scholarly journals Criminal legal basis for an expedited trial procedure provided by the chapter 40 of the Russian Criminal Procedure Code

2021 ◽  
Vol 5 (2) ◽  
pp. 192-208
Author(s):  
A. V. Boyarskaya
Keyword(s):  
Criminal Law ◽  
System Analysis ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Court Ruling ◽  
Legal Basis ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
Court Proceedings

The subject of study is the criminal-legal basis for an expedited procedure for adopting a court ruling when the accused person agrees with the charge. These issues are relevant, since in July 2020 the substantive legal basis of the expedited procedure in Russia was changed and now this procedure can only be applied in criminal cases of small and medium gravity.The aim of this work is to study the substantive legal basis of an expedited procedure of litigation from the point of view of the changes were made to it. The author expresses the thesis that the legislators did not quite reasonably link criminal-legal grounds of the expedited procedure with the system of categories of crimes.The methodology. The author used general scientific methods (dialectical, historical, methods of formal logic, system analysis) as well as method of formal legal interpretation of Russian Criminal Code and judicial decisions of Russian courts.The main results, scope of application. The criminal and legal basis of certain criminal procedure is a package of criminal law standards, for the implementation of which a certain criminal and procedural form is intended. The parameters of the substantive basis of criminal proceedings are set with the signs that shall be indicated in the Code of Criminal Procedure and may change. It directly refers to the expedited procedure for adopting a court ruling, by Chapter 40 of the Russian Criminal Procedure Code. Initially, it was assumed that the application of this procedure is permissible in criminal cases concerning crimes the punishment for which does not exceed 5 years imprisonment in accordance with the Russian Criminal Code. The expedited court proceedings began to be applied in criminal cases concerning crimes, the punishment for which does not exceed 10 years imprisonment in accordance with the Russian Criminal Code, since 2003. The Russian Supreme Court made an attempt to reduce the application of court proceedings provided by Chapter 40 of the Russian Criminal Procedure Code in 2019. It turned out to be successful. Legislators have changed the basic criterion that determines the substantive basis for an expedited procedure for adopting a court ruling. Now the system of categories of crimes is this basis. The system of categories of crimes presented in Article 15 of the Russian Criminal Code is not stable enough and is based on a set of provisions of this Code, but the sanctions for many crimes are not scientifically and practically grounded in this Code. In addition, the classification of crimes enshrined in Article 15 of the Russian Criminal Code is based on such a criterion as the nature and degree of public danger of the crime. These categories are among the most complex in the science of criminal law.Conclusions. The use of categories of crimes as a criterion for determining the criminal legal basis of the expedited procedure for making a court decision significantly complicates the application of the expedited procedure.

scholarly journals Separate issues of a court sentence based on an agreement

2019 ◽  
pp. 43-50
Author(s):  
Sayenko Sayenko
Keyword(s):  
Significant Role ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
Procedure Code ◽  
Procedural Time ◽  
Court Proceedings ◽  
Procedural Rights

Among the procedural acts in criminal proceedings, adopted by the court, a sentence has a significant role. This is substantiated that all the preliminary procedural actions of the subjects, having been carried out before the sentencing, were directed to this decision which found the person guilty and prosecuted. The purpose of the article is to investigate the structure of a conviction, identifying one of the problems that arise when sentencing a criminal proceeding based on agreements, in particular when a person has not been convicted or convicted of a previous intentional crime. The analysis of Chapter 35 of the Criminal Procedure Code of Ukraine, the provisions of the Criminal Code of Ukraine and the case law showed the following problems: The structure of a judgement of conviction delivered by a court based on an agreement differs from the judgement, upheld in court proceedings. Lack of a motivating part with the justification of the proven guilty of the person is a peculiarity of the judgment of conviction based on agreement. Committing repetition of offences by a person effects on the imposition of a sentence, which will always be more severe under the rules of his/her appointment. As the transaction-based proceedings are designed to save procedural time, the accused consents to the said order, and hopes for a reduction in punishment. At the same time, such expectations cannot be realized, since the current legislation does not provide for improvement of the situation of the guilty person. Delivering a judgement based on an agreement, the court shall pay attention to its content, including the punishment, agreed by the parties. According to the law, the final punishment of perpetrators under Articles 70-71 of this Code will be determined by the court, so the defendant cannot predict a sanction because it is determined by the court, neither nor an agreement. The reaching and conclusion of an agreement by a person in criminal proceedings may contravene the provisions of Article 62 of the Constitution of Ukraine and violate the procedural rights of the accused person.

