scholarly journals The comparative historical and comparative legal characteristics of the Islamic criminal procedure

2020 ◽  
Vol 2 (4) ◽  
pp. 550-566
Author(s):  
Patimat A. Gusenova ◽  
◽  
Nikolay G. Stoyko ◽  
Keyword(s):  
Criminal Procedure ◽  
Ideal Type ◽  
Point Of View ◽  
Universal Model ◽  
Unanimous Opinion ◽  
Criminal Process ◽  
Judicial Decisions ◽  
Technical Structure ◽  
Administration Of Justice ◽  
Investigative Process

In order to analyze and characterize modern forms of the criminal process, it is customary to use comparative legal typologies. Within the framework of the comparative legal approach, the division of the criminal investigative process and controversial types is widespread (‘common’). Each of them is characterized by a certain spectrum of ideal attributes, opposed to each other and “embedded” in a wider typology of legal families. This article raises the question of the existence of a third universal model of the criminal process, which is considered the criminal process of the countries of Islamic rule (Islamic). It is concluded that in its technical structure (at the level of its procedural form), the Islamic criminal process belongs to the investigative type. However, if we consider the Islamic criminal process from the point of view of its procedural content, which has a religious legal explanation, it undoubtedly has the specifics that make it possible to speak of it as an independent ideal type (universal model). This is evidenced by three characteristics: the supremacy of the Koran and the Sunna over legislation and precedent; the priority of ijma (unanimous opinion of Muslim legal scholars) over the law (its procedural and substantive provisions) and judicial decisions (precedent); the administration of justice only by the cadi (judges who, by virtue of religious duty, subordinate to themselves all participants in the criminal process and are responsible for its entire course and outcome).

scholarly journals Court Discretion as Part of the Criminal Procedure Paradigm Structure

Legal Concept ◽  
2019 ◽  
pp. 166-173
Author(s):  
Ekaterina Azarova
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Fundamental Rights ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Law ◽  
Goals And Objectives

Introduction: the fundamental rights of citizens enshrined in the Constitution are accordingly reflected in the Code of Criminal Procedure of the Russian Federation. For more than fifteen years of the Code of Criminal Procedure application, the legislator has made about three hundred amendments that have increased its ambiguity and inconsistency. The very construct of its provisions is being built and in progress without a planned scientific and theoretical component of such building, without taking into account the empiricism of application. The Code of Criminal Procedure of the RSFSR was used as a constructive basis for the new law, where the stages of criminal process are the fundamental structure of the law. The presence and introduction of new types of judicial proceedings and related institutions as an additional “load” caused the “deflection” of the entire structure of the Criminal Procedure Code, the consequence of which was the increase of unceasing contradictions between the goals and objectives of criminal proceedings, its general conceptual provisions and the criminal process immediate stages. The author sets the purpose of the study, which consists in the justification of contradictions in the law. Methods: the methodological framework consists of the methods of historicism, systematicity, and comparative law. Results: grounded in the work the author’s point of view is based on the knowledge in criminal law. Conclusions: the study revealed that the court discretion is an integral part of the criminal procedure paradigm structure, as the perception by the court of the “truth” of the circumstances to be proved in a criminal case, interpreted by the opposite parties of the adversarial process, is only possible through the prism of assessing these circumstances by the court at its discretion, during the verification of evidence in a particular criminal case.

scholarly journals Measure for measure? judicial protagonism in Brazil, Beccaria’s fear, and the criminal procedure as constitutional instrumentality

2019 ◽  
Vol 5 (1) ◽  
pp. 253-275
Author(s):  
Alberto Hora Mendonça Filho ◽  
Clara Cardoso Machado Jaborandy
Keyword(s):  
Qualitative Research ◽  
Criminal Procedure ◽  
Criminal Process ◽  
Judicial Decisions ◽  
Documentary Analysis ◽  
Measure For Measure ◽  
Deductive Method ◽  
Cesare Beccaria ◽  
Do So

This paper’s main objective is to present, based on the Shakespearean play “Measure for Measure”, and the hermeneutical observations of Cesare Beccaria, the necessity of rethinking the role of the court in the criminal procedure. In order to do so, a qualitative research was adopted, as well as a bibliographical-documentary analysis, insofar as it dealt with scientific articles and doctrinal texts, as well as legislative documents and judicial decisions, using the deductive method. The undeniable contribution of literature to the juridical science is thus made visible, as it makes possible a strong critical subversion, besides portraying cultures and also working with interpretation. In this sense, after the synthesis of the Shakespearean plot, two models of judgments, objectivist and subjectivist, were visualized, which facilitates the debate about the magistrate’s role in the criminal process. This same logic was applied by Beccaria in “On Crimes and Punishments”, in which the author dismissed any kind of judicial voluntarism, and attributed to the judge the obedient execution of the written law. Thus, it was found that, since the constitutional reading of the criminal process is intrinsic to democracy, it is incumbent upon the magistrate to construct and maintain the process as a space for effecting guarantees and rights of the accused, so as to be a true spectator. Finally, the excessive emphasis on court decision results in a real disassociation with the accusatory system, as, by ignoring the semantic limits of the legal text, except in the case of constitutionality / conventionality control or in favor of the defendant, it performs a vulgar arbitration, which undermines the constitutional instrumentality.

