Aspecte particulare privind procedura de confirmare a renunțării la urmărirea penală

This is different from the term Wetboek van Strafprocesrecht, which in Indonesian means "Criminal Procedure Code". According to legal expert from Hasanuddin University Makassar; Hamzah (1985:13) the Dutch Minister of Justice emphasized that the term "Strafvordering" covers all criminal prosecution procedures. Therefore, it can be concluded that the Criminal Procedure Code in Indonesia is not a descendant of Dutch blue blood/a colonial product, while also confirming that the current Criminal Procedure Code does not merely discuss prosecution procedures. The explanation of Article 132 of the Law of the Republic of Indonesia Number 1 of 2023 concerning the Criminal Code reads "in this provision what is meant by "prosecution" is the judicial process which begins with an investigation". The explanation of Article 132 of the new Criminal Code is a butterfly effect phenomenon if not receiving special attention will certainly damage the essence of prosecutorial authority which is neatly structured in the Indonesian criminal procedural justice system. The explanation of Article 132 of the new Criminal Code does not at all understand Stufenbau's legal theory where the expanded role of prosecutors is in direct contrast to Article 30 paragraph (4) of the Law. -The 1945 Constitution which is the ground norm or basic norm. Apart from that, the Explanation of Article 132 of the New Criminal Code is too vulgar to rebel against the principle of Functional Differentiation which is already compatible with the Indonesian criminal procedural justice system. It requires awareness of all Polri personnel through education about the latent dangers of the explanation of Article 132 of the New Criminal Code. This is in order to explain that this article slightly confuses the existence of investigators/assistant investigators of the National Police so that investigative authority should not be compromised.

The idea of renewal of the Criminal Procedure Code can not be separated from the conceptualcontribution of Human Rights (HAM). This contribution has been explicitly included in thepreamble of the draft of Criminal Procedure Code. Although the current Criminal ProcedureCode already provides protection to the rights of the suspect or the accused, but theimplementation is still not optimal. Therefore, in the draft of Criminal Procedure Code there isa new institution called the Judicial Commissioner (Rechter-Commissaris) to replace thefunction of Pretrial institutions. The Judicial Commissioner has far wider powers of Pretrialinstitution, so that the protection of the rights of suspects or defendants in any stage of thejudicial process will be more secure fulfillment. The development of human rights concept alsocontributed to the idea to regulate the rights of victims in the renewal of the Criminal ProcedureCode. Protection of the rights of victims in the current Criminal Procedure Code is limited tothe rights to the incorporation of lawsuits for damages to the criminal case. Because it has notadequately regulated in the current Criminal Procedure Code, the draft of Criminal ProcedureCode regulates the rights of victims, both associated with involvement in all stages of judicialproceedings and the right to sue for damages.

The issue of the development of criminal procedural law is an extremely broad and complex consideration, one that is difficult to cover in one study. In this paper, the author will deal with the development of criminal procedural legislation of the Republic of Serbia by 2011 in the first part. The current Criminal Procedure Code, with its most recent amendments from 2019, is still based precisely on the mentioned Code. The systematic presentation of the development of criminal procedural legislation in the Republic of Serbia has been burdened with both numerous changes in legislative sources and changes in the broader social context. The issue of state frameworks and the validity of the law, therefore, often requires a review of the broader territorial framework and an understanding of this social dynamic. If one considers the period of formation of the Kingdom of Serbs Croats and Slovenes in 1918, the basic feature of criminal procedural law implied the particular interests of individual states and separate procedural arrangements. Following the above, which is in a way an introductory part, the paper will address the most important changes to the current Criminal Procedure Code in relation to the 2011 Criminal Procedure Code. After the Criminal Procedure Code of 2001 was repealed, the new Criminal Procedure Code of 2011 came into force, which regulates several issues in a whole new way. Finally, special attention will be paid to the inconsistency of the Criminal Procedure Code of 2011 with the Constitution of the Republic of Serbia.

