On the possibility of appeals in the appeal procedure of decisions of investigating judges according to the results of the consideration of the complaint on the inaction of the investigator and prosecutor, which lies in the failure to enter information about criminal offense into unified register of pre-trial investigations, which were determined before June 17, 2020

2021 ◽  
pp. 159-170
Author(s):  
Iryna Basysta
Keyword(s):  
Criminal Procedure ◽  
Constitutional Court ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
The Supreme Court ◽  
Analysis And Synthesis ◽  
The Right ◽  
Procedural Decisions ◽  
Appeal Procedure

Purpose. The publication is an attempt of the author to present the scientific community with the existing approaches and objective problems of appealing the decisions of investigating judges on the results of the complaint on the inaction of the investigator and prosecutor, which lies in the failure to enter information about a criminal offense to Unified Register of Pre-trial Investigations, which were determined before June 17, 2020. Methodology. Analysis and synthesis of scientific achievements of a number of researchers and available precedents, study of the state of regulatory support, formation of author’s conclusions. Structured system method, analysis and synthesis, functional, and other methods have been used in carrying out this scientific research. Results. In the course of writing this article, arguments have been put forward to support the conclusions below. 1. Since one of the constitutional principles of judicial proceedings, in accordance with the requirements of article 129, paragraph 8 of the Constitution of Ukraine, is to ensure the right to an appellate review of the case, and the right to appeal against procedural decisions, acts or omissions as the basis of criminal proceedings guarantees everyone the right to appeal against procedural decisions, acts or omissions of a court, investigating judge, prosecutor or investigator in a manner regulated by the Code of Criminal Procedure of Ukraine (article 24, paragraph 1 of the CCP of Ukraine), all criminal proceedings participants authorized by the Code of Criminal Procedure are entitled to exercise their constitutional and procedural right to appeal against decisions, acts or omissions of authorized entities, among other things through appeal procedure if there are grounds for doing so. 2. However, the procedure for appealing procedural decisions, acts or omissions of individual entities should be divided into two conventional blocks, namely, those procedural decisions, acts or omissions that take place during the preliminary investigation and those, which are common in the judicial stages. The appeals against decisions, acts or omissions during pre-trial investigations are regulated by chapter 26 of the CCP of Ukraine, which unites three different appeal procedures with their own procedural features, solutions and different constituents within its structure. In this chapter, among other things, the legislature also sets limits on appeals against certain procedural decisions, some of which are express prohibitions. The Constitutional Court of Ukraine has already declared some of these prohibitions unconstitutional. This unconstitutional bun on appeal decisions in pre-trial investigations cease to have effect, in accordance with article 152, paragraph 2 of the Constitution of Ukraine, from the date of the adoption of the relevant decision by the Constitutional Court of Ukraine, unless otherwise indicated in the decision itself. 3. It is logical, that on common grounds from the day when the Constitutional Court of Ukraine adopted its decision 4-r (II) /2020, that is, from June 17, 2020, on the following issue: «... prohibition of appeal against the decision of the investigating judge following consideration of a complaint of inaction on the part of the investigator, the prosecutor, which consists in failing to report a criminal offence to the Unified Register of Pre-trial Investigations after receiving the complaint, criminal offence reports», criminal proceedings participants authorized by the Code of Criminal Procedure have the right to appeal the decisions of the investigating judge on the basis of the outcome of the examination of the complaint of inaction by the investigator, prosecutor, which consists of failing to report a criminal offence to the Unified Register of Pre-trial Investigations upon receipt of the complaint, criminal offence reports. 4. Court of Appeal while adopting its procedural decision on the basis of an appeal of a criminal proceedings participant authorized by the CCP of Ukraine regarding his disagreement with the investigating judge’s decision on the results of resolving the complaint, including the inaction of the investigator or prosecutor, which consists of failing to report a criminal offence to the Unified Register of Pre-trial Investigations upon receipt of a complaint, a criminal offence report, must be based on the current regulations on criminal procedure and must justify its decision in accordance with the provisions of the CCP, applicable at the time of the adoption of the decision (article 5, paragraph 1, of the CCP of Ukraine). Scientific novelty. There are some differences in the legal positions of the various judicial chambers of the Criminal Cassation Court of the Supreme Court on the application of the provisions of article 307, paragraph 3 of the CCP of Ukraine when reviewing through the cassation procedure decisions of the appellate court refusing to open proceedings through the appeal procedure against decisions of the investigating judges made regarding a complaint about the inaction of the investigator, prosecutor, which lies in the failure to report a criminal offence in Unified Register of Pre-trial Investigations after the receipt of the complaint, the reported criminal offence. Today, there is a decision of the joint chamber of the Cassation Criminal Court of the Supreme Court in case 133/3337/19, which has also been controversial among legal practitioners, thus I will try to share my own thoughts on this issue. Practical significance. The results of the study can be used in law enforcement activities during investigation of criminal offenses.