THE PROCEDURAL FORM OF PRE-TRIAL PROCEEDINGS FOR CRIMES OF MISCONDUCT IN THE CRIMINAL PROCEEDINGS OF THE KYRGYZ REPUBLIC

2020 ◽  
Vol 20 (2) ◽  
pp. 177-184
Author(s):  
Kynatbek Smanaliev ◽  
◽  
Zulayka Sydykova ◽  
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Soviet Period ◽  
Judicial Reform ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Criminal Offenses ◽  
Current Code ◽  
Post Soviet Period

The article is devoted to the place of the shortened (protocol) form of criminal proceedings on misconduct cases. It says that in connection with the ongoing judicial reform in the Kyrgyz Republic, the Code of Criminal Offenses was developed and adopted. Misdemeanor offenses include offenses of minor gravity. The point of view of scientists of the post-Soviet period on the possibility of being an abbreviated form of criminal proceedings in the criminal process, as well as some of them in its denial, is given. An analysis is given of the fact that at present, such a form of criminal proceedings as abridged (protocol) in the current Code of Criminal Procedure of the Kyrgyz Republic cannot be. In substantiating this argument, the authors believe that misconduct is a crime. In this regard, they argue that it is impossible to simplify various procedural forms and institutions, eliminate certain procedural actions provided for in the current Code of Criminal Procedure of the Kyrgyz Republic, and reduce certain procedural guarantees.

scholarly journals Problems of using formal means of proof in russian criminal proceedings

2021 ◽  
Vol 7 (1) ◽  
pp. 115-119
Author(s):  
S. V. Mokrushin
Keyword(s):  
Criminal Procedure ◽  
Regulatory Framework ◽  
Point Of View ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Objective Truth ◽  
Characteristic Features

The article deals with the problem of the need to establish the objective truth in a criminal case in the context of consolidation in the criminal and criminal procedure legislation of the norms on the use of formal means of proof along with evidence. The article describes the characteristic features of various types of formal means of proof, reveals their significance in the Russian criminal process, and also highlights the most problematic issues of using formal means of proof to achieve the goals of criminal proceedings. The author suggests approaches to solving this problem from the point of view of achieving a reasonable balance of using the advantages that formal means of proof provide, if necessary, to minimize the negative aspects of their use, taking into account modern means and methods of obtaining evidence. The author substantiates the idea of the need to make changes to the relevant regulatory framework, which should eliminate the existing one at the present time.

scholarly journals THE INVESTIGATOR’S INDEPENDENCE: CHALLENGING ASPECTS OF THE DETERMINATION OF THE LEGAL ESSENCE AND FUNCTIONAL PURPOSE

2020 ◽  
Vol 11 ◽  
pp. 19-23
Author(s):  
Denis P. Popov ◽  
Keyword(s):  
Legal Status ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Process ◽  
Professional Activities ◽  
Legal Nature ◽  
The Law ◽  
Functional Purpose

The article examines topical issues relevant to the domestic criminal process related to the determination of the legal nature and functional purpose of the category ≪procedural independence of the investigator≫. Based on the analysis of the theory, criminal procedural legislation and the practice of its application, the author concludes that from the point of view of the legal nature, the independence of the investigator should be considered as a ≪criminal procedure tool≫ provided to him by the law, functionally designed for professional activities. The concept of the category in question is proposed, as well as measures aimed at improving the legislation determining the legal status of the investigator and regulating his procedural independence.

FUNCTIONING OF THE MENTAL DEFENSES IN THE CONDUCT OF INTERROGATION WITHIN THE CRIMINAL PROCESS

2018 ◽  
Vol 28 (6) ◽  
pp. 2161-2165
Author(s):  
Hristo Ivanov Popnikolov
Keyword(s):  
Objective Assessment ◽  
Critical Conditions ◽  
Criminal Process ◽  
External Influences ◽  
Administration Of Justice ◽  
Individual Protection ◽  
The Subject ◽  
The Individual ◽  
The Cost ◽  
Subjective Side