The article is devoted to the consideration of individual procedural actions, namely the inspection and inspection of the scene of the event. The article examines the historical retrospective of the emergence and peculiarities of the specified procedural actions in the criminal procedural legislation of different years. The article examines the procedure for conducting an inspection and inspection of the scene of events according to the current Criminal Procedure Code, in particular, points out shortcomings and suggests ways to eliminate them. the article examines the historical retrospective of the conduct of investigative search actions as a review and review of the scene of the incident, the specifics of the conduct of these procedural actions in the criminal procedural legislation of different years are determined. The problems in the issues of inspection and inspection of the scene of the incident in the current Criminal Procedure Code were identified and options were proposed to eliminate existing controversial issues by making changes to the Criminal Procedural Code of Ukraine, for the purpose of effective pre-trial investigation.

The paradigmatic transformation of criminal fines within Law No. 1 of 2023 (the National Criminal Code) shifts its concept from a retributive sanction to an instrument of state financial recovery through the construction of "debt to the state." This reform addresses the systemic failure of the criminal fine system under the old Criminal Code, which was marked by irrelevant nominal values, the ineffectiveness of substitute imprisonment, and the resulting loss of potential Non-Tax State Revenue (PNBP). Employing a normative-juridical research method with a comparative approach, this article examines the philosophical, normative, and sociological foundations of this renewal. The primary finding indicates that the National Criminal Code—through its categorical fine system, consideration of the convict's ability to pay, and prioritization of asset execution—fundamentally alters the logic of penal fines. This innovation is theoretically capable of changing the rational calculus of convicts and significantly increasing PNBP. However, its implementation faces a crucial challenge in the form of a procedural law vacuum within the current Criminal Procedure Code (KUHAP), which fails to provide a procedural basis for prosecutors to conduct post-judgment execution seizures. While this reform has immense potential to significantly boost PNBP, its success is absolutely contingent upon the harmonization of the criminal procedure law to provide a robust procedural foundation for prosecutors as executors.

The subject of the research is the norms of the Criminal Procedure Code of the Russian Federation and the Criminal Procedure Code of the Republic of Kazakhstan that directly or indirectly relate to the procedural status of an individual who is actually subjected to criminal prosecution, with the aim of identifying both the obstacles to the development of pre-trial criminal proceedings and prospective guidelines for such development. In particular, the list of procedural grounds for granting the procedural status of a suspect and the correlation of these grounds with other criminal procedural institutions has been analyzed. Significant obstacles to the improvement of Russian criminal proceedings have been identified in the form of illogical correlation between the institution of suspicion and the institution of measures of criminal procedural coercion, as well as the actual insufficiency of the grounds provided by the current Criminal Procedure Code of the Russian Federation for granting the procedural status of a suspect in the form of pre-trial investigation and the unjustified obligation to present charges to the person subjected to criminal prosecution at the initial stage of the investigation of the crime, which in reality does not guarantee the admissibility of prolonged criminal prosecution of such a person. In the course of the study, the author used a comparative legal method to research the procedural grounds for the emergence of the procedural figure of a suspect in two states, as well as a formal-legal method, the application of which, taking into account static and sociological methods, conducted an analysis of several norms of the current Criminal Procedure Code of the Russian Federation with actual law enforcement. The novelty of the research consists in the proposal that, linking to the concept of the development of the procedural status of a suspect, would allow for the reform of the pre-trial stages of Russian criminal proceedings through changes to the criminal procedural model of its foundation and will lead to a reduction of criminal procedural procedures applied to individuals subjected to criminal prosecution until the transfer of the criminal case to the prosecutor and its submission to the court. Based on the results of the research, directions for improving the pre-trial stages of Russian criminal proceedings have been identified, which have proven effective through the testing of provisions of the new Criminal Procedure Code by law enforcers of the Republic of Kazakhstan. Taking into account the arguments of procedural scholars that allow to correlate the author’s arguments with the opinions of the scientific community and the views of law enforcers, formed in a combined percentage ratio based on the results of a survey, ideas have been proposed that contribute to the development of the Russian pre-trial criminal process.

