scholarly journals Inadmissibility of Evidence as a Procedural Reason for Exclusion

2019 ◽  
Vol 3 (1) ◽  
pp. 80-86
Author(s):  
Екатерина Лебедева ◽  
Ekaterina Lebedeva
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Inadmissible Evidence ◽  
Procedure Code ◽  
Legal Nature ◽  
Judicial Investigation ◽  
Repeated Applications ◽  
The Russian Federation ◽  
Court Of First Instance ◽  
New Evidence

The research featured the issues of legal regulation and exclusion of evidence claimed in the court of first instance in criminal procedure. The author analyzed the legislative regulation of the procedure for the application and consideration of petitions for the exclusion of evidence, as well as some practical issues of petitions for the exclusion of evidence. The procedure for the application and consideration of petitions for the exclusion of evidence is not fully regulated by the legislator. The Criminal Procedure Code of the Russian Federation focuses on the stage of preliminary hearing, while on the merits procedure remains unsettled. The exclusion of evidence in a preliminary hearing prevents defective evidence from entering the trial. Repeated applications should be seen as an alternative to the institute of appeal, since a re-application of the petitions allows the parties to express their opinion on the decision and provide new evidence in support of their position. The resolution of the issue of the admissibility of evidence cannot be postponed to the stage of the verdict, since this contradicts the legal nature of the institution of excluding unacceptable evidence and its purposes. The author proposes to include application rules for the exclusion of evidence in the Code of Criminal Procedure at the stage of judicial investigation. The results of the present study contribute to the issue of inadmissible evidence.

Ensuring the Rights and Legal Interests of the Victim when Checking the Crime Report: A Comparative Legal Analysis of the Criminal Procedure Codes of the Russian Federation and the People’s Republic of China

2021 ◽  
pp. 128-133
Author(s):  
Irina G. Smirnova ◽  
◽  
Ekaterina V. Alekseeva ◽  
◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
People’S Republic Of China ◽  
Legal Analysis ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Procedure Code ◽  
The Russian Federation ◽  
Procedure Codes

The article presents a comparative legal analysis of the norms of the Criminal Procedure Code of the Russian Federation and the Criminal Procedure Code of the People’s Republic of China, which regulate the rights and powers of the victim within the framework of the stage of initiating a criminal case. The authors highlight several significant differences in the legal regulation of this issue. The differences are: the obligation to comply with the rules of jurisdiction in China at the stage of filing a statement of a crime, which is not required under the Code of Criminal Procedure of the Russian Federation; compulsory fingerprinting of a person when filing a crime report with a public security agency implemented in China; the existence of several types of preliminary checks (the list of activities carried out as part of these checks in China is open); intensive development of IT technologies and their introduction into the life of society, including for the fight against crime and ensuring law and order in society, in China.

To the Matter of Procedural and Legal Problems of Detaining a Person on Suspicion of Committing a Crime

2021 ◽  
Author(s):  
E.V. Bolshakov ◽  
◽  
I.D. Nazarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
The Moment

The subject of the research within the framework of the article is the criminal procedure institute for the detention of a person on suspicion of committing a crime. The legal nature of this institution is analyzed, and comments are given on the normative legal acts and judicial practice regulating the issues of detention. The theoretical basis of the research is based on the publications of the last two decades on this problem, in particular, reflecting the discussion of the process scientists S. A. Shafer, S. B. Rossinsky and A. A. Tarasov, the subject of which was the issue of the legal nature of a suspect detention in a criminal case. In the paper, the authors ask the following questions: What is the detention of a person on suspicion of committing a crime in accordance with the legislation of the Russian Federation? From what moment does the detained person acquire the status of a suspect? Is it possible to detain a person before initiating a criminal case? The study concludes that a person acquires the actual status of a suspect from the moment of direct detention, that is, before documenting this status and, as a result, before initiating a criminal case. Amendments to the articles of the Criminal Procedure Code of the Russian Federation are proposed, and the authors` versions of the definitions of the concepts «detention of a suspect», «the moment of actual detention» and «pre-trial proceedings» are given.

