scholarly journals TO THE QUESTION OF ACCESSORIES OF JUDICIAL EXAMINATION TO INVESTIGATIVE ACTIONS

2019 ◽  
pp. 58-68
Author(s):  
I. Pyrih
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Forensic Examination ◽  
Preparatory Stage ◽  
The Subject ◽  
Characteristic Features ◽  
Definition Of ◽  
Selection Of

The article deals with problematic issues related to the norms of criminal procedure legislation, considering the involvement of an expert as an investigative action. Among criminal scientists and proceduralists there is no consensus on the procedural definition of forensic examination. Most of them include forensics to investigative actions. By the definition of a forensic examination, it is clear that an integral feature of a procedural action is to conduct it exclusively by officials of state bodies authorized by law to conduct criminal proceedings. These include: employees of the operational units, an investigator, a prosecutor, a judge. The subject of the examination is an expert – a person not authorized by law to conduct investigative actions. That is why, in our opinion, it is impossible to refer an examination to investigative actions. Proponents of referring a forensic examination to investigative actions most often mean it as «the appointment and conduct of a forensic examination». It is argued that actions regarding the appointment and conduct of the examination are different in nature and subjects of conduct. If we consider the stage of appointment of the examination, and for the current Criminal Procedure Code of Ukraine – the involvement of an expert, then its subject is the investigator. The subject of the examination is an expert. Considering the characteristic features of the investigative action, it can be concluded that the stage of appointment of the examination or the involvement of an expert, which scientists consider as preparatory to the examination, has all the signs inherent in an independent investigative action. It is governed by the rules of procedural law, carried out in the framework of criminal proceedings, authorized by the person. When an expert is involved, the investigator conducts certain actions, the result of which is reflected in the ruling of the investigating judge. The purpose of the examination is to obtain, research and verify evidence. Considering the involvement of an expert as a separate investigative action, we define its content, divided into generally accepted stages: preparatory, working and final. To the preparatory stage, we include such actions: the decision to conduct an examination; selection of an expert institution or a private expert; determination of the type of examination and subject of study; determining the order of appointment of examinations in relation to the same objects; timing of appointment examination. The following should be attributed to the working stage: selection of objects for examination; receipt of the decision of the investigating judge for the examination. The final stage consists of the following stages: determining the circle of persons who may be present during the examination; referrals and necessary materials to the expert institution. Key words: investigative (search) action, forensic examination, appointment of expertise, involvement of an expert.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals ON THE ESSENCE AND LEGAL NATURE OF THE FORENSIC EXAMINATION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 5-16
Author(s):  
V. Tishchenko ◽  
L. Belik ◽  
O. Samoilenko ◽  
Yu. Tishchenko
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Science ◽  
Forensic Examination ◽  
Legal Nature ◽  
Forensic Expert ◽  
The Law ◽  
Definition Of

The article is devoted to the study of aspects of the essence and legal nature of forensic examination in criminal proceedings. It is analyzed the provisions of the Law of Ukraine “On Forensic Examination”. The norms of the Criminal Procedure Code concerning the grounds for the appointment and conduct of forensic examination have been investigated. It has been established that many scientists in the field of civil procedural law, criminal procedural law, criminology and forensic examination paid attention to the legal content of the forensic examination. The nature of occurrence of forensic examination has been investigated. It has been established that at the legislative level, the term “forensic expert activity” is used only in the Law of Ukraine “On Forensic Examination”. In the specified normative legal act there is no clear definition of this concept, scientists through the analysis of some norms of law reveal its content. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. The article analyzes the criminal procedure form of appointing a forensic examination. Key words: forensic examination, criminal proceedings, forensic expert activity, forensic expertology, criminal procedural form.

scholarly journals ДЕЯКІ ПРОБЛЕМИ ТИМЧАСОВОГО ВИЛУЧЕННЯ ТА АРЕШТУ МАЙНА ЯК ЗАХОДІВ ЗАБЕЗПЕЧЕННЯ КРИМІНАЛЬНОГО ПРОВАДЖЕННЯ

2019 ◽  
Vol 13 ◽  
pp. 520-528
Author(s):  
І. В. Гловюк
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Definition Of

