Criminal Procedure Science Research Articles

Legal personality of officials of the prosecution authorities in criminal proceedings

In modern criminal procedural science, there is no doubt that the prosecutor and subordinate prosecution officers are participants in criminal proceedings. Separate disputes arise only when discussing the issue of classifying the prosecutor as a party to the prosecution. At the same time, the role and functions of officials of the prosecution authorities in criminal proceedings are not so obvious and unambiguous. Although Part1 of Article37 of the Code of Criminal Procedure of the Russian Federation assigns the functions of supervision and criminal prosecution to the prosecutor, the heads of the prosecution authorities and the employees subordinate to them do not always pursue these goals, and officials of the prosecution authorities do not always act in the status of a prosecutor or public prosecutor. Analyzing the current norms of criminal procedural legislation and comparing them with the actual legal personality of prosecutorial employees entering into relations with participants in criminal proceedings, the author substantiates the conclusion about the necessity to distinguish between two fundamentally different legal statuses of the prosecution officials. The first one is the official status of the prosecutor as the head of the prosecution authority, allowing him to exercise state powers to supervise the preliminary investigation bodies without accepting the additional procedural status of a participant in legal proceedings. The second one is the criminal procedural status acquired by an official of the prosecution authority, including a prosecutor, for a certain period (stage, phase) of criminal proceedings to carry out one of two procedural functions – criminal prosecution (acquires the status of a public prosecutor) or law enforcement function, protection of the interests of an individual, society and the state (acquires the status of other prosecutor or a prosecutor representative).

The Burden of Reimbursement of Procedural Costs in the Criminal Procedure of the Federal Republic of Germany: Features of Legal Regulation

Introduction: the paper analyzes the provisions on the content of the burden of reimbursement of procedural costs in the criminal procedure of the Federal Republic of Germany (hereinafter referred to as Germany). The institution of procedural costs is the subject of constant, intermittent discussion, operating with empirically unprovable assumptions about the fiscal benefits of the convict’s burden. Taking into account this state of discussion, there is a need to summarize the positive experience of analyzing the distribution of the burden of reimbursement of procedural costs in the criminal procedure of Germany. In this regard, the purpose of the study is to analyze the features of the legal regulation of the institution of procedural costs in the legislation of Germany. The question is raised about the goals and objectives of the limitations of the general principle of reimbursement of procedural costs. Methods: using the comparative law method of scientific research as the main one, the authors trace the trend of theoretical and legislative ideas about the essence of the burden of reimbursement of procedural costs in the criminal procedure of Germany, analyze controversial issues of modern criminal procedure science, and clarify and correct previously formed judgments on the issue of the current state of the institution of procedural costs. Results: based on the conducted research, four limitations have been deduced in the implementation of the “all-or-nothing” principle, which are of particular importance in the criminal procedure of Germany. Conclusions: an analysis of the legal regulation of reimbursement of procedural costs in Germany demonstrates that the “all-or-nothing” principle in the distribution of the burden of costs between the convicted person and the state is ultimately violated with partial conviction, partial acquittal, partial appeal, and coincidence of appeals of the convicted person and the prosecutor.

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 of the introduction of information and telecommunication technologies in criminal proceedings

Assessing the development of Russian criminal procedure science in modern conditions of digitalization, the author seeks to understand what impact the use of information and telecommunication technologies can have on the development of criminal proceedings, ensuring human and civil rights and freedoms. Discussing the threats of the rapid implementation of IT technologies by the criminal community, it is concluded that it is necessary not only to counter criminal encroachments, but also to digitalize criminal procedures through the introduction of electronic criminal proceedings, electronic interaction of subjects of criminal prosecution with individuals and legal entities using cyberspace (messengers, information platforms), and the use of video conferencing. Attention is focused on an integrated approach to the formation of an information society and scientific and technological development, and some aspects of this approach are presented, implemented in the educational and scientific activities of the Moscow Academy of the Investigative Committee named after A.Y. Sukharev. Using the example of the investigator’s exercise of the right to appeal against the prosecutor’s decisions using information and telecommunication technologies, the author’s position on optimizing the timing of the preliminary investigation, procedural control, prosecutorial supervision and taking response measures aimed at protecting the rights of participants in criminal proceedings is argued. Considering legislative measures for the digital transformation of criminal procedure law, the author comes to the conclusion that they are aimed at improving criminal proceedings by introducing a new form of proceedings, simplifying the work of subjects of criminal prosecution, and providing additional guarantees to «non-professional» participants in criminal proceedings by ensuring their access to justice .

