scholarly journals The questions of territorial jurisdiction of advocating for the election or extension of pre-trial detention

2020 ◽  
pp. 10-20
Author(s):  
Oleg Aleksandrovich Kravchenko ◽  
Roman Valer'evich Fedorov
Keyword(s):  
Preliminary Investigation ◽  
Accurate Determination ◽  
Case Law ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Territorial Jurisdiction ◽  
Legal Situation ◽  
Administrative Proceedings ◽  
Principle Of Legality

Accurate determination of the place of preliminary investigation indicates adherence to the principle of legality in criminal proceedings and the achievement of goals on the protection of rights and lawful interests of the affected parties, as well as on protection of individual from wrongful and unfounded accusations and restrictions of their rights and freedoms. Science addresses the general questions pertaining to determination of the place of preliminary investigation, but does not give due attention to realization of discretionary powers of the higher investigating authority to determination of the place of preliminary investigation. The article reveals the essential conditions for application of such power by the investigating authority, and analyzes case law for compliance with these conditions. The conclusion is made that legislation does not contain clear and specific rules for determination of the place of preliminary investigation, including the territorial jurisdiction of advocating for the election or extension of pre-trial detention. The author describes the flaws in legal regulation associated with the possibility of determination of jurisdiction of a case in administrative proceedings, by means of law enforcement decision prior to the emergence of legal situation (for example, before  submission of a request for the election or extension of pre-trial detention) by lowering the rank of investigating authority, for example to district level. From the practical perspective, elimination of such flaws should facilitate the proper application of the corresponding legal norm, as well as accurate determination of the place of preliminary investigation.

Constitutional and legal issues of application of clause 1, part 1, article 39 of the Criminal procedure code of the Russian Federation

2021 ◽  
Author(s):  
Oleg Kravchenko
Keyword(s):  
Preliminary Investigation ◽  
Accurate Determination ◽  
Case Law ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Territorial Jurisdiction ◽  
Legal Situation ◽  
Administrative Proceedings ◽  
Principle Of Legality

Accurate determination of the place of preliminary investigation indicates adherence to the principle of legality in criminal proceedings and the achievement of goals on the protection of rights and lawful interests of the affected parties, as well as on protection of individual from wrongful and unfounded accusations and restrictions of their rights and freedoms. Science addresses the general questions pertaining to determination of the place of preliminary investigation, but does not give due attention to realization of discretionary powers of the higher investigating authority to determination of the place of preliminary investigation. The article reveals the essential conditions for application of such power by the investigating authority, and analyzes case law for compliance with these conditions. The conclusion is made that legislation does not contain clear and specific rules for determination of the place of preliminary investigation, including the territorial jurisdiction of advocating for the election or extension of pre-trial detention. The author describes the flaws in legal regulation associated with the possibility of determination of jurisdiction of a case in administrative proceedings, by means of law enforcement decision prior to the emergence of legal situation (for example, before submission of a request for the election or extension of pre-trial detention) by lowering the rank of investigating authority, for example to district level. From the practical perspective, elimination of such flaws should facilitate the proper application of the corresponding legal norm, as well as accurate determination of the place of preliminary investigation.

scholarly journals ON SOME COMMENTS ON THE NORMATIVE FORMULATIONS FOR THE PURPOSE OF CRIMINAL PROCEEDINGS

2021 ◽  
Vol 17 (1(63)) ◽  
pp. 127-133
Author(s):  
Виктор Николаевич ГРИГОРЬЕВ
Keyword(s):  
Russian Federation ◽  
Justice System ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legal Situation ◽  
Law Enforcement Officials ◽  
The Subject ◽  
The Russian Federation

