scholarly journals THE ROLE OF THE UNDERSTOOD IN THE DEPOSIT OF THE EVIDENCE IN THE IMPLEMENTATION OF CRIMINAL PROCEDURAL PROOF IN THE PRE-TRIAL STAGES

2021 ◽  
Vol 31 (5) ◽  
pp. 897-903
Author(s):  
V.V. Strukova
Keyword(s):  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Photographic Recording ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Points Of View ◽  
Video Material

The article is devoted to the study of procedural aspects related to the effectiveness of the functioning of the institution of attesting witnesses at the pre-trial stages in the framework of modern Russian criminal proceedings. The author considers the issues of the participation of the attesting witness as one of the subjects of proof in the conduct of investigative or other procedural actions, the list of which is enshrined in the current Criminal Procedure Code of the Russian Federation. Its role as a participant in the criminal process in the preservation (deposition) of evidentiary information in the implementation of "control" over the course and results of investigative actions carried out by the criminal prosecution authorities in the course of criminal proceedings is indicated. The situation concerning the improvement of the institution of attesting witnesses, in case the latter is not excluded by the legislator from the criminal procedure law, has been studied from various sides. Various points of view of both leading proceduralists and practitioners on the existing problem are considered: to preserve or exclude (cancel) the institution of attesting witnesses. In support of the author's position on the importance of witnesses as participants in criminal proceedings, examples from practice are given. The procedural status of an attesting witness and his main functions as a participant in the conduct of investigative actions in pre-trial proceedings are disclosed. The issues of the presence of attesting witnesses during the implementation of investigative actions and the use of technical means for fixing the latter have been studied. The features of video and photographic recording of the results of investigative actions in the volume with the participation of attesting witnesses and the obligation to further familiarize this participant with the received video material are revealed.

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.

scholarly journals Meaning of the Category “Validity of the Charge” in Criminal Proceedings

2021 ◽  
pp. 218-223
Author(s):  
Oksana V. Kachalova ◽  
◽  
Viкtor I. Kachalov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Sufficient Evidence ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Simplified Procedure ◽  
Special Order

The aim of the article is to identify the meaning of the category “validity of the charge” in criminal proceedings and the scope of its application. After analyzing the content and legal essence of this category, as well as procedural situations in which it is necessary to establish the validity of the charge, the authors come to the following conclusions. Any coercive measures against suspects and accused persons can be applied only if there are serious grounds to assume that a person is involved in the commission of a crime since the restriction of the most important constitutional rights of citizens who, by virtue of the presumption of innocence, are innocent of committing a crime is possible only in exceptional cases. The validity of the charge (suspicion) assumes that a person is involved in the commission of a crime, as well as the fact of the criminal prosecution of this person. It is established if there is sufficient evidence that a person may have committed a crime (a person was caught committing a crime or immediately after it was committed; the victim or witnesses identified the person as the perpetrator of the crime; obvious traces of the crime were found on the person or their clothing, with them or in their house, etc.). The validity of the charge may be confirmed by a decision to initiate a criminal case and bring a person as an accused, by protocols of detention, interrogations of the accused, the victim, witnesses, and other materials. In the procedural sense, the conditions for establishing the validity of the charge differ significantly. When resolving the issue of the use of detention and other preventive measures, the validity of the charge is established within the framework of a court session in the conditions of adversariality with the participation of the parties. When giving the court permission to conduct investigative and other procedural actions in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, to ensure the secrecy of the investigation, the issue is resolved in the absence of adversariality with the possible participation of only the prosecutor, the investigator, and the inquirer. The category “validity of the charge” is significant in legal terms in a criminal case with the special order of proceedings. A prerequisite for the court to consider a criminal case in a simplified procedure is the validity of the charge and its confirmation by the evidence collected in the case. The validity of the charge in the appointment of a trial in the special order provided for by Chapter 40 of the Criminal Procedure Code of the Russian Federation is established by the court outside the court session in the absence of the parties. In any of the above situations, the court is responsible for establishing the validity of the charge since failure to establish it means that the decision made is unfounded.

