CPC Of Ukraine Research Articles

Особливості адміністрування та характеристика активів, що можуть бути передані в управління АРМА

The purpose of the article is to study the assets that can be transferred to the management of ARMA, and the features of management of them. Methodology. The paper uses general scientific and special-scientific methods of cognition, the concrete combination of which is determined by the purpose and objectives of the study. Using the formal-logical method has allowed to define, clarify and supplement the individual concepts of the category and thus to organize the conceptual-categorical apparatus. Methods of formal and logical logic were also used, in particular methods of analysis and synthesis, deduction and induction, analogies and generalizations, and others like that. The scientific novelty of the article is is due to the fact that it is a study of some problematic issues regarding the assets that can be transferred to the management of ARMA, in addition, the characteristics of such assets are carried out. Conclusions. To date, in practice, assets that are not listed in the Model List approved by the Cabinet of Ministers are transferred to the court for implementation by the court. However, this is not a problem of enforcement due to the discretionary powers of the ARMA established by the law, which consist in the competence of the ARMA to independently establish the affiliation or inadequacy of assets to the types of property specified in the Model List and, depending on this, to determine, taking into account the rule of law, which way the asset management is most effective. In order to resolve the issue of conflict with the norms of the Law and the CPC of Ukraine, it is proposed to bring the CPC of Ukraine into line with the norms of the CPC and implement it in the system of criminal procedural legislation of Ukraine. It is also proposed to consolidate in the Law and the CPC of Ukraine requirements for assets that can be transferred to ARMA management, as well as requirements about transfer to asset management, along with accompanying documentation, for efficient use and disposal. In the future it would be interesting to investigate the judicial practice of appealing decisions on the transfer of assets in the management of ARMA. Keywords: assets; National Agency of Ukraine on the Detection, Investigation and Management of Assets Received from Corruption and Other Crimes; ARMA; asset management.

Prosecutor, as guarantor of legality during registration statements, reports on committed criminal offenses: problems and reality

The article deals with the issues of procedural ensuring of consideration of applications and reports on criminal offenses committed in the activities of the investigation authorities, analyzes the peculiarities of the supervisory activity of the prosecutor at this stage of criminal proceedings, identifies his powers, the main criteria for assessing the effectiveness of prosecutorial supervision over observance of laws in the activities of investigating agencies, generalized violations in the form of not entering into the Uniform Register of pre-trial investigation information about criminal law enforcement. Based on the analysis of the CPC of Ukraine, departmental orders and instructions of law enforcement agencies that regulate the issues of filing and reviewing applications and reports on criminal offenses, the algorithm of the actions of the prosecutor on ensuring compliance with the lawfulness of the investigation bodies during the reception, registration, registration and consideration of applications is determined and characterized, reports of criminal offenses committed. A number of theoretical provisions, conclusions and practical recommendations aimed at improving the norms of the national legislation and increasing the efficiency of the prosecutor's activity in the field of criminal proceedings are formulated.

ДОТРИМАННЯ ПРИНЦИПУ ЗМАГАЛЬНОСТІ ПРИ ВІДКРИТТІ МАТЕРІАЛІВ НЕГЛАСНИХ СЛІДЧИХ (РОЗШУКОВИХ) ДІЙ СТОРОНІ ЗАХИСТУ

The defense has the right to have information about all elements of the procedural order of receiving the prosecution evidence, in particular, about the materials of the covert investigative (detective) actions (further - CIDA), which the latter intends to use against it in court. However, this right of defense is violated quite often. In addition, these issues remain unresolved at both the legislative and jurisprudence levels. The purpose of the article is to address some of the problematic issues that arise during the disclosing the materials of CIDA to the defense at the pre-trial stage of criminal proceedings. The research made it possible to draw the following conclusions from an analysis of the case-law of the national courts and of the European Court of Human Rights: 1) if the prosecution timely fulfilled the requirements of Article 290 of the Criminal Procedure Code of Ukraine (further - CPC of Ukraine), took all necessary and dependent measures aimed at declassification of materials that became the basis for the CIDA, but such materials were not declassified For reasons that did not depend on the prosecutor's procedural activity, there were no violations of the requirements of the said CPC of Ukraine by the prosecution. In such a case, the court shall evaluate the evidence obtained for their propriety and admissibility, as well as in combination with other evidence in the case, in accordance with the requirements of Article 94 of the CPC of Ukraine; 2) if the prosecution on his own initiative and/or at the request of the party of defense did not take the necessary measures, which depend on it and aimed at declassification of the materials which became the basis for the CIDA, in that case there is a violation of the rules of Article 290 of the CPC of Ukraine the consequences provided for in paragraph 12 of this Article; 3) if in the course of criminal proceedings in court, the prosecutor's repeated request for declassification of procedural documents which became the basis for the CIDA was granted and they were at the disposal of the prosecution party, then these procedural documents as received by the prosecution party after the transfer cases before the court should be opened in accordance with part eleven of Article 290 of the CPC of Ukraine.

