scholarly journals Implementation of the principle of competitiveness of the parties and free- dom in the presentation of their evidence to the court in the criminal process of some countries of the world

2021 ◽  
pp. 313-316
Author(s):  
O.V. Kuzmenko ◽  
P.R. Levchuk
Keyword(s):  
Criminal Procedure ◽  
The United States ◽  
Federal Law ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Criminal Offenses ◽  
Principles Of Justice ◽  
The Individual ◽  
The Right ◽  
Principle Of Legality

One of the tasks of criminal proceedings is to protect the individual, society and the state from criminal offenses, which is achieved through the implementation of other tasks, in particular, by ensuring a rapid, complete and im-partial investigation and trial. In this case, any procedural decisions in criminal proceedings must be based on evi-dence that serves as a kind of link between the event of a criminal offense and the consciousness of the investigator, prosecutor, investigating judge, court. Evidence itself is the main content of criminal procedure in both the pre-trial investigation and in the judicial stages of criminal proceedings in most countries.The authors note that the Constitution of Ukraine as one of the main principles of justice provides for adversarial parties and freedom in providing the court with their evidence and proving their persuasiveness before the court. Factor The Criminal Procedure Code of Ukraine has significantly expanded the scope of this principle of the do-mestic criminal process, including in the field of evidence. Thus, the defense, as well as the prosecution, was given the opportunity to collect evidence during the pre-trial investigation, as a result of which the right of the parties and other participants in criminal proceedings to submit evidence (things and documents) is becoming increasingly important.The article also examines that the principles of criminal procedure in France include: the principle of formality, prosecution, legality, equality, dignity, protection of the victim, urgency of the trial, presumption of innocence, publicity, oral and adversarial proceedings. And the main principles of the criminal process in Germany include: the principle of formality (publicity); the principle of charge; the principle of legality and the principle of compulsory research. A characteristic feature of modern law in the field of criminal procedure in the United States is the consis-tent expansion of the institution of delegated legislation. The US Congress has delegated to the Supreme Court the right to establish rules of criminal procedure that have the force of federal law.

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 RULES-PRINCIPLES OF CRIMINAL PROCEEDINGS: LAW AND THEORY

2020 ◽  
pp. 21-31
Author(s):  
Alexander M. Baranov ◽  
◽  
Pavel G. Marfitsin ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Fundamental Principle ◽  
Federal Law ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Individual Article ◽  
The Russian Federation ◽  
The Individual ◽  
Principle Of Legality

The study aims to formulate the proposals aimed at optimizing the Chapter 2 of the Criminal Procedure Code of the Russian Federation (CPC of RF), which enshrines the principles of criminal justice. The authors of the given article examine the content of the rules-principles, i.e. legislative regulations that express and enshrine the principles of law. It is stated that we should distinguish the rules-principles and rules-beginnings, rules containing general permis-sions and prohibitions and rules-definitions because of the first receive development and logi-cal expression in the second. Attention is drawn to the fact that when discussing the nature of the court procedure we should bear in mind that principles make up the content exclusively of legal awareness. At the stage of drafting of the rules, the principles-ideas become regulatory and legal in nature. The developers of the CPC of the RF are criticized, as they did not take advantage of the scientifically valid system of principles of the criminal proceedings. The authors ask why among the rules-principles reflected in the Chapter 2 of the CPC of the Russian Federation, there was no place for many provisions, previously traditionally recognized as such; why the fundamental provisions of the regulation in other laws, including the Constitution of the Rus-sian Federation, were not enshrined in the CPC of the RF. Based on the analysis of the scien-tific literature and the provisions of the criminal procedure law, the authors conclude that one of the obvious omissions of the developers of the CPC of the RF is the non-inclusion of the provision on equality of all before the law and the court in the number of rules-principles. Objections were raised against the absence of other provisions in the CPC of the RF, previouslyconsidered fundamental for criminal proceedings, namely, publicity (officiality) of criminal proceedings, as well as comprehensiveness, completeness, the objectivity of investigation of all the circumstances of the case. Besides, the authors concluded that the contents of separate articles of Chapter 2 of the CPC of the RF, and, in fact, such independent principles, designated by the legislators as "Respect for the honour and dignity of the individual" (Article 9 of the CPC of the RF); "Immunity of the individual" (Article 10 of the CPC of the RF); "The sanctity of the dwelling" (Article 12 of the CPC of the RF); "The secrecy of correspondence, tele-phone and other negotiations, postal, telegraph and other communications" (Article 13 of the CPC of the RF) can be combined into one group, in Article 11 of the CPC of the RF "Protec-tion of human rights and freedoms in criminal proceedings”. Critical assessment is given to the content of Article 7 of the CPC of the Russian Federation, which is reduced to a formal prohibition for the court, prosecutor, investigator, investiga-tive body and interrogator to apply federal law or other rules contrary to the CPC of the Rus-sian Federation. The current version of Article 7 of the CPC, which enshrines the fundamental principle of legality in criminal proceedings, is inconsistent with modern theoretical views on the essence, content and meaning of the principle of legality in law. The authors conclude that the content of the rules-principles, their system, enshrined in Chapter 2 of the CPC of the Russian Federation, are imperfect and need to be adjusted under the fundamental theoretical developments.

