scholarly journals Institute of consent with accusation in criminal proceedings of Russia and foreign countries

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Sergey F. Shumilin ◽  
Petr A. Kolmakov ◽  
Aleksander A. Nasonov ◽  
Ekaterina A. Novikova ◽  
Oksana S. Shumilina
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Study ◽  
Procedure Code ◽  
Foreign Countries ◽  
Alternative Measures ◽  
Legal Consequences

The current study attempts to present the effects of a comparative legal study regarding the legal consequences of consent with accusation in Russia and foreign countries' criminal processes. It has been established that the institution of consent with accusation in the Russian criminal process does not have a significant effect on its reduction, and also does not determine the development and application of alternative measures of punishment for committing crimes. According to the current Criminal Procedure Code of Russia, consent with accusation concerning committing crimes of small and medium gravity entails the same consequences: release from criminal liability and reduction of the amount of punishment. Following the principle of fairness, the authors substantiated the most appropriate alternative penalties provided by the criminal procedure legislation of Germany and France.

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.

General and Special Theories of Criminal Procedure

2021 ◽  
pp. 249-254
Author(s):  
Sergey V. Slinko ◽  
◽  
Dmitry S. Slinko ◽  
Dmitry V. Filin ◽  
◽  
...  
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Special Theory ◽  
Criminal Proceedings ◽  
Conceptual Approach ◽  
Basic Principles ◽  
Procedural Law ◽  
Alternative Measures ◽  
Judicial Actions

The relevance of the article can be determined on the basis of research on general theories of criminal procedure. The main theoretical provisions of the criminal procedure of continental Europe began to be developed in 1864, after the adoption of the Charter of the Criminal Proceedings of Russia. Theoretical developments included a conceptual approach that defined guarantees for the rights, freedoms and interests of participants in the procedure, basic principles, forms of evidence and proving, the procedure for investigative and judicial actions. The aim of the article is to reveal the theoretical content of the general theory of the procedure and to determine new special theories enshrined in the current legislation. If general theories of the procedure have been considered at the level of monographic research, special ones have remained outside the scope of studies. The novelty of the research consists in the disclosure of theoretical and practical aspects of general and special theories of criminal procedure on the basis of existing legislation and the practice of its application by criminal justice authorities and the collegiate court. The article considers the theoretical aspects of a special theory. Issues of the optimization and procedural economy of criminal procedure based on benchmark theory are related to the release of a person from criminal liability and the use of alternative measures. New legal definitions are proposed that establish a clear mechanism for procedural, investigative (search), judicial actions in establishing, securing, evaluating evidence of guilt or innocence of a person. The existing legal constructions of general theories provide an impetus for the application of special theories of criminal procedure, which are associated with solving the problems of criminal proceedings, its optimization, and procedural economy of applying criminal procedural repression. The current criminal procedural law does not fully define the concept of general and special theories of the procedure. The article proposes theoretical aspects and practical solutions to these emerging problematic issues. The basic concept of the article includes the analysis of general and special theories of criminal procedure, the determination of the provisions for its optimization and procedural economy on the basis of the unified content of criminal and procedural rules in establishing circumstances related to the closure of criminal proceedings, and the release of a person from criminal liability. Based on the analysis of the current criminal procedural legislation, the content of procedural repressions, which are determined on the basis of the procedural status of prosecution and the mechanism of their application with respect to a particular category of participants in criminal proceedings, is revealed.

scholarly journals Procedural analogy: independent principle of criminal proceedings or the element of legality

2020 ◽  
pp. 113-126
Author(s):  
Nadiia Drozdovych
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Historical Aspect ◽  
Legal Norms ◽  
Judicial Practice ◽  
Procedure Code ◽  
Scientific Results ◽  
The Right ◽  
Principle Of Legality

The article is devoted to the study of procedural analogy place in the system of criminal proceedings principles in connection with the statutory provisions of Part 6 of Art. 9 of the Criminal Procedure Code of Ukraine. The historical aspect of the analogy institution normative consolidation in the domestic criminal process is given, which indicates that the institution of analogy in the norms of the Criminal Procedure Code has not been directly enshrined since the 1920s. At the same time, the science justified its necessity and admissibility in the criminal process; scientific results in this area are also given in the article. The existence of two types of analogy is stated: “analogies of right” and “analogies of law”, in connection with which the doctrinal provisions on the applicability of any of them in the modern criminal process are analyzed. The article also provides examples to use the institution of analogy in the judicial practice of the court of cassation. It has been established that despite the legislative technique, the doctrinal provisions and judicial practice state the admissibility of two types of analogy in the domestic criminal process. In this regard, the use of the term “procedural analogy” is justified as the most correct and such, which in its content covers the notion “analogy of the right” and the "analogy of the law". Since the legal norms on procedural analogy are placed within the framework of CPC article on the principle of legality, its relationship with the procedural analogy is determined. To this end, doctrinal statements about the concept of principles of criminal proceedings, author's positions on their classification as well as the criteria for their separate definition are given. Based on the above material, it was concluded that the procedural analogy is not an independent principle of criminal proceedings. The fact that the provisions of Part 6 of Art. 9 of the Criminal Procedure Code placed in the content of the principle of legality, suggests that the procedural analogy is one of the ways to achieve and implement this principle. Key words: analogy of law, analogy of right, procedural analogy, general principles of criminal proceedings.

