scholarly journals The Legal Nature of the Reasonable Term Principle and the Development Thereof in the Russian Criminal Procedure

2020 ◽  
Vol 12 ◽  
pp. 13-18
Author(s):  
Yulia V. Kuvaldina ◽  
◽  
Evgenia V. Maryina ◽  

The purpose of the article. The authors of the article propose for discussion the problems associated with determining the nature of a reasonable time through the prism of the generally recognized properties of the principles, in order to show that the inclusion of Article 6.1 in the criminal procedure law had not only external factors (first of all, the influence of the decisions of the ECHR), but also internal, historical prerequisites, as well as the needs of practice. Methodology: in the preparation of the study, both general scientific and special methods were used: system analysis, historical, specific sociological and formal legal. Conclusions. 1. A reasonable time, on the one hand, can be viewed as an inter-sectoral organizational principle of justice, and, on the other hand, as an organizational principle of the entire criminal process. 2. The principle of a reasonable time obliges law enforcement officials to carry out their activities: a) in compliance with the procedural time limit; b) timely; c) as quickly as possible. 3. Speed means that the law enforcement officer performs all the necessary and sufficient procedural actions before the deadlines established by law for their production. 4. Reasonable criminal procedure can be both lengthy and fast, but does not go beyond the legal deadlines. 5. A reasonable time limit for legal proceedings contains general provisions (duty to comply with procedural deadlines; duty to carry out proceedings promptly, taking into account the criteria contained in the law), which are specified in other articles of the criminal procedure law. 6. For violation of a reasonable time, preventive and suppressive measures have been established. Scientific and practical significance. The conducted research can be useful for scientists, teachers of higher educational institutions, graduate students interested in the problems of criminal procedure.

Author(s):  
Komang Ekayana

Corrupted state assets certainly hurt the country narrowly, but also broadly where it harms the country and its people. However, the formal approach through the current criminal procedure law has not been able to recover the losses suffered by the state. In fact, state losses resulting from corruption are state assets that must be saved. Then there needs to be a new breakthrough to recover state losses through the asset recovery model. When looking at the country from the perspective of the victims, the state must obtain protection, in this case recovery from the losses suffered due to corruption. This paper examines the model of returning assets resulting from corruption in the law enforcement process that focuses on the rule of law in the 2003 UNCAC Convention and the mechanism of returning state assets in terms of Law No. 20 of 2001 concerning amendments to Law No. 31 of 1999 concerning Eradication of Corruption Crimes. 


Yuridika ◽  
2017 ◽  
Vol 32 (1) ◽  
pp. 17
Author(s):  
Bastianto Nugroho

The trial of a criminal case is to find out whether a criminal offense has occurred in an event, therefore in the most important criminal proceedings the proceedings are proved. Evidence is a problem that plays a role in the examination process in court because with this proof is determined the fate of a defendant. The legal function in the State of Indonesia is to regulate the order of society in the life of the nation and the state, whereas the violation of the law itself is an event that must exist in every society and is impossible to be eliminated absolutely, because violation of law is an integral part of development More complex. One of the provisions governing how the law enforcement officers carry out the task in the field of repressive is the criminal procedure law which has the purpose of searching and approaching material truth, the complete truth of a criminal case by applying the provisions of criminal procedure law honestly darn precisely with The purpose of finding out who the perpetrator can be charged with is a violation of the law. 


2020 ◽  
Vol 15 (1) ◽  
pp. 124-132
Author(s):  
V. A. Filatyev

The paper analyzes the provisions of the criminal procedure law determining the grounds and procedures for the application of preventive measures when deciding a sentence. The paper attempts to identify their constitutional and legal meaning. According to the author, the remand of a defendant in custody on the sole basis of the need to execute a real imprisonment sentence is unacceptable. Doctrinal representations of the theory of procedural decisions allow us to conclude that the decision on the measure of restraint cannot be taken simultaneously with the sentence and should not be an integral part of it. Under the current legal regulation, the defense is forced to refuse to express the position on the measure of restraint in the pleadings and the last plea if the position of the defendant is aimed at acquittal. The impossibility for the defense to make an immediate appeal on the formulated in the sentence decision on detention makes the appeal meaningless in general. Uncertainty of the procedure for sending persons sentenced to real imprisonment in all penal institutions but colony-settlements to the place of serving their sentence, for whom the court did not choose detention, reveals a gap in the law. The author claims that these and other defects in the legal regulation listed in the paper contribute to the existence of an accusatory bias in law enforcement practice, since they predetermine the detention decision and must be eliminated. Measures of restraint must be considered immediately after the verdict is sounded in a separate court session at the request of the prosecution or at the initiative of the court.


