scholarly journals Assessment of evidence in adopting decisions to put a criminal case

2021 ◽  
pp. 35-40
Author(s):  
Lilia Lupasco ◽  
Keyword(s):  
Criminal Case ◽  
Criminal Process ◽  
Assessment Of Evidence

The criminal process manifests a staged character and each of the phases of the process aims at solving certain issues and ends with the adoption of appropriate solutions. The phase of preparing the criminal case for trial is a relevant example. Assessing the evidence until the decision to prosecute is adopted is like a „filter” that prevents the passage of the criminal case to the next stage if circumstances are discovered in it. The assessment of the evidence at the stage of putting the criminal case on the register shows interest because here the bases of the activity of the court for the next stage – of the trial of the case on the merits are laid.

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.

The Law and Policy of Police and Prosecutorial Control of Detention in China

2020 ◽  
Vol 21 (1) ◽  
pp. 121-137
Author(s):  
Kuibin Zhu ◽  
David M Siegel
Keyword(s):  
Decision Making ◽  
Policy Change ◽  
Judicial Review ◽  
Criminal Case ◽  
Criminal Process ◽  
Western Countries ◽  
Chinese Law ◽  
Law And Policy ◽  
Defence Counsel ◽  
Police Control

In China, police control of street protests can be accomplished under existing law both directly, through administrative penalties including detention that police can impose on their own authority, and indirectly, through the threat of detention as part of the ordinary criminal process. In the ordinary criminal process Chinese law provides police and prosecutors extensive discretionary authority to detain suspects and defendants for periods of six months or more without judicial review. While the structure of these detention provisions superficially resembles that in Western countries, their operation is wholly subject to internal policies and practices of police and prosecutors. In addition to providing an overview of these provisions, we review here a recent prosecutorial policy change in decision-making on extended detention (dàibǔ, 逮捕) that places the same prosecutor in charge of both this decision and the ultimate presentation of the case. We conclude that this may encourage individual prosecutors to assess their cases more thoroughly and realistically at an earlier stage and may alter the litigation dynamics of detention during the investigative phase, but it does not reduce the threat of detention as a means of deterring protests. At most, the change may provide negotiation opportunities for defence counsel. Until a Chinese criminal case is formally presented to a court, control over detainees remains firmly in the hands of the police and prosecutors.

scholarly journals The institution of suspicion and the initial stage of the criminal process: interrelated prospects of development

2021 ◽  
Vol 2021 (4) ◽  
pp. 121-131
Author(s):  
Ol'ga Polikarpova
Keyword(s):  
Criminal Procedure ◽  
Radical Change ◽  
Criminal Case ◽  
Initial Moment ◽  
Criminal Prosecution ◽  
Constitutional Rights ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Initial Stage

The article considers the question of the interdependence of the improvement of the institution of suspicion and the transformation of the initial stage of the Russian criminal process. The article highlights the problem of the legislative limitation of the period of the procedural status of a person as a suspect in the event of a criminal case being initiated not against him, but upon the commission of a crime and insufficient evidence of the involvement/non-involvement of such a person in a criminal offence committed at the initial stage of the investigation, which often does not allow avoiding unreasonable restrictions on the constitutional rights and freedoms of this participant in criminal proceedings. The relevant experience of some post-Soviet states that followed the path of a radical change in the criminal procedure model after the collapse of the USSR is analysed. The article compares the provisions of the criminal procedure legislation of the Russian Federation and the Kyrgyz Republic directly related to the institution of suspicion, including the moment of triggering criminal prosecution and the duration of a suspect’s keeping the specified procedural status. The arguments given in the article substantiate the need to reform the initial moment of the emergence of the procedural status of a suspect in Russian criminal proceedings and the associated expediency of abolishing the stage of initiation of a criminal case in order to increase the guarantee of the rights and legitimate interests of the person introduced into the procedural status we are analysing.

