Criminal Court Proceedings Research Articles

Withdrawal from the Rome Statute

Abstract This article examines the implications of a state party’s withdrawal from the Rome Statute, with a particular focus on its impact on the continuity of International Criminal Court (ICC) proceedings in an ongoing situation, especially during the preliminary examination phase. It begins by scrutinizing three distinct ways of addressing the implications of a state party withdrawal employed by the ICC, drawing insights from key decisions in the Burundi and Philippines situations, as well as scholarly viewpoints on the issue. It then analyses the legal consequences of withdrawal on ICC proceedings, both in situations where the investigation is initiated by the Office of the Prosecutor and those triggered by state party referral. This article argues that the authorization of an investigation in the Philippines situation may have exceeded the bounds set by the Rome Statute.

Proposing immersive virtual reality scenarios for validating verbal content analysis methods in adult samples.

Verbal content analyses to differentiate truthful and fabricated statements, such as the Criteria-Based Content Analysis (CBCA), are used in lie detection research as well as in practice to assess the credibility of statements in criminal court proceedings. Meta-analyses demonstrate validity of verbal content analyses above chance, but the traditional research paradigms usually lack either ecological or internal validity. The authors discuss the usage of immersive virtual reality scenarios to solve this dilemma, as both types of validity can be increased by this approach. In this integrative review of existing literature on the current use of virtual scenarios in forensic and victimology research, the authors extract strengths and limitations for possible VR studies in the context of verbal content analysis. Furthermore, novel ethical challenges involved are summarized and implications for future studies proposed. Overall, we argue in favor of using virtual reality scenarios to validate methods for verbal content analysis, but also urge to consider ethical limitations regarding unwanted short- and long-term aftereffects.

Artificial Intelligence — a New Form of Using Special Knowledge in Investigating and Solving Cybercrimes

The number of cybercrimes has grown considerably in recent years and now poses a serious threat for the national security of states, information systems and personal data of citizens. The reasons for this considerable increase in cybercrime are the change of global policy, the special military operation, and the restrictions connected with the COVID-19 pandemic. The authors examine the importance of using special knowledge and artificial intelligence (AI) in the investigation of cybercrimes. They research the concept of a cybercrime, and analyze the ideas of scholars on strengthening the counteraction to such criminal activities, which have been spreading rapidly in recent years. The authors conclude that cybercrimes are understood as socially dangerous unlawful behavior, carried out with the use of information technologies and inflicting considerable damage on the economic and reputational interests of people, organizations and the state. They present a classification of the most common types of cybercrimes and key methods of carrying them out. They also analyze the research discussion on the contents of special knowledge, which allows the authors to conclude that in modern legal conditions AI, being a new form of special knowledge, requires a new understanding in view of the use of this knowledge in criminal proceedings. Taking into consideration that this format includes machine self-learning, neural networks, evolutionary algorithms, etc., the authors attempt to outline how they can be used for solving complex criminalistic tasks that require a preliminary analysis of large volumes of forensically relevant information, identification of images and regularities, and argumentation of making organizational-procedural decisions. The authors examine the cyberspheres where special technical knowledge is used, such as cybersecurity, computer architecture, reverse engineering, digital forensics, system administration. AI has a tremendous potential for the modern criminal process, its use will make it possible to enhance the effectiveness of investigatory work as it will considerably improve the speed and effectiveness of procedural actions and pre-court proceedings for criminal cases in general. It is, however, necessary to take into account the existing risks and limitations connected with its use in court-investigative practice. The authors conclude that in order to ensure the adequate use of opportunities offered by AI in the criminal process, it is necessary to develop ethical and legal principles of its inclusion in the sphere of special knowledge used in criminal court proceedings for acquiring forensic evidence on criminal cases.

Topical Problems of Imposing Prohibitions and Restrictions When Choosing the Preventive Measure of House Arrest

House arrest is quite often used as a preventive measure in criminal court proceedings. At the same time, its use poses a number of problems. In particular, they refer to the legislative regulation of the enforcement of the house arrest, the prohibition of certain actions and the conditions of their implementation. The authors analyze certain problems of imposing prohibitions and restrictions when choosing the preventive measure of house arrest. They present the interpretation of the concept “prohibition and restrictions” in the criminal process theory and describe the essence and contents of these concepts. It is researched how problematic the prohibition of continuous house arrest is considered to be and how this problem should be solved in court practice. The authors draw attention to the absence of legislative regulation of the procedure for imposing prohibition on postal and telegraph orders and outline ways to solve this problem. They examine different aspects of enforcing the right to leave the dwelling in cases of house arrest. Investigatory actions involving persons who are under prohibition to commit certain actions is analyzed as a separate problem aspect. Having studied the problems of imposing prohibitions and restrictions in cases of choosing the preventive measure of house arrest, the authors propose ways of solving them.