2018 ◽  
Vol 2 (1) ◽  
pp. 1-7
Author(s):  
Muhammad Prima Ersya

The case of former Jakarta governor Basuki Tjahaya Purnama began when he spoke in Kepu-lauan Seribu on September 27, 2016, quoting a verse of the Holy Qur'an that was deemed to have no relevance to the purpose of his arrival which became the basis of the allegation on de-famation against religion as defined in Article 156a of the Criminal Code. As a follow-up of the case, the legal process for the report is conducted and immediately becomes the focus of community concentration. However, in the case of law enforcement process is considered to have some peculiarities and deviate from the principle or principle of criminal procedural law. This is what makes this case interesting to investigate further by using seve-ral instruments related legislation, such as Law No. 8 of 1981 About Criminal Procedure Law. The paper is discussed using the normative juridical approach that focuses on reviewing violations of the principle or principle of criminal procedural law in the law enforcement of religion defama-tion by Basuki Tjahaya Purnama. In the future it is hoped that the negligence of application of the principle or principle of criminal procedure does not happen again. Keywords: defamation of religion, criminal procedural law, law enforcement ABSTRAK Kasus Mantan Gubernur DKI Jakarta Basuki Tjahaya Purnama diawali saat ia berbicara di Kepulauan Seribu pada tanggal 27 September 2016 dan mengutip salah satu ayat Kitab Suci Al Qur’an yang dianggap tidak memiliki relevansi dengan tujuan kedatangannya, sehingga hal tersebut dijadikan dasar laporan atas dugaan tindak pidana penistaan terhadap agama sebagaimana yang dirumuskan dalam Pasal 156a Kitab Undang-Undang Hukum Pidana. Sebagai bentuk tindak lanjut dari kasus tersebut, maka proses hukum untuk laporan tersebut dilakukan dan langsung menjadi fokus konsentrasi masyarakat. Namun dalam hal proses penegakan hukumnya dinilai memiliki beberapa ke-janggalan dan menyimpang dari asas atau prinsip hukum acara pidana. Hal inilah yang membuat kasus ini menarik untuk diteliti lebih lanjut dengan menggunakan beberapa instrumen peraturan perundang-undangan yang terkait, diantaranya adalah Undang-Undang Nomor 8 Tahun 1981 Tentang Hukum Acara Pidana. Pembahasan dalam tulisan ini dilakukan dengan menggunakan metode pendekatan yuridis normatif yang fokus menelaah pelanggaran terhadap asas atau prinsip hukum acara pidana di dalam penegakan hukum kasus penistaan agama oleh Basuki Tjahaya Purnama. Sehingga dikemudian hari diharapkan kelalaian penerapan asas atau prinsip hukum acara pidana tidak terulang lagi. Kata Kunci: penistaan agama; hukum acara pidana; penegakan hukum


Author(s):  
Vitaliy Viktorovich Pomazanov ◽  
Sergei Ivanovich Gritsaev ◽  
Sergei Grigorevich Stepanenko

The research object is social relations connected with the legal regulation, organization and the tactics of identification. The authors consider the types of identification mentioned in the criminal procedure law, and those used during criminal investigation. Having compared their volume and contents, the authors note that the number of types of identification used in the work of law-enforcement bodies is larger than that of those formalized in the Criminal procedure Law of the Russian Federation. This situation doesn’t violate the law, since such types of identification as the identification of animals, territories, etc. are the components (subtypes) of the types of identification formalized in the law. The authors study the correlation between the organization and tactics of presenting for identification and attempt to systematize the investigator’s actions during the preparation and organization of various types of presenting for identification. The scientific novelty of the research consists in the formation of tactical techniques of presenting for identification through the lens of registration and correlation of subjects of the forensic tactics (the most rational ways of organizing an investigation  - the problem scope) and the organization of criminal investigation (the creation of a structure of the investigative activities, the conditions for its effective implementation, and the investigation management - the organizational and administrative scope). This approach helps to create a detailed list of tactical recommendations for the organization, preparation and realization of various types of presenting for identification with account for the specificity of the object of identification, and their classification in accordance with the stages of this investigation.   


