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

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

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

Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals Classification of Measures of Restriction: From a “Mixed” Criterion to a Connection with the Object of Restriction

2020 ◽  
Vol 15 (3) ◽  
pp. 154-165
Author(s):  
E. V. Mandzhieva
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Coercive Measures ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Law

Achieving the aims of criminal proceedings is impossible without coercion, which significantly restricts human rights and freedoms, including constitutional ones, and, therefore, it is permissible only if there are grounds and in the manner prescribed by the criminal procedure legislation. The grounds, conditions and procedure for applying measures of restriction in criminal proceedings largely depend on the correct systematization of criminal procedure legislation, which may be the basis for a systematic interpretation of the text of the law. Combining other measures of procedural coercion in Ch. 14 of the Criminal Procedure Code of the Russian Federation does not have clear criteria, which is fraught with the erroneous use of procedural coercion against participants in criminal proceedings. The purpose of the paper is to assess the directions of possible improvement of the legislation regarding the systematization of procedural coercion measures. Measures of procedural coercion should be structured and systematized in the Criminal Procedure Code of the Russian Federation on clear and uniform grounds, including coercive measures, which are not measures of restriction. Currently, there are no such grounds in relation to other measures of procedural coercion, united in Ch. 14 of the Criminal Procedure Code of the Russian Federation, which impedes their reasonable application. The contents of Ch. 14 of the Criminal Procedure Code of the Russian Federation should be revised taking into account logical and legal ties. As a result of the research the author developed the ideas on logical connections as one of the main bases for the classification of the norms governing the use of procedural coercion, affecting its legality and validity.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals PASAL 54 KITAB UNDANG-UNDANG HUKUM ACARA PIDANA DALAM ELABORASI HUKUM PIDANA ISLAM

2021 ◽  
Vol 4 (1) ◽  
pp. 48-69
Author(s):  
Diah Ratri Oktavriana ◽  
Nasiri Nasiri
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Legal Service ◽  
Legal Assistance ◽  
Legal Aid ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Law ◽  
The Right

This research is a normative research. One of the fulfillment of human rights is justice in equalizing the position of every citizen before the law, as stated in Article 27 paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The right to equality before the law or what is commonly referred to as equality before the law is a principle that provides recognition and protection of human rights for every individual regardless of one's background. Therefore, it is true that Law Number 16 of 2011 concerning Legal Aid for People Who Are Less Capable to Guarantee Constitutional Rights of Citizens for Justice and Equality before the Law emerged. Legal aid is a legal service provided by advocates to the community seeking justice In the realm of criminal cases, the provision of legal assistance is described in Article 54 of the Criminal Procedure Code which explains that in the interests of defense, a suspect or defendant has the right to receive legal assistance from one or more legal advisers during the time and at each level of examination. The provision of legal assistance must be based on the principle of equality before the law as stated in the explanation of Law Number 8 of 1981 concerning Criminal Procedure Law. From the various analyzes that have been carried out, in the perspective of Islamic criminal law it can be concluded that the principle of equality before the law as described in Article 54 of the Criminal Procedure Code is equivalent to an order to provide legal aid which in Islamic criminal law is spelled out in Surah Al-Maidah verse 2 which states that as a fellow humans are ordered to help each other as a form of horizontal worship to fellow humans (habl minan-nas). In addition there are many more both in the Al Qur'an and the hadith of the prophet regarding the application of the principle of equality before the law.