scholarly journals SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

2020 ◽  
Vol 30 (5) ◽  
pp. 747-752
Author(s):  
A.I. Shmarev
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.

scholarly journals Problems of establishing facts by the courts necessary for making a procedural decision in pretrial stages

2021 ◽  
pp. 43-54
Author(s):  
Svetlana Vladimirovna Nikitina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Social Significance ◽  
Criminal Proceedings ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Procedural Decisions

The subject of this research is the problems caused by the absence of explicit regulations in the criminal procedure law on the rules for establishing facts by the courts necessary for decision-making, as well as recommendations for their solution. These problems include thee difficulties in determining the proper and acceptable procedural behavior of the court and the parties to criminal proceedings in pretrial stages, intricacies of making a procedural court decision in cases of failure of proof, ambivalence of the court's approaches demonstrated by the legislator and the highest judicial bodies (the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation ) pertinent to regulation of judicial activity in pre-trial stages, etc. Special attention is turned to the procedure of establishing facts by the court in pretrial stages in view of the special legal and social significance of the procedural decisions made by the court, which restrict the constitutional rights of the citizens and require most full guarantees of their justness. The result of the conducted research is reflected in the author’s recommendations for solution of the indicated issues. The conclusions lies in theoretical provisions on the possible legislative approaches towards determining the judicial activity in pre-trial proceedings based on the following principles: personalization (differentiation of the form depending on procedural status of the actors), simplification (no excessive formalization), variability (presence of several variants of the procedure, the application of which depends on the procedural situation and the purpose of activity of the court), application of actions regulate by the Criminal Procedure Code among other procedural acts available to the court and parties to the court hearing.

scholarly journals ARRESTS WITHOUT WARRANT: THE SCA BRINGS CLARITY Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA); [2011] 2 All SA 157 (SCA)

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Pieter du Toit
Keyword(s):  
Criminal Procedure ◽  
Prima Facie ◽  
Constitutional Court ◽  
Charles V ◽  
Personal Liberty ◽  
High Courts ◽  
The Supreme Court ◽  
The Right ◽  
Peace Officer ◽  
Court Of Appeal

Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for a number of different instances where a peace officer may effect an arrest without an arrest warrant. A perusal of the reported case law pertaining to the lawfulness of arrests without warrant reveals that section 40(1)(b) of the Act, in particular, has received much attention from the courts. In terms of this subsection a peace officer may arrest without warrant any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. It is settled law that any deprivation of freedom is regarded as prima facie unlawful. The arrestor therefore bears the onus of proving that the arrest was justified. The following jurisdictional facts must be present for a peace officer to rely on the defence created by section 40(1)(b) of the Criminal Procedure Act in cases, where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. For a discussion of the differenttypes of jurisdictional facts provided for in section 40(1) see Watney. In Louw v Minister of Safety and Security Bertelsman J held, with reference to the right to personal liberty, that arresting officers are under a constitutional obligation to consider whether there are no less invasive options to bring the suspect to court than the drastic measure of arrest, thereby effectively requiring a further jurisdictional fact for successful reliance by a peace officer on the provisions of section 40(1). If a reasonable apprehension exists that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his or her arrest, or awritten notice or summons to appear in court is obtained, then the arrest would be constitutionally untenable and unlawful. Bertelsman J relied on academic opinion and an obiter remark made by De Vos J in Ralekwa v Minister of Safety and Security and held that the approach in Tsose v Minister of Justice that there is no rule that requires the milder method of bringing a person to court if it would be as effective as arrest, could no longer be acceptable in a constitutional dispensation. This approach was followed in a number of reported High Court judgments but not approved of in Charles v Minister of Safety and Security. In Minister of Safety and Security v Van Niekerk the Constitutional Court found it not to be in the interests of justice on the facts of the case before it to pronounce on the constitutional tenability of the approach in Tsose, but nevertheless held that the constitutionality of an arrest will be dependent upon its factual circumstances. Watney succinctly discusses some of the abovementioned developments. However, on 19 November 2010 the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto (2011 1 SACR 315 (SCA), also reported in [2011] 2 All SA 157 (SCA)) held that the approach of the different high courts requiring a further jurisdictional fact for the lawfulness of an arrest did nothave proper regard for the principles in terms of which statutes must be interpreted in the light of the Bill of Rights and that they have conflated the issue of jurisdictional facts with the issue of discretion. This lucid judgment brings clarity to the issue of the lawfulness of arrests without warrant. 