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.

Institute of bringing as an accused: on the “deprocessualization” and “dematerialization” of its essence and content in the criminal proceedings of Russia

2020 ◽  
Vol 7 (1) ◽  
pp. 98-105
Author(s):  
Nikolay N. Kovtun
Keyword(s):  
Criminal Responsibility ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Optimal Mechanism ◽  
Procedural Law ◽  
Legal Fiction ◽  
Legal Nature ◽  
Criminal Procedure Law

This work critically assesses the legal nature and practice of the institution of bringing as a defendant in criminal proceedings in Russia, particularly in its relation to the substantive legal act of bringing to criminal responsibility. The author argues that, due to the general bureaucratization of the process, both the first and second acts have actually lost their original purpose to be the determining material and procedural guarantee of individual and justice in criminal proceedings. Objectifying as a legal fiction, the act of bringing the accused as an accused in the doctrine of Russian criminal procedure law, done directly in practice, is increasingly characterized as an accusation of duty, initial, intermediate, and final, which respectively form the ideas of duty, intermediate, initial, and investigative-final criminal prosecution. This negates the role of the named defining acts. Hence, the paper suggests an optimal mechanism for their implementation according to the purposes and tasks of substantive and procedural law

scholarly journals The Prosecutor as a Subject of Prosecution in the Civil Procedural Order

2020 ◽  
pp. 98-106
Author(s):  
Irina I. Golovko ◽  
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
The Government

Based on the results of the study of federal regulatory legal acts and judicial practice, the author of the article substantiates the conclusion about the advisability of applying the concept “prosecution” to the activities of the prosecutor participating in hearings in civil-law cases. At present, only criminal prosecution by the prosecutor is enshrined in Article 37 of the Criminal Procedure Code of the Russian Federation. There are research works that justify administrative prosecution by the prosecutor. With regard to the prosecutor’s participation in the consideration of cases by courts outside of criminal proceedings, the issues of defining the role of the prosecutor as a subject of prosecution have not been raised in research. However, in connection with the enactment of laws on anti-corruption, on the reversion of civil servants’ property to the government, the issues of understanding the role of the prosecutor involved in civil proceedings acquire particular importance. In addition, civil liability has been established for offenses, e.g., in the form of liquidation of a legal entity by a court decision issued at the request of the prosecutor. The prosecutor is empowered to initiate the consideration of a case by the court upon the request to bring the perpetrator to civil liability, and the practice of considering such cases by the courts is being formed. In this regard, it is necessary to investigate the identified problem. The aim of this study was to analyze the approaches in the science of prosecutor’s activities, to form a conception of the prosecution by the prosecutor of persons who, according to the prosecutor, are guilty of committing an offense in the consideration of cases by courts in civil proceedings. As a result of the study, the features of the prosecutor’s participation in anti-corruption cases in civil proceedings that characterize the prosecutor’s activities as the prosecution of persons accused – by the prosecutor – of committing corruption offenses have been established. Attention has been drawn to other categories of civil cases in which the prosecutor also conducts prosecution. It has been emphasized that the prosecution is conducted only if the prosecutor applies to the court with a statement of claim, but not in the case of joining the case to give an opinion. The conclusion is made that there are theoretical and legal preconditions for separating the prosecution by the prosecutor in the civil procedural order. The established patterns and findings are aimed at ensuring the unity of approaches to defining the aims and objectives of the prosecutor’s activities in diverse directions, which contributes to increasing the efficiency of the prosecutor’s activities as a whole.

