The right to keep silence of the accused, defendant in criminal procedure of the Russian Federation and Vietnam

The article discusses some aspects of proving in cases of crimes against legal entities. The criminalistic description of the victim represented by a legal entity determines specific details of applying criminalistic and criminal procedure measures aimed at the identification, investigation, detection and prevention of such crimes. Under the current Criminal Procedure Code of the Russian Federation, one of the elements of ordering criminal proceedings is the protection of rights and legal interests of organizations that became victims of crimes. Part 1 of Art. 42 of the Criminal Procedure Code of the Russian Federation details this guideline for the first time by giving legal entities, viewed as independent subjects of criminal procedure legal relations, the right to be recognized as victims of criminal actions if the crime inflicted damage on their property or business reputation. Nevertheless, the imperfections in the regulation of legal entities’ participation in criminal proceeding, and the insufficient attention to the specifics of realizing their rights and legal interests in comparison with the physical persons of a similar procedural status give rise to numerous problems. The complex of such problems has a negative impact on the effectiveness of investigating this category of crimes and, as a consequence, on the ability of criminal proceedings to produce the intended result. The literal interpretation of Part 1, Art. 42 of the Criminal Procedure Code of the Russian Federation points out that the consequences of such crimes must include the infliction of two types of damage simultaneously — «to property and to business reputation», which can hardly be considered a good definition from the standpoint of juridical technique. Quite naturally, the investigation and court practice shows that law enforcers, while collecting proof on the character and size of damage inflicted on legal entities as a result of a crime, usually limit themselves to proving material damage, and even this damage is not proven in full (the common omission being losses of expected income). As for the damage inflicted on business reputation of a legal entity, its establishment during criminal proceedings is still problematic and, in practice, there is usually a gap in proving it. The authors point out that incomplete character of evidentiary information regarding the infliction of damage on the business reputation of legal entities is inadmissible and present their recommendations for resolving this problem, including the use of specialist knowledge and the improvements in the tactics of specific investigatory actions aimed at obtaining criminalistically relevant information on the case.

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Appealing against Decisions on Reimbursement of Procedural Costs Made in accordance with Part 3 of Art. 131 of the Criminal Procedure Code of the Russian Federation

Actual Problems of Russian Law ◽

10.17803/1994-1471.2021.132.11.155-166 ◽

2021 ◽

Vol 16 (11) ◽

pp. 155-166

Author(s):

S. R. Zelenin

Keyword(s):

Russian Federation ◽

Criminal Procedure ◽

The Body ◽

Constitutional Court ◽

Judicial Practice ◽

Procedural Costs ◽

The Russian Federation ◽

The One ◽

Judicial Procedure ◽

The Right

The legality and validity of the decisions of the investigator, inquirer and the prosecutor on the payment of the amounts related to procedural costs remain problematic due to the absence in the law of a mechanism ensuring the judicial procedure for their appeal. In order to fill this gap, the author studies the possibilities of introducing a procedure similar to the one enshrined in Art. 125 of the Code of Criminal Procedure of the Russian Federation. The paper analyzes the positions of the Resolution of the Constitutional Court of the Russian Federation No. 18-P dated May 13, 2021. It concerns the victims’ appeal against the decisions of the investigator and the head of the investigative body regarding the reimbursement of expenses for a representative. Some examples of judicial practice for resolving other disputes related to the reimbursement of procedural costs are also analyzed. It is concluded that the right of a person claiming to receive the amounts provided for in Part 2 of Art. 131 of the Code of Criminal Procedure of the Russian Federation against a judicial appeal made at his request is universal and does not depend either on his status in a criminal case, or on the type of the indicated amounts, or on the body or official that made the contested decision. Taking into account the practice of applying other norms on appealing against decisions of the investigating bodies, it was proposed to introduce Art. 125.2. The author formulate its content given the characteristics of the participants in the proceedings and the powers of the court to resolve the complaint.

