SUBSTANTIVE LAW VIOLATION AS A BASIS FOR REVOCATION OF THE RULING

2018 ◽  
Vol 1 (XVIII) ◽  
pp. 231-241
Author(s):  
Piotr Kruszyński ◽  
Jan Kil
Keyword(s):  
Criminal Procedure ◽  
Case Law ◽  
Historical Evolution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Subject ◽  
Substantive Law

The subject of the article is an analysis of a violation of substantive law as the basis for the revocation of a ruling in Polish criminal proceedings. The study presents the historical evolution of the violation of substantive law as an appeal basis in consecutive criminal procedure codifications, starting from the Code of Criminal Procedure of 1928. The paper reviews and analyzes the case law regarding the pleasof theviolation of substantive law in criminal cases. In-depth consideration was given to the violation of substantive law as the basis for ordinary and extraordinary appeals in the criminal proceedings. The publication examines the legitimacy of recognition of violations of substantive law in the category of absolute appeal basis. Also, the violation of substantive law was confronted with the institution of gross injustice of the rulingstemming from Article 440 of Code of Criminal Procedure (kpk).

Termination of Criminal Proceedings in Public Criminal Cases by Courts of First Instance Under Art. 24, Para. 1, Item 5 of the Bulgarian Code of Criminal Procedure and Its Compliance with European Union Law

De Jure ◽  
2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Debora Valkova-Terzieva ◽  
Keyword(s):  
European Union ◽  
Criminal Procedure ◽  
The European Union ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
European Union Law ◽  
Member States ◽  
The Subject

The subject of this research is a specific prerequisite for the termination of criminal proceedings in public criminal cases, regulated in Article 24, Paragraph 1, Item 5 of the Bulgarian Code of Criminal Procedure. This analysis was necessitated by the fact that the European Union had introduced certain obligations for the Member States.

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 Human Rights Waiver in Criminal Proceedings in Terms of the European Court of Human Rights: ‘Russian Cases’

2020 ◽  
Vol 3 (4) ◽  
pp. 50-58
Author(s):  
Irina Chebotareva ◽  
Olesia Pashutina ◽  
Irina Revina
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Widespread Occurrence ◽  
European Court ◽  
The Government ◽  
Grand Chamber ◽  
The Right

The article investigates the general position of the European Court of Human Rights on the admissibility and validity of the waiver of rights, the features of the European mechanism for protecting human rights in case of the waiver of the right; studies the case-law practices in criminal cases of the Court in relation to Russia where the Court considered the presence/absence of the waiver of the right. The practice of the ECHR reveals the widespread occurrence of human rights violations in the Russian criminal proceedings with the alleged waiver of the right in the framework of criminal procedure. These includes the situations when the Government claimed that the Applicant had waived his/her right and the Applicant did not agree with this fact and insisted that he had been deprived of the opportunity to exercise his/her right. According to the ECHR, violations of human rights established in the Convention are related not only to shortcomings in the legal system but also to improper law enforcement that does not comply with the Convention requirements. Based on the analysis of the ECHR’s general approaches to the waiver of the right, the authors revealed the compliance of the Russian criminal procedure with the requirements of the Court to the waiver of the right and the guarantees established for it. To achieve the objectives in the HUDOC database of the European Court, using search requests we identified cases against Russia considered by the Chamber and the Grand Chamber, in which the ECHR examined the issue of the presence/absence of the waiver of the right in the criminal procedure. As a result, 40 judgments in which the Court directly considered the issue of the presence/absence of the waiver of the right in the criminal procedure in Russia were selected. We studied and analysed the selected judgments.

scholarly journals On legal succession in reconciliation of criminal cases of private prosecution

2021 ◽  
pp. 33-42
Author(s):  
Aminat Alkhazovna Batchaeva
Keyword(s):  
General Rule ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Effective Implementation ◽  
The Subject ◽  
State Coercion ◽  
The Russian Federation ◽  
The Right

The subject of this research is the criminal prosecution of cases established by the Part 2 of the Article 20 of the Criminal Procedure Code of the Russian Federation, which is carried out in private capacity and significantly modifies the rights and responsibilities of the parties to criminal proceedings. Pursuant to the general rule, the state authorities and officials do not carry out private prosecution cases. In view of this, close attention is given the procedural activity of private prosecutor, who is vested the right in application of measures of state coercion, but entrusted with responsibility on formulating, proving, and pressing charges in court. Retrospective analysis of the Russian criminal procedure legislation reveals that modern legislation has no legal succession of the centuries-long experience of classifying a range of offences as cases of private prosecution. The author believes that the list of cases of private prosecution can be extended by taking into account the provisions of the Criminal Law and Practice Statute 1864, Regulations of Punishments Imposed by Justices of the Peace, which enables reconciliation of the parties and entails unconditional termination of proceedings in certain categories of minor offences. This would ensure the effective implementation of criminal proceedings, restoration of social and legal justice, and accessibility of justice to general public.

