scholarly journals TO THE ISSUE OF SOME POWERS OF A PROSECUTOR IN CRIMINAL PROCEDURE AND ADMINISTRATIVE PROCEEDINGS

2020 ◽  
Vol 16 (1) ◽  
pp. 66-74
Author(s):  
Елена Папышева
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Status ◽  
Administrative Proceedings ◽  
The Relationship

This article discusses some powers of a prosecutor, his legal status in criminal procedure and administrative proceedings, the relationship between the functions of criminal prosecution and prosecutorial supervision. The author notes that at the stage of initiating a criminal case, prosecutor’s powers for criminal prosecution are exercised through supervisory activities, during which, on the facts of perpetration, he is entitled to make a reasoned decision to send the relevant materials to preliminary investigation bodies. The article analyzes prosecutor’s powers in initiating an administrative case, the legal nature of the prosecutor’s decision, which, according to the author, is not and cannot be evidence in the case (source of evidence), in contrast to the position of the courts and the prevailing judicial practice. Both processes (criminal and administrative proceedings) are based on identical principles and have similar institutions. Including for this reason, the problems of determining the status and powers of the prosecutor in exercising supervision have common roots.

To the Matter of Procedural and Legal Problems of Detaining a Person on Suspicion of Committing a Crime

2021 ◽  
Author(s):  
E.V. Bolshakov ◽  
◽  
I.D. Nazarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
The Moment

The subject of the research within the framework of the article is the criminal procedure institute for the detention of a person on suspicion of committing a crime. The legal nature of this institution is analyzed, and comments are given on the normative legal acts and judicial practice regulating the issues of detention. The theoretical basis of the research is based on the publications of the last two decades on this problem, in particular, reflecting the discussion of the process scientists S. A. Shafer, S. B. Rossinsky and A. A. Tarasov, the subject of which was the issue of the legal nature of a suspect detention in a criminal case. In the paper, the authors ask the following questions: What is the detention of a person on suspicion of committing a crime in accordance with the legislation of the Russian Federation? From what moment does the detained person acquire the status of a suspect? Is it possible to detain a person before initiating a criminal case? The study concludes that a person acquires the actual status of a suspect from the moment of direct detention, that is, before documenting this status and, as a result, before initiating a criminal case. Amendments to the articles of the Criminal Procedure Code of the Russian Federation are proposed, and the authors` versions of the definitions of the concepts «detention of a suspect», «the moment of actual detention» and «pre-trial proceedings» are given.

scholarly journals INTERROGATION OF THE VICTIM, THE WITNESS UNDER A PSEUDONYM IN PRE-JUDICIAL AND JUDICIAL PRODUCTIONS (CRIMINAL PROCEDURE AND CRIMINALISTIC ASPECTS)

2019 ◽  
Vol 29 (4) ◽  
pp. 480-486
Author(s):  
A.Yu. Epikhin ◽  
A.V. Mishin
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
Current State ◽  
Criminal Procedure Law ◽  
The Republic ◽  
Practical Recommendations

Ensuring the safety of victims, witnesses in a criminal case allows to carry out the main objectives of criminal prosecution. Interrogation as one of the main investigative actions allows to record important information of evidentiary nature in the case. Currently, there is a sufficient number of proven forensic recommendations for tactics of interrogation of the victim, the witness in pre-judicial production. At the same time, interrogation of such participants of criminal proceedings under a pseudonym in preliminary investigation and, especially in court session, in terms of criminalistics is poorly studied. The article discusses problematic issues of the current state of the organization and tactics of interrogation under a pseudonym of the protected person in pre-judicial and judicial criminal case productions. The authors have proposed variable tactical solutions on production of interrogation of this type, practical recommendations for the persons conducting proceedings, as well as formulated proposals aimed at improving the effectiveness of the law enforcement of the criminal procedure law. The data of generalization of investigatory and judicial practice in the Republic of Tatarstan have been used.

scholarly journals Draft Law on Criminal Misconduct given the German Experience of Legal Regulation

Lex Russica ◽  
2021 ◽  
pp. 133-141
Author(s):  
Ya. M. Ploshkina ◽  
L. V. Mayorova
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Offense ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.

scholarly journals ON THE LEGAL POSITION OF A WITNESS UNDERGOING A PUBLIC CRIMINAL PROSECUTION PROCESS

2020 ◽  
Vol 12 ◽  
pp. 23-26
Author(s):  
Andrey A. Boyarintsev ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Legal Nature ◽  
Legal Position

