Criminal Procedure Legislation Research Articles

The importance of electronic evidence in criminal proceedings

The development of digital technologies contributes to the change of criminal procedural relations and the emergence of electronic evidence used in the proof process. The author’s position is formulated based on the results of the analysis of theoretical approaches in criminal procedure science to the definition of the concept of “electronic evidence”. Arguments are presented confirming the need to use electronic evidence in criminal proceedings in order to overcome the risks associated with the realization of the rights and legitimate interests of participants in a criminal case, the preservation of evidence in case of their referral to the place of investigation, destruction or modification in case of counteraction to the investigation. The article reveals the importance of electronic evidence in criminal proceedings. Based on the analysis of the norms of criminal procedure legislation and law enforcement practice, the factors that determine the increasing importance of electronic evidence in criminal proceedings are substantiated.

When will the courts recognize the independence of the grounds for compensation for damage caused by the illegal use of procedural for in Part 3 of Article 133 of the Code of Criminal Procedure of the Russian Federation?

The uncertainty of the criminal procedure legislation regarding the recognition of the right to compensation for harm for a certain category of persons gives rise to the relevance of the study of this issue. Based on the provisions of part 3 of Article 133, Article 139 of the Criminal Procedure Code of the Russian Federation, an analysis of the normative complex has been carried out with the help of which, in judicial practice, compensation for harm to persons caused by the unlawful application of procedural coercion measures to them should be ensured. Special attention is paid to court cases, the content of which reveals the problems of establishing the grounds for compensation for damage caused by the illegal use of procedural coercion measures. It is concluded that only participants in criminal proceedings, criminal prosecution against whom has been terminated on rehabilitative grounds, or illegally subjected to compulsory medical measures, as well as other persons illegally subjected to procedural coercion measures, have the right to compensation for harm in rehabilitation. Thus, the list of persons eligible for rehabilitation is definite and not subject to broad interpretation.

Russian Criminal Procedure to Protect the Rights and Legitimate Interests of Entrepreneurs

The article discusses changes in Russian criminal procedural legislation related to criminal proceedings on crimes in the economic sphere committed by entrepreneurs in connection with their entrepreneurial or other economic activities. It is noted that these changes are due to the general policy of the state aimed at increasing the economic activity of the population and accelerated economic development of the country as a whole. In this regard, the author provides critical statements by the country’s leaders regarding the current law enforcement practices. The article consistently sets out individual institutions of criminal procedural law affected by these changes. Thus, the features of initiating criminal cases for certain crimes in the economic sphere classified as cases of private-public prosecution are described. The general rules for conducting investigative actions, including those related to the seizure of electronic storage media in cases of this category, are described. Considerable attention is paid to the selection of preventive measures against entrepreneurs and general restrictions on the use of detention against them. Special grounds for termination of criminal prosecution of entrepreneurs in connection with their compensation for damage are described. The author notes that the process of improving legislation in this area is far from complete and will continue depending on the needs of practice.

On the issue of strengthening the supremacy of State power in criminal proceedings

The article raise the question of the need to strengthen the supremacy of state power in criminal proceedings. The analysis of law enforcement practice is given and attention is drawn to the fact that trust in state bodies and officials conducting criminal proceedings is falling. It is proved that the supremacy of state power in criminal proceedings is within the legal norms of the Constitution, criminal and criminal procedure legislation of the Russian Federation. It is concluded that the arbitrariness of state bodies and officials, going beyond these norms is a violation of the rule of law both at the legislative and law enforcement levels, undermines confidence in state bodies conducting criminal proceedings, in state power as a whole, and, accordingly, weakens the internal sovereignty of the state. It is argued that the basis for strengthening the supremacy of State power in the field of criminal justice is to strengthen social justice, ensure social solidarity, the legality of production and increase public confidence in state power. It is substantiated that a new version of the CPC is needed, which will be aimed at improving the effectiveness of criminal proceedings, including by simplifying it while maintaining the existing procedural guarantees for the protection of the subjective rights and legitimate interests of participants in criminal proceedings.

