scholarly journals Problems of establishing facts by the courts necessary for making a procedural decision in pretrial stages

2021 ◽  
pp. 43-54
Author(s):  
Svetlana Vladimirovna Nikitina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Social Significance ◽  
Criminal Proceedings ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Procedural Decisions

The subject of this research is the problems caused by the absence of explicit regulations in the criminal procedure law on the rules for establishing facts by the courts necessary for decision-making, as well as recommendations for their solution. These problems include thee difficulties in determining the proper and acceptable procedural behavior of the court and the parties to criminal proceedings in pretrial stages, intricacies of making a procedural court decision in cases of failure of proof, ambivalence of the court's approaches demonstrated by the legislator and the highest judicial bodies (the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation ) pertinent to regulation of judicial activity in pre-trial stages, etc. Special attention is turned to the procedure of establishing facts by the court in pretrial stages in view of the special legal and social significance of the procedural decisions made by the court, which restrict the constitutional rights of the citizens and require most full guarantees of their justness. The result of the conducted research is reflected in the author’s recommendations for solution of the indicated issues. The conclusions lies in theoretical provisions on the possible legislative approaches towards determining the judicial activity in pre-trial proceedings based on the following principles: personalization (differentiation of the form depending on procedural status of the actors), simplification (no excessive formalization), variability (presence of several variants of the procedure, the application of which depends on the procedural situation and the purpose of activity of the court), application of actions regulate by the Criminal Procedure Code among other procedural acts available to the court and parties to the court hearing.

scholarly journals The subject of judicial control in consideration of complaints: controversial issues of legal regulation

2021 ◽  
Vol 2021 (2) ◽  
pp. 104-109
Author(s):  
El'vira Mirgorodskaya
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation

The purpose of this study was an attempt to theoretically understand the subject of judicial consideration of complaints against decisions, actions (inaction) of officials carrying out criminal prosecution. The research was carried out on the basis of comparative legal, formal logical, empirical, statistical methods. Judicial statistics for the year 2020 have been provided, and legislation has been studied from a historical and contemporary perspective, taking into account the practice of the Constitutional Court of the Russian Federation. The problem is that, in practice, for about 20 years the courts have had difficulties in determining the subject of complaints, since neither in theory nor in practice a consensus has been developed on this issue. The Criminal Procedure Code of the Russian Federation also does not contain a definition of the concept of «subject matter». The situation is aggravated by the presence of evaluative concepts in the text of the law, leading to a varied understanding of the subject of appeal by the courts, which leads to a violation of the constitutional rights of citizens at the pre-trial stages of criminal proceedings. In the article, taking into account the analysis of the practice of the Constitutional Court of the Russian Federation, legislation and the opinion of scientists, a recommendation was made to amend the Criminal Procedure Code of the Russian Federation to specify the subject of consideration of complaints in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation in order to eliminate existing contradictions in practice and increase the level of protection of individual rights in pre-trial proceedings.

scholarly journals A Special Legal Approach to Interpretation of Norms of Criminal Procedure Law

Lex Russica ◽  
2020 ◽  
Vol 1 (2) ◽  
pp. 63-74
Author(s):  
D. P. Velikiy
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Legal Interpretation ◽  
Legal Method ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
The Russian Federation

The paper discusses the issue of a special legal approach to interpretation of norms of criminal procedure law. On the example of criminal procedural law the author substantiates the independent character of the special legal method of interpretation, its difference from the grammatical and systematic (systemic) methods of interpretation of law, as well as the place of this method among other means of interpretation. The subject of special legal interpretation include: special legal terms, concepts, categories, legal structures, types (regularities) of legal regulation, rules of legal technique, theoretical provisions. The vast majority of such interpretations were carried out by the Plenum of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, which is predetermined by the need for a common understanding of criminal procedural terminology. Unlike grammatical interpretation, which provides a linguistic analysis of the text of the law, systematic interpretation in which interpretation takes into account the place of the norm in the systemic relationship with other norms, in special legal interpretation the main source of information is legal knowledge, i.e. the knowledge of law and legal theory. If a special legal interpretation is carried out by an official body, it is usually normative. Also, based on the legal stances of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, the author gives examples of “evolution” of legal standings from special legal interpretation to adoption and amendment of legal norms. The article investigates the judicial practice containing the results of special legal interpretation of criminal procedural rules, e.g. legal concepts and terms defined by the same words, but having different meaning depending on the branch of law in which they are used. The author also gives examples of determination of the branch of law to which the norm belongs by means of special legal interpretation.