scholarly journals SIGNIFICANCE OF THE ADVERSARIAL USE OF MATERIAL EVIDENCE IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 31 (4) ◽  
pp. 674-680
Author(s):  
K.D. Muratov
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Relationship ◽  
Procedure Code ◽  
The Russian Federation ◽  
Recognition Of Objects ◽  
Court Proceedings ◽  
Material Evidence

The idea of adversariality in criminal proceedings, carried away by its simplicity and originality in the context of public legal relations, after a certain period of time had passed the Criminal Procedure Code of the Russian Federation, gradually began to be reasonably questioned. The study of procedural procedures, the recognition of objects and documents as material evidence, as well as the subjects of the collection and presentation of material evidence, allow a closer look at the legal relationship and powers of the parties in criminal proceedings in the field of their implementation both in pre-trial and in court proceedings. Investigative and judicial processes as historically established forms of criminal procedure should be adversarial. The author examines the importance of the adversarial nature of the parties in the formation of material evidence in criminal cases and their assessment by the parties when substantiating the conclusions in the case, shows their theoretical and legal significance, procedural and legal, preventive and prophylactic and informational and evidentiary value.

Problems of Substantive Differentiation Conditions of Criminal Proceedings

2016 ◽  
Vol 4 (9) ◽  
pp. 0-0
Author(s):  
Александра Боярская ◽  
Aleksandra Boyarskaya
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedural Law ◽  
Special Procedure ◽  
Court Proceedings ◽  
Judicial Procedure ◽  
The Impact ◽  
Special Order

The article discusses current issues of differentiation of criminal proceedings. The character of the impact of criminal law on procedural form of summary court proceedings. The author successively examines the substantive basis of summary court proceedings of Russian criminal trial: a special order of the trial, a special procedure for the trial at the conclusion of the pre-trial agreement, judicial procedure under Art. 226.9 of the Code of Criminal Procedure, as well as in criminal cases of private prosecution. The author concludes that the specific substantive basis is not peculiar to each of these procedures. Legislators did not specify the substantive grounds of procedure under Sec. 40.1 Code of Criminal Procedure. The court proceedings under Art. 226.9 CPC RF does not have its own substantive basis. The article concludes that all above said demonstrates the destruction of classical chords, according to which the differentiation of criminal law determines the differentiation of criminal procedural law in sphere of differentiation of criminal procedural form. Nowadays, on the contrary, the differentiation of the criminal procedure is carried out more rapidly and dictates the transformation of criminal procedural law. The article also analyzes the causes and symptoms of this trend of development of modern legislation.

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.

scholarly journals Counteraction to Miscarriage of Justice in Ukraine

2019 ◽  
Vol 2 (3) ◽  
pp. 96-105
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Proceeding ◽  
Specific Regulation ◽  
Miscarriage Of Justice

Investigation of crimes against justice in Ukraine is among topical problems of miscarriage of justice. Hundreds of criminal cases are recorded as a crime in the Official Register in Ukraine but only a few have been brought to the court. In this article we try to approach this problem in three ways: from the point of view of criminal law, criminal procedure and criminalistic measures of counteraction to miscarriage of justice. Such an approach helps to demonstrate problems of investigator, prosecutor and judge at different stages of criminal proceeding. Special attention is paid to specific regulation of the issues of criminal proceedings against a certain category of persons, including judges. Mistakes of representatives of law enforcement bodies become visible as a result of analyzing of real criminal cases. Such an analysis is aimed to disclose the problem of counteraction to miscarriage of justice in Ukraine.

scholarly journals Practical Application of the Provisions of the Code of Criminal Procedure Regarding the Measure of Preventive Arrest

2021 ◽  
Vol 9 (1) ◽  
pp. 24-32
Author(s):  
Nicolae Silviu Pana ◽  
Ana Maria Pana
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Judicial Control ◽  
House Arrest ◽  
Procedure Code

Preventive measures are coercive criminal law enforcement institutions, aimed at the deprivation or restriction of individual liberty, by which the suspect or defendant is prevented from undertaking certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of its purpose. They have been instituted by the legislator for specific purposes, namely: to ensure the proper conduct of criminal proceedings, to prevent the abstraction of the suspect or defendant from trial and to prevent the commission of new offenses (art. 202 para. 1 of the Criminal Procedure Code). Preventive measures are not inherent in any ongoing criminal trial, but are exceptional measures (art. 9 para. 2 of the Criminal Procedure Code), and the court can decide to sease the measure or make use of the measure in the light of the specific circumstances of each case. Of the five preventive measures, three are deprivation of liberty - detention, house arrest and pre-trial detention, and two are non-custodial: judicial control and judicial control on bail. All these measures are only applicable to the natural person. Specific preventive measures may be taken against legal persons, but those are regulated by the provisions of art. 493 of the Criminal Procedure Code.

scholarly journals Another example of the situational nature of changes in domestic criminal and criminal procedural legislation or a vital short story?

