Criminal Procedure Law Research Articles

Особенности нормативной регламентации упрощённых уголовно-процессуальных процедур (продолжение)

Introduction. The object of consideration of the author is simplified criminal procedural procedures. These include a special procedure for making a court decision if the accused agrees with the charge brought against him (Chapter 40 of the Code of Criminal Procedure of the Russian Federation), a special procedure for trial when concluding a pre-trial agreement on cooperation (Chapter 40.1 of the Code of Criminal Procedure of the Russian Federation), a shortened inquiry (Chapter 32.1 of the Code of Criminal Procedure of the Russian Federation) . The subject of study is the provisions of the criminal procedure law and the rules of law enshrined in them that regulate the above procedural forms. Systemic connections between the relevant standards are also taken into account. Purpose. The purpose of this article is to identify and analyze the features of the norms of Chapter 40.1 of the Code of Criminal Procedure of the Russian Federation, regulating the procedure for a special procedure for judicial proceedings when concluding a pre-trial agreement on cooperation, which we consider as a derivative in relation to the “classical” special procedure for judicial proceedings, taken in the rank of the “standard” summary trial production. Methodology. The declared object and subject of research are considered by the author using the method of analysis, synthesis, formal legal, systemic structural and comparative legal methods of scientific knowledge. Results. The work identifies and analyzes the features of the normative regulation of a special procedure for judicial proceedings when concluding a pre-trial agreement on cooperation in order to establish the type characteristics of this criminal procedural procedure within the framework of their classification into primary and derivative. Conclusion. The goal set in the work was achieved. The problems of the specifics of the normative regulation of the special procedure for judicial proceedings when concluding a pre-trial cooperation agreement were considered and revealed. The results obtained can be used for further study of the phenomenon of simplified criminal procedure as a result of differentiation of the criminal process.

Development of criminal procedure law of Armenia out of the law (extra legem) and contrary to the law (contra legem)

The article discusses questions of the development of criminal procedure law contrary to the criminal procedure Code of the Republic of Armenia (Code) (contra legem) of theoretical and practical significance. In the first part of the article, the author presented the content of the concept of «law (Jus) interest», which is used in the Codes of 1998 and 2021. The author considers a value-based approach to the concept of «law (jus) interest» possible only in conditions of a broad law understanding. If any provision of the Code is clearly (blatantly) opposed to law principles expressing the essence of criminal procedure law, then the only addressee of the legislative requirement to be guided by the interest of law is institutionally and functionally independent of the executive branch court (1), which can act contrary to a specific provision of the Code, but in accordance with the principles of law (2). The second part of the article presents the views of the law of Russian processalists A.S. Alexandrov and L.V. Golovko, and also examines whether these scientists consider the development of procedural law permissible contrary to the Code or not. In the third part of the article, it is noted that the judges of the RA, as a rule, avoid directly mentioning in their judicial acts, according to which methodology they carried out the development of law: by an expansive interpretation, by means of extra legem or contra legem law development. The author briefly presents his approaches to the differentiation of law development institutions: spatial interpretation of the law, outside of the law (extra legem) and contrary to the law (contra legem). The article also discusses various examples of the development of criminal procedure law contrary to the Code by the Court of Cassation of the RA.

On the stability of the criminal procedure law of the law and the quality of its transformation

On the stability of the criminal procedure law of the law and the quality of its transformation

Research on the method of predicting the trend of criminal activities based on time series analysis from the perspective of criminal procedure law

Abstract Criminal activity has always been a problem that seriously affects people’s sense of security and well-being in life, and it is also the focus of public security departments in terms of security prevention and control. This study aims to use scientific methods to analyze the time series of existing historical data related to criminal activities and to advance inference or determination of the future trend of criminal activities. In this paper, after mining the spatiotemporal pattern of criminal activities using the centered moving average method, the spatiotemporal cycle characteristics and time distribution characteristics of criminal activities are analyzed. Based on the conclusions drawn, an improved LSTNet algorithm is proposed by combining deep learning spatio-temporal network, convolutional neural network CNN, recurrent neural network RNN, autoregressive AR, and specially designed Skip-RNN, and a GRU-gated recurrent unit structure is used to realize the optimization of the prediction accuracy of the criminal activities, to solve the problems related to the spatio-temporal dependencies, and to establish an improved ST- Res Net crime prediction model. Finally, the prediction performance of the model is examined. The RMSE, MSE, and MAPE values of this paper’s prediction model are 0.88, 5.12, and 5.12%, respectively, which are better than other models. The experiments demonstrate that the prediction model presented in this paper can enhance the accuracy of criminal activity prediction to a certain extent and can be employed in the prevention and management of criminal activities.

