scholarly journals Waiver of rights in Russian criminal procedure: Issues of theory, legislative regulation, and law enforcement

2020 ◽  
Vol 11 (3) ◽  
pp. 651-665
Author(s):  
Irina N. Chebotareva ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Freedom Of Choice ◽  
European Court ◽  
The Russian Federation ◽  
The Difference ◽  
The Right

The article discusses the waiver of procedural rights as a particular legal phenomenon. The rationale for studying the waiver of rights in the Russian criminal procedure doctrine arises from the expansion of the spheres of disposition and adversarial nature in present-day Russian criminal procedure. In order to form an overall picture of the ‘waiver of rights’, the article describes its distinctive features and elements that characterize it. Additionally, the theoretical aspects of the waiver of rights in present-day Russian criminal procedures, as well as the legal regulation of a waiver, are analyzed. A waiver of subjective rights is understood as an expression of a legal person’s will in terms of failure to behave as provided for by objective law, which is characterized by voluntariness, awareness, and freedom of choice. It is asserted that any non-realization of rights by a subject is not considered a waiver. The difference is demonstrated in the understanding of the concept ‘waiver of rights’ in the approaches of the European Court of Human Rights, the Constitutional Court of the Russian Federation, as well as in the interpretation of the rules of criminal procedural legislation, which regulates a person’s ability to waive the rights granted to them by the Supreme Court of the Russian Federation. The article states that the disposition principle of legal regulation, applied by the legislator to participants in criminal proceedings defending their personal interests, presupposes the legislatively established possibility of a person to refuse to exercise the right unless it violates the more important public interest. Attention is given in the article to the necessity of guarantees that ensure voluntariness, awareness, and freedom of choice in case of a person’s waiver of their rights.

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 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.

scholarly journals SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

2020 ◽  
Vol 30 (5) ◽  
pp. 747-752
Author(s):  
A.I. Shmarev
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.

scholarly journals Manipulation of the Right to Defense from the Standpoint of Securing the Right of the Accused to Free Selection of an Attorney

2021 ◽  
Vol 1 ◽  
pp. 33-39
Author(s):  
Irina V. Revina ◽  
◽  
Olesya S. Pashutina ◽  
Irina N. Chebotareva ◽  
◽  
...  
Keyword(s):  
Russian Federation ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Legal Position ◽  
The Russian Federation ◽  
Constitutional Right ◽  
Individual Decisions ◽  
The Right

Based on the analysis of the legal position of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, individual decisions of the European Court of Human Rights, the article examines the factors that determine the participation of backup advocates in criminal proceedings. The article analyzes the criteria for the validity of the refusal of the accused/defendant from the defense-backup in the criminal proceedings. Attention is focused on the inadmissibility of duplication of the functions of the defense that violates the constitutional right of the suspect, the accused to freely choose a lawyer. Methods for resolving the designated legal conflict are proposed.

scholarly journals To the question about the possibility of using the results of the operational search activities in criminal proceedings

2020 ◽  
pp. 180-185
Author(s):  
N. A. Mikhailichenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Legal Regulation ◽  
Court Decision ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
European Court ◽  
The Russian Federation ◽  
Criminal Legislation

The article analyzes the issue of the lack of proper legal regulation of requirements for the results of operational-search activities used in the field of criminal proceedings. A separate place is given to the problem of assessing the presented results of operational-search activities. On the basis of the practice of the Constitutional Court of the Russian Federation and the European Court of Human Rights, a solution to this problem is proposed. At the same time, the provision is taken as a basis that any, in direct or indirect form, affecting the constitutional rights of citizens in the course of operational-search activities, entails the need to obtain a court decision for such activities. The question of the need to reform the criminal legislation is outlined. 

scholarly journals REASONABLE TIME OF CRIMINAL PROCEEDINGS: CRIMINALISTIC CHARACTER

2020 ◽  
Vol 6 (4) ◽  
pp. 101-111
Author(s):  
K. A. Korsakov ◽  
V. V. Konin ◽  
E. V. Sidorenko
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

In the Russian legal system, the understanding that justice should be not only timely, but also fast enough has matured for a long time. The delay in the investigation of a criminal case and its consideration by the court allows the guilty to avoid the deserved punishment in some cases, which calls into question the principle of inevitability of punishment on the one hand, and hinders the right to access justice, on the other hand. The term reasonable time for legal proceedings has emerged as a requirement of international law to be tried without undue delay. The right to a reasonable period of criminal proceedings is regulated by Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but this norm is not fully implemented to date, as evidenced by the decisions of the European court of human rights issued on complaints of violation by the Russian Federation of the provisions of the European Convention for the protection of human rights and fundamental freedoms. At the same time, the available research considers the requirement of reasonable terms in criminal proceedings from the standpoint of criminal procedure law, which is not fully justified. The article attempts to consider the problematic issues of reasonable terms of criminal proceedings from the perspective of criminology, as a science that has incorporated theoretical and practical issues of fighting crime, as well as the problems of criminalistic criteria in criminal proceedings.