Legal Concept ◽  
2021 ◽  
pp. 6-11
Author(s):  
Agnessa Inshakova

The introductory paper by the editor-in-chief of the next issue of “Legal Concept = The Legal paradigm” is a brief justification of the relevance of the stated topic – “The modern methodology for the coordination of criminal procedure activities of the law enforcement agencies”, and also accumulates the quintessence of the knowledge presented in the scientific papers of the heading “The main topic of the issue” and the research results of the coordination of the law enforcement agencies in the fight against crime. The editorial board of the journal believes that the coordination activity being studied from the standpoint of criminal procedure science is of particular interest in the context of eliminating threats to the national security of the Russian Federation by legal methods and means. The author substantiates the urgency of the problem of ensuring and improving the interaction of the law enforcement agencies in the fight against crime, primarily, the complex criminal situation in the country. It is noted that the participation of various law enforcement agencies in the fight against crime determines the need for the systematic coordination of their efforts. The coordination of the law enforcement activities to combat crime in connection with this fact is one of the central functions of the prosecutor’s office and at the same time a mechanism to ensure the guarantee of such coordination, a tool to increase the efficiency of countering crime. The paper analyzes the scientific and practical significance of the papers that make up the heading “The main topic of the issue” and are characterized by both the theoretical and applied value. The general orientation of the papers and their distinctive features as original, creative research developments distinguished by the scientific novelty is described briefly. The multi-aspect nature of the stated topic is justified through the variety of questions formulated by the authors of the main topic. The author hopes that the collected thematic papers will be especially useful while improving the law enforcement practice in the fight against crime.


2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  

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.


Author(s):  
Alexander Fedyunin

The subject of this research is the issues emerging in consideration of jurisdiction of the material on extradition of a foreign citizen by the Russian Federation. The article touches upon the peculiarities of national and territorial aspect of jurisdiction, and its specific regulation in the criminal procedure law. The article employs the general scientific and private scientific methods, such as scientific analysis, generalization, comparative-legal, formal-logical, which allowed to most fully reflect the essence and problematic aspects of the selected topic. The question at hand is of major importance for the theory of criminal procedure and law enforcement practice, as the mistakes in determination of jurisdiction of the material are a severe violation of the rights, including the convict, and entail the unconditional annulment of court decision. The analysis of the most common mistakes occurred in application of the norms regulating the jurisdiction of extradition of a foreign citizen convicted by the court of the Russian Federation, as well as theoretical issues associated with determination of the court that deals with the particular issue allows outlining the vector and finding solution to the indicated problems.


2021 ◽  
Vol 3 (2) ◽  
pp. 11-25
Author(s):  
Ni Made Trisna Dewi,Reido Lardiza Fahrial

