REVIEW ON THE MONOGRAPH OF OLEKSANDR TORBAS �DISCRETION IN THE CRIMINAL PROCESS OF UKRAINE: THEORETICAL JUSTIFICATION AND PRACTICE OF IMPLEMENTATION�

2020 ◽  
Vol 10 (4) ◽  
pp. 147-150
Author(s):  
Iryna Hloviuk ◽  
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
Criminal Process ◽  
Procedural Law ◽  
Current Period ◽  
Legitimate Interests

Current period of development of the legal system of Ukraine is characterized by variability of legislation that regulates, in particular, organization of judicial system and implementation of criminal proceedings. Unfortunately, criminal procedure legislation is no exception, given how many changes and additions have been made to the Criminal Procedure Code of Ukraine since its entry into force in 2020. Undoubtedly, like any other codified legal act, CPC of Ukraine in modern conditions cannot be unchanged, given the dynamics of public relations, the provisions of international law, decisions of ECtHR and number of attempts to solve identified problems of its application. Difficulties of criminal procedural law enforcement are manifested in such an area as the use of discretion of authorities in criminal proceedings, although without it application of legislation is ineffective. At the same time, lawful discretion in criminal proceedings should not turn into its opposite � arbitrariness, which will already violate rights and legitimate interests of individuals and legal entities. In criminal proceedings, given the imperative method of legal regulation and possibility of various coercive measures, including those related to the restriction of constitutional human rights, this issue is of particular importance, given, inter alia, that prosecution�s discretion applies within non-adversarial procedure, and the CPC of Ukraine does not always provide for the possibility of appealing such decisions in court. The peer-reviewed monograph consists of four chapters, which contain 10 sections. Structuring of the monograph is logical; the author analyse problems of discretion from questions of concept, signs and limits of discretion, and then moves to the characteristic of realization of discretion by judge, prosecutor, investigator, detective. In general, without a doubt, the monograph of Torbas O. O. �Discretion in the criminal process of Ukraine: theoretical justification and practice of implementation� is relevant, complete and fundamental scientific work, has scientific and practical value. Monograph of Torbas O.O. significantly enriches criminal procedure doctrine regarding the subjects of criminal proceedings, criminal procedure decisions and other areas.

scholarly journals The legal regulation of the preliminary investigation bоdies activities according to UPK Uzbek SSR 1929

2021 ◽  
pp. 226-237
Author(s):  
A. A. Muhitdinov
Keyword(s):  
Public Relations ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Process ◽  
Legal Norms ◽  
Procedural Law ◽  
Stage Of Development ◽  
Procedure Code ◽  
History Of

At the present stage of development of the criminal procedural legislation of the Republic of Uzbekistan, many legal institutions that have a long history of doctrinal development have received normative consolidation. Among them is the institution of participants leading the criminal process at the stage of pre-trial investigation. In the history of Uzbekistan, the activities of these subjects of the criminal process were regulated by numerous normative legal acts, including codified ones. The first Criminal Procedure Code of the Uzbek SSR was adopted in 1926. Soon the Uzbek SSR Criminal Procedure Code of 1929 entered into force. In comparative legal terms, the latter was significantly inferior to the previous one in terms of the degree of detail in the regulation of criminal procedural relations with the participation of pre-trial investigation bodies. Analysis of the content of the legal norms of the Criminal Procedure Code of 1929, regulating the activities of these bodies, allows us to identify features that, from the standpoint of the modern vision of the optimal model of the Criminal Procedure Code of Uzbekistan, are assessed as shortcomings in the legal regulation of the relevant public relations. As such, we can name the following: the CPC does not contain norms defining the sources of criminal procedural law; the code does not provide for a separate chapter devoted exclusively to investigative actions, a detailed description of their procedural form; there is no clear delineation of the competence of the bodies of inquiry and the investigator; the investigator is by law entrusted with supervisory functions that are not characteristic of him in relation to the bodies of inquiry; the Criminal Procedure Code does not include a norm prohibiting persons conducting a preliminary investigation from obtaining evidence by violence, threats, etc.; The Criminal Procedure Code determined the existence of sufficient data, and not evidence, as the basis for the accusation. After being charged, the person acquired the status of a defendant, not an accused; the application of preventive measures, including detention, was carried out by the investigator independently, without the sanction of the prosecutor, which testified to the absence of guarantees of the observance of the right to personal inviolability.