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Real Served Term in Case of Parole: Problems of Determination

Journal of Russian Law ◽

10.12737/22198 ◽

2016 ◽

Vol 4 (11) ◽

pp. 0-0

Author(s):

Руслан Долотов ◽

Ruslan Dolotov

Keyword(s):

Russian Federation ◽

Criminal Law ◽

Criminal Procedure ◽

Criminal Code ◽

House Arrest ◽

Procedure Code ◽

The Russian Federation ◽

The Creation ◽

The Right

The article is devoted to the practice of parole. The main goal of the study is to determine if is it properly to include a period of house arrest in six months term of imprisonment, necessary for the creation of the right to parole. The article proves that in practice they judge from the following conclusion: as the period of house arrest is included in the period of detention, and the detention period is included in the term of imprisonment, so when a real served term for parole is determined it is necessary to include in it the period of house arrest. The author explains that such conclusion is flawed since it is based on a dogmatic rather than systemic interpretation of the Criminal Code and the Criminal Procedure Code of the Russian Federation without understanding the role which plays set by the legislator six months term in case of parole in the system of criminal law measures.

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Restriction of the access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation

Право и политика ◽

10.7256/2454-0706.2021.10.36714 ◽

2021 ◽

pp. 58-69

Author(s):

Tatiana Topilina

Keyword(s):

Russian Federation ◽

Criminal Procedure ◽

Access To Justice ◽

Criminal Proceedings ◽

Procedure Code ◽

The Subject ◽

Soviet Space ◽

The Russian Federation ◽

The Right ◽

Right Of Access

This article analyzes the problems of implementation of the right of access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation. The author carefully examines the legislation of the countries of post-Soviet space on filing a complaint against actions (omissions), as well as decisions of the prosecuting agency in pretrial proceedings. The subject of this research is the norms of the Russian and foreign legislation that regulate the right of access to justice in criminal proceedings. The object is the legal relations arising in the context of implementation of the right of access to justice. The article employs the universal systemic method of cognition; comparative-legal, formal-legal, and statistical methods; as well as logical analysis of the normative legal acts. It is indicated that restriction of the access to justice for consideration of the criminal procedure dispute in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation is also established by the practice developed in law enforcement for evaluation of the complaint prior to its consideration involving  the parties with the possibility of making a decision on whether to remit or reject the complaint in the absence of legislatively specified grounds, which directly affects the number of addressed complaints. The conclusion is made on the need to specify the grounds for remitting the complaint of an applicant filed in accordance with the Article 125 of the Criminal Procedure Code of the Russian Federation, for the purpose of excluding the possibility of decision made by the court that is not based on the law on remitting or rejecting the complaint for consideration (the Article 125 of Code of Criminal Procedure Code of the Russian Federation).

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SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

Bulletin of Udmurt University. Series Economics and Law ◽

10.35634/2412-9593-2020-30-5-747-752 ◽

2020 ◽

Vol 30 (5) ◽

pp. 747-752

Author(s):

A.I. Shmarev

Keyword(s):

Civil Rights ◽

Russian Federation ◽

Criminal Procedure ◽

Criminal Prosecution ◽

Constitutional Court ◽

Criminal Proceedings ◽

Judicial Practice ◽

The Supreme Court ◽

The Russian Federation ◽

The Right

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.

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CLOSED COURT HEARING AS AN INDEPENDENT SECURITY MEASURE FOR PARTICIPANTS IN CRIMINAL PROCEEDINGS

Bulletin of Udmurt University. Series Economics and Law ◽

10.35634/2412-9593-2021-31-2-286-290 ◽

2021 ◽

Vol 31 (2) ◽

pp. 286-290

Author(s):

R.M. Ramazanov

Keyword(s):

Russian Federation ◽

Criminal Procedure ◽

Criminal Court ◽

Security Measures ◽

Criminal Proceedings ◽

Court Judge ◽

Independent Form ◽

The Russian Federation ◽

The Right ◽

Court Hearing

The publicity of the trial in the Russian criminal trial has been one of the important provisions for several decades and is expressed in the realization of the right of citizens to be present in court when considering and resolving a criminal case. However, an open criminal court may be limited if the grounds listed in Part 2 of Art. 241 of the Code of Criminal Procedure of the Russian Federation are established as an exception to the general condition of the trial. One of these grounds is a closed court hearing, which is considered as an independent form of ensuring the safety of participants in the process and their loved ones. The creation of safe conditions for citizens to participate in the court session allows the court to establish and verify the evidence collected in the case (Article 73 of the Code of Criminal Procedure of the Russian Federation). At the same time, security applies not only to participants from the defense or prosecution, other participants in the process, but also in relation to the court (judge). A closed hearing is one of several security measures (part 3 of article 11 of the Code of Criminal Procedure of the Russian Federation). The decision of the matter and the holding of a trial in private can only be determined if there are strictly established procedural grounds. Such a decision should be motivated.