scholarly journals The essence and problems of substantiating certain types of decisions in criminal proceedings

2021 ◽  
Vol 136 (3) ◽  
pp. 98-104
Author(s):  
V.V. Djafarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Procedure Code ◽  
Mandatory Requirement ◽  
The Russian Federation ◽  
The Republic ◽  
Definition Of ◽  
Procedural Decisions

The article considers problems of substantiating certain types of decisions in the criminal process. The author’s views are based on recent changes in the criminal procedure legislation of the Republic of Kazakhstan and the existing experience of the Russian Federation. The article focuses on provisions of the current criminal procedure code of the Republic of Kazakhstan. The author refers to Russian proceduralists whose works are devoted to the problems of studying the validity of procedural decisions at the pre-trial stage. The author indicated types of decisions, which are not recognized as criminal procedural, but for which justification should be a mandatory criterion according to the criminal procedural legislation of the Republic of Kazakhstan. The article provisions justify the need to enshrine the definition of «reasonableness» in the Criminal Procedure Code of the Republic of Kazakhstan as a mandatory requirement that must be met when taking decisions by the prosecuting authorities.

Basic principles of the prosecutor in criminal proceedings under Criminal Procedure Code of Ukraine

2016 ◽  
Vol 8 (1) ◽  
pp. 111-122 ◽  
Author(s):  
Ihor Rohatiuk
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Basic Principles ◽  
Criminal Process ◽  
Criminal Proceeding ◽  
Procedure Code ◽  
The Times

Principles have always been the cornerstones of criminal proceedings’ legal regulation affecting all participants of criminal process. Taking into account the accelerated pace of current law enforcement reforming it is necessary to mention the prosecution institute and key role of criminal proceedings’ principles presenting scientific background for further empirical findings. The majority of these principles defines the priority growth directions of criminal process as well as creates friendly environment for behavioral aspects of criminal proceeding parties. This article provides comparative analysis of the existing criminal procedural principles of the prosecutor’s role in the criminal proceedings with specification of the legality principle as a requirement for all subjects of the criminal proceedings, including the prosecutor, to use the norms and provisions of legal acts correctly, to comply it consistently and perform accurately, explores the historical origins of these principles and their determinants’ origin starting from the times of Kievan Rus and its unique judicial system and proves that the adversarial principle is closely connected with dispositivity of prosecutor’s participation in criminal proceeding. An emphasis is placed on correlation between the ‘principles’ and ‘foundations’ terms examined by Ukrainian and Soviet scholars and its application in relation to the newly adopted Criminal Procedure Code of Ukraine.

scholarly journals ON A PROSECUTOR AS A SUBJECT OF PROVING ON PRE-TRIAL STAGES OF A NATIONAL CRIMINAL PROCEDURE

2020 ◽  
Vol 12 ◽  
pp. 27-30
Author(s):  
Aleksey A. Zakharyan ◽  
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Scientific Methods ◽  
Foreign Countries ◽  
The Subject ◽  
Forensic Tools ◽  
The Right

The participation of the prosecutor in the criminal process covers both his judicial and pre-trial stages. It is well known that the prosecutor in the Russian criminal process acts as the subject of evidence, not only as the state prosecutor, but mainly as the person conducting the criminal process or observing (supervising) his proceedings in the pre-trial stages of criminal proceedings. In the doctrine of the Russian criminal process, starting with the Charter of the Criminal Procedure of 1864 and up to and including the modern Code of Criminal Procedure of 2001, the prosecutor, to one degree or another, acted as a full-fledged subject of evidence in the preliminary investigation. In the current legal regulation of the prosecutor, despite a number of sign if I can t deformations of his procedural status, it can be attributed to full-fledged subjects of evidence. After the well-known reform of June 5, 2007, which significantly affected the procedural status of the prosecutor at the pre-trial stages of the criminal process, the prosecutor, in the opinion of many well-known procedural scientists (the positions will be given in the presentation of the material), ceased to be a full-fledged subject of proof, since the participation of the prosecutor in evidence is associated with the availability of authority to collect, verify and evaluate evidence. The Russian prosecutor is deprived of forensic tools, he does not have the right to independently collect evidence by carrying out investigative actions, and in relation to the investigation he is deprived of even the authority to give the investigator binding instructions on collecting and verify in evidence. Based on the objectives of the study, the author assesses the content of the powers of the prosecutor as the subject of evidence in the pretrial stages of Russian criminal proceedings When writing the article, the author used general scientific methods (analysis, induction, deduction and others and private scientific methods (formal logical, comparative, legal). Based on analysis of the latest trend since forming the pre-trial stages of the criminal process of foreign countries, it is proposed to clarify the procedural status of the prosecutor in pre-trial proceedings.