scholarly journals PROCEDURAL ORDER FOR COURT CONSIDERATION OF INVESTIGATOR’S APPLICATIONS ON THE PRODUCTION OF INVESTIGATIVE ACTIONS, RESTRICTING CONSTITUTIONAL HUMAN RIGHTS AND FREEDOMS

2020 ◽  
Vol 30 (1) ◽  
pp. 159-164
Author(s):  
L.G. Tatyanina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legal Proceedings ◽  
Judicial Control ◽  
Administration Of Justice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
New Form

The criminal procedure legislation of the Russian Federation, providing for the court to give permission to conduct a number of investigative and procedural actions, did not unambiguously regulate the procedure for examining applications from an investigator and making a decision. The different approach of scholars and practitioners to the activities of the court when issuing these permits - judicial authorization or judicial control, necessitated the establishment of the procedure for making appropriate decisions. The current provision of Part 2 of Art.165 of the Code of Criminal Procedure of the Russian Federation, which corresponded to the procedure for considering applications within the framework of judicial authorization, did not meet the requirements for a decision when resolving a conflict in the framework of the administration of justice. Considering the positions of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, the courts, when resolving the petition of the investigator and the inquiry officer for conducting investigative and other procedural actions, began to hold a judicial session to consider these petitions with the preparation of the protocol of a court session, in fact creating a new form of legal proceedings requiring consideration of the issue with the participation of the parties, that should be unconditionally when using audio recording of a court session. The use of this procedure casts doubt on the possibility and expediency of carrying out investigative actions restricting the constitutional rights of citizens, since the disclosure of the plans of the investigator and the inquirer, aimed at obtaining evidence, actually leads to the pointlessness of the implementation of these investigative actions. The article substantiates the need to regulate judicial authorization in order to ensure the proper process of evidence while respecting the rights and freedoms of citizens.

scholarly journals The Adversarial System in Criminal Procedure: Norms and Implementation

2019 ◽  
Vol 8 (12) ◽  
pp. 4039-4042
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Adversarial System ◽  
The Supreme Court ◽  
Modern System ◽  
The Status ◽  
Criminal Procedure Law ◽  
The Russian Federation

The research is devoted to the analysis of the essence and place of the adversarial system in modern criminal procedure regulation. The existing acute debatability regarding the procedural status of the adversarial system in the criminal procedure law of the Russian Federation necessitates the appeal of scholars to this category. The purpose of identifying the true procedural nature of the adversarial system and the boundaries of its implementation is directly related to the determination of the correct place of this procedural category in the modern system of criminal procedure regulation. The analysis of modern scientific views on the procedural status of the adversarial system indicates the presence of diametrical views on the compliance of the adversarial system with the characteristics of an independent industry-wide principle. A controversial opinion about the extension of the principle of adversarial practice to the pre-trial stages of Russian criminal proceedings is noted. According to the authors, the current law enforcement practice confirms the implementation of the "pure" adversarial system only in the judicial stages of the criminal process. Taking into account the provisions of the Constitution of the Russian Federation and the position of the Supreme Court of the Russian Federation, the work provides an argumentation of the authors’ position on the advisability of changing the status and, accordingly, the place of the adversarial system in the structure of the Code of Criminal Procedure of the Russian Federation from the "industry-wide principle" to the "general condition of the trial".

scholarly journals SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

2020 ◽  
Vol 30 (5) ◽  
pp. 747-752
Author(s):  
A.I. Shmarev
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.

scholarly journals TO THE QUESTION ABOUT THE CONCEPT «PROCEDURAL COSTS IN CRIMINAL PROCEEDINGS»

Issues of Law ◽  
2020 ◽  
Vol 20 (4) ◽  
pp. 89-93
Author(s):  
S.M. Darovskikh ◽  
◽  
Z.V Makarova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Costs ◽  
The Russian Federation ◽  
Definition Of ◽  
Article 5

The article is devoted to the issues of formulating the definition of such a criminal procedural concept as «procedural costs». Emphasizing the importance both for science and for law enforcement of clarity and clarity when formulating the definition of criminal procedural concepts, the authors point out that the formulation of this concept present in the current Criminal Procedure Code of the Russian Federation is far from being improved. Having studied the opinions on this issue of the Constitutional Court of the Russian Federation, a number of procedural scholars, the authors propose their own version of the definition of the concept of «criminal procedural costs» with its allocation in a separate paragraph of Article 5 of the Criminal Procedure Code of the Russian Federation.