Abuse in the electronic transaction because it is formed from an electronic process, so the object changes, the goods become electronic data and the evidence is electronic.  Referring to the provisions of positive law in Indonesia, there are several laws and regulations that have set about electronic evidence as legal evidence before the court but there is still debate between the usefulness and function of the electronic evidence itself, from that background in  The following problems can be formulated, How do law enforcement from investigations, prosecutions to criminal case decisions in cybercrimes and How is the use of electronic evidence in criminal case investigations in cybercrimes This research uses normative research methods that are moving from the existence of norm conflicts between the Criminal Procedure Code and  ITE Law Number 19 Year 2016 in the use of evidence.  The law enforcement process of the investigator, the prosecution until the court's decision cannot run in accordance with the provisions of ITE Law Number 19 of 2016, because in interpreting the use of electronic evidence still refers to Article 184 paragraph (1) KUHAP of the Criminal Procedure Code stated that the evidence used  Legitimate are: witness statements, expert statements, letters, instructions and statements of the accused so that the application of the ITE Law cannot be applied effectively The conclusion of this research is that law enforcement using electronic evidence in cyber crime cannot stand alone because the application of the Act  - ITE Law Number 19 Year 2016 still refers to the Criminal Code so that the evidence that is clear before the trial still refers to article 184 paragraph (1) KUHAP of the Criminal Procedure Code and the strength of proof of electronic evidence depends on the law enforcement agencies interpreting it because all electronic evidence is classified into  in evidence in the form of objects as  so there is a need for confidence from the legal apparatus in order to determine the position and truth of the electronic evidence.   Penyalahgunaan didalam transaksi elektronik tersebut karena terbentuk dari suatu proses elektronik, sehingga objeknya pun berubah, barang menjadi data elektronik dan alat buktinya pun bersifat elektronik. Mengacu pada ketentuan hukum positif di Indonesia, ada beberapa peraturan perundang-undangan yang telah mengatur mengenai alat bukti elektronik sebagai alat bukti yang sah di muka pengadilan tetapi tetap masih ada perdebatan antara kegunaan dan fungsi dari alat bukti elektronik itu sendiri, dari latar belakang tersebut di atas dapat dirumuskan masalah sebagai berikut, Bagaimana penegakkan hukum dari penyidikan, penuntutan sampai putusan perkara pidana dalam kejahatan cyber dan Bagaimanakah penggunaan bukti elektronik dalam pemeriksaan perkara pidana dalam kejahatan cyber Penelitian ini menggunakan metode penelitian normatif yakni beranjak dari adanya konflik norma antara KUHAP dengan Undang-undang ITE Nomor 19 Tahun 2016 dalam penggunaan alat bukti. Proses penegakkan hukum dari penyidik, penuntutan sampai pada putusan pengadilan tidak dapat berjalan sesuai dengan ketentuan Undang-undang ITE Nomor 19 Tahun 2016, karena dalam melakukan penafsiran terhadap penggunaan alat bukti Elektronik masih mengacu pada Pasal 184 ayat (1) KUHAP disebutkan bahwa alat bukti yang sah adalah: keterangan saksi, keterangan ahli, surat, petunjuk dan keterangan terdakwa. sehingga penerapan Undang-undang ITE tidak dapat diterapkan secara efektiv. Kesimpulan dari penelitian ini adalah penegakan hukum dengan menggunakan alat bukti elektronik dalam kejahatan cyber tidak bisa berdiri sendiri karena penerapan Undang-Undang ITE Nomor 19 Tahun 2016 tetap merujuk kepada KUHP sehingga alat bukti yang sah di muka persidangan tetap mengacu pada pasal 184 ayat (1) KUHAP dan Kekuatan pembuktian alat bukti elektronik tersebut tergantung dari aparat hukum dalam menafsirkannya karena semua alat bukti elektronik tersebut digolongkan ke dalam alat bukti berupa benda sebagai petunjuk sehingga diperlukan juga keyakinan dari aparat hukum agar bisa menentukan posisi dan kebenaran dari alat bukti elektronik tersebut.


Author(s):  
Ulyana Polyak

The current criminal procedure law of Ukraine stipulates that a witness is obliged to give a true testimony during pre-trial investigation and trial, however, the legislator made an exception for this by specifying the categories of persons who have been granted immunity from immunity, ie they are released by law. testify. The article deals with the problems of law and practice regarding the prohibition of the interrogation of a notary as a witness in criminal proceedings and the release of him from the obligation to keep the notarial secret by the person who entrusted him with the information which is the subject of this secret. The notion of notarial secrecy is proposed to be changed, since the subject of this secrecy is not only information that became known to the notary public from the interested person, but also those information that the notary received from other sources in the performance of their professional duties, as well as the procedural activity of the notary himself, is aimed at achieving a certain legal result. The proposal made in the legal literature to supplement the CPC of Ukraine with the provisions that a notary is subject to interrogation as a witness on information that constitutes a notarial secret, if the notarial acts were declared illegal in accordance with the procedure established by law The proposal to increase the list of persons who are not subject to interrogation as witnesses about the information constituting a notarial secret is substantiated, this clause is proposed to be supplemented by provisions that, apart from the notary, are not notarized, other notarials, notaries as well as the persons mentioned in Part 3 of Art. 8 of the Law of Ukraine "On Notary". Amendments to the current CPC of Ukraine by the amendments proposed in this publication will significantly improve the law prohibiting the interrogation of a notary as a witness in criminal proceedings, as well as improve certain theoretical provisions of the institute of witness immunity in criminal proceedings.


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