PECULIARITIES OF PARTICIPATION OF DEFENDER IN THE COURT PROCEEDINGS OF CRIMINAL CASE IN THE COURT OF FIRST INSTANCE

2021 ◽  
Author(s):  
Павел Петрович Фантров ◽  
Ярослав Александрович Кузин
Keyword(s):  
Research Topic ◽  
Defense Attorney ◽  
Criminal Case ◽  
Correct Interpretation ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Court Proceedings ◽  
Degree Of Participation ◽  
Court Of First Instance

Актуальность темы исследования обусловлена тем, что немаловажное значение в уголовном судопроизводстве имеет правильное толкование процессуального положения защитника в судебном разбирательстве в суде первой инстанции. В статье охарактеризована степень участия защитника на рассматриваемой стадии уголовного процесса: исследование им доказательств; заявление ходатайств; изложение суду своего мнения по существу обвинения и его доказанности; выступление в судебных прениях. The relevance of research topic lies in the fact that the correct interpretation of procedural position of a defense attorney in court proceedings in the court of first instance is of no small importance in criminal proceedings. The article describes the degree of participation of defense attorney at the considered stage of criminal process: his research of evidence; application of petitions; presenting to the court his opinion on the merits of accusation and it's proof; speech in judicial pleadings.

scholarly journals Legal Framework of the Mechanism for the Elimination of Judicial Errors in Germany: A Comparative Legal Aspect

2021 ◽  
Vol 16 (3) ◽  
pp. 124-132
Author(s):  
A. G. Trofimik
Keyword(s):  
Legal Aspect ◽  
Legal Framework ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Legal Structure ◽  
Procedural Law ◽  
Judicial Practice ◽  
Judicial Errors ◽  
Assessment Of Evidence

The paper examines the legally enshrined principles of material truth (§ 244 II StPO) and free assessment of evidence (§ 261 StPO), as well as the doctrinal requirement for a comprehensive, complete and objective study of the circumstances of a criminal case from the standpoint of the legal mechanism for identifying and eliminating (eliminating) judicial errors in criminal proceedings in Germany. The meaning and functions of the named concepts for criminal proceedings have been determined. The influence of the principle of material truth (Untersuchungsgrundsatz, Aufklärungspflicht) and the principle of free evaluation of evidence on law enforcement are analyzed. Based on the analysis of the universal regulatory framework of the elimination of judicial errors and the corresponding judicial practice, comparing the current legal regulation of Germany with the Soviet criminal process, the author formulates hypotheses on the possibility of returning to the domestic criminal procedural law of truth as a special legal structure that guarantees the quality of the investigation of the circumstances of the criminal case and ensuring uniform judicial practice.

scholarly journals Court Discretion as Part of the Criminal Procedure Paradigm Structure

Legal Concept ◽  
2019 ◽  
pp. 166-173
Author(s):  
Ekaterina Azarova
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Fundamental Rights ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
The Law ◽  
Goals And Objectives

Introduction: the fundamental rights of citizens enshrined in the Constitution are accordingly reflected in the Code of Criminal Procedure of the Russian Federation. For more than fifteen years of the Code of Criminal Procedure application, the legislator has made about three hundred amendments that have increased its ambiguity and inconsistency. The very construct of its provisions is being built and in progress without a planned scientific and theoretical component of such building, without taking into account the empiricism of application. The Code of Criminal Procedure of the RSFSR was used as a constructive basis for the new law, where the stages of criminal process are the fundamental structure of the law. The presence and introduction of new types of judicial proceedings and related institutions as an additional “load” caused the “deflection” of the entire structure of the Criminal Procedure Code, the consequence of which was the increase of unceasing contradictions between the goals and objectives of criminal proceedings, its general conceptual provisions and the criminal process immediate stages. The author sets the purpose of the study, which consists in the justification of contradictions in the law. Methods: the methodological framework consists of the methods of historicism, systematicity, and comparative law. Results: grounded in the work the author’s point of view is based on the knowledge in criminal law. Conclusions: the study revealed that the court discretion is an integral part of the criminal procedure paradigm structure, as the perception by the court of the “truth” of the circumstances to be proved in a criminal case, interpreted by the opposite parties of the adversarial process, is only possible through the prism of assessing these circumstances by the court at its discretion, during the verification of evidence in a particular criminal case.

scholarly journals Preliminary Estimation of Proofs and Making Intermediate Decisions with the Production by the Criminal Case in the Context of the Concept of the Asymmetry of the Rules of Proovement

2016 ◽  
Vol 3 (4) ◽  
pp. 142-147
Author(s):  
V V Khatuaeva ◽  
I V Belousov
Keyword(s):  
Point Of View ◽  
Criminal Case ◽  
Criminal Process ◽  
Preliminary Estimation ◽  
The Asymmetry

