scholarly journals Implementation of the principle of justice in the adversarial model of criminal procedure

2021 ◽  
Vol 7 (Extra-D) ◽  
pp. 343-350
Author(s):  
Eldar K. Kutuev ◽  
Oxana A. Chabukiani ◽  
Maria A. Shuvalova ◽  
Sofya Dmitrievna Shestakova ◽  
Oleg V. Logunov
Keyword(s):  
Public Hearing ◽  
Criminal Prosecution ◽  
Anglo Saxon ◽  
Criminal Proceedings ◽  
National Legislation ◽  
Principle Of Justice ◽  
Correct Understanding ◽  
Procedural Decisions ◽  
Adversarial Model ◽  
Moral Requirements

For a correct understanding of the content of justice, it is necessary to determine, what is it in an adversarial model of the process – a principle, a task, general conditions of judicial consideration of a criminal case, moral requirements for procedural decisions of a judge (judges) or a participant’s right guaranteed by a public hearing of a case within a reasonable time by an independent and impartial court created based on national legislation? The study presents the results of research, within the framework of which international legal acts, national legislation of various countries of the Anglo-Saxon and continental legal systems, sentences and appealed decisions of officials were studied, a questionnaire among employees of criminal prosecution bodies, lawyers and judges, and a survey of participants in criminal proceedings were conducted. In conclusion, there is a need to recognize justice precisely by the principle of the criminal process with the allocation of general and special criteria.

scholarly journals Promotion of Justice as an Independent Criminal Procedure Function

2021 ◽  
Vol 15 (6) ◽  
pp. 786-796
Author(s):  
Vadim Latypov
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Modern Society ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
History Of ◽  
High Level ◽  
Correct Understanding ◽  
Procedural Decisions

The article proves the necessity of involving the persons assisting the parties and the Court into criminal proceedings. The author analyzes the promotion of justice as an independent criminal procedure function under Chapter 8 of the Criminal Procedure Code of the Russian Federation, which is carried out by both the participants of criminal proceedings and by other subjects of criminal law relations who do not have an independent procedural status. The conducted social and legal analysis made it possible to state that the development of the idea of the rule of law requires individuals to obtain a correct understanding of the organization of the modern society, its development trends, and the necessity of acquiring due legal awareness. The understanding of legal awareness varied throughout the history of our state but what remained unchanged were the ideas that it can be influenced and that it determines the development of law and the law enforcement itself. Citizens with the due level of legal awareness are ready to promote justice, which testifies to their high level of social development, a desire to be involved in law enforcement work, to bring justice and ensure legality of procedural decisions. The author shows that criminal proceedings in Russia require facilitation, but the majority of people are not ready to provide it for a number of reasons, which proves the need for a detailed analysis of promoting justice in the modern Russian criminal process. The conducted research stresses the theoretical and practical inadequacy of the three-part system of criminal procedure functions enshrined in the current Russian criminal procedure legislation. The author examines the possibility of singling out the promotion of justice as an independent criminal procedure institute necessary for making lawful, well-grounded and comprehensive procedural decisions by officials and state bodies. The author concludes that it is necessary to introduce changes in the Criminal Procedure Code of the Russian Federations which will foresee the possibility of renaming Chapter 8 of the Code. Besides, having analyzed the concept of «justice», the author presents his position of what should be understood as the promotion of justice.

