scholarly journals Problems of realization of the principles of equality and competitiveness in the criminal process: possibility of their solution by implementation of the private detective institute in Ukraine

2021 ◽  
Vol 11/2 (-) ◽  
pp. 5-11
Author(s):  
Anastasiia HLOBA
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Current Version ◽  
Criminal Proceedings ◽  
Public Authorities ◽  
Criminal Process ◽  
Legal Nature ◽  
Private Detective ◽  
Criminal Procedure Law ◽  
Implementation Problems

Introduction. The work considers the problem of implementation of private detective institute in the context of realization of the principles of equality and competitiveness in the criminal process. At present the relevancy of this institute is proved by numerous attempts of the Verkhovna Rada of Ukraine to adopt a relevant law. As scientists note, the current version of Draft Law contains a large number of shortcomings. At the same time, in Ukraine the problem of compliance of the provisions of the Code of the Criminal Process with the principles of equality and competitiveness in criminal proceedings remains controversial. Scientists have repeatedly studied this issue and suggested ways to solve them, but the corresponding changes have not yet been implemented. Such a solution is necessary to ensure respect for human rights, so it is important to consider the possibility of solving problems related to the implementation of the principles of equality and competitiveness through the introduction of the institution of private detective in Ukraine. The purpose of the paper is to examine the legal nature of the principles of equality and competitiveness in criminal proceedings, their interrelation, implementation problems, as well as the possibility of solving problems of implementation of these principles by introducing the institution of private detective in Ukraine. Results. Authors made an analysis of legislation, doctrine and international practice. It proved the importance of implementation of the institute of private detective. However, current Draft Law are not perfect and complete and cannot provide the improvement of realization of principles of equality and competitiveness in criminal proceedings. Conclusion. The position of Ukrainian criminal procedure law on compliance with principles of equality and competitiveness is not complete, as the defense has fewer opportunities to gather evidence than the prosecution represented by public authorities. To improve the situation with the principles of equality and competition, it is recommended to consider the introduction of the private detective institute in Ukraine. To do this, it is necessary to provide proper legislation in order for this institution to improve the situation in compliance with these principles.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals The Implementation of Preventive Detention in Vietnam: A Human Rights Approach

2019 ◽  
Vol 35 (3) ◽  
Author(s):  
Hoang Tam Phi
Keyword(s):  
Risk Factors ◽  
Human Rights ◽  
Competent Authority ◽  
Criminal Procedure ◽  
Preventive Detention ◽  
Viet Nam ◽  
Monitoring Tool ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Human Rights Based Approach

