Criminal Procedure Law Research Articles

Selected victim protection measures in ordinary criminal proceedings

The victim becomes a participant in the criminal proceedings not because he or she has consciously made such a decision. It is almost always that the victim becomes a participant against their will, which is caused by a direct violation or threat to its legal interest by a criminal offence. This is reflected in the legal definition of the victim contained in Article 49 § 1 of the Criminal Procedure Code (hereinafter CPC) . Cezary Kulesza notes that this definition contains the following elements: subjective (natural or juridical person) and objective, relating to the legal interest infringed by the criminal offence to the extent defined by that provision, but also a provision of substantive criminal law (Kulesza, 1995, p. 17–18). The victim's participation in criminal proceedings makes the victim a participant in those proceedings, whether natural or juridical person, and that participation is limited to fulfilling the role assigned to them by the criminal procedural law (Tylman, 2003, p. 47). The legislature attributes three roles to the victim: in the pre-trial proceedings, the victim is a party (Article 299 § 1 CPC), in the judicial proceedings, the victim may be an auxiliary prosecutor (Article 53 CPC), incidental or subsidiary, and in the course of the entire criminal proceeding, also a testimonial evidence source (Article 177 § 1 CPC, Article 185a § 1 CPC, Article 185c CPC). The status of a party to pre-trial proceedings is acquired by operation of law and does not require the victim to take any action. The situation is different in judicial proceedings, where acquiring the status of auxiliary prosecutor requires a certain effort to by the victim, namely expressing the will to act in that capacity.

Criminal Liability of Legal Entities in the Kyrgyz Republic and the Specifics of the Application of Criminal Law Terms

The article examines the dynamics of the development of the doctrinal concept of criminal liability of a legal entity, examines the points of view of leading scientists of criminal and criminal procedure law on existing and promising areas of development of the institution of criminal liability of legal entities in Kyrgyzstan and other countries. The appearance of quasi-criminal liability of legal entities in the criminal legislation of the Kyrgyz Republic seems justified. The article provides a number of arguments in support of the innovations introduced into the criminal legislation of the Kyrgyz Republic regarding the criminal liability of legal entities. In this scientific article, the author reveals the content and dynamics of the development of modern doctrinal discussions on the key problems of the institution of criminal liability of legal entities in the criminal legislation of the Kyrgyz Republic and the positions of the main scientific schools of Kyrgyzstan, Russia and abroad on theoretical issues of criminal liability. legal entities; to identify the main scientific doctrines concerning the understanding of criminal liability of legal entities; to consider the prevailing points of view on the category of the subject of criminal liability. The article also used traditional general scientific research methods such as the dialectical method of cognition, analysis, synthesis, induction, deduction, etc., as well as private scientific legal methods, including formal legal, the method of legal interpretation, etc. The main sources of information are electronic versions of official publications of normative legal acts of the Kyrgyz Republic, special literature on the research topic. The article also substantiates the conclusion that in the theory of criminal law, the category of “legal entity as a subject of criminal liability” is by far the most controversial.

The Fundamentality of The Right to Evidence in The Brazilian Legal System

Objective: The objective of this study is to investigate the fundamental nature of the right to evidence in the Brazilian legal system, aiming to analyze its importance for guaranteeing due process and the realization of justice. Theoretical Framework: This section presents the main concepts and theories that underpin the research. Key theories include the principle of adversarial proceedings, the principle of ample defense, and due process of law, providing a solid foundation for understanding the context of the investigation. Method: The methodology adopted for this research comprises a qualitative approach, with documentary analysis and case studies of landmark decisions in Brazilian law. Data collection was conducted through a literature review and jurisprudence analysis, focusing on higher court decisions addressing the right to evidence. Results and Discussion: The results revealed the crucial importance of the right to evidence for maintaining the balance between parties in judicial proceedings. In the discussion section, these results are contextualized in light of the theoretical framework, highlighting implications for legal practice and the protection of fundamental rights. Possible discrepancies and limitations of the study are also considered in this section. Research Implications: The practical and theoretical implications of this research are discussed, providing insights on how the results can be applied or influence practices in the field of civil and criminal procedural law. These implications may include the reformulation of judicial procedures and the training of legal professionals. Originality/Value: This study contributes to the literature by exploring the fundamental nature of the right to evidence in Brazil in a thorough and systematic manner, highlighting new findings and offering a critical analysis of judicial practices. The relevance and value of this research are evidenced by its potential to influence procedural reforms and improve the effectiveness of the judicial system.