Juridical Overview of the Authority for the Confiscation of Evidence in the Code of Criminal Procedure and Book II of the Technical Guidelines for Administration and Technical Guidelines for General and Special Criminal Court Proceedings of the Indonesia Supreme Court

Juridical Overview of the Authority for the Confiscation of Evidence in the Code of Criminal Procedure and Book II of the Technical Guidelines for Administration and Technical Guidelines for General and Special Criminal Court Proceedings of the Indonesia Supreme Court

Prospects for the implementation of the system of electronic criminal proceedings in Ukraine

Using the dialectical method, the article is devoted to the study of the impact of digitization on the implementation of pre-trial criminal proceedings and court proceedings in Ukraine. Based on the study of the positive international experience of electronic criminal proceedings, the good features of the introduction and further development of electronic criminal proceedings have been identified, such as: optimization of the investigation and trial procedure; improvement of supervision and control; saving budget funds; reducing the number of employees; elimination of red tape and corruption risks; automation of communication processes and others. In the conclusions, the authors argue that it is desirable to determine in the procedural legislation the possibility of introducing a special regime of court proceedings, in the form of videoconferencing and procedures for signing court judgments, etc., during the period of war or state of emergency.

Specific Features of the Participation of Non-Government Forensic Experts in Criminal Court Proceedings

Specific Features of the Participation of Non-Government Forensic Experts in Criminal Court Proceedings

Axiological Risks of the Digitization of Criminal Proceedings: Statement of the Problem

Starting from the thesis that the society is now undergoing radical changes due to the developing digital technologies and changes in axiological dominants, the author applies the transdisciplinary research method to the analysis of axiological risks of the digitalization of criminal court proceedings. The conclusions are formulated on the basis of subjective analysis, which allows for a subjective assessment of the likelihood of the risk, because this assessment is specifically linked to the multi-factor expert analysis. The author argues for several interconnected points. First, any stage of digitizing the processes of investigation and consideration of criminal cases (automation, digitization, digital transformation) poses risks for its participants, the only difference being that the gravity of possible negative consequences increases at each stage. Secondly, the legal assessment of the risk of digitizing criminal proceedings could be performed by assessing the likelihood of the risk situation — the «risk of the risk», as well as the assessment of the consequences of a risk situation — «the risk of the consequences of the risk». Finally, the underestimation of the risk in the sphere of criminal proceedings is manifold more serious than that in the private branches of law, as the digitization of criminal proceedings, which is one of the most repressive spheres of the functioning of the state, is connected with the necessity of reconsidering the existing procedural guarantees of the rights of a person in terms of their effectiveness and sufficiency. The author proves that the digitization of court proceedings is a priori a risk for the moral foundations of criminal court proceedings. It is stressed that digitization could primarily damage the moral foundations of criminal court proceedings. Using the example of one of the basic principles of criminal proceedings — the freedom of evaluating evidence (Art. 17 of the Criminal Procedure Code of the Russian Federation) — the author proves that it is necessary to preserve such an ethical category as conscience, which should guide the law enforcer in making decisions.

The Statute of Limitation in Case of Customs Criminal Offences in the EU: A Comparative Study

According to the uniformed customs legislation in the European Union (EU), the normal statute of limitation for notifying a customs debt is three years. This period can be extended to a period of a minimum of five years and a maximum of ten years if the customs debt is incurred as the result of an act which, at the time it was committed, was liable to engender criminal court proceedings. Understanding the rules about what is considered a criminal court proceeding is thus essential for the extended statute of limitation that applies in case of a post-clearance recovery of customs debt. As EU Member States are competent to decide in their own legislation when an act engenders a criminal court proceeding, the application of the extended statute of limitation may be different between the Member States and cause uncertainty for market operators having customs operations in different EU Member States. This study examines to what extent the differences in application of the extended statute of limitation in case of customs criminal offences in a representative sample of eight Member States (Belgium, France, Germany, Italy, the Netherlands, Portugal, Romania, and Spain) could hinder the uniform application of customs legislation in the EU Customs Union. statute of limitation, customs debt, post-clearance, criminal offence