JUDICIAL DOCTRINE AS A SOURCE OF CRIMINAL PROCEDURE LAW OF UKRAINE: GENERAL GNOSEOLOGICAL (EPISTEMIOLOGICAL) RESEARCH (PART ТWO)

2021 ◽  
Vol 2 (2) ◽  
pp. 49-57
Author(s):  
Artem Shapar ◽  
◽  
Yuriy Yelaiev ◽  
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Scientific Article ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Doctrine ◽  
Criminal Process ◽  
Procedural Law ◽  
Relationship Of

In this scientific article, the continuation of the gnoseological (epistemological) research of legal doctrine as a source of criminal proceedings is carried out. In this scientific work, theoretical perception of scientific concepts of Ukrainian and foreign legal scholars in the field of legal doctrine as a source of law (in general), taking into account the legal significance of legal doctrine as a source of criminal procedural law (in particular) is carried out. In this scientific work, the attention is paid to the research of the fundamental and systemic relationship of legal doctrine with other sources of criminal proceedings (in particular, with the Decision of the Constitutional Court of Ukraine on a particular constitutional and judicial case). The text of this scientific article studies, inter alia, the fundamental and systemic relationship of Legal Doctrine with Separate Opinion of the Judge of the Constitutional Court of Ukraine (in a particular constitutional and judicial case), as sources of criminal procedural law of Ukraine. At the same time, the peculiarities of constitutional and judicial legal regulation in the field of criminal proceedings and in combination with the study of theoretical and legal and philosophical and legal bases (foundations) of the abovementioned two sources of criminal process in Ukraine are taken into account. The scientific knowledge of the theoretical and legal and philosophical and legal relationship of the Legal Doctrine with the Separate Opinion of the Judge of the Constitutional Court of Ukraine (as sources of criminal procedural law of Ukraine) is carried out with consideration of the scientific and theoretical features, specified in the text of Separate Opinion of the Judge of the Constitutional Court of Ukraine of legal (in particular, philosophical and legal, doctrinal and legal, general and legal, criminal and procedural) definitions. In the text of this scientific article, the attention is paid to the humanistic legal doctrine on which the acts of international law in the field of human rights (in particular, human rights in the field of criminal procedure) are based. In this scientific article, the attention is paid to legal doctrine as a manifestation of a person's ability to learn (including knowledge of the sphere of criminal process).

scholarly journals Formation of Real Legal Regulationin the Practice of Criminal Procedure Law

2018 ◽  
Vol 5 (2) ◽  
pp. 125-130
Author(s):  
V S Shadrin
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
Legal Norms ◽  
Procedural Law ◽  
Criminal Procedure Law

The article explains the recognition of the criminal procedure law as the only source of criminal procedural law, examines the content of legal regulation in criminal cases as part of legal norms, legal relations and individual requirements, demonstrates how the model of criminal proceedings, fixed in the criminal procedure law, turns into a real criminal -process law.

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.

scholarly journals Reform and Digitalization of Pre-trial Proceedings in Criminal Proceedings of the Kyrgyz Republic

2020 ◽  
Vol 6 (9) ◽  
pp. 308-315
Author(s):  
K. Smanaliev
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Electronic System ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
The Subject ◽  
Legislative Reforms ◽  
The Moment ◽  
Definition Of

