scholarly journals Theoretical and Applied Issues of Standardization of the Terms of Prejudicial Inquiry before Handling a Charge Sheet to a Person

2020 ◽  
Vol 90 (3) ◽  
pp. 224-234
Author(s):  
Т. О. Кузубова
Keyword(s):  
Criminal Proceedings ◽  
Criminal Offense ◽  
Advantages And Disadvantages ◽  
Judicial Practice ◽  
Specific Term ◽  
Criminal Offenses ◽  
General Rules ◽  
Procedural Code ◽  
A Charge ◽  
Legal Consequences

The latest amendments to the Criminal Procedural Code of Ukraine, which are related to the terms of inquiry before handling a charge sheet to a person, have been studied. The author has carried out the analysis of judicial practice of applying the provisions of the Criminal Procedural Code of Ukraine regulating prolongation of terms of prejudicial inquiry of crimes before handling a charge sheet to a person depending on gravity of a crime and other criteria, which are guided in practice by investigators, prosecutors while determining the urgency of criminal proceedings. The author has compared legal positions of scholars and practitioners, in particular lawyers and prosecutors, on the advantages and disadvantages of establishing clear terms for prejudicial inquiry of crimes before handling a charge sheet to a person. The author has provided the legal assessment of the procedure to cease the criminal proceedings in case of expiration of the terms of prejudicial inquiry before handling a charge sheet to a person. The author has conducted a comparative analysis of the legal consequences of the two general rules of prejudicial inquiry, namely: uncertainty of the terms for prejudicial inquiry of criminal offenses before handling a charge sheet to a person in the Criminal Procedural Code of Ukraine and regulation of clear terms for prejudicial inquiry of crimes before handling a charge sheet to a person in the provisions of the Criminal Procedural Code of Ukraine. The emphasis has been placed on the fact that the specific terms of prejudicial inquiry according to the theory of criminal procedure, are determined in the criminal procedural legislation in accordance with the severity of the criminal offense. At the same time, the author has emphasized that the gravity of the committed criminal offense should not determine the presence or absence of a specific term of prejudicial inquiry in conjunction with all the legal consequences of its clear establishment. The author has distinguished a number of applied issues related to the establishment of clear terms for the prejudicial inquiry of crimes before handling a charge sheet to a person, as well as the application of the rule to cease criminal proceedings in case of their completion. The author has suggested the ways to solve practical problems on the outlined issue, in particular, propositions to exclude destructive provisions from the Criminal Procedural Code of Ukraine, namely provisions setting the terms for prejudicial inquiry of crimes before handling a charge sheet to a person, and related provisions.

scholarly journals Peculiarities of qualification of criminal offenses against movement safety and transport operation: a review of judicial practice.

2021 ◽  
Vol 3 (3) ◽  
pp. 227-234
Author(s):  
Vasyl Berezniak
Keyword(s):  
Traffic Safety ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
Decisive Evidence ◽  
Act Assessment

The article reviews some court decisions, which highlight the key features of the assessment of criminal offenses against traffic safety and transport operation. Typical situations of committing criminal offenses of this type with the analysis of difficulties of qualification and further bringing a person to criminal responsibility are studied. In addition, attention is paid to the differentiation of legal liability, where the means of committing an offense or the subject is a vehicle, as well as highlighted key aspects related to the definition, type and nature of the act. Assessment of criminal offenses against traffic safety and transport operation under art. 286 of the Criminal Code of Ukraine should be based not only on the rules of substantive law, ie the law of Ukraine on criminal liability. Within the framework of criminal proceedings, the employee-practitioner is guided by the rules of the Criminal Procedure Code of Ukraine, which provides for the possibility of changing the assessment of a criminal offense, taking into account the available facts and circumstances. Regarding the existence of certain regulations governing the specifics of assessment and further pre-trial investigation into the commission of a criminal offense against traffic safety and transport operation, today the national justice system has formed judicial practice on this issue. However, it requires some generalization and identification of key points in the qualification of the investigated criminal offenses or further criminal proceedings. The decisive evidence in criminal proceedings concerning criminal offenses against traffic safety and transport operation is the experts’ conclusions from various types of examinations, which are appointed in these proceedings. In particular, auto-technical, auto-commodity, transport-trasological expert studies, which establish important circumstances for establishing the suspect’se guilt or innocence.

scholarly journals Prevention of Criminal Offenses as One of the Tasks of Criminal Proceedings

2020 ◽  
Vol 79 (4) ◽  
pp. 86-91
Author(s):  
А. В. Рось ◽  
Р. М. Балац
Keyword(s):  
Crime Prevention ◽  
Historical Development ◽  
Criminal Proceedings ◽  
Topical Problem ◽  
Criminal Offense ◽  
Current State ◽  
Criminal Offenses ◽  
Practical Research ◽  
Procedural Code