Visual Information and Its Research in the Trial of Criminal Cases

The article presents the author’s view of the development of the trend connected with the research of visual information, which is a part of the theory of the judicial investigation of crimes. There is an urgent necessity to reconsider the traditional methodological approaches and combine them with latest achievements in various spheres of the humanities and natural sciences. Cognitivistics is recognized as one of such trends that is potentially ready to be adapted for the sphere of criminal law sciences. The author stresses that the results obtained by cognitive sciences could, after necessary research, be successfully used to develop recommendations on working with judiciary information. It is claimed that a wide spread of digital technologies enabling the creation of a retrospective visual picture of criminal events requires paying special attention to the specific features of researching visual information in court. It is necessary to focus not on the technical-criminalistic support of preserving such information, but on the development of tactical means and technologies that will allow us to analyze its influence on the results of evidentiary activities of the professional participants of the judiciary investigation of criminal cases. This encompasses the strategic and tactical basis of representing visual information as well as taking into account the correlation between the specifics of its perception and the passing of judgements that acquire the force of a judicial decision. The correlation between and the differentiation of visual perception and visuality are viewed as important. The result of investigating visual information is the reconstructed visual image of a crime. The latter will make it possible to predict the content of the final decision on a criminal case. However, it could also be characterized by inconsistency due to biased interpretations of visual information. As the sources of visual information are not common enough in criminal court proceedings in Russia, the issues of their presentation in court have not been properly studied and require a critical scientific analysis. The author supports the opinions of foreign colleagues who stress not only the evidently positive features of using visual sources as proof, but also the obviously negative ones, which challenge both the effectiveness and accuracy of the process of proof, and the reliability of visual information. The author argues for the following claim: visual information does reflect reality, it shapes it by creating not the «artifact of the past», but the «artifact of the present». Due to this, several key problems are singled out, which are connected with providing proof in criminal procee­dings through the demonstration of various sources of visual information.

The Concept and Essence of Suspicion in Russian Criminal Court Proceedings

The author analyzes a highly debated problem of the Russian science of criminal court proceedings — the problem of defining the concept, essence and meaning of suspicion. The institute of suspicion makes it possible to protect the rights and lawful interests in the situation when a person has not yet been charged, but the procedural coercion measures have already been applied. It is noted that the criminal procedure law does not define suspicion, although the term itself is mentioned numerous times, and a number of articles in the Criminal Procedure Code of the Russian Federation set a requirement for the officers of the bodies of preliminary investigation to clarify the essence of suspicion to the participants of criminal proceedings. Although considerable changes have been made in the part of criminal procedure law referring to suspicion, the lawmakers have not dared to reconsider the long-time traditional approach to suspicion established in both theory and practice, but introduced just some specific changes, which have not solved the problems of the criminal procedure activity at the initial stage of criminal prosecution connected with suspicion, but, on the contrary, have increased their number. A considerable number of the norms connected with suspicion and suspects are either mutually contradictory, or non-specific and vague. Not only the lawmakers, but also the science of criminal procedure has not yet proposed a unified approach to the definition of the concept of «suspicion». The author analyzes various approaches to the concept and essence of suspicion found in the theory of criminal court proceedings.

Topical Issues of Appealing Against Illegal Actions and Decisiona of Officials and Courts

The authors study the institute of appeal in Russian criminal procedure legislation. Currently, the Criminal Procedure Code of the Russian Federation provides several mechanisms of implementing the right to defense stipulated by the Constitution of the Russian Federation. Since the actions and decisions of officials and courts have a direct impact on the constitutional status of a person involved in criminal proceedings, it is necessary to evaluate the implementation of the existing legal mechanisms by studying the court practice and law enforcement decisions. The authors focus on the existing mechanisms of appealing and their effectiveness, and also suggest other approaches to forming the law enforcement practice in this aspect of criminal procedure activities for the participants of criminal court proceedings who appeal against illegal actions of officials and courts. They also substantiate the thesis about the necessity for the proper work of agencies that consider appeals and offer examples of court practice in this sphere.

