scholarly journals COMPREHENSIVE ASSESSMENT OF EXPERT CONCLUSION IN CRIMINAL PROCEEDINGS

2020 ◽  
pp. 120-129
Author(s):  
O. Kravchenko ◽  
R. Zaveryko
Keyword(s):  
Due Process ◽  
Comprehensive Evaluation ◽  
Dominant Role ◽  
Individual Responsibility ◽  
Criminal Proceedings ◽  
Conceptual Issue ◽  
Procedural Law ◽  
Forensic Practice ◽  
Level Of Knowledge ◽  
Assessment Of Evidence

The authors of the article on the basis of analysis of scientific sources, forensic practice and legislation considers the conceptual issue of specifying the procedure of comprehensive evaluation of expert’s conclusion in criminal proceedings. There is a distinguishing features of this procedure is the following: the first stage examines the procedural form of the expert’s conclusion, the second – its content, the factual data on the basis of which the presence or absence of facts and circumstances relevant to criminal proceedings and subject to be proved. The criterion for assessing whether an expert’s conclusion is appropriate depends on the content of the conclusions provided to confirm or refute certain circumstances; confirmation of the reliability or inaccuracy of other evidence; the possibility or inability to use other evidence. The condition for the admissibility of an expert’s conclusion is compliance with the procedural form for conducting the examination and drawing up a conclusion, namely: compliance with the requirements of the criminal procedural law; due process registration of the appointment of the examination (decision, determination, petitions of the parties, etc.); the procedural independence and individual responsibility of the expert for the conclusion provided by him/her; immediacy of research; objectivity and reliability of the of the conducted research and conclusion; due documentation of the results of expert’s research. Objective reality indicates that doubts about the reliability of the expert’s conclusion will always be, however, if there are reasonable grounds for the unreliability of the expert’s conclusion, such a conclusion cannot be used in the process of proving. Consequently, there is a need for additional procedural actions aimed at obtaining data that confirm or refute the conclusion of the examination, among such actions is the appointment of a repeated examination. The dominant role in the criterion for assessing the sufficiency of evidence in the expert’s conclusion is played by the subjective conclusion of the initiator of the expert research, his/her inner conviction, which determines a different approach to the assessment of evidence in connection with a different level of knowledge and experience.

scholarly journals Legal Framework of the Mechanism for the Elimination of Judicial Errors in Germany: A Comparative Legal Aspect

2021 ◽  
Vol 16 (3) ◽  
pp. 124-132
Author(s):  
A. G. Trofimik
Keyword(s):  
Legal Aspect ◽  
Legal Framework ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Legal Structure ◽  
Procedural Law ◽  
Judicial Practice ◽  
Judicial Errors ◽  
Assessment Of Evidence

The paper examines the legally enshrined principles of material truth (§ 244 II StPO) and free assessment of evidence (§ 261 StPO), as well as the doctrinal requirement for a comprehensive, complete and objective study of the circumstances of a criminal case from the standpoint of the legal mechanism for identifying and eliminating (eliminating) judicial errors in criminal proceedings in Germany. The meaning and functions of the named concepts for criminal proceedings have been determined. The influence of the principle of material truth (Untersuchungsgrundsatz, Aufklärungspflicht) and the principle of free evaluation of evidence on law enforcement are analyzed. Based on the analysis of the universal regulatory framework of the elimination of judicial errors and the corresponding judicial practice, comparing the current legal regulation of Germany with the Soviet criminal process, the author formulates hypotheses on the possibility of returning to the domestic criminal procedural law of truth as a special legal structure that guarantees the quality of the investigation of the circumstances of the criminal case and ensuring uniform judicial practice.

scholarly journals Peculiarities of assessing evidence by the cassation court: contemporary practice

2021 ◽  
pp. 424-432
Author(s):  
Nadiia Drozdovych
Keyword(s):  
Analytical Data ◽  
Appellate Courts ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Local Courts ◽  
Assessment Of Evidence ◽  
The Right ◽  
Contemporary Practice

