scholarly journals Components of the factual basis to be proved for the decision on state protection of participants in criminal proceedings

2021 ◽  
Vol 2021 (4) ◽  
pp. 113-117
Author(s):  
Dmitry Sokolov ◽  
Aleksey Afanas'ev
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
The Law ◽  
Protection Of Participants ◽  
State Protection

The article proposes the author’s scheme for establishing the actual grounds for deciding on the state protection of participants in the criminal process. The content of this scheme consists in transferring the rules of criminal procedure evidence to the procedure under analysis. The authors implement this by supplementing the law of criminal procedure with a group of articles, one of which is devoted to the circumstances to be proved (established) for the application of the procedure of state protection of participants in criminal proceedings. Thus, the work justifies the need to establish the components of the actual basis of state protection by means of criminal procedure evidence.

scholarly journals ON THE APPOINTMENT OF THE MODERN RUSSIAN CRIMINAL PROCESS

2021 ◽  
Vol 31 (2) ◽  
pp. 271-276
Author(s):  
O.A. Maksimov
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
The State ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Proceedings ◽  
The Subject ◽  
State Protection ◽  
Modern Russian

The article examines the purpose of the modern Russian criminal procedure as a way of implementing the constitutionally defined tasks of the state. With a variety of approaches to defining the subject of research, one can single out two interrelated, but also mutually exclusive ideas that underlie the understanding of the purpose of criminal proceedings - for the implementation of criminal law (combating crime, organizing criminal prosecution) or for protecting the rights and freedoms of persons involved in criminal proceedings. legal proceedings. The prevalence of one of them depends on the type of process, while they cannot exist on equal terms due to the opposite methods of implementation in a particular criminal proceeding. With the priority of one of the ideas, the entire criminal process is built according to the type of designated purpose, and the second idea is one of the means of achieving it. The purpose of the criminal procedure follows from the main tasks of the state. It is concluded that in connection with the clearly established in the Constitution the basic values subject to state protection, the only purpose of the modern Russian criminal procedure is to protect human rights and freedoms, regardless of his procedural status in criminal proceedings.

DEFINITIONS OF CATEGORIES PURPOSE AND TASKS OF CRIMINAL PROCEEDINGS IN THE MODERN CRIMINAL PROCESS

2018 ◽  
Author(s):  
Svitlana Patiuк ◽  
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Modern Theory ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Norms ◽  
State Changes ◽  
The Individual ◽  
Goals And Objectives ◽  
Functional Purpose

"Definitions of categories, the goal and objectives of criminal proceedings in modern criminal proceedings" analysed the legal norms and provisions of doctrinal concepts to determine the goals and objectives of criminal proceedings. The author formulated conclusions and generalizations that since criminal proceedings are a sphere of state activity, it depends on the direction of the political course of the state, changes in state policy, which always leads to a change in the ideology of the criminal process as a whole, including the transformation of goals and objectives criminal proceedings. The purpose and objectives of criminal proceedings depend on the historical form of the criminal process, a common feature of which is the ratio of freedom (interests) of the individual and the state, expressed in the procedural position of the main participants in the process. Criminal procedure legislation and doctrine define the resolution of a dispute (conflict) between the state and the accused arising as a result of the commission of a crime as the goal of the criminal process in most countries in which the adversarial nature of criminal proceedings prevails. As the goal of criminal proceedings in the modern theory of criminal procedure, it is proposed to consider the protection of the individual, society and the state from criminal offences in the settlement of criminal-legal conflicts arising as a result of these offences. The goal in the criminal process determines the setting of tasks and represents the ultimate conclusion from the sum of all the tasks being implemented. The task of criminal proceedings should be determined taking into account the functional purpose of the subjects of criminal proceedings, and therefore the task is the fulfilment of his duty by a participant in criminal proceedings, which is determined by his functional purpose, based on the principle of competition of the parties.

scholarly journals PERANAN ALAT BUKTI DALAM PERKARA PIDANA DALAM PUTUSAN HAKIM MENURUT KUHAP

Yuridika ◽  
2017 ◽  
Vol 32 (1) ◽  
pp. 17
Author(s):  
Bastianto Nugroho
Keyword(s):  
Law Enforcement ◽  
Criminal Procedure ◽  
Law Enforcement Officers ◽  
The State ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Examination Process

The trial of a criminal case is to find out whether a criminal offense has occurred in an event, therefore in the most important criminal proceedings the proceedings are proved. Evidence is a problem that plays a role in the examination process in court because with this proof is determined the fate of a defendant. The legal function in the State of Indonesia is to regulate the order of society in the life of the nation and the state, whereas the violation of the law itself is an event that must exist in every society and is impossible to be eliminated absolutely, because violation of law is an integral part of development More complex. One of the provisions governing how the law enforcement officers carry out the task in the field of repressive is the criminal procedure law which has the purpose of searching and approaching material truth, the complete truth of a criminal case by applying the provisions of criminal procedure law honestly darn precisely with The purpose of finding out who the perpetrator can be charged with is a violation of the law. 

