scholarly journals EXPERIMENTAL INVESTIGATION THROUGH THE PRISM OF FOREIGN EXPERIENCE

2020 ◽  
Vol 10 (86) ◽  
Author(s):  
Oleksandr Haborak ◽  
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Legal Traditions ◽  
Criminal Offenses ◽  
Foreign Countries ◽  
General Order ◽  
Simplified Procedures ◽  
Organizational Features ◽  
Procedure Codes

The article analyzes the organizational features and legal regulation of the stage of pre-trial investigation in such countries as Germany, France, Sweden, Estonia, Kazakhstan, Moldova, Russia. The study of criminal procedure legislation of certain countries and its application in practice suggests that there is a tendency to optimize the pre-trial investigation. Most of the considered foreign countries in the construction of simplified procedures for the investigation of minor crimes along with objective factors (low degree of public danger of the act, the obviousness of the crime, the admission of suspects (accused) of their guilt) also proceed from such conditions as equality of arms, awareness and voluntariness of the decision of the suspect (accused) on simplification of criminal procedure, provision of a reasonable level of guarantees of the rights of participants of criminal proceedings, preservation of the general order. Analyzing the pre-trial investigation in different countries, it was concluded that in these countries there are attempts both to approve the common standards of criminal procedure and to preserve their national legal traditions. Ukraine is in the process of reforming its pre-trial investigation bodies. On July 1, 2020, Law № 2617-VIII "On Amendments to Certain Legislative Acts of Ukraine Concerning Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses" (as amended) entered into force, aimed at humanizing criminal proceedings in accordance with European legislation. Today, our state has already moved from the stage of adopting legislative initiatives to the consistent implementation of the provisions of this Law, which are enshrined, in particular, in the Criminal and Criminal Procedure Codes of Ukraine. In this regard, the positive experience of the studied foreign countries (especially such post-Soviet countries as Estonia and Kazakhstan, which have a common past with Ukraine and which have already made successful steps in this area) will be useful for domestic professionals to qualitatively and timely eliminate all conflicts and gaps that arise during the application of the Law № 2617-VIII "On Amendments to Certain Legislative Acts of Ukraine to Simplify the Pre-trial Investigation of Certain Categories of Criminal Offenses", make all necessary relevant decisions, and thus increase efficiency pre-trial investigation bodies.

Features of legal regulation of the institute inquiry in the legislation of Ukraine and foreign countries

2021 ◽  
Author(s):  
Maryna Vandzhurak
Keyword(s):  
Czech Republic ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
The Czech Republic ◽  
Criminal Offenses ◽  
Foreign Countries ◽  
The Republic ◽  
Simplified Procedure ◽  
Simplified Form