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PROSECUTOR'S REFUSAL TO CHARGE

10.34708/gstou.conf.2021.11.54.002 ◽

2021 ◽

Author(s):

И.Д. Мальцагов ◽

Х.И. Магомадов

Keyword(s):

Russian Federation ◽

Criminal Procedure ◽

Public Prosecutor ◽

The Public ◽

The Russian Federation ◽

The Right ◽

Right To Refuse

В статье рассматривается вопрос о возможности отказа от обвинения на стадии предварительного слушания. Указано, чем отказ от обвинения отличается от изменения обвинения. Авторы анализируют возможные варианты отказа прокурора от обвинения, дают классификацию видов и оснований такого отказа. Решается вопрос о том, в какой форме возможен отказ прокурора от обвинения, обосновывается необходимость согласования позиции государственного обвинителя с прокурором, утвердившим обвинительное заключение и поручившим поддержание обвинения. Дается оценка соблюдению прав потерпевшего при реализации государственным обвинителем права на отказ от обвинения. Приведена возможная структура речи государственного обвинителя в судебных прениях при отказе от обвинения. Предлагается внести в уголовно-процессуальное законодательство Российской Федерации некоторые изменения. The article discusses the possibility of abandoning the charge at the preliminary hearing stage. It is indicated how the refusal of the charge differs from the change of the charge. The authors analyze the possible options for the prosecutor's refusal to charge, give a classification of the types and grounds for such refusal. The question of the form in which the prosecutor's refusal from the prosecution is possible is resolved, and the need to coordinate the position of the public prosecutor with the prosecutor who approved the indictment and entrusted the prosecution with maintaining the prosecution is justified. An assessment is made of the observance of the rights of the victim in the exercise by the public prosecutor of the right to refuse to charge. The possible structure of the speech of the public prosecutor in the judicial debate when rejecting the charge is given. It is proposed to make some changes to the criminal procedure legislation of the Russian Federation.

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On the Right of the Accused Parties to an Appeal of Interim Court Decisions Made at the Pre-Trial Stage: Protection of Private and Public Interests

UGOLOVNAYa YuSTITsIYa ◽

10.17223/23088451/16/10 ◽

2020 ◽

pp. 47-52

Author(s):

Polina O. Gertsen ◽

Keyword(s):

Russian Federation ◽

Preliminary Investigation ◽

Preventive Measure ◽

Criminal Procedure ◽

Court Decisions ◽

Criminal Proceedings ◽

Public Interests ◽

The Russian Federation ◽

The Right ◽

Court Of Appeal

The article examines the problem of determining the list of participants on the part of the prosecution, endowed with the right to appeal the interim decisions made at the pre-trial stage of criminal proceedings. Currently, the appeal and revision of interim decisions are carried according to Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation. However, Chapter does not take into account the specificity of the preliminary investigation stage, in particular, the subject composition of its participants. As a result, the list of the subjects entitled to appeal of the interim court decisions at the pre-trial stage of criminal proceedings remains controversial. The article discusses the right of the investigator and the head of the investigative body to file an appeal as well as the right of the victim to initiate proceedings in the court of appeal in defense of private interest. Drawing on the analysis of literature and practices of appealing interim court decisions, the author identifies the problems of theory and practice, including: 1) the prosecutor’s right to appeal is not sufficient to ensure tp protect public interests; 2) the controversial right of the investigator, or the head of the investigative body to file a complaint with the court of appeal; 3) there is no legal obligation of state bodies to notify the victim about the initiation of a petition before the court for a preventive measure or an investigative action, which may prevent the victim from exercising their right to appeal. The author proposes: 1) to supplement the Criminal Procedure Code of the Russian Federation with a list of subjects for filing (presenting) a complaint of interim decisions, including the investigator as the main participant in the process at the stage of preliminary investigation; 2) to legislate the investigator’s obligation to notify the victim about the initiation of a petition before the court for the application of a preventive measure, placement of the accused in a hospital for an examination, etc., as well as the obligation of the court to send the victim copies of decisions on these petitions.