Public and private principles as a philosophical, sociological and legal category: concept, development in criminal procedure science

Public and private principles as a philosophical, sociological and legal category: concept, development in criminal procedure science

CONSTITUTIONALITY OF THE INSTITUTION OF CRIMINAL PROCEDURAL PREJUDICE

The authors considered the institution of criminal procedural prejudice and its compliance with the Constitution of the Republic of Kazakhstan, as it has a multidimensional holistic nature, arising in order to establish the circumstances to be proved in criminal proceedings. The study reveals the role, place and content of prejudice in criminal proceedings in Kazakhstan based on the study of law enforcement practice and analysis of legislation of foreign countries. Some problematic situations arising from the application of prejudice in criminal proceedings, as well as issues of implementation of new regulations on prejudice in criminal proceedings, are considered. The authors recognize prejudice as an established means of solving problems arising in the judicial and investigative practice in the legal field. It is noted that despite the noticeable influence of Russian criminal procedure science and legislation on the formation of this institution in Kazakhstan, the domestic legislator and the scientific community maintain a conservative attitude to the institution of prejudice. During the period of active formation of national legislation, the problem of harmoniously designed procedural institutions should not remain unresolved, especially if they contribute to the most effective administration of justice. Recognizing prejudice as a large and in many respects complex theoretical and applied problem of the science of Kazakhstan criminal procedure law, which still remains poorly developed and therefore in need of thorough and comprehensive research. Interestingly, the topic of prejudice is still not included in university law curricula, but in textbooks on criminal procedure (criminal procedure law) it is rarely affected. In the criminal procedure norm itself, which enshrines prejudice, the legislator has not established clear mechanisms for its implementation, and therefore, the authors propose options for harmonizing criminal procedure law, as well as adjusting the provisions of criminal procedure legislation on prejudice, as part of the institute of evidence, taking into account advanced foreign experience.

Directions for the development of the criminal procedure science

The article proves that prohibition, as well as the decriminalisation of pornography, is a resonant social issue. In addition to playing the role of a moral and ethical component of public life, it acts as a lever in the international political arena, and also touches upon some matters of financial income and tax revenue. EU legislation generally regards pornography as a phenomenon that does not pose a social or moral and ethical danger. It is noted that with the expiry of the Law of Ukraine “On Protection of Public Morality”, the legal justification for a complete ban on pornography in Ukraine has also been lost. The logical continuation of the above legal changes is the revision of criminal legislation on pornography with due regard to the main trends of progressive legal development.
 The analysis of the information materials to the BRDO’s initiative draft law stipulates that the absence of a regulatory definition of “debauchery” and “place of debauchery” creates conditions under which criminal liability may be imposed on party organisers, hotel and nightclub owners or creators of pornographic materials. Based on this, the BRDO proposes to exclude Article 302 from the Criminal Code of Ukraine as a whole. The BRDO’s argument is indeed convincing. However, it does not take into account the risks of such crimes and offences as: pimping or involvement of a person in prostitution (Article 303 of the Criminal Code of Ukraine); prostitution (Article 181-1 of the Code of Administrative Offences of Ukraine). In addition, if Article 302 is removed from the Criminal Code of Ukraine, its parts 3 and 4 will also be lost, which may reduce the protection of minors and young persons.
 In view of the above, we believe that it would be appropriate to amend the content of part 1 of Article 302 of the Criminal Code of Ukraine as follows:
 “Article 302. Organisation of activities for places to provide paid sexual services and engage in prostitution
 
 Organisation and receipt of remuneration from the activities of places for the face-to-face provision of paid sexual services and prostitution – …”.

