Court Session Research Articles

Removal of the defender from participation in the court session

Removal of the defender from participation in the court session

ВІДЕОКОНФЕРЕНЦІЯ ЯК ПРОЦЕСУАЛЬНА ФОРМА ВИКОРИСТАННЯ ІНФОРМАЦІЙНИХ ТЕХНОЛОГІЙ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ УКРАЇНИ

The article deals with specific controversial issues concerning features of using videoconferencing in criminal proceedings in general as well as at its specific stages; also own conclusions and propositions are justified which are aimed at further development of criminal procedural legislation of Ukraine with the regard to the questions raised. The essence, meaning, advantages, current state, and perspectives of using videoconferencing in criminal proceedings of Ukraine and the area of international cooperation among the states in criminal justice are examined. The state of legal regulation of using videoconferencing in criminal proceedings is analyzed. Code of Criminal Procedure of Ukraine provides for using videoconferencing both in criminal proceedings of Ukraine and criminal proceedings with a foreign element. Based on the analysis of grounds and procedure of video-conferencing features of its usage both in criminal proceedings of Ukraine and in the area of international cooperation among the states in criminal justice are identified. Videoconferencing can be used based on the decision of an investigator, prosecutor, investigative judge, or court in each case taking into account circumstances of criminal proceedings and subject to grounds provided for by the Code of Criminal Procedure of Ukraine. Before the start of investigative (search) action or court session using video-conferencing one shall ensure that nothing prevents a person from giving testimony, making motions, providing evidence, etc. This fact is essential for the admissibility of evidence used in criminal proceedings obtained using videoconferencing. Conducting requested procedural actions by video-conferencing ensure that an accused person, a victim, and other participants have an opportunity to express themselves on the raised issues, make arguments aimed to rebut the conclusions of the opposing party, provide evidence and make motions during pre-trial investigation or trial. Specificities of conducting a questioning using videoconferencing in the area of international cooperation as well as advantages of obtaining testimony from individuals put into custody or serving a sentence in a foreign state using videoconferencing compared to traditional means are formulated. The issue of interrelation between videoconferencing and principles of criminal proceedings is examined and it is showed that using videoconferencing is fully consistent with principles of criminal proceedings. Videoconferencing is one of the procedural forms of using information technologies in criminal proceedings and is used to conduct an action, participants of which are geographically separated one from another and thus communication among them are conducted using the communication technologies that support real-time image and voice transmission.

Alteration of court charges: ways of legislative solution of the problem

The article deals with the issues relevant for the criminal proceedings of Russia, connected with the practical need of legislative consolidation of procedural rules fixed in the Code of Criminal Procedure of the Russian Federation (CCP RF) that provide a possibility for the court to alter charges brought by preliminary investigation bodies. The current procedural rules, to change accusation for a graver verdict, establish the procedure enshrined in Article 237 of the CCP RF, according to which the court must return a criminal case to the prosecutor, while the latter has to return the same to the investigator (interrogating officer). This practice in fact returns the law enforcer to the provisions of the Russian Soviet Federative Socialist Republic Code of Criminal Procedure that maintained the existence of the institute of supplementary investigation; the court annually returned from 40 to 55 thousand cases to investigators within the framework of this institute. Having set the goal to explore the problematic issues of amending a faulty accusation in court and finding an optimal legal mechanism for the court’s amending a charge towards its stiffening, the authors, using the methods of scientific knowledge – dialectical approach, comparative legal method, statistical and systemic analysis – analysed the scholarly views on the said problem and the practice of enforcing Article 237 of the CCP RF by Russian courts; made a comparative research of foreign laws governing the issues of alteration of court charges. The authors, on the basis of the research results, made a conclusion on the need to develop an efficient legislative procedure in terms of altering indictment towards a more serious verdict by the prosecution – directly at the court session, under supervision of the court and without returning a case for supplementary investigation.

