scholarly journals APPROPRIATE PROCEDURE FOR OBTAINING EVIDENCE IN THE CRIMINAL PROCESS OF UKRAINE THROUGH THE PRISM OF COURT DECISIONS

2021 ◽  
Vol 13 (3) ◽  
pp. 134-140
Author(s):  
Anna-Mariia Anheleniuk ◽  
Keyword(s):  
Legal Status ◽  
Correct Choice ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Systematic Analysis ◽  
Voluntary Consent ◽  
Procedural Code ◽  
The Right ◽  
Evaluation Of Evidence

Recently in Ukraine, the methods of obtaining evidence during the pre-trial investigation have to to be improved, both in terms of their normative consolidation and the practice of application. Ways to improve criminal procedural activity should be planned taking into consideration the analysis of judicial practice, in particular the analysis of the evaluation of evidence in court for their relevance and admissibility. The purpose of the work is to improve the receipt of evidence in the criminal process of Ukraine in an appropriate manner, which will be a guarantee of their admissibility in court. The following methods were used: comparative – legal – to compare normative – legal regulations and court decisions relating to the recognition of evidence as appropriate and admissible in a particular criminal proceeding; formal-legal – to determine the decisions of the court concerning the evaluation of evidence in criminal proceedings; methods of logical and systematic analysis – to develop an effective proposal to improve the methods of obtaining evidence during the pre-trial investigation in Ukraine. Results. It is proposed to apply rapid tests to determine the drug substance during the detention of a person. In addition, it is proposed to ammend to Part 1 of Art. 233 of the Criminal Procedural Code of Ukraine, which regulates the right to break into the house or other property of a person with the voluntary consent of the person who owns them. It is proposed to consolidate the legal status of such a consent in order to avoid ambiguity of interpretation of the concept of voluntariness in court, in particular voluntary consent should be written in the form of a statement by the person himself with the obligatory indication of the relevant object of penetration. Conclusions. The appropriate method of obtaining evidence involves compliance with the procedural order of investigative (interrogative) or procedural actions. An indication of the proper way to obtain evidence is the correct choice of a specific action or a set of actions necessary for a quality investigation of criminal proceedings.

scholarly journals Arrest of Property in Bankruptcy Cases

2019 ◽  
pp. 93-102
Author(s):  
Oleksandr Biryukov
Keyword(s):  
Legal Status ◽  
Bankruptcy Law ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Legal Remedy ◽  
Procedural Code ◽  
Court Proceedings ◽  
The Right ◽  
Court Practice

This article focuses on the analysis of certain aspects of the application of security measures in liquidation procedure governed by Bankruptcy Law. Arrest of property (according to Ukrainian legislation terminology — a seizure of property) as a temporary tool of enforcing future court decisions is a fairly popular legal tool to protect the parties’ property interests in money disputes. In modern court practice application of this legal remedy creates some difficulties, particularly, in bankruptcy cases. When administering these cases, the judges sometimes consider petitions regarding imposing arrests of property or freeing restrictions over the property imposed in civil, administrative and criminal cases. In such situations, there is a need to answer a question whether the commercial court in a bankruptcy case has a power to free arrests or other restrictions on using the property imposed by other courts. Current legislation i.e. both procedural law and bankruptcy law does not contain clear rules on how the judges should aсt in such situations. Different approaches to the application of bankruptcy proceedings regarding arrest of property influence the court practice in general. Some economic courts establish that the release of the debtor’s assets from bans and arrests during the bankruptcy proceeding is totally in accordance with the current law, other courts rule that commercial procedural code does not allow to free property from arrest imposed, for example, in civil cases as this arrest is done by civil procedural law. Arrests attached in the criminal proceedings have different nature and purpose. It is known that in most cases in the criminal law property arrest serves as means to ensure possible future confiscation of property that may have been obtained in an illegal way. During such court proceedings a special review is conducted in order to discover whether property in acquired legally. Therefore, in order to cancel arrest of the property the procedure should be exercised in accordance with the rules of the criminal proceedings. However, while imposing new arrests of property in criminal proceedings it should be taken into account that the legal status of a person who was declared bankrupt has changed, i.e. he is deprived of the right to dispose the property which becomes a subject for sale at public tenders. The main conclusion of this article is that existence of certain different approaches to application of security measures in different court proceedings can be explained by the fact that during the development of procedural laws the nature of insolvency relations and the peculiarities of the legal mechanisms used in bankruptcy cases were not fully taken into account.

