Criminal procedure and the Supreme Court: a guide to the major decisions on search and seizure, privacy, and individual rights

2011 ◽  
Vol 48 (08) ◽  
pp. 48-4755-48-4755
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Search And Seizure ◽  
Individual Rights ◽  
The Supreme Court

Features of the election of such preventive measure as house arrest in relation to minors

2020 ◽  
Vol 2020 (2) ◽  
pp. 153-157
Author(s):  
Ekaterina Manohina
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
House Arrest ◽  
The Supreme Court ◽  
The Russian Federation ◽  
A Minor

In the article, the author turns to the study of the peculiarities of choosing such a preventive measure as house arrest for minors. Due to the fact that the Code of Criminal Procedure of the Russian Federation does not precisely define cases when a court must elect a house arrest in relation to minors, in practice there are often difficulties in which cases to choose such a preventive measure as detention, and in which house arrest. In the work, the author attempts to determine the essence of such a preventive measure as house arrest and the peculiarities of his election in relation to minors, and also considers the prohibitions and (or) restrictions to which minors cannot be subjected. The positions contained in the resolution of the Plenum of the Supreme Court “On the practice of the application by the courts of legislation on preventive measures in the form of detention, house arrest and bail” are analyzed. The author expresses the opinion that it is inadvisable to choose such a preventive measure as house arrest for minors. Based on the study, the author makes recommendations on the possibility, at the discretion of the court, to make adjustments to the prohibitions and (or) restrictions to which a minor suspect or accused will be subjected to whom such a preventive measure as house arrest is chosen.

scholarly journals BUKTI ELEKTRONIK SEBAGAI ALAT BUKTI YANG SAH DALAM HUKUM ACARA PIDANA / ELECTRONIC EVIDENCE AS AN ADMISSIBLE EVIDENCE IN CRIMINAL LAW

2017 ◽  
Vol 6 (3) ◽  
pp. 463
Author(s):  
NFN Ramiyanto
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Independent Evidence ◽  
Electronic Evidence ◽  
Procedure Code ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
Functional Equivalent ◽  
Admissible Evidence

KUHAP sebagai hukum acara pidana yang bersifat umum tidak mengakui bukti elektronik sebagai salah satu jenis alat bukti yang sah. Di dalam praktik, bukti elektronik juga digunakan sebagai alat bukti yang sah untuk membuktikan tindak pidana yang terjadi di pengadilan. Dari hasil pembahasan dapat disimpulkan, bahwa bukti elektronik dalam hukum acara pidana berstatus sebagai alat bukti yang berdiri sendiri dan alat bukti yang tidak berdiri sendiri (pengganti bukti surat apabila memenuhi prinsip/dasar dalam functional equivalent approach dan perluasan bukti petunjuk) sebagaimana dicantumkan dalam beberapa undang-undang khusus dan instrumen hukum yang dikeluarkan oleh Mahkamah Agung. Walaupun bukti elektronik tidak diatur dalam KUHAP sebagai lex generalis, namun untuk tercapainya kebenaran materiil dapat juga digunakan sebagai alat bukti yang sah untuk pembuktian seluruh jenis tindak pidana di pengadilan. Hal itu didasarkan pada pengakuan dalam praktik peradilan pidana, beberapa undang-undang khusus, dan instrumen yang dikeluarkan oleh Mahkamah Agung.The Criminal Procedure Code as a general criminal procedure does not recognize electronic evidence as one of the admissible types of evidence. In practice, electronic evidence is also used as an admissible evidence to prove the criminal offenses in court. From the results of the discussion it can be concluded that electronic evidence in criminal procedure law is a dependent evidence and an independent evidence (substitution of letter proof if it meets the principle of functional equivalent approach and expansion of evidence) as specified in several special laws and instruments issued by the Supreme Court. The electronic evidence is not regulated in the Criminal Procedure Code as a lex generalis, however, to achieve material truth it can also be used as a valid evidence for the provision of all types of criminal offenses in court. It is based on recognition in the practice of criminal justice, some special laws, and instruments issued by the Supreme Court.

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 Referring a Case to the Highest Division of the Supreme Court in the Criminal Procedure Legislation of Ukraine and European Countries

2021 ◽  
Vol 4 (1) ◽  
pp. 143-165
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
European Countries ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Supreme Court ◽  
Uniform Law ◽  
Grand Chamber ◽  
Court Practice

The article aims to examine one of the elements of the formal mechanism of maintaining court practice unity in criminal proceedings of Ukraine and European countries – referring a case to the highest division of the Supreme Court. Similar to the Ukrainian criminal procedure legislation, the grounds for referring a criminal case and the procedure of its application are provided in the legislation of Estonia, Italy and Lithuania. At the same time, the Ukrainian legislator has established a number of special features, however, the wording of the relevant articles of the Criminal Procedure Code of Ukraine is not perfect. The article provides answers to such questions as how forceful the provisions of criminal procedure legislation of Ukraine are, to what extent of effectiveness the Supreme Court exercises its legal authority regarding the unity of court practice in criminal proceedings, and whether the controversies in legal positions of the structural divisions of the Supreme Court have been successfully avoided. In order to achieve the stated aims, parts 2 and 3 are devoted to the examination of the grounds for referring a case in criminal proceedings of Ukraine and European countries. Part 4 outlines the shortcomings of the content of some articles of the Criminal Procedure Code of Ukraine concerning the procedure of the referral of a criminal case to the highest division of the Supreme Court. Part 5 provides the analysis of the validity of decisions made by the boards of judges at the Supreme Court on the referral of criminal proceedings to its higher judicial divisions – the joint chamber of the Criminal Cassation Court and the Grand Chamber of the Supreme Court. On the basis of the study of the judgements of boards, the judicial chambers of the Criminal Cassation Court and the Grand Chamber of the Supreme Court, in part 6 the question is answered on whether the Supreme Court of Ukraine managed to perform its duty on the assurance of court practice unity in such an area as criminal proceedings. Keywords: exclusive legal problem, development of law, formation of uniform law enforcement practice, the Supreme Court, criminal proceedings, Ukraine.