Стаття присвячена дослідженню проблемних питань застосування тимчасового вилу­чення майна та арешту майна як заходів забезпечення кримінального провадження із урахуванням наявної судової практики. Указано та обґрунтовано некоректність норма­тивного визначення тимчасового вилучення майна. Відмічено прогальність нормативного визначення арешту майна в аспекті об'єктів, на які може бути накладено арешт. Сфор­мульовано пропозиції щодо внесення змін та доповнень до ч. 1 ст. 167 КПК щодо ви­значення поняття «тимчасове вилучення майна» та ч. 1 ст. 170 КПК щодо осіб, на майно яких може бути накладено арешт.   The article is dedicated to the research of problematic issues of exercise of temporary seizure of property and arrest of property as means for ensuring criminal proceedings considering relevant judicial practices. Author mentioned and justified his point of view regarding incorrectness of the normative definition of seizure. Author also indicated whitespaces of the regulatory definition of arrest of property in the aspect of objects that may be the subject for the arrest. Proposals for amendments and additions to the part 1 of the Art. 167 of the Criminal Procedure Code regarding the definition of «temporary seizure of property» and part 1 of the Art. 170 of the Criminal Procedure Code regarding the scope of persons whose property may be arrested have been made.

scholarly journals Execution of a Sentence – an Independent Stage of Criminal Proceedings

2020 ◽  
Vol 14 (4) ◽  
pp. 560-565
Author(s):  
Vyacheslav B. Shabanov ◽  
Lyudmila Yu. Budanova ◽  
Vladimir. P. Kramarenko
Keyword(s):  
Criminal Justice ◽  
Key Words ◽  
Criminal Procedure ◽  
Legal Issues ◽  
Criminal Investigation ◽  
Criminal Proceedings ◽  
Essential Nature ◽  
Procedural Law ◽  
Characteristic Features

The article investigates how the notion “execution of a sentence” was formed and analyzes the content of the stage of execution of a sentence as an independent part of criminal procedure, examines legal issues of criminal proceedings within the stage of execution of a sentence, and puts forward some ways to improve it. The fact that court activities aimed at considering and resolving issues related to the execution of a sentence are defined as part of criminal procedure rather than as an independent stage is a subject for debate, because this activity may or may not take place. But we agree with those scholars who believe that the stage such as the presentation of a sentence for execution always emerges during sentencing, and the analogy with the stage of launching criminal investigation allows us to conclude that, that further criminal proceedings may occur several times or may not occur at all and thus form an independent stage of criminal procedure. We studied the opinions and statements of practitioners and scholars in the field of criminal procedure concerning the role and importance of criminal proceedings aimed at the execution of a sentence as an independent stage of criminal procedure, institution of criminal procedural law, a separate phase of criminal procedure and the theoretical arguments as to the essential nature and meaning of the execution of a sentence in criminal procedure. We conclude that criminal proceedings aimed at presenting the sentence for execution, consideration and resolution by the court of the issues related to its execution form the content of an independent stage of criminal procedure, which has all the necessary and characteristic features. Key words: execution of a sentence; stage of criminal procedure; subjects of execution of a sentence; criminal justice; criminal proceedings.

scholarly journals Criminal procedure principles in defendant hearing

2020 ◽  
Vol 10 (2) ◽  
pp. 68-81
Author(s):  
Željko Mirkov
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Crucial Issue ◽  
Legal Rules ◽  
Party Control ◽  
Criminal Procedure Law ◽  
Uniform Definition ◽  
The Subject ◽  
Definition Of ◽  
Principle Of Legality

Although there is no uniform definition of procedural principles in criminal procedure theory, they can be defined as legal rules or guidelines on which the criminal proceedings are based. As such, the principles of criminal procedure law apply to procedural entities and procedural actions. Evidentiary actions, as a type of procedural action, clarify the criminal case that is the subject of the criminal proceedings. The Criminal Procedure Code stipulates several evidentiary actions, one of which is the preliminary hearing of the defendant. The defendant hearing, in which the defendant gives their testimony, is given a great deal of attention because it represents one of the most important pieces of evidence, and the course of evidence presentation is the most significant and crucial issue of the criminal proceedings. Therefore, the paper will present a review of the criminal procedure principles related to this evidentiary action, starting from the principle of legality as the main principle, followed by the principles of orality, publicity, immediacy and adversity (party control of facts and means of proof).

scholarly journals Reform and Digitalization of Pre-trial Proceedings in Criminal Proceedings of the Kyrgyz Republic

2020 ◽  
Vol 6 (9) ◽  
pp. 308-315
Author(s):  
K. Smanaliev
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Electronic System ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
The Subject ◽  
Legislative Reforms ◽  
The Moment ◽  
Definition Of