The purpose of Russian criminal proceedings, which is very important among the modern social and legal institutions, is nevertheless deficient in its legal and regulatory form. It is noted that in the modern situation, some formulations of the purpose of criminal proceedings have come into conflict with the real social and legal reality. Purpose: to resolve contradictions between the formulations of the purpose of criminal proceedings and the actual social and legal reality. Methods: the author uses the methods of dialectical and formal logic, comparison, description, observation, interviewing, experiment, analysis, interpretation. Results: a theoretical basis has been developed for the choice, in the event of a conflict between the formulations of the purpose of criminal proceedings and the actual social and legal situation, of whether to change the normative formulation of the purpose of criminal proceedings or whether to change the procedure itself. In choosing the subject of reform, preference is given to traditional Russian values. Modern trends in Russian criminal proceedings do not fully reflect the needs of civil society in the Russian Federation. It is more accurate to assume that this is the result of a system of departmental and bureaucratic measures to distribute influence and burden. From a humanitarian standpoint, it would be more correct to return the criminal justice system to a state where it will again reflect the lost purpose, in particular, protecting individuals from unlawful accusations. The first step should be to remove from law enforcement officials the obligation to be unilateral in the examination of evidence and to represent only one party – the accusation (Chapter 6 of the Criminal Procedure Code of the Russian Federation), as well as to remove the normative prohibition for the preliminary investigation and inquiry bodies to gather evidence defending the accused (Part 2 article 15 of the Criminal Procedure Code of the Russian Federation).

scholarly journals Substantial Violation of Human Rights and Freedoms as a Prerequisite for Inadmissibility of Evidence

Justicia ◽  
2021 ◽  
Vol 26 (39) ◽  
pp. 47-56
Author(s):  
Serhii Yevhenovych Ablamskyi ◽  
Liudmyla Volodymyrivna Havryliuk ◽  
Valentyna Georgievna Drozd ◽  
Olena Volodymyrivna Nenia
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Criminal Proceedings ◽  
Scientific Methods ◽  
Domestic Courts ◽  
General Scientific

Objective: The aim of the article is to analyze the various legal and theoretical provisions related to the determination of legal content of the concept of finding evidence inadmissible due to substantial violation of human rights and freedoms. Method: The authors use general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, generalization and logical, are applied. Results: The problematic issues of the procedure for finding evidence inadmissible due to substantial violation of human rights and freedoms in the criminal proceedings of Ukraine are studied. Some essential violations in collecting evidence by the prosecution are under focus. The ECHR’s case-law with regard to procedure for finding evidence inadmissible is analyzed. The implementation of the doctrine of "fruit of the poisonous tree" and specificity of its application to direct and derivative evidence by domestic courts and the case law of the ECHR is considered. Conclusions: The authors argue that the investigator is required to comply with the procedure for investigative actions prescribed by the provisions of the CPC of Ukraine in order to ensure human rights and freedoms. The analysis of the application of provisions of the CPC of Ukraine and the ECHR’s case law regarding the issue raised enables to formulate sound conclusions.

scholarly journals Concept of Digital Evidence, Current Status and Its Role in the Evidentiary Process

2020 ◽  
Vol 15 (4) ◽  
pp. 55-60
Author(s):  
A. Yu. Cherdantsev
Keyword(s):  
Russian Federation ◽  
Preliminary Investigation ◽  
Legal Regulation ◽  
Current Status ◽  
Digital Evidence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Significant Information ◽  
Current State ◽  
The Russian Federation

The article analyzes the international current state of the concept of digital evidence, its meaning, types and role in the process of proving in criminal cases in the practical activities of the preliminary investigation bodies of the Russian Federation, considers some problems arising in law enforcement practice, suggests the author's classification of modern digital traces, studies and compares international practice governing the practical application of digital evidence, their concept and content. The problem of gaps in the legal regulation of digital evidence is considered, as well as the possibility of introducing amendments to the current legislation concerning the legal recognition of digital evidence along with traditional types of evidence, as well as the regulation of the use of digital evidence in criminal proceedings, and a proposal is made to introduce a number of amendments to the current legislation of the Russian Federation, where it is necessary to secure definitions of digital evidence, thus legalizing it, stating in the following re At the same time, it is noted that there is no need to introduce a separate article to regulate digital (electronic) evidences, because it is rather difficult to determine the volume of digital (electronic) evidences (digital criminally significant information), at least because there is no unanimity in this respect and there was no unanimity, besides, due to the dynamic development of electronics, including personal ones, this norm quickly lost its relevance and required amendments, creating a certain gap in legal regulation, which is more complicated.