SHORTENED TIMELINE OF APPEAL AGAINST INTERIM COURT DECISIONS MADE AT A PRE-TRIAL STAGE OF CRIMINAL PROCEEDINGS

2021 ◽  
pp. 38-49
Author(s):  
Polina O. Gertsen ◽  
Keyword(s):  
Russian Federation ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Medical Organization ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

The article deals with the problem of classifying interim decisions among those that are appealed in a shortened timeline, and determining the list of such decisions, as well as the closely related problem of determining the rules for calculating such a shortened timeline. Currently, the Criminal Procedure law provides for the possibility of appealing a number of interim decisions made at a pre-trial stage of criminal proceedings before the final decision Moreover, for appealing some interim decisions at a pre-trial stage of criminal proceedings, a general period of appeal is provided - 10 days from the date of the court decision, or the same period from the date of serving with a copy of the decision the person who is in custody, while for others a shortened timeline is 3 days from the date of the decision. Meanwhile, it follows from the literal interpretation of the Criminal Procedure Code of the Russian Federation that within a shortened three-day period, court decisions on the election of preventive measures in the form of a ban on certain actions, bail, house arrest, detention, the refusal to apply them or extend their application can be appealed. At the same time, such a conclusion is not confirmed either in the positions of the Plenum of the Supreme Court of the Russian Federation or in judicial practice. Based on the analysis of the criminal procedure law, the position of the Supreme and Constitutional Courts of the Russian Federation, scientific literature and practice, several problems are highlighted. Thus, the author states the discrepancy between the provisions of the Code of Criminal Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation when it comes to establishing the terms for appealing the court decision on a preventive measure in the form of bail. In addition, there is no single criterion for establishing shortened deadlines for appealing interim decisions, and there-fore, the list of such decisions requires analysis. In addition, the Criminal Procedure Code of the Russian Federation does not contain a norm that determines the rules for calculating daily terms. The author formulates several proposals for amendments. It is proposed to determine the criteria for a shortened appeal timeline as the restriction of the constitutional right to liberty and immunity of a person that requires the immediate judicial review of the lawfulness of such a decision. It is also necessary to correct the phrasing of Article 106 of the Criminal Procedure Code of the Russian Federation, which defines the procedure for applying a preventive measure in the form of bail, and establish the rule that appeal against such an interim court decision is filed according to the rules of Chapter 45.1 of the Criminal Procedure Code within ten days. The list of court decisions which must be appealed in a shortened timeline must be expanded by a court decision on putting a suspect or an accused into a medical organization providing medical or psychiatric care in hospital settings for forensic examination, as well as the extension of a person’s stay in a medical organization. In addition, the author has analyzed the approaches to the calculation of daily terms and proposes to amend Part 1 of Article 128 of the Criminal Procedure Code of the Russian Federation by establishing a single procedure for calculating daily terms, which does not take into account the day that served as a starting point of the term.

scholarly journals Practical Application of the Provisions of the Code of Criminal Procedure Regarding the Measure of Preventive Arrest

2021 ◽  
Vol 9 (1) ◽  
pp. 24-32
Author(s):  
Nicolae Silviu Pana ◽  
Ana Maria Pana
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Judicial Control ◽  
House Arrest ◽  
Procedure Code

Preventive measures are coercive criminal law enforcement institutions, aimed at the deprivation or restriction of individual liberty, by which the suspect or defendant is prevented from undertaking certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of its purpose. They have been instituted by the legislator for specific purposes, namely: to ensure the proper conduct of criminal proceedings, to prevent the abstraction of the suspect or defendant from trial and to prevent the commission of new offenses (art. 202 para. 1 of the Criminal Procedure Code). Preventive measures are not inherent in any ongoing criminal trial, but are exceptional measures (art. 9 para. 2 of the Criminal Procedure Code), and the court can decide to sease the measure or make use of the measure in the light of the specific circumstances of each case. Of the five preventive measures, three are deprivation of liberty - detention, house arrest and pre-trial detention, and two are non-custodial: judicial control and judicial control on bail. All these measures are only applicable to the natural person. Specific preventive measures may be taken against legal persons, but those are regulated by the provisions of art. 493 of the Criminal Procedure Code.

scholarly journals Peranan Dan Fungsi Praperadilan Dalam Penegakan Hukum Pidana Di Polda Jateng