Preventive detention, according to the provisions of the criminal procedure code, is considered to be indispensable in the process of handling criminal cases. In the traditional view, this measure is not only for the purpose of preventing crimes but also to create a favorable condition for the competent authority to conduct criminal proceedings in the process of handling the case. This is a popular view in science and can be seen in the criminal procedure law of socialist countries, including Vietnam. In recent years, the adoption of a  rights-based approach in legislation and law enforcement has become recognized more and more by scholars and has changed the perception of preventive detention in criminal proceedings. The result is the birth of provisions on preventive detention based on the respect and protection of detainees’ human rights. This article will focus on analyzing preventive detention under a rights-based approach to provide the readers with a view arising from the need to respect, ensure, protect human rights in criminal proceedings and propose some recommendations on preventive detention on the basis of the human rights-based approach in order to improve the criminal procedure law in Vietnam. Keywords: Rights-based approach, Preventive detention, Detainee, Human rights of detainees. References: [1] Vũ Công Giao, Ngô Minh Hương, Tiếp cận dựa trên quyền con người - Lý luận và thực tiễn (Sách chuyên khảo), NXB. Đại học Quốc gia Hà Nội, Hà Nội, 2016.[2] Nguyễn Duy Sơn, Trần Thị Hòe, Tiếp cận dựa trên quyền con người trong hoạch định và thực thi chính sách ở Việt Nam, nguồn: http://lyluanchinhtri.vn/home/index.php/nguyen-cuu-ly-luan/item/595-tiep-can-dua-tren-quyen-con-nguoi-trong-hoach-dinh-va-thuc-thi-chinh-sach-o-viet-nam.html.[3] Chương trình phát triển Liên Hợp Quốc tại Việt Nam: http://www.un.org.vn/vi/component/docman/doc_details/115-a-human-rights-based-approach- toolkit.html?Itemid=266.[4] APT, Detention Monitoring Tool Factsheet Pre-trial detention Addressing risk factors to prevent torture and ill-treatment, Link: https://apt.ch/en/resources/detention-monitoring-tool-addressing-risk-factors-to-prevent-torture-and-ill-treatment/ (Truy cập lần cuối: 18/07/2019).[5] Trần Quang Tiệp, Về tự do các nhân và biện pháp cưỡng chế tố tụng hình sự, Nxb. Chính trị quốc gia, Hà Nội, 2005.[6] Gudmundur Alfredsson & Asjorn Eide (Chủ biên), The Universal Declaration of Human Rights: A Common Standard of Achivement (Tuyên ngôn Quốc tế Nhân quyền, 1948: Mục tiêu chung của nhân loại), Nguyễn Đăng Dung, Vũ Công Giao, Lã Khánh Tùng (Chủ biên bản dịch), NXB. Thanh niên, Hà Nội, 2017[7] Khoa Luật, ĐHQG Hà Nội, Giới thiệu Công ước về các quyền dân sự và chính trị (ICCPR, 1966), Nxb. Hồng Đức, Hà Nội, 2012.[8] Bùi Kiên Điện, “Vấn đề cưỡng chế tố tụng hình sự và nguyên tắc nhân đạo”, Tạp chí Luật học, Số 1, 2010.[9] Các quy tắc tiêu chuẩn tối thiểu của Liên hợp quốc về hoạt động tư pháp đối với người vị thành niên năm 1985 (Các quy tắc Bắc Kinh) theo Nghị quyết 40/33 ngày 29/11/1985 của Đại Hội đồng Liên Hợp Quốc.[10] Nguyễn Đăng Dung, Vũ Công Giao, Lã Khánh Tùng, Giáo trình lý luận và pháp luật về quyền con người, Nxb. Chính trị quốc gia, 2015, tr.164.[11] Tập hợp các nguyên tắc về bảo vệ tất cả những người bị giam hay tù dưới bất kì hình thức nào của Liên Hợp Quốc do Đại hội đồng Liên hợp quốc thông qua ngày 9/12/1988 theo Nghị quyết số 43/173.[12] Xuân Ân, Còn một số vi phạm trong các trại giam, tạm giữ, Báo Tiền phong (điện tử): https://www.msn.com/vi-vn/news/other/c%C3%B2n-m%E1%BB%99t-s%E1%BB%91-vi-ph%E1%BA%A1m-trong-c%C3%A1c-tr%E1%BA%A1i-giam-t%E1%BA%A1m-gi%E1%BB%AF/ar-AAEfrek (Truy cập lần cuối: 05/08/2019).[13] Trần Văn Độ, Hoàn thiện các quy định của Bộ luật Tố tụng hình sự về biện pháp tạm giam, nguồn: http://tks.edu.vn/thong-tin-khoa-hoc/chi-tiet/79/274 (Truy cập lần cuối: 12/10/2017).[14] Nghị quyết số 49-NQ/TW ngày 02 tháng 06 năm 2005 của Bộ Chính trị về Chiến lược cải cách tư pháp đến năm 2020.[15] Lê Minh Tuấn, “Hoàn thiện một số quy định của BLTTHS về tạm giam nhằm đáp ứng yêu cầu cải cách tư pháp”, Tạp chí Kiểm sát, Số 9, 2008.[16] Viện Kiểm sát Nhân dân Tối cao - Cục Thống kê.[17] Viện Kiểm sát Nhân dân Tối cao - Vụ kiểm sát tạm giữ, tạm giam, thi hành án hình sự (2010), Báo cáo tổng kết công tác kiểm sát việc tạm giữ tạm giam, quản lý và giáo dục người chấp hành án phạt tù từ các năm 2005 đến 2009, Hà Nội.[18] Viện Kiểm sát Nhân dân Tối cao - Vụ kiểm sát tạm giữ, tạm giam, thi hành án hình sự (2010), Báo cáo tổng kết công tác kiểm sát việc tạm giữ tạm giam, quản lý và giáo dục người chấp hành án phạt tù từ các năm 2010 đến 2014, Hà Nội.[19] Nguyễn Tiến Tài, Để tránh chuyện tạm giam vô thời hạn, nguồn: http://www2.hvcsnd.edu.vn/vn/Acedemy/Nghien-cuu-Trao-doi/76/325/De-tranh-chuyen-tam-giam-vo-thoi-han.aspx (Truy cập lần cuối: 05/08/2019).[20] Webside: https://danluat.thuvienphapluat.vn/chia-se-bo-luat-to-tung-hinh-su-cac-nuoc-166373.aspx (Truy cập lần cuối: 05/08/2019).  