Уголовно-процессуальная функция защитника: ее элементы и наполнение

This article is dedicated to the figure of the defender, particularly, the execution of criminal procedural function laid upon him. For the purpose of the development of criminal procedural science, the author proposes to consider the criminal procedural function of the defender through its content, which depends on criteria, set by the criminal procedural law. The concept of the participant of the criminal proceedings is examined, and the conclusion about the need to amend Article 49 of the Criminal Procedural Code is made.

Artificial Intelligence Technologies in Criminal Procedural Proving

Objective: to summarize and analyze the approaches, established in criminal procedural science, regarding the use of artificial intelligence technologies, to elaborate an author’s approach to the prospects of transformation of criminal procedural proving under the influence of artificial intelligence technologies.Methods: the methodological basis of the research is integrity of general, general scientific and specific legal methods of legal science, including abstract-logical, comparative-legal and prognostic methods.Results: the main areas of using artificial intelligence technologies in the cri mi nal procedure are defined, such as prophylaxis and detection of crimes, organization of preliminary investigation, criminological support of crime investigation, and assessing evidences at pre-trial and trial stages. The author comes to a conclusion that the rather optimistic approach to this issue, established in the science of criminal procedure, significantly outstrips the actually existing artificial intelligence technologies. The main requirements are identified, which the activity of using artificial intelligence in collecting evidences in a criminal case should satisfy. The author pays attention to the problems of using artificial intelligence technologies in conducting expert assessments, requiring an improved methodology of forensic work. The issue is considered of the prospects of transforming the criminal-procedural proving process under introduction of artificial intelligence technologies. A conclusion is substantiated that the assessment of evidences with mathematical algorithms, in which preset values of each evidence quality are used, contradict to the principle of free assessment of evidences in the criminal procedure. The author comes to a conclusion that today there are no sufficient grounds for endowing artificial intelligence with legal personality during proving.Scientific novelty: the work presents an attempt to consider the role of artificial intelligence in the criminal-procedural proving; it specifies the requirements to be met by this technology during evidences collection and analyzes the prospects of transforming the proving process under the introduction of artificial intelligence technologies.Practical significance: the main provisions and conclusions of the research can be used to improve a mechanism of legal regulation of artificial intelligence technologies in the criminal procedure.

О системе целеполагания в российском уголовном процессе

The paper presents a study of the problem of determining the criminal procedure goals in relation to modern Russian criminal proceedings. The authors summarized the concepts, views, and approaches to determining the goals of criminal procedure (criminal proceedings) historical types presented in criminal procedure science. The authors applied the results obtained to the current model of the Russian criminal procedure and carried out a functional analysis of procedural activities separately in pre-trial and court proceedings focusing on powers of officials carrying out criminal proceedings. When searching and formulating goals for each part of court proceedings, the authors relied on the characterization of the goal as a hypothetical form of completing the process determined by the powers of the head of the procedure and the relation of the criminal procedure with criminal law. The study shows that attempts to formulate a single goal of a criminal procedure organized according to a mixed type are initially doomed to failure due to the fundamental differences between pre-trial and court proceedings. The authors propose distinguishing in the Russian criminal procedure (criminal proceedings) not one, but several goals determined by the characteristics of separate stages of procedural activity: the goals the investigator (inquiry officer) faces during the preliminary investigation; the goals the prosecutor faces during criminal prosecution; and the justice goals ensured by the court. The proposed goal-setting system of the Russian criminal procedure is based on an objective criterion – functional differences in the procedural statuses of officials conducting criminal proceedings.