The article states that in the science of criminal procedural law, the issue of understanding the grounds for initiating a pre-trial investigation has been sufficiently researched, however, the opinions of scholars on this matter are diverse. Part 2 of Article 94 of the law determined that a case may be initiated only in cases where there is sufficient data indicating the presence of signs of a crime. Currently, the current Criminal Procedure Code of Ukraine does not contain relevant provisions, which encourages scientific research in this area. The stated purpose of the study is to critically examine the provisions of Article 214 of the Criminal Procedure Code of Ukraine from the point of view of regulating the grounds for initiating a pre-trial investigation, and to provide our own recommendations and proposals to improve the relevant regulatory structure. Based on the results of the study of special literature and judicial practice, the following conclusions were made: a)it is advisable to distinguish between such legal categories as: «grounds for the initiation of a pre-trial investigation» and «reasons for the initiation of a pre-trial investigation.» It is understood that the «grounds for initiating a pre-trial investigation» are the reasons (objective circumstances) that led to the entry of information into the Unified register of pre-trial investigations and the direct conduct of an investigation or inquiry. The «reason for initiating a pre-trial investigation» is the source from which information about a criminal offense was received, which became a prerequisite for the initiation of a pre-trial investigation. In the absence of grounds, the pretext is only informational material that will not find its further implementation in the form of entering information into the Unified register of pre-trial investigations; b)from a scientific point of view, it is rational to distinguish the grounds for initiating a pre-trial investigation into: 1) material – the commission of a criminal offense; 2) procedural (in aggregate):a)identification of circumstances that may indicate the commission of a criminal offense; b) entering information about a criminal offense into the Unified register of pre-trial investigations; c) adopting a decision to determine the investigator (group of investigators), prosecutor (group of prosecutors) who will conduct the pre-trial investigation; с) in the event of the expiration of the statute of limitations for criminal liability in accordance with Article 49 of the Criminal Code, it is correct to enter information into the Unified register of pre-trial investigations if there are signs of a criminal offense. Arguments are given in support of the corresponding position.

The article analyzes the norms of the Criminal Procedure Code that use the term “procedural actions”, identifies existing problems and shortcomings related to the content of this term. The author developed a definition of the concept of “procedural actions”. Proposals and recommendations are given for their reflection in the current Criminal Procedure Code.

The emergence of dualism in investigative authority between the Prosecutor’s Office and the Police in the draft Criminal Procedure Code (RUU KUHAP) has triggered legal ambiguity, resulting in uncertainty within Indonesia’s constitutional system. Investigative authority, which is generally vested in the police as stipulated in the current Criminal Procedure Code (KUHAP), has been expanded—particularly through the provisions of Article 12 paragraph (11) and Article 111 paragraph (2) of the draft law. This situation has the potential to create overlapping jurisdictions, disrupt the principle of due process of law, and weaken the checks and balances within the criminal justice system. The lack of clarity in delineating the boundaries of authority between the police and the prosecutor’s office may lead to institutional conflicts and inefficiencies in law enforcement. This study employs a normative juridical method, utilizing both statutory and conceptual approaches. The statutory approach is used to systematically examine existing and proposed provisions of positive law, while the conceptual approach serves to analyze relevant legal principles and doctrines, including inter-agency coordination within the framework of the rule of law. Therefore, a clear and proportional restructuring of investigative authority is necessary to establish a criminal justice system that is fair, effective, and aligned with the principles of a constitutional state.