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 role of the Crown Witness in the Process of Proving Criminal Cases in Indonesia

2018 ◽  
Vol 1 (1) ◽  
pp. 21-39
Author(s):  
Ismail Ghonu ◽  
Andi Muhammad Sofyan ◽  
Nur Azisa
Keyword(s):  
Law Enforcement ◽  
Legal Protection ◽  
Criminal Procedure ◽  
Law Enforcement Officers ◽  
Criminal Prosecution ◽  
Criminal Cases ◽  
Standard Of Proof ◽  
Procedure Code ◽  
Criminal Procedure Law

The research issue focuses on the examination of crown witnesses in the process of establishing criminal cases in Indonesia. The examination of the crown witnesses is necessary because law enforcement officers find it difficult to find evidence, other than the testimony of witnesses of the perpetrators themselves in order to find material truth that can be justified. The result of the research shows that the role of the crown witness in the criminal prosecution process is very significant, that is to find the material truth, so that the fast and simple proof process fulfills the minimum standard of proof, upholds public justice against the perpetrators and determines the demands of each actor in accordance with its role. The need for legal protection against the crown witness and the need for a policy of reform of criminal procedure law through the refinement of the Criminal Procedure Code relating to the content of witness material of the crown firmly and limitatively in the future. Keywords: Evidence; Criminal; Crown Witness

scholarly journals Transformation of Criminal Proceedings against Minors in Contemporary Russian Criminal Procedure: Towards the Twentieth Anniversary of the Adoption of the Criminal Procedure Code of the Russian Federation

2021 ◽  
Vol 3 (3) ◽  
pp. 151-166
Author(s):  
Vyacheslav V. Nikolyuk ◽  
◽  
Elena V. Markovicheva
Keyword(s):  
Russian Federation ◽  
Theoretical Basis ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Scientific Discussion ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

Introduction. In the Russian criminal process, criminal proceedings against minors have historically taken shape as a complicated procedure. Twenty years of operation of the Criminal Procedure Code of the Russian Federation have shown sufficient efficiency of legal regulation of criminal procedural relations having to do with the investigation and consideration of this category of criminal cases. But in the process of law enforcement, a number of problems were identified that required resolution through the adjustment of the current criminal procedure law. This article is devoted to the analysis of the most significant changes in the normative regulation of criminal proceedings against minors during the period of the Criminal Procedure Code of the Russian Federation. A critical understanding of the process of transformation of the relevant norms will contribute to the development of an updated regulatory model of criminal justice involving minors. Theoretical Basis. Methods. The theoretical basis of the study consisted of both Russian and foreign scientific works in the field of criminal procedural law, specifically those devoted to both complicated proceedings in general and the specifics of juvenile criminal proceedings. The use of a formal legal research method allowed us to identify patterns in the transformation of criminal proceedings against minors. Results. The article reveals the most significant transformations of the normative regulation of criminal proceedings against minors. Some changes and additions made to the Criminal Procedure Code of the Russian Federation during the period of its validity are analysed. Further, he main directions for further scientific discussion on the legal regulation of criminal procedure relations with the participation of minors are outlined. Discussion and Conclusion. Although criminal proceedings against minors show sufficient efficiency and compliance with international law, there is a need to systematise the criminal procedural norms governing the participation in criminal proceedings of all minors, regardless of their procedural status. The authors propose, within the framework of the updated criminal procedure law, to systematically consolidate the norms governing the legal status of not only the underage defendants, but also the juvenile victims and witnesses.

SOME QUESTIONS OF PROCEDURAL POWERS IMPLEMENTATION BY EMPLOYEES OF THE FEDERAL PENITENTIARY SERVICE OF RUSSIA WHEN MAKING PROCEDURAL DECISIONS AT THE STAGE OF INITIATION OF CRIMINAL PROCEEDINGS

2020 ◽  
pp. 144-148
Author(s):  
Александр Валентинович Черезов
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Investigation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
Definition Of ◽  
Procedural Decisions

