scholarly journals The Procedural Status of a Specialist and Its Legal Regulation in the Modern Russian Criminal Procedure Law

Russian judge ◽  
2020 ◽  
Vol 11 ◽  
pp. 22-26
Author(s):  
Oksana Yu. Vatutina ◽  
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Essential Elements ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
Constituent Elements ◽  
Goals And Objectives

This article examines the specifics of legal regulation of the procedural status of a specialist in the criminal procedure law of Russia. It is pointed out that the procedural status of a specialist is not sufficiently regulated in relation to the procedural status of an expert as participants in criminal proceedings. The author reveals the essential elements of the procedural status of a specialist as a person with special knowledge and its legal uncertainty. The article analyzes the constituent elements of the procedural status of a specialist, which include not only the rights and obligations of a specialist, but also guarantees of their implementation. The significance of the goals and objectives of the specialist’s participation in the criminal process as elements of its procedural status is revealed. The procedural function of a specialist is defined as the function of promoting justice. The article presents and analyzes the data of judicial practice on the issue of assessing the admissibility of the conclusion and testimony of a specialist as evidence in a criminal case, in the context of the implementation of elements of the procedural status, that is, in terms of competence, disinterest, responsibility of the specialist, goals and objectives of his participation in the process. The author reveals the ambiguity of judicial practice in the issue under study, as well as the tendency to deny the evidentiary value of the conclusion and testimony of a specialist, due to the lack of the necessary level of regulation of the procedural status of a specialist in the current legislation. The author defines the regulation of the procedural status of a specialist in the current legislation as an element of the procedural status itself, identifies its insufficiency, and formulates a thesis about the need for its proper regulatory regulation in modern criminal procedure legislation.

scholarly journals Formation of Real Legal Regulationin the Practice of Criminal Procedure Law

2018 ◽  
Vol 5 (2) ◽  
pp. 125-130
Author(s):  
V S Shadrin
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
Legal Norms ◽  
Procedural Law ◽  
Criminal Procedure Law

The article explains the recognition of the criminal procedure law as the only source of criminal procedural law, examines the content of legal regulation in criminal cases as part of legal norms, legal relations and individual requirements, demonstrates how the model of criminal proceedings, fixed in the criminal procedure law, turns into a real criminal -process law.

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.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

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 Topical Issues of Interpretation of the Criminal Procedure Norms on the Basis of Judicial Practice Taking into Account the International and Russian Components

2020 ◽  
Vol 9 (3) ◽  
pp. 46
Author(s):  
Tatyana Gennad’evna Borodinova ◽  
Anna Alexandrovna Petrikina ◽  
Vladimir Vladimirovich Borodinov ◽  
Irina Vladimirovna Gubko
Keyword(s):  
Law Enforcement ◽  
Practical Importance ◽  
Criminal Procedure ◽  
Information Support ◽  
Digital Information ◽  
Criminal Proceedings ◽  
Systematic Analysis ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
First Time

The research reveals the peculiarities of interpretation of the criminal procedure norms emphasizing the practical importance. Its purpose is to identify and solve problems of law enforcement in criminal proceedings. The nature and types of interpretation of the criminal procedure norms were subjected to a detailed analysis based on the judicial and investigative practice. Difficulties with interpretation of the criminal procedure norms in connection with the legislative gaps, difficulties in the process of interpreting the cross-industry terms lack of digital information support of the newly published acts interpreting the norms of law and establishment of specific terms for its implementation, were singled out as separate problems. The use of a set of methods of scientific cognition was promotive of the achievement of the result. The conclusions show that the competent interpretation and application of the criminal procedure law by the courts, taking into account the specifics of this branch of law, can increase the efficiency of justice. The scientific novelty of this research is that for the first time, in an integrated manner and on the basis of a systematic analysis of the practice of interpretation and application of the norms of criminal law. It is planned to formulate proposals and recommendations to improve the work of the courts, law enforcement bodies and the advocacy suggesting specific measures to optimize the said direction.