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 Legality and Validity of Property Seizure in the Investigation of a Criminal Case

Lex Russica ◽  
2021 ◽  
pp. 118-126
Author(s):  
O. A. Malysheva
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Constitutional Court ◽  
Legal Institution ◽  
Procedure Code ◽  
First Case ◽  
The Supreme Court ◽  
Civil Lawsuits ◽  
The Russian Federation

The importance of the measure of procedural coercion in the form of seizure of property increases against the background of the high amount of damage caused by crimes, namely about 550 billion rubles annually. This measure of procedural coercion has a high security potential in order not only to satisfy claims in civil lawsuits, but also to recover a fine and other property claims provided for in Part 1 of Article 115 of the Criminal Procedure Code of the Russian Federation. Investigators (interrogators) annually initiate the seizure of property about 40 thousand times. 90% of cases are a success. The application of this measure is accompanied by the restriction of the property rights of both natural and legal persons, including those who are not recognized as a civil defendant in a criminal case, in the first case, and the accused (suspect).The seizure of property in criminal procedure practice is accompanied by the need for the investigator to overcome a number of difficulties, which are caused, firstly, by the intersectoral nature of the regulation of this legal institution; secondly, by the presence of gaps in the regulation of relations arising in connection with the imposition of this arrest; thirdly, by the inconsistency of the objectives of proof to establish the nature and amount of damage caused by a crime and the implementation of security activities in a criminal case. This gives rise to numerous violations of the legality and validity of the seizure of property on the part of not only the investigator, but also the court, despite the expression of a number of positions of the ECHR on this issue, despite the explanations of the Constitutional Court and the Supreme Court of the Russian Federation.The author concludes that without the release of the investigator as a subject of proof in a criminal case from performing an unusual function — providing compensation for property penalties in a criminal case — it is impossible to achieve the full legality and validity of the seizure of property.

SHORTENED TIMELINE OF APPEAL AGAINST INTERIM COURT DECISIONS MADE AT A PRE-TRIAL STAGE OF CRIMINAL PROCEEDINGS

2021 ◽  
pp. 38-49
Author(s):  
Polina O. Gertsen ◽  
Keyword(s):  
Russian Federation ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Medical Organization ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

The article deals with the problem of classifying interim decisions among those that are appealed in a shortened timeline, and determining the list of such decisions, as well as the closely related problem of determining the rules for calculating such a shortened timeline. Currently, the Criminal Procedure law provides for the possibility of appealing a number of interim decisions made at a pre-trial stage of criminal proceedings before the final decision Moreover, for appealing some interim decisions at a pre-trial stage of criminal proceedings, a general period of appeal is provided - 10 days from the date of the court decision, or the same period from the date of serving with a copy of the decision the person who is in custody, while for others a shortened timeline is 3 days from the date of the decision. Meanwhile, it follows from the literal interpretation of the Criminal Procedure Code of the Russian Federation that within a shortened three-day period, court decisions on the election of preventive measures in the form of a ban on certain actions, bail, house arrest, detention, the refusal to apply them or extend their application can be appealed. At the same time, such a conclusion is not confirmed either in the positions of the Plenum of the Supreme Court of the Russian Federation or in judicial practice. Based on the analysis of the criminal procedure law, the position of the Supreme and Constitutional Courts of the Russian Federation, scientific literature and practice, several problems are highlighted. Thus, the author states the discrepancy between the provisions of the Code of Criminal Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation when it comes to establishing the terms for appealing the court decision on a preventive measure in the form of bail. In addition, there is no single criterion for establishing shortened deadlines for appealing interim decisions, and there-fore, the list of such decisions requires analysis. In addition, the Criminal Procedure Code of the Russian Federation does not contain a norm that determines the rules for calculating daily terms. The author formulates several proposals for amendments. It is proposed to determine the criteria for a shortened appeal timeline as the restriction of the constitutional right to liberty and immunity of a person that requires the immediate judicial review of the lawfulness of such a decision. It is also necessary to correct the phrasing of Article 106 of the Criminal Procedure Code of the Russian Federation, which defines the procedure for applying a preventive measure in the form of bail, and establish the rule that appeal against such an interim court decision is filed according to the rules of Chapter 45.1 of the Criminal Procedure Code within ten days. The list of court decisions which must be appealed in a shortened timeline must be expanded by a court decision on putting a suspect or an accused into a medical organization providing medical or psychiatric care in hospital settings for forensic examination, as well as the extension of a person’s stay in a medical organization. In addition, the author has analyzed the approaches to the calculation of daily terms and proposes to amend Part 1 of Article 128 of the Criminal Procedure Code of the Russian Federation by establishing a single procedure for calculating daily terms, which does not take into account the day that served as a starting point of the term.

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