НЕЗАЛЕЖНІСТЬ ПРОФЕСІЙНИХ СУДДІВ ЯК КОНСТИТУЦІЙНА ЗАСАДА ЇХ ПРАВОВОГО СТАТУСУ

The article reveals the main aspects of the independence of professional judges as a constitutional basis of their legal status. It is established that the main aspects of the independence of judges as the constitutional basis of their legal status in Ukraine are regulated by the provisions of the Constitution of Ukraine, the Law of Ukraine «On the Judiciary and the Status of Judges», the Law of Ukraine «On the High Council of Justice», the Law of Ukraine «On Ensuring the Right to a Fair Court», the Law of Ukraine «On Restoring Confidence in the Judiciary in Ukraine», the Law of Ukraine «On Purification of Power». It is determined that the independence of the judiciary is guaranteed by the state and acts as a constitutional and legal basis for the functioning and activity of the judiciary. It was found that the independence of judges is a key element of the professional status of judges. It has been determined that a judge, in administering justice, must be independent of influence, pressure or interference from unlawful sources. It was noted that state authorities and local self-government bodies, as well as their officials and officials, individuals and legal entities, are obliged to respect the independence of judges, as well as not to encroach on it. It has been established that a judge in the context of administering justice is independent, therefore, taking measures to ensure the independence of judges is one of the main responsibilities of the High Council of Justice. It has been established that every year the number of violations by offenders on the independence of judges in the context of their administration of justice is increasing. It was determined that most often encroachment on the independence of judges in Ukraine occurs on the part of law enforcement agencies, people's deputies, deputies of local councils, other representatives of state authorities and local self-government bodies, lawyers, as well as in cases of violation of law and order in a court session, disruption of court hearings, blocking courts, making various threats to judges, committing physical pressure on judges or members of their families, damaging their property, as well as the property of courts, disseminating inaccurate information in relation to judges. It was found that the low level of guarantees for the independence of judges has an indirect effect on reducing the possibilities of exercising the right to exercise judicial protection. It is noted that the prospects for further research in this direction are the study of the legal foundations of the procedure for the selection and appointment of professional judges in the context of constitutional and legal requirements for candidates.

ЗНАЧЕНИЕ КАТЕГОРИИ «ОБОСНОВАННОСТЬ ОБВИНЕНИЯ» В УГОЛОВНОМ СУДОПРОИЗВОДСТВЕ

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.

The right of the Chairman of the Supreme Court of the Russian Federation to disagree with the ruling of the judge of the Supreme Court of the Russian Federation on the refusal to transfer cassation complaints, submissions for consideration at the court session

The right of the Chairman of the Supreme Court of the Russian Federation to disagree with the ruling of the judge of the Supreme Court of the Russian Federation on the refusal to transfer cassation complaints, submissions for consideration at the court session

К ВОПРОСУ О РЕАЛИЗАЦИИ ПРОЦЕССУАЛЬНЫХ ГАРАНТИЙ ПРАВ СУБЪЕКТОВ АДМИНИСТРАТИВНЫХ ПРАВОНАРУШЕНИЙ В УСЛОВИЯХ ПРЕДУПРЕЖДЕНИЯ НОВОЙ КОРОНАВИРУСНОЙ ИНФЕКЦИИ (COVID-19)

The article deals with the problematic issues of implementing the procedural rights of participants in proceedings on administrative offenses in the context of restrictive measures aimed at preventing a new coronavirus infection (COVID-19). Attention is drawn to the absence in the Russian Code of administrative offences of the rules establishing the possibility to submit to the court documents in electronic kind, including in electronic form that unreasonably restricts the right to judicial protection of subjects of administrative offenses. It is proposed that the procedural part of the Code of administrative offences of the Russian Federation should be supplemented with a relevant norm providing for the possibility of submitting documents, appeals, and complaints in cases of administrative offences in electronic form. A number of significant problems of legislative regulation and use of modern information technologies of videoconferencing and web conferences in the court session on cases of administrative offenses in the context of the COVID-19 pandemic are highlighted, and ways to solve them are outlined. The author analyzes regulatory acts, materials of the practice of resolving cases of administrative offences by courts, as well as the corresponding provisions of the Concept of the new Code of administrative offences of the Russian Federation.