Problem setting. This article examines the legal regulation of the institute of inquiry in Ukraine and abroad. It is concluded that the institution of inquiry in foreign countries is inherently different from the national form of pre-trial inquiry, but has some similarities. In particular, the differences are in the establishment of different terms of pre-trial investigation, the subjects of the criminal investigation procedure, the specifics of the use of additional evidence, the presence of a mandatory condition – a guilty plea to the suspect, the prosecutor’s participation in the proceedings. The author identifies common features and differences of the institute of inquiry in Ukraine and other countries, which in turn allows to identify ways to improve existing legislation. The purpose of the article is to compare the legal regulation of the institution of inquiry in the current criminal procedure legislation of Ukraine and similar pre-trial investigation procedures in France, Germany, Austria, the Czech Republic (here in after – the Czech Republic), the Republic of Poland (here in after – Poland), Great Britain, Belarus, Kazakhstan in order to identify positive features in order to improve it. Analysis of recent researches and publications. The scientific works of Ukrainian scientists: N. I. Brovka, S. I. Simakov, O. V. Kerevych, K. B. Kalinovsky, etc. are devoted to the study of various aspects of inquiry in foreign countries. However, due to the lack of thorough research on the comparative analysis of the legal regulation of the institution of inquiry, as a simplified form of pre-trial investigation, with other countries, there is a need for such an analysis and highlight the positive aspects. Articles main body. The institute of inquiry belongs to a simplified form of pre-trial investigation, which speeds up the trial in order to ensure greater efficiency of the criminal justice system and reduce costs. Thus, the investigated form of pre-trial investigation came into force on July 1, 2020 in criminal procedure legislation, in accordance with the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine to Simplify Pre-trial Investigation of Certain Categories of Criminal Offenses” № 2617-VIII of 22.11.2018. The need for inquiry as a simplified form of criminal proceedings is due, in particular, to the heavy workload of investigators (for example, the National Police) in cases of minor crimes, which are now called criminal offenses. Inquiry is conducted during the investigation of criminal offenses, special subject – the connoisseu of the subdivisions of the inquiry or the authorized persons of other subdivisions; inquiry is carried out in a short time – 72 hours in case of notification to the person on suspicion of commission of a criminal offense. Additional sources of evidence in criminal proceedings on criminal offenses, in addition to general sources of evidence, are also explanations of persons, results of medical examination, expert opinion, testimony of technical devices and technical means that have the functions of photography and filming, video or photo and filming, video recording. The procedure of simplified investigation of minor criminal offenses operates successfully in many foreign countries, in particular in the French Republic, the Kingdom of Spain, Kazakhstan, Germany, Austria, the Republic of Belarus, the Czech Republic, Poland. The simplified procedure in Poland does not apply to: – accused persons deprived of liberty, except in cases of prior arrest to the perpetrator of certain types of crimes; – minors; deaf, dumb or blind; – in the presence of reasonable doubts about the sanity of the suspect; – if the person does not speak Polish. The bodies investigating cases under the simplified procedure are the police, as well as other bodies authorized to conduct investigations (Article 471). The total term of the simplified investigation is 1 month. Regarding the legal regulation of the institute of inquiry in Austria, it should be noted that the preliminary investigation is carried out only in the form of inquiry. Immediate investigative actions related to the identification of the perpetrator, as well as other circumstances, are conducted by the police before the initiation of a criminal case and end with the transfer of all materials to the prosecutor. At the same time, the body of inquiry is authorized to carry out any investigative and operative-search actions (which is unique in comparison with Ukraine). It should be noted that a comparative analysis of the criminal procedure legislation of foreign countries allows to state the existence of a tendency to improve the pre-trial investigation towards its simplification. In international activities in the field of simplification of criminal procedure, there is a direction to adhere to such forms of justice that would optimally take into account the gravity of the crime, the consequences that may occur as a result. It is as a result of such simplification of criminal proceedings that it is possible to ensure procedural savings of forces, time and resources of participants in criminal proceedings. Conclusions and prospects for further research. As for the overall impact of criminal offenses on the criminal justice system, it should be agreed that it is mostly positive. The system itself has become more humane as the number of detentions has decreased and the number of precautionary measures applied during the investigation has been minimal. This is one of Ukraine’s important commitments to the Council of Europe. The average length of a pre-trial investigation has accelerated by about half. This article will be useful for scholars studying the features of forms of pre-trial investigation, as it contains a comparative study of the institute of foreign inquiry and national criminal procedure law. Attention is also focused on some problematic issues related to the simplified form of pre-trial investigation. It can serve as a springboard for scientists to further research the institute of inquiry.

scholarly journals IS THE INSTITUTE OF JUDICIAL REVIEW OF DECISIONS TAKEN UNDER APPOINTMENT OF THE COURT SESSION IN NEED OF FURTHER CHANGES?

2017 ◽  
Vol 21 (2) ◽  
pp. 169-175
Author(s):  
T. K. Ryabinina
Keyword(s):  
Practical Importance ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Judicial Decision ◽  
Criminal Proceedings ◽  
Analysis And Synthesis ◽  
Red Tape ◽  
General Order ◽  
General Scientific ◽  
The Right

The article discusses issues concerning the legal regulation of the procedure for appealing against judicial decisions taken by the court under appointment of the court session. The author raises the problem of the necessity and appropriateness of any decision appeal taken in this stage of the process. Iit is proved that since any judicial decision determining the further movement received from the Prosecutor of the criminal case affects the interests of the participants in the proceedings. So the participants should be given the right of appeal to the General order, that is, in accordance with chapters 45.1 and 47.1 of the code of criminal procedure. In the paper general scientific and special legal methods of studies are used: analysis and synthesis, legal modeling, formally-legal. The scientific novelty of the research lies in the author's approach to the study of the problem which has not only theoretical but also practical importance, namely, to rethink the essence of the appeal against the intermediate court decisions. The author challenges the position of many scientists that the appeal of any and all decisions made under appointment of the court session, having primarily organizational and security nature, creates judicial red tape and delays the timing of the proceedings and therefore the criminal trial on the merits, basing his opinion that sometimes the execution of certain judgments of the court leads to much more temporal, organizational, and material costs than their verification by the higher court. In addition the right to appeal procedural actions and decisions, as a principle of criminal proceedings, along with other principles is designed to protect the legitimate rights and interests of any participant in the process. In modern Russian criminal proceedings that is a priority. Therefore, the author proposes to exclude the provision on prohibition to appeal an individual judge's decision rendered under appointment of the court session from the code of criminal procedure and to leavу only the ban to appeal the decision on the venue, date and time of the hearing.

