Restriction of the owner’s right to dispose of and use the owner’s premises in the event of a preventive measure being applied against the owner under Article 275a of the Code of Criminal Procedure

2021 ◽  
Vol I (I) ◽  
pp. 177-194
Author(s):  
Piotr Rogoziński
Keyword(s):  
Civil Law ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Individual Rights ◽  
Property Ownership ◽  
Procedural Law ◽  
Violent Offence ◽  
The Individual ◽  
The Impact

The author discusses the impact of a preventive measure in the form of an order to temporarily vacate premises occupied together with an aggrieved party, imposed upon a person charged with a violent offence committed to the detriment of the cohabiting person, on the exercise of civil-law rights to the premises by the said accused, in particular when the accused is the owner of the premises. The individual rights jointly constituting the property ownership right are analysed in the context of a preventive measure referred to in Article 275a of the Code of Criminal Procedure. The meaning of the notion of “premises” as used in the procedural law in relation to the preventive measure and its relation with the civil law is examined as well. The article also features a summary and conclusions.

PROBLEM ASPECTS OF THE IMPLEMENTATION OF CRIMINAL PROCEDURAL NORMS OF PROTECTION OF THE VICTIMS FROM CRIME

2020 ◽  
pp. 72-76
Author(s):  
Яна Валерьевна Самиулина
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Rights ◽  
Criminal Proceedings ◽  
Effective Mechanism ◽  
The Russian Federation ◽  
The Individual ◽  
The Right ◽  
To Receive ◽  
Selection Of

В настоящей статье предпринята попытка исследовать отдельные проблемные аспекты института потерпевшего в российском уголовном процессе. В этих целях подвергнуты анализу правовые нормы, регламентирующие его процессуальный статус. Раскрываются отдельные пробелы уголовно-процессуального законодательства в сфере защиты законных прав и интересов потерпевшего. Автор акцентирует внимание на том, что совершенствование уголовно-процессуального законодательства в части расширения правомочий потерпевшего по отстаиванию своих нарушенных преступлением прав следует продолжить. На основании проведенного исследования действующего законодательства в части регламентации прав потерпевшего от преступления предлагается расширить перечень получаемых им копий постановлений, указанных в п. 13 ч. 2 ст. 42 УПК РФ. Автор предлагает включить в перечень указанной законодательной нормы право получения потерпевшим копии постановления об избрании конкретного вида меры пресечения, избранного в отношении подозреваемого (обвиняемого). Для создания действенного механизма защиты интересов потерпевших от преступления юридических лиц предлагаем ч. 9 ст. 42 УПК РФ изложить в следующей редакции: «в случае признания потерпевшим юридического лица его процессуальное право в уголовном процессе осуществляет представляющий его профессиональный адвокат». This article attempts to investigate certain problematic aspects of the institution of the victim in the Russian criminal process. For this purpose, analyzed the individual norms governing his procedural status. Separate gaps of the criminal procedure legislation in the sphere of protection of the legal rights and interests of the victim are disclosed. The author emphasizes that the improvement of the criminal procedure legislation in terms of the extension of the victim’s authority to defend his rights violated by the crime should be continued. On the basis of the study of the current legislation regarding the regulation of the rights of the victim of a crime, it is proposed to expand the list of decisions received by him, referred to in paragraph 13, part 2 of article 42 Code of Criminal Procedure. The author proposes to include in the list of the indicated legislative norm the right to receive the victim a copy of the decision on the selection of a specific type of preventive measure, selected in relation to the suspect (accused). To create an effective mechanism for protecting the interests of legal entities victims of a crime, we offer part 9 of art. 42 of the Code of Criminal Procedure of the Russian Federation shall be reworded as follows: «if a legal entity is recognized as a victim, his procedural right in criminal proceedings is exercised by the professional lawyer representing him».

