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 Criminal proceedings in the case of death of the suspect or the accused

2021 ◽  
pp. 1-11
Author(s):  
Ol'ga Vladimirovna Anuchina
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Theoretical Background ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Theoretical Concepts ◽  
Dead Person ◽  
The Law ◽  
Optimal Approach

There’s a necessity to study criminal proceedings in the case of death of the accused or the suspect as a differentiated form. The purpose of the research is the development of the optimal approach to the understanding of the form of criminal proceedings in the case of death of the suspect or the accused. The research subject is the criteria of a special procedure in relation to the peculiarities of the criminal proceedings in the case of death of the suspect or the accused. The author considers the criteria of differentiation of a procedural form, the most significant for this research, with account of the provisions of the Law on Criminal Procedure, theoretical concepts, the legal position of the Constitutional Court of Russia, and the explanations of the Plenum of the Supreme Court of Russia regarding the proceedings against a dead person. The scientific novelty of the research is determined by the ongoing development of the theoretical background of criminal proceedings in the case of death of the accused or the suspect. Based on the analysis, the author formulates the conclusion that these proceedings should be classified as specific and enshrined in the law as a specific form of proceedings. The significant criteria of the proceedings against a dead person are: the purpose, the way of deciding on the criminal liability, the composition of legal relations, the requirements to their participants, the specific nature of criminal procedure, the socio-legal status of a justiciable person. The results of the research can be used for scientific and research purposes, and can be taken into account when preparing amendments to the Criminal Procedure Code of Russia related to criminal proceedings in the case of death of the suspect or the accused.

scholarly journals CERTAIN PROBLEMATIC ISSUES OF DEFINING THE CONTENT OF SPECIAL KNOWLEDGE IN CRIMINAL LEGAL PROCEEDINGS

2016 ◽  
Vol 15 ◽  
pp. 171-180
Author(s):  
V. A. Fastovets
Keyword(s):  
Human Activity ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Proceedings ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
Definition Of ◽  
The Given ◽  
Made In

The article deals with the issue of defining the meaning of terms used in the Criminal Procedure Code of Ukraine, namely the notion of «special knowledge». It analyzes the definitions of this notion that were made in different periods of time by both national and foreign researchers based on the criteria of the significant features that are distinguished by these researchers in their definitions of the given term. By consequently highlighting faults in these definitions the article distinguishes those features that are the most accurate to reflect the essence of special knowledge in the criminal legal proceedings. Based on the obtained findings the article offers its own definition of this notion: special knowledge in criminal proceedings includes knowledge, skills and competences in any sphere of human activity that the investigator or the judge may not have at all or have to an insufficient extent, the use of this knowledge is at the discretion of the latter or directly regulated in the criminal procedure law, in order to establish the circumstances to be proved or to establish other circumstances relevant to the criminal proceedings.

scholarly journals ON THE ESSENCE AND LEGAL NATURE OF THE FORENSIC EXAMINATION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 5-16
Author(s):  
V. Tishchenko ◽  
L. Belik ◽  
O. Samoilenko ◽  
Yu. Tishchenko
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Science ◽  
Forensic Examination ◽  
Legal Nature ◽  
Forensic Expert ◽  
The Law ◽  
Definition Of

The article is devoted to the study of aspects of the essence and legal nature of forensic examination in criminal proceedings. It is analyzed the provisions of the Law of Ukraine “On Forensic Examination”. The norms of the Criminal Procedure Code concerning the grounds for the appointment and conduct of forensic examination have been investigated. It has been established that many scientists in the field of civil procedural law, criminal procedural law, criminology and forensic examination paid attention to the legal content of the forensic examination. The nature of occurrence of forensic examination has been investigated. It has been established that at the legislative level, the term “forensic expert activity” is used only in the Law of Ukraine “On Forensic Examination”. In the specified normative legal act there is no clear definition of this concept, scientists through the analysis of some norms of law reveal its content. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. The article analyzes the criminal procedure form of appointing a forensic examination. Key words: forensic examination, criminal proceedings, forensic expert activity, forensic expertology, criminal procedural form.

scholarly journals PROBLEMS OF THE IMPLEMENTATION OF THE RIGHTS OF CRIMINAL PROCEDURE PARTICIPANTS ON THE USE OF SPECIAL KNOWLEDGE IN THE CONDITIONS OF COMPETITIVE CRIMINAL PROCEDURE