The topical problem of preventing criminal offenses as a task of criminal proceedings has been studied. It has been established that the current state of crime in Ukraine and the negative tendencies that have occurred in the process of its development in modern conditions, in particular the growing number of criminal offenses, necessitates scientific and practical research to combat these socially dangerous phenomena, including in regard to the forms, methods and means of their prevention. The emphasis has been placed on crime prevention as the most socially dangerous acts. The historical development of crime prevention at different stages of society development has been studied. The author has analyzed regulatory acts of Ukraine, which contain the tasks on preventing criminal offenses within criminal proceedings. Certain terms have been defined, in particular: “prevention”, “preventive activities”, “cessation of criminal offenses and their relationship”. The author of the article hold the view that all the specified terms have a common feature, which is to carry out actions that prevent the commission of criminal offenses. The concept of “prevention of criminal offenses during the pre-trial investigation” has been formulated, which should be understood as the activities of investigators, interrogators, prosecutors aimed at applying certain procedural measures provided by the Criminal Procedural Code of Ukraine in order to prevent a person suspected of committing a criminal offense to commit criminally illegal or other actions that could destabilize the investigation of criminal proceedings. It has been concluded that it is necessary to further improve the functions of investigators (interrogators) on preventive activities during the pre-trial investigation of criminal proceedings to eliminate the identified causes and conditions that contributed to the commission of a criminal offense as one of the tasks of criminal proceedings.

scholarly journals THE USE OF SPECIAL KNOWLEDGE IN CRIMINAL PROCEEDINGS IN THE CONTEXT OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2021 ◽  
pp. 414-425
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Negative Consequences ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Knowledge Based ◽  
European Court ◽  
Criminal Offenses ◽  
Procedural Code ◽  
Special Knowledge

The article discusses the concept, types and essence of special knowledge in criminal proceedings, as well as their evidentiary value in pre-trial investigation and trial. It is analyzed the practice of the European Court of Human Rights on the appointment of a forensic examination. The objectives of criminal proceedings are to ensure a prompt, complete and impartial investigation and trial so that everyone who has committed a criminal offense is prosecuted to the best of his/her own fault. In addition, an innocent person is accused or convicted, no person is exposed, unjustified procedural coercion, and that due process is applied to each participant in criminal proceedings. It is emphasized that among the ways of collecting evidence by the parties to criminal proceedings listed in the Criminal Procedural Code of Ukraine, there are those that require the use of special knowledge, namely: requesting and obtaining expert conclusions and carrying out other procedural actions with the participation of a specialist. At the same time, the expert opinion is an independent source of evidence. Special knowledge in criminal proceedings is used in the investigation of any criminal offenses, but the Criminal Procedure Code of Ukraine does not define its concept, despite the fact that many scientific works have been devoted to the issue. Unfortunately, the legislator has not yet reflected the conclusions of scientists about the essence of special knowledge. It is considered examples of practice in the appointment and conduct of forensic examinations and the fact of violation of the law, when applying special knowledge. Based on the analysis of theoretical and various aspects of the use of special knowledge in criminal proceedings, a conclusion is made about the extremely important value of special knowledge for the process of proving and fulfilling the tasks of criminal proceedings. On the example of the decision of the European Court of Human Rights, attention is drawn to the inadmissibility of violations of the requirements of the current legislation in the work of an investigator, prosecutor, judge, since this can lead to negative consequences.

scholarly journals Circumstances to Be Clarified under the Investigation of Interference into Law Enforcement Officer’s Activity

2021 ◽  
Vol 81 (2) ◽  
pp. 97-103
Author(s):  
V. O. Gusieva
Keyword(s):  
Law Enforcement ◽  
Criminal Liability ◽  
Demographic Data ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Enforcement Officer ◽  
Criminal Offenses ◽  
Procedural Costs ◽  
Detailed List ◽  
Law Enforcement Officer