THEORETICAL AND LEGAL FRAMEWORK OF PROCEDURAL GUARANTEES OF PERSONAL RIGHTS IN A CRIMINAL PROCEDURE

2021 ◽  
Vol 6 (9) ◽  
pp. 65-72
Author(s):  
Dildora Bazarova ◽  
Keyword(s):  
Analytical Data ◽  
Criminal Procedure ◽  
Legal Framework ◽  
Public Confidence ◽  
Individual Rights ◽  
Criminal Proceedings ◽  
Legal Reforms ◽  
Personal Rights ◽  
Legitimate Interests ◽  
The Individual

Ensuring reliable protection of the rights, freedoms and legitimate interests of citizens in the judicial system, as well as further strengthening public confidence in justice, the content of legal reforms is to ensure the rights of the individual. Accordingly, this article examines the theoretical and legal foundations of procedural guarantees of individual rights in criminal proceedings on the basis of theoretical and practical analytical data. The article also analyzes the scientific views of scientists on the theoretical aspects of procedural guarantees of individual rights in criminal proceedings.Keywords:law, law, standard, crime, criminal procedure, investigation.

The Individual Rights of Creditors in the Institutional Proceedings and its Influence on the Institutional Mass and the Creditors ‘Assembly

De Jure ◽  
2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Natalia Andreev ◽  
Keyword(s):  
Production Management ◽  
Individual Rights ◽  
Significant Volume ◽  
The Individual ◽  
Insolvency Proceedings ◽  
The Impact

The publication examines the importance of individual creditors’ rights in insolvency proceedings, which are available to creditors after the opening of insolvency proceedings. The formation of a collective body, the management of the proceedings and the bankruptcy mass, such as the creditors’ meeting, does not put an end to the rights of the individual creditor. The impact of these individual rights is an issue affecting the mechanisms of production management and its completion, which is why it is of interest to all existing insolvency lawyers. Due to the significant volume of individual strikes and their impact on production and bankruptcy, the article only addresses some of them.

Prevention of crime, tort and epidemy: The use of criminal procedure for preventive purposes in Poland during Covid-19

2021 ◽  
pp. 174889582110567
Author(s):  
Arkadiusz Lach
Keyword(s):  
Preventive Measures ◽  
Civil Law ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
Criminal Process ◽  
Illegal Activity ◽  
The Public ◽  
Polish Code ◽  
Prevention Of Crime

Criminal procedure is increasingly becoming an important instrument of prevention. This is a globally observed tendency, and Poland is not an exception. There are several regulations in the Polish Code of Criminal Procedure that allow the preventive use of coercive measures. In 2020, a new and controversial regulation was introduced, authorising the public prosecutor or court to prohibit the publication of content interfering with the legally protected goods of the victim. The author criticises the new preventive measure as duplicating civil law injunctions and expresses the opinion that, in criminal procedure, preventive measures should be used to prevent crime, not every illegal activity. In addition, the article describes the criminal procedure for isolating persons obliged to quarantine themselves because they have tested positive for Covid-19 or had contact with infected persons. This raises the question of the limits of the preventive function of provisional arrest and possible abuse of the criminal process using it for aims unrelated to the traditional goal of the criminal process: determining the question of guilt of the accused.

scholarly journals Introduction of Art. 276a of the CCP as a Result of the Impact of the SARS-CoV–2 Pandemic on the Criminal Trial

2021 ◽  
Vol 26 (6) ◽  
pp. 185-204
Author(s):  
Adrianna Niegierewicz-Biernacka
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Medical Personnel ◽  
Research Problem ◽  
Criminal Trial ◽  
Research Problems ◽  
Special Solutions ◽  
Polish Code ◽  
The Impact ◽  
Special Protection

