scholarly journals REFUSAL OF THE SUBJECTIVE RIGHT TO THE INVIOLABILITY OF HOME IN A CRIMINAL PROCEDURE (THEORETICAL AND LEGAL ASPECT)

2021 ◽  
Vol 31 (6) ◽  
pp. 1085-1091
Author(s):  
I.N. Chebotareva ◽  
O.S. Pashutina ◽  
I.V. Revina
Keyword(s):  
Legal Aspect ◽  
Criminal Procedure ◽  
Search And Seizure ◽  
Judicial Decision ◽  
Legal Nature ◽  
General Signs ◽  
The Right

The article discusses consent to the conduct of investigative actions in a home as a refusal of an authorized person from his subjective right to the inviolability of the home, as well as the peculiarities of the procedural procedure for conducting investigative actions in a home in the presence of a refusal of the subjective right to its inviolability. The legal significance of consent to the entry of strangers into the home is that it is a waiver of the right to the inviolability of the home and is one of the legal facts that allow the official conducting the investigative action to interfere with the right of this person. Proceeding from the general signs of a waiver of the right, the authors argue that the inviolability of the home is a subjective right that can be waived, they determine the persons whose waiver of the right to the inviolability of the home has legal significance. By renouncing his right to the inviolability of his home, a person turns out to be from the powers that make up the content of this right. The authors come to the conclusion that the constitutional and legal nature of the principle of the inviolability of the home makes it necessary to ascertain the opinion of all residents on the performance of any investigative actions in the home, with the exception of a search and seizure, the basis for the production of which is exclusively a judicial decision. The article also analyzes the procedure for giving up the right to the inviolability of the home by giving consent.

scholarly journals Draft Law on Criminal Misconduct given the German Experience of Legal Regulation

Lex Russica ◽  
2021 ◽  
pp. 133-141
Author(s):  
Ya. M. Ploshkina ◽  
L. V. Mayorova
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Offense ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.

scholarly journals Compensation of property damage caused to non-participants in criminal procedure in order of rehabilitation

2020 ◽  
pp. 221-230
Author(s):  
V. V. Muryleva-Kazak
Keyword(s):  
Property Rights ◽  
Criminal Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Property Damage ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Right ◽  
Legal Entities

The article discusses the issue of the legal nature of the right to compensate harm, the effectiveness of usage of the criminal procedure mechanism for its protection and the reasonableness of the inclusion of relevant in the Criminal Procedure Code of the Russian Federation.Based on the analysis of judicial practice, it is concluded that the courts have difficulties in determining the appropriate way to protect the right to compensate harm caused in the course of criminal proceedings and the delineation of competence between arbitration courts and courts of general jurisdiction, which leads to a violation of the applicants’ right to access to justice and reduces the effectiveness of judicial protection.In addition, it is concluded that the criminal procedure form is not adapted to the consideration of civil disputes on compensation for harm, the author names the impossibility of collecting lost profits as one of the factors that reduce the effectiveness of the use of the criminal procedural mechanism for protecting property rights.Based on the interpretation of the criminal procedure rules provided in the article, the author concludes that legal entities have an opportunity to use criminal procedure remedies for violated property rights in more cases than individuals, which violates the principle of equality before the law and the court. The article provides ways to solve the identified problems.

scholarly journals Access to justice and problems of its restriction in criminal procedure

2020 ◽  
pp. 13-28
Author(s):  
Larisa Nikolaevna Maslennikova ◽  
Tatiana Topilina
Keyword(s):  
Criminal Procedure ◽  
Access To Justice ◽  
Initial Stage ◽  
Legal Nature ◽  
Objective Factor ◽  
Legislative Model ◽  
Definition Of ◽  
The Right ◽  
Right Of Access ◽  
Restriction Of Right

