Criminal Procedural Relations 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.

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.

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.

THE SPECIALIST AND APPLICABLE REQUIREMENTS IN THE CRIMINAL-PROCEDURAL LEGISLATION OF THE REPUBLIC OF UZBEKISTAN

It is perceptible that a number of requirements are stipulated regarding the specialist in the process of proof by virtue of analyzing the Criminal-procedural Code of the Republic of Uzbekistan. The disinterestedness and worthwhile elements of the profession in performing the tasks assigned to the specialists as indispensable part of these requirements are vitally important in the criminal procedural relations. Ultimately, the lack of special knowledge of the specialists involved in the case shows theirincompetence for their profession and inhibits them to participate in the proceeding.

ИСТОРИКО-ПРАВОВОЙ АНАЛИЗ ИСТОЧНИКОВ УГОЛОВНО-ПРОЦЕССУАЛЬНОГО ПРАВА ДРЕВНЕЙ РУСИ В X–XI ВВ.

The role of legal custom and princely laws in regulating criminal law relations at the stage of the emergence of Russian statehood is shown, the main scientific approaches to the «Russian Law» as a regulator of criminal procedural relations and the foundations of the subsequent written code of laws are analyzed. The influence of church statutes of the X–XI centuries on the further development of criminal justice in the Russian state is shown, articles of Russian Truth containing elements of modern criminal procedure are analyzed. The authors analyze the articles of the Pskov Court charter devoted to the types of courts and judicial evidence. Russian «Russian Law» has been concluded about the significance of these normative legal acts in the history of criminal procedure law of Ancient Russia, that the «Russian Law» contained norms regulating criminal procedural relations and became the legal basis for the compilation of the Russian Truth. Russian Truth, the key source of the criminal procedure law of Russia in the XI century, 
 was formed as a result of the systematization of legal customs, the norms of the «Russian Law», and the reception of some norms of byzantine and ecclesiastical law.

Legal certainty: interrelation of criminal law and criminal procedure aspects

The article is devoted to the study of the problem of establishing the relationship between the criminal law and criminal procedure aspects of legal certainty. The author establishes that legal certainty within criminal justice is a dichotomous category, since it combines the requirements (rules) of criminal law and criminal procedure, and the category of legal certainty itself is a polymorphic construction in terms of content and essence, which gives grounds to consider legal certainty as a) a property of a rule of law; b) a principle of law; c) a requirement for a court decision; d) consequences (properties) of the legal force of a court decision; e) grounds for reversal of a court decision; f) a subjective right of a person to know what he or she is accused or suspected of; g) a criterion for realization of the legal status of participants to criminal law and criminal procedural relations. The criminal law manifestation of legal certainty relates exclusively to the properties of criminal law provisions and the relevant principle of criminal law, but it has a formative and guiding effect on criminal procedural manifestations of the principle of legal certainty and is interrelated with them. The author distinguishes three levels of legal certainty as a universal legal category of criminal law and criminal procedure law: normative (legislative), law enforcement and scientific (doctrinal). It is stated that legal certainty is not only a guarantee for an individual against arbitrary actions of the State within the criminal justice system, but also an opportunity for him/her to clarify his/her legal status within criminal law and criminal procedure relations, and to expect only predictable criminal law and criminal procedure consequences of actions of bodies and persons authorized by the State to apply criminal law response measures. If, as a result of legal uncertainty of criminal law provisions, a person does not understand the consequences of his/her behavior within criminal law relations, such a person will not be able to timely and adequately correct his/her behavior in order to change his/her legal status in accordance with the requirements of criminal law provisions. As a result, the law on criminal liability itself loses its regulatory value

General Description Of The Role And Place Of The New Model Of Police Inquiry In The System Of Pre-Trial Proceedings