In the article, the author considers the category of “witness under suspicion”, specifying that within the framework of criminal procedure science, the study of the legal nature of this phenomenon is very relevant due to the approach demonstrated by the legislator to endow participants in criminal procedure relations who have signs that do not allow them to be fully attributed to any of the existing categories with an independent procedural status. The author also provides a justification for the need to review the existing legal mechanisms for ensuring the procedural interests of a witness against whom actual criminal prosecution is being carried out, and raises the problem of using the evidence obtained as a result of such activities to expose the accused in a criminal case.

scholarly journals On the problem of establishing a condition for compensation for damage and making amends for damage when a criminal case (criminal prosecution) is terminated in connection with the appointment of a criminal law measure in the form of a court fine

2021 ◽  
Vol 4 ◽  
pp. 129-134
Author(s):  
I.V. Fatyanov ◽  
Keyword(s):  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Compensation For Damage

The article examines the ambiguity in the interpretation of article 76.2 of the Criminal code and article 25.1 of the Criminal procedure code of the Russian Federation to establish terms of compensation for the damage and (or) smoothing caused by the crime harm. The author substantiates the argument about the fallacy of considering this condition only formally, the author focuses on the mandatory establishment in this case of the characteristics of the identity of the guilty person and the measure of public danger of the committed act. The scientific novelty of the article lies in the approach proposed by the author to the study of the problem of establishing such a condition. In particular, the author considers it essential to solve such a problem to study the legal nature of compensation for damage and compensation for damage when a criminal case (criminal prosecution) is terminated on this basis. The author defines the specifics, identifies the main purposes of such a legal phenomenon in the context of a legal problem. The article concludes that if the preliminary investigation body and (or) the court (justice of the peace) the lack of property harmful consequences from the crime, the failure to make reparation is not to be considered as an obstacle to the termination of criminal proceedings on the grounds provided by article 25.1 of the Criminal procedure code of the Russian Federation, article 76.2 of the Criminal code of the Russian Federation. As a conclusion, the scientific work has prepared a specific text of the interpretation of the condition in the relevant explanations of the Supreme Court of the Russian Federation, which will exclude ambiguity on this issue from the law enforcement officer.

scholarly journals The Identification of Close Relatives of the Deceased Suspect or Accused in Criminal Proceedings: the Problems of the Legal Regulation and Interaction

Legal Concept ◽  
2021 ◽  
pp. 90-99
Author(s):  
Kristina Trifonova ◽  
Mikhail Shmatov ◽  
Vadim Perekrestov
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
The Body ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Deceased Person ◽  
The Russian Federation ◽  
Close Relatives

Introduction: the termination of a criminal case or refusal to initiate a criminal case on a non-rehabilitative basis, provided for in paragraph 4, part 1, Article 24 of the Code of Criminal Procedure of the Russian Federation, will have a certain degree of specificity in the production of procedural actions. A sign of this type of proceedings is the appearance of a special category of subjects of criminal procedural relations – close relatives of the deceased person, who can initiate further investigation of the criminal case and its consideration in court in order to rehabilitate the deceased suspect or accused. These subjects are involved in the plane of legal relations in connection with the presence of their “legitimate interest”, both of a property and non-property nature. A detailed study of the criminal procedure status of a person against whom the criminal prosecution was carried out, but he was not given the status of a suspect or accused, is due to the need to establish the circle of his close relatives. The effectiveness of this activity depends both on the successful interaction of the subject of the investigation with the body of inquiry and other state bodies, and on the legal regulation of the situation in criminal proceedings of close relatives and other interested persons of the deceased. The purpose of the study is to analyze the legal status of the deceased person not only at the stage of procedural verification, but also at the stage of preliminary investigation, as well as to suggest the ways to solve problems, related to the involvement of close relatives and other interested persons of the deceased in the investigation process, including through the use of various forms of interaction of the subject of the investigation with the body of inquiry and the state bodies. Methods: in the course of the study, the general and specific scientific methods were used, namely: comparative research, system analysis and logical-legal. Results: the paper analyzes the current regulatory regulation of the legal status of a deceased person during a procedural check before making a decision to refuse to initiate a criminal case, and provides a comparative legal analysis of similar legal provisions under the legislation of some foreign countries. The problems associated with the moment when it is necessary to obtain the consent of close relatives for making a decision in accordance with paragraph 4 of part 1 of the article are identified. 24 of the Code of Criminal Procedure of the Russian Federation, the directions and conditions of the activity of the investigative body in connection with the adoption of this decision are defined. It is indicated that the circle of related persons whose opinion needs to be clarified is not defined in the law. In this regard, it is proposed to rely on the position of the Constitutional Court of the Russian Federation and find out the opinion primarily of close relatives, the establishment of which depends on the successful application of various forms of interaction. Conclusions: the legislative recommendations are proposed to improve the legal status of a deceased person who has not yet been given the status of a suspect or accused, but in relation to whom the criminal prosecution was carried out. The paper analyzes in detail the activities of the investigation body to identify close relatives in order to clarify their opinion on the decision made in accordance with paragraph 4, part 1, Article 24 of the Criminal Procedure Code of the Russian Federation. The recommendations on the organization of interaction aimed at identifying the specified participants in the criminal process are given.

