scholarly journals The institution of suspicion and the initial stage of the criminal process: interrelated prospects of development

2021 ◽  
Vol 2021 (4) ◽  
pp. 121-131
Author(s):  
Ol'ga Polikarpova
Keyword(s):  
Criminal Procedure ◽  
Radical Change ◽  
Criminal Case ◽  
Initial Moment ◽  
Criminal Prosecution ◽  
Constitutional Rights ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Initial Stage

The article considers the question of the interdependence of the improvement of the institution of suspicion and the transformation of the initial stage of the Russian criminal process. The article highlights the problem of the legislative limitation of the period of the procedural status of a person as a suspect in the event of a criminal case being initiated not against him, but upon the commission of a crime and insufficient evidence of the involvement/non-involvement of such a person in a criminal offence committed at the initial stage of the investigation, which often does not allow avoiding unreasonable restrictions on the constitutional rights and freedoms of this participant in criminal proceedings. The relevant experience of some post-Soviet states that followed the path of a radical change in the criminal procedure model after the collapse of the USSR is analysed. The article compares the provisions of the criminal procedure legislation of the Russian Federation and the Kyrgyz Republic directly related to the institution of suspicion, including the moment of triggering criminal prosecution and the duration of a suspect’s keeping the specified procedural status. The arguments given in the article substantiate the need to reform the initial moment of the emergence of the procedural status of a suspect in Russian criminal proceedings and the associated expediency of abolishing the stage of initiation of a criminal case in order to increase the guarantee of the rights and legitimate interests of the person introduced into the procedural status we are analysing.

THE IDEA OF COMPROMISE IN THE RUSSIAN CRIMINAL PROCESS AS A MEANING OF COURT ACTIVITY OF CRIME

2021 ◽  
pp. 48-59
Author(s):  
Alexander G. Markelov ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Final Decision ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
The Individual

The article proposes an original approach that explains the obvious ideological nature of the use of compromise technologies on certain alternative procedures of the Russian criminal process and is considered as an applied tool for combating crime. Such proposals occur against the background of an obvious trend of humanization of punishment and exemption from criminal responsibility of certain categories of persons. The author claims justifiably that new prospectiveand at the same time conflict-free (compromise) forms of criminal procedure for the rapid resolution of criminal cases have been created in the Russian criminal process.At the same time, the author believes that one of the most important advantages of the use of compromise technologies, provided that there are no aggravating circumstances, is the ability to resolve the criminal-law conflict between the parties concerned quickly and create a favorable environment of reciprocity and understanding. The author believes that the idea of compromise as a certain measure of combating crime has already been implemented in modern procedural algorithms for resolving criminal cases through reduced criminal proceedings in the form of an inquiry, specific (compromise) proce-dures in the form of: the court making a final decision on a criminal case with the consent of the accused with the charge brought by the investigating authorities; the court making a final decision on a criminal case when concluding a pre-trial agreement on cooperation (a deal with justice); proceedings in a criminal case on the appointment of criminal-law measures in the form of a court fine when a person is exempt from criminal liability; a termination of the criminal case and criminal prosecution against the suspect or accused in conjunction with the reconciliation of the parties, a termination of criminal prosecution against the suspect or accused in conjunction with active repentance, a termination of criminal prosecution against the suspect or accused in cases of crimes in the field of economic activity, the election of certain preventive measures and the conduct of the individual investigative actions under the individual compromise circumstances. The author believes that the construction of a legal model of criminal procedure compro-mise as a measure to counter modern crime will contribute to the optimization of the Russian criminal proceedings in the interests of the individual, society and the state as a whole. The work proposes the justification of a new scientific direction - the criminal procedure concept of using compromise - and the prospects for its application in scientific research and practical activities to counter modern crime.

Execution of a Sentence in the Structure of Criminal Proceedings: Procedural Stage or Special Court Proceedings?

2020 ◽  
Vol 1 ◽  
pp. 97-106
Author(s):  
V. V. Nikolyuk ◽  
◽  
L. A. Pupysheva ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Self In Relation ◽  
The Supreme Court ◽  
Court Proceedings

The article analyzes the concept of execution of a sentence as an independent stage of the criminal process (the stage of criminal proceedings). Arguments are given that point to its certain illogicality and inconsistency. The authors on the basis of existing legislation and taking into account the positions of Plenum of the Supreme Court additionally reasoned and substantiated the thesis of the existence of the criminal process self in relation to a criminal case of criminal procedure, regulated by Chapter 47 of the Code of criminal procedure.

