scholarly journals CERTAIN ISSUES OF FAMILIARIZATION WITH THE MATERIALS OF THE CRIMINAL CASE AT THE END OF THE PRELIMINARY INVESTIGATION

2021 ◽  
Vol 31 (6) ◽  
pp. 1107-1112
Author(s):  
L.G. Tatyanina ◽  
S.V. Starodumov
Keyword(s):  
Preliminary Investigation ◽  
Criminal Case ◽  
Legal Representative ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
Mandatory Participation ◽  
The Right

Familiarization with the materials of the criminal case at the end of the preliminary investigation affects the timeliness and quality of criminal proceedings in the court and adoption of a procedural decision, as well as the observance of the procedural period of criminal proceedings and ensuring the rights of participants in the parties, and therefore there is a need to resolve problems during its conduct. The authors uphold the position that it is necessary to provide for the mandatory participation of the legal representative of the minor victim and the accused in familiarization with the materials of the criminal case in order to carry out their defense, as well as the need to rehabilitate the victim after the crime committed against him. It is proposed to give the prosecutor the power to return the criminal case to the investigator if he considers it necessary to satisfy the applications. This proposal is aimed at ensuring the quality of support for public prosecution. A proposal to grant the parties the right to petition the investigator to declare the evidence in the case inadmissible and not to include it in the indictment is substantiated. The proposed procedure will exclude disputes that are not related to the circumstances of the commission of the crime in court, will improve the quality of criminal proceedings.

scholarly journals HARMONIZATION OF CRIMINAL PROCEDURE AS A MEANS OF ENSURING THEIR UNIFORM APPLICATION

2021 ◽  
Vol 31 (3) ◽  
pp. 509-514
Author(s):  
D.V. Tat'yanin
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
High Quality ◽  
Red Tape ◽  
Judicial Proceedings ◽  
The Law ◽  
The Right ◽  
Different Content

The law of criminal procedure contains a number of rules with different content, which raises a number of questions in their interpretation and application. Decisions made using rules with different content lead to their appeal, often to annulment, which does not ensure the achievement of the appointment of criminal proceedings, but leads to unjustified red tape in criminal proceedings and the delay in making final decisions on them. The need to harmonize criminal procedure rules is related to ensuring high-quality and effective criminal proceedings, ensuring the protection of the rights of participants in criminal proceedings, the quality of the evidence process, both in pre-trial and judicial proceedings. The article addresses the problems of unification of criminal procedure rules containing such concepts as an investigator and urgent investigative actions. It is proposed to eliminate the contradictions in them in order to ensure their uniform application. The introduction of a single concept of investigator and refusal to use the profession of "forensic investigator" in this concept is justified, it is proposed to expand the number of participants who have the right to carry out urgent investigative actions, as well as to assign to them investigative actions carried out at the stage of initiating a criminal 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.

Expert as a scientific judge: we return to the discussion of a forgotten problem

2020 ◽  
Vol 2020 (4) ◽  
pp. 132-141
Author(s):  
Sergey Rossinskiy
Keyword(s):  
Preliminary Investigation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Training And Education ◽  
Procedure Code ◽  
Special Knowledge ◽  
The Russian Federation ◽  
Legal Understanding

In this article, the author continues his series of publications devoted to the problems of evidence in pre-trial proceedings in a criminal case. The article considers one of the most controversial procedural ways to establish circumstances that are important for a criminal case – judicial examination. Draws attention to a serious procedural feature of an expert, reminding not so much the rights of participants of criminal proceedings considered in Chapter 8 (Criminal procedure code) of the Russian Federation, as the jurisdictional powers of the bodies of preliminary investigation and trial. The author believes that the opportunity given to the expert to assess the actual quality of the research objects and their total adequacy to formulate certain conclusions compare him to a scientific judge. The author examines in detail the reasons that encouraged the scientists to abandon the idea of an expert as a scientific judge, and comes to the conclusion that they are wrong and farfetched. This allows us to think about changes in the doctrinal and legislative approaches to the role of an expert as a subject of evidence in criminal proceedings, namely, the prospects for granting him the authority to establish certain factual circumstances through the use of special knowledge. At the same time, attention is drawn to the fact that the proposed innovations will inevitably require undamentally different approaches to the training of judicial experts, to their training and education as highly professional subjects with an appro-priate level of legal awareness, legal understanding and responsibility for the results of research and conclusions.