scholarly journals Kriminālprocesuāla, civilprocesuāla vai administratīvi procesuāla konfiskācija

2021 ◽  
pp. 568-575
Author(s):  
Gunārs Kūtris ◽  
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
Important Challenge ◽  
The Law

The confiscation or forfeiture of crime proceeds is an important challenge in the fight against crime in every country. The Latvian Criminal Procedure Law (2005) provides ability of confiscating criminally acquired property before the sentencing of the guilty person, as well as the ability to apply extended confiscation for a convicted person. However, in recent years, practices and amendments to the law show trends that raise doubts about respect for human rights and principles of criminal proceedings in confiscation processes. The article deals with other countries’ experience in the confiscation of property of uncertain origin in various processes – administrative, civil and criminal proceedings. The summary gives the author’s conclusions on the legally correct confiscation process.

scholarly journals APPLICATION OF SAFETY MEASURES TO PARTICIPANTS IN CRIMINAL PROCEEDINGS ON THE PART OF THE DEFENCE

2019 ◽  
Vol 29 (6) ◽  
pp. 823-829
Author(s):  
F.F. Zaripov
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Separate Group ◽  
Criminal Proceedings ◽  
Safety Measures ◽  
Criminal Process ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Rights And Interests

The article formulates the problems of procedural regulation of ensuring the safety of participants in criminal proceedings on the part of the defense in the process of criminal proceedings. It is noted that despite the hasty division of the participants in the criminal process into groups in accordance with the procedural function performed by them, the need to separate the participants in criminal proceedings standing upon the interests of the defense into a separate group is not disputed. Attention is drawn to the fact that the principle of protecting the rights and freedoms of man and citizen in criminal proceedings does not fully regulate the adoption of appropriate measures to ensure the safety of participants in the criminal process for the realization of their rights and interests. The necessity of making amendments and additions to the Code of Criminal Procedure of the Russian Federation (as the main source of criminal procedure law), as well as a number of other legislative acts related to the protection of human and civil rights and freedoms and to ensuring the safety of participants in criminal proceedings in all areas, is substantiated.

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.