Проблемы разграничения законности, обоснованности и мотивированности приговора в теории и практике уголовного судопроизводства

This article examines the problems associated with defining the concept of a justified verdict, its relationship with the properties of legality and motivation of a court decision. The conclusion is formulated that modern judicial practice has actually turned the property of the validity of a sentence into an appendage of legality. Violation of the norms of the Code of Criminal Procedure of the Russian Federation, in turn, is a universal basis for canceling or changing a court decision. Thus, in the practice of appellate courts, the identification of violations of the law committed by the court of first instance, as a rule, precedes the verification of issues of the validity of the verdict, which the court may generally leave without consideration, and the cassation courts, contrary to the requirements of the law, actually verify the validity of the verdict. In this case, the sentence is canceled (changed) due to a legal basis (the only legal one, according to the letter of the law) significant violations of the criminal and (or) criminal procedural law. The authors associates the appearance of such collisions with the confusion in judicial practice and in procedural science of the concepts of legality, validity and motivation of a sentence. However, such a mixture directly contradicts the requirement of the Code of Criminal Procedure of the Russian Federation, which distinguishes the subject of appeal (legality, validity and fairness of the sentence) and cassation (literally according to the Code of Criminal Procedure of the Russian Federation — only the legality of the sentence) proceedings. Based on the results of the study, the authors proposed her own vision of the content of the concepts of legality, validity and motivation of a court decision, and their significance in rendering a legal verdict. Key words: sentence, properties of the sentence, legality, validity, motivation.

«Парадокс стимулирования» обвиняемого к признанию своей вины

The admission of guilt by the accused is of particular value for the criminal process, both for the field of theoretical understanding and for the activities of practical bodies. A deep interest in the admission of guilt for a long time caused a lot of discussions and disputes about its essence, meaning, hierarchy, as well as ways to obtain it. On the one hand, the voluntary admission of guilt by the accused is a confession that he gives solely based on his inner beliefs, norms of morality, conscience and other trends of the soul. On the other hand, it is impractical to expect that each accused person will appear and confess to the crime committed independently, without any intervention by law enforcement agencies, since such a situation is an exception to the rules. Moreover, in the criminal procedure law there are forms of positive influence on the accused, which provide him with a number of beneficial incentives for him to obtain confessions. In this regard, the so-called “paradox of stimulating” the accused to voluntarily admit his guilt arises, which consists in the fact that such a confession excludes any stimulation, but without stimulation, voluntary admission of guilt is itself an exception.

Legal Protection for the Suspect's Wife in Handling Money Laundering Cases: Evidence from the Indonesian National Narcotics Agency

Money laundering is a stand-alone crime, although money laundering is born from its original crime, such as corruption, but the anti-money laundering regime in almost all countries places money laundering as a crime independent of its original crime. In handling narcotics criminal cases, the suspect's wife is sometimes made a suspect in a money laundering crime. Seeing this, clear restrictions are needed in order to achieve legal certainty, legal protection and justice for wives who are determined to be perpetrators of money laundering crimes. This is qualitative research using a statutory approach, case and conceptual approaches. The primary legal materials resulted from relevant laws and legislation. The legal material collected is analysed prescriptively. The results show that there is a difference in treatment of the perpetrator's wife in almost the same narcotics criminal cases, indicating that investigators in money laundering criminal cases do not yet have standard procedures. Hence, the assessment is based on the investigator's subjectivity. As a special crime, the crime of money laundering requires formulating procedural law that is different from ordinary criminal procedural law.