From the subject presented in the report it is evident that the pre-trial and the court bodies may, to some extent, be influenced both by the person of the accused and by his competence to participate in the criminal process. In this regard as an expert, the psychologist can offer invaluable assistance. Each expertise would assist all actors involved in the administration of justice on their objective assessment of the offenders, the understanding of their individual protection and the inherent self-justification during procedural actions. The involvement of psychologists in the criminal process is key to establishing the truth in the investigation, because every crime as an act has a subjective side, expressed in the psychic attitude of the perpetrator to the committed act. Establishing these psychological motives is a key point in the criminal process with a view to establishing the truth.Psychological protection stabilizes the personality in the critical conditions of counteraction, related to the elimination of the experiences of tension, anxiety, stress and frustration, leading to maximum mobilization of its resources and at the same time to their overpayment. Thus, the individual who is the subject of the process action is protected against the adverse external influences, but at the cost of a lot of effort and enormous loss of nervous-mental energy, which increases his own vulnerability instead of contributing to its reduction. The appearance and functioning of psychological protection can be significantly impeded by the interaction of the investigator with the accused. Even more complicated is the situation when it breaks the communication contact that may arise in the psychological alienation and self-isolation of the accused due to the desire to protect himself.Protective psychological dominance is a real psychic activity that investigators, investigators, investigators and judges need to take into account in order to effectively deal with their task and to overcome the resistance of the investigated persons and in a time to prove in a lawful and moral way their guilt and participation in the commitment of the crimes.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

Judicial geography as a legal science and academic discipline

2019 ◽  
Vol 5 (4) ◽  
pp. 122-137
Author(s):  
Almaz F. Abdulvaliev
Keyword(s):  
Criminal Law ◽  
Climatic Factors ◽  
Academic Discipline ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Mapping Method ◽  
Research Field ◽  
Point Of View ◽  
Theoretical Development ◽  
New Research

This article presents the conceptual foundations for the formation of a new research field “Judicial Geography”, including the prerequisites for its creation, academic, and theoretical development, both in Russia and abroad. The purpose of the study is to study the possibility of applying geographical methods and means in criminal law, criminal procedure, and in judicial activity in general via the academic direction “Judicial Geography”. The author describes in detail the main elements of judicial geography and its role and significance for such legal sciences, as criminal law, criminal procedure, criminalistics, and criminology among others. The employed research methods allow showing the main vectors of the development of judicial geography, taking into account the previous achievements of Russian and worldwide academics. The author indicates the role and place of judicial geography in the system of legal sciences. This study suggests a concept of using scientific geographical methods in the study of various legal phenomena of a criminal and criminal-procedural nature when considering the idea of building judicial bodies and judicial instances, taking into account geographical and climatic factors. In this regard, the author advises to introduce the special course “Judicial Geography”, which would allow law students to study the specifics of the activities of the judiciary and preliminary investigation authorities from a geographical point of view, as well as to use various geographical methods, including the mapping method, in educational and practical activities. The author concludes that forensic geography may become a new milestone for subsequent scientific research in geography and jurisprudence.

Criminal Procedure

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Criminal Procedure ◽  
Legal Assistance ◽  
Criminal Process

This chapter discusses the criminal procedure laws applicable before a defendant is tried. It is intended to be read alongside Chapter 12, which covers criminal procedure during trials, appeals, post-conviction avenues (including clemency and parole), and potential reforms. This chapter outlines the rules in the Code of Criminal Procedure (KUHAP) relating to police arrest, detentions, and investigations, and the circumstances in which cases may proceed for prosecution. During these stages of the criminal process, suspects and defendants have various ‘on paper’ rights, including: to silence; legal assistance; and to challenge their arrest, detention, or being named a suspect. However, as this chapter shows, these rights are, in practice, routinely ignored.

DEFINITIONS OF CATEGORIES PURPOSE AND TASKS OF CRIMINAL PROCEEDINGS IN THE MODERN CRIMINAL PROCESS

2018 ◽  
Author(s):  
Svitlana Patiuк ◽  
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Modern Theory ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Norms ◽  
State Changes ◽  
The Individual ◽  
Goals And Objectives ◽  
Functional Purpose

"Definitions of categories, the goal and objectives of criminal proceedings in modern criminal proceedings" analysed the legal norms and provisions of doctrinal concepts to determine the goals and objectives of criminal proceedings. The author formulated conclusions and generalizations that since criminal proceedings are a sphere of state activity, it depends on the direction of the political course of the state, changes in state policy, which always leads to a change in the ideology of the criminal process as a whole, including the transformation of goals and objectives criminal proceedings. The purpose and objectives of criminal proceedings depend on the historical form of the criminal process, a common feature of which is the ratio of freedom (interests) of the individual and the state, expressed in the procedural position of the main participants in the process. Criminal procedure legislation and doctrine define the resolution of a dispute (conflict) between the state and the accused arising as a result of the commission of a crime as the goal of the criminal process in most countries in which the adversarial nature of criminal proceedings prevails. As the goal of criminal proceedings in the modern theory of criminal procedure, it is proposed to consider the protection of the individual, society and the state from criminal offences in the settlement of criminal-legal conflicts arising as a result of these offences. The goal in the criminal process determines the setting of tasks and represents the ultimate conclusion from the sum of all the tasks being implemented. The task of criminal proceedings should be determined taking into account the functional purpose of the subjects of criminal proceedings, and therefore the task is the fulfilment of his duty by a participant in criminal proceedings, which is determined by his functional purpose, based on the principle of competition of the parties.

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