criminal procedure law
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Ius Poenale ◽  
2021 ◽  
Vol 2 (2) ◽  
pp. 137-148
Feryando Feryando

An error in persona in the implementation of the criminal justice system is a type of destructive action by law enforcement officers that can cause harm to someone. The use of authority by investigators to arrest and detain and detention and prosecution by public prosecutors is a concrete form of persona error. This study focused on the mechanism of a compensation claim through pre-trial due to a persona error in implementing the criminal justice system and an impediment to the implementation of the pre-trial judge's decision on the granting of the compensation claim. The method used is normative and empirical juridical research. The results showed that the mechanism of a claim for compensation through pre-trial due to an error in person in implementing the criminal justice system was carried out fundamentally at the formulation stage. These formulations outlined in the Code Of Criminal Procedure (Kitab Undang-Undang Hukum Acara Pidana/ KUHAP) and Government Regulation Concerning Implementation of The Book of Criminal Procedure Law as a basis for the implementation of pre-trial and the application stage. The statutory factors of Decree of the Minister of Finance of the Republic of Indonesia Number: 983 / KMK.01 / 1983 (Keputusan Menteri Keuangan RI Nomor 983/KMK.01/1983) are an impediment in implementing the pre-trial judge's determination of the compensation claim because the regulation governs administrative procedures that are lengthy and involve government agencies.

Christina Kalandarishvili

The process of proving has always been and today still is the central problem of criminal proceedings, and most aspects of modern criminal procedure activities are connected with it. The cognitive character of the proving process presupposes the use of multiple methods, the most complex and significant of which is the method of presuming. This method of legal technique is well represented in the Russian legislation. At the same time, legal science and the theory of criminal procedure law, which have multiple definitions of legal or lawful presumption reflecting various aspects of the concept under consideration, do not contain a unified approach to understanding its essence. This situation distorts the meaning of the definition of legal presumption and leads the situation when some authors and practicing lawyers use the word “presumption” to refer to legal norms that are not, in fact, legal presumptions. The authors describe the concept, meaning and key elements of the contents (features) of legal presumption as a method of legal technique that influenced the formation and development of modern Russian criminal procedure legislation.

2021 ◽  
Vol 2 (16) ◽  
pp. 139-161
Anhelina Yevhenivna Oliinychenko

Domestic violence is a phenomenon that can take the form of a socially dangerous act and be qualified as a crime under Art. 126-1 of the Criminal Code of Ukraine and other articles of the Criminal Code of Ukraine. It is the correctness of the criminal legal qualification of domestic violence that became the subject of our study.              The lack of systematic interpretation of Art. 126-1 of the Criminal Code of Ukraine leads in practice to the fact that the courts decide completely differently on the qualification of actions of a person. After all, domestic violence can be a manifestation of both an administrative offense and a criminally punishable act. That makes it impossible to further apply the restrictive measures of a criminal legal nature, enshrined in Art. 91-1 of the Criminal Code of Ukraine. Such situation has already become the basis for resolution in the order of review by higher courts and formation of a position on the most problematic aspects by the Supreme Court of Ukraine. In particular, in order to avoid the prohibited double conviction or punishment, the proceedings must be combined on a comprehensive basis and form a single whole. This means not only that the goal and the means used to achieve it must complement each other in nature and be linked in time, but also that the possible consequences of such legal response to appropriate behavior must be proportionate and predictable. for the persons to whom they relate.             Thus, the purpose of our study is to form a list of issues for the correct criminal legal qualification of actions under Art. 126-1 of the Criminal Code of Ukraine, for the correct separation from the administrative offense under Art. 173-2 of the Code of Administrative Offenses, as well as from other criminal offenses related to domestic violence. The task is to study the conclusions of the Supreme Court of Ukraine, to analyse the case law, to analyse the research conducted by non-governmental international organizations, as well as to analyse the positions of the doctrine of criminal and criminal procedure law on this issue.  

Elena Alontseva

The article is devoted to the procedural procedure for the seizure of electronic media, taking into account the general rules for the production of investigative actions. The problems of regulating the production of investigative actions, within which it is possible to seize electronic media and law enforcement practice on this issue, are subjected to a detailed study and analysis. It also formulated conclusions and proposals for amendments aimed at eliminating insufficiently clear regulation of legislation and improving law enforcement practice. The main goal of the scientific work is to form a correct understanding of the determination of the grounds and the procedural procedure for the seizure of electronic media of information in the course of investigative actions in compliance with the requirements of the criminal procedure law. For this, some scientific ideas on this issue have been analyzed, the provisions of the criminal procedure law in terms of general rules for the production of investigative actions and other provisions of the law related to the procedure for the seizure of electronic media have been studied in detail, law enforcement practice has been studied. We used formal logical, descriptive, comparative legal methods and the method of interpreting legal norms. The result of the scientific research is conclusions and proposals on the features of the seizure of electronic media in criminal cases in the field of entrepreneurial activity, on the participation of a specialist and attesting witnesses in the seizure or copying of information from electronic media.