Initiation of Criminal Proceedings and Validity of Criminal Prosecution

2021 ◽  
Vol 3 ◽  
pp. 88-105
Author(s):  
E. S. Kaminskiy ◽  
Keyword(s):  
Criminal Law ◽  
Preliminary Investigation ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Public And Private ◽  
Private Interests ◽  
Assessment Activity ◽  
Alternative Measures ◽  
The One ◽  
Procedural Decisions

The author comes to the conclusion that the construction of a criminal justice system based on expediency is necessary in modern conditions of humanization of legislation, economy of repression and optimization of criminal proceedings. Expediency as a condition for making procedural decisions should also be applied at the stage of checking the report of a crime when deciding whether to initiate criminal proceedings. It is necessary to grant such powers to the Prosecutor, returning to him, among other things, other powers to direct the preliminary investigation. A reasonable balance between public and private interests, as determined by the Prosecutor in each particular case, should be the basis for determining the criteria for the appropriateness of criminal prosecution. The Prosecutor's assessment activity in this situation should be based on his inner conviction and conscience and consist in determining the degree to which the interests of society and participants in the criminal law conflict correspond to possible criminal prosecution and its consequences, on the one hand, and the use of alternative measures to respond to the crime committed, on the other. To do this, the Prosecutor must be provided with flexible procedural tools. Refusal to initiate criminal proceedings and use alternative measures is necessary in cases where the burden of investigating the crime is not comparable with the result obtained, the person has ceased to be a public danger and has made amends for the damage caused. The grounds for refusing to initiate criminal proceedings and applying alternative measures may be reconciliation of participants in a criminal law conflict, active remorse, making amends for the harm caused by the crime, or changing the situation. Refusal to initiate criminal proceedings and the use of alternative measures should not significantly affect the legal interests of participants in the criminal conflict.

scholarly journals ON THE NOTION AND THE ESSENSE OF FUNCTION OF THE CRIMINAL PROSECUTION IN THE CURRENT CRIMINAL PROCEEDINGS OF RUSSIA

2021 ◽  
pp. 36-42
Author(s):  
K.A. Sinkin ◽  
D.A. Emelyanova
Keyword(s):  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedural Decisions ◽  
State Body

The article is devoted to the analysis of the issue of the concept and essence of the functions of criminalprosecution. According to author's opinion criminal prosecution in the modern criminal proceedings inRussia is carried out in the function of prosecution. Criminal prosecution is an activity stipulated by thecriminal procedure law for executive state body to carry out searching a person who has committed a crimefor the subsequent a fair sentence. The essence of criminal prosecution consists of the activities of state bodiesand officials aimed at establishing the circumstances to be proved in a criminal case as well as the adoptionof criminal procedural decisions in the course of this activity.

scholarly journals Standard of proof in criminal proceedings: “variable” or “stepwise” ?

2021 ◽  
pp. 298-301
Author(s):  
H.R. Slyusarchuk ◽  
M.R. Mazur
Keyword(s):  
Anglo Saxon ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Standard Of Proof ◽  
Single Procedure ◽  
Judicial Practice ◽  
Standards Of Proof ◽  
Procedural Decisions ◽  
Procedural Rights ◽  
Scientific Arguments

The article is devoted to the analysis of the issue of division of standards of proof in criminal proceedings, in particular one of the types - variable standard of proof, which is distinguished by scholars of the Anglo-Saxon legal system. The article analyzes the question of the possibility of dividing the standards of proof depending on the severity of the criminal offense. The motives and scientific arguments in favor of distinguishing a variable standard of proof in criminal proceedings are studied. Positively assessing the attempt of the appropriate scientific division of standards of proof in criminal proceedings, the authors argue that it is still impossible to agree with him to the end. In particular, according to the authors, the introduction of a variable standard of proof in criminal proceedings will not contribute to the unity of judicial practice in the process of making procedural decisions during criminal proceedings. In addition, the article argues that decisions in criminal proceedings are made on the basis of internal conviction, which determines and assigns the type and measure of punishment, and not vice versa. Therefore, it is at least surprising the position of some scholars that the sanction of a sentence that can be imposed on an accused must determine the necessary level of “persuasion” (“evidence”) for his appointment. It is argued that in some cases, the establishment of a variable standard of proof in criminal proceedings will lead to a violation of the principles of criminal proceedings, in particular equality before the law and the courts. The article presents the position of the authors on the doubtfulness of establishing the degree of proof of the circumstances of criminal proceedings depending on the severity of the criminal offense, as in criminal proceedings there is a single procedure and the same set of procedural rights.