В статье рассматриваются актуальные проблемы реализации уголовно-процессуальных полномочий органов и учреждений УИС в стадии возбуждения уголовного дела. В частности, рассмотрена проблема и дано определение компетенции органов дознания и предварительного следствия, предусмотренной УПК РФ. Исследован объем уголовно-процессуальных прав и обязанностей органов дознания и следствия, а также оперативных подразделений УИС в системе иных органов дознания и следствия. Проведен анализ порядка принятия решений уполномоченными должностными лицами ФСИН России при проверке сообщений о преступлениях, выражено мнение о том, что они вправе принимать только одно решение: о передаче сообщения о преступлении по подследственности и в исключительных случаях возбуждать уголовные дела в порядке, предусмотренном ст. 157 УПК РФ. Рассмотрены причины, на основании которых законодатель уменьшил полномочия оперативных подразделений ФСИН России как органа дознания. Рассмотрены актуальность применения ст. 157 УПК РФ в части возбуждения уголовных дел и проведения по ним неотложных следственных действий, а также роль начальников органов и учреждений УИС в их проведении. На основании рассмотренных проблем подведен итог о нечеткой регламентации процессуальных полномочий органов и учреждений ФСИН России в уголовно-процессуальном законе и подзаконных актах на стадии возбуждения уголовного дела. The article deals with the actual problems of implementation of the criminal procedure powers of the criminal procedure authorities and institutions at the stage of criminal proceedings. In particular, we consider the problem and the definition of the competence of bodies of inquiry and preliminary investigation under code of criminal procedure. The volume of criminal procedure rights and obligations of operational divisions of the criminal investigation department in the system of other bodies of inquiry and investigation is studied. The analysis of the procedure for decision-making by authorized officials of the Federal Penitentiary Service of Russia when checking reports of crimes is carried out. The reasons why the legislator reduced the powers of operational divisions of the Federal penitentiary service of Russia as a body of inquiry are considered. The relevance of the application of article 157 of the criminal procedure code of the Russian Federation in terms of criminal cases and conducting urgent investigative actions on them, as well as the role of the heads of criminal investigation bodies and institutions in their conduct, were reviewed. Based on the problems discussed, the author summarizes the lack of regulation of the procedural powers of the Federal Penitentiary Service bodies and institutions in the criminal procedure law and by-laws at the stage of initiation of a criminal case.

scholarly journals ON THE INCORPORATION OF PRIVATE LAW INSTITUTIONS IN CRIMINAL PROCEEDINGS

2020 ◽  
Vol 30 (6) ◽  
pp. 851-857
Author(s):  
A.V. Grishin ◽  
M.N. Tarsheva
Keyword(s):  
Criminal Justice ◽  
Public Relations ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Social ◽  
The Russian Federation ◽  
Injured Party

The article deals with some areas of improvement of domestic criminal procedure legislation in terms of expanding dispositive principles and introducing alternative (non-punitive) forms of response to a crime in the current Criminal procedure code of the Russian Federation. The problems generated by the punitive approach to responding to the facts of committed socially dangerous acts are touched upon, and the values and ideas of a different (restorative) approach are highlighted, which, according to the authors, should not replace, but complement and enrich criminal proceedings. In addition, global and domestic trends in the development of legislation in the field of criminal justice are outlined. The authors propose the concept of restorative justice and exemption from criminal prosecution of persons who voluntarily compensated for the harm caused by the crime, with the full consent of the injured party. The authors highlight the essence of reconciliation mechanisms. The code of criminal procedure of the Russian Federation proposes some changes related to the introduction of the concept of conciliatory justice and the expansion of dispositive principles. The authors conclude that a reasonable compromise in the field of criminal justice is not only justified, but even necessary. The social value of conciliation procedures is that consensus is reached through mutual concessions (taking into account the interests and requests of both sides of the conflict) and is aimed at resolving the criminal conflict. Through reconciliation, the restoration of the disturbed order of functioning of public relations is achieved, as well as the restoration of social justice, which is directly related to the satisfaction of the interests of the injured party and depends on whether the victim remains satisfied with the outcome of the case.

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