scholarly journals Conceptual problems of construction of the constitutional and legal model of adversarial proceedings of the criminal process of Ukraine

2020 ◽  
pp. 96-102
Author(s):  
Mariia Мarkush
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Competitive Model ◽  
Legal Model ◽  
Conceptual Problems ◽  
The Eu

The article is devoted to the conceptual problems of building a competitive model of the criminal process of Ukraine under thecurrent Criminal Procedure Code of Ukraine (the CPC of Ukraine).Scientific understanding of the constitutional and legal essence and functionality of the modern model of the criminal process ofUkraine can be essential only when its concept is unquestionably based on the provisions of the Constitution of Ukraine andinternational legal standards and is carried out in terms of constitutional principles: rule of law, independence of court, right toprotection. as well as the principles of adversarial and other principles of justice. In the context of reforming the legal system of Ukrainein the European integration process, there is a convergence of the domestic legal system with the EU legal system, so the relevance ofthe study of the conceptual framework of the criminal process of Ukraine on the basis of international human rights law objectivelyincreases.The Association of Ukraine to the EU necessitated the adoption of a number of legal principles, first of all the rule of law andadversarial principles, through international law, and not exclusively through national prism, because their modern understanding isgreatly influenced by such judgemental factors as: 1) codification of international law and its progressive development; 2) compliancewith the international legal obligations of Ukraine as a subject of international law in the field of human rights protection, arising fromboth international treaties and customary international law; 3) the responsibility of Ukraine as a subject of international law for theimplementation of international obligations. The article analyzes the national experience of legal regulation of adversarial proceedings in criminal proceedings, explores va -rious scientific approaches to this problem and concludes on the actual inequality of the parties in criminal proceedings, as well asdefines the legislative model of the criminal process in Ukraine. The analysis of international legal acts, provisions of the Constitutionof Ukraine, CPC of Ukraine and positions of procedural scholars given in the article gives grounds to state that the tendencies of deve -lopment of criminal procedure legislation of Ukraine bring the criminal process of Ukraine closer to the public-competitive model withAnglo-Saxon elements on an international and constitutional conceptual basis.The conceptual foundations of the modern criminal process of Ukraine are a system of theoretical, legal and praxeological provisionsof general nature, enshrined in the provisions of international legal documents that define international standards in the field ofhuman rights and the Constitution of Ukraine, which directly affect the content and model of domestic criminal process. The basic basisof the concept of the criminal process of Ukraine is the Constitution of Ukraine, which determines the basis and form of any legal phenomenonin the state. Despite the fact that the concept primarily reflects the theoretical foundations, basic principles and prerequisitesof a particular activity, it forms the basic concepts, schemes and forms according to which this activity is implemented. Thus, changingthe conceptual basis of criminal procedure is its most radical reform, as it leads to the need to abandon previously substantiated postulatesand standards of thinking and action, to change the basic concepts that ensure a holistic perception of the system of this activity,and therefore should be based on Constitution of Ukraine, which will build a constitutional and legal model of adversarial criminal proceedingsin Ukraine.

scholarly journals CONCEPTUAL ASPECTS OF THE FORMATION OF THE LEGAL MODEL OF SUSTAINABLE DEVELOPMENT OF UKRAINE

2021 ◽  
pp. 3-17
Author(s):  
V.A. Ustymenko ◽  
◽  
R.A. Dzhabrailov ◽  
V.K. Malolitneva ◽  
T.S. Hudima ◽  
...  
Keyword(s):  
Sustainable Development ◽  
Rule Of Law ◽  
Legal System ◽  
Legal Regulation ◽  
The State ◽  
Specific Content ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Legal Model ◽  
The Eu