scholarly journals FORMS OF COMPLETION OF PRE-TRIAL INVESTIGATION: NEWS OF LEGISLATION

2021 ◽  
Vol 1 (10) ◽  
pp. 99-103
Author(s):  
A. Drahonenko ◽  
Keyword(s):  
Legal Regulation ◽  
Necessary Condition ◽  
Electronic Systems ◽  
Organized Activities ◽  
Criminal Proceedings ◽  
Telecommunication System ◽  
Criminal Offense ◽  
Constitutional Principle ◽  
Legitimate Interests ◽  
Principle Of Legality

The article is devoted to the study of certain issues related to the procedural order of completion of the pre-trial investigation and the latest changes that have been made to the criminal procedure legislation. Some shortcomings of the legal regulation of the researched institute are pointed out, in particular, the order of granting access to materials of criminal proceedings, term for acquaintance with them. Peculiarities and problematic issues of the end of the pre-trial investigation with the use of the information and telecommunication system of the pre-trial investigation are considered. A necessary condition for ensuring the constitutional principle of legality in criminal proceedings is the properly organized activities of the pre-trial investigation, prosecutor and court to establish all the facts of the criminal offense in order to achieve objective truth. Legitimate and reasonable decision-making on the termination of the pre-trial investigation ensures the implementation of the tasks of criminal proceedings, which are provided by Article 2 of the CPC of Ukraine. Thus, the legislator notes that the observance of legal procedure at the end of the pre-trial investigation is one of the main guarantees of protection of the rights and legitimate interests of participants in criminal proceedings. Such protection should take place through the strict performance of their duties by authorized bodies and officials. It has been established that changes in the legislation significantly facilitate the work of the defense and other participants in the process of opening and reviewing the materials of criminal proceedings. In addition, these changes will eliminate the possibility for officials conducting inquiries and pre-trial investigations to make corrections or falsifications of criminal proceedings at various stages of the investigation and after its completion. After all, the main protocols and other procedural documents will be uploaded to electronic systems. Unauthorized interference with the operation of electronic information and telecommunication systems will be punished.

scholarly journals SOME ASPECTS OF THE LAWYER'S INVOLVEMENT IN THE NOTARIAL PROCESS

2020 ◽  
pp. 5-11
Author(s):  
M. Bondareva ◽  
S. Rabovska
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Functional Importance ◽  
Power Of Attorney ◽  
Negative Effects ◽  
Functional Component ◽  
Legal Situation ◽  
Legal Fact

The article examines the role and functional importance of the lawyer's involvement in the notarial process, discusses the peculiarities of the lawyer's procedural activity in committing certain groups of notarial proceedings. Based on the analysis of judicial and notarial practice, the authors consider the issues of registration of the powers of the lawyer who provides representation in the notarial process. The article concludes that it is necessary to eliminate ambiguous understanding of documentary confirmation of the representative's powers. The specifics of participation in the notarial process and the peculiarities of legal regulation for such participation are determined by the nature of procedural formalities in the sphere of the notarial process. The necessity of determining the lawyer's powers in the notarial process on the basis of a power of attorney issubstantiated. The specifics of the lawyer's activity in the notarial process are proposed to be determined on the basis of two significant aspects: the legal status of the person represented by the lawyer and the nature, complexity, subjectivity of the notarial proceedings. Since the notarial procedure involves the search for the most favorable, acceptable to the parties options for solving their legal situation, the use of various instruments of legal technique, the negative effects of the lawyer's participation in the dynamics of notarial proceedings areanalyzed. Particular attention is paid to the functional component of the lawyer's participation in the notarial proceedings in terms of the stage of the notarial process. Based on the analysis of the case law and the practice of notary decrees on the refusal to perform a notarial act, it is concluded that most of the refusals were made on the grounds that could be eliminated or corrected by the applicant. The paper also stipulates the expediency of the lawyer's involvement in the notarial process for the purpose of increasing the efficiency of such a process. The efficiency of the lawyer's participation in the stage of preparation for the execution of the notary proceedings is determined in order to ensure the legal analysis of the documents as should be provided by the applicant for confirmation of one or another legal fact; legal analysis of the grounds for refusal of a notary in committing notarial proceedings; ways of adjusting the course of the notarial process, offering alternatives to solving the legal situation of theperson. The article highlights the problematic aspects of the personal participation of a person on behalf of and in the name of whom the notarial proceedings are committed. Cases where such participation is mandatory are demonstrated. Based on the research, the authors of the article offer independent conclusions and judgments on the analyzed topics.