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Countering iatrogenic crimes: criminal law and criminal procedure issues

Yugra State University Bulletin ◽

10.17816/byusu2020299-106 ◽

2020 ◽

Vol 16 (2) ◽

pp. 99-106

Author(s):

Stanislav V. Rozenko ◽

Elena O. Igonina

Keyword(s):

Medical Care ◽

Russian Federation ◽

Criminal Law ◽

Medical Errors ◽

Criminal Procedure ◽

Criminal Code ◽

Medical Law ◽

The Russian Federation ◽

The Right ◽

To Receive

The article investigates problematic issues of criminal legal counteraction to iatrogenic crimes. Interpretation of industry regulations leads to the conclusion that in the process of procedural verification, the investigator does not have the right to receive information that constitutes a medical secret, which prevents the correct qualification of what was done. The qualification of iatrogenic crimes requires mandatory recourse to medical law. Opening the topic, we study the work of leading Russian specialists in the field of medicine and criminal law. The paper examines the problems of judicial and investigative practice on these criminal attacks. In the course of the study, the authors point to signs of medical errors and defects in the provision of medical care, which allow us to establish General circumstances that affect the exact qualification of the crime. It is proposed to fix in the Criminal code of the Russian Federation independent elements of crimes, that is, special provisions for medical workers, which will eliminate errors in qualification.

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SPECIAL PROCEDURE OF TRIAL IN CASE OF CONSENT OF THE ACCUSED WITH THE CHARGE BROUGHT: THE CONSEQUENCES OF THE AMENDMENT TO THE LAW

Juridical Journal of Samara University ◽

10.18287/2542-047x-2020-6-4-80-87 ◽

2020 ◽

Vol 6 (4) ◽

pp. 80-87

Author(s):

Ju. V. Kuvaldina

Keyword(s):

Russian Federation ◽

Criminal Procedure ◽

Judicial Reform ◽

Criminal Cases ◽

Procedure Code ◽

Special Procedure ◽

Judicial Proceedings ◽

The Russian Federation ◽

The Right ◽

Special Order

The article makes assumptions about the possible consequences of changes made by the Federal Law as of July 20, 2020, No. 224-FZ in edition of the Part 1 of Article 314 of the Criminal Procedure Code of the Russian Federation. According to this amendment, criminal cases on grave crimes will now be considered in the general order, unless a pre-trial cooperation agreement is concluded with the accused. The relevance of this novel is due to the fact that the legislator has once again revised the approach to defining the criteria for simplifying the criminal procedural form. In this regard, practice in the near future may face new or, more precisely, well forgotten old problems related to the period of the beginning of the judicial reform in 1991. A number of issues related to ensuring the right of the accused to a special order of trial will require scientific understanding. The author analyzes foreign legislation, previously and current domestic criminal procedure legislation, opinions on this issue of representatives of the highest levels of the judicial system, prosecutor's office and the legal profession, scientists, statistical data and reviews of the activities of courts of general jurisdiction in criminal cases in 2019. The author comes to the conclusion that in Russia the possibility of applying a simplified procedure associated with the reduction or refusal of the judicial investigation was not directly dependent on the severity of the crime committed, and the reform of the special procedure for judicial proceedings undertaken by the legislator is untimely and is not provided with either personnel or material technical or financial resources. According to the author, the decrease in the number of sentences passed in a special order will occur due to the infringement of the right of those accused of serious crimes to be tried in the procedure provided for in Chapter 40 of the Criminal Procedure Code of the Russian Federation. In this regard, the article outlines the directions for the further development of a special procedure for judicial proceedings, strengthening its consensual nature and ensuring the guarantees of the rights of the accused and victims in this procedure.

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