Concepts and Reasons for Selecting Preventive Measures

The article is devoted to exploring the concept and reason for choosing preventive measures. The article analyzes a number of problematic issues regarding the concept and grounds for preventive measures in accordance with the Criminal Procedure Code (hereinafter - the CPC of Ukraine). The approaches to studying the reasons for choosing preventive measures are highlighted. Formulation of the problem. The relevance of the study is conditioned by the growing demands for ensuring the implementation of the principle of the rule of law in criminal proceedings in general and when applying the institute of preventive measures in particular. The above constitutional right is in conformity with Art. 1 of the Universal Declaration of Human Rights, which states that “all human beings are born free and equal in dignity and rights”, and in Art. 13 of the Declaration states that “everyone has the right to move freely and to choose his place of residence within each country”. The purpose of this work is a general study and analysis of legal issues regarding the concept and reason for choosing preventive measures. In order to achieve this goal, it is necessary to solve interrelated tasks: to explore the concepts and reasons for choosing preventive measures; analyze their features. The object of this study is the problematic issues regarding the concept and reason for choosing preventive measures. Analysis of recent research. The study of the issues related to the study of the concept and reason for choosing preventive measures was carried out by such scientists as IL Petrukhina, VS Chistyakov, ZD Yenikeyev, ZF Kovryga, and Ukrainian VV Nazarov, O. P. Kuchinsky, P. P. Pylypchuk, S. V. Pastushenko, A. E. Omelchenko, V. O. Popelyushka, A. V. Moldovan, Yu.P. Alenina, Yu.M. Money, E.G. Kovalenko, V.T. Malyarenka, OB Murovina, V.S. Zelenetsky, V.V. Carob and others. The purpose and purpose of investigating the reasons for applying preventive measures is to find out approaches to their concepts and types. Presenting main material. The problem of applying preventive measures in criminal proceedings is one of the most important and complex problems of the science of criminal proceedings.

The issuance by the investigator, prosecutor of a ruling not provided for by the CPC of Ukraine

The issuance by the investigator, prosecutor of a ruling not provided for by the CPC of Ukraine

Third parties, which do not submit the self-permit requirements for the subject of dispute: special questions to doctrines and legal trends

The article is devoted to the study of legislative changes in the institute of third parties that do not declare independent claims on the subject of the dispute that occurred in recent years. The issues of attracting third parties to a civil case on the initiative of the court, participation in the process of the National Agency for the Prevention of Corruption, and the availability of a time frame for third parties to enter the case are considered from a critical point of view.By the current legislation, third parties who do not declare independent claims regarding the subject matter of the dispute, are classified in the civil party. In the context of the modern edition of the CPC of Ukraine, they are considered one of the most important figures in the civil process, they belong to a circle of persons with legal interest in the resolution and consideration of civil cases.A scientific analysis of the legislative trends concerning the institution of third parties who do not declare independent claims on the subject of the dispute allows for significant comments regarding the legislative changes that have taken place in recent years, not all changes can be evaluated positively.Correction of the committed mistakes due to incorrect understanding of the legal personality of third parties who do not declare independent claims regarding the subject matter of the dispute, requires further legislative work.

SUSPENTION OF CUSTOMS CLEARANCE OF GOODS OR ITEMS HAVING INTELLECTUAL PROPERTY OBJECTS AS A WAY OF SECURING FOR A CLAIM

Purpose: the concept of ensuring the claim is analyzed, types of claim protection in the GPC and the CPC of Ukraine are given. The role of the Institute to secure the claim during implementation by income and fees mechanism to protect intellectual property rights when moving goods containing intellectual property across the customs border of Ukraine. Done generalization of judicial practice of commercial courts to secure claims in cases of intellectual property rights when stopped by customs clearance agency revenues and fees. Provided assessment of changes to the EPC and the CPC of Ukraine on the introduction of this type of the claim, as the suspension of customs clearance or objects. Methods: using general method allowed to concentrate knowledge accumulated scientific knowledge and practice of law in general and the suspension of clearance items at customs Results: are determined preconditions low efficiency of modern customs. Discussion: problems of legal provision of customs clearance of objects of intellectual property.