Criminalizing Civil Law Actions of Default into Criminal Acts of Fraud: A Human Rights Perspective

The terms "Default" and "Fraud" and/or “Embezzlement” are often interchanged without clarity of meaning in many discussion forums, both oral and written. This confusion can be seen from the many court decisions that acquit defendants from prosecution which have permanent legal force. The public often hears that law enforcers carry out criminalization, such as witnesses becoming suspects, suspects becoming defendants and so on by shifting the civil legal action of Default to criminal act of Fraud and/or Embezzlement. Using 'criminalization' and 'criminalized' in this article is considered inappropriate, so it has been replaced by 'criminalizing' and 'criminalized'. If there is an action to shift the civil legal act of Default into a criminal act of Fraud and/ or Embezzlement, so from a human rights perspective, it is against the law. By using normative legal research methods, this paper examines how to differentiate civil legal acts of Default from criminal acts of Fraud and/or Embezzlement, how to apply civil compensation in cases where there are already criminal legal remedies, and what is the legal and human rights perspective when criminalization occurs. This paper uses a statutory approach and a case approach. The results show: First, there is a real difference between civil legal acts of Default and criminal acts of Fraud and/ or Embezzlement; Second, the application of compensation can be carried out through criminal and civil procedural law mechanisms; Finally, criminalizing civil legal acts into criminal acts is a form of violation of human rights.

Звільнення від кримінальної відповідальності за кримінальним процесуальним правом

This research article discusses problem of crime in contemporary Ukrainian society and ways to address it through the application of alternative responses to criminal offenses, particularly exemption from criminal liability, are considered. The mechanisms and practical aspects of applying this institution in Ukrainian criminal procedural law are analyzed. This article pays special attention to the role of various subjects of the criminal process, such as the court, the prosecutor, the victim and the suspect, in making a decision on exemption from criminal liability. Contemporary trends in improving legislation and the practice of applying alternative forms of response to crime are highlighted, aiming to ensure a more effective and humane judiciary and legal system. In today’s Ukrainian society, the problem of crime remains one of the most pressing and acute. Despite constant changes in society, development of the legal system and improvement of criminal procedure, crime continues to accompany the existence and development of humanity. Crime is one of the most pressing problems for every individual and for modern society as a whole. The problem of effective prevention of this phenomenon is the subject of constant attention of legislators and social and political activities, which requires constant improvement and coordination. Criminal liability is one of the tools to combat crime. However, in connection with the humanization and reform of the legal system, the issue of alternative forms of response to criminal offenses, in particular, exemption from criminal liability, is relevant. Thus, there is a need to study the mechanisms and practical aspects of application of this institution in Ukrainian criminal procedure law.

Дерогація, аброгація, нуліфікація: поняття, особливості та приклади застосування

The article analyzes the legal concepts of derogation, abrogation and nullification, which are tools for regulating relations in society and international relations. It is determined that the derogation means the partial cancellation of the law or its individual provisions, for the purpose of temporary deviation from obligations during emergency situations. Examples of the derogation include the actions of Ukraine during armed aggression by the Russian Federation and the actions of European countries during the COVID-19 pandemic. Abrogation (abolition) means the cancellation or change of an outdated law or agreement. The term has its roots in Roman law, where various forms of abrogation existed. Over time, repeal has evolved into a legal tool that allows governments to repeal outdated laws or make changes without having to maintain the application of the previous rule. Contemporary applications of abrogation include criminal procedure law, where proceedings can be dismissed if charges are not proven, and international procedures, such as pardons or amnesties, which allow convicts to be released without overturning the sentence. It has been established that the term "nullification" is used both in the legal and economic spheres, and means the deprivation of documents of legal force or the recognition of securities as invalid. The historical practice of nullification is considered, starting from the formation of the confederation of North American states, attempts to conclude a new union treaty between the republics of the USSR in 1991, and centrifugal tendencies in the European Union. In modern conditions, as the example of Ukraine with Russia shows, the nullification of treaties can serve to protect national interests in response to external challenges. In conclusion, the author concludes that these legal mechanisms are important for ensuring legal stability and adaptability, allowing to respond to emergency situations and social challenges without violating the basic rights and freedoms of citizens.