ПРАВО ЮРИДИЧЕСКОГО ЛИЦА ХРАНИТЬ МОЛЧАНИЕ: СРАВНИТЕЛЬНО-ПРАВОВОЙ АНАЛИЗ

The article discusses theoretical and practical problems of implementing one of the most important principles of criminal procedural law - the principle of the prohibition of self-incrimination through the implementation of the right to silence. The relevance of the topic is due to the reform of the criminal procedural legislation of various countries, including the Republic of Armenia, which provides for a special procedure for criminal proceedings against legal entities due to the reorganization of criminal procedural legal relations. The author clarifies some legal issues about the right to silence of a legal entity as an accused, and conducts a comparative legal analysis of various legislations and judicial practice of foreign countries.

Study on the Regulation of Criminal Procedure System in the Age of Artificial Intelligence

Abstract The development of artificial intelligence technology has promoted economic development and improved people’s living standards, but it will also cause many risks and uncertainties. The purpose of this paper is to create a reciprocal fairness model for artificial intelligence collaboration and explore the causal relationship and liability allocation in artificial intelligence criminal infringement cases based on Rabin’s theory. Through the Hande formula, the criteria for determining fault in the case, as well as the marginal costs and benefits of the aggressor’s use of AI to commit crimes, are calculated. Finally, based on the theory of behavioral game evolution, this paper discusses the cooperation law of the three parties under the regulation of the Criminal Procedure Law, and discusses the illegal cost of the illegal implementation of artificial intelligence from the amount of compensation. The results show that in 68,535 cases of using AI to commit crimes in 2022, the average compensation is 74,556.87 yuan, indicating that the cost of crime is much lower than the proceeds of crime. The proposed legal regulations and the prevention and control of AI technology risks can be practiced through this study’s practical relevance.

창세기에서 바라본 법의 속성과 형법과 형사소송법의 원형들

창세기에서 바라본 법의 속성과 형법과 형사소송법의 원형들

개정형사소송법·검찰청법의 평가 및 향후 개정방안

In 2021, There were major changes of the Criminal Procedure law and the Prosecution Service Act
 However, the revised criminal procedure is so complex that it is difficult or confusing even for legal experts to understand, and the emphasis on distribution of investigative authority among the prosecutors and the Police has led to excessive delays and fatal errors.
 The current system is insufficient to remedy damages, such as not granting the complainant the right to appeal, and includes too much procedures. which has made it difficult for even practitioners to understand the investigative procedure.
 I hope that the new system will be established as soon as possible.

Contrasting Legal Aid in Jinayat and KUHAP: Free Counsel Provision Diverges in Procedural Laws

This study aims to investigate the comparison between the Jinayat procedural law and the Criminal Procedure Code (KUHAP) in providing free legal assistance for suspects. The method used is a normative juridical approach with legislative and conceptual perspectives, employing primary legal materials such as Qanun Aceh Number 7 of 2013 on Jinayat Procedure and Law Number 8 of 1981 on Criminal Procedure Code, as well as secondary legal materials like journal articles and books. The analytical technique employed is descriptive analysis, and the interpretation involves grammatical and systematic interpretations. The research results indicate that under Jinayat procedural law, an individual provided with legal counsel is threatened with 60 (sixty) lashes or a fine of 1200 (one thousand two hundred) grams of pure gold or 60 (sixty) months of imprisonment or more, or for those who cannot afford it. On the other hand, criminal procedural law limits the provision of legal advice to suspects facing imprisonment of five years or more, the death penalty, or fifteen years of imprisonment. As a recommendation for the future, this article suggests that the concept of free legal counsel provided by the state should be extended to all suspects. Further discussion may involve a reconsideration of these limitations and further investigation into the legal consequences if law enforcement fails to provide legal assistance in accordance with the requirements stipulated in procedural laws.

