scholarly journals ADVERSARIAL MODEL OF PRE-TRIAL INVESTIGATION: ILLUSIONS AND REALITY

2016 ◽  
Vol 15 ◽  
pp. 5-13
Author(s):  
V. Y. Shepitko
Keyword(s):  
The State ◽  
Criminal Trial ◽  
Equal Access ◽  
Criminal Proceedings ◽  
Special Knowledge ◽  
Secret Investigation ◽  
Legislative Changes ◽  
Adversarial Model

The article analyzes certain trends in the mechanism of the adversarial process at the pre-trial investigation stage. It attempts to determine legislative changes in the regulation of the pre-trial investigation as a stage in criminal proceedings. The article also focuses on the essence of the investigation activity, the order of its implementation, the investigator’s functions and powers. At the same time any investigation has to ultimately aim at establishing the truth. The article determines the functional purposes of investigation (search) actions as well as secret investigation (search) actions and points out to certain problems and deficiencies in the course of their implementation. It dwells on the peculiarities of addressing special knowledge by various parties of the criminal proceedings (the state prosecution and the defense). The article concludes that at present the parties to the criminal trial proceedings do not have equal access to special knowledge. With this regard and taking into account the existing conditions, the article offers suggestions to optimize the investigation activity with the emphasis on the need for making criminalistic knowledge available to the pre-trial investigation and formation of an «adversarial criminalistics».

scholarly journals Proceeding the prosecutor’s waiver: between law and reality

2021 ◽  
pp. 6-11
Author(s):  
Tatiana Vizdoaga ◽  
Keyword(s):  
Driving Force ◽  
The State ◽  
Criminal Trial ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
The Law ◽  
Core Issues ◽  
Trial Phase ◽  
Do So

The prosecution is the driving force behind the criminal proceedings. By presenting the prosecution with all his energy, insistence and competence, the prosecutor is obliged to do so only to the extent that the guilt is proven, taking into account the evidence supporting the defendant’s position. The prosecutor himself is obliged to strictly observe the law, to oppose any abuses and violations, regardless of the party whose interests are harmed. For the prosecutor, supporting the accusation is not an end in itself; or, the well-founded waiver of the accusation, as well as the support of the accusation, equally contribute to the achievement of the purpose of the criminal trial. This study discusses certain core issues related to the waiver of the state accuser to charge the trial phase of the criminal case.

scholarly journals Special Knowledge in the Work of a Defense Lawyer

2017 ◽  
Vol 12 (1) ◽  
pp. 27-29
Author(s):  
A. V. Rostovtsev
Keyword(s):  
Criminal Trial ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
Special Knowledge

Adversariality of the parties of prosecution and defense in criminal proceedings offers the defense lawyer an opportunity to apply their special knowledge. The article presents the author's view of the problem of the use of special knowledge by the defense lawyer in the context of an adversarial criminal trial.

scholarly journals A conceptual approach to the construction of criminal proceedings that provide access to justice in the context of digital technologies development

2020 ◽  
pp. 52-65
Author(s):  
L. N. Maslennikova
Keyword(s):  
Research Team ◽  
Digital Technologies ◽  
The State ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Conceptual Approach ◽  
Initial Stage ◽  
Red Tape ◽  
Legislative Changes

The article analyzes the current problems of access to justice in the criminal proceedings of Russia, and claims that the state is not properly fulfilling this constitutional duty. Pre-trial proceedings are considered to be inefficient, unbalanced, and "red tape" proceedings that do not provide adequate access to justice. Attention is drawn to the lack of a logically holistic, conceptual approach to the development and improvement of the initial stage of criminal proceedings, the fragmented and inconsistent nature of legislative changes, and the locality of scientific discussions that are not United by a single conceptual approach. The article describes the conceptual approach developed by the research team to the construction of criminal proceedings that provides access to justice in criminal proceedings in the context of the development of digital technologies.

scholarly journals Economics of Criminal Proceedings in View of Procedural Principles

2021 ◽  
Vol 5 (1) ◽  
pp. 1-12
Author(s):  
Dobrosława Szumiło-Kulczycka
Keyword(s):  
Economic Analysis ◽  
Scientific Evidence ◽  
Empirical Studies ◽  
The State ◽  
Criminal Trial ◽  
Economic Factors ◽  
District Courts ◽  
Economic Analysis Of Law ◽  
Criminal Proceedings ◽  
The Impact