ELECTRONIC CRIME INCIDENT REPORT AS A REASON TO INITIATE A CRIMINAL CASE (THE COMPARATIVE ANALYSIS OF LEGAL REGULATION IN THE NORMATIVE ACTS OF THE RUSSIAN MINISTRY OF INTERNAL AFFAIRS AND THE RF CRIMINAL PROCEDURE CODE)

2021 ◽  
pp. 44-50
Author(s):  
P. A. Samoylov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Electronic Interaction ◽  
Incident Report ◽  
Procedure Code ◽  
The Russian Federation ◽  
Internal Affairs ◽  
Electronic Crime ◽  
Crime Reports

The integration and active application of electronic document flow to the daily activities of the police have consistently and logically led to the fact that the electronic crime incident report is increasingly used as a reason to initiate criminal cases. The departmental normative legal acts of the Ministry of Internal Affairs of Russia regulate in detail the processing of such reports. However, under the RF Criminal Procedure Code, not all electronic crime reports registered by the Departments of Internal Affairs meet the established requirements, and, accordingly, they can not perform the function of a criminal procedural cause. In this situation, with the obvious relevance of electronic documents, an example of a contradiction and gap in the law is evident, which somewhat hinders the development of electronic interaction between the participants of criminal procedural activity and can cause negative consequences. The paper analyzes and compares the provisions of some normative sources regulating the reception and consideration of electronic crime reports by the Departments of Internal Affairs of the Russian Federation and the norms of criminal procedural legislation. The author critically evaluates the legal definitions of the concept of a crime incident report and some organizational and legal mechanisms for accepting and considering electronic crime reports established by the departmental legal acts of the Ministry of Internal Affairs of the Russian Federation. The study highlights and clarifies the rules of filing, mandatory requisites, and some other requirements for electronic crime reports, which must be complied with according to the provisions of the criminal procedure code. Based on the data obtained, the author offers recommendations to improve criminal procedural law and the algorithm of accepting electronic crime reports using the official websites of the Departments of the Ministry of Internal Affairs of the Russian Federation.

scholarly journals ON THE RELEVANCE OF THE DEVELOPMENT OF PROCEDURES IN PRE-TRIAL PROCEEDINGS APPLICABLE UNDER ARTICLES 25, 25.1, 28 PART 1, 28.1 OF THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION, AND THEIR CLASSIFICATION

2021 ◽  
Vol 31 (6) ◽  
pp. 1078-1084
Author(s):  
M.N. Tarsheva
Keyword(s):  
Rule Of Law ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Regulation System ◽  
Structural Element ◽  
The Rule Of Law ◽  
Procedure Code ◽  
The Russian Federation ◽  
Legal Procedures

Legal procedures in a state governed by the rule of law are a kind of guarantor of legality and protection of citizens' rights, and therefore issues related to the development and improvement of the procedural mechanism are among the top priorities. The procedural mechanism is the most important structural element of the legal regulation system, which includes entire procedural branches. The article substantiates the need to develop and legislate procedures within which actions can be carried out to reconcile and make amends for harm, compensation for damage or otherwise make amends for harm (since gaps and shortcomings in the legislation associated with the lack of procedural mechanisms do not allow to fully realize the human rights potential of Articles 25, 25.1, 28 Part 1, 28.1 of the Criminal Procedure Code of the Russian Federation), as well as the need to classify these procedures (which has not been previously carried out). The author proposes to divide such procedures into conciliatory and restorative ones. The author's definitions of conciliation and restorative procedures in pre-trial proceedings are given.

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 To the admissibility of the civil law exemption of property from arrest, imposed in the criminal proceedings: domestic and foreign experience

2017 ◽  
Vol 1 (3) ◽  
pp. 190-200
Author(s):  
Natalia Kashtanova
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
Judicial Protection

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.

scholarly journals Grounds for Canceling Seizure in Pre-Trial Criminal Proceedings

2020 ◽  
pp. 228-233
Author(s):  
Boris B. Bulatov ◽  
◽  
Alexander S. Dezhnev ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Public And Private ◽  
Private Interests ◽  
Procedure Code ◽  
Civil Lawsuits ◽  
The Russian Federation

