scholarly journals Assurance of Evidence

2017 ◽  
Vol 6 (s2) ◽  
pp. 69-73
Author(s):  
Adrian Leka
Keyword(s):  
Relevant Literature ◽  
Preliminary Investigation ◽  
Sexual Exploitation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Trials ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Provisions ◽  
Procedure Code

Abstract This paper reflects the detailed theoretical and interpretative treatments of criminal evidence and the process of proving according to criminal procedural legislation, based on the Constitution and E.C.H.R. Theoretical and interpretive depeened treatments, are based on the scientific research closely connected to the judicial practice of the implementation of this legislation, the positions held by judicial practice. Special attention is paid to all criminal evidence, meaning, object, features, procedural rules of receiving, verification and evaluation of them throughout the penal process, the rights and obligations of the parties in this process. The implementation of legal provisions onto evidence, evidence search tools and the process of proving, by procedural subjects in judicial practice has recognized and shown the most important issues in relation to other instutitutet of criminal procedural law. The terminology used in this paper is supported and conditioned by the terminology used by the legislator in dispositions of the Criminal Procedure Code. Provision of proof is a relatively new institute in the criminal proceedings. It first became known in the procedure code of 1995, in order to preserve the value of the data found during the preliminary investigation. Providing of proof would be applied in all those cases where evidence risks to be damaged, disappear, et lost and receiving it can not be deferred until the trial. Regarding to the relevant literature in Albanian language, only few authors have mentioned it sporadically, not emphasizing the real importance of evidence assurance institute. Even in the commentary of criminal proceedings this institute is dealt with very little, in summary, if we refer to its importance. Assurance of proof is provided in the Criminal Procedure Code in Articles 316-322. In these provisions is expressed the whole procedure of securing evidence, from the definition of specific cases in which it might apply (Article 316 Criminal Procedure Code), continuing with the presentation of evidence and the application for evidence assurance and subjects legitimized in its appearance (Articles 317,319 Criminal Procedure Code), as well as the right of the court in disposition of this requirement. An important element to be treated is to determine the scope of the institute of evidence assurance. Often in practice it is said that the demand for evidence assurance, is applied more in criminal offenses smuggling of women for sexual exploitation, trafficking of minors for other exploitation purposes, sexual relations with minors etc. In this paper is also treated the evidence assurance institute as well as that of the research means of evidence, these institutions closely linked to criminal trials and the process of proving. Of the most important institutes of criminal procedural law is that of "criminal evidence and proving process" which is rightly considered as the backbone institute of this right. The importance of criminal evidences and the process of proving is determined by the purpose itself and content of the criminal legislation. These institutes are directly related to the content and task of this science, to what is the process of detecting and proving the truth in criminal trials. While acknowledging the special place it occupies the evidence assurance institute it is not yet determined its importance really. In this brief theoretical material, I tried to treat through a slightly wider framework assurance of evidence focusing on its importance, theoretical and practical problems in determining the scope of these institutes.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals The features of participation of the defender and the legal representative of a juvenile suspect (accused) in the stage of preliminary investigation

2019 ◽  
pp. 196-199
Author(s):  
Анна Кучинская ◽  
Anna Kuchinskaya
Keyword(s):  
Theoretical Analysis ◽  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Representative ◽  
Defense Counsel ◽  
Judicial Practice ◽  
Procedure Code ◽  
The Russian Federation

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.

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 ON SOME COMMENTS ON THE NORMATIVE FORMULATIONS FOR THE PURPOSE OF CRIMINAL PROCEEDINGS

2021 ◽  
Vol 17 (1(63)) ◽  
pp. 127-133
Author(s):  
Виктор Николаевич ГРИГОРЬЕВ
Keyword(s):  
Russian Federation ◽  
Justice System ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legal Situation ◽  
Law Enforcement Officials ◽  
The Subject ◽  
The Russian Federation

The purpose of Russian criminal proceedings, which is very important among the modern social and legal institutions, is nevertheless deficient in its legal and regulatory form. It is noted that in the modern situation, some formulations of the purpose of criminal proceedings have come into conflict with the real social and legal reality. Purpose: to resolve contradictions between the formulations of the purpose of criminal proceedings and the actual social and legal reality. Methods: the author uses the methods of dialectical and formal logic, comparison, description, observation, interviewing, experiment, analysis, interpretation. Results: a theoretical basis has been developed for the choice, in the event of a conflict between the formulations of the purpose of criminal proceedings and the actual social and legal situation, of whether to change the normative formulation of the purpose of criminal proceedings or whether to change the procedure itself. In choosing the subject of reform, preference is given to traditional Russian values. Modern trends in Russian criminal proceedings do not fully reflect the needs of civil society in the Russian Federation. It is more accurate to assume that this is the result of a system of departmental and bureaucratic measures to distribute influence and burden. From a humanitarian standpoint, it would be more correct to return the criminal justice system to a state where it will again reflect the lost purpose, in particular, protecting individuals from unlawful accusations. The first step should be to remove from law enforcement officials the obligation to be unilateral in the examination of evidence and to represent only one party – the accusation (Chapter 6 of the Criminal Procedure Code of the Russian Federation), as well as to remove the normative prohibition for the preliminary investigation and inquiry bodies to gather evidence defending the accused (Part 2 article 15 of the Criminal Procedure Code of the Russian Federation).