2019 ◽  
pp. 223-232
Author(s):  
G. Avdeeva
Keyword(s):  
European Union ◽  
Criminal Procedure ◽  
The European Union ◽  
Criminal Proceedings ◽  
Basic Principles ◽  
Equality Rights ◽  
Procedure Code ◽  
Forensic Examination ◽  
Criminal Procedure Law ◽  
Special Knowledge

А competition between the criminal procedure parties and equality rights in presentation their evidences to the court, the availability of accused right to defense himself are among the basic principles of legal procedure in Ukraine. Despite the fact that in Art. 22 of the Criminal Procedure Code of Ukraine states that «criminal proceedings are carried out on the basis of the adversarial procedure», the parties of criminal procedure in Ukraine do not have equaling rights and opportunities to gather evidence through the using of special knowledge. A law № 2147-19 inured at the end of 2017 in Ukraine. The changes in the Criminal procedure law and Ukraine law «About a forensic examination» banned for lawyers and investigators to choose theyselves an expert establishment or experts. Investigators, public prosecutors and advocates have a right only to send a request to the judge about needing of a forensic examination. A judge personally chooses expert establishment or an expert. It is a cause of the substantial lowing of rights of lawyers and investigators in the collecting of proofs. These problems of regulation of expert activity in Ukraine do not correspond to the competitive European principles of the court. Part of these problems can be resolved if in Ukraine will adopt the Project of law № 8249. It is proposed in this law to return rights for the investigators and lawyers, which allow them personally to attract of experts. Also it is proposed to allow to nonstate experts and other specialists to conduct forensic examinations. This will bring the legislation of Ukraine closer to the legislation of the member countries of the European Union and will allow the principle of equality of parties rights of criminal procedure. A competition between state and non-state experts will lead to an increase of the quality and scientific level of expert conclusions. Key words: criminal proceedings, special knowledge, competitive judiciary.

scholarly journals Transformation of Criminal Proceedings against Minors in Contemporary Russian Criminal Procedure: Towards the Twentieth Anniversary of the Adoption of the Criminal Procedure Code of the Russian Federation

2021 ◽  
Vol 3 (3) ◽  
pp. 151-166
Author(s):  
Vyacheslav V. Nikolyuk ◽  
◽  
Elena V. Markovicheva
Keyword(s):  
Russian Federation ◽  
Theoretical Basis ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Scientific Discussion ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

Introduction. In the Russian criminal process, criminal proceedings against minors have historically taken shape as a complicated procedure. Twenty years of operation of the Criminal Procedure Code of the Russian Federation have shown sufficient efficiency of legal regulation of criminal procedural relations having to do with the investigation and consideration of this category of criminal cases. But in the process of law enforcement, a number of problems were identified that required resolution through the adjustment of the current criminal procedure law. This article is devoted to the analysis of the most significant changes in the normative regulation of criminal proceedings against minors during the period of the Criminal Procedure Code of the Russian Federation. A critical understanding of the process of transformation of the relevant norms will contribute to the development of an updated regulatory model of criminal justice involving minors. Theoretical Basis. Methods. The theoretical basis of the study consisted of both Russian and foreign scientific works in the field of criminal procedural law, specifically those devoted to both complicated proceedings in general and the specifics of juvenile criminal proceedings. The use of a formal legal research method allowed us to identify patterns in the transformation of criminal proceedings against minors. Results. The article reveals the most significant transformations of the normative regulation of criminal proceedings against minors. Some changes and additions made to the Criminal Procedure Code of the Russian Federation during the period of its validity are analysed. Further, he main directions for further scientific discussion on the legal regulation of criminal procedure relations with the participation of minors are outlined. Discussion and Conclusion. Although criminal proceedings against minors show sufficient efficiency and compliance with international law, there is a need to systematise the criminal procedural norms governing the participation in criminal proceedings of all minors, regardless of their procedural status. The authors propose, within the framework of the updated criminal procedure law, to systematically consolidate the norms governing the legal status of not only the underage defendants, but also the juvenile victims and witnesses.

scholarly journals Analysis of the project “On amendments to certain legislative acts of the Russian Federation to provide the victim, suspect, accused with the possibility of reconciliation”

2020 ◽  
Vol 14 (3) ◽  
pp. 362-367
Author(s):  
N.V. Mashinskaya ◽  
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Criminal Procedure ◽  
Alternative Methods ◽  
Federal Law ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right

