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

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.  

Legal Concept ◽  
2021 ◽  
pp. 41-48
Author(s):  
Valentina Lazareva

Introduction: criminal prosecution is a specific legal concept that means a certain type of law enforcement activity. Having introduced this concept into legal use, the Criminal Procedure Code of the Russian Federation pointed to the purpose of this activity – the exposure of a suspect accused of committing a crime (Paragraph 56 of Article 5), its compliance with the scheduling criminal proceedings (Part 2 of Article 6), types (Chapter 3) and subjects (Chapter 6). The content of this activity, the methods of its implementation indicate that the criminal prosecution coincides with the procedural activities of the inquirer, investigator and prosecutor, that is, it is carried out through the performance of each of the named persons of their powers. This allows us to put forward and substantiate the thesis that a preliminary investigation is a criminal prosecution carried out in the procedural form of a proceeding or inquiry, that is, an activity aimed at identifying and exposing a person, a suspect, or an accused of committing a crime, whose efficiency depends on a properly organized procedural interaction of the entities carrying out this activity, which together form the prosecutorial power of the state. The purpose of the study: to identify the reasons for the lack of effective cooperation of the criminal prosecution authorities and suggest the ways to eliminate them. The objectives of the study: to characterize the role (function) of the bodies, inquiry, investigation, prosecutor’s office in pre-trial proceedings in a criminal case, to formulate and base the conclusion that pre-trial proceedings in a criminal case are a form of criminal prosecution as a common type of criminal procedural activity for the inquirer, investigator and prosecutor. The dialectical, logical, systematic, structural-functional and other general scientific research methods were used in the preparation of the paper; as well as the comparative-legal, formal-legal and other specific scientific methods. Results: the paper shows that the reform of the preliminary investigation bodies, which resulted in the removal of investigators from administrative subordination to the prosecutor, the redistribution of powers between the prosecutor and the head of the investigative body in favor of the latter, did not lead to the expected increase in the procedural independence and independence of the investigator, but had a negative impact on the level of legality of pre-trial proceedings. The amendments made to the Criminal Procedure Code of the Russian Federation in 2007 and later proved to be insufficiently thought out; they are not logical and do not conform well with other norms of criminal procedure law. The shortcomings of the legal regulation of the procedure for exercising the powers of the head of the investigative body and the prosecutor, their interaction with the investigator and among themselves, were only partially corrected by Law No. 404-F of December 28, 2010. Conclusions: the need to improve the efficiency of interaction of the investigator with the head of the investigative body and the prosecutor requires a serious revision of a number of norms of the Criminal Procedure Code of the Russian Federation.


Author(s):  
El'vira Mirgorodskaya

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.


2021 ◽  
Vol 4 ◽  
pp. 129-134
Author(s):  
I.V. Fatyanov ◽  

The article examines the ambiguity in the interpretation of article 76.2 of the Criminal code and article 25.1 of the Criminal procedure code of the Russian Federation to establish terms of compensation for the damage and (or) smoothing caused by the crime harm. The author substantiates the argument about the fallacy of considering this condition only formally, the author focuses on the mandatory establishment in this case of the characteristics of the identity of the guilty person and the measure of public danger of the committed act. The scientific novelty of the article lies in the approach proposed by the author to the study of the problem of establishing such a condition. In particular, the author considers it essential to solve such a problem to study the legal nature of compensation for damage and compensation for damage when a criminal case (criminal prosecution) is terminated on this basis. The author defines the specifics, identifies the main purposes of such a legal phenomenon in the context of a legal problem. The article concludes that if the preliminary investigation body and (or) the court (justice of the peace) the lack of property harmful consequences from the crime, the failure to make reparation is not to be considered as an obstacle to the termination of criminal proceedings on the grounds provided by article 25.1 of the Criminal procedure code of the Russian Federation, article 76.2 of the Criminal code of the Russian Federation. As a conclusion, the scientific work has prepared a specific text of the interpretation of the condition in the relevant explanations of the Supreme Court of the Russian Federation, which will exclude ambiguity on this issue from the law enforcement officer.


2021 ◽  
pp. 128-133
Author(s):  
Irina G. Smirnova ◽  
◽  
Ekaterina V. Alekseeva ◽  
◽  

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.


Author(s):  
Alexander Shigurov ◽  
Nikolay Podol’nyy

The authors raise a number of urgent problems arising from the seizure of electronic information carriers and copying information from them in the course of investigative actions. The article proposes to expand the circle of bodies to which telecom operators are obliged to provide the electronic information stored by them with their subscribers by including all preliminary investigation bodies in them; introduce an independent investigative action into the Code of criminal procedure of the Russian Federation, during which the investigator will, by decision of the court, recover data stored by communication operators. The authors substantiate the need for dissemination provided for in art. 164, 1641 of the Code of criminal procedure of the Russian Federation guarantees of the rights of owners of electronic storage media for all categories of crimes. The article criticizes the provisions of part 2 of art. 1641 of the Code of criminal procedure on the mandatory participation of a specialist in the seizure of electronic storage media.


Author(s):  
Анна Кучинская ◽  
Anna Kuchinskaya

In the article the theoretical analysis of the provisions of the Russian Federation Criminal Procedure Code, regulating the procedural activities of the defense and the legal representative of a juvenile suspect (accused). The author identified gaps in the current legislation and ways to fill them. Summarizing the materials of judicial practice, the author presents data on the effectiveness of participation of defense counsel and legal representative.


Author(s):  
P. A. Samoylov ◽  

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.


Author(s):  
Oksana V. Kachalova ◽  
◽  
Viкtor I. Kachalov ◽  

The aim of the article is to identify the meaning of the category “validity of the charge” in criminal proceedings and the scope of its application. After analyzing the content and legal essence of this category, as well as procedural situations in which it is necessary to establish the validity of the charge, the authors come to the following conclusions. Any coercive measures against suspects and accused persons can be applied only if there are serious grounds to assume that a person is involved in the commission of a crime since the restriction of the most important constitutional rights of citizens who, by virtue of the presumption of innocence, are innocent of committing a crime is possible only in exceptional cases. The validity of the charge (suspicion) assumes that a person is involved in the commission of a crime, as well as the fact of the criminal prosecution of this person. It is established if there is sufficient evidence that a person may have committed a crime (a person was caught committing a crime or immediately after it was committed; the victim or witnesses identified the person as the perpetrator of the crime; obvious traces of the crime were found on the person or their clothing, with them or in their house, etc.). The validity of the charge may be confirmed by a decision to initiate a criminal case and bring a person as an accused, by protocols of detention, interrogations of the accused, the victim, witnesses, and other materials. In the procedural sense, the conditions for establishing the validity of the charge differ significantly. When resolving the issue of the use of detention and other preventive measures, the validity of the charge is established within the framework of a court session in the conditions of adversariality with the participation of the parties. When giving the court permission to conduct investigative and other procedural actions in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, to ensure the secrecy of the investigation, the issue is resolved in the absence of adversariality with the possible participation of only the prosecutor, the investigator, and the inquirer. The category “validity of the charge” is significant in legal terms in a criminal case with the special order of proceedings. A prerequisite for the court to consider a criminal case in a simplified procedure is the validity of the charge and its confirmation by the evidence collected in the case. The validity of the charge in the appointment of a trial in the special order provided for by Chapter 40 of the Criminal Procedure Code of the Russian Federation is established by the court outside the court session in the absence of the parties. In any of the above situations, the court is responsible for establishing the validity of the charge since failure to establish it means that the decision made is unfounded.


Author(s):  
M.N. Tarsheva

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.


Sign in / Sign up

Export Citation Format

Share Document