ON THE POSSIBILITIES OF INTEGRATING ARTIFICIAL INTELLIGENCE INTO CRIMINAL PROCEEDINGS

2021 ◽  
Vol 17 (5) ◽  
pp. 220-227
Author(s):  
ELENA PAPYSHEVA ◽  
Keyword(s):  
Artificial Intelligence ◽  
Formal Language ◽  
Preliminary Investigation ◽  
Digital Technologies ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
The State ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Machine Readable

This article examines the possibilities of using machine-readable law technologies in criminal procedural legislation and criminal proceedings; the analysis of the Concept of development of technologies of machine-readable law is carried out in order to determine the possibility of applying its provisions in the context of criminal procedural law. According to the author, the development of the technology of machine-readable law sets the legislator the task of starting the process of adapting the norms of the criminal procedure law to their subsequent presentation in formal language. Legislative acts should be structured as much as possible, within the acts, norms are more clearly divided into certain categories and groups with the building of logical connections between them. The norms of legislative acts need to be formalized, their content should not have legal and linguistic uncertainties, normative conflicts and broad discretionary powers. The conclusion is made about the need for legal transformations, formalization of the norms of the Criminal Procedure Code of the Russian Federation, based on the principle of legal certainty. If the adaptation of legislation to machine-readable norms is the future in the development of science and the system of legal regulation of the state, then the use of digital technologies in criminal proceedings is a matter of the present. It seems that modern digital technologies are sufficiently developed to start developing an automated information system at the state level that meets the formal requirements of the Criminal Procedure Code, within the framework of which a preliminary investigation will be carried out. Moreover, we are talking not only about the «electronic criminal case» in its generally accepted understanding. The author proposes the creation of a comprehensive universal program that provides for the automated application of the ontology of machine-readable law (descriptions in the formal language of many objects in the field of law and the connections between them) in the investigation of criminal cases using the method of teaching artificial intelligence based on a large array of data (including data, constituting the empirical base of research, which was studied in the development of private methods for investigating certain types of crimes).

scholarly journals Development of National Procedural Law in the Second Half of the XIX – Early XX Centuries

2021 ◽  
Vol 80 (1) ◽  
pp. 156-164
Author(s):  
Д. В. Слинько ◽  
Л. І. Калєніченко
Keyword(s):  
Scientific Literature ◽  
Preliminary Investigation ◽  
Russian Empire ◽  
Judicial Reform ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Russian Empire ◽  
Administrative Proceedings ◽  
Substantive Law

