scholarly journals Application of preventive measures in the criminal process: current issues

2020 ◽  
pp. 122-126
Author(s):  
V.S. Suslova ◽  
O.I. Tyshchenko
Keyword(s):  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
Procedure Code ◽  
Wide Range ◽  
Definition Of ◽  
The Right ◽  
Criminal Matters

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

scholarly journals Verification by the prosecutor of the legality and validity of the decisions made by the investigating judge regarding the applied security measures

2021 ◽  
pp. 341-345
Author(s):  
I.О. Merimerina
Keyword(s):  
Criminal Procedure ◽  
Appellate Court ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Precautionary Measures ◽  
Characteristic Features ◽  
Definition Of ◽  
The Right

The article is devoted to clarifying what the stage of an appeal in criminal proceedings is. During the investigation, the decisions of the investigating judge concerning the application of measures to ensure criminal proceedings are con-sidered to be appealed in accordance with the requirements of the Criminal Procedure Code of Ukraine. It was empha-sized that appealing the decisions of the investigating judge during the pre-trial investigation is an important guarantee of ensuring the protection of the rights and legitimate interests of the participants in the criminal proceedings. The list of persons who have the right to file an appeal is covered. The normative regulation of appealing against the decisions of the investigating judge is analyzed. The problematic issues of this activity and the definition of ways of normative regulation are considered. In the course of the research the works of scientists on the outlined issues are analyzed.The article examines the role of the prosecutor in verifying the legality and validity of decisions made by the investigating judge on the election, change, cancellation of measures to ensure criminal proceedings. Attention is drawn to the peculiarities of the prosecutor’s appeal of certain precautionary measures. Emphasis is placed on the peculiarities of the prosecutor’s filing of appeals, the quality of preparation of response documents. The peculiarities of appealing the decision of the appellate court, ruled on the results of the review of the decision of the investigating judge on the application of certain precautionary measures, have been studied. The characteristic features of appealing certain measures to ensure criminal proceedings have been identified and investigated.It is concluded that it is expedient to supplement the Criminal Procedure Code of Ukraine with provisions on the possibility for the prosecutor to appeal the decisions of the investigating judge on seizure of property, refusal, full or partial revocation of seizure of property, revocation of seizure of property, return of temporarily seized items and documents. measures in the form of a personal obligation or refusal to apply it, application of a precautionary measure in the form of a personal guarantee, application of a measure of restraint in the form of transfer of a juvenile suspect or accused under the supervision of parents, guardians, trustees or administration of a child care institution.

Problems of the rights of participants of criminal proceedings in terms of measures of restraint

2015 ◽  
Vol 9 (1) ◽  
pp. 24-32
Author(s):  
Виктор Новгородцев ◽  
Viktor Novgorodtsev
Keyword(s):  
Preventive Measures ◽  
Preliminary Investigation ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
The Body ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Family ◽  
The Relationship ◽  
Investigative Activity

The article considers the relationship to ensure the rights and freedoms of participants in the proceedings and other persons in the process of application and the election of preventive measures involving deprivation of liberty. The decision on measures of restraint in the form of home arrest must be justified by specific factual circumstances. They may not be data untested in court, in particular the results of operational-investigative activity granted in violation of the requirements of Art. 89 of the Criminal Procedure Code. The legislator leaves the list of premises open to the court with the circumstances of the case where it shall be entitled to decide on the specific premises for the execution of home arrest at its discretion. The Court needs to check the base of residence of the suspect or the accused in a particular dwelling. That must be a house where the defendant resides, where his property and / or the family resides. Location of home arrest may be outside the municipality, in the territory of which the preliminary investigation on the condition that this would not preclude the implementation of the criminal proceedings, in particular bringing the person in the body of inquiry or preliminary investigation body and the court. The essence of home arrest as a preventive measure, a specific set of prohibitions and restrictions are analyzed. At the same time the court should take into account the identity of the suspect or the accused. Necessary additions are proposed to the law to regulate the process of preparing a preventive measure.