This article examined the general characteristics of the role and place of the new model of police inquiry in the system of pre-trial proceedings under the new Code of Criminal Procedure of the Republic of Armenia. When studying the chosen topic, the legislative features of a police investigation were analyzed. This article also presents the experience of pre-trial proceedings of foreign states of the Romano-Germanic and Anglo-Saxon legal families, and also, to a certain extent, carried out a comparative legal analysis of criminal procedural policy regarding the functioning and structure of the above institution. It should be noted that the new model of police inquiry, its significance in criminal procedural relations, as well as the reasons for the partial incorporation of covert investigative actions into criminal procedural legislation have been studied in general terms. The relevance of the chosen topic lies in the lack of a unified approach to understanding the new model of police investigation and the unexplored nature of the above-mentioned institution. The purpose of the study of this topic is to study the system and limits of police inquiry in criminal proceedings, and in particular, to study the general characteristics of the model of police inquiry, to reveal the concept and essence of “police inquiry”, to determine the bodies that are authorized to carry out police inquiry, to establish methods for conducting police inquiry in the process preliminary investigation, as well as identifying other auxiliary functions of the police. In this article, when studying the chosen topic, the comparative legal method, deductive and inductive methods, as well as analysis and abstraction are used. As a result of studying the topic, we can come to the conclusion that the police inquiry is no longer an independent form of preliminary investigation, but carries out an “auxiliary” function in the process of preliminary investigation, the content of which is disclosed in this article.

Защита прав потерпевшего: методологические основы института возмещения вреда

In the criminal process, the methodology of legal regulation is determined by the appointment of state bodies and officials called upon to protect victims from crimes, as well as citizens from illegal and unjustified criminal prosecution. However, as the long-term practice of implementing the current mechanism of legal regulation of criminal procedural relations through the institution of compensation for harm to victims shows, the level of protection of these persons remains low. The origins of this problem are seen in the absence of a unified theoretical model and the quality of legislative technique. As a result of the conducted research, positive transformations in the criminal process of recent years have been identified – the figure of the victim of a crime is gradually becoming a key one in the context of the amendments made to the Criminal Procedure Code of the Russian Federation in December 2018. But the improvement of the criminal procedure mechanism should not be a point, but a systematic reform of the goals, objectives and principles of all criminal procedure activities with an emphasis on the compensatory mechanism of legal regulation.

Explanation of an Expert in Court

The article is devoted to the problem of the impossibility of constructing criminal procedural relations in a judicial interrogation of an expert. In the judicial interrogation of an expert, there is a subjective right of authorized persons to ask questions to an expert (to interrogate an expert) and a subjective right of an expert to answer questions (to testify). Forensic interrogation of an expert can be replaced by an expert’s explanation, which involves communication between the expert and the participants in the judicial investigation in the form of a dialogue.

Procedural status of participants in criminal proceedings as a means of securing rights and legitimate interests

The concept of procedural status of participants in criminal proceedings is considered. According to the Criminal Code of Ukraine, participants in criminal proceedings are parties to criminal proceedings, persons who take part in criminal proceedings. A comparison of this definition with specific norms of the Criminal Procedure Code of Ukraine, which refer to participants in criminal proceedings, shows that the law includes not only persons involved in criminal proceedings, but also the subjects of criminal procedural activity themselves, i.e. officials and bodies that conduct (investigate) criminal proceedings, etc.
 The procedure for recognizing a person as a subject of criminal procedural relations established by law is of great importance for ensuring the legality of criminal proceedings and allows to properly protect the interests of persons involved in this field of activity.
 Ambiguity of understanding and extended interpretation of the reasons for involvement in criminal proceedings, failure to establish a clear procedure for acquiring the relevant status violate the orderliness of procedural activities, which thus reflects on the legitimate interests of the participants in criminal proceedings. Therefore, a formal approach to determining the circle of participants in criminal proceedings should be followed.
 This approach is able to give such positive results as certainty, stability of the procedural provision, predictability of the behavior of participants in criminal proceedings and the results of their actions, as well as to create a logical and consistent system of mechanisms for the exercise, protection and protection of their rights and legitimate interests.