PROBLEM ASPECTS OF THE IMPLEMENTATION OF CRIMINAL PROCEDURAL NORMS OF PROTECTION OF THE VICTIMS FROM CRIME

2020 ◽  
pp. 72-76
Author(s):  
Яна Валерьевна Самиулина
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Rights ◽  
Criminal Proceedings ◽  
Effective Mechanism ◽  
The Russian Federation ◽  
The Individual ◽  
The Right ◽  
To Receive ◽  
Selection Of

В настоящей статье предпринята попытка исследовать отдельные проблемные аспекты института потерпевшего в российском уголовном процессе. В этих целях подвергнуты анализу правовые нормы, регламентирующие его процессуальный статус. Раскрываются отдельные пробелы уголовно-процессуального законодательства в сфере защиты законных прав и интересов потерпевшего. Автор акцентирует внимание на том, что совершенствование уголовно-процессуального законодательства в части расширения правомочий потерпевшего по отстаиванию своих нарушенных преступлением прав следует продолжить. На основании проведенного исследования действующего законодательства в части регламентации прав потерпевшего от преступления предлагается расширить перечень получаемых им копий постановлений, указанных в п. 13 ч. 2 ст. 42 УПК РФ. Автор предлагает включить в перечень указанной законодательной нормы право получения потерпевшим копии постановления об избрании конкретного вида меры пресечения, избранного в отношении подозреваемого (обвиняемого). Для создания действенного механизма защиты интересов потерпевших от преступления юридических лиц предлагаем ч. 9 ст. 42 УПК РФ изложить в следующей редакции: «в случае признания потерпевшим юридического лица его процессуальное право в уголовном процессе осуществляет представляющий его профессиональный адвокат». This article attempts to investigate certain problematic aspects of the institution of the victim in the Russian criminal process. For this purpose, analyzed the individual norms governing his procedural status. Separate gaps of the criminal procedure legislation in the sphere of protection of the legal rights and interests of the victim are disclosed. The author emphasizes that the improvement of the criminal procedure legislation in terms of the extension of the victim’s authority to defend his rights violated by the crime should be continued. On the basis of the study of the current legislation regarding the regulation of the rights of the victim of a crime, it is proposed to expand the list of decisions received by him, referred to in paragraph 13, part 2 of article 42 Code of Criminal Procedure. The author proposes to include in the list of the indicated legislative norm the right to receive the victim a copy of the decision on the selection of a specific type of preventive measure, selected in relation to the suspect (accused). To create an effective mechanism for protecting the interests of legal entities victims of a crime, we offer part 9 of art. 42 of the Code of Criminal Procedure of the Russian Federation shall be reworded as follows: «if a legal entity is recognized as a victim, his procedural right in criminal proceedings is exercised by the professional lawyer representing him».