КРИМІНАЛЬНО-ПРОЦЕСУАЛЬНІ ОСОБЛИВОСТІ ЗАСТОСУВАННЯ ЗАПОБІЖНИХ ЗАХОДІВ ЩОДО ОСІБ ІЗ ПСИХІЧНИМИ РОЗЛАДАМИ

The article is devoted to the application of preventive measures to persons with mental disorders. The article presents the views and positions of leading domestic scientists on the types of the most effective precautionary measures for persons in respect of whom proceedings on the application of coercive measures of a medical nature are considered. The article draws attention to international standards as guidelines on the path to legality and justice in the process of applying precautionary measures against insane persons. Scientific positions on the types and features of special precautionary measures that can be applied to insane persons are given. The author found that the problematic issues of application of precautionary measures against persons subject to proceedings on the application of coercive measures of a medical nature are the lack of regulations in the CPC of Ukraine or family members within the precautionary measure in the form of transfer to the care of guardians, close relatives or family members with compulsory medical supervision, as well as the lack of direct right of the person in respect of which the application of coercive measures of a medical nature is decided. appeal against a court decision on the application of a precautionary measure. To improve the legislative provision of the rights of persons subject to coercive measures of a medical nature, as well as to eliminate legislative gaps in the mechanism of application of precautionary measures against such persons, the author proposed specific regulations on the procedure of application of precautionary measures under Chapter 39 of the CPC of Ukraine. care for guardians, close relatives or family members with mandatory medical supervision; as well as placement in a psychiatric institution in conditions that exclude its dangerous behavior. The article expresses the point of view on the need to improve the legislative technique by developing sanctions against persons responsible for the implementation of precautionary measures against insane persons.

КРИМІНАЛЬНІ ПРОЦЕСУАЛЬНІ РІШЕННЯ ДОСУДОВОГО РОЗСЛІДУВАННЯ ЯК ОБ’ЄКТ ЗАБЕЗПЕЧЕННЯ СВОЄЧАСНОСТІ

The article is devoted to the study of criminal procedural decisions of pre-trial investigation as an object of ensuring timeliness. The article analyzes scientific approaches to the definition of criminal procedural decisions. It is proved that criminal procedural decisions of pre-trial investigation as an object of ensuring timeliness should be considered as acts-actions and acts-documents. The specifics of criminal procedural decisions as an object of ensuring timeliness are determined, namely: a significant number of criminal procedural decisions of pre-trial investigation is characterized by a complex adoption procedure; the majority of criminal procedural decisions of pre-trial investigation have a discretionary character of terms of their acceptance; criminal procedural decisions of pre-trial investigation have a clear list of persons authorized to accept them, namely: investigator, coroner, prosecutor, head of the pre-trial investigation body; the head of the inquiry body, the Director of NABU, the Director of ESBU or their deputies (exclusive powers provided for in Part 9 of Article 170 of the CPC of Ukraine), the investigating judge. The classification of criminal procedural decisions of pre-trial investigation according to the following criteria is offered: the subject of decision-making; in accordance with the regulations of the deadlines for making criminal procedural decisions; depending on the need to bring (delivery, referral) the decision to the addressee; depending on the complexity of the decision-making procedure.

Normative support and practice implementation of the procedural procedure of grant of the authorization for the conduct of unknown investigate (invisible) actions under the conditions of military, emergency or in the area of anti-terrorist operation

Annotation: the article analyzes the peculiarities of the procedure for granting permission for conducting secret investigative actions in the conditions in the martial law, emergency or in the area of anti-terrorist operations. It is noted that the nascence as well as the currently existing problems of practical and applied nature connected with the implementation of the provisions of Article 615 of the Code of Criminal Procedure of Ukraine. Summarizing the above, by partially resolving issues relating to the peculiarities of pre-trial investigation in the conditions of a military, state of emergency or in the area of ATO, the law simultaneously put new, even more serious and complicated, caused by the nature of the changes. The separate aspects of the institute of pre-trial investigation that are considered within the article testify to the lack of legal certainty in many issues, which leads to the uneven application of these provisions in practice. In this regard, article 615 of the CPC of Ukraine needs legislative correction.