Legal status of subjects of public relations in the procedural law of the future of Azerbaijan

The relevance of the research lies in the fact that a clear definition of the legal status of procedural relations subjects of a public nature will contribute to an effective activity in the field of law enforcement and law enforcement activities in the future. The purpose of the study is to analyse the legal regulation of the status of the specified subjects in criminal and administrative proceedings. In accordance with the set goal, the task of the research is to determine the structure and content of the legal status of the subjects of procedural relations of a public nature, to analyse the current legislation of the Republic of Azerbaijan, which regulates their legal status, as well as to clarify and distinguish its specifics in criminal and administrative processes. When conducting the research, general and special methods of scientific knowledge were used. The result of the research was the substantiation of the proposition that the function of establishing law, stabilising social relations, is most clearly expressed in relation to the procedural status of various subjects: establishing the basic rights and freedoms of a person and citizen, the competence of bodies and officials, the legal personality of individuals and legal entities. The conclusion of the study was the argumentation of the position that the advantage of procedural legal personality in administrative and criminal proceedings, compared to the status of other subjects of procedural relations of a public nature, is the strict enshrining in the legislation of the procedural rights of participants in administrative-procedural relations and criminal-procedural relations and possibilities of their implementation. When conducting the research, the ScienceDirect search tool was used, with the help of scientific articles relevant to the topic of the research were selected, which were analysed during its implementation.

On the Question of the Specifics of the Investigative Actions with Minors in the Investigation of Crimes

The object of the study is the criminal procedural relations that develop during the conduct of investigative actions against minors during the preliminary investigation. The subject of the study is the norms of the Constitution of the Russian Federation, the Code of Criminal Procedure of the Russian Federation, other laws regulating relations related to the production of investigative actions involving minors, as well as theoretical foundations and materials of investigative and judicial practice. The procedural features of the interrogation, confrontation, identification, verification of testimony on the spot and other investigative actions with the participation of minors are considered. At the same time, special attention is paid to the use of video recording of their conduct and the involvement of a psychologist or teacher to participate in the investigative action against a minor. The authors note that Federal Law No. 432-FZ of December 28, 2013 has significantly expanded the range of investigative actions involving minors, during which it is necessary to comply with special legal regulations that protect the rights and interests of these persons. The conducted research made it possible to identify some shortcomings in the regulation of investigative actions against minors. The authors propose ways to eliminate them: video filming as a means of fixation should be carried out during all investigative actions involving minors; situations of participation of a psychologist or (and) a teacher, and in some cases a psychiatrist in the production of investigative actions with this category of persons are determined.

УГОЛОВНО-ПРОЦЕССУАЛЬНОЕ ПОЛОЖЕНИЕ ЮРИДИЧЕСКОГО ЛИЦА В РЕСПУБЛИКЕ АРМЕНИЯ

The article draws attention to the increased relevance of the study of the issues of criminal liability of legal entities, which has become a novelty of the Armenian criminal and criminal procedure legislation. The relevance of the topic of this article is due to the fact that with the adoption of the new Criminal Procedure Code of the Republic of Armenia, adopted by the National Assembly on June 30, 2021, and entered into legal force on July 1, 2022, a legal entity is considered as a full-fledged subject of criminal procedure relations by the defense. Present article contains a theoretical analysis of some issues related to the criminal procedural status of a legal entity. The article discusses the place of a legal entity in criminal procedural legal relations, its criminal procedural status, procedural responsibility. Such a category as the procedural legal personality of a legal entity as a participant in criminal proceedings is analyzed, their possible significance for the implementation of the procedural status is explored.

К. Маркс о собственной форме и содержании в правоотношениях

The article shows the importance of legal relations, based on the work of K. Marx “Debate on the order to steal a forest”, in which he clearly raised the question of the independence of legal relations, whether it be criminal law, or criminal procedure, or any other relationship... Any legal relationship has only its own form and content, inextricably dialectically interconnected. This is the true scientific nature of legal relations. Therefore, one legal relationship cannot be made the content of other relationships. For example, it is impossible to squeeze the Chinese procedural procedure into the French procedure without distorting its true essence, while Marx sharply criticizes the position of the Landtag deputies who tried to make the selfish private interest of forest owners the property of state criminal law and criminal procedural relations. According to Marx: “a form is devoid of any value if it is not a form of content”. Hence, the criminal process cannot be considered as a form of criminal law, since then the content of the criminal procedural legal relationship changes, since inevitably then the accused will be identified with the guilty (criminal), and the measures of procedural coercion will be identified with the measures of criminal punishment, and the presumption of innocence will be replaced on the presumption of guilt. In the same way, it is impossible to make operational-search relations the content of criminal-procedural relations and thereby erase the differences between criminal-procedural evidence and operational-search data. At the same time, the very institution of interaction between the investigator and the body of inquiry, carrying out operational-search activities, is important.

