German Experience of Terminating Criminal Prosecution with the Imposition of Duties and Regulations on the Accused in the Context of the Russian Draft Law on Criminal Offence

The second attempt of the Supreme Court of the Russian Federation to introduce the concept of a criminal offence into Russian criminal and criminal procedure legislation widens the non-rehabilitating grounds for the termination of a criminal case or prosecution with the imposition of other criminal law measures: it is suggested that, in addition to a court fine, community work and partially paid work should also be introduced. This leads to certain problems, including problems with the presumption of innocence and the observance of the principle of justice. The authors turn to the German experience for a better understanding of the situation. Germany faced similar problems much earlier, when § 153а was introduced in the Criminal Procedure Code of the Federal Republic of Germany (CPC of the FRG); it provided for an opportunity to terminate criminal prosecution for criminal offences on the grounds of expediency with the imposition of duties and regulations on the accused, which are akin to criminal law measures under draft law № 1112019-7. Taking into consideration the theoretical approaches developed in Germany, the practice of the Constitutional Court of the FRG and the Supreme Court of the FRG, the authors examine the goals of introducing § 153а in the CPC of the FRG, the practice of its implementation, as well as the problem of terminating criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused connected with the observance of the Constitution of the FRG, the presumption of innocence, the principles of justice, certainty, equality before law; they analyze the controversial legal nature of duties and regulations under § 153а in the CPC of the FRG. According to German criminal procedure law, the termination of criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused is a right, and not a duty of the corresponding officers and agencies as it is, in fact, an alternative to criminal prosecution which makes it possible to terminate it at a certain stage when there are all the necessary legal grounds for criminal prosecution.

Dispositivity principle in the criminal procedure of Azerbaijan Republic: concept and application in individual rights

Unlike other principles of criminal procedure (such as legality, presumption of innocence, etc.), the principle of dispositivity (the principle of autonomy of the will of a participant in the proceedings) does not have an independent legal formula, enshrined in a separate article in the current criminal procedure legislation of Azerbaijan. In this regard, questions about the existence, concept, content, individual elements, manifestations, and scope of the principle are becoming relevant and at the same time highly disputable. The author aims to determine the essence of dispositivity, to consider its individual manifestations, as well as to develop scientifically sound recommendations for optimizing the application in practice of the norms of the Code of Criminal Procedure in regulating issues related to the dispositive basis of the criminal process. The set goals predetermined solution for such basic issues as study of the philosophical and legal concept of dispositivity; determination of determinants-manifestations of dispositivity in criminal proceedings as a whole; recognition of dispositivity as one of the autonomous principles of the modern criminal process of Azerbaijan. The study was conducted by methods of dialectical cognition based on the principles of reflection, comprehensiveness, unity of induction and deduction, determinism, contradiction, and unity of analysis and synthesis. The author has studied and summarized a great deal of doctrinal material and jurisprudence, and some selected judicial acts have been used as real models for casuistry of the issues addressed in the article. As a result of the study, the author substantiates that, despite the absence of an independent article in the CPC on this principle, dispositivity is an autonomous principle of criminal procedure, not covered by other principles; on the contrary, it enters into various correlative relations with them. In other words, the Code of Criminal Procedure does not provide a binding feature of the principle of criminal procedure. As the main determinants of the principle under study, the author proposes to consider a system of procedural rights of non-governmental participants in the proceedings that have the effect of initiating some kind of proceedings, and the consent of a participant category, which is a mandatory condition in the procedural decision-making mechanism of entities with power.

Resuscitating criminal courts after Covid-19: Trialling a cure worse than the disease

This article, focusing on the issue of custody time limits litigated under Covid-19 conditions, sets out how reasoned decisions to refuse to extend custody for unconvicted defendants excited the disapproval of senior judges such that fundamental changes were made to evidence, procedure and proof as well as effecting permanent manipulation of the composition of the adjudicating panels authorised to deal with such cases. This additionally raises fundamental questions about the administration and governance of the courts, the independence of the judiciary in decision-making and the basic utility of the presumption of innocence in such cases.

Reconciliation Between the Victim and the Perpetrator-Restorative Justice

The purpose of this research is to study and address the relation between the perpetrator and the victim, in particular the way it is regulated in the Republic of Kosovo by comparing it with the regulation in other countries. A long time ago criminal law in its institutes has paid attention only to the perpetrator, trying to guarantee his fundamental rights, it is enough to stop at the institute of presumption of innocence and many other institutes and we can see how importance criminal law and in particular criminal procedure has paid to the perpetrator, and on the other hand the victim has always remained in the shadows. Therefore, today we find it reasonable to address this issue, to find out from which period criminal law and authors of criminal law turn their heads towards the victim, to find out what is the position of the victim in society today, what steps have been taken in legal terms and also special attention will be paid precisely to restorative justice as a key point for the realization of the rights of the victim, the compensation of the damage and the restoration of balance and the establishment of relations in society. And it is quite important that in addition to the relations that perpetrators have with victims, we also try to understand the historical course of restorative justice and this way to make an analysis of the position of the victim and the perpetrator over the decades.

