DEFENDANT – (UN)NECESSARY PARTICIPANT TO JUDICIAL PROCEEDINGS? CONSIDERATIONS IN THE CONTEXT OF ART. 117 § 3A AND ART. 378A OF THE CODE OF CRIMINAL PROCEDURE (PART I)

2021 ◽  
Vol 2 (XXI) ◽  
pp. 167-177
Author(s):  
Jan Kil
Keyword(s):  
Criminal Procedure ◽  
Legal Regime ◽  
Criminal Process ◽  
Academic Literature ◽  
Depth Analysis ◽  
History Of ◽  
Judicial Proceedings

The article is devoted to the defendant’s right to participate in the trial in the light of the reforms introduced to the Code of Criminal Procedure by the Act of 19 July 2019 amending the Act – Code of Criminal Procedure and certain other acts (Dz.U. 2019, item 1694). The first part of the article depicts the evolution of the legal regime governing the defendant’s presence at the trial throughout the history of the Polish criminal process, and discusses the essence of the defendant’s right to participate in the trial. An in-depth analysis was devoted to the provision of Art. 117 § of the Code of Criminal Procedure, introduced in the Code by the amendment of 2019. In this regard, dogmatic analysis was carried out of the discussed provision, its ratio legis was presented, and procedural consequences of the introduced regime were discussed. The study discusses as well the doubts formulated in academic literature in relation to Art. 117 § 3a of the Code, and proposes a method of interpreting the analysed provision.

scholarly journals Peculiarities of implementation of the principle of legality in the criminal process of Ukraine

2021 ◽  
Vol 1 (1) ◽  
pp. 253-257
Author(s):  
Oleksiy Skryabin ◽  
Dmytro Sanakoiev
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Limiting Factor ◽  
Criminal Proceedings ◽  
Legal Regime ◽  
Criminal Process ◽  
Procedural Law ◽  
Judicial Proceedings ◽  
Principle Of Legality ◽  
Discretionary Powers

The article analyzes the principles of criminal procedure, which are the expression of the prevailing political and legal ideas of the state, relate to the tasks and methods of judicial proceedings in criminal proceedings, are enshrined in law and operate throughout all stages and necessarily in its central stage. Modern theoretical ideas about the system of principles of criminal proceedings are still in the stage of active methodological and ideological rethinking. Discussions continue both on the concept and features of the principles of criminal proceedings, their system, and on the peculiarities of implementation at different stages of the criminal process. Violation of the principles of criminal procedure is a sign of illegality of decisions in the criminal and becomes the basis for the cancellation of these decisions. The principle of legality characterizes the legal regime of strict and mandatory observance of laws in law enforcement practice, which manifests itself in criminal proceedings, limits the discretionary powers of the pre-trial investigation, prosecutor's office and court. The principle of legality becomes an opportunity to transfer criminal proceedings from one procedural stage to another only on the basis of the law and in a strictly defined sequence. Legality is one of the guarantees of establishing the truth in a criminal case, which ensures the protection of human and civil rights and freedoms. The principle of legality is characterized by mandatory observance of laws in criminal proceedings, is a limiting factor in the discretion of the pre-trial investigation, prosecution and court. Due to the implementation of the principle of legality, the shortcomings and gaps in the criminal process that exist in criminal procedural law can be overcome.

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 The legal regulation of the preliminary investigation bоdies activities according to UPK Uzbek SSR 1929

2021 ◽  
pp. 226-237
Author(s):  
A. A. Muhitdinov
Keyword(s):  
Public Relations ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Process ◽  
Legal Norms ◽  
Procedural Law ◽  
Stage Of Development ◽  
Procedure Code ◽  
History Of

