scholarly journals IMPLEMENTATION OF THE RIGHT TO PROTECTION IN THE PROCEEDINGS OF THE INQUIRY IN AN ABBREVIATED FORM

2021 ◽  
Vol 31 (2) ◽  
pp. 312-317
Author(s):  
L.G. Tatyanina ◽  
F.A. Abasheva
Keyword(s):  
Russian Federation ◽  
Criminal Case ◽  
Reduced Form ◽  
Criminal Proceedings ◽  
Formal Approach ◽  
Defense Lawyer ◽  
Judicial Investigation ◽  
Mandatory Participation ◽  
The Russian Federation ◽  
The Right

The article deals with the problems of ensuring the right to protection of suspects in criminal proceedings on crimes investigated in a reduced form of inquiry. The authors draw attention to the need to exclude the formal approach in ensuring the right to a defense in the production of an inquiry in a shortened form, since subsequently the criminal case is considered in a court session in the order of chapter II. 40 of the Code of Criminal Procedure of the Russian Federation, in which there is no judicial investigation, in connection with which the accused, who does not understand the subtleties of the procedural form, becomes its hostage, the defender must ensure the protection of his rights. The authors substantiate the need for mandatory involvement of a defense lawyer to resolve the issue of conducting an inquiry in a shortened form and its subsequent mandatory participation in the criminal proceedings. The position on the inadmissibility of making a decision on the use of an inquiry in a shortened form in the presence of a lawyer on duty, in the presence of a lawyer by agreement, if the latter could not appear for the first interrogation of the suspect, is defended. The authors propose a procedure for admission to participation in the case of a defense lawyer in the course of conducting an inquiry in a reduced form, making a decision on the possibility of conducting an inquiry in this form, and highlight the features of exercising the right to a defense when familiarizing with the materials of a criminal case.

scholarly journals SOME CONTROVERSIAL PROVISIONS OF THE PARTICIPATION OF THE DEFENDER IN THE EVIDENCE IN A CRIMINAL CASE

2020 ◽  
Vol 36 (4) ◽  
pp. 160-163
Author(s):  
T. B. Ramazanov ◽  
◽  
M. M. Magomaev ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
The Russian Federation ◽  
The Right ◽  
Material Evidence ◽  
Expert Study

In the article, the principle of competition and equality of the parties and the principle of comprehensiveness, completeness and objectivity in criminal proceedings are analyzed from the point of view of the powers and real capabilities of a lawyer participating as a defender in a criminal case. The code of criminal procedure of the Russian Federation, granting the defender the right to collect evidence, at the same time does not provide real opportunities for checking and evaluating evidence. Investigators often reject the defense lawyer's requests to attach material evidence to the case and appoint an expert study in order to determine the source of its receipt. In the Arsenal of the investigator there are not only procedural opportunities to find the source of evidence, but also the possibility of operational and investigative nature. In practice, the interaction of the investigator and the defense lawyer in pre-trial proceedings does not take into account the weaknesses of the defense party. The actual inequality of the parties should be specifically compensated by providing procedural benefits to the defense party, as the weaker one, by introducing additional rights and guarantees. The defence must be provided with the rights and opportunities to defend its position in equal measure with the prosecution.

scholarly journals Separate Grounds for the Obligatory Involvement of a Defense Counsel in a Criminal Case as a Procedural Safeguard

2021 ◽  
Vol 1 ◽  
pp. 24-28
Author(s):  
Irina P. Popova ◽  
Keyword(s):  
Russian Federation ◽  
Defense Attorney ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Defense Counsel ◽  
Mandatory Participation ◽  
Procedural Safeguard ◽  
The Russian Federation ◽  
Court Proceedings ◽  
The Right

Despite the desire of the domestic legislator to get away from the elements of the accusatory bias in criminal proceedings, at the pre-trial stages the rights and possibilities of the prosecution are much wider than the defense. That is why the participation of the defense attorney in the pre-trial stages of the criminal proceedings is becoming more relevant and serves as a procedural guarantee both to ensure the adversarial process of the parties and to ensure the suspect (accused) the right to defense. The grounds for the mandatory participation of a defense counsel may also arise in judicial stages, where the principle of adversarial process of the parties should be ensured by providing equal procedural opportunities to the parties. The normative consolidation of the grounds for the mandatory participation of a defender is not entirely flawless, in connection with which, the author considers some of them through the prism of providing appropriate procedural guarantees to the person against whom criminal prosecution is carried out. As a result of the study of the grounds specified in paragraph 3.1, 5–8 part 1 of Art. 51 of the Code of Criminal Procedure of the Russian Federation, the author came to the conclusion that it is necessary to ensure the mandatory participation of counsel in pre-trial proceedings, as well as in the absence of the accused (defendant) in court proceedings.