The use of a polygraph in the investigation of criminal offences: problems of tactics and legal regulation

The use of a polygraph in the investigation of criminal offences: problems of tactics and legal regulation

Criminal law and procedural characteristics of war crimes in Ukraine (after the full-scale invasion of the russian federation into Ukraine)

Criminal law and procedural characteristics of war crimes in Ukraine (after the full-scale invasion of the russian federation into Ukraine)

Analisis Dasar Pertimbangan Hakim Praperadilan pada Perkara Penetapan Tersangka Tindak Pidana Korupsi Dana Desa

Ensuring the preservation of human rights and the coherence of law enforcement's tasks are predicated on the pre-trial provisions of the criminal procedure legislation. As part of its mission to ensure that the criminal justice system is fair, the pretrial facility has put safeguards in place to monitor the effectiveness with which police officers carry out their tasks. All eyes are on the judge's evaluation of the law's applicability in light of pre-trial judgment 4/Pid.Pra/2022/PN.Kla. Normative and empirical theories of law are both used in this study's methodology. Primary data collected from the field and secondary data collected from various relevant legal sources are both used in this study. The study team included a law school professor, a prosecutor from the South Lampung District Prosecutor's office, and a judge from the Kalianda District Court. The court considered the following factors in rendering pretrial decision 4/Pid.Pra/2022/PN.Kla, in accordance with the study's conclusions: Instead of using the seizure reports and records that initially connected the suspect to the South Lampung District Prosecutor's Office ( Respondent) as evidence, the judgment was based on legal, social, and philosophical factors. Beyond that, the applicant was not suspected of being the subject of an official audit by the State Financial Loss Calculation Audit (PKKN). In order to establish a monetary loss to the state, the investigator must explicitly recognize a critical component that forms the foundation or risk of the inquiry. All of the applicant's pretrial requests were therefore granted by the court. The officials tasked with carrying out the pretrial decision's enforcement have finished their task. Kla is based on the multi-stage execution of criminal legislation.

Юридические гарантии реализации принципа равенства граждан перед законом и судом в уголовном судопроизводстве Российской Федерации

The article delves into the analysis of the constitutional principle of equality of all before the law and the court. The relevance of this topic is due to the problem of contradictions that have arisen between the normative and law enforcement position in implementing the principle of equality. In this regard, the author considers it para-mount to address the issue of creating special guarantees that ensure the foundational idea of equality for all before the law and court. It seems that the development of a system of guarantees for the implementation of the analyzed constitutional principle in the provisions of the current Criminal Procedural Legislation of the Rus-sian Federation will serve as a support for ensuring access to justice in criminal cases. It’s worth mentioning that the principle under consideration was reflected and actively applied in ensuring the rights of participants in criminal proceedings, according to the edition of the Criminal Procedure Code of the RSFSR. The author exam-ines various approaches to formulating the definition of “guarantees” in terms of implementing the researched principle and provides recommendations to eliminate the existing contradiction between legislation and prac-tice.

On the issue specificity of criminal proceedings concerning minors

The article is devoted to the study of the specifics of criminal proceedings involving minors, in the context of the norms of national legislation and certain scientific works. It has been determined that the special procedural position of children in criminal proceedings is determined by the age peculiarities of these субʼєктів. The actual international standards concerning the procedure of criminal procedural activity in proceedings involving minors are considered. It is noted that at the national level, the specificity of proceedings in cases of minors is represented primarily in the isolation of the legislative regulation of criminal procedural relations with the participation of these individuals, as evidenced by the provisions of Chapter 38 of the Criminal Procedure Code of Ukraine «Criminal proceedings against minors.».
 During the study, the opinions of domestic scientists on the most problematic issues related to the procedural features of criminal proceedings against persons who have not reached the age of majority were analyzed. As a result of a comprehensive analysis of the legal norms of criminal procedural legislation, it was proved that certain procedures and rules of criminal proceedings are adapted specifically to the needs of minors, although their basis are general legal norms. In particular, this fact is evidenced by the dualistic representation of the interests of the juvenile suspect and the accused, the special субʼєктний composition of the participants in criminal proceedings against minors and certain specific aspects both at the stage of pre-trial investigation of juvenile crimes and during subsequent court proceedings. The article also identified a number of problematic aspects related to the implementation of these provisions at the practical level, in the context of which it is proposed to introduce certain additions and changes to the Criminal Procedure Code of Ukraine.
 It is considered necessary to consolidate the special principles of criminal proceedings against minors at the legislative level in the form of a separate article. The conclusion focuses on the fact that despite the existence of certain shortcomings in the legal regulation of proceedings in cases of minors, the criminal procedure legislation of Ukraine is developing in the right direction.