scholarly journals The problematic issues of the participation of the prosecutor in the consideration by the court of the petition of the investigator to elect a preventive measure

2019 ◽  
pp. 247-250
Author(s):  
Ol'ga A. Teterina ◽  
Andrey A. Metyolkin ◽  
Kristina A. Ivanova
Keyword(s):  
Russian Federation ◽  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Procedure Code ◽  
Legal Literature ◽  
The Russian Federation ◽  
The Right

The article is devoted to a detailed study of the participation of the prosecutor in the court’s consideration of the investigator’s petition on the choice of preventive measures. The article analyses the positions of scientists and practitioners on this issue. Based on the analysis of legal literature and Russian criminal procedural legislation, the authors assessed the role of the prosecutor and identifi ed the problems of his participation in the court’s consideration of the investigator’s petitions on the choice of a preventive measure. It is especially noted that a dispute between the prosecutor and the investigator is unacceptable when the court considers the investigator's petition. The authors propose to return to the prosecutor the right to give consent to the investigator to initiate a relevant petition before the court, and also to make the prosecutor’s refusal to support the petition mandatory for the court. The article also formulates the amendments that are proposed to be made to the Criminal Procedure Code of the Russian Federation.

Definition of “Permission” in Russian Criminal Procedure

2016 ◽  
Vol 4 (10) ◽  
pp. 0-0
Author(s):  
Альберт Хайдаров ◽  
Albert Khaydarov
Keyword(s):  
Criminal Responsibility ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Court Judge ◽  
Foreign State ◽  
Procedure Code ◽  
Definition Of ◽  
The Right ◽  
Procedural Decisions ◽  
Article 5

The article deals with the definition of “consent” which understands as a the permission of the head of the investigative body for the production of the investigator or the resolution of the Prosecutor on the production of the investigator the corresponding investigative and other procedural actions and to their adopting procedural decisions in accordance with the paragraph 41.1 of article 5 of the Criminal Procedure Code. The author discovered a lack of conformity between the legal definition of “consent” and its use in the text of the Criminal Procedure Code. The definition of “consent” was examined in present article in its broadest sense, it was filled with new content, different from mentioned in paragraph 41.1 of article 5 of the Criminal Procedure Code. About the definition of "consent" was considered in the article as: 1) the power of the officials (authority), court (judge); 2) the right of a party to criminal proceedings to give consent to the production of the procedural actions or procedural decision; 3) condition of procedural agreements or condition for the adoption of procedural decisions; 4) consent of the two States on issues of international cooperation or the consent of the foreign state in bringing the citizen to criminal responsibility in Russia.

PROBLEM ASPECTS OF THE IMPLEMENTATION OF CRIMINAL PROCEDURAL NORMS OF PROTECTION OF THE VICTIMS FROM CRIME

2020 ◽  
pp. 72-76
Author(s):  
Яна Валерьевна Самиулина
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Rights ◽  
Criminal Proceedings ◽  
Effective Mechanism ◽  
The Russian Federation ◽  
The Individual ◽  
The Right ◽  
To Receive ◽  
Selection Of