scholarly journals The procedural status of the investigator under the Criminal Procedural Code of Ukraine of 1960 and the Criminal Procedural Code of Ukraine of 2012 in terms of the effectiveness of resolving issues of criminal prosecution of military servicemen

2019 ◽  
Keyword(s):  
Comparative Analysis ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Code ◽  
Procedural Decisions

It is established that today many problems arise in the activities of the pre-trial investigation bodies, their legal status, probity and other important issues specified in the legislation are not always clearly and consistently. It is noted that there are various problems with the implementation of investigators of his powers, there are complications with the understanding of his independence. It was argued that it is important to identify and analyze the problems that arise in the work of the pre-trial investigation bodies, the problems of implementing the legal status of the investigator, including by comparative analysis of the regulation of these issues in the 1960 Criminal Procedure Code of Ukraine and the Criminal Procedure Code of Ukraine, 2012 , as well as expressing their own position on the reform of these bodies. It has been established that the comparative analysis of the current criminal procedural legislation with the 1960 law also suggests the procedural functions that can act as a certain link between the tasks and the legal status of the participant in the process, since they determine the procedural status of the investigator, his rights and duties , which are specified in separate criminal procedural institutes and procedural norms. It is noted that the knowledge of the system of procedural functions of the investigator as the main directions of his activity allows the most fully to determine the role of the investigator in the execution of the criminal proceedings, to correctly understand and apply each legal institution and each legal regulation regulating its activities. As future state representatives, investigators have legally established procedural powers that are both for them and for rights (as they allow for procedural actions and procedural decisions), and duties (due to the inappropriate or untimely use of their rights may be an offense if there is no evidence of a crime). It has been argued that within the criminal process there were significant procedural transformations related to the change of the law, some of which were rather substantial, but not always consistent and such that increased the efficiency of the functioning of state authorities aimed at bringing individuals to legal liability.

Conditions for the Application of Alternative Methods of Resolving Criminal Conflicts to Protect Public Interests

2021 ◽  
pp. 50-53
Author(s):  
Eduard S. Kaminsky ◽  
Keyword(s):  
Alternative Methods ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Public Interests ◽  
Alternative Measures ◽  
And Behavior

Public interests in criminal proceedings can be served not only through the perpetrator’s conviction, but also through alternative measures for resolving criminal conflicts. Their expediency is due, inter alia, to the fact that they are aimed at minimizing criminal repression in situations when society is not interested in the conviction and punishment of the offender who made amends for the damage caused. Such measures significantly rationalize the procedural resources used in this case, expedite criminal proceedings, and prevent the perpetrator’s stigmatization. Alternative methods can be used due to a set of conditions related to the committed act: offender’s personality and behavior, procedural expediency and organization of criminal prosecution, rationalization, acceleration, and consent of the parties and society.

scholarly journals Transport telecommunication networks as an information medium for obtaining information relevant to criminal proceedings: problematic issues of legal regulation

2019 ◽  
pp. 161-173
Author(s):  
O. Metelev
Keyword(s):  
Human Rights ◽  
Rapid Development ◽  
Crime Scene ◽  
Legal Regulation ◽  
Information Environment ◽  
Telecommunication Networks ◽  
Digital Evidence ◽  
Criminal Proceedings ◽  
Telecommunications Networks ◽  
National Legislation