On the Role of the Prosecutor in Initiating a Criminal Case and Initiating Criminal Prosecution

Lex Russica ◽  
2021 ◽  
pp. 85-94
Author(s):  
Т. Yu. Vilkova
Keyword(s):  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
The Subject ◽  
The Russian Federation ◽  
The Right ◽  
Special Competence ◽  
State Body

The paper shows that the consolidation of the functions of the prosecutor’s office of the Russian Federation at the constitutional level leads to the need to return to the question of the effectiveness and sufficiency of the prosecutor’s powers to independently initiate a criminal case, initiate criminal prosecution, and bring charges. The modern models of granting various subjects the authority to initiate and carry out criminal prosecution, to bring charges in criminal procedural comparative studies are identified and analyzed. They are: 1) a system of public prosecution, or a monocratic model, in which criminal prosecution is initiated exclusively by the decision of state bodies with appropriate special competence, primarily the prosecutor’s office (prosecutor’s monopoly); 2) an ex officio prosecution system, or a polycratic model, when the subject of criminal prosecution is any of the state bodies authorized to conduct proceedings in a case, there is no monopoly of one state body or official to initiate criminal prosecution; 3) a private prosecution system, when the subject of criminal prosecution is either the victim or his legal successors; 4) a “people’s” system charges, in which any private person has the right to initiate criminal prosecution, regardless of whether he is a victim or not. The conclusion is substantiated that Russia belongs to the states in which the polycratic ex officio model is combined with private prosecution in certain categories of cases, while, unlike most other states, the prosecutor is not among the officials authorized to initiate criminal proceedings and/or criminal prosecution. It is shown that the lack of powers of the prosecutor in pre-trial proceedings hinders the achievement of the purpose of criminal proceedings. It is concluded that it is necessary to return to the prosecutor the authority to initiate a criminal case independently.

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 A Criminal-Procedural Form: Essence, Problems, Trends and Prospects of Development

2020 ◽  
Vol 15 (9) ◽  
pp. 67-79
Author(s):  
S. B. Rossinskiy
Keyword(s):  
Preliminary Investigation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Public Interests ◽  
Procedural Understanding ◽  
The Public ◽  
The One ◽  
Definition Of ◽  
Further Development

The paper is devoted to the most general issues of theory and legislative regulation of the criminalprocedural form—the necessary attribute of proceedings in a criminal case. On the basis of a procedural understanding of the criminal-procedural form, distinguishing it from formalism as a negative phenomenon in law enforcement practice, the author concludes that the criminal-procedural form serves a high purpose predetermined by a set of legal guarantees ensuring the effectiveness and high quality of criminal case results. At the same time, the author considers the most important legal properties of the criminal-procedural form: unity, universality, obligatory nature. The author also analyzes related problems arising in lawmaking and in the activities of the preliminary investigation bodies, the prosecutor’s office, the court, the bar and other persons involved in criminal proceedings. The results of the study allowed the author to give his own definition of the criminal-procedural form, determine the main tendencies and outline the prospects for its further development in the context of finding a reasonable balance between the public interests of the society and the state, on the one hand, and the rights of an individual, on the other.

scholarly journals Necessity to Reject Pre-Trial Inquiry as a Procedural Form of Investigation

2020 ◽  
Vol 15 (9) ◽  
pp. 80-92
Author(s):  
O. A. Malysheva
Keyword(s):  
Preliminary Investigation ◽  
Legal Regulation ◽  
Judicial Reform ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Independent Form ◽  
The Russian Federation ◽  
The Right

A comparative legal analysis of procedural forms of inquiry and preliminary investigation leads to a conclusion about their similarity, as well as the similarity of procedural statuses of an investigator and interrogator (a person conducting an initial inquiry). This shows that the State distributes forces and resources in the field of criminal justice irrationally. At the same time, the existence of two similar forms of investigation does not lead to an improvement in the legality and quality of criminal cases investigation. On the contrary, this contributes in some cases to their deterioration (reasonable timing of proceedings in criminal cases, compensation of damage caused by crimes to victims), as confirmed by the data provided in the paper. The consolidation of similar procedural forms of investigation in the Code of Criminal Procedure of the Russian Federation proves that the national historical experience of the organization of investigation of crimes under the 1864 Charter of Criminal Proceedings is ignored. This means an unreasonable refusal to reform criminal proceedings, the necessity and directions of which were identified by the 1991 Concept of Judicial Reform of the RSFSR . The consequences are manifested in the narrowing of procedural guarantees of the right to protection of persons whose criminal cases are investigated in the form of an inquiry; in the forced violation of the rule of law by interrogators during investigation of criminal cases when initiating a criminal case on a non-obvious crime; in delaying proceedings in criminal cases initiated and investigated initially by interrogators and then for a number of reasons referred to investigators for further investigation, etc. These problems cannot be solved by constantly improving the legal regulation of the procedural form of inquiry. The written above testifies futility of the procedural form of inquiry, justifies the necessity of its elimination from the Russian criminal proceedings as an independent form of investigation.

