scholarly journals Mechanisms of attaining the objectives of criminal procedure on preservation of victims’ rights, freedoms and legitimate interests and prevention of secondary victimization in pre-trial investigation

2021 ◽  
pp. 95-111
Author(s):  
Viktor Novozhylov
Keyword(s):  
Burden Of Proof ◽  
Criminal Procedure ◽  
Direct Result ◽  
Criminal Proceedings ◽  
Secondary Victimization ◽  
Victim Status ◽  
Procedural Code ◽  
Legitimate Interests ◽  
Legal Entitlement ◽  
Procedural Rights

The study is devoted to the issue of legal mechanism of attaining the objectives of criminal procedure on preservation of victims’ rights, freedoms and legitimate interests and prevention of secondary victimization in pre-trial proceedings (initiation of criminal proceedings and pre-trial investigation). This mechanism is composed of the procedure of legal entitlement of a harmed person with procedural status of victim, which provides the opportunity to participate sub actively in criminal process and to take advantages from corresponding legal guarantees in the process; the procedure for providing victims with a written acknowledgement of their formal complaint by criminal justice system officials that ensures that victim’s claim on the assumption that he or she has suffered some sort of harm as a direct result of criminal offense had been committed, is considered as true and simultaneously is examined by providing pre-trial investigation; ensuring that victims have been provided with the opportunity to receive preservation and protection of their violated procedural rights, in particular by providing access to challenge in court in pre-trial investigation processdecisions, actions or actions of investigator, inquirer, prosecutor or investigating judge. The author states that the Criminal Procedural Code of Ukraine prescribe that entitling of a harmed person with victim status is made through autodynamic procedure and that the Code purposely does not lie the burden of proof for attest suffered harm on the victim, which he or she proclaimed in a complaint. The common legal Presumption of Integrity and good faith of the person is embodied in mentioned legal provision and, as the author pointed out, have led to the obligation of competent officers to use an Anticipatory Trust Doctrine in resolving the issue of deprivation of the procedural status of the victim. The burden of proof for absence of harm is lied on investigator or prosecutor according to the author’s interpretation of Part 5 Art. 55 of the Criminal Procedural Code of Ukraine. The Code purposely does not provide the procedure for deprivation of the procedural status of victim in the stage of Trial too. Court order of investigating judge on the cancellation of the prosecutor's decision on deprivation of the procedural status of victim, ipso facto, entitling the complainant with victim status, as it restores the normative provision of first paragraph of Part 2 Art. 55 of the Criminal Procedural Code of Ukraine. The author analyzed nationwide statistic of court orders of investigating judge in two-last-years period and concluded that, on the one hand, the harmed persons often believe that their procedural rights are violated or ignored in pre-trial proceedings (at the initiation of criminal proceedings and in pre-trial investigation), which is leading to increased risks of secondary victimization; on the other hand, the rates of satisfaction of victims' complaints by the investigating judge are high, which proves the effectiveness of the institution of challenging in correcting mistakes that were committed earlier. Keywords: secondary victimization, objectives of criminal procedure, victim, harmed person, anticipatory trust doctrine, presumption of victims’ integrity, preservation of rights, freedoms and legitimate interests of victims, legal entitlement with status of the victim, acquisition of the status of the victim, deprivation of the procedural status of victim, refusal to recognize the victim, challenging in pre-trial investigation.

scholarly journals PROCEDURAL FEATURES OF INVESTIGATORS (SEARCH) ACTIONS AS MEANS OF COLLECTING EVIDENCE IN CRIMINAL PROCEEDINGS AGAINST JUVENILES

2020 ◽  
pp. 400-407
Author(s):  
К. С. Рябченко
Keyword(s):  
Criminal Procedure ◽  
Psychological Characteristics ◽  
Criminal Proceedings ◽  
Criminal Offenses ◽  
Legitimate Interests ◽  
The Subject ◽  
A Minor ◽  
Procedural Rights ◽  
Material Evidence ◽  
Factual Data