The article raises questions related to the definition of the system of investigative (search) actions relevant to modern law enforcement practice and the doctrine of the criminal procedure. Namely, for a long time the 1960 CPC in art. 194 provided for an investigative action such as reconstructing situation and circumstances of a certain event. The lack of legal certainty of this article logically led to a discussion about its legal content, which led scholars to form an opinion regarding the coverage of its normative content by two independent investigative actions – an investigative experiment and verification of testimony on the site. However, such a conclusion was only a doctrinal approach. The legal content of art. 194 of the 1960 CPC of Ukraine remained not clearly defined, which led to a lack of unity in approaches to its understanding until the very adoption in 2012 of the new CPC of Ukraine. Such a defect in the norm of criminal procedural law did not meet the requirements of the rule-making technique, and even less the needs of law enforcement practice. With the adoption of the 2012 CPC and enshrined in art. 240 as a separate investigative (search) activity of an investigative experiment, the discussion regarding the necessity of adopting an additional investigative activity such as verification of testimony on the site has appeared. The aim of the article is to interpret the Art. 240 of the 2012 Criminal Procedure Code to understand its legal content for clarifying the essence of such an investigative action as an "investigative experiment", to establish the types of experimental actions, to distinguish them from similar investigative actions, to resolve the issue of the feasibility of enshrining in the current Criminal Procedure Code such an investigative action as checking testimony on the scene. In this article, the authors express an opinion about the inexpediency of transferring this Soviet-era debate, which has been going for almost 50 years, to the modern times. The author's position is determined by the conceptual provisions laid down in the 2012 CPC, the essence of which is that testimony is information provided during an interrogation. The CPC of 2012 contains a procedural mechanism by which an investigator, inquirer, and prosecutor can verify previously submitted statements. Such proper legal procedure is an interrogation, which, in accordance with the requirements of the CPC, can be conducted both at the place of the pre-trial investigation and at another place, which determines the inexpediency of unnecessary legislative duplication.

The idea of renewal of the Criminal Procedure Code can not be separated from the contribution of human rights concept. This contribution has been explicitly included in the preamble of the Draft of Criminal Procedure Code. Although the current Criminal Procedure Code already provides protection to the rights of the defendant, but the implementation is still not optimal. Therefore, in the Draft of Criminal Procedure Code there is a new institution called the Rechter-Commissaris to replace the function of Pretrial Institutions. It has far wider powers of Pretrial Institution, so that the protection of the rights of defendant in any stage of the judicial process will be more secure fulfillment. The development of human rights concept also contributed to the idea to regulate the rights of victims, both associated with involvement in all stages of judicial proceedings and the right to sue for damages.

The article reveals the development and functioning of the institute of special pre-trial investigation in Ukraine. The genesis of the origin and implementation of a special pre-trial investigation in the current Criminal Procedure Code is determined. The changes from April 21, 2021 to the Criminal Procedure Code of Ukraine are analyzed in order to improve the functioning of this institution in terms of grounds for execution, delivery of subpoenas, obtaining a permit for detention in absentia, etc. The aspect of delivery of subpoenas is considered, which is related to the difficulty of proving the fact of receiving subpoenas by person and the practice of the ECHR and international conventions, which partially contradict the existing procedure. The decisions of the European Court of Human Rights are described, which indicate a violation of the person’s right to defense in connection with the implementation of a special pre-trial investigation. Negative aspects of the experience regarding the interaction of investigative units with the Interpol NCB have been identified, as well as the reasons for the latter’s refusal to include persons in the Interpol NCB databases and to declare persons internationally wanted. The unresolved issues with the subject and the moment of appointment of a defense counsel during the special pre-trial investigation procedure are described, which causes difficulties and contradictory decisions of national courts in this regard. The existing issues concerning the inconsistency of legal acts, which indicate the grounds for a special pre-trial investigation and the need to determine these grounds only in the Criminal Procedure Code of Ukraine. The need to enshrine the legal obligation of the investigator or prosecutor to reopen criminal proceedings at the time of consideration of a request for a special pre-trial investigation in order to avoid the return of these requests by the investigating judge has been revealed. The positive changes in the aspect of obtaining an indefinite detention order in respect of persons subject to a special pre-trial investigation have been analyzed, which will simplify international legal assistance regarding their extradition.