The Influence of Reform of Criminal-Procedure Legislation on the Criminality Rate in Moldova

Criminality is one of the most pressing issues, and it requires solving and developing a democratic state governed by the rule of law. At the same time, the reform implementation process, which could positively influence criminality rate reduction, is complex and long-lasting. The study aims to determine the main trends and principles of reforming criminal-procedure legislation in Moldova and determine its influence on the criminality rate. The study used a legalistic method, statistical method, and descriptive method. Based on the study’s results, the key tendencies and principles of reforming criminal-procedure legislation in Moldova were characterised. The main ones are the harmonisation of legislation with the norms of the European Union and humanisation. Statistical analysis of the criminality rate in Moldova was conducted, and some positive tendencies were outlined. In particular 2023, 7.7 thousand fewer crimes were registered compared to 2019. At the same time, evaluation of the dynamics of the criminality rate indicates the preservation of the high criminality rate. Based on the study’s results, analytical conclusions were presented, and some recommendations concerning further trends in reforming criminal-procedure legislation were formed.

Problems of Exercising the Victim's Right to Familiarize with the Criminal Case file in the Event of Its Termination or Suspension

The victim is a central procedural figure in criminal proceedings, who is involved in criminal proceedings due to the fact his rights are violated by the crime. In connection with the constitutional provisions and provisions of the criminal procedure legislation, the violated rights of the victim are subject to protection. At the same time, according to many proceduralists, including the author of the article, the current provisions of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), are more aimed at protecting the rights of the suspect and the accused, the rights of the victim are residual in comparison with the legal guarantees of the accused, that negatively affects not only the possibility of the victim exercising his legal status, but also in general on the protection of his rights in the field of criminal proceedings. This indicates serious shortcomings in the legislation in the field of protecting the rights of victims, which are systemic. The object of the study is exercising the right of the victim and his/ her representative to familiarize with the criminal case file in the event of its completion, termination, termination or suspension. In this sphere, serious shortcomings of the current legislation were revealed in terms of the formation of the procedure for familiarizing the victim, his representative with the materials of the investigation at the time of the suspension of the criminal case. It was concluded that amendments to the Code of Criminal Procedure of the Russian Federation were necessary to address the shortcomings identified, in a manner similar to chapter 30 of the Code of Criminal Procedure, which provides for the procedure for familiarization with the materials of a criminal case after the preliminary investigation. These amendments will help to safeguard the private interests of the victim and to implement the purpose of criminal proceedings - protection of the rights and legitimate interests of victims of crime.

Resistance and Ways of Overcoming It in the Investigation of Fraud in Utility Services

The author examines the patters of resistance to the investigation of fraud in the sphere of utility services, as well as of identifying and overcoming it. The problem is highly relevant as the scope of resistance to the investigation of such crimes is growing year by year, and new schemes aimed at disorganizing criminal investigations are invented. Contemporary criminal procedure legislation cannot fully resolve the existing problems in the opposition of the preliminary investigation bodies, on the one hand, and the unscrupulous participants of criminal proceedings, on the other. Due to this, the goal of the research is to analyze the specific features of investigating and solving fraud in the sphere of utility services in the situation of resistance to the investigation, as well as to identify the measures of overcoming it through a full reflection of the characteristic features of resistance to the investigation, and studying the practice and problems connected with it. This research is mainly aimed at identifying the typical problem situations in the work of the investigator, at studying and analyzing them from the standpoint of criminal procedure regulation, as well as at presenting the procedural means of neutralizing resistance. The article offers detailed practical recommendations on preventing the situations of resistance to the preliminary investigation, as well as the neutralization of their harmful impact.