2020 ◽  
pp. 79-83
Author(s):  
Nikolay Letelkin ◽  
Dmitry Neganov
Keyword(s):  
Short Story ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Code ◽  
The State ◽  
Federal Law ◽  
Procedure Code ◽  
Corona Virus ◽  
The Russian Federation

The article examines the situationality of modern lawmaking in the field of criminal law in the context of the adoption of the federal law of 1.04.2020 No. 100-FZ «On Amendments to the Criminal Code of the Russian Federation and Articles 31 and 151 of the Criminal Procedure Code of the Russian Federation», adopted by the State The Duma of the Russian Federation in connection with the pandemics of the Corona Virus Disеаsе 2019 (COVID-19).

scholarly journals On Classification of the Powers of an Investigating Judge in Criminal Proceedings of the Kyrgyz Republic

2020 ◽  
Vol 6 (11) ◽  
pp. 350-355
Author(s):  
A. Kalygulova
Keyword(s):  
Criminal Procedure ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Control ◽  
Relevant Object ◽  
Procedure Code ◽  
The Subject

The article is devoted to the issue of classification of the powers of an investigating judge in criminal proceedings of the Kyrgyz Republic. The relevance and novelty of the study is caused by the introduction of a new procedural figure of the investigating judge, who exercises judicial control in pre-trial proceedings. The powers conferred by the Criminal Procedure Code of the Kyrgyz Republic to an investigating judge are varied in content. In this regard, the issue of the classification of the powers of an investigating judge is relevant. Object of research: the procedural figure of the investigating judge. The subject of the research: the powers of the investigating judge and their division by classification. Thus, the powers of an investigating judge, provided for in Article 31 of the Criminal Procedure Code of the Kyrgyz Republic, cover not only the issues of the existence of grounds for the application and extension of measures to ensure criminal proceedings, authorization of investigative and special investigative actions, as well as the resolution of issues arising between the participants in pre-trial proceedings, including those affecting the scope of proof in criminal cases. A proposal has been made to classify the powers of an investigating judge in criminal proceedings in the Kyrgyz Republic.

scholarly journals Problems of proving guilt in criminal cases in connection with tax evasion

2019 ◽  
pp. 170-176
Author(s):  
V. V. Dubrovin
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Code ◽  
Control Measures ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Supreme Court ◽  
The Russian Federation

The establishment of an intentional form of guilt and its specific type is mandatory for the implementation of the provisions of Art. 8 of the Criminal Code. In criminal proceedings in connection with tax evasion, a direct intent should be established in the act of the accused, otherwise the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of criminal law on liability for tax offenses”. One of the proofs of direct intent in the act of the accused may be the decision of the tax authority to prosecute for the tax offense, made according to the results of tax control measures (in-house or on-site tax audits). In the event that it establishes an imprudent form of the taxpayer’s guilt in committing a tax offense, in proving the guilt of the accused in the course of criminal proceedings there may be an intractable contradiction.

Specific Features of Criminal Proceeding Regarding Criminal Misdemeanours

2020 ◽  
Author(s):  
Viacheslav V Vapniarchuk ◽  
Inna L Bespalko ◽  
Maryna G Motoryhina
Keyword(s):  
Law Enforcement ◽  
Critical Analysis ◽  
Criminal Procedure ◽  
Scientific Investigation ◽  
Criminal Proceedings ◽  
Proper Understanding ◽  
Basic Approach ◽  
Criminal Proceeding ◽  
Procedure Code ◽  
Court Proceedings

Abstract The urgency of the problem stated in the article is conditioned by amendments to the criminal procedural legislation, which in a new way regulate the procedure of criminal proceedings concerning criminal offences. The aim of the article is to investigate the procedure for conducting criminal proceedings for criminal offences and to make suggestions for improving its regulatory framework. The basic approach to the study of this problem was to conduct a critical analysis of the rules of the current criminal procedural legislation, which regulate criminal proceedings for criminal offences, and to express views on rules’ proper understanding and application. Based on the analysis of the features of the normative regulation of criminal proceedings concerning criminal offences, the publication comments on a number of norms of the current Criminal Procedure Code of Ukraine, which regulate both pre-trial investigation of criminal offences in the form of enquiries and court proceedings against them; approaches to their elimination have been proposed. The materials of the article represent both theoretical and practical values. They can be used for further scientific investigation of the features of criminal proceedings regarding criminal offences, as well as for the proper understanding and implementation of law enforcement criminal proceedings.

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