2018 ◽  
Vol 1 (1) ◽  
Author(s):  
Dodik Hartono ◽  
Maryanto Maryanto
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Active Role ◽  
District Court ◽  
Central Java ◽  
Procedure Code ◽  
The Law

ABSTRAK�Penelitian dengan judul Peranan Dan Fungsi Praperadilan Dalam Menegakkan Hukum Pidana di Polda Jateng. Berdasarkan uraian dalam Tesis ini, permasalahan yang akan yang akan di teliti adalah: 1) Bagaimanakah fungsi dan peran praperadilan dalam penegakan hukum di Indonesia berdasarkan peraturan perundang-undangan yang berlaku? 2) Apa hambatan dalam pelaksanaan fungsi dan peran pra peradilan dalam penegakan hukum di Polda Jateng? 3) Bagaimanakah solusi dari hambatan dalam pelaksanaan fungsi dan peran pra peradilan dalam penegakan hukum di Polda Jateng?Hasil penelitian menyimpulkan bahwa : 1) Maksud dan tujuan utama yang hendak ditegakkan dan dilindungi, dalam proses praperadilan yaitu tegaknya hukum dan perlindungan hak asasi tersangka dalam tingkat pemeriksaan penyidikan dan penuntutan. Pasal 1 butir 10 KUHAP dipertegas dalam Pasal 77 KUHAP yang menyebutkan Pengadilan Negeri berwenang untuk memeriksa dan memutus, sesuai dengan ketentuan yang diatur dalam undang-undang. Wewenang pengadilan untuk mengadili dalam praperadilan dijelaskan dalam Pasal 95 KUHAP. 2) Hambatan dalam pelaksanaan fungsi dan peran praperadilan dalam penegakan hukum di Polda Jateng meliputi : a. hakim lebih banyak memperhatikan perihal dipenuhi atau tidaknya syarat-syarat formil penangkapan dan penahanan, atau ada tidaknya perintah penahanan dan sama sekali tidak menguji dan menilai syarat materilnya. b. setiap pelaksanaan upaya paksa selalu ada perenggutan HAM. c. pemeriksaan untuk melakukan penahanan, masih ada penyalahgunaan dalam tahap penyidikan oleh Polisi dan penuntutan oleh jaksa. d. selain luasnya kewenangan penyidikan dalam menentukan bukti permulaan yang cukup, pengawasan terhadap kewenangan tersebut juga lemah. 3) Solusi dari hambatan dalam pelaksanaan fungsi dan peran praperadilan dalam penegakan hukum di Polda Jateng meliputi : ����������� a. Diperlukan upaya kontrol terhadap setiap aparat penegak hukum pada lembaganya masing-masing secara vertikal. b. KUHAP perlu direvisi khususnya mengenai mekanisme saling mengawasi antara penegak hukum dan lembaga dalam subsistem peradilan. c. diperlukan peran aktif hakim dalam menggunakan kewenangannya pada saat pemeriksaan pokok perkara untuk mempertimbangkan penyidikan atau penuntutan yang tidak sesuai dengan ketentuan hukum acara atau yang melawan hukum guna menghindari penyalahgunaan HAM. d. dalam tahap ajudikasi, hakim seharusnya berkonsentrasi untuk menentukan hasil pembuktian di persidangan dan dalam tahap ini, hakim dapat menilai apa yang terjadi dalam tahap praajudikasi.Kata Kunci : Peranan dan Fungsi, Praperadilan, Penegakan Hukum Pidana�ABSTRACT�Research with the title Role And Practice Function In Enforcing Criminal Law in Central Java Regional Police. Based on the description in this Thesis, the issues that will be examined are: 1) How is the function and role of pretrial in law enforcement in Indonesia based on the prevailing laws and regulations? 2) What are the obstacles in the implementation of pre-justice functions and roles in law enforcement in the Central Java Regional Police? 3) How is the solution of the obstacles in the implementation of functions and the role of pre-judiciary in law enforcement in Central Java Regional Police?The results of the study conclude that: 1) The main purpose and objectives to be upheld and protected, in the pre-trial process, namely the enforcement of the law and the protection of human rights of suspects in the level of investigation and prosecution investigation. Article 1 point 10 of the Criminal Procedure Code is affirmed in Article 77 of KUHAP stating that the District Court has the authority to examine and decide upon, in accordance with the provisions stipulated in law. The jurisdiction of the courts to adjudicate in pre-trial is described in Article 95 of the Criminal Procedure Code. 2) Obstacles in the implementation of functions and the role of pretrial in law enforcement in Central Java Police include: a. judges pay more attention to whether or not the formal conditions for arrest and detention, or whether there is a detention order and not test and judge material requirements at all. b. every execution of forced efforts is always a rush of human rights. c. checks for detention, there is still abuse in the investigation stage by the Police and prosecution by the prosecutor. d. besides the extent of investigative authority in determining sufficient preliminary evidence, the oversight of the authority is also weak. 3) Solutions from obstacles in the implementation of functions and pretrial roles in law enforcement in Central Java Police include: a. Control of each law enforcement apparatus is required on each institution vertically. b. The Criminal Procedure Code needs to be revised, especially regarding the mechanism of mutual supervision between law enforcement and institutions within the judicial system. c. an active role of the judge in the use of authority at the time of examination of the principal matter to consider investigations or prosecutions that are not in accordance with the provisions of procedural law or against the law in order to avoid abuse of human rights. d. in the stage of adjudication, the judge should concentrate on determining the results of the evidence in the hearing and in this stage the judge can judge what happened in the pre-certification stage.Keywords: Roles and Functions, Pretrial, Criminal Law Enforcement

