in the scientific community, as well as by the emerging and challenging situation with regard to the threat of coronavirus infection. In the context of the pandemic, the Court has acquired the right to conduct all criminal proceedings using videoconferencing systems, and investigators and interrogators are prevented from using remote technologies even during such an investigative action as an interrogation. This problem requires research and resolution by both scientists and legislators. Purpose: to analyze and develop scientific and legal foundations for the use of videoconferencing in pre-trial criminal proceedings. Methods: the author uses empirical methods of comparison, description, interpretation as well as theoretical methods of formal and dialectical logic. Results: the study makes it possible to trace the gradual increase in the use of videoconferencing in criminal proceedings, to analyze the advantages and disadvantages of the introduction of remote technologies at the preliminary investigation stage, to identify gaps in the legal regulation of this issue in criminal proceedings, to propose a solution to the problem taking into account the emerging judicial practice, and the legislation of a number of foreign countries.

scholarly journals The victim’s rights in the use of coercive measures during pre-trial investigation in the Republic of Kazakhstan

2020 ◽  
Vol 2 (2) ◽  
pp. 197-202
Author(s):  
Yerbol Omarov ◽  
Adil Inkarbekov
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
Coercive Measures ◽  
Institu Tions ◽  
The Republic ◽  
The Right

Kazakhstan has adopted a policy of procedural economy, which is expressed in the acceleration of the pas-sage of criminal cases at all stages of the criminal process. The introduction of many new procedural institu-tions and forms of pre-trial investigation, the updating of criminal procedure legislation actualizes the issue of investigating the procedural status of the victim. The modern domestic criminal process should provide a balance between numerous novelties and procedural rules designed to ensure compliance with the principle of competition and equality of the parties to the prosecution and defense. In accordance with this principle, "the parties involved in criminal proceedings are equal, that is, they are given equal opportunities to defend their position in accordance with the Constitution of the Republic of Kazakhstan and the CPC. The authors have studied international documents regarding the regulation of the rights of victims in criminal proceedings. The victim is one of the Central figures in the criminal process, especially if it is a crime against the person, and must have broad rights to protect their interests. In this regard, the issue of choosing a preventive measure against a suspect (accused), taking into account the opinion of the victim, is of particular importance. The authors studied the opinions of scientists and practitioners on the issue under consideration, as well as the provisions of criminal procedure legislation regulating the rights and obliga-tions of the victim, the ratio of General and special norms. As a result, the authors concluded that it is necessary to grant the victim the right to Express his opinion on the use or non-use of coercive measures against the suspect. In the course of studying this issue, the authors applied methods of comparative analysis, deduction, forecasting, and others. On the basis of the research, appropriate recommendations were developed to improve the legal regulation of the rights of the victim in criminal proceedings of the Republic of Kazakhstan.

REVIEW ON THE MONOGRAPH OF OLEKSANDR TORBAS �DISCRETION IN THE CRIMINAL PROCESS OF UKRAINE: THEORETICAL JUSTIFICATION AND PRACTICE OF IMPLEMENTATION�

2020 ◽  
Vol 10 (4) ◽  
pp. 147-150
Author(s):  
Iryna Hloviuk ◽  
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
Criminal Process ◽  
Procedural Law ◽  
Current Period ◽  
Legitimate Interests

Current period of development of the legal system of Ukraine is characterized by variability of legislation that regulates, in particular, organization of judicial system and implementation of criminal proceedings. Unfortunately, criminal procedure legislation is no exception, given how many changes and additions have been made to the Criminal Procedure Code of Ukraine since its entry into force in 2020. Undoubtedly, like any other codified legal act, CPC of Ukraine in modern conditions cannot be unchanged, given the dynamics of public relations, the provisions of international law, decisions of ECtHR and number of attempts to solve identified problems of its application. Difficulties of criminal procedural law enforcement are manifested in such an area as the use of discretion of authorities in criminal proceedings, although without it application of legislation is ineffective. At the same time, lawful discretion in criminal proceedings should not turn into its opposite � arbitrariness, which will already violate rights and legitimate interests of individuals and legal entities. In criminal proceedings, given the imperative method of legal regulation and possibility of various coercive measures, including those related to the restriction of constitutional human rights, this issue is of particular importance, given, inter alia, that prosecution�s discretion applies within non-adversarial procedure, and the CPC of Ukraine does not always provide for the possibility of appealing such decisions in court. The peer-reviewed monograph consists of four chapters, which contain 10 sections. Structuring of the monograph is logical; the author analyse problems of discretion from questions of concept, signs and limits of discretion, and then moves to the characteristic of realization of discretion by judge, prosecutor, investigator, detective. In general, without a doubt, the monograph of Torbas O. O. �Discretion in the criminal process of Ukraine: theoretical justification and practice of implementation� is relevant, complete and fundamental scientific work, has scientific and practical value. Monograph of Torbas O.O. significantly enriches criminal procedure doctrine regarding the subjects of criminal proceedings, criminal procedure decisions and other areas.