The authors have studied one of the current historical and legal problems concerning the development of procedural law in the Ukrainian lands, which were part of the Russian and Austro-Hungarian Empires in the second half of the XIX – early XX centuries. Based on the analysis of scientific literature and relevant regulatory material, it has been noted that the beginning of the reform of procedural legislation of the Russian Empire can be considered the introduction of the institution of forensic investigators by the imperial decree in June 1860. Thus, the preliminary investigation was separated from the police, and investigators were part of the staff of the judicial department. The next stage was the judicial reform of 1864. As a result of the reform, the judicial system and procedural law were completely changed. Substantive law was also partially amended under that influence; there was the separation of criminal proceedings from the civil one; procedural norms of administrative justice began to be formed in the Ukrainian lands during that period, and a new branch of knowledge within legal science emerged, which was aimed at searching for the essence and nature of procedural law. The development of procedural law in the Ukrainian lands, which were part of the Austrian and, since 1868, the Austro-Hungarian Empires, was characterized by the obsolescence and imperfection of procedural legislation and its focus on the establishment of imperial positions. At the same time, it is possible to state its certain democracy and succession. It has been concluded that national procedural law during that period was characterized by the preservation and strengthening of certain features of the medieval process (secular nature, rationality, phasing), by the separation of procedural law from the substantive, by the formation of procedural branches of law, by the codification of procedural legislation, by the separation of administrative proceedings from criminal and civil proceedings; the functions and competence of the authorities and their officials were differentiated.

scholarly journals Forms of Implementation of the Judiciary in Criminal Proceeding in the Context of the Procedural Status of the Courtas a Participant in Criminal Proceeding

2018 ◽  
Vol 5 (3) ◽  
pp. 111-119
Author(s):  
P A Lutsenko
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
State Institution ◽  
Judicial System ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Structural Mechanism ◽  
Criminal Proceeding ◽  
The One ◽  
Principle Of Legality

The article examines the procedural status of the court as a participant of criminal proceedings taking into account the specifics of its legal position and the functions to be implemented. The legal status of the court in criminal proceedings by the absence of public or personal interest in the outcome of the criminal case, which not only predetermines the adversarial form of the proceedings, but also guarantees the independence of the judicial authorities in the exercise of justice. The author concludes that the concept of «court» is collective, since on the one hand it is a state institution entering the judicial system, on the other hand - the judge is the bearer of power, considering the criminal case on the merits and decisions provided by law.The judicial system has a sign of instancionnosti, due to its internal hierarchical structure. The existence of judicial bodies predetermines the movement of criminal proceedings, is a structural mechanism for the implementation of the function of internal judicial control and supervision, and also protects the rights and legitimate interests of participants in the criminal Legal proceedings and other interested persons. The powers of the court are considered from the standpoint of the functional criterion, namely: the resolution of the criminal case on the merits; monitoring of the activities of the preliminary investigation bodies; consideration of complaints on actions (inaction) and decisions of officials, conducting proceedings in a criminal case; response to violations of the rights and freedoms of citizens, the principle of legality, established circumstances, which contributed to the commission of a crime by making a private determination or decision, in the course of criminal proceedings.

scholarly journals THE CONTENT AND PECULIARITIES OF THE POWERS OF EXPERTS AS SUBJECTS OF INTERACTION WITH LAW ENFORCEMENT BODIES

2019 ◽  
Vol 20 (2) ◽  
pp. 207-215
Author(s):  
S. Naumenko
Keyword(s):  
Law Enforcement ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Field Of Study ◽  
Objective Study

The article defines the content and peculiarities of the powers of experts as subjects of interaction with law enforcement bodies. It is proved that in cooperation with law enforcement authorities, experts are given a certain amount of authority, which is more related to their participation in criminal proceedings and is sufficiently detailed in the current legislation. It has been established that to date, the powers of experts in the field of interaction with law enforcement bodies require detailed study, identification of gaps in their legal regulation and determination of ways of their elimination. All rights of experts in the field of interaction with law-enforcement bodies are proposed to group according to the purpose of their implementation: 1) rights that are implemented in order to carry out a complete, comprehensive and objective study; 2) security rights. The indicated duties are proposed to be grouped into two groups: 1) related to conducting expert research; 2) involved in participation in criminal proceedings. It has been established that all rights and obligations in the field of study should be considered through their division into those that are necessary for them to conduct a full, comprehensive and objective study, and those that determine their ability to participate in criminal proceedings.

Sign in / Sign up

Export Citation Format

Share Document