scholarly journals GARANTISMO, SISTEMA ACUSATÓRIO E A PRODUÇÃO DE PROVA EX OFFICIO PELO MAGISTRADO

2020 ◽  
Vol 2 (59) ◽  
pp. 210
Author(s):  
Teodoro Silva SANTOS ◽  
Nestor Eduardo Araruna SANTIAGO
Keyword(s):  
At Risk ◽  
Human Rights ◽  
Criminal Procedure ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Legal Process ◽  
Accurate Analysis ◽  
Criminal Process ◽  
Procedure Code ◽  
European Court

RESUMO Objetivo: A análise da possibilidade de produção de provas ex officio pelo magistrado, prevista na redação do inciso I do art. 156 do Código de Processo Penal, advinda da reforma implementada pela Lei nº. 11.690/2008, que alterou os dispositivos relativos à prova no Processo Penal à luz da Constituição e do Garantismo Penal. Metodologia: Métodos analítico e dedutivo, mediante pesquisa bibliográfica e documental de doutrina e jurisprudência, especialmente dos tribunais superiores brasileiros e do Tribunal Europeu de Direitos Humanos, no âmbito do modelo garantista constitucional e também legal. Resultados: A possibilidade de iniciativa probatória pelo juiz no processo penal antes de iniciada a ação penal, expressa no art. 156, inciso I, do Código de Processo Penal, com a redação advinda da Lei nº. 11.690/2008, contrapõe-se ao garantismo penal, bem como à Constituição, por colocar em risco a imparcialidade judicial. A norma se exprime como resquício de um regime inquisitorial, por afrontar os direitos e as garantias fundamentais, notadamente o princípio da imparcialidade, alcançado por meio do distanciamento do magistrado da função probatória. Contribuições: O tema é relevante, pois abre espaço para uma análise precisa da persecução da verdade no contexto do processo penal ante a possibilidade de atuação ex officio do juiz na produção de provas, fato este que se contrapõe ao sistema processual acusatório adotado no Brasil, centrado na existência de sujeitos processuais diversos e detentores de funções distintas: acusar, defender e julgar, em consonância com o princípio do devido processo legal e de outros princípios corolários deste. Palavras-chave: sistema acusatório; garantismo processual; produção de prova ex officio; imparcialidade. ABSTRACT Objective: To analyze the possibility of producing ex officio evidence by the magistrate, provided for in item I of article 156 of the Code of Criminal Procedure, arising from the reform implemented by Law no. 11,690 / 2008, which amended the provisions relating to evidence in the Criminal Procedure in the light of the Constitution and the Penal Guarantee. Methodology: Analytic and deductive methods, by way of bibliographic and documentary research of doctrine and jurisprudence, especially from the Brazilian higher courts and the European Court of Human Rights, within the scope of the constitutional and also legal guarantee model. Results: The possibility of evidential initiative by the judge in the criminal process before the beginning of the criminal lawsuit, expressed in Article 156, item I of the Criminal Procedure Code, with the wording granted by Law no. 11,690/2008, opposes the criminal guarantee, as well as the Constitution, for putting at risk the judicial impartiality. The law expresses as a remnant of an inquisitorial regime to affront fundamental rights and guarantees, notably the principle of impartiality, achieved by way of distancing the magistrate from the evidence function. Contributions: The topic is relevant, as it opens up an accurate analysis of the pursuit of the truth in the context of criminal proceedings given the possibility of ex officio action by the judge in the production of evidence, a fact that contrasts with the accusatory procedural system adopted in Brazil, centered in the existence of different procedural subjects and holders of different functions: accusing, defending and judging, in line with the principle of due legal process and other corollary principles thereof. Keywords: accusatory system; procedural guarantee; production of ex officio evidence; impartiality.