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.

scholarly journals Peculiarities of implementation of the principle of legality in the criminal process of Ukraine

2021 ◽  
Vol 1 (1) ◽  
pp. 253-257
Author(s):  
Oleksiy Skryabin ◽  
Dmytro Sanakoiev
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Limiting Factor ◽  
Criminal Proceedings ◽  
Legal Regime ◽  
Criminal Process ◽  
Procedural Law ◽  
Judicial Proceedings ◽  
Principle Of Legality ◽  
Discretionary Powers

The article analyzes the principles of criminal procedure, which are the expression of the prevailing political and legal ideas of the state, relate to the tasks and methods of judicial proceedings in criminal proceedings, are enshrined in law and operate throughout all stages and necessarily in its central stage. Modern theoretical ideas about the system of principles of criminal proceedings are still in the stage of active methodological and ideological rethinking. Discussions continue both on the concept and features of the principles of criminal proceedings, their system, and on the peculiarities of implementation at different stages of the criminal process. Violation of the principles of criminal procedure is a sign of illegality of decisions in the criminal and becomes the basis for the cancellation of these decisions. The principle of legality characterizes the legal regime of strict and mandatory observance of laws in law enforcement practice, which manifests itself in criminal proceedings, limits the discretionary powers of the pre-trial investigation, prosecutor's office and court. The principle of legality becomes an opportunity to transfer criminal proceedings from one procedural stage to another only on the basis of the law and in a strictly defined sequence. Legality is one of the guarantees of establishing the truth in a criminal case, which ensures the protection of human and civil rights and freedoms. The principle of legality is characterized by mandatory observance of laws in criminal proceedings, is a limiting factor in the discretion of the pre-trial investigation, prosecution and court. Due to the implementation of the principle of legality, the shortcomings and gaps in the criminal process that exist in criminal procedural law can be overcome.

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 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 SEKUNDARNI POSITION OF CONSENSUAL PROCEEDINGS

2019 ◽  
Keyword(s):  
Criminal Procedure ◽  
Public Law ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Public And Private ◽  
Legal Norms ◽  
Private Interests ◽  
Criminal Procedure Law ◽  
Court Proceedings ◽  
The Right

The article discusses the situation of civil law and consensus in the criminal process for not serious crimes. The essence of consensual proceedings in the criminal process is determined, its procedural form is disclosed, which includes the agreement of the parties and the grounds for closing the criminal proceedings both at the stage of pre-trial investigation and court proceedings. Considering the division of the right to public and private, on the basis of the consensual provisions of the criminal process, it is necessary to indicate that they have different substances and are divided according to different classification criteria. Based on the general and theoretical provisions of the criminal process, the consensual developments of this work, we can determine that public and private law has two directions, which include the theory of interest and the theory of protection of private interests. In this case, we can talk about the material and formal signs of theoretical modifications, namely, to proceed from the content of regulated relations, which should be based on material conditions. That is, if the norms of public law regulate the interests of a person, then they are built on the material theory. How they regulate and what they regulate, we attribute to the legal norms. The conclusion is that in relation to the construction of legal relations between the subjects of the process, this question can be put on the basis of the content of the subjective right. The criminal process has the authority to interfere with the norms of public law in the private interests of the person, if provided for by criminal law. We believe that the criminal procedure law should take measures to limit the interference of public law in private interests. Based on the analysis of civil procedural legislation, recommendations were given on drafting an agreement in the criminal procedure in the procedural form on compensation for material damage.

scholarly journals The victim’s rights in the use of coercive measures during pre-trial investigation in the Republic of Kazakhstan

2020 ◽  
Vol 2 (2) ◽  
pp. 197-202
Author(s):  
Yerbol Omarov ◽  
Adil Inkarbekov
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
Coercive Measures ◽  
Institu Tions ◽  
The Republic ◽  
The Right