Questions of the effectiveness of the victim’s participation in the criminal proceedings of the Republic of Azerbaijan

2021 ◽  
Author(s):  
Jabir Khalilov ◽  
Nargiz Kafarova
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Speed Up ◽  
Legitimate Interests ◽  
The Republic ◽  
The Moment ◽  
The Right

This article discusses the criminal procedure status of the victim on the basis of the current legislation. A number of proposals are put forward to improve the legislation to ensure the effectiveness of the victim’s participation in the criminal process. The article analyzes a number of specific legal shortcomings that reflect the procedural situation of the victim, and indicates ways to solve them. At the same time, proposals are put forward for more effective protection of the legitimate interests of the victim both during the preliminary investigation and during the trial. For example, in order to speed up the participation of the victim in the criminal process, it is proposed to include a rule that from the moment of initiation of a criminal case, the issue of recognizing the person as a victim must be resolved within 10 days. The article then discusses the victim’s right to compensation, the right to mandatory familiarization with the materials of the criminal case, and the shortcomings of the norms that reflect the legal status of the victim as a participant in the prosecution.

scholarly journals TAKING INTO CUSTODY IN THE CRIMINAL PROCESS OF THE REPUBLIC OF BELARUS: IMPROVING REGULATIONS AND ISSUES OF PROOF (COMPARATIVE LEGAL ANALYSIS)

2020 ◽  
Vol 73 (4) ◽  
pp. 156-162
Author(s):  
Andriy Samko ◽  
◽  
Dmуtrо Pilipenko ◽  
Keyword(s):  
Civil Rights ◽  
International Law ◽  
Preventive Measure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Theoretical Concepts ◽  
The Republic ◽  
The Right ◽  
Practical Feasibility

The article analyzes the peculiarities of applying a measure of procedural coercion in the form of detention in the criminal procedural legislation of the Republic of Belarus, as well as in the criminal process of Ukraine and the Republic of Kazakhstan. The positions of scientists in the field of criminal procedure, who conducted research on this issue, are analyzed. The key positions of the proceduralists regarding the basic regulatory aspects of the application of a preventive measure in the form of detention are considered. Attention is focused on the fundamental provisions of the functioning of the system of procedural compulsion and the application of a preventive measure in the form of detention in custody in particular. The analysis of the positions of the legislators of the Republic of Belarus, the Republic of Kazakhstan and Ukraine regarding the issue of normative regulation of the procedure for applying a measure of procedural coercion in the form of detention is carried out. The authors of the article emphasize the key aspect of the preventive measure in the form of detention in the form of its extraordinary impact on the observance of human and civil rights and freedoms in criminal proceedings. This circumstance is especially relevant in respect of the right of participants in criminal proceedings to freedom and personal inviolability. In this regard, theoretical concepts are considered and the content of international law on this issue is analyzed. The practical feasibility and normative possibility of using other, more humane methods of influencing suspects accused in criminal proceedings are analyzed. The article focuses on the normative procedure for the application of bail as an alternative procedural measure of isolating a person during detention in the legislation of the above states. The article analyzes the procedural features of the normative regulation of the use of pledge in the legislation of Ukraine and the Republic of Kazakhstan. The author's position on these issues, as well as proposals for optimizing the criminal procedural legislation of the Republic of Belarus regarding the regulation of the use of detention are formulated.

scholarly journals Standard of proof «sufficient reason» in the criminal procedure of Ukraine

2019 ◽  
pp. 31-42
Author(s):  
M. Pohoretskiy ◽  
O. Mitskan
Keyword(s):  
Human Rights ◽  
Sufficient Reason ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Wide Range ◽  
Procedural Code ◽  
Reasonable Suspicion ◽  
Procedural Decisions