The relevance of the article is that evidence in criminal proceedings is the most important part, which is carried out in the manner prescribed by law by the investigator, prosecutor, investigating judge and court with the participation of other participants in criminal proceedings to collect, verify and evaluate factual data (evidence) to establish the reality, substantiate the conclusions and decisions taken. The procedural form of proof is determined by its content. In essence, proving includes cognitive, communicative, witnessing, and mental activity. The first element of the process of proving is the collection of evidence, which consists in identifying sources and carriers of evidentiary information, obtaining, seizing material evidence, fixing, fixing in the statutory procedural form of factual data. One of the most effective procedural ways of gathering evidence is investigative (search) actions. The aim of the work is to analyze the current criminal procedure legislation and the position of scholars on the theory of criminal procedure on the procedure for conducting investigative (search) actions during the investigation of criminal offenses committed by minors. The article is devoted to the study of procedural features of investigative (search) actions with the participation of a minor. Problems were clarified and proposals for their solution were proposed by making changes and additions to the criminal procedural legislation to ensure the realization of procedural rights and legitimate interests of the juvenile. It is concluded that the conduct of investigative (search) actions as a means of obtaining evidence in criminal proceedings against minors are based on the characteristics of the subject of such proceedings - minors. In order to ensure the realization of the procedural rights of a minor, it is proposed to enshrine in the CPC of Ukraine certain provisions that will formulate an order that least disrupts the normal lifestyle of a minor and will correspond to his age and psychological characteristics.

scholarly journals FEATURES OF THE IMPLEMENTATION OF THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS OF PRIVATE PROSECUTION

2020 ◽  
Vol 30 (6) ◽  
pp. 875-880
Author(s):  
E.F. Tensina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
Special Procedure ◽  
The Russian Federation ◽  
Procedural Rights

The article reveals the nature of the claim of a private prosecution, which establishes the freedom to dispose of material and procedural rights. The forms of manifestation of dispositive principles in the material and procedural aspects in the course of criminal proceedings are determined. Taking into account the nature of the claim of a private prosecution, various models of proceedings in criminal cases of a private prosecution and the peculiarities of the implementation of the provisions of the criminal procedure principle of the presumption of innocence are considered. The author critically assesses the legal constructions that allow the application of a special procedure for making a court decision in criminal proceedings of a private prosecution if the accused agrees with the charge brought. In particular, taking into account the provisions of the principle of the presumption of innocence, it is concluded that it is inadmissible to apply Chapter 40 of the Criminal Procedure Code of the Russian Federation when considering a criminal case of a private prosecution if it is initiated by filing an application directly with a magistrate in the manner prescribed by Art. 318 of the Code of Criminal Procedure of the Russian Federation or when investigating a criminal case of this category in the form of an abbreviated inquiry, regulated by Ch. 32.1 of the Criminal Procedure Code of the Russian Federation.

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.

Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals Duty of Proving of a Civil Suit in Criminal Proceedings

2019 ◽  
pp. 137-144
Author(s):  
Serhii Krushynskyi
Keyword(s):  
Criminal Procedure ◽  
Active Part ◽  
Unanimous Opinion ◽  
Criminal Proceedings ◽  
Successful Performance ◽  
Property Damage ◽  
Civil Proceedings ◽  
Civil Suit ◽  
Legitimate Interests ◽  
The Right

The article is devoted to the analysis of some problematic questions related to the duty of proving of civil suit in criminal proceedings in Ukraine. In the criminal procedure doctrine there is no unanimous opinion of which subjects are required to engage into proving activities aimed at detection of civil suit circumstances in criminal proceedings. Concepts «duty of proving» and «burden of proving» are delineated by author. The position that the burden of proving is determined by the interests of participants in criminal proceedings was supported. The content of the burden of proving of civil suit in criminal proceedings covers the need to representation of evidence to justify (or refute) the amount of property damage, the depth of the suffering, and the amount of property compensation for non-pecuniary damage. The material and procedural interest of the civil plaintiff and the civil defendant in the outcome of the criminal proceedings encourages them to take an active part in the criminal procedural proving, in particular by representation of evidence available to them. The publicity (officiality) of criminal proceedings causes differences in the procedure for proving the grounds and size of a civil suit in criminal proceedings compared to civil proceedings. It is concluded that the duty of proving of civil suit circumstances lies on the prosecution party (investigator, prosecutor). The civil plaintiff, the civil defendant, their representatives are complete subjects of proving, but their activity in proving is a right, but not a duty. For the successful performance of their procedural functions, the defense of their legitimate interests, these persons are empowered to represent evidence, to participate in their research. So, they are given the opportunity to contribute to the correct resolution of criminal proceedings, in particular in the civil suit part. The subjects involved in the criminal proceedings who have a duty of proving should provide a possibility of realization of the right to represent evidence by other participants in the process.