scholarly journals APPLICATION OF SAFETY MEASURES TO PARTICIPANTS IN CRIMINAL PROCEEDINGS ON THE PART OF THE DEFENCE

2019 ◽  
Vol 29 (6) ◽  
pp. 823-829
Author(s):  
F.F. Zaripov
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Separate Group ◽  
Criminal Proceedings ◽  
Safety Measures ◽  
Criminal Process ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Rights And Interests

The article formulates the problems of procedural regulation of ensuring the safety of participants in criminal proceedings on the part of the defense in the process of criminal proceedings. It is noted that despite the hasty division of the participants in the criminal process into groups in accordance with the procedural function performed by them, the need to separate the participants in criminal proceedings standing upon the interests of the defense into a separate group is not disputed. Attention is drawn to the fact that the principle of protecting the rights and freedoms of man and citizen in criminal proceedings does not fully regulate the adoption of appropriate measures to ensure the safety of participants in the criminal process for the realization of their rights and interests. The necessity of making amendments and additions to the Code of Criminal Procedure of the Russian Federation (as the main source of criminal procedure law), as well as a number of other legislative acts related to the protection of human and civil rights and freedoms and to ensuring the safety of participants in criminal proceedings in all areas, is substantiated.

scholarly journals Court Discretion as Part of the Criminal Procedure Paradigm Structure

Legal Concept ◽  
2019 ◽  
pp. 166-173
Author(s):  
Ekaterina Azarova
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Fundamental Rights ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Law ◽  
Goals And Objectives

Introduction: the fundamental rights of citizens enshrined in the Constitution are accordingly reflected in the Code of Criminal Procedure of the Russian Federation. For more than fifteen years of the Code of Criminal Procedure application, the legislator has made about three hundred amendments that have increased its ambiguity and inconsistency. The very construct of its provisions is being built and in progress without a planned scientific and theoretical component of such building, without taking into account the empiricism of application. The Code of Criminal Procedure of the RSFSR was used as a constructive basis for the new law, where the stages of criminal process are the fundamental structure of the law. The presence and introduction of new types of judicial proceedings and related institutions as an additional “load” caused the “deflection” of the entire structure of the Criminal Procedure Code, the consequence of which was the increase of unceasing contradictions between the goals and objectives of criminal proceedings, its general conceptual provisions and the criminal process immediate stages. The author sets the purpose of the study, which consists in the justification of contradictions in the law. Methods: the methodological framework consists of the methods of historicism, systematicity, and comparative law. Results: grounded in the work the author’s point of view is based on the knowledge in criminal law. Conclusions: the study revealed that the court discretion is an integral part of the criminal procedure paradigm structure, as the perception by the court of the “truth” of the circumstances to be proved in a criminal case, interpreted by the opposite parties of the adversarial process, is only possible through the prism of assessing these circumstances by the court at its discretion, during the verification of evidence in a particular criminal case.

scholarly journals The system of pre-trial proceedings in the criminal proceedings of the Russian Federation: Factors of formation

2021 ◽  
Vol 12 (3) ◽  
pp. 621-642
Author(s):  
Sergey B. Rossinskiy ◽  
Keyword(s):  
Law Enforcement ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Direct Result ◽  
Chaotic Mixing ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Criminal Procedure Law ◽  
Problems Of Practice