scholarly journals ON SOME COMMENTS ON THE NORMATIVE FORMULATIONS FOR THE PURPOSE OF CRIMINAL PROCEEDINGS

2021 ◽  
Vol 17 (1(63)) ◽  
pp. 127-133
Author(s):  
Виктор Николаевич ГРИГОРЬЕВ
Keyword(s):  
Russian Federation ◽  
Justice System ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legal Situation ◽  
Law Enforcement Officials ◽  
The Subject ◽  
The Russian Federation

The purpose of Russian criminal proceedings, which is very important among the modern social and legal institutions, is nevertheless deficient in its legal and regulatory form. It is noted that in the modern situation, some formulations of the purpose of criminal proceedings have come into conflict with the real social and legal reality. Purpose: to resolve contradictions between the formulations of the purpose of criminal proceedings and the actual social and legal reality. Methods: the author uses the methods of dialectical and formal logic, comparison, description, observation, interviewing, experiment, analysis, interpretation. Results: a theoretical basis has been developed for the choice, in the event of a conflict between the formulations of the purpose of criminal proceedings and the actual social and legal situation, of whether to change the normative formulation of the purpose of criminal proceedings or whether to change the procedure itself. In choosing the subject of reform, preference is given to traditional Russian values. Modern trends in Russian criminal proceedings do not fully reflect the needs of civil society in the Russian Federation. It is more accurate to assume that this is the result of a system of departmental and bureaucratic measures to distribute influence and burden. From a humanitarian standpoint, it would be more correct to return the criminal justice system to a state where it will again reflect the lost purpose, in particular, protecting individuals from unlawful accusations. The first step should be to remove from law enforcement officials the obligation to be unilateral in the examination of evidence and to represent only one party – the accusation (Chapter 6 of the Criminal Procedure Code of the Russian Federation), as well as to remove the normative prohibition for the preliminary investigation and inquiry bodies to gather evidence defending the accused (Part 2 article 15 of the Criminal Procedure Code of the Russian Federation).

scholarly journals The subject of judicial control in consideration of complaints: controversial issues of legal regulation

2021 ◽  
Vol 2021 (2) ◽  
pp. 104-109
Author(s):  
El'vira Mirgorodskaya
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation

The purpose of this study was an attempt to theoretically understand the subject of judicial consideration of complaints against decisions, actions (inaction) of officials carrying out criminal prosecution. The research was carried out on the basis of comparative legal, formal logical, empirical, statistical methods. Judicial statistics for the year 2020 have been provided, and legislation has been studied from a historical and contemporary perspective, taking into account the practice of the Constitutional Court of the Russian Federation. The problem is that, in practice, for about 20 years the courts have had difficulties in determining the subject of complaints, since neither in theory nor in practice a consensus has been developed on this issue. The Criminal Procedure Code of the Russian Federation also does not contain a definition of the concept of «subject matter». The situation is aggravated by the presence of evaluative concepts in the text of the law, leading to a varied understanding of the subject of appeal by the courts, which leads to a violation of the constitutional rights of citizens at the pre-trial stages of criminal proceedings. In the article, taking into account the analysis of the practice of the Constitutional Court of the Russian Federation, legislation and the opinion of scientists, a recommendation was made to amend the Criminal Procedure Code of the Russian Federation to specify the subject of consideration of complaints in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation in order to eliminate existing contradictions in practice and increase the level of protection of individual rights in pre-trial proceedings.

scholarly journals On the peculiarities of the regional lawmaking process

2020 ◽  
pp. 25-38
Author(s):  
Olga Anatolevna Fomicheva
Keyword(s):  
Russian Federation ◽  
Process Analysis ◽  
Legal Regulation ◽  
Scientific Methods ◽  
Analysis And Synthesis ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
Legislative Initiative ◽  
The Right