scholarly journals Familiarization with the Materials of the Criminal Case as a Guarantee of Protection of the Rights of the Accused

Legal Concept ◽  
2021 ◽  
pp. 151-155
Author(s):  
Nadezhda Aliyeva
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
Procedure Code ◽  
System Method ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
Scientific System

Introduction: the paper discusses the procedure for familiarizing the accused with the materials of the criminal case. The paper identifies the main problems that arise in the practice of resolving petitions filed after the familiarization with the materials of the criminal case. In the paper, the author analyzes the procedure for familiarizing the accused and his defense lawyer with the materials of the criminal case, which is one of the important stages in the pre-trial proceedings. In the course of the study, it was found that the accused has more opportunities to exercise their right to submit petitions than other participants in the criminal proceedings. In the course of the research, the author investigated the theoretical and practical problems that arise when familiarizing the accused with the materials of the criminal case. In this paper, the author sets the goal of the study: to analyze the procedural order for familiarizing the accused with the materials of the criminal case. Methods: the methodological framework for the research is the general scientific system method, which examines the issues related to the activities of the investigator at the stage of familiarization of participants in the criminal proceedings with the materials of the criminal case. It is necessary to emphasize the use of some specific scientific methods in the research, such as the comparative legal and formal logical methods. Results: the need to introduce a separate rule in the Criminal Procedure Code of the Russian Federation related to the issue of the procedure for filing a petition by the accused and his defense lawyer. Conclusions: the study revealed that it is necessary to improve the process for filing petitions, the rules for their consideration by the investigator, and ensuring that the parties to criminal proceedings guarantee the protection of their rights and legitimate interests. In particular, it is necessary to make additions to Article 217 of the Criminal Procedure Code of the Russian Federation in the paragraph on the need to fix the reasons for the inability to get acquainted with the material evidence and their further specification in the investigator’s decision.

scholarly journals FEATURES OF THE IMPLEMENTATION OF THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS OF PRIVATE PROSECUTION

2020 ◽  
Vol 30 (6) ◽  
pp. 875-880
Author(s):  
E.F. Tensina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
Special Procedure ◽  
The Russian Federation ◽  
Procedural Rights

The article reveals the nature of the claim of a private prosecution, which establishes the freedom to dispose of material and procedural rights. The forms of manifestation of dispositive principles in the material and procedural aspects in the course of criminal proceedings are determined. Taking into account the nature of the claim of a private prosecution, various models of proceedings in criminal cases of a private prosecution and the peculiarities of the implementation of the provisions of the criminal procedure principle of the presumption of innocence are considered. The author critically assesses the legal constructions that allow the application of a special procedure for making a court decision in criminal proceedings of a private prosecution if the accused agrees with the charge brought. In particular, taking into account the provisions of the principle of the presumption of innocence, it is concluded that it is inadmissible to apply Chapter 40 of the Criminal Procedure Code of the Russian Federation when considering a criminal case of a private prosecution if it is initiated by filing an application directly with a magistrate in the manner prescribed by Art. 318 of the Code of Criminal Procedure of the Russian Federation or when investigating a criminal case of this category in the form of an abbreviated inquiry, regulated by Ch. 32.1 of the Criminal Procedure Code of the Russian Federation.

scholarly journals Meaning of the Category “Validity of the Charge” in Criminal Proceedings

2021 ◽  
pp. 218-223
Author(s):  
Oksana V. Kachalova ◽  
◽  
Viкtor I. Kachalov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Sufficient Evidence ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Simplified Procedure ◽  
Special Order