Complex Investigative Actions as Effective Means of Proving Elite Crimes

The article examines the investigative instruments approved by the current criminal procedure legislation that ensure an effective counteraction to elite crimes. The author takes into account the fact that elite crimes are committed by people who, due to their access to various resources, strive to impede the investigation and avoid liability. It is also considered that not every investigative combination can answer all the questions formulated during criminal proceedings. The author points out key problematic aspects that the investigator needs to take into consideration when developing and implementing the investigative strategy. The role of expert knowledge in investigative work is stressed. It is concluded that the current criminal procedure legislation requires amendments which should give the investigation more powers.

PROCEDURAL INDEPENDENCE INVESTIGATOR: IDENTIFICATION ISSUES CATEGORICAL AFFILIATION

Issues related to the determination of the place and role of the procedural independence of the investigator do not lose their relevance since its legislative establishment. The most frequently considered subjects of dispute between theorists and practitioners are the problems of legal guarantee of the procedural independence of the investigator. It seems to us that these problems should be resolved on the basis of determining the categorical affiliation of the most controversial concept. This provision is the basis for the legal interpretation of the procedural status of the investigator. The status structurally consists of a set of rights and obligations, as well as powers, the observance and application of which must be ensured by appropriate conditions, namely: procedural guarantees. The nature and content of such guarantees depend on the solution of the question of which procedural and legal category the key concept belongs to - the independence of the investigator in pre-trial proceedings. Along with this, as a result of the strengthening of judicial control carried out in pre-trial proceedings, the strengthening of the role of prosecutorial supervision over the observance of the rule of law in the criminal process, the procedural independence of the investigator has lost a number of its features. This circumstance exacerbated the relevance of the study of the issue of the categorical affiliation of the procedural independence of the investigator and the feasibility of modernizing this independence in the current Code of Criminal Procedure of the Republic of Kazakhstan. In the article, the authors give the Dynamics of the development of the rights and obligations (powers) of the investigator in the norms of the criminal procedure legislation of Kazakhstan according to the Criminal Procedure Code of 1959, 1997, 2014, as well as the Regulation of the procedural independence of the investigator according to the Criminal Procedure Code of the Central Asian countries of the post-Soviet space.

Участники стадии предварительного расследования с неопределенным процессуальным статусом

Introduction. Section II of the CPC of the RF “Participants of criminal proceedings” does not contain a complete list of persons involved in criminal proceedings. The analysis of the norms of criminal procedural legislation and law enforcement practice indicates a rather extensive list of persons actually involved in criminal proceedings, but their procedural status is not clearly defined. In this regard, this article is devoted to the issue of procedural consolidation of the general status of participants of the preliminary investigation stage. The purpose of the research is to propose amendments to the current criminal procedural legislation related to the introduction of a norm regulating the rights and obligations of all persons involved in criminal proceedings at the stage of preliminary investigation, but not specified in Section II of the CPC of the RF. Methods. In order to comprehensively analyse the issues related to the procedural status of persons whose legal status is not fixed in the criminal procedural legislation, general scientific methods were used: formal-logical, generalisation, analysis, description, and the legal-technical as a private-scientific method made it possible to propose changes in the legislation. Results. The author concluded that the participants of criminal proceedings, who do not have a procedural status regulated by law, have equivalent procedural opportunities. This allowed to suggest fixing a norm regulating the rights and obligations of all participants of the stage of preliminary investigation in the CPC RF.