This article is devoted to the matters of providing evidence in criminal proceedings in the aspect of evidence assessment by the cassation court. The article states that evidence assessment takes place in the cassation court as a form of judicial activity that does not contradict and does not conflict with the norms of criminal procedural law concerning the powers of a cassation court to revise court rulings only within the scope of the matter of law. On the other hand, it points out the conformity of these conclusions at doctrinal, legislative and judicial practice levels. Based on the foregoing, it was established that evidence assessment by the cassation court has its own peculiarities through the prism of specifics of cassation proceedings. The foregoing is corroborated by analytical data of contemporary judicial practice of the Criminal Cassation Court of the Supreme Court (CCC SC). This article describes the results of an analysis of CCC SC rulings, which demonstrate most vividly the assessment of evidence by the court of this instance. In particular, it was established that this judicial activity manifests itself the most in the rulings that exercise the authority to overrule court rulings and close criminal proceedings, and also, to change judgments of local courts and resolutions of appellate courts due to the need to exclude certain evidence. The reasons for reversal of court rulings and for closing criminal proceedings, which overwhelmingly concern inadequate evidence assessment by courts of lower instances for the purpose of determining their quality (admissibility) and content, were analyzed. In the category of court rulings that changed judgments of local courts and resolutions of appellate courts and excluded certain evidence, judicial practice of the cassation court concerning recognition of evidence as inadmissible, because its quality is nonconformant with requirements of procedural form in view of the failure to observe the evidence gathering procedure, infringement of the investigation procedure, violation of the right to defense in the course of investigation, failure to comply with requirements to documentation and opening of evidence, or incorrect determination of the source of evidence, was demonstrated. As a result, a conclusion was drawn that the cassation court assesses evidence in the form of “assessment check”, which is a special form of implementing the principle of free assessment of evidence.

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".

Due process implications of law enforcement agencies using Investigative Genetic Genealogy to solve serious crimes

2021 ◽  
pp. 1037969X2110072
Author(s):  
Rhanee Rego ◽  
John Anderson
Keyword(s):  
Law Enforcement ◽  
Due Process ◽  
Criminal Procedure ◽  
Law Enforcement Agencies ◽  
Dna Databases ◽  
Genetic Genealogy ◽  
Legislative Reform ◽  
Critical Questions ◽  
Forensic Practice

Investigative Genetic Genealogy (IGG) has opened up new frontiers in the search for the perpetrators of serious crimes. The pool of data held by consumer DNA databases has enabled law enforcement agencies to undertake database matching to find biological relatives of an unknown perpetrator. This relatively new forensic practice is not, however, without concerns when benchmarked against established norms of investigative practice and criminal procedure. The critical questions emerge: how should IGG be used and in what circumstances? In this article, we contend that the current laws in Australia are not capable of regulating IGG appropriately and legislative reform is required.

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 Peculiarities of implementation of the principle of legality in the criminal process of Ukraine

2021 ◽  
Vol 1 (1) ◽  
pp. 253-257
Author(s):  
Oleksiy Skryabin ◽  
Dmytro Sanakoiev
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Limiting Factor ◽  
Criminal Proceedings ◽  
Legal Regime ◽  
Criminal Process ◽  
Procedural Law ◽  
Judicial Proceedings ◽  
Principle Of Legality ◽  
Discretionary Powers

The article analyzes the principles of criminal procedure, which are the expression of the prevailing political and legal ideas of the state, relate to the tasks and methods of judicial proceedings in criminal proceedings, are enshrined in law and operate throughout all stages and necessarily in its central stage. Modern theoretical ideas about the system of principles of criminal proceedings are still in the stage of active methodological and ideological rethinking. Discussions continue both on the concept and features of the principles of criminal proceedings, their system, and on the peculiarities of implementation at different stages of the criminal process. Violation of the principles of criminal procedure is a sign of illegality of decisions in the criminal and becomes the basis for the cancellation of these decisions. The principle of legality characterizes the legal regime of strict and mandatory observance of laws in law enforcement practice, which manifests itself in criminal proceedings, limits the discretionary powers of the pre-trial investigation, prosecutor's office and court. The principle of legality becomes an opportunity to transfer criminal proceedings from one procedural stage to another only on the basis of the law and in a strictly defined sequence. Legality is one of the guarantees of establishing the truth in a criminal case, which ensures the protection of human and civil rights and freedoms. The principle of legality is characterized by mandatory observance of laws in criminal proceedings, is a limiting factor in the discretion of the pre-trial investigation, prosecution and court. Due to the implementation of the principle of legality, the shortcomings and gaps in the criminal process that exist in criminal procedural law can be overcome.