This article analyzes the controversies in definition of the concepts “right of access”, “access to justice”, “court accessibility”, "access to justice", as well as the problem of restriction of access to justice in criminal procedure. Detailed analysis is conducted on the existing approaches towards definition of the aforementioned concepts. The subject of this research is the norms of Russian and foreign legislation that regulate the right to access to justice in criminal procedure. It is demonstrated that the concept of “accessibility of justice” reflects an exogenous objective factor unrelated to the system of criminal justice, while “access to justice” in criminal procedure should be considered an indigenous objective factor, associated with the structure of criminal procedure, substantiated by its public-legal nature. The authors conduct the analysis of complaints regarding the restriction of right to access justice, which were received by the Ombudsman for Human Rights in the Russian Federation. The conclusion is formulated on the need for creating a novel algorithm (legislative model) of the initial stage of criminal procedure that ensures access to justice without dismantling the very foundation of criminal procedure, while maintaining an optimal ratio between public and dispositive beginnings of criminal procedure. 

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 Plea bargain: Term, legal nature and use of the plea bargain as evidence

Crimen ◽  
2020 ◽  
Vol 11 (3) ◽  
pp. 346-365
Author(s):  
Minja Blažić-Pavićević
Keyword(s):  
Practical Problem ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
Case Law ◽  
Theoretical Problem ◽  
Criminal Proceedings ◽  
Plea Bargain ◽  
Law System ◽  
Legal Nature ◽  
The Right

Plea bargain is an institute that is used in most different criminal proceedings, and does not represent an issue in matter when a certain criminal event is being related to a single perpetrator of a criminal act. In situations where more perpetrators exist, or more criminal acts, verdict that has accepted the plea bargain can be frequently used as evidence, which cannot be tested. Having in mind that Code of criminal proceedings is regulating three kinds of bargains between public attorney and offender, those being plea bargaining of criminal act, which goal is to rationalize the sole criminal procedure, as well as bargain on account of witnessing of offender or convict, whose goal is to efficiently carry out the procedure in relation to other offenders of criminal acts, question is raised on why is plea bargain used as evidence in criminal procedure. Using the plea bargain as evidence, without option of that evidence being tested, represents a violation of the right to defense, right to fair trial and presumption of innocence. Having in mind the fact that principle of material truth is not one of principles in criminal procedure, as well as the fact that option to sign the plea bargain is not limited with qualification of criminal act, nor prescribed punishment, as well as the matter of facing practical problems of using the plea bargain as a formed fact, that cannot be tested, questions is raised how can we solve the practical problem using theory. It's doubtless that public attorney is benefiting from the option of using plea bargain as established and inexcusable evidence, but the position of defense is in matter here, and its position to test the evidence that cannot be a subject of dispute. Having in mind that public attorney has on disposal other bargains as well, that can be signed with the offender, or convicted person in goal of efficiently implementing the proceedings in relation to other offenders of criminal acts, we realize that using the plea bargain should have for, its purpose, sole rationalization of criminal procedure. Alongside criminal procedures that are finalized, there are many criminal proceedings that are not finalized, where defense is helplessly fighting the use of plea bargain as evidence. Realizing the practical problem, it can be useful to take this issue in aspect from few angles, as well as suggesting the means on how to solve a problem in issue. In regard what was said earlier, in goal of respecting the principles of criminal procedure, changes of Code of criminal procedure were suggested, as well as easier solution regarding the lawful stand of Supreme Court of cassation that would answer this theoretical problem, would fulfill the void in law system, harmonize case law, as well as fully respect and use right to defense.

scholarly journals Obtaining Samples for a Comparative Study: Theoretical, Normative and Law Enforcement Problems

2021 ◽  
pp. 17-29
Author(s):  
Elena Zaitseva
Keyword(s):  
Law Enforcement ◽  
Comparative Study ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Procedure Code ◽  
Legal Nature ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article analyzes the debatable aspects of the normative regulation of obtaining samples for a comparative study according to the current Criminal Procedure Code of the Russian Federation. Attention is paid to the key problems in the regulation of this action, and to the difficulties that law enforcement employees face due to them. The author examines the questions of defining the legal nature of obtaining samples for a comparative study, and the possibility of using the operative search potential instead of the procedural method to obtain comparative samples. While analyzing the problems of setting the limits of compulsion for this action, the author stresses the incorrectness of some wording in the law (Art. 202 of the Criminal Procedure Code of the Russian Federation). In the light of ensuring the right of criminally prosecuted persons to defense, the author also presents a critical assessment of the legal positions of the Constitutional Court of the Russian Federation reflected in the Definition of July 23, 2020 № 1856-0, in the part where obtaining samples for a comparative study is recognized as an action of urgent nature.

