scholarly journals Verification by the prosecutor of the legality and validity of the decisions made by the investigating judge regarding the applied security measures

2021 ◽  
pp. 341-345
Author(s):  
I.О. Merimerina
Keyword(s):  
Criminal Procedure ◽  
Appellate Court ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Precautionary Measures ◽  
Characteristic Features ◽  
Definition Of ◽  
The Right

The article is devoted to clarifying what the stage of an appeal in criminal proceedings is. During the investigation, the decisions of the investigating judge concerning the application of measures to ensure criminal proceedings are con-sidered to be appealed in accordance with the requirements of the Criminal Procedure Code of Ukraine. It was empha-sized that appealing the decisions of the investigating judge during the pre-trial investigation is an important guarantee of ensuring the protection of the rights and legitimate interests of the participants in the criminal proceedings. The list of persons who have the right to file an appeal is covered. The normative regulation of appealing against the decisions of the investigating judge is analyzed. The problematic issues of this activity and the definition of ways of normative regulation are considered. In the course of the research the works of scientists on the outlined issues are analyzed.The article examines the role of the prosecutor in verifying the legality and validity of decisions made by the investigating judge on the election, change, cancellation of measures to ensure criminal proceedings. Attention is drawn to the peculiarities of the prosecutor’s appeal of certain precautionary measures. Emphasis is placed on the peculiarities of the prosecutor’s filing of appeals, the quality of preparation of response documents. The peculiarities of appealing the decision of the appellate court, ruled on the results of the review of the decision of the investigating judge on the application of certain precautionary measures, have been studied. The characteristic features of appealing certain measures to ensure criminal proceedings have been identified and investigated.It is concluded that it is expedient to supplement the Criminal Procedure Code of Ukraine with provisions on the possibility for the prosecutor to appeal the decisions of the investigating judge on seizure of property, refusal, full or partial revocation of seizure of property, revocation of seizure of property, return of temporarily seized items and documents. measures in the form of a personal obligation or refusal to apply it, application of a precautionary measure in the form of a personal guarantee, application of a measure of restraint in the form of transfer of a juvenile suspect or accused under the supervision of parents, guardians, trustees or administration of a child care institution.

scholarly journals Application of preventive measures in the criminal process: current issues

2020 ◽  
pp. 122-126
Author(s):  
V.S. Suslova ◽  
O.I. Tyshchenko
Keyword(s):  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
Procedure Code ◽  
Wide Range ◽  
Definition Of ◽  
The Right ◽  
Criminal Matters

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

Definition of “Permission” in Russian Criminal Procedure

2016 ◽  
Vol 4 (10) ◽  
pp. 0-0
Author(s):  
Альберт Хайдаров ◽  
Albert Khaydarov
Keyword(s):  
Criminal Responsibility ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Court Judge ◽  
Foreign State ◽  
Procedure Code ◽  
Definition Of ◽  
The Right ◽  
Procedural Decisions ◽  
Article 5

The article deals with the definition of “consent” which understands as a the permission of the head of the investigative body for the production of the investigator or the resolution of the Prosecutor on the production of the investigator the corresponding investigative and other procedural actions and to their adopting procedural decisions in accordance with the paragraph 41.1 of article 5 of the Criminal Procedure Code. The author discovered a lack of conformity between the legal definition of “consent” and its use in the text of the Criminal Procedure Code. The definition of “consent” was examined in present article in its broadest sense, it was filled with new content, different from mentioned in paragraph 41.1 of article 5 of the Criminal Procedure Code. About the definition of "consent" was considered in the article as: 1) the power of the officials (authority), court (judge); 2) the right of a party to criminal proceedings to give consent to the production of the procedural actions or procedural decision; 3) condition of procedural agreements or condition for the adoption of procedural decisions; 4) consent of the two States on issues of international cooperation or the consent of the foreign state in bringing the citizen to criminal responsibility in Russia.

scholarly journals TO THE QUESTION ABOUT THE CONCEPT «PROCEDURAL COSTS IN CRIMINAL PROCEEDINGS»