In the article questions of the estimation of proofs from the point of view of the balance between the interested sides of protection and charge are examined. Is revealed the mechanism of a study of proofs from the positions of their reference and permissibility by that by in connection with existing in the doctrine of the criminal process of the theory of the asymmetry of the rules of proovement.

scholarly journals Problems of using formal means of proof in russian criminal proceedings

2021 ◽  
Vol 7 (1) ◽  
pp. 115-119
Author(s):  
S. V. Mokrushin
Keyword(s):  
Criminal Procedure ◽  
Regulatory Framework ◽  
Point Of View ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Objective Truth ◽  
Characteristic Features

The article deals with the problem of the need to establish the objective truth in a criminal case in the context of consolidation in the criminal and criminal procedure legislation of the norms on the use of formal means of proof along with evidence. The article describes the characteristic features of various types of formal means of proof, reveals their significance in the Russian criminal process, and also highlights the most problematic issues of using formal means of proof to achieve the goals of criminal proceedings. The author suggests approaches to solving this problem from the point of view of achieving a reasonable balance of using the advantages that formal means of proof provide, if necessary, to minimize the negative aspects of their use, taking into account modern means and methods of obtaining evidence. The author substantiates the idea of the need to make changes to the relevant regulatory framework, which should eliminate the existing one at the present time.

scholarly journals Mechanism of proof as subject of interdisciplinary study

2020 ◽  
pp. 89-93
Author(s):  
Aleksey Afanas'ev
Keyword(s):  
Forensic Science ◽  
Interdisciplinary Research ◽  
Multidisciplinary Approach ◽  
Criminal Activity ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Process ◽  
Genetic Link ◽  
The Subject ◽  
Interdisciplinary Study

The article draws attention to signs of the crisis state of domestic humanitarian science. As a solution, the need for interdisciplinary research in the field of science of the anti-criminal cycle is justified. The evidence mechanism demonstrates both the relevance and success of the multidisciplinary approach. The author, through the unity of activities for the detection, disclosure and investigation of crimes, as well as the unity of purpose, object, subjects, functions and means of this activity, argues the inseparability of its criminal procedural and forensic component. According to the author, the mechanism of criminal activity and the mechanism of criminal procedure, inextricably linked, provide a genetic link between the criminal process and forensic science. To recognize the mechanism of proof as the subject of interdisciplinary research, it is proposed to consider the mechanism of criminal activity and the mechanism of proof through the prism of methodological laws between criminal activity and activities for the detection, disclosure and investigation of crimes, between the circumstances to be established in a criminal case and the means of evidence.

scholarly journals Expert Opinion and Witness Testimony as Key Evidence in Criminal Cases on Incitement to Suicide

2019 ◽  
Vol 13 (6) ◽  
pp. 971-979
Author(s):  
Elena Bryanskaya ◽  
Vadzim Samaryn
Keyword(s):  
Expert Opinion ◽  
Objective Assessment ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Witness Testimony ◽  
Timely Initiation ◽  
Assessment Of Evidence ◽  
Court Practice ◽  
Legal Force

For the last five years Belarus and Russia have been among the top five countries for suicide indices. Their rise was caused by the activities of destructive groups in social networks. Experience shows that criminal proceedings for many criminal cases connected with suicides were terminated due to the absence of a crime. Thus, a thorough collection of evidence for this category of criminal cases becomes especially vital. When analyzing the court practice of incitement to suicide, the authors concluded that the most persuasive evidence is expert opinion and witness testimony. Besides, such written documents as medical cards (medical records) of potential suicides have high probative value in the investigation of criminal cases. Timely initiation and conduction of expertise could reveal signs of incitement to suicide, for example, using physical violence against the victim or a staged suicide. As the Criminal Procedure Code sometimes prescribes an expertise for a specific criminal case, such expert opinion will become a key source, a type of evidence that, at the level of a judge’s inner conviction, will have significant legal force when assessed together with other evidence. Thus, it is possible to discuss evidence that has key value, but, at the same time, it should be connected with other information on the criminal case, and together they should make up an integral crime narrative. The European Court of Human Rights introduced a concept of «key evidence» in the practice of criminal proceedings. The analysis of court practice allowed the authors to suggest that key evidence is information that acts as the main fact and is included in the subject matter of the case. This conclusion does not contradict the rule of free assessment of evidence: during such assessment, none of the evidence has predetermined, preconceived legal force. Only when the evidence is harmonized, it is possible to talk about a comprehensive investigation and an objective assessment of evidence.

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