CONDUCTING CERTAIN INVESTIGATIVE (SEARCH) ACTIONS IN VIDEO CONFERENCE MODES: GROUNDS, ORDER, FEATURES

2018 ◽  
Author(s):  
Inna Bezpalko ◽  
◽  
Anhelina Korniienko ◽  
Mykhailo Mitko ◽  
◽  
...  
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Video Communication ◽  
Criminal Process ◽  
Relevant Evidence ◽  
Procedure Code ◽  
Foreign Countries ◽  
Separate Point ◽  
Court Proceedings ◽  
Identification Of Persons

The situation in the world is constantly changing: dangerous diseases such as COVID-19 are emerging, digital technologies are developing, and society is becoming more open to the use of technical means in almost any area of its existence, such as law. Thus, in particular, the criminal process, namely the process of gathering evidence for the period since the entry into force of the Criminal Procedure Code of Ukraine in 2012 has undergone significant progressive changes in the use of technical means of video communication during the pre-trial investigation of investigative (search) actions, court proceedings. Relevant changes in the criminal process are generally a positive phenomenon, but require proper legal regulation, as there is a criminal procedural form, in the case of which the relevant evidence is considered inadmissible. In particular, a necessary element in the interrogation, identification of persons and things by videoconference is the need for authorized bodies to determine the existence of sufficient grounds for such actions, to implement organizational, technical and informational support of such processes. During such actions, a large number of procedural requirements are made to the persons who carry out these actions, which is further complicated by the remote mode. In addition to the experience of foreign countries, the question of the possibility of conducting other investigative actions by videoconference may soon arise, which necessitates the need to bring procedural legislation in line with such innovations. A separate point is international cooperation and conducting investigative (search) actions in different countries. To achieve this goal, legal agreements are established between the countries, which regulate such processes. However, the legislation of both countries is used, which ensures compliance with the criminal procedure.

THE IDEA OF COMPROMISE IN THE RUSSIAN CRIMINAL PROCESS AS A MEANING OF COURT ACTIVITY OF CRIME

2021 ◽  
pp. 48-59
Author(s):  
Alexander G. Markelov ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Final Decision ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
The Individual

The article proposes an original approach that explains the obvious ideological nature of the use of compromise technologies on certain alternative procedures of the Russian criminal process and is considered as an applied tool for combating crime. Such proposals occur against the background of an obvious trend of humanization of punishment and exemption from criminal responsibility of certain categories of persons. The author claims justifiably that new prospectiveand at the same time conflict-free (compromise) forms of criminal procedure for the rapid resolution of criminal cases have been created in the Russian criminal process.At the same time, the author believes that one of the most important advantages of the use of compromise technologies, provided that there are no aggravating circumstances, is the ability to resolve the criminal-law conflict between the parties concerned quickly and create a favorable environment of reciprocity and understanding. The author believes that the idea of compromise as a certain measure of combating crime has already been implemented in modern procedural algorithms for resolving criminal cases through reduced criminal proceedings in the form of an inquiry, specific (compromise) proce-dures in the form of: the court making a final decision on a criminal case with the consent of the accused with the charge brought by the investigating authorities; the court making a final decision on a criminal case when concluding a pre-trial agreement on cooperation (a deal with justice); proceedings in a criminal case on the appointment of criminal-law measures in the form of a court fine when a person is exempt from criminal liability; a termination of the criminal case and criminal prosecution against the suspect or accused in conjunction with the reconciliation of the parties, a termination of criminal prosecution against the suspect or accused in conjunction with active repentance, a termination of criminal prosecution against the suspect or accused in cases of crimes in the field of economic activity, the election of certain preventive measures and the conduct of the individual investigative actions under the individual compromise circumstances. The author believes that the construction of a legal model of criminal procedure compro-mise as a measure to counter modern crime will contribute to the optimization of the Russian criminal proceedings in the interests of the individual, society and the state as a whole. The work proposes the justification of a new scientific direction - the criminal procedure concept of using compromise - and the prospects for its application in scientific research and practical activities to counter modern crime.

Some Issues of Ensuring of Procedural Guarantees of Participants of the Criminal Process of the Republic of Uzbekistan

2019 ◽  
Vol 8 (4) ◽  
pp. 9457-9460
Keyword(s):  
Legal Status ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
National Legislation ◽  
Foreign Countries ◽  
The Republic ◽  
Status Analysis

The issues of ensuring the rights and guarantees of such participants in the criminal process as the suspect and the accused are relevant for research at all times. Guarantees are the means in accordance with which the execution of the purpose of criminal proceedings is ensured. In order to further expand the guarantees of such participants as the suspect and the accused, the article analyzes the concept and significance of the procedural guarantees of the participants in the criminal process, in particular the suspect and the accused; their legal status; analysis of the rights and guarantees of the data of participants in the criminal process. The article applies the methodology of comparative legal analysis. In particular, the norms of national legislation are analyzed, as well as the norms of foreign countries on these issues (Russia, Kazakhstan and Germany). Based on the results of the analysis, proposals were developed to improve the guarantees of the rights and freedoms of suspected and accused persons in the criminal proceedings of the country. These proposals can be used to make amendments and additions to the criminal procedure legislation of the country.

Sign in / Sign up

Export Citation Format

Share Document