Criminal procedure powers of the head of the institution of the penal correction system as a subject of inquiry: implementation problems

2020 ◽  
pp. 144-149
Author(s):  
Андрей Станиславович Александров
Keyword(s):  
Legal Status ◽  
Criminal Procedure ◽  
Correctional Institution ◽  
Correctional Institutions ◽  
Detention Center ◽  
Criminal Procedure Law ◽  
The Subject ◽  
The Law ◽  
Implementation Problems ◽  
Correction System

В статье рассматриваются особенности уголовно-процессуального статуса учреждений и органов уголовно-исполнительной системы. Поднимаются вопросы об уголовно-процессуальных компетенциях начальника исправительного учреждения и следственного изолятора в качестве органа дознания. Автором обозначена проблема размытости правового статуса начальника исправительного учреждения в действующем уголовно-процессуальном законодательстве. Отмечены особенности осуществления дознания в целом и дознания в условиях исправительных учреждений в частности. Обозначены противоречия в правоприменительной практике органов прокуратуры и положений уголовно-процессуального закона. В статье рассмотрены различные позиции ученых относительно компетенций начальников исправительных учреждений в производстве неотложных следственных действий. Рассмотрена отдельная практика усиления прокурорского надзора за уголовно-процессуальной деятельностью учреждений и органов УИС исходя из требований ст. 5, 40, 150, 157 УПК РФ. Затронут на сегодня спорный вопрос о способности или неспособности начальника исправительного учреждения возбудить уголовное дело или вынести отказной материал. Делается акцент на недопустимости неоднозначного понимания со стороны правоприменителя норм уголовно-процессуального законодательства. The article discusses the features of the criminal procedural status of institutions and bodies of the penal correction system. Questions are raised about the criminal procedural competencies of the head of the correctional institution and the pre-trial detention center as the subject of inquiry. The author outlines the problem of blurring the legal status of the head of the correctional institution in the current criminal procedure legislation. Peculiarities of the implementation of the inquiry in general and of inquiry in the conditions of correctional institutions in particular are noted. The contradictions in the law enforcement practice of the prosecution authorities and the provisions of the criminal procedure law are indicated. The article discusses the various positions of scientists regarding the competencies of the heads of correctional institutions in the production of urgent investigative actions. A separate practice of strengthening prosecutorial supervision of the criminal procedure activities of the institutions and bodies of the penal correction system based on the requirements of Art. 5, 40, 150, 157 Code of Criminal Procedure. Today, the controversial issue of the ability or inability to initiate a criminal case or to bring out refusal material by the head of the correctional institution will be raised. The emphasis is on the inadmissibility of the ambiguity of understanding by the law enforcer of the norms of criminal procedure legislation.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals Prohibition of interrogation of notaries as witnesses in criminal proceedings

1970 ◽  
pp. 345-349
Author(s):  
Ulyana Polyak
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Literature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
The Law ◽  
Notary Public ◽  
Made In

The current criminal procedure law of Ukraine stipulates that a witness is obliged to give a true testimony during pre-trial investigation and trial, however, the legislator made an exception for this by specifying the categories of persons who have been granted immunity from immunity, ie they are released by law. testify. The article deals with the problems of law and practice regarding the prohibition of the interrogation of a notary as a witness in criminal proceedings and the release of him from the obligation to keep the notarial secret by the person who entrusted him with the information which is the subject of this secret. The notion of notarial secrecy is proposed to be changed, since the subject of this secrecy is not only information that became known to the notary public from the interested person, but also those information that the notary received from other sources in the performance of their professional duties, as well as the procedural activity of the notary himself, is aimed at achieving a certain legal result. The proposal made in the legal literature to supplement the CPC of Ukraine with the provisions that a notary is subject to interrogation as a witness on information that constitutes a notarial secret, if the notarial acts were declared illegal in accordance with the procedure established by law The proposal to increase the list of persons who are not subject to interrogation as witnesses about the information constituting a notarial secret is substantiated, this clause is proposed to be supplemented by provisions that, apart from the notary, are not notarized, other notarials, notaries as well as the persons mentioned in Part 3 of Art. 8 of the Law of Ukraine "On Notary". Amendments to the current CPC of Ukraine by the amendments proposed in this publication will significantly improve the law prohibiting the interrogation of a notary as a witness in criminal proceedings, as well as improve certain theoretical provisions of the institute of witness immunity in criminal proceedings.