scholarly journals Kriminālprocesuāla, civilprocesuāla vai administratīvi procesuāla konfiskācija

2021 ◽  
pp. 568-575
Author(s):  
Gunārs Kūtris ◽  
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Important Challenge ◽  
The Law

The confiscation or forfeiture of crime proceeds is an important challenge in the fight against crime in every country. The Latvian Criminal Procedure Law (2005) provides ability of confiscating criminally acquired property before the sentencing of the guilty person, as well as the ability to apply extended confiscation for a convicted person. However, in recent years, practices and amendments to the law show trends that raise doubts about respect for human rights and principles of criminal proceedings in confiscation processes. The article deals with other countries’ experience in the confiscation of property of uncertain origin in various processes – administrative, civil and criminal proceedings. The summary gives the author’s conclusions on the legally correct confiscation process.

scholarly journals On Classification of the Powers of an Investigating Judge in Criminal Proceedings of the Kyrgyz Republic

2020 ◽  
Vol 6 (11) ◽  
pp. 350-355
Author(s):  
A. Kalygulova
Keyword(s):  
Criminal Procedure ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Control ◽  
Relevant Object ◽  
Procedure Code ◽  
The Subject

The article is devoted to the issue of classification of the powers of an investigating judge in criminal proceedings of the Kyrgyz Republic. The relevance and novelty of the study is caused by the introduction of a new procedural figure of the investigating judge, who exercises judicial control in pre-trial proceedings. The powers conferred by the Criminal Procedure Code of the Kyrgyz Republic to an investigating judge are varied in content. In this regard, the issue of the classification of the powers of an investigating judge is relevant. Object of research: the procedural figure of the investigating judge. The subject of the research: the powers of the investigating judge and their division by classification. Thus, the powers of an investigating judge, provided for in Article 31 of the Criminal Procedure Code of the Kyrgyz Republic, cover not only the issues of the existence of grounds for the application and extension of measures to ensure criminal proceedings, authorization of investigative and special investigative actions, as well as the resolution of issues arising between the participants in pre-trial proceedings, including those affecting the scope of proof in criminal cases. A proposal has been made to classify the powers of an investigating judge in criminal proceedings in the Kyrgyz Republic.

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