scholarly journals Classification of crimes in designing criminal procedure regulations

2019 ◽  
pp. 130-137
Author(s):  
A. G. Kulev ◽  
L. O. Kuleva
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Great Influence ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Procedural Code ◽  
The Russian Federation ◽  
Substantive Law

The rules on categorization of crimes are substantive and legal by their nature. Nevertheless, they have a great influence on the state and development of criminal procedural matter. It is proposed to divide the provisions of the Criminal Procedural Code of the Russian Federation, which reflect the provisions of Art. 15 of the Criminal Code of the Russian Federation, into two groups. The first group includes the norms of criminal proceedings that are a kind of logical continuation of criminal law regulations related to exemption from criminal liability and punishment. The second group consists of strictly procedural rules that are not directly dependent on the substantive law: the composition of the bench, jurisdiction and competence of criminal cases, bail hearing, negotiations control and recording, the return of a criminal case to the prosecutor. Particular attention is given to the possibility for the court to change the classification of crimes. Based on the studied theoretical sources and court practice, the authors make suggestions aimed at improving the existing criminal procedure legislation and optimizing its application in the framework of the issues raised.

scholarly journals Dispositivity principle in the criminal procedure of Azerbaijan Republic: concept and application in individual rights

2021 ◽  
Vol 25 (2) ◽  
pp. 504-520
Author(s):  
Gahraman V. Jafarov
Keyword(s):  
Criminal Procedure ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Legal Concept ◽  
Criminal Process ◽  
Analysis And Synthesis ◽  
The Will ◽  
Main Determinants ◽  
Procedural Rights

Unlike other principles of criminal procedure (such as legality, presumption of innocence, etc.), the principle of dispositivity (the principle of autonomy of the will of a participant in the proceedings) does not have an independent legal formula, enshrined in a separate article in the current criminal procedure legislation of Azerbaijan. In this regard, questions about the existence, concept, content, individual elements, manifestations, and scope of the principle are becoming relevant and at the same time highly disputable. The author aims to determine the essence of dispositivity, to consider its individual manifestations, as well as to develop scientifically sound recommendations for optimizing the application in practice of the norms of the Code of Criminal Procedure in regulating issues related to the dispositive basis of the criminal process. The set goals predetermined solution for such basic issues as study of the philosophical and legal concept of dispositivity; determination of determinants-manifestations of dispositivity in criminal proceedings as a whole; recognition of dispositivity as one of the autonomous principles of the modern criminal process of Azerbaijan. The study was conducted by methods of dialectical cognition based on the principles of reflection, comprehensiveness, unity of induction and deduction, determinism, contradiction, and unity of analysis and synthesis. The author has studied and summarized a great deal of doctrinal material and jurisprudence, and some selected judicial acts have been used as real models for casuistry of the issues addressed in the article. As a result of the study, the author substantiates that, despite the absence of an independent article in the CPC on this principle, dispositivity is an autonomous principle of criminal procedure, not covered by other principles; on the contrary, it enters into various correlative relations with them. In other words, the Code of Criminal Procedure does not provide a binding feature of the principle of criminal procedure. As the main determinants of the principle under study, the author proposes to consider a system of procedural rights of non-governmental participants in the proceedings that have the effect of initiating some kind of proceedings, and the consent of a participant category, which is a mandatory condition in the procedural decision-making mechanism of entities with power.

scholarly journals On Public Interest in a Criminal Procedure

Russian judge ◽  
2021 ◽  
Vol 1 ◽  
pp. 26-30
Author(s):  
Eduard S. Kaminskiy ◽  
Keyword(s):  
Public Interest ◽  
Criminal Procedure ◽  
The State ◽  
Social Needs ◽  
Alternative Methods ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Is Implementation ◽  
Progressive Development ◽  
Legitimate Interests