“Miranda Rights”: History of Their Establishment and Implementation in the Court Proceedings of the USA and the Russian Federation

The paper analyzes the legal institute of «privilege against self-incrimination» recognized as a fundamental principle of the Anglo-Saxon legal system, which is best manifested in the so-called «Miranda rights» formulated in the 1966 U.S. Supreme Court case Miranda v. Arizona, which became revolutionary and customary for criminal court proceedings in the USA. In their most general form, Miranda rights are procedural guarantees applied when a person is detained or taken into custody and interrogated. According to them, the detained or arrested person should, prior to questioning, be warned that they have the right to remain silent, anything they say can be used against them in court; they have the right to have a lawyer with them during questioning, if they cannot afford a lawyer, one will be appointed for them by the state before the questioning starts. «Miranda rights» have gone through a difficult path, and been a subject of criticism by both officials and representatives of the legal community, but have withstood the test of time, taken the place of a constitutional principle in the USA and have been adopted in many countries, including Russia. The Criminal Procedure Code of the Russian Federation incorporated clauses on the right of the suspect and the accused not to testify against themselves and the opportunity for the defense attorney to participate in the criminal case from the actual moment of the suspect’s detention.

Gaps and Conflicts in Certain Norms of Criminal Procedure Legislation Related to the Final Stage of Pre-Trial Proceedings

Unregulated legal relations lead to violations of the rights of their participants, which is cause for special concern in the sphere of power relations that include, among other things, criminal procedure relations. Legislators have given the accused considerable rights and guaranteed their protection in the Constitution of the Russian Federation and the Criminal Procedure Code of the Russian Federation. However, a growing abuse of such rights by these participants of criminal court proceedings testifies to the necessity of eliminating the gaps and conflicts in the Criminal Procedure Code of the RF that they take advantage of. The article contains an analysis of the existing gaps and conflicts connected with the end of the preliminary investigation and the familiarization of the accused with the materials of the case. The author presents some scenarios for the regulation of the abovementioned criminal procedure legal relations that could contribute to achieving the existing tasks of the final stage of pre-trial proceedings and to simplifying the access of citizens to justice.

Optimizing the Use and Evaluation of the Results of Operational Investigative Activities as Evidence

The current criminal procedure legislation provides a sufficiently detailed regulation of the process of proof in criminal cases. The object of proof, its means, the procedures of collecting, investigating, verifying and evaluating evidence are quite clear. However, both researchers and practitioners in the sphere of criminal court proceedings are still arguing about the rules of evaluating the results of operational investigative activities. Scholarly discussions at round tables and research conferences demonstrate that it is necessary to work out simpler algorithms for using operative information as evidence in a criminal case. Nevertheless, the procedural law still remains “at a standstill” and provides a rather superficial regulation of the evidentiary value of the results obtained during operational investigative actions. The author presents her opinion regarding the necessity of improving and optimizing means of proof by simplifying the procedural formalities of giving operational information the strength of evidence.

Troubling Records

Video records created by perpetrators and witnesses of violent crime are increasingly used as evidence in criminal investigations and court proceedings. When these records include the sexual assault, torture, and murder of individuals, they carry significant power to harm those exposed to them, but most importantly, through repeated viewing, they continue to harm those individuals whose suffering is immortalized therein. Using case study methods, including in-depth interviews with those centrally involved in the case, interviews with criminal justice professionals currently working with video evidence of violent crime, and a review of official documents and media reports, this article examines the tragic Canadian case of serial killers Paul Bernardo and Karla Homolka and the videos they recorded of their crimes. We observe that challenging decisions regarding the handling of video records of violent crime during the investigation process, the viewing of such records in court, and access to them by the public and press during the criminal justice process continue to be areas of concern and contestation, pitting principles of open justice against those of victim dignity and privacy. However, challenges regarding access to video records do not end with a trial and an ultimate verdict of guilt or innocence; rather, decisions continue to be made about the preservation or destruction, the storing and cataloguing, and access to archived material. In examining questions regarding the preservation and continued use of the records, we conclude that a responsible and ethical approach to these challenges is best achieved through what Caswell called a survivor-centred approach. We suggest that this approach should include recognizing the traumatic potentiality of records, providing safety and support to those affected, recognizing the potential of records to produce and perpetuate injustice, respecting the autonomy and decisions of survivors, and accepting and facilitating the right to be forgotten.

The Establishment of the Institute of Cassation Appeal in Russia

Understanding the essence of the Russian institute of cassation proceedings in the criminal process, which is now undergoing another reform, is impossible without researching its establishment and historical development. The author studies the mechanism of the cassation revision of court decisions taken during criminal court proceedings, and the structure of the norms in the Charter of Criminal Proceedings adopted on Nov. 20, 1864 referring to criminal proceedings in the court of cassation, together with the specific and characteristic features typical of the criminal process in the pre-Soviet period.

