scholarly journals About an Ethical Interpretation of the Law. Resolution of the Civil Action during the Criminal Trial

2020 ◽  
Vol 4 (1) ◽  
pp. 31-43
Author(s):  
Florin Octavian Barbu ◽  
◽  
Claudiu Gabriel Neacșu ◽  
Keyword(s):  
Social Ethics ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Criminal Trial ◽  
Criminal Investigation ◽  
Civil Justice ◽  
Criminal Proceedings ◽  
Civil Action ◽  
Current Regulation ◽  
Procedure Code

From the provisions of art. 25 para. 1 and art. 397 para. 1 of the Criminal Procedure Code, as in the previous regulation, it results that the legislator took into account an element not only of civil justice, but also of social ethics, when it was established that the criminal court also rules, through the same decision, on the action civil. Basically, the two provisions stated above express the same idea, although this repetition was not absolutely necessary. From the current regulation of solving the civil action during the criminal trial, we notice that the legislator has maintained a series of general principles such as: cases of ex officio settlement of the civil action, dependence of the civil action on the way the criminal action is settled, the disjunction of the civil action from the criminal proceedings, the failure to resolve the civil action as a distinct procedure from that of admitting or rejecting the civil action, resolving the civil action only by the court, and the interdiction to resolve it during the criminal investigation, which, however, were adapted to a new legislative vision.

scholarly journals PARTICIPATION OF EXPERTS IN JUDICIAL CONSIDERATION OF CRIMINAL CASES – INNOVATIVE APPROACH

2018 ◽  
pp. 137-144
Author(s):  
I. Kalancha
Keyword(s):  
Criminal Procedure ◽  
Electronic System ◽  
Criminal Investigation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Electronic Signature ◽  
Examination Procedure ◽  
Virtual Office ◽  
Procedure Code ◽  
Distance Communication

This article deals with topical issues of innovative enhancement of expert participation in criminal proceedings. It is identified the problematic questions of an expert’s examination during the trial to clarify or supplement its conclusion in accordance with Section 7, Article 101 CPC of Ukraine. It has been learned the experience of distance communication with court experts in Australia and Spain as well as took into account the shortage of personnel in the Expert Service of the Ministry of Internal Affairs of Ukraine and expert institutions of the Ministry of Justice of Ukraine. On this basis, it is proposed to consolidate the Criminal procedure code of Ukraine and to technically provide a remote procedure for the participation of experts during criminal proceedings. It has been suggested for experts to be involved in criminal proceedings through an electronic exchange of data between the court’s systems and experts. In order to accomplish these tasks, it is proposed to develop an electronic system based on the Register of Certified Forensic Experts. This system should provide the following: maintaining a register of forensic experts and reflecting the types of expertise that the expert can carry out and the level of workload of the expert; exchange of electronic procedural documents with the subjects of criminal proceedings; distance communication with the court. An electronic expert system should also include: automatic examination of the expert’s authority when conducting an electronic examination procedure appointment; authentication on the basis of an electronic signature in the manner prescribed by law; creation of electronic conclusions of experts, their signing by electronic signature, and exchange of electronic procedural documents with the subjects of criminal proceedings. The article describes the introduction of an electronic criminal procedure for the appointment of an expert examination so that the expert receives access to the necessary criminal investigation information through a personal virtual office in the electronic system. Key words: criminal proceedings, subjects of criminal proceedings, register of forensic experts, types of forensic examinations, electronic procedural documents.

scholarly journals Some Ethical Landmarks Regarding the Settlement of the Civil Action by the Prosecutor

2020 ◽  
Vol 4 (1) ◽  
pp. 44-52
Author(s):  
Florin Octavian Barbu ◽  
◽  
Claudiu Gabriel Neacșu ◽  
Keyword(s):  
Burden Of Proof ◽  
Criminal Procedure ◽  
Civil Procedure ◽  
Criminal Court ◽  
Criminal Trials ◽  
Civil Action ◽  
Procedure Code