It has been found that the methodological principles of building a legal model of sustainable development of Ukraine remain imperfect. In this regard, it is argued that the basis of the legal model, first of all, shall be assigned general and sectoral legal principles that will create the theoretical base of normative activity. In particular, it has to be that the Rule of Law principle has a particularly specific content and acquires signs of a particular legal instrument in the process of law-making and law enforcement. Accordingly, the use of the Rule of Law principle in the process of assessing the efficiency of legal norms is proposed, which will talk about promoting the legal act of the ideology of justice. It is necessary to unacceptable laying into the legal model of sustainable development of the false concept of legal regulation of economic relations, which provides for the exclusion from the legal system of the state of certain branches of legislation, in particular economic legislation. It is substantiated that the Economic Code of Ukraine is the basis for achieving the goals of sustainable development on the economic component and synergistic associated with other acts of Ukrainian legislation in the environmental and social spheres. In this regard, it is argued that the effectiveness of the legal model of sustainable development will be significantly higher, subject to preservation in the legal system of the Economic Code of Ukraine, which will additionally testify to compliance with the Rule of Law principle. It is emphasized that in the light of the adaptation of Ukrainian legislation, including economic, to the EU Law and the signing of the Association Agreement between Ukraine and the EU, the influence of international legal norms on the state and directions of development of individual institutions of Economic law, which contributes to the universalization of the legal model of the steady the state's development.

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.

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 O rozgraniczaniu statutów i wsysaniu regulacji prawnej (na przykładzie prawa stosowanego do oceny różnych aspektów powołania i funkcjonowania wykonawcy testamentu i zarządcy sukcesyjnego przedsiębiorstwem)

2020 ◽  
pp. 159-177
Author(s):  
Maksymilian Pazdan
Keyword(s):  
International Law ◽  
Legal System ◽  
Private International Law ◽  
Legal Basis ◽  
Legal Rules ◽  
Eu Regulation ◽  
The Will ◽  
The Law ◽  
The Eu

The position of the executor of the will is governed by the law applicable to succession (Article 23(2)(f) of the EU Regulation 650/2012), while the position of the succession administrator of the estate of a business of a physical person located in Poland is subject to the Law of 5 July 2018 on the succession administration of the business of a physical person (the legal basis for such solution is in Article 30 of the EU Regulation 650/2012). However, if the court needs to determine the law applicable to certain aspects of appointing or functioning of these institutions, which have a nature of partial or preliminary questions, these laws will apply, as determined in line with the methods elaborated to deal with partial and preliminary questions in private international law. The rules devoted to the executors of wills are usually not self-standing. In such situations, the legislators most often call for supportive application of the rules designed for other matters existing in the same legal system (here — of the legis successionis). This is referred to as the absorption of the legal rules.

scholarly journals TAKING INTO CUSTODY IN THE CRIMINAL PROCESS OF THE REPUBLIC OF BELARUS: IMPROVING REGULATIONS AND ISSUES OF PROOF (COMPARATIVE LEGAL ANALYSIS)

2020 ◽  
Vol 73 (4) ◽  
pp. 156-162
Author(s):  
Andriy Samko ◽  
◽  
Dmуtrо Pilipenko ◽  
Keyword(s):  
Civil Rights ◽  
International Law ◽  
Preventive Measure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Theoretical Concepts ◽  
The Republic ◽  
The Right ◽  
Practical Feasibility

The article analyzes the peculiarities of applying a measure of procedural coercion in the form of detention in the criminal procedural legislation of the Republic of Belarus, as well as in the criminal process of Ukraine and the Republic of Kazakhstan. The positions of scientists in the field of criminal procedure, who conducted research on this issue, are analyzed. The key positions of the proceduralists regarding the basic regulatory aspects of the application of a preventive measure in the form of detention are considered. Attention is focused on the fundamental provisions of the functioning of the system of procedural compulsion and the application of a preventive measure in the form of detention in custody in particular. The analysis of the positions of the legislators of the Republic of Belarus, the Republic of Kazakhstan and Ukraine regarding the issue of normative regulation of the procedure for applying a measure of procedural coercion in the form of detention is carried out. The authors of the article emphasize the key aspect of the preventive measure in the form of detention in the form of its extraordinary impact on the observance of human and civil rights and freedoms in criminal proceedings. This circumstance is especially relevant in respect of the right of participants in criminal proceedings to freedom and personal inviolability. In this regard, theoretical concepts are considered and the content of international law on this issue is analyzed. The practical feasibility and normative possibility of using other, more humane methods of influencing suspects accused in criminal proceedings are analyzed. The article focuses on the normative procedure for the application of bail as an alternative procedural measure of isolating a person during detention in the legislation of the above states. The article analyzes the procedural features of the normative regulation of the use of pledge in the legislation of Ukraine and the Republic of Kazakhstan. The author's position on these issues, as well as proposals for optimizing the criminal procedural legislation of the Republic of Belarus regarding the regulation of the use of detention are formulated.