Execution of a Sentence in the Structure of Criminal Proceedings: Procedural Stage or Special Court Proceedings?

2020 ◽  
Vol 1 ◽  
pp. 97-106
Author(s):  
V. V. Nikolyuk ◽  
◽  
L. A. Pupysheva ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Self In Relation ◽  
The Supreme Court ◽  
Court Proceedings

The article analyzes the concept of execution of a sentence as an independent stage of the criminal process (the stage of criminal proceedings). Arguments are given that point to its certain illogicality and inconsistency. The authors on the basis of existing legislation and taking into account the positions of Plenum of the Supreme Court additionally reasoned and substantiated the thesis of the existence of the criminal process self in relation to a criminal case of criminal procedure, regulated by Chapter 47 of the Code of criminal procedure.

The Supreme Court in the Era of Bifurcated Review I

2019 ◽  
pp. 400-443
Author(s):  
G. Edward White
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
The State ◽  
Individual Rights ◽  
The Supreme Court

Volume 2 of this series devoted several chapters to the emergence of what it called “guardian review” on the Supreme Court, a posture in which justices acted as guardians of individual rights against restrictions by the state. This volume contains several chapters exploring the replacement of that posture with “bifurcated review,” featuring a deferential attitude toward some restriction of individual rights and aggressive scrutiny of others. This chapter describes the evolution from guardian to bifurcated review on the Court and matches it to changes in the Court’s internal decision-making protocols from the 1940s through to the 1970s.

American Perspectives on Self-Incrimination and the Compelled Production of Evidence

2002 ◽  
Vol 6 (4) ◽  
pp. 218-242
Author(s):  
Mark Berger
Keyword(s):  
United States ◽  
Law Enforcement ◽  
Supreme Court ◽  
The United States ◽  
United States Constitution ◽  
Search And Seizure ◽  
Fifth Amendment ◽  
The Supreme Court ◽  
Intimate Relation ◽  
Government Authority

The Fifth Amendment of the United States Constitution provides that no person may be compelled in any criminal case to be a witness against himself. The Boyd decision in 1886 recognised an intimate relation between the privilege against self-incrimination and the restrictions on search and seizure in the Fourth Amendment and created a virtually impenetrable barrier to government demands that a suspect or defendant be compelled to produce evidence against himself. However, since that time the Supreme Court has progressively restricted the scope of Fifth Amendment protection in relation to the compelled production of evidence. This has been achieved by requiring all citizens to appear before grand juries; by denying Fifth Amendment protection to entities; by holding that the compelled production of evidence does not breach the Fifth Amendment unless the very act of production is self-incriminatory; and by denying the privilege in relation to required records. The Supreme Court's stance reflects a recognition of the complexity of contemporary law enforcement problems and may be seen as an attempt to balance the state's interest in the successful prosecution of crime against the citizen's interest in being free from state intrusion. The effect of the Supreme Court's reforms has been to broaden government authority to compel offenders to assist in their own prosecutions whilst limiting Fifth Amendment protection to incrimination through the accused's own testimony or its equivalent.

From promise to retrenchment: On the changing landscape of Israeli constitutionalism

2020 ◽  
Author(s):  
Adam Shinar ◽  
Barak Medina ◽  
Gila Stopler
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Israeli Society ◽  
Individual Rights ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Constitutional Revolution

Abstract Israeli constitutionalism has long interested comparative constitutional law scholars, whether due to its geopolitical status, the Israeli–Palestinian conflict, its internal divisions, or its unique constitutional evolution. Unlike many other countries that have ratified constitutions after the Second World War, Israel was established as a parliamentary democracy, with an explicit intention to ratify a constitution at a later stage. This did not happen. Instead, it underwent a “constitutional revolution” announced by its Supreme Court. Fitting a revolution, much of comparative constitutional law scholarship has focused on this pivotal moment. The articles in this symposium depart from the scholarship focused on that moment. They seek to critically understand what has become of Israeli constitutionalism in the past decade. In this introduction, we highlight several transformations and features which we believe are essential if one is to understand the extant constitutional order in Israel. These should be understood as background conditions against which Israeli constitutionalism is operating. They include the strengthening of judicial review alongside rising political resistance to the Court’s power; populism in political discourse targeting rule of law institutions; the erosion of individual rights alongside the strengthening of nationalist elements; and increasing divisions inside Israeli society. These challenge the idea of a successful constitutional revolution in terms of its inherent promise to better protect individual rights and safeguard the rule of law. In describing these features, we seek to situate the Supreme Court, judicial review, and the legal-constitutional order generally, in the larger sphere of Israeli society and politics.

Criminal Procedure and Evidence

1990 ◽  
Vol 24 (3-4) ◽  
pp. 592-621
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
District Level ◽  
Deep Sleep ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
At Home

Once upon a time there was a lawyer who was most familiar with the rules of criminal procedure and of evidence in force in mandatory Palestine in May 1948. One day in June 1948, the lawyer disappeared. Some say he fell into a deep sleep for many years. Only after the passage of forty years he awoke.Turning to and fro, he will immediately recognize the Ottoman building that houses the courts in Jerusalem's Russian Compound. He will also feel at home with the basic hierarchy of the judiciary: two courts of first instance—magistrates' and district—and no intermediate court of appeal between the district level and the Supreme Court.

Sign in / Sign up

Export Citation Format

Share Document