Based on the results of analysis of foreign doctrine, foreign procedural legislation, foreign law enforcement practice, the practice of the European Court of Human Rights. In the article explores problematic issues of the application of the standard of proof “sufficient reason” in the domestic criminal process. The relevance of the article is that the standard of proof “sufficient reason” or “probable cause” in the system of standard of proof in the domestic criminal process has a special place and using to accept most procedural decisions at the pre-trial investigation. The purpose of the article is to substantiation the main direction of using in the criminal proceed of Ukraine standard of proof “sufficient reason” taking into account the legal nature of this standard. In the article proved that “sufficient reason” is the standard of proof in the criminal proceed of Ukraine execution of which is based on “common sense” and in the factual analysis (assessment) of the whole set of facts and circumstance in their integrity, authorized entities with the use of special knowledges and experience on establishing “sufficient reason” for making appropriate procedural decision. Implementation of the standard of proof “sufficient reason” as well as “reasonable suspicion” doesn`t envisage a lack of doubt as guilty of the person. Sufficient is a possible knowledge about committing criminal offence by person with the difference that for the highest standard measures have to be higher. Moreover, within “flexible” standard of proof “sufficient reason” of the level of probability can also vary, depending on how much negatively appropriate procedural decision will affect the rights of the person. Prove that in the current Criminal procedural code of Ukraine the standard of proof “sufficient reason” is used to accept most procedural decisions at the pre-trial investigation stage in criminal proceedings, when the most reasonable suspicion of a committing person criminal offence is insufficient due to significant restrictions on human rights as a result of appropriate decision. At that, the flexible nature of the standard of evidence "sufficient reason", which consists in the required measure conviction the appropriate standard from the circumstances of the specific criminal proceedings, allows you to assert its suitability for Making a wide range of procedural decisions. Standard of proof “sufficient reason” is used for adoption of such procedural decisions: on the application of certain measures to ensure criminal proceedings; in addressing the issue of applying precautionary measures as a variety of measures to ensure criminal proceedings; in addressing the issue of individual investigative (detective) actions; in addressing the issue of granting permission for secret investigative (detective) actions and deciding on the use of the results of unspoken investigative actions in other criminal proceedings; when deciding on the placement of the person in the receiver-allocator for children (Part 4 art. 499 of the Criminal procedural code of Ukraine).

scholarly journals The right to appeal on criminal procedure under international acts and jurisprudence

2017 ◽  
Vol 6 (2) ◽  
Author(s):  
MSc. Vilard Bytyqi
Keyword(s):  
Best Practice ◽  
Second Phase ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Advanced Level ◽  
The World ◽  
The Right ◽  
Court Of First Instance ◽  
Comparative Description ◽  
Procedural Aspect

The right to appeal, respectively the right on complaint as per our legal vocabulary, constitutes the basic trunk of the second phase of court decisions in a certain procedure, in particular the criminal proceedings.The aim of this paper is to emphasize the main notions of appeal, but also in other aspects through the comparative description it aims to bring more clarity in differences and similarities that exist in between the appeal which is used in our criminal proceedings and the appeal which is used in the criminal proceedings that take place in the supranational courts. It is known that in courts which consist of international elements, the appeal is positioned in a more advanced level, due to the fact that there are grounds of suspicion used over every element that could be used in any national criminal proceedings.Overall, in any place of the world, the appeal has the goal to remedy court decisions brought by the court of first instance, while, in the procedural aspect it has more or less differences depending on the regulations of criminal procedures of that state. Such difference due to the diversity of the legal systems today are also accepted as the universal legal value, since establishment of international tribunals provides the best practice in this field. 

Expediting the ICC Criminal Process: Striking the Right Balance between the ICC and States Parties

2018 ◽  
Vol 18 (3) ◽  
pp. 383-425
Author(s):  
Hirad Abtahi ◽  
Shehzad Charania
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
Common Goal ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
State Involvement ◽  
Rules Of Procedure ◽  
The Right

When establishing the ICC, the sole permanent international criminal court, States ensured that they would play a legislative role larger and more direct than the ad hoc and hybrid courts and tribunals. States Parties have, however, acknowledged that, given the time they spend interpreting and applying the ICC legal framework, the judges are uniquely placed to identify and propose measures designed to expedite the criminal process. Accordingly, the ICC has followed a dual track. First, it has pursued an amendment track, which requires States Parties’ direct approval of ICC proposed amendments to the Rules of Procedure and Evidence. Second, it has implemented practices changes that do not require State involvement. This interactive process between the Court and States Parties reflects their common goal to expedite the criminal proceedings. The future of this process will rely on striking the right equilibrium between the respective roles of States Parties and the Court.

scholarly journals SYNCHRONIZATION OF PROCEDURAL AND FINANCIAL (BANKING) FUSE OF THE IMMUNITY OF PROPERTY RIGHTS

2021 ◽  
Vol 2 (37) ◽  
pp. 503-509
Author(s):  
V. Kantsir ◽  
V. Kushpit ◽  
A. Palyukh ◽  
I. Tsylyuryk ◽  
I. Kantsir
Keyword(s):  
Property Rights ◽  
Social Reproduction ◽  
Legal Status ◽  
Legal Regulation ◽  
Jel Classification ◽  
Criminal Proceedings ◽  
Legal Context ◽  
The Status ◽  
The Right ◽  
Judicial Protection