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 ON THE DEFECTS OF LEGAL REGULATION OF THE CONCEPT OF LIABILITY FOR TAX OFFENCES

2020 ◽  
Vol 15 (1) ◽  
pp. 164-182
Author(s):  
Zhanna A. Nikolaeva
Keyword(s):  
Russian Federation ◽  
Tax Evasion ◽  
Criminal Procedure ◽  
Legal Liability ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
The Russian Federation ◽  
The Law

The author analyzes the content of interrelated tax norms, administrative and criminal laws, which constitute the concept of liability for tax offences. The analysis makes it possible to identify the elements that cause non-compliance with the foundations of legal liability in criminal proceedings: its inevitability, equality of everyone before the law and the court, justice. Representatives of small and medium- sized businesses are placed in unequal, discriminatory circumstances in comparison with large businesses. In addition, the legislation on taxes and fees contains provisions which create obstacles for the operation of criminal and criminal procedure laws. Many instances of tax evasion, the non-payment of fees and/or insurance fees in large and especially large amounts revealed by tax services do not become known to investigative bodies. In this case, the principle of the priority of sectoral legislation ceases to work, since in criminal proceedings the provisions of the Tax Code of the Russian Federation cancel out the effect of the norms which are common to all types of crimes and express the foundations of a particular sector of law. This paper substantiates the need to improve the concept of liability for violations of the legislation on taxes and fees.

scholarly journals MEDICINES: CONSTITUTIONAL AND LEGAL REGULATION ON RESTRICTION OF THE PROPERTY RIGHT CONCERNING TECHNOLOGY TRANSFER SUBJECTS AND THE RIGHT TO CONDUCT ENTREPRENEURSHIP ON IMPORT OF MEDICINAL PRODUCTS IN CONDITIONS OF CONFLICT AND TEMPORARY OCCUPATION

2021 ◽  
pp. 6-13
Author(s):  
Юрій Бисага
Keyword(s):  
Technology Transfer ◽  
Russian Federation ◽  
Legal Regulation ◽  
Democratic Society ◽  
Medicinal Products ◽  
Public Values ◽  
European Court ◽  
The Russian Federation ◽  
The Law ◽  
The Right

  The purpose of this article is to identify the features of restriction of ownership on the subjects of technology transfer regarding production of medicines and the right to run business on the import of medicines in conditions of conflict and temporary occupation. The methodological basis of the conducted research is the general methods of scientific cognitivism as well as concerning those used in legal science: methods of analysis and synthesis, formal logic, comparative law etc. When determining the legitimate purpose of restriction, it is necessary to apply the principle of proportionality, which is the concordance of measures applied to the above entities in order to limit the exercise of their rights with those public values that are protected by such restriction. On the procedural level, the State having realized the right for withdrawal has to comprehensively inform the General Secretary of the Council of Europe as for the measures taken and the reasons for them, as well as the time when those measures have ceased to apply and the provisions of the Convention are profoundly applied again. As the case law of the European Court of Human Rights shows, the derogation from the obligations under the Convention must have territorial and temporal specifications. The following features of the constitutional and legal regulation of restriction of property rights for subjects of technology transfer to the production of medicines are revealed: 1) restrictions on the implementation of these rights should be provided by the law, which must meet the following requirements: clarity, accuracy, accessibility; 2) the measure is a temporal one; 3) the range of entities in respect of which it is applied to are the subjects of technology transfer being residents of the aggressor country; 4) legitimate purpose of implementation is protection of public values (national security, life and health of persons staying on the territory of Ukraine, territorial integrity, etc.); 5) necessary in democratic society. The following features of the constitutional and legal regulation of restrictions on the right for running business activities regarding import of medicines during conflict and temporary occupation of the part of the territory of Ukraine by the Russian Federation are revealed: 1) restrictions on the exercise of these rights are provided by the Law of Ukraine “On Foreign Economic Activity” from 04.07.2017 №18.1-07/18369, which meets the following requirements: clarity, accuracy, accessibility; 2) the measure is temporal one; 3) the range of entities in respect of which it is applied to is addressed to the applicants of medicinal products, alternative and/or potential manufacturers, applicants-holders of registration certificates of which are the subjects of the Russian Federation; 4) legitimate purpose of implementation is protection of life and health of persons staying on the territory of Ukraine in connection with the impossibility of providing Ukraine with proper control over the quality of production of medicines within the Russian Federation; 5) necessary in democratic society.    

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.

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