ОСОБЛИВОСТІ ПРОЦЕСУАЛЬНОГО СТАТУСУ НЕПОВНОЛІТНІХ У КРИМІНАЛЬНОМУ СУДОЧИНСТВІ УКРАЇНИ

The scientific article is devoted to the development and substantiation of logically interrelated theoretical conclusions regarding the procedural status of minors in criminal proceedings, the formulation of recommendations on the basis of them for the improvement of the criminal procedural legislation of Ukraine. The author states that the formation and consolidation of the procedural status depend on a number of factors, among which the age of the person should be highlighted. The influence of this factor on the regulation of the procedural status of minors in criminal proceedings is considered as the main theoretical basis for further research. The scientific work argues that the peculiarities of the implementation of the criminal procedural status of minors are related to the determination of their legal and legal capacity in criminal proceedings. As a general rule, minors are limited in their legal personality. Firstly, they cannot be subjects of a wide range of legal relations, and secondly, in those areas where they act as subjects of legal relations, their legal capacity is limited by law. It is noted that minors who have committed a criminal offense have a limited criminal procedural status in the criminal justice system of Ukraine. The recognition of full or limited legal capacity of minors significantly affects the content of the elements of their procedural position in the criminal process and the relationship with the defender and legal representative. The basis of the structure of the criminal procedural status of minors who have committed a criminal offense will be the corresponding criminal procedural status of an adult suspect, accused, defendant, based on the unity of the nature of participation in the criminal process, with its appropriate adaptation to the psychophysiological characteristics of the minor The author states that in criminal procedural science one can observe a peculiar preference of the interest of researchers in favor of minor accused or suspects. Much more attention is paid to issues of criminal proceedings against minors compared to issues of protecting the rights and interests of minor victims or witnesses. One of the main rules of criminal justice for minors is its maximum individualization. The personality of minors and the reasons for their offenses are at the center of the judicial process, so these features should be studied as much as possible during the investigation. The presented provisions define the place and role of a minor in the criminal process in a new way. Keywords: procedural status; a minor; criminal proceedings; criminal justice; juvenile suspect; a minor accused; a minor witness; minor victim.

КОНВЕРГЕНЦИЯ ЧАСТНОГО И ПУБЛИЧНОГО ПРАВА В СФЕРЕ УГОЛОВНОГО СУДОПРОИЗВОДСТВА

The subject of the article was the identification of the main directions and results of the convergence of private and criminal law in the field of criminal justice. The purpose of the article was to sum up the results of the development in domestic science of a set of views on the process of convergence of private and public law in the field of criminal justice. The main subject of the analysis was the conceptual apparatus, which reflected changes in ideas about the measure of private and public in the mechanism of criminal procedure regulation. The author of the article tried to overcome dogmatic obstacles to strengthen private law values in the domestic criminal procedural culture, including ideas about a contractual method for resolving issues related to the conduct and completion of a criminal case. The main dogmatic obstacle is the postulate about the dominance of the public law principle, interpreted in the investigative sense. The investigative ideology hinders the convergence of private and public law in domestic criminal procedure science. The main areas of application of the author's developments are seen as «evidence law» and «law of accusation», as the backbone institutions of Russian criminal procedure law. It is in them that the essence of the Russian type of criminal process is embodied. Changes in these institutions are significant in terms of the degree of penetration of the private principle into their public law nature. The author comes to the conclusion that the convergence of private and public law in the field of criminal proceedings manifested itself in a number of sub-institutions, including private and private-public types of prosecution, alternative outcomes of a criminal case on some nonrehabilitating grounds, a pre-trial agreement on cooperation, a special procedure for considering a criminal affairs. All these institutions stand on two «super-institutions» of procedural law: accusation and proof. To some extent, both of these institutions were affected by the convergence of private and public law in the field of criminal justice. The conclusions made by the author contribute to the development of the general doctrine of the convergence of private and public law in the field of criminal justice. He makes specific proposals for the modernization of the institutions of prosecution and proof in the light of the concepts of «contract».