The article is devoted to the peculiarities of changes in the model of criminal proceedings in the Kyrgyz Republic and the definition of ‘criminal proceedings’ is given in a new edition. It has been established that pre-trial proceedings as a stage in the criminal process; begins with the registration of statements and messages and is the initial independent stage of the criminal process, manifesting in two forms: investigation and proceedings on misdemeanor cases. It was confirmed that the refusal from the stage of initiating a criminal case was replaced by a new institute of the Unified Register of Crimes and Misdemeanors, which includes a process starting from the moment of electronic registration and a system for recording applications and messages, and ending with the execution of a court sentence. The object of the research is public relations associated with the reform and digitalization of pre-trial proceedings in the Kyrgyz Republic. The subject of the research is the novelties of the criminal procedure legislation of the Kyrgyz Republic regarding pre-trial proceedings. In connection with the latest legislative reforms and digitalization in Kyrgyzstan, a comparative analysis of the state of the criminal procedure legislation of a number of post-Soviet states (Kazakhstan, Ukraine, Georgia, Moldova) on issues related to the electronic system of the unified register of crimes and misconduct seems relevant to the author.

General and Special Theories of Criminal Procedure

2021 ◽  
pp. 249-254
Author(s):  
Sergey V. Slinko ◽  
◽  
Dmitry S. Slinko ◽  
Dmitry V. Filin ◽  
◽  
...  
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Special Theory ◽  
Criminal Proceedings ◽  
Conceptual Approach ◽  
Basic Principles ◽  
Procedural Law ◽  
Alternative Measures ◽  
Judicial Actions

The relevance of the article can be determined on the basis of research on general theories of criminal procedure. The main theoretical provisions of the criminal procedure of continental Europe began to be developed in 1864, after the adoption of the Charter of the Criminal Proceedings of Russia. Theoretical developments included a conceptual approach that defined guarantees for the rights, freedoms and interests of participants in the procedure, basic principles, forms of evidence and proving, the procedure for investigative and judicial actions. The aim of the article is to reveal the theoretical content of the general theory of the procedure and to determine new special theories enshrined in the current legislation. If general theories of the procedure have been considered at the level of monographic research, special ones have remained outside the scope of studies. The novelty of the research consists in the disclosure of theoretical and practical aspects of general and special theories of criminal procedure on the basis of existing legislation and the practice of its application by criminal justice authorities and the collegiate court. The article considers the theoretical aspects of a special theory. Issues of the optimization and procedural economy of criminal procedure based on benchmark theory are related to the release of a person from criminal liability and the use of alternative measures. New legal definitions are proposed that establish a clear mechanism for procedural, investigative (search), judicial actions in establishing, securing, evaluating evidence of guilt or innocence of a person. The existing legal constructions of general theories provide an impetus for the application of special theories of criminal procedure, which are associated with solving the problems of criminal proceedings, its optimization, and procedural economy of applying criminal procedural repression. The current criminal procedural law does not fully define the concept of general and special theories of the procedure. The article proposes theoretical aspects and practical solutions to these emerging problematic issues. The basic concept of the article includes the analysis of general and special theories of criminal procedure, the determination of the provisions for its optimization and procedural economy on the basis of the unified content of criminal and procedural rules in establishing circumstances related to the closure of criminal proceedings, and the release of a person from criminal liability. Based on the analysis of the current criminal procedural legislation, the content of procedural repressions, which are determined on the basis of the procedural status of prosecution and the mechanism of their application with respect to a particular category of participants in criminal proceedings, is revealed.

THE SUBJECT AND TASKS OF FORENSIC AUTOTECHNICAL EXAMINATION

2017 ◽  
Vol 17 ◽  
pp. 198-204
Author(s):  
A. V. Lubentsov
Keyword(s):  
Traffic Safety ◽  
Practical Aspect ◽  
Criminal Proceedings ◽  
Important Place ◽  
Forensic Examination ◽  
Special Knowledge ◽  
The Subject ◽  
Mutual Relations ◽  
Definition Of ◽  
The Given

Problems of appointing and conducting forensic examination and using their results in the process of criminal offences investigation occupy an important place in the criminal proceedings and expert activities. A separate category among all these problems is perfection of theoretical basis offorensic examination, namely the definition of a subject and tasks offorensic examination in general and its separate types in particular. One of these is the forensic autotechnical examination, as one of the main expertise scheduled when investigating crimes against traffic safety and transport operation. In the practical aspect in the subject of forensic examination we distinguish procedural and gnoseological sides. The procedural side ofa subject of forensic examination is expressed in a circle of circumstances, which are established by means of special knowledge and are the elements of proofs system. The gnoseological side of a subject of forensic examination is expressed in that the object of cognition at practical expert research are properties of expertise object, its sides and mutual relations which are defined during the given research. On the basis of scientific literature and normative-legal acts analysis the subject and tasks of forensic examination are investigated. A subject and tasks of forensic autotechnical expertise are defined. It’s noticed that in the practical aspect the subject of a forensic examination is considered in wide and narrow senses, as a kind (type) subject of autotechnical examination in general, and a subject of a concrete autotechnical examination in concrete criminal proceedings. It’s specified that depending on it the autotechnical examination tasks are divided on general and concrete. It’s proved that the subject and tasks of a concrete autotechnical examination may coincide on volume with the general or to be them yet however they should not be beyond the general.