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 CONDUCTING EXAMINATION IN CRIMINAL PROCEEDINGS: HISTORICAL ASPECT

2020 ◽  
Vol 73 (4) ◽  
pp. 112-117
Author(s):  
Vasyl Bazhanyuk ◽  
Keyword(s):  
Criminal Procedure ◽  
Legal Regulation ◽  
Soviet Period ◽  
Necessary Condition ◽  
Equal Rights ◽  
Criminal Proceedings ◽  
Historical Aspect ◽  
Criminal Offenses ◽  
Special Knowledge ◽  
The Right

The history of the formation of a democratic procedure in Ukraine for the use of special knowledge in criminal proceedings is studied. It is noted that in the Soviet period this procedure was not democratic, only an investigator had the right to appoint an expert. This procedure for appointing an examination allowed to appoint it quite quickly. But the investigator could also avoid conducting an examination for certain reasons, he could reject the request to conduct it for certain reasons. Ukraine inherited such a legal procedure after the declaration of independence. A new procedure for examination was established by the Criminal Procedure Code only in 2012. The article analyzes the shortcomings in the legal regulation of the procedure of examinations after the entry into force of the CPC of Ukraine in 2012, which were eliminated during the update of the criminal procedure legislation. The importance of consolidating the equality of rights of the parties to criminal proceedings to conduct examinations is noted. It is noted that the decision to conduct an examination is made by the party to the criminal proceedings, which prepares the relevant materials. The urgency of this order, its importance in the formation of the system of evidence and in the very procedure of proving in adversarial criminal proceedings is emphasized. Problematic issues of the procedure for appointing examinations by investigating judges are revealed. This procedure has led to the practical blocking of the work of both courts and pre-trial investigation bodies. Given that a significant number of suspects in serious and especially serious crimes were in custody, the situation looked critical. It was the signs of the collapse of criminal proceedings that forced us to make urgent changes to the procedure for appointing and conducting forensic examinations, which was carried out in 2019. Therefore, the involvement of experts is carried out by the parties to the criminal proceedings or by the investigating judge at the request of the defense. As a result, the parties to the criminal proceedings received equal rights to use special knowledge. The conclusion is substantiated that this is a necessary condition for ensuring a high-quality investigation of criminal offenses.

Ensuring the Rights and Legal Interests of the Victim when Checking the Crime Report: A Comparative Legal Analysis of the Criminal Procedure Codes of the Russian Federation and the People’s Republic of China

2021 ◽  
pp. 128-133
Author(s):  
Irina G. Smirnova ◽  
◽  
Ekaterina V. Alekseeva ◽  
◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
People’S Republic Of China ◽  
Legal Analysis ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Procedure Code ◽  
The Russian Federation ◽  
Procedure Codes

The article presents a comparative legal analysis of the norms of the Criminal Procedure Code of the Russian Federation and the Criminal Procedure Code of the People’s Republic of China, which regulate the rights and powers of the victim within the framework of the stage of initiating a criminal case. The authors highlight several significant differences in the legal regulation of this issue. The differences are: the obligation to comply with the rules of jurisdiction in China at the stage of filing a statement of a crime, which is not required under the Code of Criminal Procedure of the Russian Federation; compulsory fingerprinting of a person when filing a crime report with a public security agency implemented in China; the existence of several types of preliminary checks (the list of activities carried out as part of these checks in China is open); intensive development of IT technologies and their introduction into the life of society, including for the fight against crime and ensuring law and order in society, in China.

scholarly journals ENSURING COMPENSATION FOR DAMAGE CAUSED BY CRIMINAL OFFENSES AS A RESULT OF SCAMMING ACTIVITIES IN THE FIELD OF TOURISM