This article was written as part of the Costs of a Criminal Trial in View of an Economic Analysis of Law research project. Part one contains deliberations on the impact of economic factors on the regulations concerning the criminal procedure. One needs to answer the question of whether such factors should be considered as affecting the principles on the basis of which the model of the criminal trial is being developed and whether there are any solutions that have been introduced specifically because of the profit and loss account related to the prosecution of a perpetrator. Part two focuses on the fundamental results and the conclusions of empirical studies carried out with respect to the expenses incurred by the State Treasury in criminal proceedings, considering the expenses incurred in serious cases, i.e., those examined in the first instance by regional courts, and in minor cases, which in the first instance are handled by district courts. Results and Conclusions: The article points out three fundamental factors determining the amount of the expenses, i.e., the fact of the accused being imprisoned during the proceedings, the use of scientific evidence (opinions produced by expert witnesses), and the participation of a public defender remunerated by the State Treasury.

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.

Does the ‘Two Dogs’ Method of Clandestine Synthesis Use Precursors that are not Legally Regulated on the Australian East Coast?

2021 ◽  
Vol 3 (2) ◽  
pp. 26-28
Author(s):  
Victor Chiruta ◽  
Robert Renshaw
Keyword(s):  
Literature Search ◽  
East Coast ◽  
New South ◽  
New South Wales ◽  
The State ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
South Wales ◽  
Comprehensive Literature Search

In the State of New South Wales (NSW), Australia, the prosecution in criminal proceedings is seeking deterrence punishment for offenders manufacturing 3,4-methylenedioxyamphetamine (MDA) from the precursor helional via the ‘Two Dogs’ method (TDM). The reason given by the prosecution is a presumption that the TDM does not use any unrestricted chemicals in the synthesis of MDA. A comprehensive literature search was conducted. The relevant law was searched to fact-check the assertion of the prosecution. It was found that the prosecution was incorrect. Intermediate precursors of the TDM are restricted in NSW. However, the starting precursor helional remains unscheduled in NSW, yet helional is scheduled in some other Australian States. The prosecution’s position may play a significant factor in the sentencing proceedings of offenders. Therefore, as a matter of urgency, the prosecution must review and update its position and its submissions, keeping with the factual position in relation to the legal provisions of precursors used in the TDM.

scholarly journals LIBERTAD DE EXPRESIÓN, REDES SOCIALES Y DERECHO PENAL

2020 ◽  
Author(s):  
Fernando Miró-Llinares
Keyword(s):  
Social Networks ◽  
Freedom Of Expression ◽  
The State ◽  
Free Expression ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Redes Sociales ◽  
Need To Evaluate ◽  
Derecho Penal ◽  
The Impact

Nowadays it is easy to find public statements about the situation of freedom of expression in different democracies questioning the exercise of this right, perhaps as a result of the political tensions to which democratic states have been subjected in recent years. In this sense, Spain does not escape from these diagnoses. Both international indicators that try to measure the situation and evolution of freedom of expression in different States and academic scholars highlight the excessive criminalization of certain speeches that end up in criminal proceedings that sentence people who make offensive expressions, mainly through social networks. However, in order to reach this diagnosis it is necessary to put together all the symptoms that would lead us to that conclusion. Therefore, in this paper I analyze two main indicators that could shed more light on the state of freedom of expression in Spain and the impact that social networks have had on it. Firstly, I analyze the legislative evolution of expression offences since 1995, to evaluate the limits of certain expressions in order to reach the conclusion that, effectively, over the years the punitive scope of what cannot be expressed has been extended, thus limiting, at least in abstract, freedom of expression. Secondly, I analyze the jurisprudential evolution of all these crimes since 1995 to show that, indeed, the proliferation of sentences from 2015 to the present shows the increase in the criminalization of expressions that are made eminently through social networks such as Twitter and Facebook. To conclude, I reflect on the possibility that the latest absolutory sentence by the Constitutional Court of the singer of the band Def con Dos César Strawberry will increase the feeling that, from now on, all expression is admissible and, therefore, will increase free expression in general and, in particular, in social networks, since, it does not seem that our legislator is willing to rectify in its steps the excessive criminalization of certain offenses. I also reflect on the need to approach freedom of expression in a more empirical way and the need to evaluate not only the limitations that the law and judicial processes impose on freedom of expression, but also the extent to which citizens in general and, in particular, users of social networks, without the need to have gone through any criminal proceedings, have stopped expressing their opinions because only in this way will it be possible to determine the state of health of our right to freedom of expression.

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.

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