В настоящей статье предпринята попытка исследовать отдельные проблемные аспекты института потерпевшего в российском уголовном процессе. В этих целях подвергнуты анализу правовые нормы, регламентирующие его процессуальный статус. Раскрываются отдельные пробелы уголовно-процессуального законодательства в сфере защиты законных прав и интересов потерпевшего. Автор акцентирует внимание на том, что совершенствование уголовно-процессуального законодательства в части расширения правомочий потерпевшего по отстаиванию своих нарушенных преступлением прав следует продолжить. На основании проведенного исследования действующего законодательства в части регламентации прав потерпевшего от преступления предлагается расширить перечень получаемых им копий постановлений, указанных в п. 13 ч. 2 ст. 42 УПК РФ. Автор предлагает включить в перечень указанной законодательной нормы право получения потерпевшим копии постановления об избрании конкретного вида меры пресечения, избранного в отношении подозреваемого (обвиняемого). Для создания действенного механизма защиты интересов потерпевших от преступления юридических лиц предлагаем ч. 9 ст. 42 УПК РФ изложить в следующей редакции: «в случае признания потерпевшим юридического лица его процессуальное право в уголовном процессе осуществляет представляющий его профессиональный адвокат». This article attempts to investigate certain problematic aspects of the institution of the victim in the Russian criminal process. For this purpose, analyzed the individual norms governing his procedural status. Separate gaps of the criminal procedure legislation in the sphere of protection of the legal rights and interests of the victim are disclosed. The author emphasizes that the improvement of the criminal procedure legislation in terms of the extension of the victim’s authority to defend his rights violated by the crime should be continued. On the basis of the study of the current legislation regarding the regulation of the rights of the victim of a crime, it is proposed to expand the list of decisions received by him, referred to in paragraph 13, part 2 of article 42 Code of Criminal Procedure. The author proposes to include in the list of the indicated legislative norm the right to receive the victim a copy of the decision on the selection of a specific type of preventive measure, selected in relation to the suspect (accused). To create an effective mechanism for protecting the interests of legal entities victims of a crime, we offer part 9 of art. 42 of the Code of Criminal Procedure of the Russian Federation shall be reworded as follows: «if a legal entity is recognized as a victim, his procedural right in criminal proceedings is exercised by the professional lawyer representing him».

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.

SHORTENED TIMELINE OF APPEAL AGAINST INTERIM COURT DECISIONS MADE AT A PRE-TRIAL STAGE OF CRIMINAL PROCEEDINGS

2021 ◽  
pp. 38-49
Author(s):  
Polina O. Gertsen ◽  
Keyword(s):  
Russian Federation ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Medical Organization ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

The article deals with the problem of classifying interim decisions among those that are appealed in a shortened timeline, and determining the list of such decisions, as well as the closely related problem of determining the rules for calculating such a shortened timeline. Currently, the Criminal Procedure law provides for the possibility of appealing a number of interim decisions made at a pre-trial stage of criminal proceedings before the final decision Moreover, for appealing some interim decisions at a pre-trial stage of criminal proceedings, a general period of appeal is provided - 10 days from the date of the court decision, or the same period from the date of serving with a copy of the decision the person who is in custody, while for others a shortened timeline is 3 days from the date of the decision. Meanwhile, it follows from the literal interpretation of the Criminal Procedure Code of the Russian Federation that within a shortened three-day period, court decisions on the election of preventive measures in the form of a ban on certain actions, bail, house arrest, detention, the refusal to apply them or extend their application can be appealed. At the same time, such a conclusion is not confirmed either in the positions of the Plenum of the Supreme Court of the Russian Federation or in judicial practice. Based on the analysis of the criminal procedure law, the position of the Supreme and Constitutional Courts of the Russian Federation, scientific literature and practice, several problems are highlighted. Thus, the author states the discrepancy between the provisions of the Code of Criminal Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation when it comes to establishing the terms for appealing the court decision on a preventive measure in the form of bail. In addition, there is no single criterion for establishing shortened deadlines for appealing interim decisions, and there-fore, the list of such decisions requires analysis. In addition, the Criminal Procedure Code of the Russian Federation does not contain a norm that determines the rules for calculating daily terms. The author formulates several proposals for amendments. It is proposed to determine the criteria for a shortened appeal timeline as the restriction of the constitutional right to liberty and immunity of a person that requires the immediate judicial review of the lawfulness of such a decision. It is also necessary to correct the phrasing of Article 106 of the Criminal Procedure Code of the Russian Federation, which defines the procedure for applying a preventive measure in the form of bail, and establish the rule that appeal against such an interim court decision is filed according to the rules of Chapter 45.1 of the Criminal Procedure Code within ten days. The list of court decisions which must be appealed in a shortened timeline must be expanded by a court decision on putting a suspect or an accused into a medical organization providing medical or psychiatric care in hospital settings for forensic examination, as well as the extension of a person’s stay in a medical organization. In addition, the author has analyzed the approaches to the calculation of daily terms and proposes to amend Part 1 of Article 128 of the Criminal Procedure Code of the Russian Federation by establishing a single procedure for calculating daily terms, which does not take into account the day that served as a starting point of the term.