Criminal Liability by the Company in the Implementation of Occupational Safety and Health Management System

The purpose of this research is to find out how companies can be held accountable for their violations of the occupational safety and health management system. This research was conducted qualitatively using empirical data and legal sources of legislation. This research was conducted at the South Sulawesi Provincial Manpower Office and BPJS Employment Makassar City Branch. The results show that businesses can be criminally liable if they commit errors or omissions, such as not reporting work accidents, not registering employees in the BPJS employment social security program, and not having OHS certification for employees and operators. Criminal liability accepted by organisations includes imprisonment. In addition to criminal penalties, companies may also face administrative reprimands or fines. If companies do not implement an Occupational Safety and Health Management System, they must receive a warning. If the company does not follow the warning, the Indonesian Law No. 8 of 1981 on Criminal Procedure Law will be applied, in accordance with the provisions in PERMA No. 13 of 2016 on Procedures for Handling Criminal Cases by Companies. Companies that do not implement the Occupational Safety and Health Management System will be subject to imprisonment for a maximum of 3 months according to Article 15 of Law No. 1 of 1970 on Occupational Safety and Article 186 of Law No. 13 of 2003 on Labour.

Derecho Penal Sustantivo y Adjetivo en México: control social para la prevención y represión de conductas delictivas

This study aimed to analyze the persistent human rights violations within the Mexican criminal justice system, despite the reforms implemented. The main objective was to examine the role of formal social control in crime prevention and repression, as well as to evaluate the effectiveness of substantive and procedural criminal law in protecting fundamental rights. To conduct this research, an review of specialized literature and reports from international and national organizations was carried out. The results reveal that, despite normative advances, practices such as torture, arbitrary detention, and inhumane prison conditions persist. These violations are exacerbated by the lack of judicial independence, corruption, and impunity. The analysis of substantive and procedural criminal law showed that, while there are advances in legislation, problems such as the imprecision of some criminal offenses, the workload of system operators, and the lack of resources persist. In conclusion, the Mexican criminal justice system faces significant challenges in protecting human rights. A comprehensive reform is required that addresses the structural causes of violations, strengthens judicial independence, professionalizes police forces, and guarantees access to justice. Furthermore, it is essential to promote a culture of legality and respect for human rights.

KẾT LUẬN ĐỊNH GIÁ TÀI SẢN TRONG LUẬT TỐ TỤNG HÌNH SỰ VIỆT NAM VÀ MỘT SỐ KIẾN NGHỊ HOÀN THIỆN

The 2015 Criminal Procedure Code introduced asset valuation conclusions as a new type of evidence, crucial in resolving criminal cases. This article examines the criminal procedure stipulations and identifies current legal shortcomings concerning asset valuation conclusions, including their types, content, format, and the rights of participants regarding these conclusions. From this analysis, the authors propose recommendations to enhance the Vietnamese criminal procedure law, particularly in reforming evidence sources like asset valuation conclusions.

Harmonization of Legal Systems: Analysis of the Relationship between the Principle of Restorative Justice and Criminal Procedure Law (Kuhap) in Indonesia

Harmonization of Legal Systems: Analysis of the Relationship between the Principle of Restorative Justice and Criminal Procedure Law (Kuhap) in Indonesia

The Role of Digital Forensics in Criminal Investigations: An Analysis of Electronic Evidence in the Indonesian Legal System

Research on the use of digital forensic evidence in the process of investigating criminal acts, especially those carried out by the Police with their legal structure capabilities, aims to find out and analyze the extent to which evidence produced through digital forensics plays an important role in the process of proving criminal acts, the results of which become electronic evidence that has the strength of evidence in the applicable criminal procedural law. The type of research is normative (doctrinal), namely research that views law as building a system of norms. Digital forensics is an important instrument that helps investigators carry out research and investigation tasks, and it is an absolute requirement that must be met so that electronic documents can be used as evidence from the start of investigations, inquiries, prosecutions, and trials. The role of digital forensics in uncovering a criminal case starts from the preliminary stage, where investigators begin to collect evidence and electronic evidence assisted by one or more digital forensic experts. Digital forensics from the investigation stage is used to find material truth in every process of proving a criminal act.

Plea Bargaining as a Reform in Criminal Procedure Law: An Analysis of Article 199 of the Draft Criminal Procedure Code

The criminal justice process in Indonesia is characterized by lengthy proceedings, significant costs, and a growing prison population, highlighting the need for new policies to address these challenges. The adoption of the plea-bargaining concept, prevalent in common law jurisdictions, offers a potential solution for the Indonesian criminal justice system. Article 199 of the Draft Law on Criminal Procedure introduces a similar concept, allowing defendants who admit guilt to crimes punishable by no more than seven years in prison to have their cases transferred to a shorter trial process. This normative juridical research employed both statutory and conceptual analyses to evaluate the relevance of plea bargaining in the Indonesian context. It aims to assess whether the plea bargaining provisions in Article 199 of the Draft Criminal Procedure Code align with the principles of simplicity, speed, and cost-effectiveness, and whether they conform to Pancasila, the foundational ideology of Indonesia.