scholarly journals TOPICAL ASPECTS OF DCFTA IMPLEMENTATION IN THE JUDICIAL PROCEEDINGS

2021 ◽  
Vol 7 (1) ◽  
pp. 127-133
Author(s):  
Mariia Sirotkina ◽  
Olena Lomakina ◽  
Olena Shkarnega
Keyword(s):  
European Union ◽  
Criminal Procedure ◽  
The European Union ◽  
Criminal Proceedings ◽  
Association Agreement ◽  
Rules And Principles ◽  
Judicial Proceedings ◽  
European Standards ◽  
Rule Making ◽  
The Eu

The Association Agreement between the European Union and Ukraine is a new format of relations aimed at creating a deep and comprehensive free trade area (DCFTA) between Ukraine and the EU with the gradual integration of Ukraine into the internal market of the European Union. Focusing on the experience of rule-making of the EU member states, it is necessary to define and implement the legal rules and principles of the national judiciary, taking into account the rules and principles of European law (Chornomaz, 2016). In accordance with the strategy of European integration of our country, the adaptation of Ukrainian legislation is to approximate it with the modern European legal system, which will ensure the development of the political, entrepreneurial, social, cultural activity of Ukrainian citizens, economic development of the state within the EU to facilitate the increase of standards of living of the population. The implementation of the provisions of European legislation provided by the economic part of the Association Agreement (AA) is extremely important in the context of reforms, as the provisions can and should serve as a basis for a new model of socio-economic development of Ukraine. The deepening of the processes of humanization and democratization of Ukrainian society, the gradual introduction of principles and rules of European law into the national judiciary through reforms in the field of justice, inter alia, have led to qualitative updating of criminal procedure legislation of Ukraine, in particular: use of differentiated approach to legal conflicts between persons who have committed criminal offences, which do not pose a great public danger, and victims; simplification and reduction of the procedure of criminal proceedings; ensuring procedural savings; reduction of the caseload; allowing the parties of the conflict to resolve issues of exemption from criminal liability in case of reconciliation between the offender and the victim independently, the appointment of the negotiated punishment and release from serving with probation, etc. Given the specifics of the approach to improving relations with neighbouring countries on a differentiated basis, the EU seeks to identify and base on existing positive sources of sustainability, as well as to monitor and respond to weaknesses with the appropriate set of methods and resources at its disposal. The purpose of the article is to study a theoretical and practical definition of challenges of adaptation of Ukrainian legislation to the legislation of the European Union, institutional and organizational mechanisms of DCFTA implementation in the field of justice and certain norms of the current criminal procedure legislation. Ukraine is undergoing the second phase of radical reform of government structures; it has been continuing for 15 years but, unlike other countries, it is much more difficult for Ukraine to get rid of the burden of past problems. Judicial reform is also underway and domestic legislation is being significantly changed, including the transformation of the judicial proceedings. The topical issue of the development of judicial reforms is an imperfection, and sometimes a contradiction of regulations, which negatively affects the process of realization of rights and responsibilities of all subjects of public relations, slows down the development of Ukraine as a state governed by the rule of law. However, the introduction of institutions of concluding agreements, simplified proceedings, probation, and later mediation, into the criminal procedure legislation of Ukraine indicates the readiness of our state to change the concept of criminal procedure in accordance with the European standards, which will improve the situation of all parties to criminal proceedings. However, they need further completion and improvement. We are convinced that the introduction of such institutions will contribute to the legal development of society to achieve the European standards of restorative justice, which will encourage the further introduction of the latter in the legislation of Ukraine, resolving criminal conflicts by reaching a compromise between parties in cases specified by law. One of the ways to solve this problem in Ukraine is to regulate the process of adoption of regulations by the subjects of rule-making and taking into account the provision that legality as an objective property of law, in general, is the necessary condition and the main principle of the rule-making process.

scholarly journals Peculiarities of implementation of the principle of legality in the criminal process of Ukraine