scholarly journals ACCESS OF PARTICIPANTS OF CRIMINAL TRIAL TO MATERIALS OF CRIMINAL CASE IN A PRETRIAL PRODUCTION IN THE CONTEXT OF PROVIDING OF SECRET OF PRIVATE LIFE

2021 ◽  
Vol 31 (1) ◽  
pp. 148-152
Author(s):  
A.P. Lipinsky
Keyword(s):  
Criminal Liability ◽  
Preliminary Investigation ◽  
Private Life ◽  
Criminal Trial ◽  
Criminal Case ◽  
Right To Privacy ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
The Right To Privacy ◽  
The Right

The article points out the need to ensure the protection of the privacy of participants in criminal proceedings. The problems associated with the violation of the right to privacy in the course of investigative and procedural actions are identified. Conclusions are drawn about the need to ensure the privacy of not only participants in the criminal process (parties and other persons), but also other persons whose information is contained in the materials of the criminal case. The order regulating the warning of participants of investigative and other procedural actions about inadmissibility of disclosure of the data received in connection with participation in investigative and procedural actions is developed. The opinion on inadmissibility of acceptance of refusal of the signature fixing the fact of the warning of the person about criminal liability for disclosure of data of preliminary investigation is proved. A proposal was formulated to establish the participants and the procedure for familiarizing themselves with the materials of the pre-investigation check.

Questions of the effectiveness of the victim’s participation in the criminal proceedings of the Republic of Azerbaijan

2021 ◽  
Author(s):  
Jabir Khalilov ◽  
Nargiz Kafarova
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Speed Up ◽  
Legitimate Interests ◽  
The Republic ◽  
The Moment ◽  
The Right

This article discusses the criminal procedure status of the victim on the basis of the current legislation. A number of proposals are put forward to improve the legislation to ensure the effectiveness of the victim’s participation in the criminal process. The article analyzes a number of specific legal shortcomings that reflect the procedural situation of the victim, and indicates ways to solve them. At the same time, proposals are put forward for more effective protection of the legitimate interests of the victim both during the preliminary investigation and during the trial. For example, in order to speed up the participation of the victim in the criminal process, it is proposed to include a rule that from the moment of initiation of a criminal case, the issue of recognizing the person as a victim must be resolved within 10 days. The article then discusses the victim’s right to compensation, the right to mandatory familiarization with the materials of the criminal case, and the shortcomings of the norms that reflect the legal status of the victim as a participant in the prosecution.

scholarly journals DIFFERENCES IN THE IMPLEMENTATION OF THE GENERAL LEGAL MODEL FOR REVIEWING JUDICIAL ACTS IN CRIMINAL AND ARBITRATION, CIVIL AND ADMINISTRATIVE PROCEEDINGS

2020 ◽  
Vol 6 (4) ◽  
pp. 88-95
Author(s):  
A. R. Sharipova
Keyword(s):  
Comparative Analysis ◽  
System Analysis ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Legal Method ◽  
Analysis And Synthesis ◽  
Legal Model ◽  
Administrative Proceedings ◽  
The Right

The novelty of the article is determined by the comparative analysis of the institutions of appeal, cassation and supervisory review of cases in various branches of judicial law. The purpose of this analysis is to identify general trends in the regulation of the right of appeal, appeal of interim judicial acts, the terms of appeal, the procedure for consideration and powers of the court in verification instances, the grounds for revoking judicial acts in criminal, arbitration, civil and administrative proceedings. The task was to identify unjustified differences between similar rules of procedural branches and choose the best version of regulatory regulation. The article uses methods of system analysis and synthesis, comparative legal method. As a result of the study, the unified legal model of reviews for all procedural branches was confirmed, and shortcomings of its implementation in criminal proceedings were established. In conclusion, there is evidence that the identified shortcomings significantly reduce the overall quality of justice in criminal case reviews in comparison with their counterparts in other branches of law.

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