Article 20 para. 2 thesis 11 of the Criminal Procedure Code provides that, in addition to specifying the nature and amount of the claims, the declaration of civil party must contain the applicable reasons and evidence. This provision must be regarded in conjunction with art. 20 para. 1 thesis I I of the Criminal Procedure Code, as regards the final moment until the party must fulfill the essential conditions iprovided by law, which are absolutely necessary for a valid legal claim. In addition, the obligations of the civil party regarding the conditions for filing the declaration of civil party must be cumulatively met. The need for the act of constitution as a civil party to indicate the evidence that the claim resides on results not only from the general form that a civil action must fulfill (as it is regulated in the civil procedure legislation, according to art. 194 letter e of the Civil Procedure Code], but also from the obligation stipulated by art. 99 para. 1 of the Criminal Procedure Code, in the sense that, in the civil action, the burden of proof falls on the civil party, unless the prosecutor exercises the civil action for the persons protected by art. 19 para. 3 of the Criminal Procedure Code, in which case the burden of proof falls on the prosecutor. The settlement of the civil action exercised in the criminal trials falls within the prerogative of the criminal court, which may admit it, dismiss it or leave the civil action unresolved.

The Requirement of Legality of Decisions of the Criminal Court: The Legal Basis and Content Components

2021 ◽  
pp. 213-224
Author(s):  
Sergey V. Burmagin ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Russian Science ◽  
Judicial Decisions ◽  
Judicial Practice ◽  
Procedure Code ◽  
The Russian Federation

Legality as a complex legal requirement to judicial decisions, developed for a long time by Russian science and legal practice, was formally consolidated in the Criminal Procedure Code of the Russian Federation in 2001 and extended to all decisions of the criminal court. However, the wording of the law does not fully and adequately reflect the content of this requirement, and to some extent it contradicts the established scientific ideas and needs of judicial practice. In this regard, the author aims to reveal the content side of the concept of legality of judicial decisions in criminal proceedings, both from a historical perspective and from the perspective of modern legal understanding, and to justify the need to adjust the legislative expression of this requirement. The research problems are solved using historical, dialectical and comparative legal methods of cognition based on the analysis of relevant theoretical concepts developed by the Russian science of criminal procedure law, the provisions of criminal procedure legislation and the legal positions of the judicial authorities: the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, federal courts of general jurisdiction. The legal sources of regulatory requirements that the criminal court should follow when making procedural decisions have been identified. The author substantiates the need for an expanded understanding of the legality of judicial decisions as their compliance not only with direct instructions of the law, but also with legal provisions contained in other forms of law: constitutional norms, generally recognized principles and norms of international law, established legal customs, as well as standards of justice developed by judicial practice and legal positions on specific issues of law enforcement. In the context of historical development, the material and procedural aspects of the requirement of legality of judicial decisions in criminal proceedings are analyzed and its content components are formulated. Continuity and at the same time dynamism of doctrinal and legislative approaches to determining the legality of court decisions supported by judicial practice are noted. Certain shortcomings of the normative consolidation of the requirement of legality of court decisions in the current Criminal Procedure Code of the Russian Federation are revealed, in connection with which specific proposals are made to change and optimize certain formulations of the procedural law that determine the content of the requirement of legality of a sentence and other court decisions in criminal proceedings.

scholarly journals Comment: The Preliminary Inquiry in Ethiopia and Its Adverse Impact on the Rights of the Accused

2020 ◽  
Vol 14 (1) ◽  
pp. 150-160
Author(s):  
Wondwossen Demissie Kassa
Keyword(s):  
Attorney General ◽  
Criminal Procedure ◽  
Fair Trial ◽  
Adverse Impact ◽  
Criminal Investigation ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Unique Nature ◽  
The Law ◽  
The Right

Whether preliminary inquiry should be conducted following completion of criminal investigation was one of the issues that arose in criminal proceedings of leaders of some opposition parties who were arrested (in June and July 2020) following the assassination of Hachalu Hundessa. The Court accepted the request of the Office of the Attorney General for the holding of preliminary inquiry. While the request of the Office of the Attorney General and the ruling of the court are consistent with the 1961 Criminal Procedure Code, in view of the unique nature of the Ethiopian Preliminary Inquiry, both the request and the ruling adversely affect the right of the accused to a fair trial. The application of the law regulating preliminary inquiry would be a departure from the principle of equality of arms and the right of the accused to confrontation, both of which are elements of the right to a fair trial. It is argued (in this comment) that using evidence obtained during preliminary inquiry against the accused is inconsistent with the FDRE Constitution and relevant international legal instruments.