scholarly journals ON CRIMINAL PROCEDURE LAW-MAKING IN THE MODERN CONTEXT

2020 ◽  
Vol 6 (4) ◽  
pp. 67-71
Author(s):  
V. O. Belonosov
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Modern Context ◽  
The Law ◽  
The Stability ◽  
Legal Understanding

The article analyzes the changes made to the CPC in 2019 and the first half of 2020. It is concluded that despite a significant reduction in overactive legislative drafting since 2019, the quality of the changes made leaves much to be desired. Unjustified repetition of general provisions without any novelty continues to occur. Substantive issues are the subject of regulation, while the subjects are persons who do not perform procedural functions. The amendments ignored citizens' rights and freedoms, were adopted in the interests of law enforcement agencies and were formal and bureaucratic in nature. All this does not contribute to the stability of legislation and respect for the law, distorting the meaning of legality. Under these conditions, it is proposed to return to a legal understanding of the law, to revive moral and ethical principles of criminal procedure, to resume and intensify discussions on the protection of individual rights and freedoms in criminal proceedings.

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".

Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties

1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
Legal Status ◽  
Case Analysis ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Unilateral Termination ◽  
The Subject ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

scholarly journals RETURNS OF ASSETS IN CORRUPTION CRIMINAL ACTS AS ALTERNATIVE RESTORING STATE LOSSES

2020 ◽  
Vol 2 (1) ◽  
pp. 27-34
Author(s):  
Komang Ekayana
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
The State ◽  
Recovery Model ◽  
Formal Approach ◽  
The Rule Of Law ◽  
Asset Recovery ◽  
Criminal Procedure Law ◽  
The Law

Corrupted state assets certainly hurt the country narrowly, but also broadly where it harms the country and its people. However, the formal approach through the current criminal procedure law has not been able to recover the losses suffered by the state. In fact, state losses resulting from corruption are state assets that must be saved. Then there needs to be a new breakthrough to recover state losses through the asset recovery model. When looking at the country from the perspective of the victims, the state must obtain protection, in this case recovery from the losses suffered due to corruption. This paper examines the model of returning assets resulting from corruption in the law enforcement process that focuses on the rule of law in the 2003 UNCAC Convention and the mechanism of returning state assets in terms of Law No. 20 of 2001 concerning amendments to Law No. 31 of 1999 concerning Eradication of Corruption Crimes. 

scholarly journals ACTUAL QUESTIONS ABOUT INVESTIGATOR'S WORK IN LATVIAN CRIMINAL PROCEDURE

2017 ◽  
Vol 3 (80) ◽  
pp. 39
Author(s):  
Marina Sumbarova
Keyword(s):  
Legal Status ◽  
Criminal Procedure ◽  
Educational Process ◽  
Criminal Trial ◽  
Criminal Trials ◽  
Criminal Procedure Law

In this article author considers the questions connected with activity of the investigator at investigation of crimes, gives the characteristic of his procedural activity, defines his legal status in Latvian criminal procedure, characterizes important functions that this participant of criminal trial has. Along with consideration of a legal status of the investigator in criminal trial of Latvia, the analysis of the relevant procedural characteristics connected with investigation of criminal trials has determined the scientifically based directions in modern educational process of Latvia by training of specialists lawyers and, in particular, investigators. As a results of a research are given offers to change separate standards of the Criminal procedure law.