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 The subject of judicial control in consideration of complaints: controversial issues of legal regulation

2021 ◽  
Vol 2021 (2) ◽  
pp. 104-109
Author(s):  
El'vira Mirgorodskaya
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation

The purpose of this study was an attempt to theoretically understand the subject of judicial consideration of complaints against decisions, actions (inaction) of officials carrying out criminal prosecution. The research was carried out on the basis of comparative legal, formal logical, empirical, statistical methods. Judicial statistics for the year 2020 have been provided, and legislation has been studied from a historical and contemporary perspective, taking into account the practice of the Constitutional Court of the Russian Federation. The problem is that, in practice, for about 20 years the courts have had difficulties in determining the subject of complaints, since neither in theory nor in practice a consensus has been developed on this issue. The Criminal Procedure Code of the Russian Federation also does not contain a definition of the concept of «subject matter». The situation is aggravated by the presence of evaluative concepts in the text of the law, leading to a varied understanding of the subject of appeal by the courts, which leads to a violation of the constitutional rights of citizens at the pre-trial stages of criminal proceedings. In the article, taking into account the analysis of the practice of the Constitutional Court of the Russian Federation, legislation and the opinion of scientists, a recommendation was made to amend the Criminal Procedure Code of the Russian Federation to specify the subject of consideration of complaints in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation in order to eliminate existing contradictions in practice and increase the level of protection of individual rights in pre-trial proceedings.

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.

The Oxford Handbook of Criminal Process

2019 ◽  
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
European Convention ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court

This handbook examines various aspects of the criminal process, including the role of prosecutors in common law and civil law jurisdictions, the rights and duties of experts, victim rights in civil law jurisdictions, surveillance and investigation, criminal prosecution and its alternatives, evidence discovery and disclosure in common law systems, evidence law as forensic science, common law plea bargaining, appeals and post-conviction review, and procedure in international tribunals. The book is organized into eight parts covering topics ranging from criminal process in the dual penal state to interrogation law and practice in common law jurisdictions, empirical and comparative approaches to criminal procedure, prosecution-led investigations and measures of procedural coercion in the field of corruption, international corporate prosecutions, special procedures for white-collar and corporate wrongdoing in Europe, and trial procedure in response to terrorism. Also discussed are the roles of the European Convention on Human Rights and the European Court of Human Rights as guardians of fair criminal proceedings in Europe, double jeopardy or ne bis in idem in common law and civil law jurisdictions, plea bargaining vs. abbreviated trial procedures, restorative justice as an alternative to penal sanctions, and the pluralistic nature of international criminal procedure.

scholarly journals Court Discretion as Part of the Criminal Procedure Paradigm Structure

Legal Concept ◽  
2019 ◽  
pp. 166-173
Author(s):  
Ekaterina Azarova
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Fundamental Rights ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Law ◽  
Goals And Objectives

Introduction: the fundamental rights of citizens enshrined in the Constitution are accordingly reflected in the Code of Criminal Procedure of the Russian Federation. For more than fifteen years of the Code of Criminal Procedure application, the legislator has made about three hundred amendments that have increased its ambiguity and inconsistency. The very construct of its provisions is being built and in progress without a planned scientific and theoretical component of such building, without taking into account the empiricism of application. The Code of Criminal Procedure of the RSFSR was used as a constructive basis for the new law, where the stages of criminal process are the fundamental structure of the law. The presence and introduction of new types of judicial proceedings and related institutions as an additional “load” caused the “deflection” of the entire structure of the Criminal Procedure Code, the consequence of which was the increase of unceasing contradictions between the goals and objectives of criminal proceedings, its general conceptual provisions and the criminal process immediate stages. The author sets the purpose of the study, which consists in the justification of contradictions in the law. Methods: the methodological framework consists of the methods of historicism, systematicity, and comparative law. Results: grounded in the work the author’s point of view is based on the knowledge in criminal law. Conclusions: the study revealed that the court discretion is an integral part of the criminal procedure paradigm structure, as the perception by the court of the “truth” of the circumstances to be proved in a criminal case, interpreted by the opposite parties of the adversarial process, is only possible through the prism of assessing these circumstances by the court at its discretion, during the verification of evidence in a particular criminal case.

scholarly journals CRIMINALISTIC TASKS WHILE CRIMINAL PROCEDURE REFORMATION

2018 ◽  
Vol 18 ◽  
pp. 53-62
Author(s):  
A. F Volobuiev ◽  
M. V. Danshin
Keyword(s):  
Procedural Knowledge ◽  
Criminal Procedure ◽  
Radical Change ◽  
The Body ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Conceptual Approach ◽  
Legal Proceedings ◽  
Conceptual Changes ◽  
Definition Of