At the present stage of development of the criminal procedural legislation of the Republic of Uzbekistan, many legal institutions that have a long history of doctrinal development have received normative consolidation. Among them is the institution of participants leading the criminal process at the stage of pre-trial investigation. In the history of Uzbekistan, the activities of these subjects of the criminal process were regulated by numerous normative legal acts, including codified ones. The first Criminal Procedure Code of the Uzbek SSR was adopted in 1926. Soon the Uzbek SSR Criminal Procedure Code of 1929 entered into force. In comparative legal terms, the latter was significantly inferior to the previous one in terms of the degree of detail in the regulation of criminal procedural relations with the participation of pre-trial investigation bodies. Analysis of the content of the legal norms of the Criminal Procedure Code of 1929, regulating the activities of these bodies, allows us to identify features that, from the standpoint of the modern vision of the optimal model of the Criminal Procedure Code of Uzbekistan, are assessed as shortcomings in the legal regulation of the relevant public relations. As such, we can name the following: the CPC does not contain norms defining the sources of criminal procedural law; the code does not provide for a separate chapter devoted exclusively to investigative actions, a detailed description of their procedural form; there is no clear delineation of the competence of the bodies of inquiry and the investigator; the investigator is by law entrusted with supervisory functions that are not characteristic of him in relation to the bodies of inquiry; the Criminal Procedure Code does not include a norm prohibiting persons conducting a preliminary investigation from obtaining evidence by violence, threats, etc.; The Criminal Procedure Code determined the existence of sufficient data, and not evidence, as the basis for the accusation. After being charged, the person acquired the status of a defendant, not an accused; the application of preventive measures, including detention, was carried out by the investigator independently, without the sanction of the prosecutor, which testified to the absence of guarantees of the observance of the right to personal inviolability.

scholarly journals History of Establishment and Development of the Witness Institute in the Criminal Process

2021 ◽  
Vol 7 (7) ◽  
pp. 1001-1009
Author(s):  
Alexander Chepel ◽  
Keyword(s):  
Public Administration ◽  
Criminal Procedure ◽  
Political Systems ◽  
Witness Testimony ◽  
Criminal Process ◽  
Legal Nature ◽  
History Of ◽  
Systems Requirements ◽  
Historical Periods

The article is devoted to studying the history of the origin and development of such an institute of criminal procedure as the witness institute. The regularities of the formation of the institute of witness, depending on the time and political systems requirements, are identified and analyzed. The legal nature of witness testimony has been studied. The evolution of legal terms related to the institute of witness is analyzed. Based on the development of legal acts and the level of public administration, specific historical periods related to the emergence and formation of the witness institute are distinguished.

scholarly journals Development of forensic tactics at the stage of mature science

2021 ◽  
pp. 96-1000
Author(s):  
Yu. Myroshnychenko
Keyword(s):  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
Stage Of Development ◽  
Current Trends ◽  
History Of ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Tactical Decisions ◽  
Protection Of Participants

The article completes a series of works devoted to the study of the history of forensic tactics. The author’s vision of periodization of formation and development of this section of science is given. It is concluded that the trends of the current stage of development of forensic tactics are determined by radical changes in the evidence paradigm, based on the competitive ideology of the reformed criminal process. This poses a number of urgent tasks for scientists and practitioners, including improving the tactics of interrogation, inspection, search, presentation for identification, and the development of methods for conducting new investigative actions for our judiciary, such as simultaneous interrogation of two or more persons, investigative experiment. The whole spectrum of covert (investigative) investigative actions – an institution also still unknown to the domestic criminal process – is in dire need of tactical and forensic support. The need to substantiate the expediency of expanding the cognitive boundaries of forensic tactics, extending its recommendations to the field of criminal proceedings is becoming more and more tangible. It is necessary to continue developing the theory of court situations, tactical decisions, tactics of judicial interrogation and other procedural actions. The problems of planning court proceedings, in particular in the aspect of ensuring the continuity of court proceedings, remain relevant and require further research on the basis of the provisions of the current legislation. The specific activities of the investigating judge require completely new tactical developments. There is an urgent need to develop tactical recommendations on the means of ensuring criminal proceedings, overcoming the opposition to pretrial investigation and trial of criminal cases, protection of participants in criminal proceedings. Extremely important from the standpoint of current trends in criminal justice is the development of tactical and forensic recommendations to ensure judicial proceedings on the basis of procedural agreements and other special procedures of criminal proceedings (simplified, special, etc.).