The paradigms: the essence, concept and meaning in the methodology of criminal procedural science

The paradigms: the essence, concept and meaning in the methodology of criminal procedural science

M.S. Strogovich: theorist of the Soviet Criminal Procedure

The article is dedicated to the life, work and scientific heritage of the outstanding Soviet scien-tist-proceduralist, Corresponding Member of the USSR Academy of Sciences, Doctor of Law, Professor Mikhail S. Strogovich (1894–1984). The main stages of the scientist’s professional path are considered: from studying at a gymna-sium and institute to well-deserved recognition as the leader of Soviet criminal procedure sci-ence. The author’s most significant publications are analyzed, which are devoted to the nature of the criminal process, adversarialism, the presumption of innocence, ensuring individual rights and other important issues that arise in connection with the preliminary investigation and trial of criminal cases. Expressed by M.S. Strogovich evaluates the positions from the point of view of their relevance for the development of modern criminal procedure doctrine, modern legislation and law enforcement practice. When preparing the article, materials from personal file were used M.S. Strogovich and other documents from the archives of the Institute of State and Law of the Russian Academy of Sci-ences.

Synergetics of the criminal procedural system

The article examines the problematic scientific issue of synergy of the criminal procedure system. It is determined that one of the prerequisites for the correct application of criminal procedure law, as well as lawmaking in the field of criminal procedure and in the study of objects of criminal procedural science is the use of philosophical methods of studying legal phenomena. One of them is the synergetic method (approach) used in research. In the absence of its use, chaos may occur in the criminal justice system.
 he author emphasizes that the study of the criminal justice system through the use of a synergistic approach is important both in terms of determining the internal structure of this system and the relationships between its components and elements. And its use is carried out in order to apply this approach to theoretical and practical ways to solve problems that arise in the science of criminal procedure and in law enforcement practice in particular.
 It is established that the system of criminal procedure from the point of view of the synergetic approach is the system artificially created by the person. Its nature is not primary to man, but in itself it is derived from human existence and is aimed at ensuring such existence. Such provision is provided by organizing processes within the criminal procedure system itself and in order to meet the needs of both the state and the population.
 Using a synergetic approach to the study of the criminal process, the article identifies the inherent properties of this system, dynamism, integrity, divisibility, setting goals (objectives) of this system, versatility, maintaining its shape and focus on achieving objectives in interaction with the environment, flexibility, complementarity and consistency. The author points out that these properties should be taken into account in rule-making, law enforcement and recommended for use in research on criminal procedure.

Methodological basis for criminal procedure researches

Modern criminal procedure science contains many outstanding issues, both theoretical and methodological. To date, the methodology of criminal procedure research, and in general the whole of criminal procedure science, remains unrecognized. Most procedural scientists have little focus in research, both in the object and subject of the study, and in the methodological basis. The main difficulties are caused by incorrect understanding of the methodology of the study. The existing in the field work of criminal procedure confirms not only the narrow approach in the understanding of methodology, but also the error in the interpretation and application of scientific knowledge methods. This situation is mainly based on the lack of formalization of methods of criminal procedure science and limited intra-scientific reflection. In this regard, it is necessary to reassess established methodological values and traditions and to offer a reasoned view of the methodology of criminal procedure science. The article provides an idea of the methodology of science and undertakes a critical analysis of the methodological basis of research in criminal procedure science. As a result of the audit, the author’s proposals are formulated on the universal scheme of methodology and system of methods of criminal procedure study, as well as the logical stages of criminal procedure study. The author concludes that it is necessary to understand methodology as a way to obtain scientific knowledge, as a result of intrascientific reflection on the organization of their own scientific activities, the universality of popular and private scientific methods of research and their replenishment by criminal procedure science. In addition, the conclusion is made on the scientific nature of the criminal procedure field of knowledge. The proposals in the article may form the basis of further developments in the field of criminal proceedings and may also serve as recommendations in the formulation of the methodological basis for research.