The problem of legislative regulation of the procedure for reconciliation of the victim with the suspected, the accused until a certain time was only a subject of discussion in the scientific literature. At the same time the state’s need to find measures that can eliminate the consequences of crimes without the use of ordinary criminal procedures has actualized the work on introducing alternative methods of settling the criminal-legal conflict into criminal proceedings. Given the urgent need to apply this procedure in practice, the Interregional Public Center “Judicial and Legal Reform” has developed and posted on its website a draft federal law “On Amendments to Certain Legislative Acts of the Russian Federation to Provide the Victim, Suspect, and Accused with the Possibility of Reconciliation.” To implement the procedure for reconciliation in criminal proceedings, the drafters of the bill propose to include a new chapter in the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Criminal Procedure Code of the Russian Federation). The author of the article critically evaluates the attempt due to the inconsistency of a number of novels, their uncertainty and inconsistency with the norms of the criminal procedure law. To eliminate the existing shortcomings, it is proposed to provide a separate article defining the procedural status of the conciliator and to include the specified rule in Ch. 8 of the Criminal Procedure Code of the Russian Federation. As a guarantee of the right of the victim, suspect, accused to reconciliation, the introduction of an appropriate addition to the criminal procedure norms governing the legal status of the named participants in criminal proceedings is considered.

scholarly journals Problematic issues of judicial control in the criminal process of Ukraine

2021 ◽  
pp. 284-287
Author(s):  
Y. Voitovych
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Control ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
The Law ◽  
Definition Of

The article considers the peculiarities of the legislative regulation of the institution of judicial control in the criminal process of Ukraine. The authors who paid attention to the research of this institute of criminal procedural legislation, the purpose of the research are determined. In particular, as a result, the definition of judicial control as an independent institution of procedural law has been clarified, taking into account both recent changes in procedural legislation and taking into account current changes. It is pointed out the imperfection of certain terms of the procedural law, which, among other things, affect the content of the institution of judicial control. The inconsistency of the content of the Criminal Procedure Code of Ukraine with the principles that preceded its adoption was emphasized. A gap in the procedural law has been identified, which consists in the lack of regulation of the actions of officials of the prosecution in the event of a court decision such as returning the indictment to the prosecutor as not meeting the requirements of the law. A comparative analysis of the criminal procedural norms that regulated the institution of additional investigation during the CPC of the USSR, with the rules that give the court the right to return the indictment to the prosecutor as one that does not meet the requirements of the law. The procedural powers of the investigating judge outside the stage of pre-trial investigation in criminal proceedings have been defined, and their inadequacy to restore the constitutional rights of a person, which could potentially be violated, has been criticized. The constitutional prescriptions that define human and civil rights are analyzed, their implementation is assessed in terms of the problem covered; It is concluded that the requirements of the Criminal Procedure Law do not comply with the Constitution of Ukraine, in particular, attention is focused on the possibility of restricting the constitutional rights of a person in the absence of an effective mechanism for their renewal. The conclusion was made on the basis of the analysis of constitutional norms and doctrine of law with regard to the definition of justice. Certain provisions of the law have been criticized, and suggestions for their improvement have been made. As a result, it is proposed to define judicial control as a direct verification by an investigating judge of the legality and validity of decisions, actions or omissions of the prosecution and other state bodies in criminal proceedings.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals MEANS OF COUNTERACTING THE PROVISION OF AN INTENTIONALLY MISLEADING CONCLUSION BY AN EXPERT

2016 ◽  
Vol 15 ◽  
pp. 180-188
Author(s):  
M. V. Shepitko
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Legal Proceedings ◽  
Forensic Examination ◽  
Special Knowledge ◽  
Psychological Influence ◽  
Forensic Expert ◽  
The Law ◽  
Misleading Conclusion

The article deals with the problems of counteracting the provision of an intentionally misleading conclusion by an expert. It analyzes the rights, obligations and liabilities of an expert. The research focuses on the fact that a forensic expert differs from other participants to criminal legal proceedings - he/she has special knowledge. According to his/her legal status an expert is engaged in this activity on a permanent basis using the powers given by the Law of Ukraine «On forensic examination» and procedural laws. The article pays particular attention to the forms of obligations undertaken by an expert in the course of a pretrial investigation and trial - warning of criminal liability, the oath by an expert. With this regard the article specifies common and distinctive traits of the abovementioned oaths showing different purposes that the lawmaker had in mind while drafting them. It is important to point out to the conclusion that the mechanism of counteracting the provision of an intentionally misleading conclusion by an expert is a means of psychological influence. This episode may indicate a possibility of excessive intimidation of this participant of the criminal legal proceedings.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

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