scholarly journals The Epistemology of the Search for Truth in Witness Testimony

nauka.me ◽  
2017 ◽  
pp. 0
Author(s):  
Vladimir Bukhalov
Keyword(s):  
Criminal Procedure ◽  
Legal Culture ◽  
Eyewitness Testimony ◽  
Witness Testimony ◽  
Criminal Process ◽  
History Of ◽  
Judicial Errors

The article highlights the evolution of testimonial evidence, as the legal culture. The history of the search for legal truth is aggravated by the unjust sentences and judicial errors. In the modern criminal process the dilemma of the reliability of eyewitness testimony remains relevant. The author's purpose is to identify gaps and to determine the ways to improve domestic criminal procedure legislation.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

Criminal Procedure

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Criminal Procedure ◽  
Legal Assistance ◽  
Criminal Process

This chapter discusses the criminal procedure laws applicable before a defendant is tried. It is intended to be read alongside Chapter 12, which covers criminal procedure during trials, appeals, post-conviction avenues (including clemency and parole), and potential reforms. This chapter outlines the rules in the Code of Criminal Procedure (KUHAP) relating to police arrest, detentions, and investigations, and the circumstances in which cases may proceed for prosecution. During these stages of the criminal process, suspects and defendants have various ‘on paper’ rights, including: to silence; legal assistance; and to challenge their arrest, detention, or being named a suspect. However, as this chapter shows, these rights are, in practice, routinely ignored.

scholarly journals Assessment of the Sexual Violence Situation in a Regional Hospital in Guatemala: The Need for a Multidisciplinary Clinic

2017 ◽  
Vol 4 (suppl_1) ◽  
pp. S105-S105
Author(s):  
Blanca Soto ◽  
Miriam Canet ◽  
Diego Erdmenger
Keyword(s):  
Sexual Violence ◽  
Physical Violence ◽  
Negative Impact ◽  
Epidemiological Data ◽  
Depth Analysis ◽  
Significant Negative Impact ◽  
Comprehensive Health ◽  
History Of ◽  
Hepatitis B Testing

Abstract Background Sexual violence is a global health problem, in terms of age and sex, showing a significant negative impact on health. Incidence in Guatemala is among the highest of the region reaching an average of 23 cases reported daily nationally per statistics from the Ministry of Health in 2015. Methods Retrospective analysis of the database of all sexual violence cases reported from a secondary -level national hospital in Guatemala from January 2005 to September 2015 (period A) and in-depth analysis on demographic and epidemiological data along with information of the follow-up of cases between January 2012 and September 2015 (period B) was performed. Results Period A: 500 cases; female (96%; 481/500). Assault occurred between 16–20 years (34%; 163/481) 11–15 years (22.25%; 107/481), and 21–30 years (22.04%; 106/481). From all reported male cases, 73.68% (14/19) occurred under 15 years. Period B: 154/217 (70.96%) cases included; female (95.45%; 147/154), mean age: 17.87 years. Assault occurred in public spaces (57.14%; 88/154) and victim’s home (29.87%; 46/154). Almost 13% of victims reported history of previous assault, 5.84% by the same aggressor. More than one aggressor participated in 36.37% of assaults. Physical violence was associated in 57.79% of cases. Most victims (92.76%; 141/152) consulted within 72 hours of the assault. HIV, VDRL, and Hepatitis B testing performed in 100, 52, and 33.77%, respectively, were negative. Follow-up visits at 3, 6, and 12 months after the aggression were attended by 20.78% (30/154), 1.95% (3/154), and 1.95% (3/154) of victims, respectively. Psychology support was completed only in 18.18% (28/154). Emergency contraception was provided when indicated; pregnancy as result of the aggression was reported in nine cases (5.84%). Conclusion The study shows that young women were the most vulnerable group for sexual violence. There is a lack of multidisciplinary approach and follow-up. Interventions on infectious diseases screening have to be optimized to reduce the risk of ETS transmission. This evidence supports the need for a specialized clinic to ensure access to comprehensive health services for victims. Disclosures All authors: No reported disclosures.

Sign in / Sign up

Export Citation Format

Share Document