The article is devoted to the peculiarities of changes in the model of criminal proceedings in the Kyrgyz Republic and the definition of ‘criminal proceedings’ is given in a new edition. It has been established that pre-trial proceedings as a stage in the criminal process; begins with the registration of statements and messages and is the initial independent stage of the criminal process, manifesting in two forms: investigation and proceedings on misdemeanor cases. It was confirmed that the refusal from the stage of initiating a criminal case was replaced by a new institute of the Unified Register of Crimes and Misdemeanors, which includes a process starting from the moment of electronic registration and a system for recording applications and messages, and ending with the execution of a court sentence. The object of the research is public relations associated with the reform and digitalization of pre-trial proceedings in the Kyrgyz Republic. The subject of the research is the novelties of the criminal procedure legislation of the Kyrgyz Republic regarding pre-trial proceedings. In connection with the latest legislative reforms and digitalization in Kyrgyzstan, a comparative analysis of the state of the criminal procedure legislation of a number of post-Soviet states (Kazakhstan, Ukraine, Georgia, Moldova) on issues related to the electronic system of the unified register of crimes and misconduct seems relevant to the author.

CONTENT AND LEGAL REGULATION OF PROHIBITIONS AS AN ELEMENT OF PREVENTIVE MEASURES SYSTEM IN THE RUSSIAN CRIMINAL PROCESS

2020 ◽  
pp. 61-65
Author(s):  
Алексей Викторович Орлов ◽  
Надежда Викторовна Грязева
Keyword(s):  
Preventive Measures ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
The Status ◽  
The Russian Federation ◽  
Legal Restrictions ◽  
Legislative Changes

Институт мер пресечения в отечественном уголовном процессе в последние годы подвергается серьезным изменениям. Потребности правоприменительной практики, активные изменения в окружающем нас мире, формирование новой технологической и информационной среды - все это заставляет законодателя пересматривать казавшиеся незыблемыми и устоявшимися правовые институты. Внесены были законодательные правки и в казавшуюся окончательно сформировавшейся систему мер пресечения. Запрет определенных действий, который получил статус самостоятельной меры пресечения, применяется в российском уголовном процессе с 2018 г. Однако до сих пор многие проблемные вопросы применения этого принудительного средства воздействия на поведение обвиняемого и подозреваемого остаются без ответа. По мнению авторов статьи, настало время дать оценку названной меры пресечения и на основе наработанного практикой опыта попытаться дать ответы на самые дискуссионные вопросы ее применения. Предложенная законодателем в ст. 105.1 УПК РФ идея «комбинирования» мер пресечения путем совмещения установленных основной мерой пресечения правоограничений и «дополнительных» запретов представляется нам далеко не бесспорной. На основе анализа текста закона в представленной научной статье предлагаются концептуальные направления для решения возникших сложностей. Отдельно обращается внимание на необходимость соблюдения правил законодательной техники и недопущение внутренних противоречий в уголовно-процессуальном законодательстве. The institution of preventive measures in Russian criminal process has been undergoing serious changes in recent years. The needs of law enforcement practice, active changes in the world around us, the formation of a new technological and information environment - all this forces the legislator to revise the legal institutions that seemed unshakeable and well-established. Legislative changes were also made to the system of preventive measures that seemed to be finally formed. The ban on certain actions, which has been granted the status of an independent measure of restraint, has been applied in Russian criminal proceedings since 2018. However, so far, many problematic questions about the use of this coercive means of influencing the behavior of the accused and suspect remain unanswered. According to the authors of the article, it is time to assess the mentioned measure of restraint and, based on the experience gained in practice, try to give answers to the most debatable questions of its application. Proposed by the legislator in article 105.1 of the code of criminal procedure of the Russian Federation, the idea of «combining» preventive measures by combining the legal restrictions established by the main measure of restraint and «additional» bans seems to us far from indisputable. Based on the analysis of the text of the law, the presented scientific article offers conceptual directions for solving the difficulties that have arisen. Special attention is paid to the need to comply with the rules of legislative technique and prevent internal contradictions in the criminal procedure legislation.