MATERIALS OF SOUND AND VIDEO RECORDING AS TYPE OF SOURCE OF EVIDENCE IN CRIMINAL PROCEEDINGS

The article is devoted to clarifying the concept, place and role materials of sound and video recording as type of source of evidence in criminal proceedings. It is noted that evidence may be only those factual data that are obtained as a result of investigative (search) actions and their variety, such as covert investigative (search) actions, other procedural actions that are provided by the Criminal Procedure Code of Ukraine, and in the order provided by the relevant procedural action. Attention is drawn to the fact that the system of procedural sources of evidence used to establish factual data is defined in the CPC of Ukraine and consists of testimony, physical evidence, documents and expert opinions. Attention is paid to documents as a source of evidence. It is determined that the legislator refers the materials of audio and video recordings to such a source of evidence as a document. It is emphasized that in this case it is necessary to evaluate the information itself, and not the material object on which they are recorded. The peculiarities of establishing the features and properties of video and sound recording as a separate type of documents and determining their affiliation to physical evidence or documents due to the specific process of their formation are indicated. Given is a detailed description of the procedure for their delimitation. It is stated that the collection, receipt and request materials of photographs, sound recordings, video recordings and other media belongs to the prosecution, the defense, the victim in order to establish the circumstances relevant to the criminal proceedings. It is emphasized that any collection of evidence is possible only in accordance with the procedure provided for by the CPC of Ukraine, that is, in compliance with the criminal procedural form. The legal consolidation and practical application materials of sound and video recording in criminal proceedings is determined, in particular, that materials of video and sound recording can be obtained as a result of recording the course and content of investigative (search) actions and covert investigative (search) actions, as well as when recording a court session. Video and sound recordings obtained during of procedural actions are attached to the protocols of investigative (search) actions, covert investigative (search) actions and are stored in the materials of criminal proceedings.

КЛАССИФИКАЦИЯ СУДЕБНЫХ РЕШЕНИЙ В АРБИТРАЖНОМ ПРОЦЕССЕ

The article is devoted to the classification of court decisions in the arbitration process. Based on the analysis of the opinions of scientists and judicial practice, the author comes to the conclusion that court decisions can be classified into different types on the following grounds: methods of defense; procedures for making a court decision; content; the time of the proceedings in which it was made, and the completeness of the response to the stated requirements. The article analyzes the norms of arbitration procedural legislation that contain requirements for a court decision, identifies problematic issues and suggests ways to solve them. It is proposed to legalize the interim decision on certain categories of cases and in the case of consideration of the case in separate court sessions in the arbitration process and to recognize the judicial decisions on challenging normative acts as lawmaking.

Minutes of the court session according to the statute of criminal proceedings of 1864

Minutes of the court session according to the statute of criminal proceedings of 1864

The Man Who Struck the Judge with a Fly Swatter: Justice and Performance in Contemporary Kazakhstan

This article investigates a series of events that occurred in Quaragandy, a postindustrial city in northern Kazakhstan in the mid-2010s. These events led to Evgenii Tankov, an established lawyer, hitting a judge, Arai Alshynbekov, with a fly swatter during a routine court session. This research demonstrates that Tankov's act was not a flash of rage or a real attempt to harm the judge. It was, instead, a calculated strategy in which a political statement was concealed if not sheathed within the form of a grotesque performance. Tankov knew he would be judged for disrespect towards the court: and yet he used his subsequent trial to demonstrate the moral and intellectual impasse of Kazakhstan's judicial system. This article claims that as a performance, Tankov's case is useful because it allows one to re-think the genre itself. Moreover, it argues that the form of the trial per se became a genre of political agency in contemporary Kazakhstan. As an example of political praxis, this case allows one to question the ways in which non-political actors produce and affirm their identities and create new forms of political agency in a reality in which political behavior is bounded by a postsocialist authoritarian state.