The subject of this research is practice of the constituent entities of the Russian Federation applied in legal regulation of lawmaking process. Analysis is conducted on legislation of the constituent entities of the Russian Federation regarding the establishment of their rights to realization of the legislative initiative. The author’s arguments on carrying out the analysis of regional legislation with regards to establishment of a circle of subjects with the right of legislative initiative are grounded on the scholars’ opinion that the status of the subject of realization of legislative initiative is special. The fact of recognition of the subject of lawmaking process as a subject of legislative initiative is a juridical fact bot only for acquisition of the right to introduction of a bill, but also guarantees for participation in lawmaking process of the parliament. Therefore, establishment of a circle of subjects with the right of legislative initiative is crucial in determination of peculiarities of the regional lawmaking process. Application of the general scientific methods of analysis and synthesis, allowed arranging the circle of the subjects of lawmaking process into groups, as well as formulate a conclusion on the specificities of setting rules for the lawmaking process realized in constituent entities of the Russian Federation. The philosophical methods of cognition of legal reality allowed determining the general rules of lawmaking process, summarize the acquired data, and comprehensively examine the research materials. Having analyzed the practice of legal regulation, the author identified the flaws in terminology used in practice of the constituent entities of the Russian Federation. Recommendations are made to pay closer attention to ambiguity of legislation in some regions of the Russian Federation. A conclusion is formulated on the positive experience that can become an example for other constituent entities of the Russian Federation in setting rules for the lawmaking process.

scholarly journals To the question of the implementation of the right to protection of minors, victims of crime

2020 ◽  
Vol - (1) ◽  
pp. 41-44
Author(s):  
A.I. Glushkov ◽  
◽  
E.E. Smekina ◽  
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Legal Literature ◽  
Victims Of Crime ◽  
The Right

The article is devoted to the analysis of issues of legal regulation and the realization in modern conditions of the rights to protection of adolescents who have suffered as a result of the crimes committed against them. Legal literature, legislative acts, as well as judicial and investigative practice on this issue have been analysed. On the basis of the study, problems of ensuring the right to protection of juvenile victims in criminal proceedings were identified, as well as proposals for improving the norms of criminal procedure legislation regulating this sphere of activity and their application were justified.

scholarly journals THE IMPLEMENTATION OF THE ADVERSARIAL PRINCIPLE AT THE PRE-TRIAL STAGES OF CRIMINAL PROCEEDINGS IN THE RUSSIAN FEDERATION AND IN FOREIGN COUNTRIES

2020 ◽  
Vol 16 (3) ◽  
pp. 108-119
Author(s):  
Ирина Попова ◽  
Анастасия Иванова
Keyword(s):  
Practical Interest ◽  
Legal Regulation ◽  
Regulation Mechanism ◽  
Criminal Proceedings ◽  
Scientific Methods ◽  
Foreign Countries ◽  
The Social ◽  
Criminal Procedure Law ◽  
Legitimate Interests ◽  
General Scientific

To achieve the purpose of criminal proceedings, law enforcers must have an arsenal of procedural tools in order to ensure the operation of the legal regulation mechanism. The system of principles of criminal proceedings, serving as the basis for the effective operation of the norms of criminal procedure law, includes the adversarial principle. The implementation of this principle has a number of features in pre-trial proceedings. In this aspect, a comparative study of the adversarial principle in national criminal proceedings and in foreign criminal proceedings is of both scientific and practical interest. Purpose: analysis of the adversarial principle at the pre-trial stages in national and foreign criminal proceedings, as an element of the legal regulation mechanism. Methods: dialectic methods as a general scientific method of cognition, as well as specific scientific methods: interpretation method, comparative legal, technical legal, formal logical in their various combinations. Results: the study reveals that the adversarial principle operates in various types of criminal process in the mechanism of legal regulation of Russia and foreign countries. To achieve the social purpose of criminal proceedings, which provides for the protection of rights and legitimate interests, the adversarial principle must be implemented, including at the pre-trial stages of criminal proceedings.

scholarly journals Institute of consent with accusation in criminal proceedings of Russia and foreign countries

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Sergey F. Shumilin ◽  
Petr A. Kolmakov ◽  
Aleksander A. Nasonov ◽  
Ekaterina A. Novikova ◽  
Oksana S. Shumilina
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Study ◽  
Procedure Code ◽  
Foreign Countries ◽  
Alternative Measures ◽  
Legal Consequences

The current study attempts to present the effects of a comparative legal study regarding the legal consequences of consent with accusation in Russia and foreign countries' criminal processes. It has been established that the institution of consent with accusation in the Russian criminal process does not have a significant effect on its reduction, and also does not determine the development and application of alternative measures of punishment for committing crimes. According to the current Criminal Procedure Code of Russia, consent with accusation concerning committing crimes of small and medium gravity entails the same consequences: release from criminal liability and reduction of the amount of punishment. Following the principle of fairness, the authors substantiated the most appropriate alternative penalties provided by the criminal procedure legislation of Germany and France.

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