scholarly journals Crimination and Solution of Criminal Matters in the Criminal Proceedings of Bosnia and Herzegovina - a Division Between Normative and Actual

2020 ◽  
Vol 10 (10) ◽  
Author(s):  
Sadmir Karović ◽  
Marina M. Simović
Keyword(s):  
Bosnia And Herzegovina ◽  
Practical Aspect ◽  
Criminal Proceedings ◽  
Criminal Matter ◽  
Criminal Offense ◽  
Procedural Law ◽  
Procedural Task ◽  
Standards Of Proof ◽  
Criminal Matters ◽  
Practical Nature

In this paper, the central part presents the solution of the criminal-procedural task, that is, the clarification and solution of a specific criminal matter in criminal proceedings of Bosnia and Herzegovina by criminal-law entities, with special attention to restrictive legal conditions of a criminal-procedural nature, as well as certain problems and dilemmas of a practical nature. The extremely dynamic development of modern criminal procedural law in the last two decades is also characterized by the adoption of new criminal procedural solutions with a pronounced tendency of humanization, which directly relates to the catalog of the rights of the suspect or accused person. In order to understand the nature of the criminal proceedings, the conceptual determination and differentiation of the criminal matter as the main subject of the criminal proceedings was made to the criminal matter in an unfair and fair sense, with reference to the practical aspect of the efficient conduct of the criminal proceedings and the illumination and settlement of the criminal matter, respecting the standards of proof. Given the nature of the criminal proceedings, in addition to the criminal matter as the main case, other secondary or ancillary issues are included which do not constitute a criminal offense but relate to the criminal matter (property claim, so-called prejudicial or preliminary issues and costs of the proceedings).

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.

Judicial Nature of Evidence in Criminal Proceeding

2019 ◽  
Vol 10 (7) ◽  
pp. 1976
Author(s):  
Valery P. GMYRKO ◽  
Mykola Ye. SHUMYLO ◽  
Viacheslav V. VAPNIARCHUK ◽  
Oksana V. KAPLINA ◽  
Vasily P. SHYBIKO
Keyword(s):  
Law Enforcement ◽  
Procedural Knowledge ◽  
Judicial Interpretation ◽  
Criminal Proceedings ◽  
Proper Understanding ◽  
Legal Structure ◽  
Procedural Law ◽  
Legal Nature ◽  
Human Thinking ◽  
Fact Finding

The urgency of the problem stated in the article is conditioned by the necessity to determine the legal nature of the evidence in criminal proceedings and the evolution of the views of domestic scientists on this legal phenomenon. The purpose of the article is to consider the legal nature of the evidence in criminal proceedings and to determine their legal structure. The main approach to the study of this problem was to conduct a methodological analysis of the phenomena of ‘concept’ and ‘definition’, on the basis of which it was argued that judicial evidence has no essence, and only the function of being a symbolic representative of a certain factum probans (from Latin – something that should be proved). The publication concludes that the evidence in criminal proceedings is the result of human thinking operations and can be represented by the methodological construction ‘composition of criminal-judicial evidence’, which includes regulatory-procedural, knowledge, fact-finding and judicial-interpretation segments. In addition, the opinion expressed the inappropriateness of fixing evidence in the criminal procedural law and proposed a pragmatic approach to this issue, which is in line with current European jurisprudence. The materials of the article represent both theoretical and practical value. They can be used for further scientific investigation of evidence in criminal proceedings, as well as for a proper understanding and enforcement of law enforcement criminal proceedings.  

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