The Role of the Prosecutor in Implementing a Right to Rehabilitation in Criminal Proceedings

The authors examine the powers of the prosecutor in the implementation of the rights of persons who were criminally prosecuted unlawfully or without good reasons. The goal of this work is to determine the role of the prosecutor in the exercise of the powers according to Chapter 18 of the Criminal Procedure Code of the Russian Federation and to identify the problems of the prosecutor’s participation in the implementation of the right to rehabilitation. The authors analyze the key clauses of the Criminal Procedure Code of the Russian Federation that prescribe the rehabilitation procedure in criminal proceedings, the key powers of the prosecutor in the rehabilitation procedure for a person who was criminally prosecuted unlawfully or without good reasons, as well as inter-departmental legal acts that state the powers of the prosecutor during the participation in cases of rehabilitation in criminal court proceedings. Besides, the article presents the opinions of researchers of legal proceedings and positions of Russian courts that allowed the authors to determine the role of the prosecutor in the examination of rehabilitation questions. The analysis revealed gaps in criminal procedure legislation that make it possible for the prosecutor to realize the function of prosecution regarding the implementation of the right to rehabilitation within court proceedings.

To the Question of the Independence of Judges Through the Prism of the Requirements Imposed on Them

In connection with the 30th anniversary of the adoption of the law of the RF «On the Status of Judges in the Russian Federation», the author presents an assessment of the existing theory and practice of understanding the principle of the independence of judges in criminal court proceedings through the prism of the requirements imposed on judges. Two aspects are stressed - committing actions that diminish the authority of the judicial power (violations of the Judges Code of Ethics) and the conflict of interests. Having analyzed the established work practice of the Judicial Qualification Committees of the subjects of the Russian Federation, the author states that there is no unified approach to proving the violations of the procedural law and their connection with the violation of the Judges Code of Ethics. The section of the article devoted to the necessity of avoiding a conflict of interests highlights that the currently used legal regulation of this issue is non-systemic, and also presents a description of the position of Judicial Qualification Committees regarding the differentiation of approaches to evaluating a conflict of interests for candidates to judges and for acting judges. The conducted research allowed the author to state that if the abovementioned Code provides for an opportunity to disqualify a judge due to violations of ethical prescriptions, then the corresponding clauses should be reflected in the law and should totally exclude multiple interpretations. In its turn, in order to develop a uniform practice of understanding a conflict of interests by Judicial Qualification Committees, it is necessary to provide a legal regulation of the so-called feedback with the goal of providing them with motivated decisions on the appointment of the candidates they approved as judges or the refusal to do so, which will contribute to ensuring the consistency of the law enforcement practice and will give the Committees confidence regarding the correctness of their decisions.

Methodological Foundations for Determining the Goal of Russian Criminal Proceedings

The author states that modern social development is based on humanistic ideas, which underpin the policy for the liberalization of modern criminal and criminal procedure legislations, and analyzes the corresponding amendments to the Criminal Code and the Criminal Procedure Code of the Russian Federation. This analysis proves the relevance of researching the methodological foundations of determining the goal of Russian criminal proceedings. As philosophy teaches us, the goal of any activity is determined by external factors and should thus be derived from them. At the same time, the organization of the work of actors «within» the system presupposes setting corresponding goals. Applying the logic of scientific cognition «from general to specific» to the criminal process, the author proves that it is necessary to initially determine its purpose at the highest possible level of generalization. After that, the purpose should be interpreted in practical terms, i.e. it is necessary to set the goal and objectives of criminal proceedings. It is noted that the purpose of criminal proceedings - protection against criminal infringements - determines the goal of criminal procedure activities - the implementation of this protection. Such are the dialectic features of the goal manifested in the combination of specific and general characteristics. At the same time, a goal needs to be specific enough, and not too general. The author supports the approach of the lawmakers used in Part 2, Art. 2 of the Model Criminal Procedure Code for the CIS countries, which determines the results that the bodies responsible for criminal procedures should strive to achieve. It is stated that in the countries of the Romano-Germanic legal system the goal of criminal court proceedings is considered to be reached if the guilty party is determined and the just criminal law norms are applied to this party in the form of punishment, whereas in the Anglo-Saxon legal family the goal of criminal proceedings consists in settling the conflict between the victim and the perpetrator. Besides, the author proves that the objectives of criminal court proceedings reflect the specific features of criminal procedure instrumentarium, while the results of reaching their goals are of criminal law nature since they are determined by the factors that are external in relation to the criminal proceedings. Based on this, the author presents the formulation of the goal of criminal proceedings as well as the results of reaching it.