Scientific and technological progress, as well as the rapid development of information technologies, the formation of the information society, the introduction of telecommunications systems and networks into all vital processes, the availability of digital communications and information transmission have necessitated the use of new methods of combating crime in the new information (cybernetic) space, this artificially created environment, which is an integral part of transport telecommunications networks (TTN). The extraterritorial nature of transport telecommunication networks and systems, together with the global Internet, greatly complicates their legal regulation, as it is sometimes quite difficult to determine the jurisdiction of which state relates a criminal offense. Thus, when conducting silent investigative actions, a legitimate question arises as to the lawfulness of work in the information environment of the transport telecommunication network for obtaining digital evidence in the interests of criminal proceedings. Purpose of the article: to investigate the problematic issues of legal regulation when working in transport telecommunication networks in order to obtain information relevant to criminal proceedings during the conduct of silent investigative actions. The paper draws attention to the insufficient level of scientific research to cover the problematic issues of studying transport telecommunications networks as an information medium for legal obtaining digital evidence in the interests of criminal justice. The national legislation regulating public relations in this field is analyzed, as well as the case law of the European Court of Human Rights, which reveals some «white spots» in national legislation on ensuring the legitimacy and protection of human rights in the conduct of vague private communication interventions in the information environment of transport telecommunication networks. Taking into account the extraterritorial nature of the information (cyber) space, it is concluded that there is a need for clear legislative regulation of procedural activity in the transport telecommunication networks in order to ensure the security of the individual, society and the state as a whole in this sphere. The article also discusses different approaches to legal disparities in cyber crime investigations. The question of determining the crime scene in the information (cybernetic) space is raised, an attempt is made to define the "crime scene" and provides suggestions for improving legislation.

scholarly journals Standard of proof «sufficient reason» in the criminal procedure of Ukraine

2019 ◽  
pp. 31-42
Author(s):  
M. Pohoretskiy ◽  
O. Mitskan
Keyword(s):  
Human Rights ◽  
Sufficient Reason ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Wide Range ◽  
Procedural Code ◽  
Reasonable Suspicion ◽  
Procedural Decisions

Based on the results of analysis of foreign doctrine, foreign procedural legislation, foreign law enforcement practice, the practice of the European Court of Human Rights. In the article explores problematic issues of the application of the standard of proof “sufficient reason” in the domestic criminal process. The relevance of the article is that the standard of proof “sufficient reason” or “probable cause” in the system of standard of proof in the domestic criminal process has a special place and using to accept most procedural decisions at the pre-trial investigation. The purpose of the article is to substantiation the main direction of using in the criminal proceed of Ukraine standard of proof “sufficient reason” taking into account the legal nature of this standard. In the article proved that “sufficient reason” is the standard of proof in the criminal proceed of Ukraine execution of which is based on “common sense” and in the factual analysis (assessment) of the whole set of facts and circumstance in their integrity, authorized entities with the use of special knowledges and experience on establishing “sufficient reason” for making appropriate procedural decision. Implementation of the standard of proof “sufficient reason” as well as “reasonable suspicion” doesn`t envisage a lack of doubt as guilty of the person. Sufficient is a possible knowledge about committing criminal offence by person with the difference that for the highest standard measures have to be higher. Moreover, within “flexible” standard of proof “sufficient reason” of the level of probability can also vary, depending on how much negatively appropriate procedural decision will affect the rights of the person. Prove that in the current Criminal procedural code of Ukraine the standard of proof “sufficient reason” is used to accept most procedural decisions at the pre-trial investigation stage in criminal proceedings, when the most reasonable suspicion of a committing person criminal offence is insufficient due to significant restrictions on human rights as a result of appropriate decision. At that, the flexible nature of the standard of evidence "sufficient reason", which consists in the required measure conviction the appropriate standard from the circumstances of the specific criminal proceedings, allows you to assert its suitability for Making a wide range of procedural decisions. Standard of proof “sufficient reason” is used for adoption of such procedural decisions: on the application of certain measures to ensure criminal proceedings; in addressing the issue of applying precautionary measures as a variety of measures to ensure criminal proceedings; in addressing the issue of individual investigative (detective) actions; in addressing the issue of granting permission for secret investigative (detective) actions and deciding on the use of the results of unspoken investigative actions in other criminal proceedings; when deciding on the placement of the person in the receiver-allocator for children (Part 4 art. 499 of the Criminal procedural code of Ukraine).

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

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