Abstract One of the consequences of the coronavirus pandemic (SARS-CoV–2) in the context of the impact on the Polish criminal trial was the introduction to the Code of Criminal Procedure of a new preventive measure related to the protection of medical personnel, specified in the new editorial unit – Art. 276a of the CCP. This measure was introduced by the Act of March 31, 2020, amending the Act on special solutions related to the prevention, counteraction, and combating of COVID-19, other infectious diseases and the crisis situations caused by them, and some other acts, and is a novelty in the Polish criminal procedure. The purpose of this article is to investigate a new preventive measure defined in Art. 276a of the Code of Criminal Procedure in terms of the legitimacy of its introduction to the Polish Code of Criminal Procedure. Three research problems will be analysed. The first concerns the extent to which the introduction of the new preventive measure under Art. 276a of the Code of Criminal Procedure was necessary in terms of the need to provide special protection to medical personnel in Poland. The second research problem concerns the extent to which the application of the new preventive measure under Art. 276a of the Code of Criminal Procedure corresponds to the assumptions of the Polish legislator and what is the ratio legis of the analysed regulation. The third research problem boils down to the extent to which the amendment to Art. 276a of the Code of Criminal Procedure corresponds to the rules of legislative technique.

scholarly journals The Internet and Cancellation Culture: The Impact of the Public Opinion on the Exercise of the Individual Right to Freedom of Expression

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Elaine Celina Afra da Silva Santos
Keyword(s):  
Social Networks ◽  
Public Opinion ◽  
Freedom Of Expression ◽  
The Internet ◽  
Individual Rights ◽  
The Public ◽  
Deductive Method ◽  
The Individual ◽  
The Impact ◽  
Legal Consequences

This article analyzes the impact of the culture of cancellation promoted by users of social networks on the exercise of individual rights, more precisely Freedom of Expression. The study presents the analysis of the content inherent to what would be the cancellation, its aspects and practical consequences in the individual sphere of the users. The theme is approached by the deductive method and through doctrinal research. The article intends to answer if there are legal consequences resulting from the use of this resource by users.

Behördliche Beratung und Informationsrisiko

2020 ◽  
Vol 53 (4) ◽  
pp. 501-534
Author(s):  
Johannes Eichenhofer
Keyword(s):  
Civil Law ◽  
Administrative Law ◽  
General Information ◽  
Present Contribution ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Constitutional State ◽  
The Social ◽  
The Individual

In the social constitutional state, the administration’s mandate is not limited to making legal and expedient decisions. According to § 25 of the German Administrative Procedure Act and parallel provisions in social, tax and procurement laws, the office administrators are obliged to advise the individual to a certain extent on the exercise of their rights, whereby the requirement of legality and expediency is at least to some extent supplemented by a requirement of optimization. The present contribution will discuss the justification, the regulatory context, and the extent of the duty to provide advice, as well as the consequences of insufficient or incorrect advice. The institution of official advice is interesting for the discipline of administrative law as it stands at the interface of civil law and administrative law (substantive and procedural), and therefore, is able to reconstruct its dogmatic form on the basis of the “doctrine of legal relations”. Finally, the official duties to advise exemplify how administrative procedural law deals with information risks – a hitherto neglected component of general information administrative law.

scholarly journals Modernization of Bail as a Component of Criminal Procedure Restraint in Russia and Abroad

2021 ◽  
Vol 15 (4) ◽  
pp. 466-475
Author(s):  
Alsu Petrukhina ◽  
Vera Popova
Keyword(s):  
Russian Federation ◽  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Court ◽  
Procedure Code ◽  
Legal Model ◽  
The Russian Federation ◽  
The Impact