scholarly journals About the inadmissibility of “pilot” charges in pre-trial proceedings in a criminal case

2021 ◽  
Vol 4 ◽  
pp. 121-128
Author(s):  
S.B. Rossinsky ◽  
Keyword(s):  
Criminal Responsibility ◽  
Preliminary Investigation ◽  
General Rule ◽  
Preventive Measure ◽  
Criminal Court ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
The Status ◽  
The Subject ◽  
Court Proceedings

It investigated the involvement of a person as an accused as an act of criminal prosecution, containing the position of the state prosecution in a criminal case, that is, a criminal-legal claim, which is the subject of an upcoming trial. It is concluded that, proceeding from the grounds provided for by law for attracting a person as an accused, taking into account the doctrinal positions, in accordance with which the accusation is the result of a full, comprehensive and objective investigation of the circumstances of the criminal case and presupposes practically the absolute conviction of the investigator in exposing a person of committing the crime incriminated to him, the author comes to the conclusion that this act of criminal prosecution, as a general rule, should close the main phase of the preliminary investigation, be the logical conclusion of a set of procedural actions aimed at establishing the circumstances included in the subject of proof , and be carried out in anticipation of the transfer of the materials of the criminal case for further consideration to the court. The author analyzes the reasons that predetermined the widespread spread of another, as it were, two-stage practice of pre-trial bringing a person to criminal responsibility, consisting in the issuance of the initial (“pilot”) and final charges. It has been determined that the need for movement and the presentation of a “pilot” accusation is currently associated only with the following from the meaning of Ch. 13 of the Code of Criminal Procedure of the Russian Federation, an absolutely unreasonable requirement that a person be in the status of an accused as a legal condition for choosing a preventive measure against him, which was a consequence of attempts made by the Soviet legislator to borrow a number of well-proven pre-revolutionary mechanisms and procedures without their proper adaptation to new at that time realities of criminal court proceedings.

scholarly journals On the issue of determination of the procedural status of the new witness for the prosecution in criminal procedure

2019 ◽  
pp. 225-228
Author(s):  
Fyodor M. Kobzaryov
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Federal Law ◽  
Legal Proceedings ◽  
The Status ◽  
The Russian Federation

The main approaches to definition and to the content of the procedural status of the person with respect to which, the criminal case is allocated in separate legal proceedings in connection with conclusion of the pre-trial agreement with it concerning cooperation are considered in the article; provisions of the Federal law as of 10/30/2018, #376-ФЗ "On amendments to the Code of Penal Procedure of the Russian Federation" are analysed; according to them, the status of this person is defined, and suggestions for improvement of the legal status of the new participant of criminal procedure are proved.

scholarly journals The Interaction of the Investigator, the Head of the Investigative Body and the Prosecutor in the Initiation and Implementation of Criminal Prosecution

Legal Concept ◽  
2021 ◽  
pp. 41-48
Author(s):  
Valentina Lazareva
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Legal Concept ◽  
Procedure Code ◽  
The Russian Federation