The author has substantiated the need to establish the circumstances to be clarified and has determined their significance during the investigation. It has been emphasized that the circumstances to be clarified include the circumstances to be proved in criminal proceedings, criminal and forensic characteristics of a criminal offense. In order to determine the circumstances to be clarified during the investigation of interference in the activities of a law enforcement officer, the author has studied the circumstances to be clarified within the group of criminal offenses related to obstruction of the activities of a law enforcement officer, as well as during the investigation of interference in the activities of a forensic expert. Taking into account the specified scientific provisions, the author has defined a detailed list of circumstances to be clarified during the investigation of interference in the activities of a law enforcement officer. It has been established that the circumstances to be clarified during the interference in the activities of a law enforcement officer include: 1) circumstances related to the criminal offense, namely: time, place, situation and traces of a criminal offense, methods of its commission (preparation, direct commission and concealment), tools and means used during the interference, the scope of procedural costs; circumstances that are the basis for ceasing criminal proceedings; the reasons and conditions that contributed to the commission of a criminal offense; 2) circumstances related to the identity of the victim, including: socio-demographic characteristics of the victim, place of work, position held; official and functional responsibilities, the victim’s belonging to a law enforcement agency during the commission of a criminal offense against him; the type and scope of damage caused to the victim; 3) circumstances related to the identity of the offender, namely: socio-demographic data of the offender, physiological and psychological condition, gender, citizenship, financial status, place of work, the record of criminal conviction and the facts of bringing to administrative liability; the presence of dependent disabled people; the presence of guilt in the form of direct intent, the purpose of the action; circumstances that aggravate or mitigate the punishment of the offender are grounds for releasing from criminal liability or punishment that exclude criminal liability; presence of accomplices.

scholarly journals CRIMINAL CHARACTERISTICS AS AN ELEMENT OF THE METHODOLOGY OF INVESTIGATION OF CRIMINAL OFFENSES AGAINST PUBLIC ORDER

2020 ◽  
pp. 5-11
Author(s):  
О. А. Антонюк
Keyword(s):  
Public Order ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Offense ◽  
Criminal Offenses ◽  
Illegal Acts

The relevance of the article is that the forensic characteristics should be based on the study of materials of criminal cases and proceedings, as well as have a direct practical direction. That is, to solve specific tasks of the investigation: to provide opportunities for the development of versions, to build correlations between individual elements, to ensure better planning of the investigation, and so on. Otherwise, it will really be a "phantom", ie an ineffective tool of investigation. At the same time, scientists continue to investigate illegal acts in terms of constructing their forensic characteristics. The scientific article is devoted to the study of some aspects of the investigation of criminal offenses against public order. The peculiarities of forensic characteristics as an element of the methodology of investigation of a certain category of criminal offenses are considered. The author emphasizes that the forensic characteristics should be based on the study of materials of criminal cases and proceedings, as well as has a direct practical direction. That is, to solve specific tasks of the investigation: to provide opportunities for proposing versions, building correlations between individual elements, ensuring better planning of the investigation, and so on. Otherwise, it will really be a "phantom", ie an ineffective tool of investigation. At the same time, scientists continue to investigate illegal acts in terms of constructing their forensic characteristics. In our opinion, this is really important for the methodology of investigation of any criminal offense, so we will try to solve the problem of its construction in the studied category of actions: against public order. The notion of forensic characteristics is formulated as a set of data on forensically important features and properties of an illegal act, which is due to the natural connections between its individual elements and provides construction and verification of versions to solve specific problems of criminal proceedings.

scholarly journals Criminal offenses - a new institute of criminal legislation of Ukraine

2020 ◽  
Vol 11 (4) ◽  
Author(s):  
Kovalova Svitlana ◽  
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Offenses ◽  
Criminal Legislation

The article analyzes the feasibility of introducing the institution of criminal offense. The focus is on reforming the criminal justice system. It was found out that one of the directions of reforming the criminal justice of Ukraine is the introduction of the institute of criminal misdemeanor in the criminal legislation. According to the results of the study, different approaches to the expediency of establishing liability for misconduct in the criminal legislation of Ukraine have been identified. It is reasonable that changing the understanding of the concept of crime and the criteria for its evaluation is not an easy path, but in today's conditions the introduction of criminal offenses is a progressive, timely and unalterable step, as no scientific developments can solve law enforcement problems. Keywords: criminal proceedings, institute of criminal offense, crime, reforming, criminal legislation, Concept of reforms, criminal justice

scholarly journals Interaction between investigator and operational units in pretrial investigation of criminal offenses

2021 ◽  
Vol 1 (1) ◽  
pp. 272-276
Author(s):  
Maksym Ocheretyatyy
Keyword(s):  
Theory And Practice ◽  
Factual Information ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Procedural Law ◽  
Criminal Offenses ◽  
Theoretical Generalization