Abstract. The article is devoted to analysis of the effectiveness of the main procedural legal and financial (banking) mechanisms designed to ensure the protection of property rights’ immunity. The legally regulated procedures of such protection are analyzed on platforms — both procedural and legal as well as financial and economic. There is no doubt that only in a state where the immunity of property is declared and guaranteed to the person can be provided the development of economic, intellectual, socially oriented activities. The effect of the principle of immunity of property rights is not absolute, but its restrictions are possible only on the grounds and in the manner prescribed by law. The topicality of the inviolability of property rights is due to the role of law as a platform for citizens’ property independence and their participation in the processes of social reproduction. The guarantee of property independence is the right of ownership of property and non-property rights, which is realized by giving a person the right to freely, unimpededly, and fully exercise the rights of the owner of personal property. The compliance of the inviolability of property rights during criminal proceedings is not properly ensured in the current CPC (The Criminal Procedure Code) of Ukraine; in particular, the movement of confiscated property is not regulated, which questions the novelty of inviolability. To improve the procedure for the protection of property rights, this is necessary to regulate at the legislative level the mechanism of protection and restoration of property rights of persons victimized by criminal offenses. The etymology of «inviolability» guarantees by law the protection of the status of the person from any encroachment. Inviolability in the economic and legal context is mainly understood as a person’s legal status, which is an unalterable guarantee against unauthorized restrictions by the state institutions — law enforcement, financial, court, and individuals and legal entities. An attempt is made to accumulate most of the latest achievements (both legislative, theoretically investigative and applied) on the issues of legal regulation of the studied financial and legal relations, based on which scientific views are substantiated, and proposals are developed to improve regulations in this area. The main vectors of economic and legal mechanisms for the protection of the inviolability of property rights, which would correlate with generally accepted European and world standards, have been identified. Keywords: the inviolability of property rights, property rights, principles of proceedings, judicial protection, seizure of property, financial guarantee, financial risks. JEL Classification G28; К14 Formulas: 0; fig.: 0; tabl.: 0; bibl.: 12.

scholarly journals EXERCISE OF THE RIGHT TO A FAIR TRIAL IN CASES RELATED TO DOMESTIC VIOLENCE

2020 ◽  
pp. 44-54
Author(s):  
Liudmyla Golovko ◽  
◽  
Viktor Ladychenko ◽  
Olena Gulaс ◽  
◽  
...  
Keyword(s):  
Domestic Violence ◽  
Police Officers ◽  
Comparative Method ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Functional Method ◽  
Fair Trial ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
The Right

The purpose of the article is to investigate the effectiveness of Ukrainian legislation in the fieldof combating domestic violence, as well as the implementation of the right to a fair trial in casesinvolving domestic violence. The following methods were used in the study: analysis and synthesis,system-functional method, comparative method. Results. The article analyzes the legislation ofUkraine in the field of prevention and counteraction to domestic violence, lists both its advantagesand disadvantages, reveals measures in the field of prevention and counteraction to domesticviolence, responsibility for domestic violence, the main directions of state policy in the field ofprevention and counteraction to domestic violence, types of domestic violence. Legal regulation of judicial protection for victims of domestic violence has been studied. Judicial practice in casesrelated to domestic violence was considered. Problems of exercising the right to a fair trial inUkraine in cases related to domestic violence were revealed. Conclusions. Undoubtedly, theadoption of the Law of Ukraine “On Prevention and Counteraction to Domestic Violence”, theintroduction of criminal liability for domestic violence and amendments to a number of regulationsto address domestic violence is a positive step in combating such a negative phenomenon asdomestic violence. At the same time, a significant number of issues remain unresolved. This isespecially true for the resolution of cases of domestic violence and the exercise of the right to afair trial in cases of domestic violence, as well as for the enforcement of court decisions on theissuance of restrictive orders. The need to develop a form for assessing the risks of recurrenceof domestic violence has been demonstrated, as has been done for police officers during theessessment of the need to issue an emergency injunction. The need to enshrine at the legislativelevel what is the preventive work of police officers with the offender and how it is carried outwas proved, because without proper regulation of this issue, this type of special measure tocombat domestic violence is declarative and not applied in practice. In addition, the problem ofrefusal of public and private executive services to enforce court decisions on the establishmentof restrictive measures is pointed out, which also requires legislative regulation. The need tostrengthen the position of the victim of domestic violence by giving her/him the opportunity toclaim compensation for non-pecuniary damage in criminal proceedings was noted.