The Legal Status of Circumstantial Evidence in the Context of Criminal Cases in Indonesia

In practice, there are several instances of criminal decisions that are not in accordance with the law. In such instances, the judge interprets the law or legal findings based on circumstantial evidence. As a result, the action taken does not achieve the highest degree of justice and legal certainty in a decision. This is because the decision is not based on the minimum requirements of two pieces of evidence that must be met in terms of evidence to impose a sentence. The objective of this research was to analyze the legal status of circumstantial evidence in the context of criminal cases. Our research findings indicate that the philosophy of circumstantial evidence, as it pertains to criminal procedural law, represents a form of evidence that can be considered by judges in relation to the absence of facts that are not directly visible by eyewitnesses. This evidence is intended to provide a comprehensive depiction of the truth of an event, thereby facilitating the acceptance of a reasonable account of events. Establishing circumstantial evidence is distinct from providing instructions, however. To do so, one must obtain clues from facts presented at trial in the form of witness statements, letters and statements of the accused. The ius constituendum application of circumstantial evidence in the process of proving a criminal case is to provide the judge with the authority to utilise circumstantial evidence in the process of proving a crime as an additional legal means of evidence in sentencing. The role of indirect evidence in the imposition of criminal penalties is a doctrine that is confined to be the domain of legal experts.

Ensuring the legal interests of a person in pre-trial criminal proceedings

In the science of the criminal process, there is no unified vision of the essence of a person’s legitimate interests and guarantees of their provision at the stage of pre-trial investigation. Ensuring a legitimate interest at the stage of pre-trial criminal proceedings is not supported by the performance of duties by other participants. An effective guarantee of the realization of a person’s legitimate interests in pre-trial criminal proceedings should be the real possibility of going to court to challenge the decisions, actions or inaction of law enforcement agencies. The presence of such a legal possibility should stimulate law enforcement agencies to take active actions aimed at satisfying legitimate interests. The criminal procedural law must provide for a mechanism to protect the legal interests of a person, both those that directly follow from the criminal procedural norms and those that are not provided for by the criminal procedural law, but are consistent with the spirit and principles of criminal justice. It can be argued that the legitimate interests of a person in pre-trial criminal proceedings are general legal and not prohibited aspirations of a person. Ensuring the legal interests of a person at the pre-trial stage of the criminal process should be ensured by a general obligation (general obligation) to take active actions by state bodies aimed at ensuring legal interests. The guarantee of the realization of the legal interests of a person in pre-trial criminal proceedings is the legal regulation in the criminal procedural law of the procedure for judicial appeal of decisions, actions or inaction of law enforcement bodies (including pre-trial investigation bodies) that prevent the realization of general legal aspirations of a person at the pre-trial stage of criminal proceedings. The need for regulatory regulation of the procedure for judicial protection of legitimate interests is determined by their legal nature, which provides for regularities in the actions of the participants of criminal proceedings of an undefined nature.

Separate elements of the event of a criminal offense to be ascertained at the initial stage of the investigation of murders committed with particular cruelty

In the article, on the basis of a systematic analysis of the norms of current criminal, civil and criminal procedural legislation, scientific sources on criminology, criminal and criminal procedural law, forensic medicine and other sciences, as well as on the basis of a systematic analysis of investigative and judicial practice of investigation and trial of criminal proceedings on murders committed with extreme cruelty, the circumstances to be proven in the above-mentioned criminal proceedings, as well as circumstances related to the event of a criminal offense, which must be clarified at the initial stage of the investigation of murders with extreme cruelty, are determined. It was determined that such circumstances, in addition to the method of committing the crime in the broad sense, which includes the preparation, mechanism and concealment of the traces of the crime, are the time of the commission of the crime, its duration, the place of the commission of the crime, circumstances indicating that the criminal was aware that he inflicts special physical suffering on the victim by inflicting a large number of bodily injuries, torture, mutilation, torture, including using fire, electricity, acid, alkali, radioactive substances, poison that causes excruciating pain, etc.), and must also be ascertained and proven fact of awareness by the guilty person (criminal) that he is causing mental or moral suffering to the victim. In the article, an attempt was made to reveal the meaning of the above-mentioned concepts, namely, a large number of bodily injuries, torture, mutilation, torture, mental and moral suffering. Proposed procedural measures (investigative (research) actions, forensic examinations), and forensic methods that should be carried out at the initial stage of the investigation and as a result of which these circumstances can be clarified with a high degree of probability. It was concluded that since we are talking about a particularly serious crime, all the qualifying features of this act should be clearly defined and established in the law on criminal responsibility.