The article analyzes the concept and content of public interest in criminal proceedings. It is concluded that public interests are social needs recognized by the state and regulated by the norms of law, aimed at achieving public goods, the satisfaction of which ensures the integrity, stability and progressive development of society. The interests of society and the state are protected through a structured system of criminal proceedings, which is public in nature. The basis of public prosecution is criminal prosecution on behalf of the state. The content of public interest in criminal proceedings is: implementation of such a regime of investigation and resolution of criminal cases that allows to protect society from criminal attacks; protection of the rights and legitimate interests of persons involved in criminal procedure; refusal to apply excessive measures of responsibility to persons who have committed crimes, use of alternative methods of resolving criminal law conflicts.

scholarly journals Protection of Human Rights in the Criminal Procedure Legislation of the Republic Of Uzbekistan and Improved Reforms Taking Into Account Foreign Experience

2021 ◽  
Vol 58 (1) ◽  
pp. 1102-1115
Author(s):  
Botirjon Khayitbayevich Ruzmetov
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Sufficient Evidence ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Republic ◽  
Theory Of Evidence ◽  
The Right

In this article author had searched the questions devoted the protection of human rights in the criminal procedure legislation of the Republic of Uzbekistan and comparing with the legislation and worldwide experience of the foreign states.The article reveals the ongoing liberalization of the criminal law policy in the Republic of Uzbekistan, which is aimed at expanding human and fair norms, strengthening the protection of the rights, legitimate interests of a person andsociety. Against this background, the significance of investigative actions and the theory of evidence in the country's criminal procedural legislation is being revised. The development of science and technology leads to the improvement of methods of committing crimes using computer technology, taking into account which the timely disclosure and effective investigation of socially dangerous acts requires extensive use of mathematical tools and computer technologies.In this regard, changes are taking place in the investigative practice aimed at increasing knowledge in the field of computer technologies among law enforcement officials and increasing the responsibility of the personal of the investigative and judicial authorities in the implementation of their activities.The author emphasizes that despite significant restrictions on the rights and legitimate interests of a person in the conduct of investigative actions, all of them are necessary for obtaining sufficient evidence to expose the guilt of the offender, in the manner prescribed by law.Compliance by investigators, prosecutors and judges of all criminal procedural requirements established by the legislation of the country is a key requirement for the recognition of evidence as lawful and sufficient for a fair sentence.It should be noted that the article highlights that, since 1994, the Criminal Procedure Code of Uzbekistan enshrines the right to defense by involving a lawyer in the case from the moment a person is detained on suspicion of committing a crime, as well as the principle of equality of arms in criminal proceedings. An addition to the liberalization of legislation is the fact that now the courts are freed from such unusual functions as the execution of court decisions.In addition, the article expands on the author's proposals for improving the legislation of Uzbekistan, as well as expanding the power of lawyers, especially in the conduct of investigative actions, aimed at expanding the process of liberalization of criminal law in the country and improving the situation with the protection of human rights in the investigation of criminal cases.

THEORETICAL AND LEGAL FRAMEWORK OF PROCEDURAL GUARANTEES OF PERSONAL RIGHTS IN A CRIMINAL PROCEDURE

2021 ◽  
Vol 6 (9) ◽  
pp. 65-72
Author(s):  
Dildora Bazarova ◽  
Keyword(s):  
Analytical Data ◽  
Criminal Procedure ◽  
Legal Framework ◽  
Public Confidence ◽  
Individual Rights ◽  
Criminal Proceedings ◽  
Legal Reforms ◽  
Personal Rights ◽  
Legitimate Interests ◽  
The Individual

Ensuring reliable protection of the rights, freedoms and legitimate interests of citizens in the judicial system, as well as further strengthening public confidence in justice, the content of legal reforms is to ensure the rights of the individual. Accordingly, this article examines the theoretical and legal foundations of procedural guarantees of individual rights in criminal proceedings on the basis of theoretical and practical analytical data. The article also analyzes the scientific views of scientists on the theoretical aspects of procedural guarantees of individual rights in criminal proceedings.Keywords:law, law, standard, crime, criminal procedure, investigation.

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