JUDICIAL DOCTRINE AS A SOURCE OF CRIMINAL PROCEDURE LAW OF UKRAINE: GENERAL GNOSEOLOGICAL (EPISTEMIOLOGICAL) RESEARCH (PART ТWO)

2021 ◽  
Vol 2 (2) ◽  
pp. 49-57
Author(s):  
Artem Shapar ◽  
◽  
Yuriy Yelaiev ◽  
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Scientific Article ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Doctrine ◽  
Criminal Process ◽  
Procedural Law ◽  
Relationship Of

In this scientific article, the continuation of the gnoseological (epistemological) research of legal doctrine as a source of criminal proceedings is carried out. In this scientific work, theoretical perception of scientific concepts of Ukrainian and foreign legal scholars in the field of legal doctrine as a source of law (in general), taking into account the legal significance of legal doctrine as a source of criminal procedural law (in particular) is carried out. In this scientific work, the attention is paid to the research of the fundamental and systemic relationship of legal doctrine with other sources of criminal proceedings (in particular, with the Decision of the Constitutional Court of Ukraine on a particular constitutional and judicial case). The text of this scientific article studies, inter alia, the fundamental and systemic relationship of Legal Doctrine with Separate Opinion of the Judge of the Constitutional Court of Ukraine (in a particular constitutional and judicial case), as sources of criminal procedural law of Ukraine. At the same time, the peculiarities of constitutional and judicial legal regulation in the field of criminal proceedings and in combination with the study of theoretical and legal and philosophical and legal bases (foundations) of the abovementioned two sources of criminal process in Ukraine are taken into account. The scientific knowledge of the theoretical and legal and philosophical and legal relationship of the Legal Doctrine with the Separate Opinion of the Judge of the Constitutional Court of Ukraine (as sources of criminal procedural law of Ukraine) is carried out with consideration of the scientific and theoretical features, specified in the text of Separate Opinion of the Judge of the Constitutional Court of Ukraine of legal (in particular, philosophical and legal, doctrinal and legal, general and legal, criminal and procedural) definitions. In the text of this scientific article, the attention is paid to the humanistic legal doctrine on which the acts of international law in the field of human rights (in particular, human rights in the field of criminal procedure) are based. In this scientific article, the attention is paid to legal doctrine as a manifestation of a person's ability to learn (including knowledge of the sphere of criminal process).

Institute of bringing as an accused: on the “deprocessualization” and “dematerialization” of its essence and content in the criminal proceedings of Russia

2020 ◽  
Vol 7 (1) ◽  
pp. 98-105
Author(s):  
Nikolay N. Kovtun
Keyword(s):  
Criminal Responsibility ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Optimal Mechanism ◽  
Procedural Law ◽  
Legal Fiction ◽  
Legal Nature ◽  
Criminal Procedure Law

This work critically assesses the legal nature and practice of the institution of bringing as a defendant in criminal proceedings in Russia, particularly in its relation to the substantive legal act of bringing to criminal responsibility. The author argues that, due to the general bureaucratization of the process, both the first and second acts have actually lost their original purpose to be the determining material and procedural guarantee of individual and justice in criminal proceedings. Objectifying as a legal fiction, the act of bringing the accused as an accused in the doctrine of Russian criminal procedure law, done directly in practice, is increasingly characterized as an accusation of duty, initial, intermediate, and final, which respectively form the ideas of duty, intermediate, initial, and investigative-final criminal prosecution. This negates the role of the named defining acts. Hence, the paper suggests an optimal mechanism for their implementation according to the purposes and tasks of substantive and procedural law

scholarly journals Issues in separation of criminal procedural functions

2018 ◽  
Vol 40 ◽  
pp. 01010 ◽  
Author(s):  
S. Kaija
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Special Focus ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
The Law ◽  
Insight Into

The term ‘criminal procedural function’. has historically been used by scientists. In order to identify primary issues in procedural functions, the competition principle was analyzed. This strengthened such important issues as separation of prosecution and court functions, parties’ equality, independence of courts etc. Therefore, the concept of three concept functions – prosecution, defence and adjudication - was developed in criminal proceedings. In the context of the Criminal Procedure Law having taking effect, this term was included into the law, including the principle of separation of criminal procedural functions. The aim of this paper is to offer the insight into interpretation of the concept of the criminal procedural function with the special focus on specific issues in function separation. Section 17 of Criminal Procedure Law determines the function of control of restrictions of human rights in a pre-trail. The functions of prosecution, defence and adjudication do not determine their priority over all other criminal procedural functions. These functions are claimed to be separate and therefore cannot be applied to the same person. This paper examines the equivalence of procedural functions as one of the most fair of the court elements. In the end, key conclusions are summarized.