2021 ◽  
Vol 11 (12) ◽  
pp. 1709-1716
Shifang Li ◽  
Yifan Wang

This study analyzes the textual cohesion of Criminal Procedure Law of the People’s Republic of China from the perspective view of Cohesion Theory. According to the data analysis, the study indicates that, in this legal text, the means of cohesion occurs totally 792 times, among which grammatical cohesion takes a large proportion, that is, 83.9%, while lexical cohesion takes the ration of 16.1%. In the lexical cohesion, the repetition is used much more frequently, followed by the means of hyponymy/meronymy, synonymy/antonymy and collocation, taking the ratio of 0.8%, 0.5% and 0.4% respectively. Thus, we can know from the statistics that cohesion is an important feature of the Chinese legal text. It connects the syntactic grammar and the lexicons into together closely in the Chinese legal Articles. Therefore, the paper points out that a proper understanding of the cohesive devices in the Chinese legal text is significant to legal draftsmen and social scientists in the field of language and the law, for they might improve the text quality of their work with it.

2021 ◽  
Vol 26 (1) ◽  
pp. 34-60
Veljko Turanjanin

This paper is focused on several important issues that deal with special investigation measures. The main perspective of the analysis is based on the ECtHR case law on this issue. Two issues are from primary interests: secret monitoring of communication and undercover investigator. Intensive ICT development enables various modern techniques and methods of crime investigation but also results in some new types of crime that could be committed using ICT. Expansion of the fundamental rights and their protection, especially in Europe, raised global awareness of the right to privacy and the need to protect it. Having that in mind, it seems that the main question that should be answered by legislator is: Where is the borderline between the right to privacy and the public interest to investigate or prevent crime and collect evidence? The undercover investigator falls under Article 6 of the Convention and there are different rules on the admissibility of such evidence. Serbian Criminal Procedure Law on some points is in line with ECtHR standards, but some very important provisions, as well as practice, are not.

Legal Concept ◽  
2021 ◽  
pp. 189-194
Natalia Solovyova ◽  
Pavel Fantrov ◽  
Vladimir Shinkaruk ◽  

Introduction: the range of tasks facing the stage of initiating a criminal case is quite diverse, which leads to different interpretations of their content by the scientists-processualists. The authors of the paper assess the problems of determining the reasons and grounds for initiating a criminal case. The problem considered by the authors of the manuscript is relevant because of their insufficiently clear legislative definition and their related ambiguous interpretation. The purpose of the study: to identify the problems that hinder the improvement of the procedural order for checking the reasons and grounds for initiating a criminal case. The research objectives: to analyze the points of view of the scientists-processualists about the expediency of eliminating the first stage of the criminal process; to offer some recommendations for transforming the stage of initiating a criminal case. Methods: the methodological framework for the study is represented by a system of methods of scientific cognition, which should include: general scientific, systemic, institutional, and comparative legal. Results: the paper provides an assessment of the position of some researchers specializing in criminal procedure law on the need to eliminate the stage of initiating a criminal case, which the authors of the paper do not share, citing the following arguments: the considered stage of the criminal process acts as a kind of filter that separates the law enforcement agencies from procedural activities for the analysis of information that does not hide the signs of a criminally punishable act; will cause an increase in the burden on investigators and interrogators; the burden on the federal budget will increase due to the procedural costs. Conclusions: considering the possibility of improving the stage of initiating a criminal case, borrowing the experience of the representative countries of the Anglo-Saxon legal system, the authors of the paper conclude that as a result of this, the procedural status of some participants in the criminal process will change, which is alien to the Russian criminal procedure legislation: the replacement of the functions of the investigator by the prosecutor and the court; the exercise of the function of the body of inquiry by the investigator; the acquisition by the defender of the status of the subject of proof on a par with the investigator and the inquirer. It is noted that the attempt of the legislator to give evidentiary value to the information obtained during the preinvestigation check as an independent reason for initiating a criminal case was not successful.