scholarly journals Appropriate subject of obtaining evidence of a criminal offense in the opinion of the court

2021 ◽  
Vol 66 ◽  
pp. 224-228
Author(s):  
A.-M.Y. Anheleniuk
Keyword(s):  
Criminal Procedure ◽  
Evidence Base ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Procedure Code ◽  
Evidence Collection ◽  
The Subject ◽  
The Right ◽  
Operational Unit

The article considers the collection of evidence by the prosecution, because it is in this order that the evidence base of criminal proceedings is most often formed. Thus, the prosecutor, investigator (investigator) acting under Articles 36, 40, 401 of the Criminal Procedure Code of Ukraine, as well as an employee of the operational unit pursuant to Article 41 of the Criminal Procedure Code of Ukraine on behalf of the investigator or prosecutor have the right to collect evidence. The purpose of the article is to study the affiliation of the subjects of evidence collection as part of the procedural form of the criminal process of Ukraine, taking into account the analysis of court decisions, namely the assessment of the evidence base as a basis for deciding on the merits of criminal proceedings. Cases of involvement of an improper subject in the pre-trial investigation, which are common and typical, are systematized. There are two types of improper subjects within the investigative (search) or procedural actions, namely the subject: 1) is not appointed in the manner prescribed by law, although according to current legislation according to the list of its powers may be appropriate; 2) does not have the authority under the law to make a specific decision or to conduct investigative (search) or procedural actions. An analysis of court decisions according to which courts provide an assessment of the procedural activities of the subjects of evidence collection in criminal proceedings at the stage of pre-trial investigation, including their relevance and admissibility. Thus, attention is paid to the assessment of courts on the legality of the presence of persons during investigative (investigative) or procedural actions; the correctness of fixing such a presence. In addition, the situations of appointment of relevant subjects in criminal proceedings to fulfill their powers are considered. It is proposed to supplement the first part of Article 236 of the Criminal Procedure Code of Ukraine with a provision that clarifies the grounds for the stay and authority of the employee of the operational and investigative service during the search.

scholarly journals WITNESS IMMUNITY IN CRIMINAL PROCEEDINGS AS AN INDICATOR OF THE MATURITY OF THE LEGAL SYSTEM

2021 ◽  
Vol 17 (2(64)) ◽  
pp. 123-132
Author(s):  
Александр Алексеевич ТАРАСОВ
Keyword(s):  
Legal System ◽  
System Analysis ◽  
Criminal Procedure ◽  
Political Life ◽  
International Exchange ◽  
Criminal Proceedings ◽  
General Rules ◽  
Analysis And Synthesis ◽  
Criminal Procedure Law ◽  
The Right

Witness immunity, that is, the right of persons expressly referred to in the criminal procedure law to refuse to testify about circumstances, is considered in the special literature as one of the criminal procedure institutions, relating to the procedural status of the witness or the rules for his or her interrogation. Purpose: to demonstrate that the list of persons having witness immunity and the legal characteristics of the circumstances to which they are entitled not to testify, and the general rules for interrogating such persons, and exceptions to these general rules are indicators of the level of development of the national criminal procedure and legal system of a particular State. Methods: the author uses the methods of structural-system analysis and synthesis, comparative jurisprudence. The author's comparative analysis of Russian and German criminal procedure law clearly demonstrates the social and economic conditionality of the methods of securing witness immunity and the possibility of international exchange of law enforcement experience. The main conclusion from the study is the following: the legal significance of the criminal procedural institution of witness immunity goes far beyond the actual criminal procedure, and this institution has significant dynamics, reflecting changes in the socio-economic and political life of society.

USLUGA NAMIRENJA IMOVINSKOPRAVNOG ZAHTEVA

2021 ◽  
Author(s):  
Marija Milojević ◽  
Keyword(s):  
Criminal Procedure ◽  
Civil Procedure ◽  
Controversial Issues ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
The Subject ◽  
Compensation For Damage