Актуальные проблемы правовой регламентации уголовно-процессуальных сроков

The article is devoted to problematic issues of legal regulation of terms based on the analysis of the normative provisions of modern and Soviet criminal procedure legislation. The author has identified and resolved an intra-industry legal conflict in the criminal procedure law between Article 128 of the Code of Criminal Procedure of the Russian Federation, according to which the terms established in the criminal procedure law are calculated in hours, days, months, and a number of articles of the Code of Criminal Procedure of the Russian Federation, indicating calculation in other units of measurement (minutes, days, years). The law enforcement practice of calculating criminal procedural deadlines was analyzed and ambiguous decisions made by employees of internal affairs bodies were discovered. The main violations of the rights and freedoms of participants in criminal proceedings related to incorrect calculation of deadlines in criminal proceedings are revealed. Such violations lead to delays in criminal proceedings, non-compliance with the principle of legality and the principle of a reasonable period of criminal proceedings. As a result, proposals and recommendations were made to improve the law, consisting in supplementing and amending article 128 Code of Criminal Procedure of the Russian Federation.

Ensuring the Rights of Minors in Criminal Proceedings under the Legislation of Certain Foreign Countries

The paper analyzes the procedural status, as well as the specifics of the legal regulation of the participation of minors in the criminal procedure of the Republic of Azerbaijan, the Republic of Kazakhstan, the Republic of Belarus, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, the Republic of Armenia, Afghanistan, and the Swiss Confederation. The authors analyze the legislatively defined concept of a minor participant in criminal proceedings, the institution of representation, as well as the availability of additional procedural guarantees provided for by criminal procedure legislation. The study found that the period of detention of a minor suspected of committing a crime is not equal to 48 hours in all countries. In particular, the criminal procedure legislation of the Republic of Kazakhstan and the Kyrgyz Republic regulates the detention of this category of persons for a period of no more than 24 hours, which is regarded by the authors as an additional guarantee of the state aimed at protecting the psycho-emotional state of minors during criminal proceedings. The peculiarities of the production of investigative actions involving this category of persons, the peculiarities of their representation, as well as the involvement of a teacher, psychologist and doctor in criminal procedural relations are revealed. The authors recognize the Kazakh model of criminal procedure as an enhanced version of representation, which provides for mandatory representation of minor victims, civil plaintiffs and private prosecutors by both a legal representative and a representative, which can be either a lawyer or another person. The study made it possible to form a generalized idea of the rights and obligations of juvenile participants in criminal proceedings implementing various criminal procedural functions, as well as to express the author’s position on the possibility of introducing into the Russian criminal procedural space the most successful practice of legal regulation of ensuring the rights of minors in criminal proceedings, identified in foreign legislation.

Basic models of building pre-trial investigation as a stage of criminal proceedings in foreign countries

One of the main areas of development of criminal procedure legislation has been, and still is, the differentiation of criminal proceedings into pre­trial and trial stages. The author notes the current trends in national criminal procedure legislation aimed at optimising the procedure for investigating criminal cases and reducing the timeframe for their investigation. The desire for democratisation of the criminal procedure doctrine, strengthening of the guarantees of admissibility of evidence, adversarial process, and changes in the process model itself, along with the fundamental trends in the development of the rule of law, have led to a large-scale adoption of foreign criminal procedure institutions.
 The authors examines the main models of pre­trial investigation as a stage of criminal proceedings in the countries with the Anglo-Saxon (England, USA) and Romano-Germanic (France, Germany, Switzerland) legal systems. Given the materials studied, it is noted that when building models of pre-trial investigation of criminal proceedings, regardless of the system of law used in different States, the legislator focuses on improving two areas: criminal procedure and criminal law. The criminal law criterion is responsible for determining a more moderate sentence by reaching an agreement between the prosecution and defence. The criminal procedural criterion, in turn, defines two more areas of change: the possibility of reducing the procedural timeframe of the proceedings in a certain part or in general; reducing the procedural obligations of persons involved in criminal proceedings. The authors come to the conclusion that it is necessary to modernise the current model of the pre-trial stage of the national criminal procedure with due regard for the positive experience of the most developed Western countries.