scholarly journals House Arrest as a Preventive Measure in Accordance with the New Criminal Procedure Code

2016 ◽  
Vol 22 (2) ◽  
pp. 344-348
Author(s):  
Silviu Jîrlăianu
Keyword(s):  
European Community ◽  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
National Legislation ◽  
Judicial Control ◽  
Community Law ◽  
House Arrest ◽  
Procedure Code ◽  
Set Up

Abstract Romania's participation in European Community imposed realities of our country harmonization of national legislation in relation to Community law. Such national legislation, in terms of criminal procedure were introduced through preventive measures, house arrest, judicial and Judicial control on bail. In relation to the same European context, Romanian police set up surveillance units of judicial duties in order to enforce these measures.

scholarly journals ДЕЯКІ ПРОБЛЕМИ ТИМЧАСОВОГО ВИЛУЧЕННЯ ТА АРЕШТУ МАЙНА ЯК ЗАХОДІВ ЗАБЕЗПЕЧЕННЯ КРИМІНАЛЬНОГО ПРОВАДЖЕННЯ

2019 ◽  
Vol 13 ◽  
pp. 520-528
Author(s):  
І. В. Гловюк
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Definition Of

Стаття присвячена дослідженню проблемних питань застосування тимчасового вилу­чення майна та арешту майна як заходів забезпечення кримінального провадження із урахуванням наявної судової практики. Указано та обґрунтовано некоректність норма­тивного визначення тимчасового вилучення майна. Відмічено прогальність нормативного визначення арешту майна в аспекті об'єктів, на які може бути накладено арешт. Сфор­мульовано пропозиції щодо внесення змін та доповнень до ч. 1 ст. 167 КПК щодо ви­значення поняття «тимчасове вилучення майна» та ч. 1 ст. 170 КПК щодо осіб, на майно яких може бути накладено арешт.   The article is dedicated to the research of problematic issues of exercise of temporary seizure of property and arrest of property as means for ensuring criminal proceedings considering relevant judicial practices. Author mentioned and justified his point of view regarding incorrectness of the normative definition of seizure. Author also indicated whitespaces of the regulatory definition of arrest of property in the aspect of objects that may be the subject for the arrest. Proposals for amendments and additions to the part 1 of the Art. 167 of the Criminal Procedure Code regarding the definition of «temporary seizure of property» and part 1 of the Art. 170 of the Criminal Procedure Code regarding the scope of persons whose property may be arrested have been made.

scholarly journals Practical Application of the Provisions of the Code of Criminal Procedure Regarding the Measure of Preventive Arrest

2021 ◽  
Vol 9 (1) ◽  
pp. 24-32
Author(s):  
Nicolae Silviu Pana ◽  
Ana Maria Pana
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Judicial Control ◽  
House Arrest ◽  
Procedure Code

Preventive measures are coercive criminal law enforcement institutions, aimed at the deprivation or restriction of individual liberty, by which the suspect or defendant is prevented from undertaking certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of its purpose. They have been instituted by the legislator for specific purposes, namely: to ensure the proper conduct of criminal proceedings, to prevent the abstraction of the suspect or defendant from trial and to prevent the commission of new offenses (art. 202 para. 1 of the Criminal Procedure Code). Preventive measures are not inherent in any ongoing criminal trial, but are exceptional measures (art. 9 para. 2 of the Criminal Procedure Code), and the court can decide to sease the measure or make use of the measure in the light of the specific circumstances of each case. Of the five preventive measures, three are deprivation of liberty - detention, house arrest and pre-trial detention, and two are non-custodial: judicial control and judicial control on bail. All these measures are only applicable to the natural person. Specific preventive measures may be taken against legal persons, but those are regulated by the provisions of art. 493 of the Criminal Procedure Code.

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