Lex Russica ◽  
2021 ◽  
pp. 52-61
N. A. Danilova ◽  
E. V. Elagina ◽  
M. A. Grigorieva

The paper analyzes the errors committed by law enforcement officers in the implementation of various types of special knowledge at all stages of criminal proceedings. Shortcomings under consideration are differentiated into shortcomings committed in the production of investigative actions, during which objects were seized, subsequently presented for an expert examination, when forensic examinations are appointed, in the production of forensic examinations, when examining the expert's opinion by officials of the preliminary investigation bodies and the prosecutor's office. At the same time, such errors are periodically repeated and multiply: forensic examinations, the need for the production of which is caused by the specifics of the crime being investigated, the current investigative situation and, being justified by specially developed recommendations, are not scheduled; the questions posed to the experts do not cover all the circumstances the establishment of which is possible only through the involvement of persons knowledgeable in a particular area of special knowledge; the questions themselves are not always directly related to the expert's specialization and the type of examination; the presence of proper qualifications of a person involved as an expert is not verified, etc.Without setting themselves the task of analyzing all or most of these errors, the authors thoroughly consider the most serious errors using specific examples from judicial investigative practice and they come to the conclusion that the effectiveness and efficiency of using the expert's conclusion in proving is possible only under the context of impeccable observance by officials of preliminary investigation bodies, forensic experts and heads of forensic institutions of the provisions of the Criminal Procedure Law, the Federal Law "On State Forensic Expert Activity", departmental regulations and forensic recommendations.

2021 ◽  
Vol 11/2 (-) ◽  
pp. 5-11
Anastasiia HLOBA

Introduction. The work considers the problem of implementation of private detective institute in the context of realization of the principles of equality and competitiveness in the criminal process. At present the relevancy of this institute is proved by numerous attempts of the Verkhovna Rada of Ukraine to adopt a relevant law. As scientists note, the current version of Draft Law contains a large number of shortcomings. At the same time, in Ukraine the problem of compliance of the provisions of the Code of the Criminal Process with the principles of equality and competitiveness in criminal proceedings remains controversial. Scientists have repeatedly studied this issue and suggested ways to solve them, but the corresponding changes have not yet been implemented. Such a solution is necessary to ensure respect for human rights, so it is important to consider the possibility of solving problems related to the implementation of the principles of equality and competitiveness through the introduction of the institution of private detective in Ukraine. The purpose of the paper is to examine the legal nature of the principles of equality and competitiveness in criminal proceedings, their interrelation, implementation problems, as well as the possibility of solving problems of implementation of these principles by introducing the institution of private detective in Ukraine. Results. Authors made an analysis of legislation, doctrine and international practice. It proved the importance of implementation of the institute of private detective. However, current Draft Law are not perfect and complete and cannot provide the improvement of realization of principles of equality and competitiveness in criminal proceedings. Conclusion. The position of Ukrainian criminal procedure law on compliance with principles of equality and competitiveness is not complete, as the defense has fewer opportunities to gather evidence than the prosecution represented by public authorities. To improve the situation with the principles of equality and competition, it is recommended to consider the introduction of the private detective institute in Ukraine. To do this, it is necessary to provide proper legislation in order for this institution to improve the situation in compliance with these principles.

2021 ◽  
Vol 4 (4) ◽  
pp. 249
Syamsuddin Syamsuddin ◽  
Ridwan Ridwan ◽  
Iksan Iksan

The witchcraft incident in Bima Regency has threatened the safety and security of human life, witchcraft has triggered people to take vigilante actions (Eigenrichting) as a counter reaction by means of destruction, persecution and even murder. This study aims to determine public perceptions related to witchcraft, and also to find out why witchcraft always results in mass vigilante action (Eigenrichting) so that prevention and resolution efforts can be formulated. This study uses empirical or sociological research, data collection is carried out by direct and structured interviews and through literature study, while drawing conclusions using inductive methods. The results showed, first; In the period 2016-2021, there were 53 cases of alleged witchcraft practices in Bima Regency, damaging the social order and disrupting community stability. The community considers witchcraft as a dangerous or evil act, because the motive and purpose of using witchcraft is to torture, and/or kill human souls; Second; The behavior of witchcraft has led to vigilante actions (Eigenrichting) in some people, this is due to the existence of a legal vacuum that has not regulated the act of witchcraft and how to solve it legally. The act of vigilantism (Eigenrichting) appears as a form of reaction that arises from the community due to their rights and comfort being disturbed, which action is manifested in the form of violence as an act of revenge against the perpetrators of witchcraft. The juridical conclusion that the terminology of witchcraft and vigilante acts (Eigenrichting) have not been specifically regulated in the current laws and regulations as prohibited acts and are threatened with punishment. As a suggestion that the terminology and elements of the criminal act of witchcraft in the current Criminal Code Bill need to be expanded further, as well as the system of proving the crime of witchcraft in the Indonesian criminal procedure law needs to obtain further, more complete arrangements.

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