Issues of Law ◽  
2020 ◽  
Vol 20 (4) ◽  
pp. 89-93
Author(s):  
S.M. Darovskikh ◽  
◽  
Z.V Makarova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Costs ◽  
The Russian Federation ◽  
Definition Of ◽  
Article 5

The article is devoted to the issues of formulating the definition of such a criminal procedural concept as «procedural costs». Emphasizing the importance both for science and for law enforcement of clarity and clarity when formulating the definition of criminal procedural concepts, the authors point out that the formulation of this concept present in the current Criminal Procedure Code of the Russian Federation is far from being improved. Having studied the opinions on this issue of the Constitutional Court of the Russian Federation, a number of procedural scholars, the authors propose their own version of the definition of the concept of «criminal procedural costs» with its allocation in a separate paragraph of Article 5 of the Criminal Procedure Code of the Russian Federation.

Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals ДЕЯКІ ПРОБЛЕМИ ТИМЧАСОВОГО ВИЛУЧЕННЯ ТА АРЕШТУ МАЙНА ЯК ЗАХОДІВ ЗАБЕЗПЕЧЕННЯ КРИМІНАЛЬНОГО ПРОВАДЖЕННЯ

2019 ◽  
Vol 13 ◽  
pp. 520-528
Author(s):  
І. В. Гловюк
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Definition Of

Стаття присвячена дослідженню проблемних питань застосування тимчасового вилу­чення майна та арешту майна як заходів забезпечення кримінального провадження із урахуванням наявної судової практики. Указано та обґрунтовано некоректність норма­тивного визначення тимчасового вилучення майна. Відмічено прогальність нормативного визначення арешту майна в аспекті об'єктів, на які може бути накладено арешт. Сфор­мульовано пропозиції щодо внесення змін та доповнень до ч. 1 ст. 167 КПК щодо ви­значення поняття «тимчасове вилучення майна» та ч. 1 ст. 170 КПК щодо осіб, на майно яких може бути накладено арешт.   The article is dedicated to the research of problematic issues of exercise of temporary seizure of property and arrest of property as means for ensuring criminal proceedings considering relevant judicial practices. Author mentioned and justified his point of view regarding incorrectness of the normative definition of seizure. Author also indicated whitespaces of the regulatory definition of arrest of property in the aspect of objects that may be the subject for the arrest. Proposals for amendments and additions to the part 1 of the Art. 167 of the Criminal Procedure Code regarding the definition of «temporary seizure of property» and part 1 of the Art. 170 of the Criminal Procedure Code regarding the scope of persons whose property may be arrested have been made.

scholarly journals Duty of Proving of a Civil Suit in Criminal Proceedings

2019 ◽  
pp. 137-144
Author(s):  
Serhii Krushynskyi
Keyword(s):  
Criminal Procedure ◽  
Active Part ◽  
Unanimous Opinion ◽  
Criminal Proceedings ◽  
Successful Performance ◽  
Property Damage ◽  
Civil Proceedings ◽  
Civil Suit ◽  
Legitimate Interests ◽  
The Right

The article is devoted to the analysis of some problematic questions related to the duty of proving of civil suit in criminal proceedings in Ukraine. In the criminal procedure doctrine there is no unanimous opinion of which subjects are required to engage into proving activities aimed at detection of civil suit circumstances in criminal proceedings. Concepts «duty of proving» and «burden of proving» are delineated by author. The position that the burden of proving is determined by the interests of participants in criminal proceedings was supported. The content of the burden of proving of civil suit in criminal proceedings covers the need to representation of evidence to justify (or refute) the amount of property damage, the depth of the suffering, and the amount of property compensation for non-pecuniary damage. The material and procedural interest of the civil plaintiff and the civil defendant in the outcome of the criminal proceedings encourages them to take an active part in the criminal procedural proving, in particular by representation of evidence available to them. The publicity (officiality) of criminal proceedings causes differences in the procedure for proving the grounds and size of a civil suit in criminal proceedings compared to civil proceedings. It is concluded that the duty of proving of civil suit circumstances lies on the prosecution party (investigator, prosecutor). The civil plaintiff, the civil defendant, their representatives are complete subjects of proving, but their activity in proving is a right, but not a duty. For the successful performance of their procedural functions, the defense of their legitimate interests, these persons are empowered to represent evidence, to participate in their research. So, they are given the opportunity to contribute to the correct resolution of criminal proceedings, in particular in the civil suit part. The subjects involved in the criminal proceedings who have a duty of proving should provide a possibility of realization of the right to represent evidence by other participants in the process.