The article is devoted to the analysis of historical prerequisites that predetermined the distinctive nature of the national system of Russian pre-trial proceedings as the initial stage of criminal procedure. By analyzing the peculiarities of domestic criminal procedure legislation, and the development of judicial and law enforcement agencies, in addition to drawing comparative parallels with foreign mechanisms for solving and investigating crimes, the author assumes that the gradual autonomy of the Soviet and then Russian system of pre-trial proceedings was a direct result of the well-known historical cataclysms associated with the Soviet power establishment in 1917 and its fall in 1991. It is noted that a rather unique model, based on the chaotic mixing and interweaving of various, including poorly compatible, elements inherent in various models of criminal procedure (French, German, Anglo-Saxon) of pre-trial proceedings has been formed in Russia at present. These elements are linked by means of specific domestic criminal procedure doctrine’s “inventions”, which are reflected in the relevant provisions of criminal procedure law and practical recommendations for law enforcement practice. The modern Russian model of pre-trial proceedings is expressed in the integration of the functions of the “police” and “justice”, in providing law enforcement agencies criminal procedural powers of a forensic nature to collect full-fledged evidence for the upcoming court hearing. According to the author, this explains many doctrinal and legislative problems of Russian pre-trial proceedings, which for many years have had a negative impact on judicial and investigative practice (problems related to the initiation of criminal proceedings; problems of practice in proving the results of operational-search activities; problems related to the legal regulation of the detention of a suspect, etc.). The research concludes that the legislator should stop the law-creating “throwing”, the policy of a chaotic mixing of various elements inherent in different types of criminal proceedings, and, finally, choose one single model that is the most suitable for modern Russia with its laws and realities of development.

scholarly journals Procedural analogy: independent principle of criminal proceedings or the element of legality

2020 ◽  
pp. 113-126
Author(s):  
Nadiia Drozdovych
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Historical Aspect ◽  
Legal Norms ◽  
Judicial Practice ◽  
Procedure Code ◽  
Scientific Results ◽  
The Right ◽  
Principle Of Legality

The article is devoted to the study of procedural analogy place in the system of criminal proceedings principles in connection with the statutory provisions of Part 6 of Art. 9 of the Criminal Procedure Code of Ukraine. The historical aspect of the analogy institution normative consolidation in the domestic criminal process is given, which indicates that the institution of analogy in the norms of the Criminal Procedure Code has not been directly enshrined since the 1920s. At the same time, the science justified its necessity and admissibility in the criminal process; scientific results in this area are also given in the article. The existence of two types of analogy is stated: “analogies of right” and “analogies of law”, in connection with which the doctrinal provisions on the applicability of any of them in the modern criminal process are analyzed. The article also provides examples to use the institution of analogy in the judicial practice of the court of cassation. It has been established that despite the legislative technique, the doctrinal provisions and judicial practice state the admissibility of two types of analogy in the domestic criminal process. In this regard, the use of the term “procedural analogy” is justified as the most correct and such, which in its content covers the notion “analogy of the right” and the "analogy of the law". Since the legal norms on procedural analogy are placed within the framework of CPC article on the principle of legality, its relationship with the procedural analogy is determined. To this end, doctrinal statements about the concept of principles of criminal proceedings, author's positions on their classification as well as the criteria for their separate definition are given. Based on the above material, it was concluded that the procedural analogy is not an independent principle of criminal proceedings. The fact that the provisions of Part 6 of Art. 9 of the Criminal Procedure Code placed in the content of the principle of legality, suggests that the procedural analogy is one of the ways to achieve and implement this principle. Key words: analogy of law, analogy of right, procedural analogy, general principles of criminal proceedings.

scholarly journals PROBLEMS OF APPLICATION OF CRIMINAL PROCEDURE RULES ON THE PARTICIPATION OF A SPECIALIST IN PROCEDURAL ACTIONS DURING THE PRELIMINARY INVESTIGATION

2021 ◽  
Vol 31 (3) ◽  
pp. 522-527
Author(s):  
O.V. Chelysheva ◽  
A.V. Shakhmatov
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Clear Distinction ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Complex Problems ◽  
Special Knowledge

The article examines the complex problems of the participation of a specialist in the production of procedural actions during the preliminary investigation. Conclusions are drawn about the need for a clear distinction between the functions of a specialist and an expert in the process of involving them in investigative actions, about the independence of a specialist in criminal proceedings. The authors also consider it necessary to classify such participants in the criminal process as a teacher and a psychologist as specialists. It is noted that the criminal procedure legislation does not require a detailed differentiation of the functions of a specialist, since, depending on the type of investigative action, the assistance of a specialist can be of a diverse nature. In various investigative actions and at their various stages, it can be of a consulting nature or the nature of performing physical actions that require special knowledge, skills and abilities.

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