scholarly journals Subject and limits of examination evidence in the proceedings of the criminal case in the court of first instance

2020 ◽  
Vol 6 (3) ◽  
pp. 186-195
Author(s):  
Ilya N. Yefimovykh
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Court Proceedings ◽  
Court Of First Instance ◽  
Special Order

The article analyzes the norms of the criminal procedure law, the opinions of scientists, judicial practice materials related to the examination of evidence in criminal proceedings in the court of first instance, on the basis of which the author proposed definitions of the notions subject of examination evidence and limits of examination evidence they were compared with the concepts of subject of proof and limits of proof. The study used such research methods as logical, system-structural, statistical. As a result of a study of specific court decisions in criminal cases, differences in the understanding of evidence and the examination of evidence were revealed. A distinction has been made between the subject and the object of the study of evidence at the court hearing. The question of determining the subject matter and the limits of the examination of evidence was analyzed, including with regard to the consideration of the criminal case in a special order of judicial decision of the court, with the consent of the accused with the accusation. The rationale for the view that the examination of evidence takes place during the examination of a criminal case under a special court procedure is given, the circumstances that can be established during the court session, namely, the circumstances that may lead to exemption from punishment, as well as the postponement are analyzed. serving the sentence. These circumstances, if any, are mandatory to be established in court proceedings through the examination of evidence. According to the results of the analysis, proposed measures to improve the norms of the criminal procedure law governing the consideration of the criminal case in a special order of the trial. The question of the scope of the examination of evidence was considered in conjunction with the norms of the criminal procedure law, which established the grounds for the return of the criminal case to the prosecutor.

scholarly journals Preventative measures in form of a restriction of certain actions, collateral, and house arrest: questions of their correlation and practices of application

2020 ◽  
pp. 67-84
Author(s):  
Yurii Ksendzov
Keyword(s):  
Current System ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
Form Analysis ◽  
House Arrest ◽  
Preventative Measures ◽  
The Subject ◽  
The Russian Federation ◽  
Selection Of

The subject of this research is the norms of criminal procedure legislation regulating the application of preventative measures in criminal proceedings, as well as court decisions made on the basis of the results of processing applications on selection of preventative measures. Based examination of law enforcement practice, the expert observations and proposals in scientific literature, the author carefully analyzes the flaws of the current system of preventative measures in the criminal procedure, problematic aspects of correlation of restriction of certain actions, collateral, house arrest, as well as separate restriction, imposition of which upon a suspect (accused) is allowable in accordance with Part 6 of the Article 105.1 of the Criminal Procedure Code of the Russian Federation. The conclusion is made that the current system of preventative measures is not perfect, and practical application of various preventative measures reveals the formality of the established hierarchical structure of preventative measures in the criminal procedure legislation from soft to a more strict form. Analysis of case law demonstrates the it is often impossible to clearly and unambiguously demarcate the measures of prevention on form of a restriction of certain actions and collateral, restriction of certain actions and house arrest, which leads the author to conclude on the reasonableness of regulation of restriction of certain actions as another form of procedural compulsion.

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 use of digital communication technologies in the context of a pandemic as a way to improve the effectiveness of justice

2021 ◽  
Vol 7 (1) ◽  
pp. 95-101
Author(s):  
E. V. Smakhtin
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Information Technologies ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Russian Federation

The article deals with the peculiarities of the activity of courts in making judicial decisions in the context of a pandemic. First of all, we are talking about the wider use of digital and information technologies in criminal proceedings, which have previously been repeatedly recommended by forensic science for implementation in judicial practice. Some recommendations of criminalistics are currently accepted by the Presidium of the Supreme Court of the Russian Federation in its Decision dated April 08, 2020 № 821 and Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of a new coronavirus infection (COVID-19) in the territory of the Russian Federation № 2, which provided appropriate explanations for their use in practice. In particular, we are talking about the possibility of using video conferencing systems for certain categories of criminal cases and materials that are considered urgent, although this is not provided for in criminal procedure legislation. It is concluded that it is necessary to change the current criminal procedure legislation, bring it into line with the Constitution of the Russian Federation, federal constitutional laws, federal laws and subordinate regulatory legal acts, including orders of the Judicial Department under the Supreme Court of the Russian Federation.

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 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.

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