Дело антисоветской баптистской группы в Щучье-Озерском районе Пермской области: этноконфессиональный аспект массовых операций 1937–1938 годов

Mass repressive operations of the 1930s are really remained one of the most relevant topics for research. At the present stage of development of historical science, key attention is paid to the direction of mass operations of the 1930s-Kulak, national lines (Polish, German, etc.), and the identification of local features of their realization. Recently, historians have paid great attention to the implementation of the internal logic and mechanisms of mass repressive actions. We can say that the focus of research is shifting to the micro-historical field: to individuals who suffered from repression, to small settlements in which arrests were especially widespread. This approach allows us to see important details and features which could not be found in the generalized works devoted to mass operations of the 1930s: distortions of central directives on the ground, the influence of local specifics, and so on. In this study the author has made an attempt to determine and analyze the specifics of ethno-confessional aspect of mass operations by the example of the case of the anti-Soviet Baptist group in the Shchuchye-Ozersk district of Perm region. The aim of the work was to identify and analyze the directions of repressive actions by the example of this case, to study the role of ethnic and confessional factors in the course of mass operations in places of compact residence of Germans. Both narrative and traditional analytical methods were used as methodological tools of the research: historical-genetic, historical-comparative, historicaltypological. The main sources the author relied on were the written ones which were included in archival and investigative cases: questionnaires of arrested persons, interrogation protocols, indictments, materials of court sessions, etc. As a result, the author identified several areas, or storylines, of the case of the anti-Soviet Baptist group in Shchuchye-Ozersk district of Perm region: espionage, Kulak, ethnic and confessional; the internal logic of the case was reconstructed, it has been shown as accusation accents shifted due to the influence of political conjuncture, also the author has mentioned the influence of natural factors on the outcome of the trial.

ENSURING THE DEVELOPMENT OF TRANSPARENCY OF THE CONSTITUTIONAL COURT OF UKRAINE IN MODERN SOCIETY

The article is devoted to the relevant issue of ensuring and developing transparency of the Constitutional Court of Ukraine as a principle of its formation, organization and activity in the conditions of modern information society. The ensuring the transparency of the Constitutional Court is considered as an important tool for increasing the public confidence in the Court, a way to strengthen its institutional capacity and a condition for democracy and information society development. It is noted that the transparency of the Constitutional Court reflects global trends in the implementation of the concepts of state transparency to society, open trial, is the embodiment of the democratic basis of the constitutional order and is a part of state information policy. The transparency of the Constitutional Court is equally important both in the formation of the Court staff and in the process of its organization and activity. Significantly, the principle of transparency is manifested in open procedures for competitive selection of judges of the Court and employees of the Secretariat, transparency of information on various aspects of the Court (access to public information), publicity of constitutional proceedings, promulgation of decisions and conclusions (except the materials of closed court session and materials with limited access), interaction with the media, transparency of public procurement, publication of judges' declarations, etc. The ensuring of development of the transparency of the Constitutional Court is necessary to support its institutional independence, strengthen public confidence in it, proper understanding of the content of the functions of the constitutional jurisdiction, preconditions, reasons and motives for decision-making, conclusions of the Court, and their implementation status. It is emphasized that the further development of the transparency of the Constitutional Court is one of the important direction of strengthening its institutional capacity and requires the proper doctrinal and legislative support.

Remote court session: a European approach

Remote court session: a European approach

Procedural features of consideration of social cases in the administrative court of first instance

The article is devoted to procedural features and evidence during the consideration of social cases. The share of administrative lawsuits received by district administrative courts in social cases is more than 30%, which is a high figure among cases falling under the jurisdiction of administrative courts. A person goes to court when his right has already been violated by the state authorities. The administrative courts ensure the implementation of the social function of the state. Allegations that administrative courts serve public authorities are unfounded. Evidence of the court is provided by the parties to the case. The court can only invite the parties to provide evidence and collect evidence on their own initiative. The principle remains fundamental, in cases of illegality of decisions, actions or omissions of the public authorities, the burden of proving the legality of its decision, action or omission rests with the defendant. There is a problem of the possibility of considering social disputes under the rules of summary proceedings with the summons of the parties to the case in the event that there is a need to obtain an explanation from the parties or to examine witnesses. There is a need for legislative regulation of the possibility for the court to consider social disputes in the manner prescribed by the provisions of Article 262 of the Administrative Code of Judgment of Ukraine, after the opening of proceedings in the manner prescribed by the provisions of Article 263 of the Administrative Code of Judgment of Ukraine. It is important to ensure the possibility to continue the consideration of the case in the simplified claim procedure, with the summoning of the parties to the court session, after the opening of the simplified proceedings without summoning the parties. Key words: social disputes, district administrative court, evidence, proving, general claim proceedings, simplified proceedings.