scholarly journals The types and conditions of the application of special evidentiary procedures and preventive security measures employed by security agencies

2020 ◽  
Vol 37 (4) ◽  
pp. 26-41
Author(s):  
Jelena Matijašević ◽  
Sara Zarubica
Keyword(s):  
Human Rights ◽  
Criminal Activity ◽  
Criminal Procedure ◽  
Modern Society ◽  
Security Measures ◽  
Complex Issue ◽  
The Right To Privacy ◽  
Procedure Code ◽  
The Right ◽  
The Cost

The modern society is facing an increasingly dangerous and serious manifestation of criminal activity, that utilizes the most modern technical achievements, especially in the field of communications. That is why the modern states resort to employing new procedural forms of gathering evidence at the cost of a certain infringement on the right to privacy and other human rights. The Criminal Procedure Code establishes six special evidentiary procedures. The most complex issue in special evidentiary procedures is the question of when their usage is justified, in other words, the type of criminal activity to which they can be applied, and the conditions under which they can be used. In addition to the special evidentiary actions established in the Criminal Procedure Code, the security agencies are, within their competences, authorized to secretly collect data by applying preventive and security measures provided by special laws (lex specialis). Having that in mind, this paper will deal with the questions concerning the types and conditions of the usage of special evidentiary procedures, as well as the types and conditions of the application of preventive and security measures in Republic of Serbia.

scholarly journals Protection of Human Rights in the Criminal Procedure Legislation of the Republic Of Uzbekistan and Improved Reforms Taking Into Account Foreign Experience

2021 ◽  
Vol 58 (1) ◽  
pp. 1102-1115
Author(s):  
Botirjon Khayitbayevich Ruzmetov
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Sufficient Evidence ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Republic ◽  
Theory Of Evidence ◽  
The Right

In this article author had searched the questions devoted the protection of human rights in the criminal procedure legislation of the Republic of Uzbekistan and comparing with the legislation and worldwide experience of the foreign states.The article reveals the ongoing liberalization of the criminal law policy in the Republic of Uzbekistan, which is aimed at expanding human and fair norms, strengthening the protection of the rights, legitimate interests of a person andsociety. Against this background, the significance of investigative actions and the theory of evidence in the country's criminal procedural legislation is being revised. The development of science and technology leads to the improvement of methods of committing crimes using computer technology, taking into account which the timely disclosure and effective investigation of socially dangerous acts requires extensive use of mathematical tools and computer technologies.In this regard, changes are taking place in the investigative practice aimed at increasing knowledge in the field of computer technologies among law enforcement officials and increasing the responsibility of the personal of the investigative and judicial authorities in the implementation of their activities.The author emphasizes that despite significant restrictions on the rights and legitimate interests of a person in the conduct of investigative actions, all of them are necessary for obtaining sufficient evidence to expose the guilt of the offender, in the manner prescribed by law.Compliance by investigators, prosecutors and judges of all criminal procedural requirements established by the legislation of the country is a key requirement for the recognition of evidence as lawful and sufficient for a fair sentence.It should be noted that the article highlights that, since 1994, the Criminal Procedure Code of Uzbekistan enshrines the right to defense by involving a lawyer in the case from the moment a person is detained on suspicion of committing a crime, as well as the principle of equality of arms in criminal proceedings. An addition to the liberalization of legislation is the fact that now the courts are freed from such unusual functions as the execution of court decisions.In addition, the article expands on the author's proposals for improving the legislation of Uzbekistan, as well as expanding the power of lawyers, especially in the conduct of investigative actions, aimed at expanding the process of liberalization of criminal law in the country and improving the situation with the protection of human rights in the investigation of criminal cases.

scholarly journals On Criminal Procedure and Criminalistic Measures of Counteracting Crimes Against Legal Entities