The article analyzes the essence of the outlined problem, focuses on the importance of the investigator's interaction with operational units in the pre-trial investigation of criminal offenses, outlines the concept, which is defined as a comprehensive and purposeful process of communication between different actors involved in criminal proceedings. , is the ultimate goal, which makes it possible to obtain factual information about the event of a criminal offense. This gave grounds for distinguishing the essence of this process, which in general is distinguished by the fact that the investigator is a procedural person who is directly responsible for the quality of pre-trial investigation, its planning and effectiveness of investigative (search) actions, their timeliness and consistency. It is also argued that the issues of theoretical generalization of the elements of the process of interaction of the investigator in the pre-trial investigation were effectively and accurately formulated in the above stages, which partially duplicate the stages of the pre-trial investigation. However, the proposed approach of individual researchers to differentiate the interaction not only in terms of criminal procedural law, but also from the standpoint of operational and investigative activities, as a process can also be useful in planning a pre-trial investigation. This logically gives grounds to claim that the interaction with operational units is based on close and coordinated cooperation within the current legislation, on the initiative of both parties, as well as the planned conduct of any investigative or non-public investigative (search) actions. The author, as a result of the received interpretations of basic terms it was given an opportunity to investigate its stages. Therefore, the approaches of scientists to determine the stages of interaction in the pre-trial investigation of criminal offenses are analyzed, they are generalized, and the most effective approach totheir structuring for theory and practice is determined.

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 Protection of privacy related to criminal procedure

2016 ◽  
pp. 53-65
Author(s):  
Milana Pisaric
Keyword(s):  
Information Technology ◽  
Personal Data ◽  
General Interest ◽  
Right To Privacy ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
The Right To Privacy ◽  
Criminal Offenses ◽  
Methods And Techniques ◽  
The Right

Every person has the right to privacy and protection of personal data and these rights may be restricted only in order to protect the general interest or the preservation of important values in society. If there is a certain degree of suspicion that a person committed a criminal offense, the competent authorities are authorized to limit his/her privacy rights and to collect and process personal data for the purposes of criminal proceedings, by taking certain actions and measures in accordance with the law. On the basis of legal authorization certain subjects may take regular and special evidentiary actions and measures, but possible privacy infringement and data collection should be limited to the extent necessary to suppress a specific criminal offense in accordance with the principle of proportionality. It is necessary and useful to apply the methods and techniques of information technology in order to detect and prove criminal offenses. However, uncritical regulation and voluntary application of advanced methods and techniques of surveillance and monitoring of user?s activities (whose daily activities increasingly rely on information technology) would create a real risk of expanding and deepening the scope of spheres of life to be monitored to a much greater extent than legitimate monitoring within the concept of pro?activity and creation of a complete and panoptic surveillance of personal data. This could not be justified by the needs to oppose even the most severe forms of criminal offenses. Thus, actions and measures based on the use of these techniques and methods should be laid down and applied in accordance with the principles of specificity, necessity and proportionality, and with control of the judicial authorities, so the right to privacy would not be jeopardized. It is necessary to find a proper balance between the needs of criminal proceedings and respect for human rights, with regard to regulating powers of investigative bodies in collecting data of individuals. In online environment, the protection of the right to legal personality and the right to free development of personality through the right to privacy as well as the protection of personal data are necessary to be provided by legal regulations containing even stricter and more precise rules (comparing to offline environment) that determine the scope of powers of the authorities to collect evidence for the purposes of criminal proceedings, because certain actions or measures can greatly interfere with the private sphere of individuals in the direction of a complete privacy annulment.

scholarly journals Criminal-legal meaning of driving under the influence in the acts stipulated by Article 286 of the Criminal Code of Ukraine

2020 ◽  
pp. 66-72
Author(s):  
V. Myslyvyi
Keyword(s):  
Criminal Code ◽  
Driving Under The Influence ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Operation Rules ◽  
Driving While Impaired ◽  
Criminal Offenses ◽  
Vehicle Operation ◽  
Objective Side ◽  
Determining Factor

The article deals with issues of combatting criminal offenses related to violations of road safety and vehicle operation rules stipulated by Article 286 of the Criminal Code of Ukraine. The focus is on acts committed by persons who were in a state of alcohol, drugs or other intoxication. Based on research and analysis of current national judicial practice the author has revealed the presence of contradictions in court judgments of different instances where provided opposite criminal legal assessment consisting of a criminal offense under Article 286 of the CC of Ukraine, the following factors as driving while impaired by alcohol, drugs and other intoxication. The essence of such an assessment, as shown by a certain part of the verdicts, is that some courts do not consider the state of intoxication of a person driving a vehicle as a sign of the objective side of this criminal offense, and therefore do not see it as one of the reasons acts as a determining factor of these criminal offenses. The research paper contains a critical analysis of this approach in judicial practice and provides arguments for its unreasonableness, as driving under the influence as a cause of accidents in transport is considered to be universally recognized. However to avoid contradictions in judicial practice and to reach efficiency impact of criminal legaltools in combating the above mentioned criminal offense the author has proposed that Article 286 of the CC of Ukraine should stipulate an aggravating circumstances such as the commitment of a criminal offense by a person being in a state of intoxication

Sign in / Sign up

Export Citation Format

Share Document