Measures of criminal procedure compulsion should, in the first place, ensure the enforcement of criminal procedure on a criminal case, i.e. prevent the suspect or the accused person from going into hiding, committing a new crime, continuing criminal activities, influencing in any way other participants of the criminal process or the proceedings. The Criminal Procedure Code of the Russian Federation foresees bail as one of preventive measure alternative to detention. Bail is not often used in the Russian Federation. According to statistical data from the Court Department of the Supreme Court for the last five years, the number of bails in Russia is negligibly small compared to other preventive measures. On April 18, 2018, the federal law № 72-ФЗ was enacted to change this situation; it did not only introduce changes in the existing preventive measures, but added a new measure prohibiting the performance of certain actions. Such a component of the restriction measure under consideration as the object of bail was examined for the first time in the light of a radical renewal of the existing legal model through the development of an alternative, principally new concept based on the economic interests of the subject of criminal procedure relations which borrowed its key features from the institutes of civil and financial law. It is difficult to notice the impact of this improvement in practice. When bail was chosen as a restrictive measure, the number of cases not only stayed at the same level, but even went down. Due to this, it is relevant to research an opportunity of combining bail with the preventive measure of prohibiting certain actions. A comprehensive research of bail in Russian and foreign law allowed the authors to formulate recommendations on possible improvements in the mechanism of legal regulation of bail in modern criminal court procedure. It is suggested that a number of gaps in legislation should be bridged, specifically, the list of goals of bail included in the law should be changed and the existing goal of preventing new crimes should be supplemented by the following phrase: «Preventing the accused (the suspect) from continuing the crime that began earlier or committing a new crime». It is also suggested that Part 2.1 should be introduced in Art. 106 of the Criminal Procedure Code of the Russian Federation, which will make it possible to use bail to compensate for the material damage inflicted by the crime in case of a guilty verdict. The authors believe that it is necessary to improve the effectiveness of such a preventive measure as bail in the Russian Federation, thus reducing the number of cases when incarceration was chosen as a restriction measure for crimes of small and medium gravity.

scholarly journals REHABILITATION IN CRIMINAL PROCEDURE: PROBLEMS OF THEORY, LEGISLATION AND PRACTICE

2021 ◽  
pp. 509-526
Author(s):  
A. Naumova
Keyword(s):  
Pathological Condition ◽  
Physical Property ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Human Right ◽  
Procedural Law ◽  
Bodily Injury ◽  
Moral Damage ◽  
The Individual

The problem of the right to rehabilitation and compensation to a person who was illegally and unreasonably prosecuted, illegally convicted is relevant to the science of criminal procedural law, law enforcement practice. At the same time, the current Criminal Procedure Code of Ukraine does not provide rules that would contain the basic provisions of rehabilitation. As a result of the study, the concept of physical harm is formulated as a violation of the anatomical integrity or physiological function of organs or tissues, which manifests itself in bodily injury, disease, pathological condition, disability and is a consequence of illegal and unjustified criminal prosecution, illegal restraint, detention, unlawful conviction, torture, physical, mental violence, falsification of evidence. The definition of rehabilitation is defined as the procedure established by law for the recognition of a person’s innocence in committing a crime, restoration of his/her violated rights and freedoms. It is also defined compensation at the expense of the state in full physical, property, moral damage caused to a person by illegal and unjustified criminal prosecution, illegal conviction, and unjust trial on the application of coercive measures of a medical or educational nature. A comparative analysis of the legal regulation of rehabilitation in the Code of Criminal Procedure of the CIS countries shows that the national legislation of most states provides a mechanism for effective protection of the individual from illegal and unjustified criminal prosecution, illegal conviction. To improve the current criminal procedure legislation of Ukraine, we proposed to supplement the Code of Criminal Procedure of Ukraine with the chapter “Rehabilitation”. In the provisions of this chapter, there is a need to set out the concept of rehabilitation, conditions and procedural grounds for recognizing the human right to rehabilitation; subjects of rehabilitation legal relations; grounds for partial rehabilitation in preliminary and judicial proceedings. In addition, the chapter should contain the procedural order of rehabilitation in a situation of forced self-incrimination, falsification of evidence; the procedure for restoring the violated rights and freedoms of the rehabilitated person. As well as the concept of physical harm and the procedure for its compensation; determination of property, moral damage caused to the rehabilitated; legal mechanism for compensation of property damage; elimination of the consequences of moral damage to the rehabilitated and its compensation.

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.

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