Role of legal encouragement in improving the effectiveness of criminal proceedings

The article examines the importance of the institution of legal encouragement in improving the effectiveness of criminal procedural activities as an effective legal instrument. Analyzing the essence of efficiency in criminal proceedings, the author notes that the interest of society and the individual stems from social needs based on basic values, including those transmitted by the state. One of the value orientations can be considered the request of society for the effective implementation by the state of its public administrative function, ensuring the protection of the rights and freedoms of every citizen involved in criminal proceedings. The author comes to the conclusion that each of the participants in the criminal procedural relations has its own need arising from the legitimate interest provided for by the criminal procedural legislation. In this case, the institution of legal encouragement is one of the universal ways to achieve mutual benefit and efficiency of criminal procedural activities.

IMPLEMENTATION OF THE PRINCIPLES OF CRIMINAL PROCEDURE THROUGH THE MORAL PRINCIPLES OF THE POWERS OF THE INVESTIGATOR

In order to solve a crime and ensure a fair punishment of the guilty, the investigator is endowed with extensive powers, including the restriction of fundamental human and civil rights and freedoms, in connection with which the moral principles in the activities of this subject are of great importance. The figure of the investigator in this case should not only be procedurally independent, but also, in a sense, personify an impartial and fair pre-trial trial in the case. The latter directly depends on the availability and adherence to the moral principles of the powers of the investigator as a subject of criminal procedural relations. The effectiveness of the investigative bodies depends, among other things, on the implementation and observance of the principles of criminal procedure, since through their implementation the basic guarantees, human rights and freedoms are respected, and a fair trial is carried out. In the process of developing theoretical and practical provisions, setting goals and solving these tasks in order to obtain reliable and scientifically sound results, the author was guided by the general scientific dialectical method of cognition, as well as private scientific research methods: comparative legal, logical, system-structural, concrete sociological, statistical, etc. The article attempts to analyze the content of the concept of the principles of criminal procedure through the moral principles of the powers of investigators, as well as the analysis of certain gaps and problems existing in this area. The purpose of the study has been achieved, and the results of the article can be used in the practical activities of investigators, the development of methodological recommendations for investigative bodies, as well as for further study of this topic.

ВИДИ КРИМІНАЛЬНИХ ПРОЦЕСУАЛЬНИХ ВІДНОСИН НА ДОСУДОВОМУ РОЗСЛІДУВАННІ... МІЖ СЛІДЧИМ ТА ІНШИМИ СУБ’ЄКТАМИ КРИМІНАЛЬНОГО ПРОВАДЖЕННЯ

The article is devoted to the study of problematic issues related to the types of criminal procedural relations at the pre-trial investigation stage between an investigator and other parties to criminal proceedings. The purpose of the article is to classify the types of criminal procedural relations at the pre-trial investigation stage between an investigator and other parties to criminal proceedings. Based on a systematic and comparative analysis of the legal provisions of the current CPC of Ukraine and the by-laws regulating pre-trial investigation, the author proves that at the pre-trial investigation stage, there is a variety of criminal procedural relations between its subjects. The nature of these legal relations is different. Some of these legal relations have only their own peculiarities and specific features, which are determined by the legal status of their subjects, procedural functions performed by certain subjects in criminal proceedings, their procedural interests, stages of pre-trial investigation, etc. This diversity of criminal procedural legal relations at the pre-trial investigation stage allows classifying these relations according to certain criteria with a view to improving the criminal procedural status of their subjects, and to enhance the efficiency of pre-trial investigation and strengthening criminal procedural guarantees of participants to criminal proceedings in achieving the goals and fulfilling the tasks of criminal proceedings. The author substantiates that based on the results of the analysis of doctrinal approaches to the classification of criminal procedural relations at the pre-trial investigation stage according to such criteria as: the task of criminal proceedings, procedural interest of criminal proceedings subjects, procedural functions of criminal proceedings subjects; sources of regulation of criminal procedural relations, content of criminal procedural relations, the most productive for studying the problems of procedural status of investigators and enhancing. The author offers her own classification of criminal procedural relations at the pre-trial investigation between the investigator and other subjects of criminal proceedings.