The aim of the article is to identify the meaning of the category “validity of the charge” in criminal proceedings and the scope of its application. After analyzing the content and legal essence of this category, as well as procedural situations in which it is necessary to establish the validity of the charge, the authors come to the following conclusions. Any coercive measures against suspects and accused persons can be applied only if there are serious grounds to assume that a person is involved in the commission of a crime since the restriction of the most important constitutional rights of citizens who, by virtue of the presumption of innocence, are innocent of committing a crime is possible only in exceptional cases. The validity of the charge (suspicion) assumes that a person is involved in the commission of a crime, as well as the fact of the criminal prosecution of this person. It is established if there is sufficient evidence that a person may have committed a crime (a person was caught committing a crime or immediately after it was committed; the victim or witnesses identified the person as the perpetrator of the crime; obvious traces of the crime were found on the person or their clothing, with them or in their house, etc.). The validity of the charge may be confirmed by a decision to initiate a criminal case and bring a person as an accused, by protocols of detention, interrogations of the accused, the victim, witnesses, and other materials. In the procedural sense, the conditions for establishing the validity of the charge differ significantly. When resolving the issue of the use of detention and other preventive measures, the validity of the charge is established within the framework of a court session in the conditions of adversariality with the participation of the parties. When giving the court permission to conduct investigative and other procedural actions in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, to ensure the secrecy of the investigation, the issue is resolved in the absence of adversariality with the possible participation of only the prosecutor, the investigator, and the inquirer. The category “validity of the charge” is significant in legal terms in a criminal case with the special order of proceedings. A prerequisite for the court to consider a criminal case in a simplified procedure is the validity of the charge and its confirmation by the evidence collected in the case. The validity of the charge in the appointment of a trial in the special order provided for by Chapter 40 of the Criminal Procedure Code of the Russian Federation is established by the court outside the court session in the absence of the parties. In any of the above situations, the court is responsible for establishing the validity of the charge since failure to establish it means that the decision made is unfounded.

scholarly journals To the admissibility of the civil law exemption of property from arrest, imposed in the criminal proceedings: domestic and foreign experience

2017 ◽  
Vol 1 (3) ◽  
pp. 190-200
Author(s):  
Natalia Kashtanova
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
Judicial Protection

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.

scholarly journals Examination and subsequent evaluation of criminal case materials by the prosecuting attorney as the basis for effective organization of the judicial inquiry

2020 ◽  
pp. 249-261
Author(s):  
Ol'ga Anatol'evna Zayceva
Keyword(s):  
Russian Federation ◽  
Legal Framework ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
Legal Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Effective Organization ◽  
Fundamental Consideration

The subject of this article is the activity of the prosecuting attorney in the maintenance of public prosecution. The research methodology includes dialectical, logical, formal-legal, and hermeneutical methods. The legal framework for this research is comprised of the Constitution of the Russian Federation, criminal procedure legislation, as well as local normative acts regulating the questions of participation of prosecutors in the judicial stages of criminal proceedings. Emphasis is made on the questions of theoretical and applied nature, related to consideration of criminal case materials by the prosecutor. The article explores the positions of scholars regarding prosecutor’s preparation for the legal proceedings, specificity of prosecutor's work at the stage of preparing for maintenance of state prosecution in court. The conclusion is formulated that the effectiveness of maintenance of prosecuting attorney depends on the level of his preparation to the legal proceedings, which includes examination of criminal case materials. The author highlights two key stages of preparation of the prosecutor to maintenance of public prosecution: examination and subsequent evaluation of criminal case materials; participation in the preliminary hearing and fundamental consideration of criminal case .The author believes that activity of the prosecutor is aimed at formation of inner conviction and maintenance of prosecution in court.

scholarly journals On Criminal Procedure and Criminalistic Measures of Counteracting Crimes Against Legal Entities

2021 ◽  
Vol 15 (1) ◽  
pp. 98-105
Author(s):  
Olga Aivazova ◽  
Galina Vardanyan ◽  
Irina Smirnova
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Relevant Information ◽  
Criminal Proceedings ◽  
Legal Entity ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Right ◽  
Legal Entities

The article discusses some aspects of proving in cases of crimes against legal entities. The criminalistic description of the victim represented by a legal entity determines specific details of applying criminalistic and criminal procedure measures aimed at the identification, investigation, detection and prevention of such crimes. Under the current Criminal Procedure Code of the Russian Federation, one of the elements of ordering criminal proceedings is the protection of rights and legal interests of organizations that became victims of crimes. Part 1 of Art. 42 of the Criminal Procedure Code of the Russian Federation details this guideline for the first time by giving legal entities, viewed as independent subjects of criminal procedure legal relations, the right to be recognized as victims of criminal actions if the crime inflicted damage on their property or business reputation. Nevertheless, the imperfections in the regulation of legal entities’ participation in criminal proceeding, and the insufficient attention to the specifics of realizing their rights and legal interests in comparison with the physical persons of a similar procedural status give rise to numerous problems. The complex of such problems has a negative impact on the effectiveness of investigating this category of crimes and, as a consequence, on the ability of criminal proceedings to produce the intended result. The literal interpretation of Part 1, Art. 42 of the Criminal Procedure Code of the Russian Federation points out that the consequences of such crimes must include the infliction of two types of damage simultaneously — «to property and to business reputation», which can hardly be considered a good de­finition from the standpoint of juridical technique. Quite naturally, the investigation and court practice shows that law enforcers, while collecting proof on the character and size of damage inflicted on legal entities as a result of a crime, usually limit themselves to proving material damage, and even this damage is not proven in full (the common omission being losses of expected income). As for the damage inflicted on business reputation of a legal entity, its establishment during criminal proceedings is still problematic and, in practice, there is usually a gap in proving it. The authors point out that incomplete character of evidentiary information regarding the infliction of damage on the business reputation of legal entities is inadmissible and present their recommendations for resolving this problem, including the use of specialist knowledge and the improvements in the tactics of specific investigatory actions aimed at obtaining criminalistically relevant information on the case.