ON THE POSSIBILITIES OF INTEGRATING ARTIFICIAL INTELLIGENCE INTO CRIMINAL PROCEEDINGS

2021 ◽  
Vol 17 (5) ◽  
pp. 220-227
Author(s):  
ELENA PAPYSHEVA ◽  
Keyword(s):  
Artificial Intelligence ◽  
Formal Language ◽  
Preliminary Investigation ◽  
Digital Technologies ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
The State ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Machine Readable

This article examines the possibilities of using machine-readable law technologies in criminal procedural legislation and criminal proceedings; the analysis of the Concept of development of technologies of machine-readable law is carried out in order to determine the possibility of applying its provisions in the context of criminal procedural law. According to the author, the development of the technology of machine-readable law sets the legislator the task of starting the process of adapting the norms of the criminal procedure law to their subsequent presentation in formal language. Legislative acts should be structured as much as possible, within the acts, norms are more clearly divided into certain categories and groups with the building of logical connections between them. The norms of legislative acts need to be formalized, their content should not have legal and linguistic uncertainties, normative conflicts and broad discretionary powers. The conclusion is made about the need for legal transformations, formalization of the norms of the Criminal Procedure Code of the Russian Federation, based on the principle of legal certainty. If the adaptation of legislation to machine-readable norms is the future in the development of science and the system of legal regulation of the state, then the use of digital technologies in criminal proceedings is a matter of the present. It seems that modern digital technologies are sufficiently developed to start developing an automated information system at the state level that meets the formal requirements of the Criminal Procedure Code, within the framework of which a preliminary investigation will be carried out. Moreover, we are talking not only about the «electronic criminal case» in its generally accepted understanding. The author proposes the creation of a comprehensive universal program that provides for the automated application of the ontology of machine-readable law (descriptions in the formal language of many objects in the field of law and the connections between them) in the investigation of criminal cases using the method of teaching artificial intelligence based on a large array of data (including data, constituting the empirical base of research, which was studied in the development of private methods for investigating certain types of crimes).

Genesis of the Criminal Procedure on Liability of Legal Persons on Russia

2016 ◽  
Vol 4 (1) ◽  
pp. 0-0
Author(s):  
Ольга Семыкина ◽  
Olga Semykina
Keyword(s):  
Criminal Liability ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Judicial Reform ◽  
Remedial Measures ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Positive Assessment ◽  
Legal Entities

The article deals with the legislative and doctrinal precondition of criminal liability of legal persons, which are accumulated a concept formed the basis of the judicial reform of 1864. The author studies the practice the first phase of the introduction in to the Russian criminal procedure enforcement of the measures applicable to legal persons for acts committed during preliminary investigation of crimes. In this context, the article lays emphasis on the norms of the Charter of criminal proceedings of 1864, which contain the procedural peculiarities of the application of such a measures to legal entities as closure, as well as monitors the judicial practice on the criminal liability of legal persons. The article gives a positive assessment of the approach of the legislator to the possibility of the implementation of remedial measures in criminal proceedings on such corruption crimes as crimes against property and income of the treasury. Given these positions, the author comes to the conclusion of the possibility of application of measures of criminal procedure liability of legal persons under preliminary investigation in criminal cases of crimes that infringe on budget forming industries.

scholarly journals Compensation of property damage caused to non-participants in criminal procedure in order of rehabilitation

2020 ◽  
pp. 221-230
Author(s):  
V. V. Muryleva-Kazak
Keyword(s):  
Property Rights ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Property Damage ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Right ◽  
Legal Entities

The article discusses the issue of the legal nature of the right to compensate harm, the effectiveness of usage of the criminal procedure mechanism for its protection and the reasonableness of the inclusion of relevant in the Criminal Procedure Code of the Russian Federation.Based on the analysis of judicial practice, it is concluded that the courts have difficulties in determining the appropriate way to protect the right to compensate harm caused in the course of criminal proceedings and the delineation of competence between arbitration courts and courts of general jurisdiction, which leads to a violation of the applicants’ right to access to justice and reduces the effectiveness of judicial protection.In addition, it is concluded that the criminal procedure form is not adapted to the consideration of civil disputes on compensation for harm, the author names the impossibility of collecting lost profits as one of the factors that reduce the effectiveness of the use of the criminal procedural mechanism for protecting property rights.Based on the interpretation of the criminal procedure rules provided in the article, the author concludes that legal entities have an opportunity to use criminal procedure remedies for violated property rights in more cases than individuals, which violates the principle of equality before the law and the court. The article provides ways to solve the identified problems.

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.

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 Preliminary Hearing Judge

2020 ◽  
Vol 5 (1) ◽  
pp. 35
Author(s):  
Lirime Çukaj (Papa) ◽  
Denisa Laçi
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Judicial System ◽  
Main Task ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Provisions ◽  
Italian Law ◽  
Preliminary Session ◽  
The Impact

A new figure in the judicial system was foreseen in the legal amendments undertaken in the Code of Criminal Procedure, by law no. 35/2017, in the framework of the Justice Reform. The Code of Criminal Procedure has been changed in various aspects, including in here the changes that are related with the subjects of the criminal proceedings. I have previously set out what are the problems that emerged in the criminal process in general, and in the Preliminary phase of Investigation in particular, to understand the effects of this figure and the reason for it to enter into the judicial system. This preliminary investigation control based in ower law now is made by the Preliminary Hearing Judge (PHJ) and the Preliminary Investigation Judge (PIJ). The main task of this article, is to determine the impact that the PHJ has had on the progress of a fair and complete criminal process, since it has been sanctioned by law and has begun its functions. On the other hand what are the issues that this subject presents regarding the functions that the law attributes and their implementation in practice? The main focus of this paper is precisely those legal provisions that have provided for the manner in which this procedural subject operates, to further understand its impact on the criminal process in general and on the preliminary investigation phase in particular. An important aspect is making an overview of the Italian law from where we are based to foresee this judicial figure. After a comparison between these legal provisions we came in conclusion of the problematics that PHJ presents. We outline, at the end of the study, our conclusions arising from the examination of the preliminary session and PHJ, as well as some recommendations that I consider necessary for the process of criminal proceedings, in the light of the changes that have taken place.

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