The article explores the meaning of the principle of the compensation in full upon the occurrence of a tortious liability in comparison with the content of the principle of compensation in full for harm caused to a citizen during the implementation of the criminal procedure. In this regard, the author investigates recent judicial practice on criminal proceedings cases relating to compensation for material damage and moral harm with full and partial rehabilitation, and shows the absence of unity of interpretation of the elements of the material damage, compensated on general grounds of delictual liability (Art. 1064 of the Criminal Code of the Russian Federation) and on special grounds (Art. 1070 of the RF Civil Code and Art. 135 of the Criminal Procedure Code). The analysis of judicial practice on this category of cases provides reasoning for the conclusion that the compensation for damage to property, paid off to the rehabilitated person is much smaller than the damage compensated under tort obligations (Art. 1064 CC RF). The author shows lack of unity in the approach to determining the amount of compensation for moral injury at full and partial rehabilitation; reveals the notion of "amount" and "size" of the recoverable damage as different legal categories; and justifies the application of the concept of "amount of compensation" and "size of compensation". The generalization of the recent judicial practice and the investigation of judicial practices of the past years, which concern tried in criminal proceedings cases related to the compensation for damage to property, compensation for moral harm suggests that in practice, the principle of full reparation for harm done by the criminal proceedings does not occur. The analysis of the current Criminal Procedure Code and the Civil Procedure legislation on compensation for damage to property, moral harm compensation, reinstatement of labour, housing, pension and other rights of rehabilitated citizen testifies the duality of the existing order for restitution of property and personal non-property rights of this category of citizens; and suggests ways to improve the existing order of compensation and the restoration of the violated rights of the victim. It is proposed that a unified judicial limitation order be implemented.

Aim: This paper aims to show the reasons for the occasional use of the plea bargain, which has been in use for three years.Methodology: The authors conducted interviews with prosecutors, investigators, examiners, judges, and defense lawyers, reviewed publications on the legal instrument, and examined available statistical data on plea bargaining.Findings: Plea bargaining is an old and new legal instrument in the current Criminal Procedure Code. It is the predecessor of the former waiver of trial, which was rarely used by prosecutors despite repeated amendments to the law and thus failed to fulfill the hopes of speeding up criminal proceedings and reducing the burden on the courts. The new instrument, which is regulated differently from its predecessor, was expected to increase the frequency of use. The authors’ assumptions were confirmed, and the study provides statistical evidence of the infrequent use of the system: in 2020, only 0.0012% of indictments were based on plea bargaining. The reasons for the infrequent use of the system include the fact that in prosecutorial practice, the institution of the cooperating accused is used instead of plea bargaining, or an informal promise is made on the content of the charge if the suspect confesses. The institution would require more attention from the investigating authority, and the plea bargaining position is also difficult for the defense. The authors conclude that plea bargaining for statistical reasons alone is not a step in the right direction.Value: The paper could contribute to changes in the practice of legal practitioners and more frequent use of the legal instrument of conciliation. Monitoring changes could be the subject of other papers.

A atuação da Defensoria Pública em prol do acusado não hipossuficiente no processo penal suscita várias dúvidas em relação a possibilidade de cobrança do serviço público prestado. A tese aqui desenvolvida revela que a previsão contida no atual código de processo penal não contempla de forma adequada a nova roupagem constitucional em que a Defensoria está erigida. Não faz sentido desenvolver atividades atípicas da instituição sem a possibilidade de previsão específica e cobrança pela justa retribuição do serviço público prestado. O constituinte reformador possibilitou a emancipação da instituição, cabendo a seus gestores a iniciativa e adequação legislativa à nova realidade vivida.