The subject of proof in the criminal process of Ukraine

The article claims that the process of proving is the main content of criminal procedural activity. It is thanks to this process that the tasks of criminal procedure are fulfilled and the objective truth is established in criminal justice. The subject of proof in criminal proceedings is one of the key categories related to the process of proving. Establishing all the circumstances that characterize such a subject contribute to a full pre-trial investigation and trial. A conclusion has been formulated, according to which evidence in a criminal procedure should be understood as the activity of the subjects of criminal justice in relation to the collection, verification and evaluation of evidence and their procedural sources, as well as the formulation of a certain thesis (accusatory or exculpatory) on this basis and the submission of arguments in support of it. This activity is retrospective in nature. The purpose of cognition in criminal proceedings is to establish a certain set of circumstances of a criminal offense, which have been called “the subject of proof in a criminal procedure.” The list of such circumstances is defined in Art. 91 of the Code of Criminal Procedure (CCP) of Ukraine. The subject of proof in a criminal proceeding is the list of circumstances provided for by the Criminal Procedure Law of Ukraine, which must be established in each criminal proceeding and ensure the adoption of a corresponding procedural decision. The list of circumstances to be ascertained in criminal proceedings regarding criminal offenses committed by minors should be considered as a supplementary, clarifying subject of proof in relation to the general subject of proof. Circumstances to be established during criminal proceedings regarding the application of coercive measures of an breeding nature in relation to minors who have not reached the age of criminal responsibility, and regarding the use of coercive measures of a medical nature constitute a separate, independent subject of proof in a criminal process, determined by the characteristics of a person who has committed a socially-dangerous act, and the specifics of the criminal procedural form.

Ensuring that the prosecutor implements the principle of legality during the notification of suspicion

The article establishes that in criminal proceedings granting a person the procedural status of a suspect in committing a criminal offense is an important decision that requires the validity of the suspicion and control over the legality of its adoption. The problematic issues of ensuring the implementation of the principle of legality by the prosecutor during the notification of suspicion have been studied. It has been established that the prosecutor’s provision of legality during the notification of suspicion consists in: strict observance of the procedure established by law; ensuring the legal subject conducting the criminal process and reporting the suspicion; in getting to know the rights of the participants in the proceedings and ensuring their realization of these rights; as well as compliance with legal requirements regarding procedural terms. It was established that criminal prosecution before the decision to notify a person of suspicion is a direct violation of the implementation of the principle of legality, since the person has not acquired the criminal procedural status of a participant, which he actually is at the time of the proceedings, not in form, but in essence, according to the criminal procedural law. It was noted that a person who has not acquired the legal status of a participant in criminal proceedings cannot exercise his «legal» rights, in particular the fundamental right to defense. Attention is drawn to the fact that a general violation of the principle of the legality of criminal proceedings, with the acquisition of relevant grounds and notification to the person of suspicion, the criminal process must comply with another procedure established by law, which is manifested in a clear outline of the legal position of the defense party in criminal proceedings, counting of established procedural terms, etc. It was concluded that the prosecutor, who is the procedural head in a specific criminal proceeding, can supervise the observance of laws during the notification of suspicion, in the form of: a preliminary prosecutor’s counter, by approving the notification of suspicion, revision of previous procedural decisions of the investigator, inquirer, checking at the same time, the validity of the notification of suspicion; personal making of legal decisions at the pre-trial investigation, in particular in the form of notification of suspicion personally by the prosecutor. It was proposed and argued that it would be appropriate to set the time limit for preparation for the defense after notification of suspicion at least 14 days before the completion of the pre-trial investigation in one of the forms provided for by the Criminal Procedure Code of Ukraine.