ДЕЯКІ ПИТАННЯ УЧАСТІ ПРОКУРОРА У СПРОЩЕНОМУ ПРОВАДЖЕННІ ЩОДО КРИМІНАЛЬНИХ ПРОСТУПКІВ В СУДІ ПЕРШОЇ ІНСТАНЦІЇ

The article is devoted to problematic issues of the legal order of the court hearing of the indictment on the commission of a criminal misdemeanors. The author notes that according to the content of Part 3 of Art. 382 of the CPC of Ukraine, it is not clear from which stage of the court proceedings such hearing should begin: from preparatory proceedings or immediately from trial. Also, legislator does not define how court should check the indictment for a criminal misdemeanors for compliance with the requirements of the CPC of Ukraine and the correctness of jurisdiction, as well as to address other organizational and legal issues of the possibility of trial. Based on the analysis of judicial practice, it was concluded that current regulation of simplified proceedings for criminal misdemeanors is imperfect and leads to unequal participation of subjects of judicial proceedings, including prosecutor. The article expresses the opinion that in case of shortcomings of indictment regarding the commission of criminal misdemeanors, if any doubts about the correctness of the jurisdiction or the need to suspend the proceedings have appeared, court should appoint a preparatory hearing with the participation of prosecutor to resolve relevant issues under Art. 314 of the CPC of Ukraine. Instead, in the case of receipt of indictment for a criminal misdemeanors without a request from prosecutor for its consideration in summary proceedings or without statements of the suspect or victim, as defined in Part 3 of Art. 302 of the CPC of Ukraine, court is obliged to consider the proceedings in the general order. All other issues that arise during consideration of indictment in summary proceedings do not require a preparatory hearing, and can be resolved by summoning the participants in the criminal proceedings immediately before the trial.

The jury in Ukraine: topical issues of reforming

Despite the age positive practices of the jury in the world, in Ukraine in 2012, the adoption of the Criminal Process Code of Ukraine, attempted introduction of jurors is completely different both in form and in substance from the Institute of Chartered worldwide. Therefore, this innovation does not give positive results both in preventing corruption in the judiciary and the legitimacy to prosecute the accused. The current state of the jury in Ukraine fully investigated. Analysis of recent research shows that the response to this innovation has been somewhat controversial. Provisions of the Criminal Code of Ukraine (art. art. 31, 368 CPC of Ukraine), which regulate the activity of the jury, completely not only meet the international practice of trial by jury, but does not contribute as prevention of corruption in the judiciary and the legality of prosecution criminal liability of persons who committed or not committed crimes. Summarizing the analysis of the status of the jury in Ukraine and the world practice the jury should be noted that the introduction of urgently needed according to international practice. In our opinion, the number of jurors in Ukraine for crimes with penalty of imprisonment of three years and above, should be 9 people. For crimes for which capital punishment less than three years in prison, the number of jurors to be six men and only at the request of the accused. A panel of jurors must sit separately from the court and communicate with him only through its elected chairman of the board.

Prohibition of interrogation of notaries as witnesses in criminal proceedings

The current criminal procedure law of Ukraine stipulates that a witness is obliged to give a true testimony during pre-trial investigation and trial, however, the legislator made an exception for this by specifying the categories of persons who have been granted immunity from immunity, ie they are released by law. testify. The article deals with the problems of law and practice regarding the prohibition of the interrogation of a notary as a witness in criminal proceedings and the release of him from the obligation to keep the notarial secret by the person who entrusted him with the information which is the subject of this secret.
 The notion of notarial secrecy is proposed to be changed, since the subject of this secrecy is not only information that became known to the notary public from the interested person, but also those information that the notary received from other sources in the performance of their professional duties, as well as the procedural activity of the notary himself, is aimed at achieving a certain legal result.
 The proposal made in the legal literature to supplement the CPC of Ukraine with the provisions that a notary is subject to interrogation as a witness on information that constitutes a notarial secret, if the notarial acts were declared illegal in accordance with the procedure established by law
 The proposal to increase the list of persons who are not subject to interrogation as witnesses about the information constituting a notarial secret is substantiated, this clause is proposed to be supplemented by provisions that, apart from the notary, are not notarized, other notarials, notaries as well as the persons mentioned in Part 3 of Art. 8 of the Law of Ukraine "On Notary".
 Amendments to the current CPC of Ukraine by the amendments proposed in this publication will significantly improve the law prohibiting the interrogation of a notary as a witness in criminal proceedings, as well as improve certain theoretical provisions of the institute of witness immunity in criminal proceedings.

Щодо визнання особи потерпілою у кримінальному провадженні

У статті досліджено проблематику визнання особи потерпілою у кримінальному провадженні. Зазначається, що визнання особи, якій кримінальним правопорушенням завдано шкоди, потерпілою у кримінальному провадженні – обов’язок слідчого, прокурора, суду; проте участь потерпілого у кримінальному провадженні (без передбачення можливості його залучення до кримінального провадження як свідка) – результат його волевиявлення, його право на процесуальну комунікацію.

Шлях становлення та розвитку процедур примирення в цивільному судочинстві

Стаття присвячена історико-правовим аспектам розвитку процедур примирення в цивільному судочинстві. Тривалий час про примирну спрямованість цивільного судочинства взагалі не прийнято було говорити, вона залишалася, фактично, у тіні його основної задекларованої функції – розгляду й вирішення цивільних справ. ЦПК України в редакції 2017 р. зробив перший крок на шляху закріплення примирних процедур у межах цивільного судочинства.