The role of third parties in norm enforcement in customary courts among the Enga of Papua New Guinea

Cultural norms are key to cooperation in human societies. How they are regulated, maintained, and adapted to the change remains a matter of debate. Humans have dispositions for both retributive and restorative justice; recent focus has been on third-party punishment, punitive sanctions by those not directly harmed, as key for norm enforcement. However, punishment does not engage the essential proficiencies and emotions critical to cooperation in small-scale societies with high dependence on collective action, sharing, and exchange. Third-party participation in norm enforcement is examined with data from a 10-y study among the Enga of Papua New Guinea. The Enga have a plural justice system with formal courts practicing retributive justice and customary courts applying restorative measures. Most cases are brought to customary courts. Drawing on observations from 333 village customary court cases concerning assault, marriage, land, and property violations, third-party engagement outside of and during customary court hearings is analyzed. Results show that all sides are heard, restoration is prioritized, and third-party punishment is rare; rather, third parties help with compensation to reintegrate wrongdoers and resolve conflicts. Repeated offenders and free riders receive ever less community support. Third parties contribute substantially both during and outside of customary court sessions to help kin, pursue economic agendas, or gain reputation. They also act generously to build a strong community. Emphasis is on amends to the victim for fairness, not punishment of the offender. Broad third-party participation is maintained throughout times of rapid change to adapt while supporting essential structures of society.

Persaksian Talak: Perspektif Ulama Sunni dan Syi'ah Imamiyah

In general, Islamic scholars have the same spirit in addressing the occurrence of divorce, namely the desire to make divorce difficult. However, on the other hand, there appears to be an inconsistency in this matter, where when reading fiqh books in a Sunni environment it seems that they facilitate divorce. As in the case of divorce testimony, Sunni ulama legalize the fall of divorce without witnesses, while among Shia clerics, they make divorce more difficult by requiring two fair witnesses to the legality of a divorce. This article aims to compare the two different views of Sunni and Shia scholars regarding divorce testimony in order to determine a stronger and more beneficial opinion. The result of the research proves that the arguments of the Shia ulama which oblige two witnesses to validate divorce are stronger and more beneficial. This opinion also makes it more difficult for the possibility of divorce to fall, and in its development, it is used in the legislation of Muslim countries by requiring divorce in front of a court session where at least two witnesses are certain to witness.

Analisis Yuridis Pelaksanaan E-Tilang Dalam Penanganan Pelanggaran Lalu Lintas

Nowadays public service by the state apparatus has become a strategic issue because the level of quality of public service performance will determine the image of the state apparatus itself. The large number of complaints from the public as recipients of services to government agencies, illustrates how poor service quality has been in the past. Like public complaints that are often received due to slow service times and unclear service procedures and costs in resolving cases of traffic violations. On-line traffic violations are intended to overcome various problems related to the implementation of speeding tickets for traffic violations. The research method used in this thesis is analytical descriptive with normative legal research. Data collection techniques in this study use library research techniques as an instrument of document studies. In addition, interviews with informants are also carried out. Data analysis uses analysis qualitatively. The implementation of the synergy of online ticketing public services for the handling of traffic violations starting from the police to the court session stage has implemented the settlement of traffic violations through the sophistication of a computerized system that is connected to the entire BRI ATM network so that the public does not have to go to the prosecutor's office or the court. to solve the problem and without having to attend a court hearing by conducting an electronic payment system or e-commerce.

Аудиофиксация в закрытом судебном заседании: ее соответствие некоторым принципам гражданского процессуального права

The problems of correlation of the principles of civil procedural law with the prohibition of audio recording in a closed court session are considered. The problematics of the democracy of the civil procedure is disclosed when the case is considered in a closed court session, a number of guarantees are proposed, taking into account the legislative prohibition on audio recording of a closed court session by persons participating in the case.

SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.