Introduction: criminal prosecution is a specific legal concept that means a certain type of law enforcement activity. Having introduced this concept into legal use, the Criminal Procedure Code of the Russian Federation pointed to the purpose of this activity – the exposure of a suspect accused of committing a crime (Paragraph 56 of Article 5), its compliance with the scheduling criminal proceedings (Part 2 of Article 6), types (Chapter 3) and subjects (Chapter 6). The content of this activity, the methods of its implementation indicate that the criminal prosecution coincides with the procedural activities of the inquirer, investigator and prosecutor, that is, it is carried out through the performance of each of the named persons of their powers. This allows us to put forward and substantiate the thesis that a preliminary investigation is a criminal prosecution carried out in the procedural form of a proceeding or inquiry, that is, an activity aimed at identifying and exposing a person, a suspect, or an accused of committing a crime, whose efficiency depends on a properly organized procedural interaction of the entities carrying out this activity, which together form the prosecutorial power of the state. The purpose of the study: to identify the reasons for the lack of effective cooperation of the criminal prosecution authorities and suggest the ways to eliminate them. The objectives of the study: to characterize the role (function) of the bodies, inquiry, investigation, prosecutor’s office in pre-trial proceedings in a criminal case, to formulate and base the conclusion that pre-trial proceedings in a criminal case are a form of criminal prosecution as a common type of criminal procedural activity for the inquirer, investigator and prosecutor. The dialectical, logical, systematic, structural-functional and other general scientific research methods were used in the preparation of the paper; as well as the comparative-legal, formal-legal and other specific scientific methods. Results: the paper shows that the reform of the preliminary investigation bodies, which resulted in the removal of investigators from administrative subordination to the prosecutor, the redistribution of powers between the prosecutor and the head of the investigative body in favor of the latter, did not lead to the expected increase in the procedural independence and independence of the investigator, but had a negative impact on the level of legality of pre-trial proceedings. The amendments made to the Criminal Procedure Code of the Russian Federation in 2007 and later proved to be insufficiently thought out; they are not logical and do not conform well with other norms of criminal procedure law. The shortcomings of the legal regulation of the procedure for exercising the powers of the head of the investigative body and the prosecutor, their interaction with the investigator and among themselves, were only partially corrected by Law No. 404-F of December 28, 2010. Conclusions: the need to improve the efficiency of interaction of the investigator with the head of the investigative body and the prosecutor requires a serious revision of a number of norms of the Criminal Procedure Code of the Russian Federation.

scholarly journals Prosecutor’s Decision as a Cause for Initiating Criminal Proceedings: Problems of Improving the Legislation

Legal Concept ◽  
2019 ◽  
pp. 131-139
Author(s):  
Natalia Solovyova ◽  
Altyn Ilyasova
Keyword(s):  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Compliance With The Law

Introduction: in the paper the authors reveal the essence of one of the causes for initiating a criminal case, the socalled fourth cause with the title “the prosecutor’s decision to send relevant materials to the preliminary investigation body to resolve the issue of criminal prosecution”; actual problems associated with the implementation of the powers of the Prosecutor’s office at the stage of initiating a criminal case; the essence of the supervisory powers of the Prosecutor’s office (Prosecutor) at the stages of criminal proceedings. Addressing this topic is due to the main purpose – the consideration of the concept of “prosecutor’s decision as a cause for initiating a criminal case” in the criminal procedure legislation of the Russian Federation, as well as the study of topical problems of implementing the powers of the Prosecutor’s office (prosecutor) when considering the issue of ensuring compliance with the principle of legality at all the stages of criminal proceedings. Methods: the methodological framework for the study was the general scientific method of cognition, including the principle of objectivity, consistency, induction and deduction. In the context of this method and in connection with it, the general logical methods of theoretical analysis and specific scientific methods (comparative law, technical and legal analysis, concretization, interpretation) were used. Results: considering the concept of “prosecutor’s decision as a cause for initiating a criminal case”, the authors drew attention to the role of the prosecutor in making the relevant decision on the activity management of the preliminary investigation body, indicated, that in criminal procedure law of this state the most important function of the Prosecutor’s office (prosecutor) is the supervision over compliance with rule of law by all the bodies and officials, by virtue whereof, in practice, the implementation of two mutually exclusive powers of the Prosecutor’s office (prosecutor) can lead to the imbalance in the full implementation of the principles of criminal procedure at all procedural stages. Conclusions: as a result of the study, the authors come to the conclusion that in order to implement fair justice at the stages of criminal proceedings, it is necessary to make appropriate changes in the criminal procedure legislation of the Russian Federation, since the combination in one body of powers to initiate criminal proceedings (in particular, sending a corresponding resolution to the preliminary investigation body to resolve the issue of criminal prosecution) and the powers to supervise over compliance with the law by the preliminary investigation bodies is impossible in practice; it requires additional research and appropriate changes.

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