2021 ◽  
Vol 1 (1) ◽  
pp. 253-257
Author(s):  
Oleksiy Skryabin ◽  
Dmytro Sanakoiev
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Limiting Factor ◽  
Criminal Proceedings ◽  
Legal Regime ◽  
Criminal Process ◽  
Procedural Law ◽  
Judicial Proceedings ◽  
Principle Of Legality ◽  
Discretionary Powers

The article analyzes the principles of criminal procedure, which are the expression of the prevailing political and legal ideas of the state, relate to the tasks and methods of judicial proceedings in criminal proceedings, are enshrined in law and operate throughout all stages and necessarily in its central stage. Modern theoretical ideas about the system of principles of criminal proceedings are still in the stage of active methodological and ideological rethinking. Discussions continue both on the concept and features of the principles of criminal proceedings, their system, and on the peculiarities of implementation at different stages of the criminal process. Violation of the principles of criminal procedure is a sign of illegality of decisions in the criminal and becomes the basis for the cancellation of these decisions. The principle of legality characterizes the legal regime of strict and mandatory observance of laws in law enforcement practice, which manifests itself in criminal proceedings, limits the discretionary powers of the pre-trial investigation, prosecutor's office and court. The principle of legality becomes an opportunity to transfer criminal proceedings from one procedural stage to another only on the basis of the law and in a strictly defined sequence. Legality is one of the guarantees of establishing the truth in a criminal case, which ensures the protection of human and civil rights and freedoms. The principle of legality is characterized by mandatory observance of laws in criminal proceedings, is a limiting factor in the discretion of the pre-trial investigation, prosecution and court. Due to the implementation of the principle of legality, the shortcomings and gaps in the criminal process that exist in criminal procedural law can be overcome.

An International Rule of Law

2021 ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Rule Based ◽  
The Rule Of Law ◽  
Globalizing World ◽  
International Legal System ◽  
Elusive Concept ◽  
International Rule ◽  
Selection Of

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.

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.

REVIEW ON THE MONOGRAPH OF OLEKSANDR TORBAS �DISCRETION IN THE CRIMINAL PROCESS OF UKRAINE: THEORETICAL JUSTIFICATION AND PRACTICE OF IMPLEMENTATION�

2020 ◽  
Vol 10 (4) ◽  
pp. 147-150
Author(s):  
Iryna Hloviuk ◽  
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
Criminal Process ◽  
Procedural Law ◽  
Current Period ◽  
Legitimate Interests

Current period of development of the legal system of Ukraine is characterized by variability of legislation that regulates, in particular, organization of judicial system and implementation of criminal proceedings. Unfortunately, criminal procedure legislation is no exception, given how many changes and additions have been made to the Criminal Procedure Code of Ukraine since its entry into force in 2020. Undoubtedly, like any other codified legal act, CPC of Ukraine in modern conditions cannot be unchanged, given the dynamics of public relations, the provisions of international law, decisions of ECtHR and number of attempts to solve identified problems of its application. Difficulties of criminal procedural law enforcement are manifested in such an area as the use of discretion of authorities in criminal proceedings, although without it application of legislation is ineffective. At the same time, lawful discretion in criminal proceedings should not turn into its opposite � arbitrariness, which will already violate rights and legitimate interests of individuals and legal entities. In criminal proceedings, given the imperative method of legal regulation and possibility of various coercive measures, including those related to the restriction of constitutional human rights, this issue is of particular importance, given, inter alia, that prosecution�s discretion applies within non-adversarial procedure, and the CPC of Ukraine does not always provide for the possibility of appealing such decisions in court. The peer-reviewed monograph consists of four chapters, which contain 10 sections. Structuring of the monograph is logical; the author analyse problems of discretion from questions of concept, signs and limits of discretion, and then moves to the characteristic of realization of discretion by judge, prosecutor, investigator, detective. In general, without a doubt, the monograph of Torbas O. O. �Discretion in the criminal process of Ukraine: theoretical justification and practice of implementation� is relevant, complete and fundamental scientific work, has scientific and practical value. Monograph of Torbas O.O. significantly enriches criminal procedure doctrine regarding the subjects of criminal proceedings, criminal procedure decisions and other areas.

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