Ensuring the right to protection at the stage of appeal proceedings in criminal case: problems of theory and practice

2021 ◽  
Vol 15 (2) ◽  
pp. 7-16
Author(s):  
Oksana V. Kachalova ◽  
Sergey A. Vdovin
Keyword(s):  
Criminal Procedure ◽  
Theory And Practice ◽  
Criminal Case ◽  
Final Decision ◽  
Legal Representative ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
Criminal Procedure Law ◽  
The Right ◽  
Court Of Appeal

Introduction. The right of the accused to a defense in criminal proceedings is a prerequisite for the effective administration of justice, since it minimizes possible errors in the final decision in a case, which may result in the conviction of innocent persons, which contradicts the purpose of criminal proceedings and undermines citizens confidence in the judicial system. The purpose of the article is to identify systemic problems that impede the effective implementation of the right to defense at the stage of appeal, as well as to suggest ways to resolve them. Main results. The authors come to the conclusion that the structural and logical elements of ensuring the right of the accused to a defense at the stage of appeal proceedings in a criminal case are: subjects defending the accused; duties of a defense lawyer to exercise the right of the accused to defense at the stage of appeal proceedings in the case; subjects who, in accordance with the requirements of the criminal procedure law, are obliged to ensure the right of the accused to defense; the duties of the courts of first and appellate instances imposed on them by the criminal procedure law, corresponding to the rights of the accused, his defense lawyer and legal representative and forming in their totality a system of interim measures necessary for the realization of the accuseds right to defense; the powers of the accused, his defense counsel and legal representative, through which the constitutional right to defense is exercised; guarantees of the accuseds right to defense. The only ground for limiting the right to defense is abuse of the right by the defense. The fact of abuse of the right can only be established by the court, the abuse of the right cannot be evidenced exclusively by the external expression of the actions of participants in the process. The question of the presence or absence of abuse of the right to defense should be decided by the court on the basis of the totality of factual circumstances and procedural features of each individual situation. The system of powers that make up the content of the defendants right to defense at the stage of appeal proceedings in the case consists of two interrelated elements, including powers exercised at the stage of filing an appeal and before the start of the court session of the court of appeal, as well as the powers that the defense side has directly in consideration of a criminal case in a court session of the court of appeal. Conclusion. Thus, the effective provision of the right to defense at the stage of appeal proceedings requires a change in approaches on the part of legislator and law enforcement officers.

scholarly journals Termination of a criminal case (criminal prosecution) as a result of voluntary compensation for damage caused by a crime in the russian criminal court legal proceedings

2021 ◽  
Vol 7 (3B) ◽  
pp. 645-651
Author(s):  
Artem Igorevich Neryakhin ◽  
Dmitriy Aleksandrovich Ivanov ◽  
Vasily Dzhonovich Potapov ◽  
Denis N. Stacyuk ◽  
Tatiana Ivanovna Bondar
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Preliminary Investigation ◽  
Criminal Code ◽  
Criminal Court ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Russian Federation ◽  
Compensation For Damage

The authors study the controversial issues of termination of a criminal case (criminal prosecution) on the condition of voluntary compensation for the damage caused by the crime by the suspect (accused) during the preliminary investigation. The thesis is proved that in Russian criminal proceedings the procedure for voluntary compensation for damage caused by a crime is quite clearly regulated, and if the suspect (accused) voluntarily compensated for the property damage caused, then their actions will be evaluated within the current legal framework, when the fact of compensation for damage creates grounds for exemption from criminal liability and termination of the criminal case (criminal prosecution) in accordance with Articles 75, 76, 761, 762 of the Criminal Code of the Russian Federation, Articles 25, 251, 28, 281 of the Criminal Procedure Code of the Russian Federation.

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