scholarly journals Brief considerations regarding decision no. 26/2021 of the constitutional court regarding the constitutionality of the provisions of the art. 4881 paragraph 2 of Code of criminal procedure

2020 ◽  
pp. 31-36
Author(s):  
IOANA NARCISA ANIȚULESEI
Keyword(s):  
Criminal Procedure ◽  
Constitutional Court ◽  
The Subject ◽  
The Law

In the present study, the author analyzes the provisions of art. 4881 of the Code of Criminal Procedure which, until now, have been the subject of multiple exceptions of unconstitutionality examined by the Constitutional Court. Mainly, the study focuses on the considerations set out in Decision no. 26/2021 pronounced by Constitutional Court in which was statued the constitutionality of the provisions of art. 4881 paragraph 2 and 3 of the Code of Criminal Procedure. In his approach, the author makes additional arguments in support of the unconstitutionality of the rule by reference to national and European provisions enshrining the principle of equality of citizens before the law.

scholarly journals PASAL 54 KITAB UNDANG-UNDANG HUKUM ACARA PIDANA DALAM ELABORASI HUKUM PIDANA ISLAM

2021 ◽  
Vol 4 (1) ◽  
pp. 48-69
Author(s):  
Diah Ratri Oktavriana ◽  
Nasiri Nasiri
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Legal Service ◽  
Legal Assistance ◽  
Legal Aid ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Law ◽  
The Right

This research is a normative research. One of the fulfillment of human rights is justice in equalizing the position of every citizen before the law, as stated in Article 27 paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The right to equality before the law or what is commonly referred to as equality before the law is a principle that provides recognition and protection of human rights for every individual regardless of one's background. Therefore, it is true that Law Number 16 of 2011 concerning Legal Aid for People Who Are Less Capable to Guarantee Constitutional Rights of Citizens for Justice and Equality before the Law emerged. Legal aid is a legal service provided by advocates to the community seeking justice In the realm of criminal cases, the provision of legal assistance is described in Article 54 of the Criminal Procedure Code which explains that in the interests of defense, a suspect or defendant has the right to receive legal assistance from one or more legal advisers during the time and at each level of examination. The provision of legal assistance must be based on the principle of equality before the law as stated in the explanation of Law Number 8 of 1981 concerning Criminal Procedure Law. From the various analyzes that have been carried out, in the perspective of Islamic criminal law it can be concluded that the principle of equality before the law as described in Article 54 of the Criminal Procedure Code is equivalent to an order to provide legal aid which in Islamic criminal law is spelled out in Surah Al-Maidah verse 2 which states that as a fellow humans are ordered to help each other as a form of horizontal worship to fellow humans (habl minan-nas). In addition there are many more both in the Al Qur'an and the hadith of the prophet regarding the application of the principle of equality before the law.

scholarly journals Genes and Spleens: Property, Contract, or Privacy Rights in the Human Body?

2007 ◽  
Vol 35 (3) ◽  
pp. 371-382 ◽  
Author(s):  
Radhika Rao
Keyword(s):  
Biomedical Research ◽  
Human Body ◽  
Legal Status ◽  
Raw Materials ◽  
The Body ◽  
Body Parts ◽  
Privacy Rights ◽  
Human Genes ◽  
The Subject ◽  
The Law

The legal status of the human body is hotly contested, yet the law of the body remains in a state of confusion and chaos. Sometimes the body is treated as an object of property, sometimes it is dealt with under the rubric of contract, and sometimes it is not conceived as property at all, but rather as the subject of privacy rights. Which body of law should become the law of the body? This question is even more pressing in the context of current biomedical research, which permits commodification and commercialization of the body by everyone except the person who provides the “raw materials.” The lack of property protection for tangible parts of the human body is in stark contrast to the extensive protection granted to intellectual property in the body in the form of patents upon human genes and cell lines. Moreover, even courts that reject ownership claims on the part of those who supply body parts appear willing to grant property rights to scientists, universities, and others who use those body parts to conduct research and create products.

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