State Protection and Safety of Participants in Russian Criminal Proceedings

2016 ◽  
Vol 8 (1) ◽  
pp. 283-291 ◽  
Author(s):  
Oleg Aleksandrovich Zaytsev ◽  
Aleksandr Jurevich Yepihin
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Implementation Process ◽  
The State ◽  
Criminal Proceedings ◽  
Protection Measures ◽  
Adequate Funding ◽  
The Individual ◽  
Protection Of Participants ◽  
State Protection

International law is a powerful generator of factors for the creation of criminal procedure security system. However, the mechanism of implementation of international law in national, Russian legislation causes certain difficulties. The problem is the imperfection of regulating the implementation process of international law within a particular state. The institute of public protection and safety of participants in the Russian criminal proceedings is now sufficiently developed. However, it is no longer possible to investigate effectively the problems in law enforcement within the same branch of jurisprudence, such as criminal proceedings. It is absolutely necessary to obtain knowledge from related areas of law, as well as from other disciplines (e.g., psychology, conflict resolution). Also positive examples of implementation of the state protection and ensure the safety of persons, used by some foreign countries are highly required in the Russian legislation and law enforcement practice. At present, the accumulation of a sufficient number of laws and legal acts can be observed which regulate the state protection of participants of the Russian criminal process. Improved security of the individual in criminal proceedings is directly related to the cross-sectoral research; generalization of positive examples of law enforcement practices; sufficient methodological support for law enforcers (investigators, prosecutors and judges); adequate funding of state protection measures.

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 Goals and Tasks (Purpose) of Criminal Proceedings

2020 ◽  
Vol 17 (3) ◽  
pp. 386-393
Author(s):  
Kirill Naumov
Keyword(s):  
Law Enforcement ◽  
Goal Setting ◽  
Russian Federation ◽  
Criminal Procedure ◽  
The State ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Structure ◽  
Procedure Code ◽  
The Russian Federation

The relevance of the problem covered is explained by the essence of goal-setting of any activity, which determines its final result and procedural structure. The direction of actions of state bodies in responding to crimes depends on it, as well as the arsenal of means provided for this to the law enforcement officer. The Criminal Procedure Code of the Russian Federation does not have a norm directly formulating the goal and objectives of criminal judicial proceedings. The legislator has applied such a non-standard category as “purpose”, which replaced the customary provisions that existed for more than 40 years on the tasks of criminal proceedings, enshrined in the previously existing code. Since the procedural law does not name the goals and objectives of the criminal process, the analysis of the target settings of modern criminal justice, the essence of the categories “purpose”, “goal”, “task”, their correlation and meaning is of particular importance. The Author analyzes the points of view of the processors of the pre-revolutionary and modern periods. The conclusion about the differentiation of the given concepts is made. Unlike the views of most scholars, the Author believes that purpose and goal are identical concepts, since they determine the final result of procedural activities. The goal is seen as the end result of the activity, and the task is determined by the goal and is considered as the result of its separate stage. Therefore, the Author conditionally correlates these categories as general (goal) and particular (task). There can be many tasks, and they are subject to changes under certain conditions, and the goal is always the same. The goal of any criminal process is determined by the need to streamline the dispute between the parties arising from the crime committed. The absence of clearly formulated elements of goal-setting prevents the assessment of the effectiveness of activities to resolve a criminal-legal conflict. The flaws in the legal structure of teleological norms of the current Criminal Procedure Code of the Russian Federation are noted. On the basis of a comparison of the views of procedural scholars, analysis of regulatory legal acts, the author came to the conclusion that the result of the criminal process should be the protection of the rights and legitimate interests of individuals, organizations, society and the state from criminal encroachments; protection of the individual from illegal and unjustified accusations, convictions, restrictions on his rights and freedoms. The tasks, despite their uncertainty from the point of view of legal regulation, constitute an established formula: quick and complete disclosure of a crime, the appointment of a just punishment to the guilty, education and prevention. The Author believes that the current structure of norms on the appointment of criminal proceedings does not reflect the absolute need to protect the interests of society and the state, and also does not define specific tasks as a guideline for the law enforcement officer to fulfill them in each criminal case in order to achieve this goal. Therefore, we propose our own legal structure of the norm on the tasks of legal proceedings, complementing the current provisions.

scholarly journals Problematic issues of judicial control in the criminal process of Ukraine

2021 ◽  
pp. 284-287
Author(s):  
Y. Voitovych
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Control ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
The Law ◽  
Definition Of

The article considers the peculiarities of the legislative regulation of the institution of judicial control in the criminal process of Ukraine. The authors who paid attention to the research of this institute of criminal procedural legislation, the purpose of the research are determined. In particular, as a result, the definition of judicial control as an independent institution of procedural law has been clarified, taking into account both recent changes in procedural legislation and taking into account current changes. It is pointed out the imperfection of certain terms of the procedural law, which, among other things, affect the content of the institution of judicial control. The inconsistency of the content of the Criminal Procedure Code of Ukraine with the principles that preceded its adoption was emphasized. A gap in the procedural law has been identified, which consists in the lack of regulation of the actions of officials of the prosecution in the event of a court decision such as returning the indictment to the prosecutor as not meeting the requirements of the law. A comparative analysis of the criminal procedural norms that regulated the institution of additional investigation during the CPC of the USSR, with the rules that give the court the right to return the indictment to the prosecutor as one that does not meet the requirements of the law. The procedural powers of the investigating judge outside the stage of pre-trial investigation in criminal proceedings have been defined, and their inadequacy to restore the constitutional rights of a person, which could potentially be violated, has been criticized. The constitutional prescriptions that define human and civil rights are analyzed, their implementation is assessed in terms of the problem covered; It is concluded that the requirements of the Criminal Procedure Law do not comply with the Constitution of Ukraine, in particular, attention is focused on the possibility of restricting the constitutional rights of a person in the absence of an effective mechanism for their renewal. The conclusion was made on the basis of the analysis of constitutional norms and doctrine of law with regard to the definition of justice. Certain provisions of the law have been criticized, and suggestions for their improvement have been made. As a result, it is proposed to define judicial control as a direct verification by an investigating judge of the legality and validity of decisions, actions or omissions of the prosecution and other state bodies in criminal proceedings.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

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.

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