Problematic aspects of criminal prosecution for domestic violence

mestic violence.The article is devoted to the analysis of the features of bringing criminal responsibility for committing domestic violence. It has been proven that the establishment of criminal responsibility for committing domestic violence is important for the following reasons: firstly, from the point of view of protecting the rights of victims, since domestic violence is one of the most serious forms of violation of rights, it endangers social values, such behavior can encroach on mental and physical health, honor, dignity, sexual freedom and sexual integrity; secondly, its establishment is part of Ukraine’s international obligations; thirdly, when domestic violence is criminalized, victims are more likely to seek help from law enforcement agencies, they are certain that their complaints will be carefully considered and their rights will be protected; fourth, criminalizing domestic violence helps prevent illegal behavior. At the same time, there are still certain problematic aspects related to bringing criminal responsibility for committing domestic violence. The mentioned actualizes the research of the chosen issue.Special attention is paid to the importance of the Convention of the Council of Europe on the prevention of violence against women and domestic violence and the fight against these phenomena of 11.05.2011 in the establishment of criminal liability for the commission of domestic violence and the changes made to criminal and criminal procedural legislation in connection with bringing the legislation into compliance with the norms of the Convention.The statistical information of appeals regarding domestic violence and criminal proceedings considered by the court was analyzed. The problematic aspects of criminal responsibility for committing domestic violence include: 1.Establishing the systematicity of domestic violence. 2. Inefficient investigation. 3. Attribution of domestic violence to cases of private prosecution.It was concluded that the criminalization of domestic violence is a significant step on the way to European integration, Ukraine’s fulfillment of international obligations, and protection of victims of domestic violence. Taking into account the shortcomings and challenges that have arisen in connection with bringing guilty persons to criminal responsibility, it is proposed to carry out the following measures: firstly, the development of a clear judicial practice in the matter of establishing systematicity as a sign of a criminal offense provided for in Article 126-1 of the Criminal Code of Ukraine, secondly, the formation of a non- discriminatory attitude towards victims among law enforcement officers and, in general, the formationof intolerance to any manifestations of domestic violence in society; third, the exclusion of domestic violence and crimes related to domestic violence from private prosecution cases.

Features of pre-judicial investigation in criminal proceedings in foreign countries

The scientific article is devoted to the definition of certain features of the procedure for conducting a pre-trial investigation in criminal proceedings of foreign countries. The origins of the separation of the «preliminary investigation» as a separate stage of the criminal process are established, as well as the relationship of national legal traditions and types of legal systems with the corresponding standards inherent in the criminal process is traced.
 The analysis of the criminal procedural legislation of the Federal Republic of Germany, the Kingdom of Spain, Great Britain and the French Republic was carried out. The main aspects of the pre-trial investigation and inquiry of the Federal Republic of Germany have been studied. It has been established where criminal proceedings begin, how the interaction between prosecutors and police officers is configured, which is free evidence. Attention is focused on the types of suspicions depending on the degree of probability and functional purpose.
 It was determined that the pre-trial investigation as an independent stage of criminal proceedings, according to the Criminal Procedure Law of Spain, is always the first in the criminal process. However, at the same time, the inquiry is in no way formally separated from the pre-trial investigation. The prosecutor and the investigating judge are united with the common goal of identifying the person who committed the crime and collecting the necessary evidence. The specifics of this stage depending on the type of proceedings are also indicated.
 The characteristic features of criminal proceedings in Great Britain, which do not include the stage of pre-trial investigation at all, are considered. Despite the possibility of the defense party to collect evidence independently, the police's activities are considered extra-procedural, and therefore all the factual data collected by them need to be presented to the magistrate and their further confirmation.
 The position and procedure for starting an investigation under French law is outlined. Her criminal process considers inquiry and preliminary investigation as separate independent stages. First of all, an inquiry is conducted, then a criminal prosecution is initiated, after which a preliminary investigation begins.
 The conclusion of the article emphasizes the need for coordinated work of law enforcement agencies based on the principles of the rule of law, legality and justice. The necessity of applying the experience of foreign countries in improving the pre-trial investigation of Ukraine is argued.