Kazakhstan has adopted a policy of procedural economy, which is expressed in the acceleration of the pas-sage of criminal cases at all stages of the criminal process. The introduction of many new procedural institu-tions and forms of pre-trial investigation, the updating of criminal procedure legislation actualizes the issue of investigating the procedural status of the victim. The modern domestic criminal process should provide a balance between numerous novelties and procedural rules designed to ensure compliance with the principle of competition and equality of the parties to the prosecution and defense. In accordance with this principle, "the parties involved in criminal proceedings are equal, that is, they are given equal opportunities to defend their position in accordance with the Constitution of the Republic of Kazakhstan and the CPC. The authors have studied international documents regarding the regulation of the rights of victims in criminal proceedings. The victim is one of the Central figures in the criminal process, especially if it is a crime against the person, and must have broad rights to protect their interests. In this regard, the issue of choosing a preventive measure against a suspect (accused), taking into account the opinion of the victim, is of particular importance. The authors studied the opinions of scientists and practitioners on the issue under consideration, as well as the provisions of criminal procedure legislation regulating the rights and obliga-tions of the victim, the ratio of General and special norms. As a result, the authors concluded that it is necessary to grant the victim the right to Express his opinion on the use or non-use of coercive measures against the suspect. In the course of studying this issue, the authors applied methods of comparative analysis, deduction, forecasting, and others. On the basis of the research, appropriate recommendations were developed to improve the legal regulation of the rights of the victim in criminal proceedings of the Republic of Kazakhstan.

scholarly journals APPLICATION BY THE PROSECUTOR OF TEMPORARY ACCESS TO THINGS AND DOCUMENTS IN THE IMPLEMENTATION OF THE CHARGE FUNCTION

2021 ◽  
Vol 74 (1) ◽  
pp. 133-142
Author(s):  
Iryna Sukhachova ◽  
Keyword(s):  
Law Enforcement ◽  
Scientific Literature ◽  
Effective Means ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Individual Treatment ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Individual ◽  
The Right

The article is devoted to one of the effective means of obtaining evidence in criminal proceedings – temporary access to things and documents, the legal regulation of which is defined in Chapter 15 of the Criminal Procedure Code of Ukraine. Attention is drawn to a number of problematic issues related to the prosecutor's use of temporary access to things and documents in the exercise of the function of prosecution, the presence of which does not ensure the effectiveness of criminal procedural evidence and the effectiveness of this institution in criminal proceedings. According to the results of the study, the author concludes that the use of temporary units to temporarily access things and documents on the basis of a prosecutor's order makes it impossible to recognize the results of such action as evidence in criminal proceedings, as they do not meet the admissibility requirement. Prosecutorial oversight in criminal proceedings should not only ensure the inevitability of criminal punishment, but also ensure proper respect for human rights in criminal proceedings, respect for the individual, treatment as a person whose guilt has not yet been proven, and ensure impartiality and objectivity of the pre-trial investigation. Based on the results of the analysis of the decisions made by the investigating judge based on the results of consideration of the petitions, the author identified the grounds for the prosecutor's refusal to satisfy these petitions by the investigating judges. It is proposed to expand the procedural powers of the prosecutor as a subject of criminal procedural evidence, giving him the right to instruct operational units to conduct not only investigative (investigative) and covert investigative (investigative) actions, but also other procedural actions. Thus, taking into account the results of the analysis of scientific literature and materials of law enforcement practice, we can conclude that it is necessary to expand the procedural powers of the prosecutor as a subject of criminal procedural evidence by stating paragraph 5 Рart 2 of Art. 36 of the Criminal Procedure Code of Ukraine in the following wording: «to instruct the investigative (search) actions and covert investigative (search) actions or other procedural actions to the relevant operational units», as well as the need to supplement Part 1 of Art. 41 of the Criminal Procedure Code of Ukraine by the authority of operational units to carry out other procedural actions on behalf of the prosecutor.

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