scholarly journals General Requirements for Secret Investigative (Search) Actions: Procedural Characteristics

2020 ◽  
Vol 90 (3) ◽  
pp. 212-223
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Appellate Court ◽  
Legal Basis ◽  
General Requirement ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
The Third ◽  
Territorial Jurisdiction ◽  
Procedural Code ◽  
The Right ◽  
Comprehensive Study

A comprehensive study of the provisions of the Criminal Procedural Code of Ukraine, which regulate the general requirements for secret investigative (search) actions, has been carried out. A comparative analysis of the legislative provisions on the issue has been carried out, which made it possible to distinguish seven groups of general requirements for the implementation of secret investigative (search) actions. The first general requirement of secret investigative (search) actions includes restrictions on their use in criminal proceedings, as they are carried out only in cases where information about the criminal offense and the person who committed it, cannot be obtained in any other way. The second general requirement for conducting secret investigative (search) actions includes restrictions on their use in criminal proceedings, in particular the fact that they are conducted exclusively in criminal proceedings for grave or especially grave offenses. The third general requirement for conducting secret investigative (search) actions is that the legal basis for their implementation is a lawful, reasoned and motivated decision of the investigating judge, issued at the request of the prosecutor or investigator, agreed with the prosecutor. The fourth general requirement for conducting secret investigative (search) actions is that the investigating judge of the appellate court has the right to make the decision to implement them, where the pre-trial investigation agency is within the territorial jurisdiction of that judge. The fifth general requirement includes rules concerning the content of the application for a permit to conduct secret investigative (search) action, the procedure for its consideration by the investigating judge and the content of the decision of the investigating judge. The sixth general requirement for conducting secret investigative (search) actions includes rules that set deadlines for their implementation. The seventh general requirement for conducting secret investigative (search) action includes the rule that the investigator, the interrogator conducting the pre-trial investigation, or, on his behalf or on behalf of the prosecutor, authorized operative units have the right to conduct secret investigative (search) actions.

scholarly journals Certain Aspects of Arrest of Property in Light of the Case Law of the Appeal Chamber of the High Anti-Corruption Court

2021 ◽  
Vol 7 ◽  
pp. 14-19
Author(s):  
Denys Bykov
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
General Rule ◽  
Case Law ◽  
Appeal Chamber ◽  
Material Objects ◽  
Criminal Proceedings ◽  
Suggested Approach ◽  
Procedural Law ◽  
Procedural Code

The article explores the problems of a temporary seizure and arrest of property in the course of pre-trial investigation in light of the case law of the Appellate Chamber of the High Anti-Corruption Court and the European Court of Human Rights. It is outlined that investigators face particular problems with differentiation of material objects that are subject to seizure upon the decision of an investigator or a prosecutor and may be used for the purposes of the criminal proceedings and those which fall into the category of temporarily seized property, and the legality of their seizure is subject to control by an investigating judge. Investigating judges face the same difficulties which result in decisions on arrest imposed on biological, biometric traces, cigarette butts and other material objects that are not subject to arrest for they do not belong to the category of property. The author analyses whether documents, personal notes, and other items of the kind may be regarded as property and the criteria to categorize them as such. It is concluded that if these items are used as evidence in the criminal proceedings but have no characteristics of property, are not objects of civil rights, have no historical, artistic, scientific, literary, economic, or any other significant value in general or for a certain individual, they are not subject to judicial control and arrest and should be attached to the criminal proceedings in accordance with the rules prescribed by the Criminal Procedural Code of Ukraine.The author pays particular attention to the unfortunate wording of Part 7 of Article 236 of the Criminal Procedural Code of Ukraine, which prescribes that seized objects and documents not included in the list of items to be found in the course of a search, contained in the decision of the investigating judge onpermission to conduct a search, are considered temporarily seized property. This legal norm makes the issue of whether certain items belong to the category of property dependent upon their inclusion in thelist or absence in the list, contained in the decision of the investigating judge. Such an approach contradicts the basic principles of the property law. Therefore, the norm should be excluded from Part 7 of Article 236 of the Code. The author also suggests to change the wording of Part 7 of Article 237 of the Code and to clearly outline that documents, as a general rule, are seized and items that fall into the category of property are temporarily seized.The suggested approach will lead to harmonization of the norms of criminal procedural law with those of civil law, setting clear and understandable criteria for defining the legal status of items seized or temporarily seized in the course of examination or search and fulfilling the tasks of effective and impartial pre-trial investigation.

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