Right Without Remedy? The Development of the Presumption of Innocence at the International Criminal Court

This article examines the presumption of innocence’s development at the International Criminal Court. While the presumption of innocence was hardly debated at the Rome Conference, several issues surrounding the presumption have been open to wide interpretation by the Court. This article argues that since the Rome Statute’s entry into force, the presumption of innocence goes beyond the text of Article 66 and has become a robust right that has application both inside and outside of the courtroom and has effect during the Situation, Pre-Trial and Trial phases. Despite these developments, what happens when the right is violated remains an open question. The paper will conclude that while the presumption of innocence may be better defined and more protective than it was 20 years ago, what happens in the case of a violation continues to be an area for further development.

Legal Rules Concerning Shoot to Death for Criminal Acts of Terrorism in the Perspective of the Principle of the Prejudiction of Innovality

The state in carrying out the life of the nation and state faces threats that come from within the country and abroad. This study aims to find out the legal rules regarding shooting to death for perpetrators of criminal acts of terrorism in the perspective of the principle of the presumption of innocence, where this case has always been a hot issue in Indonesia, especially when we associate shooting to death or being shot on the spot for perpetrators of criminal acts of terrorism with the principle of presumption of innocence. This research is normative in nature with reference to existing books, journals, and laws and regulations. There are several legal rules that form the basis for doing so/shooting death against terrorism crimes are: Article 48 of the Criminal Code, In Article 49 paragraph (1) of the Criminal Code, In Article 51 of the Criminal Code paragraph (1), National Police Chief Regulation Number 8 of 2009 concerning Implementation of Human Rights Principles and Standards. The principle of presumption of innocence also places him in the Burden of Proof or the burden of proof and it is the duty of the public prosecutor to prove the defendant's guilt, unless the proof of Insanity is imposed on the defendant or the law provides strict provisions for reverse proof. The application of the principle of presumption of innocence must also always uphold human rights that must be respected by everyone.

Forecasting the future while investigating the past. The use of computational models in pre-trial detention decisions.

The paper focuses on the traditional purpose of pre-trial detention (and other precautionary measures) to prevent specific risks. While liberty is the rule, before conviction, pre-trial detention is an absolute exception, competing with the opposite principle of the presumption of innocence: providing valuable and accurate justification for balancing the interest to prevent risk with the presumption of innocence is an overarching difficulty for judges, in the whole western world. Which the solutions? The paper reflects and compares the traditional solution of legal presumptions with the newer trend of actuarial assessment tools, based on psycho-criminological theories, based on the Italian and the uS federal systems.

Simulated Legal Phenomena in the System of Principles of the Administrative Process

With the inclusion of the category “simulation” in the Code of the Russian Federation on Administrative Offences an interest arose in studying “simulation” in the system of principles of the administrative process. The purpose of the study is to formulate general recommendations for neutralizing the negative consequences of manifestations of feign in the system of principles of the administrative process. The methodological basis of the research is materialistic dialectics and elements of conceptual analysis. The methods of analogy and generalization allow us to justify the use of the construction of “simulated legal phenomenon” for the study of the principles of the administrative process. The survey revealed obstacles to the implementation of certain aspects of the presumption of innocence. The comparative legal analysis allows us to establish the comparability of the volumes of state repression in the measures of administrative and criminal responsibility, a clearly negative assessment of simulation in administrative law compared to its neutral assessment in civil law, to identify a number of obstacles to the functioning of the principles of the administrative process. Other standard research methods are also used. The expediency of analyzing the simulation of the system of principles of the administrative process is justified; a simplified model of the system of principles of the administrative process is used for the analysis; from the standpoint of assessing legal simulation, the analysis of the principle of legality, the principle of procedural equality, the principle of guilt, the principle of presumption of innocence, as well as the principle of respect for the honor and dignity of the individual was carried out. In order to reduce the level of obvious simulation in the system of principles of the administrative process, in particular, it is recommended: in the doctrine of the administrative process to consider the principle of legality not as a reality, but as a goal; in the laws, replace the term “legality” with the term “lawfulness”; in the laws, the wording “the principle of equality before the law” and the like should be replaced with “the principle of equality of rights”; part 1 of Article 1.5 of the Code of the Russian Federation on Administrative Offences should be amended as follows: “a person is subject to administrative responsibility only for those socially harmful actions (acts of inaction) in respect of which his guilt is established”; part 3 of Article 1.5 of the Code of the Russian Federation on Administrative Offences after the words: “...is not obliged to prove his innocence” should be supplemented with the words “but has the right to disagree with all or part of the arguments confirming his guilt, or to refute them”. It is also recommended to amend the legislation in order to unify the approach to the differentiation of administrative offenses and crimes.