scholarly journals "COVID PASSPORTS" - LEGAL ASPECT, POSSIBLE USE AND IMPACT ON TOURISM DEVELOPMENT

2021 ◽  
Author(s):  
Sanja Škorić ◽  
◽  
Vladimir Jovanović ◽  
Keyword(s):  
Legal Aspect ◽  
Tourism Development ◽  
International Level ◽  
The Past ◽  
Legal Nature ◽  
The World ◽  
The Right ◽  
Legal Sense ◽  
Financial Losses

"COVID" or immunity passports are classified as one of the reactions to the world pandemic and its suppression at the international level. Given that implications of this document, its legal nature, the manner of exercising the right to it, etc., are still not quite clear, various dilemmas may arise regarding this document. Also, how much will another bureaucratic obligation in connection with the organization of travel affect tourism, which has suffered incredible financial losses in the past year? It is very difficult to predict the direction of development of tourism and tourist services, especially not after the adoption of the basic rules that will concern "COVID" passports. There are dilemmas about this document in the legal sense, as well as in the sense of its obligation - will each state individually decide whether it is obligatory to enter in it or will it be one of the obligations of everyone at the international level?

scholarly journals LEGAL NATURE AND MAIN PROCEDURAL DETERMINANTS OF CRIMINAL PROCEDURE IN BOSNIA AND HERZEGOVINA

2020 ◽  
Vol 58 (3) ◽  
pp. 55-68
Author(s):  
Sadmir Karović ◽  
◽  
Marina M. Simović ◽  
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Judicial Decision ◽  
Criminal Proceedings ◽  
Criminal Matter ◽  
The Past ◽  
Legal Nature ◽  
Reform Processes

In this paper, the authors analyse the legal nature of criminal procedure in Bosnia and Herzegovina, with the special emphasis on reform processes of criminal procedure legislation and adoption and acceptance of new legal solutions over the past two decades, acknowledging the aspiration for effectiveness and protection of basic human rights and freedoms. For the purpose of effective criminal procedure, it identifies the main and secondary actors in criminal proceedings whose role is crucial from the aspect of shedding light on and resolving a certain criminal matter, as well as issuing a judicial decision. To that end, the role and importance of those actors in taking procedural actions to carry out a criminal procedure task is emphasised for the purpose of understanding the legal nature, structure and course of the criminal procedure, and achieving the scope of legally prescribed rights of the suspect, that is, the defendant. In addition, special attention is paid to the specific procedural situation and status of an underage person in the criminal law as the perpetrator and injured parties in a criminal case, taking into account their age as the basis for the differentiation and protection in relation to adults.

ON CONSTRUCT OF THE RIGHT OF PRE-EMPTION IN RESPECT OF PARTICIPATORY INTEREST (SHARES)

2020 ◽  
Vol 20 (4) ◽  
pp. 94-219
Author(s):  
I.S. CHUPRUNOV
Keyword(s):  
General Rule ◽  
Constitutive Theory ◽  
Freedom Of Contract ◽  
Legal Nature ◽  
Public Corporation ◽  
Russian Law ◽  
Right Of First Refusal ◽  
The Right

The paper provides analysis of the legal nature and the mechanism for exercise of the right of pre-emption (right of first refusal) in respect of execution of a contract taking as an example of right of first refusal to purchase a stake in a non-public corporation, and also examines the boundaries of parties’ autonomy and freedom of contract in this area. The author comes to the conclusion that the key elements of the construction of the right of pre-emption are the transformation powers that belong to the right holder. The author also demonstrates that, notwithstanding their dominance in Russian law, the views, which suggest that exercise of the right of pre-emption leads to “transfer of rights and obligations of a purchaser” (the translative theory), should be rejected. These views must be replaced with the constitutive theory, according to which exercise of the right of pre-emption results in a new contract between the right holder and the seller (as a general rule, on the same terms that were agreed between the seller and the purchaser).

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