2021 ◽  
Vol 15 (1) ◽  
pp. 98-105
Author(s):  
Olga Aivazova ◽  
Galina Vardanyan ◽  
Irina Smirnova
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Relevant Information ◽  
Criminal Proceedings ◽  
Legal Entity ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Right ◽  
Legal Entities

The article discusses some aspects of proving in cases of crimes against legal entities. The criminalistic description of the victim represented by a legal entity determines specific details of applying criminalistic and criminal procedure measures aimed at the identification, investigation, detection and prevention of such crimes. Under the current Criminal Procedure Code of the Russian Federation, one of the elements of ordering criminal proceedings is the protection of rights and legal interests of organizations that became victims of crimes. Part 1 of Art. 42 of the Criminal Procedure Code of the Russian Federation details this guideline for the first time by giving legal entities, viewed as independent subjects of criminal procedure legal relations, the right to be recognized as victims of criminal actions if the crime inflicted damage on their property or business reputation. Nevertheless, the imperfections in the regulation of legal entities’ participation in criminal proceeding, and the insufficient attention to the specifics of realizing their rights and legal interests in comparison with the physical persons of a similar procedural status give rise to numerous problems. The complex of such problems has a negative impact on the effectiveness of investigating this category of crimes and, as a consequence, on the ability of criminal proceedings to produce the intended result. The literal interpretation of Part 1, Art. 42 of the Criminal Procedure Code of the Russian Federation points out that the consequences of such crimes must include the infliction of two types of damage simultaneously — «to property and to business reputation», which can hardly be considered a good de­finition from the standpoint of juridical technique. Quite naturally, the investigation and court practice shows that law enforcers, while collecting proof on the character and size of damage inflicted on legal entities as a result of a crime, usually limit themselves to proving material damage, and even this damage is not proven in full (the common omission being losses of expected income). As for the damage inflicted on business reputation of a legal entity, its establishment during criminal proceedings is still problematic and, in practice, there is usually a gap in proving it. The authors point out that incomplete character of evidentiary information regarding the infliction of damage on the business reputation of legal entities is inadmissible and present their recommendations for resolving this problem, including the use of specialist knowledge and the improvements in the tactics of specific investigatory actions aimed at obtaining criminalistically relevant information on the case.

ELECTRONIC EVIDENCE IN CRIMINAL PROCEEDINGS

2017 ◽  
Author(s):  
Anastasiia Antoniuk ◽  
◽  
Valeriia Rusetska ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Specialized Knowledge ◽  
Legal Proceedings ◽  
Electronic Evidence ◽  
Effective Implementation ◽  
Procedure Code ◽  
Definition Of ◽  
Developed World ◽  
Theoretical Issues

This article is devoted to the consideration of theoretical issues related to the introduction in Ukraine of the institution of electronic evidence of criminal proceedings. The article also raises the question of ways to obtain electronic evidence. The article notes that in the modern developed world there are more and more new types of crimes. In this context, we will consider crimes closely related to the use of information technology. Proving such crimes raises some difficulties. To date, it is relevant to consolidate the concept of electronic evidence in the Criminal Procedure Code of Ukraine and the formation of a methodology for their study. Also, the author of the article notes that among the unresolved and problematic aspects of using electronic evidence in criminal proceedings in Ukraine, scientists distinguish: the lack of a clear procedural procedure for obtaining them in accordance with the Criminal Procedure Code of Ukraine; lack of grounds for declaring electronic evidence inadmissible; difficulties in identifying and fixing electronic evidence due to the lack of specialized knowledge among investigators, which necessitates the involvement of specialists for conducting legal proceedings; lack of a developed methodology for studying such evidence; lack of uniform terminology and regulation at the legislative level. It is determined in the article that for the effective implementation of international law in the field of combating cybercrime, it is advisable to substantiate the need for a legislative definition of electronic evidence, sources of their formation, the admissibility of international cooperation through the exchange of electronic evidence, the expediency of using electronic methods of sending requests and responses about their implementation, the possibility application of control information supply for investigation of transnational computer crimes. Based on the above, the author offers his own definition of electronic evidence. It is concluded that it is necessary to legislatively consolidate the term "electronic evidence" and continue to study the category, the importance of developing a methodology for studying electronic evidence, the procedure for collecting and recording them.

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