The article examines the normative legal basis of the grounds for canceling property seizure in pre-trial criminal proceedings. The problem of the legislator’s usage of evaluative categories in removing investigator’s, interrogator’s or court’s restrictions is also analyzed. The solution of this problem is made dependent on the implementation of public or private interests. Discussing these issues, the authors come to the conclusion that this sphere is neither presented nor analyzed in academic monographic works. This circumstance indicates the novelty of the study owing to the legal positions of the Constitutional Court of the Russian Federation on the issue. The conclusion about the priority of public principles over private interests concerning matters which are not related to civil lawsuits is made on the grounds of empirical data and the analysis of legislative approaches. The contradictions of the provisions of the Criminal Procedure Code of the Russian Federation regulating the basis and procedure for canceling property seizure and the laws on bankruptcy are identified. The directions for improving the legal regulation of these issues are presented. The necessity of a multisectoral regulation of some aspects of law enforcement is inferred. The examination of private principles in canceling property seizure is connected with securing a civil lawsuit in criminal proceedings. The authors substantiate the existence of additional opportunities in making decisions in this field via the legal regime. This regime is also used in some other legal acts and may be put into practice in accordance with the Criminal Procedure Code of the Russian Federation. However, the imposed restrictions can be canceled on the basis of the decision by a person considering a criminal case. The authors note the incoherence of some provisions of Part 3 and Part 9 of Article 115 of the Criminal Procedure Code of the Russian Federation. This incoherence is connected with different approaches to the view on public and private interests in decision making. The authors substantiate the necessity of a legal linking of grounds for canceling property seizure with the decision on imposing this resriction. The conclusion about the comprehensive order of property seizure is made in the final part of the article. It is also stated that this order does not contain distinct criteria of the legality of the decision. Certain parts of the criminal procedure laws should be corrected. Some ways to improve the field of legal regulation concerning the opportunity of canceling seizure are given.

PECULIARITIES OF THE PROCEDURAL STATUS OF SUBJECTS WHICH HAVE THE OBLIGATION OF PROOF DURING THE PRE-TRIAL INVESTIGATION OF CRIMINAL OFFENSES

2017 ◽  
Author(s):  
Andrii Vorobey ◽  
Keyword(s):  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Point Of View ◽  
Law Enforcement Agencies ◽  
Legal Norms ◽  
Procedure Code ◽  
Criminal Offenses ◽  
Judicial Investigation ◽  
Definition Of

The article considers the peculiarities of the procedural status of the subjects who are obliged to prove criminal offenses during the pre-trial investigation, taking into account the latest changes in the current criminal procedure legislation made in connection with the adoption of the Law of Ukraine n Amendments to Certain Legislative Acts of Ukraine Concerning Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses". The author notes that this issue is little studied in the scientific literature and relevant from a practical point of view. The peculiarities of the procedural status of the head of the inquiry body are studied, a number of problematic issues of legal regulation of the powers of the specified subject of evidence are indicated and it is proposed to amend the current version of Article 391 of the Criminal Procedure Code of Ukraine to eliminate contradictions. The procedural status of the interrogator and the person authorized to carry out pre- trial investigation of criminal offenses is analyzed, offers on modification of item 401 of the Criminal procedure code of Ukraine are presented. It is also proposed that the bylaws of the relevant law enforcement agencies provide for qualification requirements for persons authorized to investigate criminal offenses in the form of higher legal education in the specialty "Law", as the lack of qualification requirements may adversely affect the quality of pre-trial investigation of criminal offenses. The content of Articles 84, 92 and 94 of the Code of Criminal Procedure of Ukraine is analyzed, proposals are made to supplement these legal norms after the word "investigator" with the word "interrogator". The specific circle of subjects on which the duty of proof during the pre-judicial investigation in the form of inquiry is assigned is defined. According to the author of the article, further areas of research of certain problematic issues are a comprehensive doctrinal study of the legal status of such subjects of evidence as the interrogator and head of the inquiry body, determination of legal guarantees of their activities and procedural independence, definition of functions and tasks assigned to these subjects.

Ensuring the principle of adversarial parties by the investigator at the end of the criminal prosecution

2021 ◽  
Vol 7 (Extra-A) ◽  
pp. 304-310
Author(s):  
Viktor Victorovich Pushkarev ◽  
Alexander Ivanovic Gaevoy ◽  
Andrei Gennadievich Kolchurin ◽  
Nikolay Nikolaevich Bukharov ◽  
Nikolay Kazimirovich Pcholovsky
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Current Version ◽  
Close Attention ◽  
Procedure Code ◽  
European Court ◽  
The Russian Federation ◽  
Legal Justification

The article pays close attention to the problems of ensuring the principle of adversarial parties by the investigator at the end of the criminal prosecution of a person, by preparing an indictment in a criminal case, for its further referral by the prosecutor to the court.  The article reveals the significant issues of ensuring the principle of competition at the end of the criminal prosecution of a person in a pre-trial order, due to which, the domestic judicial and investigative practice and the relevant decisions of the European Court of Human Rights are analyzed.  The obtained data form the basis of the theoretical and legal justification of the need to change the current version of the Criminal Procedure Code of the Russian Federation in order to improve the mechanism of legal regulation of criminal procedure relations arising at the end of the preliminary investigation with an indictment.  

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