scholarly journals Problems of Implementing Standards for the Prevention of Secondary Victimization of Crime Victims in Ukrainian Criminal Procedure Legislation

2020 ◽  
Vol 14 (6) ◽  
pp. 927-936
Author(s):  
Natalia Hlynskaia ◽  
Olha Shylo ◽  
Olena Verkhoglyad-Herasimenko
Keyword(s):  
Criminal Procedure ◽  
Time Frame ◽  
Vital Role ◽  
Crime Victims ◽  
General Mechanism ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Secondary Victimization ◽  
Definition Of

Criminal procedure standards of preventing secondary victimization are examined through the prism of European documents of advisory nature that contain a number of regulations that establish minimum standards of the rights of victims and the duties of the state to protect them. The authors prove a vital role that criminal procedure legislation plays in the general mechanism of preventing such a negative phenomenon as secondary victimization of a crime victim. Taking into consideration the etymological characteristics of the concept of «standard», the authors formulate a definition of standards for preventing secondary victimization of crime victims and determine their system. It consists of an aggregate of interconnected elements: the state’s compensation to a victim for damage caused by the crime; provision of access to justice for victims and the use of criminal proceedings that are unburdensome for the victims; provision of an opportunity for the victim to actively participate in criminal proceedings; provision of legal, psychological, medical and social help to the victim; guarantee of a right to safety for the victim and their family members; a system of extra guarantees of the rights and interests of vulnerable victims. The article also highlights key discrepancies between Ukrainian legislation and some of the above-mentioned standards and presents ideas on eliminating them. Specifically, the authors pay attention to the necessity of creating a Foundation for the protection of the rights of crime victims, whose main purpose would be the compensation of damages to the victims. As for the use of unburdensome criminal procedures, it is suggested that the Criminal Procedure Code of Ukraine should include a norm that states that the involvement of a victim in investigation activities that infringe on their rights and lawful interests should be kept to a minimum and should only be carried out when it is necessary for criminal proceedings. It is noted that normative regulation of the time frame for criminal proceedings at their specific stages should be regulated. Besides, there is a necessity for statutory determination of a general prohibition to disclose information on victims of certain types of crimes that would make it possible to identify the victim, etc.

scholarly journals INFORMATION AS THE BASIS FOR THE DIFFERENTIATION OF THE SUBJECT AND OBJECTS OF FORENSIC EXAMINATIONS

2017 ◽  
Vol 17 ◽  
pp. 139-146
Author(s):  
M. G. Shcherbakovskiy
Keyword(s):  
Direct Object ◽  
Legal Information ◽  
Procedural Law ◽  
Forensic Examination ◽  
The Subject ◽  
Definition Of ◽  
Relationship Of ◽  
The Relationship ◽  
Expert Study

The subject offorensic examination as a practical activity is one of the most important categories offorensic examinations theory. The subject offorensic examination is used to classify forensic examinations. The definition of the subject offorensic examinations through the prism of information theory categories is the most productive. Information is a part of the data about the investigated object which is used to solve a particular task. Legal information is used during investigation of crimes. The author proposes a classification of legal information. Information is divided into criminally relevant and neutral, depending on the relationship of the data to the event of the crime. Information is procedural or nonprocedural, depending on the method of receipt in accordance with the procedural law. Information is evidentiary if it presents the content of evidence by itself. Information is orienting when it’s used for organizational or tactical purposes. Information is criminalistic, expert or operative-search, depending on the methods and subjects of its receipt. Information, received by the expert during the investigation, is criminally relevant or neutral, procedural, expert, evidentiary or orienting. The data that are received by an expert, become useful information if they help to resolve issues put to a forensic expert. A special object of forensic examination (information field) is the totality of homogeneous properties of the subsumer. The direct object of an expert research is a part of a special object that is subjected to research during a specific expert study. The subject of forensic examination kind is evidentiary and orienting information that can be obtained at the contemporary stage of forensic examination development by researching a special object that is a part of the object properties offorensic examination kind. The subject ofparticular forensic examination is evidentiary or orienting information, which must be obtained by an investigation of a direct object that is the part of the properties of the particular material carrier submitted for examination.

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