2020 ◽  
pp. 369-376
Author(s):  
Г. В. Захарова
Keyword(s):  
Relevant Information ◽  
Legal Regulation ◽  
The State ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
Criminal Offenses ◽  
Domestic Legislation ◽  
Legislative Proposals ◽  
Compensation For Damage ◽  
Legal Compensation

The purpose of the article is to study the legal regulation and law enforcement practices on compensation for victims of criminal proceedings due to fraud in the field of tourism, identify problematic aspects in this direction, and make regulatory legislative proposals to improve legal compensation for victims of criminal proceedings. The article considers some issues related to compensation for damage caused by a criminal offense as a result of fraudulent acts in the field of tourism. The issues of legal regulation under domestic legislation and the legislation of individual European countries on compensation by the state for damage caused to victims are analyzed. It is emphasized that the priority for victims of fraudulent criminal acts is the requirement of compensation for damage, as well as the issue of compensation, compensation for such damage. It turns out that the voluntary compensation of victims by criminals directly depends on the quality and totality of the indictments collected against them, which fully expose their criminal activities. Meanwhile, the legislator did not pay enough attention to the possibility of voluntary compensation for damage to the person who caused it, as well as the benefits of voluntary compensation for damage. The legal provisions to be settled on this issue are indicated. Emphasis is placed on the need for timely pre-trial investigation of relevant traditional measures aimed at finding and locating, staying, both movable and immovable property, securities, jewelry, etc., which may be seized, in order to ensure compensation to the victim. damage. Emphasis is placed on the effectiveness and expediency of using the capabilities of IT technologies of relevant information resources, Internet services, and monitoring of websites that contain information that can help find as soon as possible the property of criminals who can be seized. At the same time, it is noted that the creation and proper functioning of the state fund for compensation to victims of crimes will be an additional constitutional guarantee that will only strengthen human security and increase the overall authority of the state.

scholarly journals On the Implementation of the Captains of the Vessels of Powers of Bodies of Inquiry

2020 ◽  
pp. 80-82
Author(s):  
Andrey Mikhailovich Dolgov
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Proceedings ◽  
Stage Of Development ◽  
Foreign Countries ◽  
Communication Links ◽  
The Republic ◽  
The Impact ◽  
Current Stage

The paper deals with the implementation of such a principle of criminal procedure as the adversarial nature of the parties, in relation to the modern con-ditions of digitalization of legal proceedings. The relevance of this topic is explained by the fact that the current stage of development of public relations, characterized by the significant digitalization of communication links, in turn, is reflected in changes in legislation in General, and criminal proceedings in particular. At the same time, competition is one of the fundamental principles of this branch of law, the application of which should also be reflected in changes in legislation. In the course of the work, the criminal procedure norms regulating these issues, statistical data on the work of courts of General ju-risdiction, opinions and positions of leading proce-dural scientists in Russia and foreign countries (the Republic of Kazakhstan, Germany) were examined. As a result of the conducted research, the conclu-sion is made about the impact of the development of digitalization of criminal proceedings on the prac-tical application of the principle of adversarial par-ties.

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 ON THE DEFECTS OF LEGAL REGULATION OF THE CONCEPT OF LIABILITY FOR TAX OFFENCES

2020 ◽  
Vol 15 (1) ◽  
pp. 164-182
Author(s):  
Zhanna A. Nikolaeva
Keyword(s):  
Russian Federation ◽  
Tax Evasion ◽  
Criminal Procedure ◽  
Legal Liability ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
The Russian Federation ◽  
The Law

The author analyzes the content of interrelated tax norms, administrative and criminal laws, which constitute the concept of liability for tax offences. The analysis makes it possible to identify the elements that cause non-compliance with the foundations of legal liability in criminal proceedings: its inevitability, equality of everyone before the law and the court, justice. Representatives of small and medium- sized businesses are placed in unequal, discriminatory circumstances in comparison with large businesses. In addition, the legislation on taxes and fees contains provisions which create obstacles for the operation of criminal and criminal procedure laws. Many instances of tax evasion, the non-payment of fees and/or insurance fees in large and especially large amounts revealed by tax services do not become known to investigative bodies. In this case, the principle of the priority of sectoral legislation ceases to work, since in criminal proceedings the provisions of the Tax Code of the Russian Federation cancel out the effect of the norms which are common to all types of crimes and express the foundations of a particular sector of law. This paper substantiates the need to improve the concept of liability for violations of the legislation on taxes and fees.

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