Basic principles of the prosecutor in criminal proceedings under Criminal Procedure Code of Ukraine

2016 ◽  
Vol 8 (1) ◽  
pp. 111-122 ◽  
Author(s):  
Ihor Rohatiuk
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Basic Principles ◽  
Criminal Process ◽  
Criminal Proceeding ◽  
Procedure Code ◽  
The Times

Principles have always been the cornerstones of criminal proceedings’ legal regulation affecting all participants of criminal process. Taking into account the accelerated pace of current law enforcement reforming it is necessary to mention the prosecution institute and key role of criminal proceedings’ principles presenting scientific background for further empirical findings. The majority of these principles defines the priority growth directions of criminal process as well as creates friendly environment for behavioral aspects of criminal proceeding parties. This article provides comparative analysis of the existing criminal procedural principles of the prosecutor’s role in the criminal proceedings with specification of the legality principle as a requirement for all subjects of the criminal proceedings, including the prosecutor, to use the norms and provisions of legal acts correctly, to comply it consistently and perform accurately, explores the historical origins of these principles and their determinants’ origin starting from the times of Kievan Rus and its unique judicial system and proves that the adversarial principle is closely connected with dispositivity of prosecutor’s participation in criminal proceeding. An emphasis is placed on correlation between the ‘principles’ and ‘foundations’ terms examined by Ukrainian and Soviet scholars and its application in relation to the newly adopted Criminal Procedure Code of Ukraine.

scholarly journals Involvement of a Specialist in Criminal Proceedings: A Defense Party’s Duty, Right or Opportunity

2020 ◽  
Vol 15 (4) ◽  
pp. 82-89
Author(s):  
A. P. Bozhchenko ◽  
I. M. Nikitin
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Criminal Process ◽  
Probative Value ◽  
Procedural Law ◽  
Professional Duty ◽  
Expert’S Opinion ◽  
Further Development

The article reviews the contradictions between the procedural law and an attorney’s professional duty to use an opinion of a knowledgeable person in the system of criminal procedure protection. The paper provides an analysis of the problems and difficulties arising in the implementation of this right in the criminal process leading to violation of the equality and adversarial principles: the optionality of the defense’s right to involve a specialist; the biased attitude of law enforcement agencies to the expert presented by the defense; the desire to diminish the probative value of the specialist’s conclusion and testimony; the absence of an obligation for an investigator and court in all cases to attach the expert’s opinion to the case. The author emphasizes how important it is for all the participants in the criminal process to understand the expert’s opinion and testimony’s independent evidentiary value. Proposals that contribute to the legal specificity and further development of the specialist institution within the framework of the fundamental principles of competition and equality of the parties are presented.

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 Investigation of the Purpose, Goals and Objectives of the Criminal Procedure by means of Systemic Approach

2021 ◽  
Vol 16 (4) ◽  
pp. 142-151
Author(s):  
V. I. Ivanov
Keyword(s):  
Criminal Law ◽  
Mutual Influence ◽  
Preliminary Investigation ◽  
Hierarchical Structures ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Procedural Law ◽  
Goals And Objectives

The purpose of the paper is to conduct a systemic study of the internal structure and functions of criminal procedural activity based on patterns of formation of tree-like hierarchical structures, to determine the goals and objectives of criminal proceedings at different levels of the system hierarchy. Within the framework of the study, the criminal procedure is considered as a system with complex inter-element relationships and its own mutual influence on its structural elements. Based on the distinction between the categories "purpose", "goal", "result", the author concludes that the purpose of the criminal process is to resolve the materials on the merits in the production of the preliminary investigation bodies and the court in accordance with the requirements of criminal procedural law providing for criminal law application. The study establishes the possibility of achieving the goal of the criminal procedure at any stage in the case of the simultaneous fulfillment of two conditions: the identification of objective criminal procedural grounds for the completion of the criminal process using the criminal law and ensuring the implementation of the principles of criminal proceedings. Through the goals and principles of criminal procedural activity, the author defines the objectives and main functions of criminal proceedings, identifies the general goal and objectives of the bodies of inquiry, preliminary investigation and the court. The author concludes that the establishment of objective criminal procedural grounds for the resolution of materials in production with the application of criminal law is ensured because of preliminary verification of the materials, preliminary investigation or the implementation of the functions of the judiciary by solving the tasks facing the bodies of inquiry, investigation and court. The paper establishes the real purpose and goals of criminal prosecution, defense, judicial and departmental control, prosecutorial and judicial supervision.

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