scholarly journals Initiation/Commencement of Criminal Prosecution in the New Criminal Procedure Code

2019 ◽  
Vol 25 (2) ◽  
pp. 114-121
Author(s):  
Fănică Cercel
Keyword(s):  
Criminal Procedure ◽  
Criminal Trial ◽  
Criminal Investigation ◽  
Criminal Prosecution ◽  
Procedure Code ◽  
Negative Condition

Abstract The initiation of criminal prosecution is always preceded by the notification of criminal investigation bodies (or the disclosure) about the commission of a crime, since it is not possible to start the criminal trial in the absence of such notification. Another (negative) condition is the nonexistence of any of the cases provided by art. 16 of the Criminal Procedure Code, otherwise they are closed prior to the commencement of criminal prosecution.The procedural act by which the prosecution is initiated, according to Article 305, paragraph 2, of the Criminal Procedure Code is the ordinance. The commencement of criminal prosecution is always ordered in respect of the offense, even if the person who committed the offense is indicated in the notice.

scholarly journals SYSTEM OF SOURCES OF CRIMINAL PROCEDURE LAW OF SWITZERLAND

2016 ◽  
pp. 0-0
Author(s):  
Александр Трефилов ◽  
Aleksandr Trefilov
Keyword(s):  
International Law ◽  
Level Structure ◽  
Criminal Procedure ◽  
Criminal Court ◽  
Criminal Trial ◽  
Court System ◽  
Law And Order ◽  
Federal Law ◽  
Procedure Code ◽  
Criminal Procedure Law

The author considers the operating system of sources of criminal procedure law of Switzerland. The author studies the question of the international law influence on their development. The author analyzes such sources as the Constitution, the Message of the Federal Assembly on unification of criminal procedure law, the Code of penal procedure, the Federal law on organization of the Federation’s criminal trial bodies, the Federal law on the Federal court, the Federal law on Federal criminal court and some other enactments. The author briefly considers the criminal procedure law on the example of Zurich and St. Gallen cantonal sources. The author researches the role of the legal doctrine in application of Criminal Procedure Code rules. The author compares the Swiss and Russian systems of sources in the branch of law in question. The author comes to the conclusion that the systems of sources of criminal procedure of Switzerland and Russia have many common features, since both legal systems of the states belong to the Romano-Germanic legal family. Law and order of both states have the Criminal Procedure Code, based on the rules of international law and the constitution, as the main source of criminal procedure. At the same time, in spite of the fact that Constitutions of both countries refer the criminal procedure law to the exclusive competence of the federation, in the Swiss law and order there are numerous exceptions to this rule as many major questions relating to criminal procedure are settled at the cantonal level (structure of court, system of criminal trial bodies, etc.).

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.

scholarly journals TO THE QUESTION ABOUT THE CONCEPT «PROCEDURAL COSTS IN CRIMINAL PROCEEDINGS»

Issues of Law ◽  
2020 ◽  
Vol 20 (4) ◽  
pp. 89-93
Author(s):  
S.M. Darovskikh ◽  
◽  
Z.V Makarova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Costs ◽  
The Russian Federation ◽  
Definition Of ◽  
Article 5

The article is devoted to the issues of formulating the definition of such a criminal procedural concept as «procedural costs». Emphasizing the importance both for science and for law enforcement of clarity and clarity when formulating the definition of criminal procedural concepts, the authors point out that the formulation of this concept present in the current Criminal Procedure Code of the Russian Federation is far from being improved. Having studied the opinions on this issue of the Constitutional Court of the Russian Federation, a number of procedural scholars, the authors propose their own version of the definition of the concept of «criminal procedural costs» with its allocation in a separate paragraph of Article 5 of the Criminal Procedure Code of the Russian Federation.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

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