This article examines specifics trends of conceptual changes in the system of modern criminal proceedings regarding the use of criminalistic means and techniques as a cognitive tool in criminal procedure in Ukraine. Authors analyzed the reform impact of domestic criminal procedural legislation on definition of goals and objectives of criminalistics; in particular, the emphasis is on the significant expansion of competitiveness in pre-trial investigation and legal proceedings. Proposals of certain criminalists concerning allocation of separate subsystems of knowledge and recommendations directed at different subjects of criminal proceedings in modern criminalistics are analyzed. Characteristic of the conceptual approach of allocation Criminalistic Advocacy Studies is offered in Criminalistics. In this regard, types of advocacy activities in the context of solved tasks by means of сriminalistic knowledge are considered. It is noted that attorney while performing his professional duties – the protection of a person who is subject to criminal prosecution, or the implementation of the representation of the victim, really uses сriminalistic knowledge but for different purposes. In last case, the purpose and scope of the сriminalistic knowledge used by a lawyer actually coincide with the purpose and scope of knowledge of the body of pre-trial investigation. Activity of a lawyer regarding a representation office while the criminal proceedings of the victim's interests is illustrated investigation materials of anthropogenic disaster entailing loss of life. Against this background, a conclusion is drawn on the contradiction and uncertainty of the proposal regarding the formation of "criminalistic advocacy" as a subsystem of criminalistics. According to the performed analysis of an author's vision of modern integration of сriminalistic and criminal procedural knowledge is proposed. It is summarized that use of сriminalistic knowledge can be carried out by each participant in the criminal proceedings in the scoop he thinks fit to achieve his goal, but this does not give grounds for the division of criminalistics into specific subsystems depending on the used subjects. It is emphasized that in view of the radical change regarding domestic criminal procedure, nowadays some scientific norms and practical recommendations of criminalistics need to be reviewed or corrected.

scholarly journals DEPARTMENTAL MONITORING OR(AND) PROSECUTOR’S SUPERVISION FOR INVESTIGATION?

2020 ◽  
Vol 6 (72) (2) ◽  
pp. 292-300
Author(s):  
V. M. Togulev
Keyword(s):  
Criminal Procedure ◽  
Significant Part ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Investigations ◽  
The Past ◽  
The Right ◽  
Almost All

As a result of the 2007-2010 reform, the prosecutor’s office lost the right to initiate criminal investigations and independently investigate them, a significant part of the prosecutor’s authority to supervise the investigative activities of the investigator was transferred from the prosecutor to the head of the investigating authority. These changes have been mixed among practitioners and process scientists. The author considers it inappropriate to return to the prosecutor the right to initiate criminal proceedings, since the prosecutor will have to carry out the whole complex of procedural and investigative actions referred to in art. 144 Code of Criminal Procedure. There is no need to return to the prosecutor’s office and the investigative function, since the prosecutor’s office will become a body of criminal prosecution and supervision and investigation, which will affect the objectivity of its actions and will nullify all the reforms of the investigation carried out over the past 20 years. Nor should powers be transferred to the prosecutor, which as a result of the reform passed to the head of the investigative body. Almost all the powers of the head of the investigative body to implement departmental control over the procedural activities of the investigator to some extent also belong to the prosecutor using special methods of prosecutorial response. The specificity is that the head of the investigating authority uses both the methods of previous and subsequent control, and the prosecutor mainly uses the subsequent one. It is proposed to provide the prosecutor with only one additional authority in relation to the investigator: to give the prosecutor the right, when approving the indictment, to exclude certain points of the charge from it or to re-qualify the charge to a less serious one instead of returning the criminal case to the investigator for these purposes.

scholarly journals Forms of Prosecutor’s Work in Ruling of Criminal Case Termination (Criminal Prosecution)

2020 ◽  
pp. 088-096
Author(s):  
M. A. Lavnov ◽  
Keyword(s):  
International Research ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Research Experience ◽  
Criminal Proceedings ◽  
Criminal Procedure Law

Using the accumulated international research experience, as well as developments related to criminal procedure law branches, the article examines a number of issues related to the implementation of one of the forms of resolving a criminal legal conflict, namely, the criminal case termination (criminal prosecution). The problem is analyzed through the prism of the model of Prosecutor's work as the central subject of criminal prosecution, while protecting the legality and ensuring the rights of an individual in criminal proceedings. The lack of a unified concept and the lack of agreement on “reformative” transformations of criminal proceedings directly affect both the procedural status of the Prosecutor and all institutions of criminal procedure law. The research revealed the incomplete status of the Prosecutor and indicate the prospects for building an effective procedural model of Prosecutor's work in criminal proceedings.

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