Distinction Between Civil, Criminal and Criminal Procedural Relations

Distinction Between Civil, Criminal and Criminal Procedural Relations

АНАЛИЗ ФОРМИРОВАНИЯ И РАЗВИТИЯ СОВРЕМЕННЫХ НАПРАВЛЕНИЙ КРИМИНАЛИСТИЧЕСКОЙ МЕТОДИКИ РАССЛЕДОВАНИЯ ПРЕСТУПЛЕНИЙ ПРОТИВ ПОЛОВОЙ НЕПРИКОСНОВЕННОСТИ НЕСОВЕРШЕННОЛЕТНИХ

The article is devoted to modern trends in the forensic methods of investigating crimes against the sexual inviolability of minors. Statistics show that most of these crimes are committed at home and by people from close associates. The author identifies the reasons for the complexity of the investigation of crimes against the sexual inviolability of minors. In connection with the “natural aging” of forensic methods of investigating crimes, the formation and development of new modern directions is required, taking into account the specifics of crimes against the sexual inviolability of minors. In particular, the necessity of developing a unified methodology for the investigation of such crimes is substantiated. The achievements of forensic science, which are a reflection of the dynamics of criminal law and criminal procedural relations, can serve as a basis. The analysis made it possible to conclude that the modern forensic methodology for investigating crimes against the sexual inviolability of minors has not yet been fully formed. The digital age is changing the behavior of children and possibly increasing their vulnerability. The emergence of new forms of violence necessitates further detailing of the private methodology for investigating crimes against the sexual inviolability of minors. In particular, cases of committing crimes of this category using the Internet have become more frequent (Articles 121, 124 of the Criminal Code of the Republic of Kazakhstan). And here international cooperation is required to develop a common for all appropriate terminology and description of the constituent elements of various forms of these acts, as well as their legal status. At the national level, the development of a national computer investigation strategy is required. The conclusion is made about the need for further development and detailing of modern directions of forensic methods of investigation of the considered group of crimes, in particular, digital forensics.

The legal regulation of the preliminary investigation bоdies activities according to UPK Uzbek SSR 1929

At the present stage of development of the criminal procedural legislation of the Republic of Uzbekistan, many legal institutions that have a long history of doctrinal development have received normative consolidation. Among them is the institution of participants leading the criminal process at the stage of pre-trial investigation. In the history of Uzbekistan, the activities of these subjects of the criminal process were regulated by numerous normative legal acts, including codified ones. The first Criminal Procedure Code of the Uzbek SSR was adopted in 1926. Soon the Uzbek SSR Criminal Procedure Code of 1929 entered into force. In comparative legal terms, the latter was significantly inferior to the previous one in terms of the degree of detail in the regulation of criminal procedural relations with the participation of pre-trial investigation bodies. Analysis of the content of the legal norms of the Criminal Procedure Code of 1929, regulating the activities of these bodies, allows us to identify features that, from the standpoint of the modern vision of the optimal model of the Criminal Procedure Code of Uzbekistan, are assessed as shortcomings in the legal regulation of the relevant public relations. As such, we can name the following: the CPC does not contain norms defining the sources of criminal procedural law; the code does not provide for a separate chapter devoted exclusively to investigative actions, a detailed description of their procedural form; there is no clear delineation of the competence of the bodies of inquiry and the investigator; the investigator is by law entrusted with supervisory functions that are not characteristic of him in relation to the bodies of inquiry; the Criminal Procedure Code does not include a norm prohibiting persons conducting a preliminary investigation from obtaining evidence by violence, threats, etc.; The Criminal Procedure Code determined the existence of sufficient data, and not evidence, as the basis for the accusation. After being charged, the person acquired the status of a defendant, not an accused; the application of preventive measures, including detention, was carried out by the investigator independently, without the sanction of the prosecutor, which testified to the absence of guarantees of the observance of the right to personal inviolability.