The paper presents a continuation of the research on the problem of realization of compensation for damage caused by the commission of criminal offense. In the first paper created within the same project, the author laid the foundations of the problem, dealing with the theoretical notion of damage caused by a criminal offense, the notion of civil torts and tortious liability, and the distinction between the notion of damage and the consequence of a criminal offence. This time, the author will concentrate on settling the receivables for damages by presenting the entire path that one claim for damages should take. Namely, obtaining a property claim should occur primarily in criminal proceedings, but it is most often adjudicated in litigation because in most cases the subject entitled to it is referred to litigation in order to exercise his right to compensation. After the judgement in the civil procedure is rendered, which orders the defendant-convict in the criminal procedure to compensate the caused damage either by compensating the damage in money or by returning the thing, or by annulling a certain legal deal, the concrete execution of the verdict in the executive procedure begins. While studying the manner of collecting the claims of the entitled subject through all three different procedures for the damage caused by the commission of criminal offense, the author also deals with controversial issues that may arise (the issue of statute of limitations for property claim, the issue of subjects who may be holders of property claims, the adequacy of the procedure in which the property claim is exercised, the means of execution of a monetary claim for damages caused by the commission of criminal offense, etc.).

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 Manipulation of the Right to Defense from the Standpoint of Securing the Right of the Accused to Free Selection of an Attorney

2021 ◽  
Vol 1 ◽  
pp. 33-39
Author(s):  
Irina V. Revina ◽  
◽  
Olesya S. Pashutina ◽  
Irina N. Chebotareva ◽  
◽  
...  
Keyword(s):  
Russian Federation ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Legal Position ◽  
The Russian Federation ◽  
Constitutional Right ◽  
Individual Decisions ◽  
The Right

Based on the analysis of the legal position of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, individual decisions of the European Court of Human Rights, the article examines the factors that determine the participation of backup advocates in criminal proceedings. The article analyzes the criteria for the validity of the refusal of the accused/defendant from the defense-backup in the criminal proceedings. Attention is focused on the inadmissibility of duplication of the functions of the defense that violates the constitutional right of the suspect, the accused to freely choose a lawyer. Methods for resolving the designated legal conflict are proposed.

scholarly journals German Experience of Terminating Criminal Prosecution with the Imposition of Duties and Regulations on the Accused in the Context of the Russian Draft Law on Criminal Offence

2021 ◽  
Vol 15 (6) ◽  
pp. 775-785
Author(s):  
Aleksey Tarbagaev ◽  
Ludmila Maiorova ◽  
Yana Ploshkina
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Presumption Of Innocence ◽  
Federal Republic Of Germany ◽  
Criminal Offence ◽  
Theoretical Approaches ◽  
The Supreme Court

The second attempt of the Supreme Court of the Russian Federation to introduce the concept of a criminal offence into Russian criminal and criminal procedure legislation widens the non-rehabilitating grounds for the termination of a criminal case or prosecution with the imposition of other criminal law measures: it is suggested that, in addition to a court fine, community work and partially paid work should also be introduced. This leads to certain problems, including problems with the presumption of innocence and the observance of the principle of justice. The authors turn to the German experience for a better understanding of the situation. Germany faced similar problems much earlier, when § 153а was introduced in the Criminal Procedure Code of the Federal Republic of Germany (CPC of the FRG); it provided for an opportunity to terminate criminal prosecution for criminal offences on the grounds of expediency with the imposition of duties and regulations on the accused, which are akin to criminal law measures under draft law № 1112019-7. Taking into consideration the theoretical approaches developed in Germany, the practice of the Constitutional Court of the FRG and the Supreme Court of the FRG, the authors examine the goals of introducing § 153а in the CPC of the FRG, the practice of its implementation, as well as the problem of terminating criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused connected with the observance of the Constitution of the FRG, the presumption of innocence, the principles of justice, certainty, equality before law; they analyze the controversial legal nature of duties and regulations under § 153а in the CPC of the FRG. According to German criminal procedure law, the termination of criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused is a right, and not a duty of the corresponding officers and agencies as it is, in fact, an alternative to criminal prosecution which makes it possible to terminate it at a certain stage when there are all the necessary legal grounds for criminal prosecution.

scholarly journals Judicial legal positions in the context of conflicts related to the formation of the procedural status of persons against whom acts of criminal prosecution are actually implemented

2019 ◽  
pp. 114-119
Author(s):  
Sergey Grachev
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Status ◽  
The Russian Federation ◽  
The Right

The article considers the grounds for the emergence of the procedural status of a suspect in a criminal case. The rights and obligations of the specified person, including the right to protection are analyzed. Subject to the requirements of the criminal procedure code of the Russian Federation, legal positions of the Constitutional Court of the Russian Federation and Plenum of the Supreme Court of the Russian Federation the conclusion about the necessity of legislative consolidation of the procedural status of the person whose rights and lawful interests are affected carried out in relation to proceedings for verification of a crime report in accordance with article 144 of the Criminal procedure code and equating it to the status of a suspect, since during the pre-investigation check he has the right to protection from the criminal prosecution actually carried out against him.

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