Об уголовно-процессуальных функциях прокурора

The paper presents a critical overview of a prosecutor’s status in the criminal procedure with regard to the criminal procedural functions assigned to him in part 1 of Art. 37 of the Russian Federation Code of Criminal Procedure. The relevance of the study is caused by the absence in the law of a definite indication of tasks and objectives entrusted on a prosecutor during the pre-trial and trial procedure at his simultaneous attributing to the prosecution, the goal of which is to ensure criminal proceedings. The contradictions and gaps in the enshrining prosecutor’s functions and authorities in the law led to the uncertainty of the prosecutor’s procedural status, which is the most dually manifested within the pre-trial proceedings, when, a prosecutor as a prosecution party, on the one hand, implements the criminal prosecution function, and, on the other hand, carries out the function of procedural oversight over the preliminary investigation bodies. After the semantic analysis of the term of “criminal prosecution”, having analyzed the ideas, opinions, and proposals presented in the criminal procedural science, as well as taking into account the logics of the law manifested at the regulation of the powers of the bodies of preliminary investigation into criminal prosecution, the author justifies the necessity of statutory division of the prosecutor’s functions and delimitation of borders for their implementation taking into account the criminal procedure parts. In the pre-trial proceedings, the prosecutor should be assigned only the procedural oversight function, and in the judicial proceedings – the criminal prosecution function. As a result, the main goal of the prosecutor during the pre-trial proceedings is to ensure the lawfulness when the preliminary investigation bodies implement their procedural authorities, and during trial proceedings – to carry out criminal prosecution in the name of the Russian Federation.

SAFETY OF PARTICIPANTS IN CRIMINAL PROCEEDINGS

Introduction. Security must be ensured in various spheres of socially significant activity. As criminal proceedings are one of the most important activities of the state, the issue of ensuring the safety of participants in criminal proceedings becomes particularly relevant. The term "security of participants in criminal proceedings" is not an abstract concept, as security must be provided to specific persons involved in criminal proceedings, and if there are real grounds for doing so. Summary of the main research results. The need to ensure the safety of participants in criminal proceedings in Ukraine arose not so long ago as some other criminal procedural institutions (for example, the Institute for the Protection of Suspects and Accused). Many procedural scholars have dealt with this issue. It is proposed to expand the provisions on ensuring the safety of a person harmed by a crime and to specify that such security should be provided to a natural person who has suffered from a crime, regardless of his status as a victim, and to a representative of a legal entity in case of property damage. reputation of this legal entity. Conclusions. It should be noted that the vast majority of proposals developed and substantiated by criminal procedure science were requested by the legislator to form a system of security measures enshrined in the CPC of Ukraine. At the same time, a large number of issues related to the establishment of criminal security measures remain unresolved to this day. Ways to improve the current legislation of Ukraine are suggested.

Методологизм как тип рефлексии. Рецензия на монографию А. Ю. Афанасьева «Введение в уголовно-процессуальную науку» (М.: Проспект, 2021. 144 с.)

Methodology as a type of reflection. Review of the monograph by A. Yu. Afanasyev “Introduction to Criminal Procedure Science” (Moscow: Prospect Publ., 2021. 144 p.)

IS THE JUDGE’S RESOLUTION OF EXTRA-PROCEDURAL APPLICATIONS A SPECIAL FORM OF IMPLEMENTATION OF JUSTICE?

The practice of judges’ resolution of extra-procedural applications during the entire period of their existence has not been of great interest to the representatives of criminal procedural science. This is understandable: such activity is only indirectly related to criminal proceedings, and its tacit nature excludes substantive criticism without special empirical research in the courts. However, any extra-procedural application is always an attempt to exert pressure on a judge in charge of the criminal case, and therefore it poses a threat to a fair and impartial resolution of a social conflict, thus necessitating the establishment of a single mechanism to respond to such applications, based on the principle of judicial independence. The purpose of the paper is to develop theoretical provisions substantiating the need to optimize and simplify the existing procedure of judges’ resolution of extra-procedural applications. The paper uses the methods of system analysis, synthesis, sociological survey and generalization. Results: on the basis of the statistics, results of judges' questionnaires and examination of non-procedural applications, the author concludes that the judicial practice of resolving such applications is very difficult, owing to gaps and uncertainties in the law, and its scale is indicative of the emergence of a new, hitherto unknown course of action for judges.