scholarly journals Newly Discovered and Exceptional Circumstances in Criminal Procedure of Some European States

2021 ◽  
Vol 4 (2) ◽  
pp. 44-66
Keyword(s):  
Criminal Procedure ◽  
European Countries ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
The Core ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
Principal Directions ◽  
Criminal Legislation

The article analyses the core and contents of the proceedings based on newly discovered or exceptional circumstances (hereinafter – PBNDEC) in the criminal procedure law of Ukraine and other European countries. The authors emphasize that the PBNDEC are not designed to eliminate shortcomings of the pre-trial investigation and the trial in criminal proceedings, providing the reserve function in discovering and correcting court errors, but rather serves its own purpose in the mechanism of legal defence. The order the criminal procedure activity during this stage is largely determined by the grounds for its implementation – newly discovered or exceptional circumstances (hereinafter – NDEC). The differences between both groups of such circumstances are provided. Procedural features of the PBNDEC, which separate them from the proceedings on appeal and cassation, are singled out. The goals of this stage in the criminal proceedings are formulated, and the significance of this stage has been revealed. The need for improvement in the criminal procedure legislation of Ukraine which regulates the PBNDEC has been justified. The articles answer the questions of how efficient the regulation of the PBNDEC in the criminal procedure law of Ukraine is: whether the regulation is in agreement with the standards, whether it is established in the criminal procedure law of European countries, whether any doctrine positions regarding the core of such a stage in criminal proceedings require rethinking or additional theoretical justification, and which, of the normative regulations of such form of appeal and review of the court decisions, the principal directions for improvement are. In order to obtain answers to the aforementioned and other questions, the legal nature and the models of PBNDEC in the criminal legislation of European countries are considered in section two of the article. Section three depicts the procedural specifics of the PBNDEC in the criminal legislation of Ukraine. Section four describes the definition, shows the goals and significance, and introduces the structure of this stage in the criminal proceedings. Section five embraces the characteristics of features of NDEC in the criminal legislation of Ukraine. In section six the grounds for the PBNDEC in the criminal procedure law of Ukraine are analysed.

scholarly journals On the New Rules Protecting Attorney-Client Privilege in Criminal Procedure in Russia

2018 ◽  
pp. 15-25
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Criminal Procedure ◽  
Point Of View ◽  
Federal Law ◽  
Criminal Proceedings ◽  
European Court ◽  
Procedural Code ◽  
Criminal Procedure Law ◽  
Further Development

In the article, an attempt is made to consider the recently introduced additional criminal procedural guarantees of the protection of attorney-client privilege from the point of view of the system of the Russian criminal procedural legislation and in the light of the practice of the European Court of Human Rights. The author comes to the conclusion that additional guarantees of protection of attorney-client privilege introduced by the Federal law № 73-FZ contribute to the further development of the adversarial principles of the Russian criminal proceedings. At the same time, some innovations seem to be controversial. The supplement introduced to part 2 of the Article 75 of the Russian Criminal Procedural Code (CPC) concerning inadmissibility of using advocatory items and documents as evidence come into conflct with the Article 17 of the CPC and do not constitute the whole legal system with other provisions of the criminal procedure law. The rules of part 3 of the Article 450.1 of the CPC, according to the author, are incompatible with part 5 of the Article 165 of the CPC regulating urgent procedures of investigative actions requiring judicial permission, as well as part 2 of the Article 450.1 of the CPC. The author makes a range of proposals to improve the legislation and its application.

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