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.

The determination of limits of the judicial control in criminal proceeding under the circumstances of martial law

Some legislative changes in criminal procedure law under the circumstances of martial law connected with the implementation of judicial control were analyzed; some theoretical and practical aspects of changes of limits of judicial control were investigated. Legislative novels connected with the function of judicial control in criminal process can be divided into 5 groups (concerning the areas of authority): 1) changes due to which the powers were transferred (partially transferred) from investigating judges to prosecutors; 2) the change of powers of investigating judges or court during choosing, changes and cancellation of preventive measure; 3) changes in the procedure for detaining a person without decision of the investigating judge or court and report of suspicion; 4) assignment of new duties on investigating, judges; 5) other changes connected with other functions of judicial control. Due to applied derogation rights and freedom of a person concerning personal integrity, inviolability of housing, the respect to private and family life were temporary limited and the function of judicial control was weakened.
 Limits of judicial control under the circumstances of martial law changed. these changes have multi-vector character: the limits of judicial control have been narrowed in a number of cases while they have been extended in other cases, Nowadays the limits of judicial control are not permanent, and continue to change. Recurrence to the limits of judicial control as of 23.02.2022 is very actual.

COMPARATIVE ANALYSIS OF THE ACTIVITY OF COURTS WITH THE PARTICIPATION OF JURORS: ON THE EXAMPLE OF THE USA AND KAZAKHSTAN

he authors, based on a comparative analysis of the criminal procedure laws of the USA and Kazakhstan, studied the issues of the activity of courts with the participation of jurors. The choice of the US experience in considering criminal cases by a jury was not accidental, since the USA is the state to use a jury trial and already has its own legal history that is different from the UK. In the course of the analysis, the authors revealed three aspects such as the selection of jurors, the number of jurors, and the voting procedure during sentencing. The selection of jurors under US law has its advantages in comparison with the legislation of the Republic of Kazakhstan in terms of simplifying the selection and the right to refuse to participate as a juror. On the issue of the number of jurors, taking into account the US experience, we believe it is possible to reduce them from 12 to 9 and in some cases to 7 jurors. On the issue of majority voting or unanimous voting, based on the experience of the United States, we hold the opinion on the importance of voting by unanimous decision. Based on the positive experience of the USA, the authors proposed several amendments not only to the criminal procedure legislation of Kazakhstan but also to the Constitution of the Republic of Kazakhstan. Thus, the authors believe it is necessary to expand the category of criminal cases considered by a court with the participation of jurors, to improve the selection procedure and voting procedure. As well as the possibility of consideration of civil cases by a court with the participation of jurors. We believe all these amendments will have a positive effect in protecting the constitutional rights of citizens and building a rule-of-law state.

“KARAMOLA RULES” — THE RESULT OF ABAI’S LAWMAKING

The article analyzes the code of laws “Rules of Karamola”, compiled by Abai to regulate public relationsin Kazakh society at the end of the nineteenth century. The significant role of Abai in the compilation of thecode of laws, his humane attitude to crimes committed against women is noted. The great importance ofthe norms on criminal and criminal procedure law of the late nineteenth century for the improvement ofmodern legislation of the Republic of Kazakhstan is emphasized.

THE PLACE OF LEGAL NORMS ON APPEALING AGAINST ACTIONS (INACTION) AND DECISIONS IN THE CRIMINAL PROCEDURE LAW OF RUSSIA: PROBLEM STATEMENT

The article examines the criminal procedural norms governing criminal procedural appeal in the aspect of the main scientific directions on the topic under study. The purpose of the study is to determine the essence and the place of the legal norms of appeal in the criminal procedure law, the specifics of legal relations regulated by them. Materials and methods. To achieve the purpose of the study, the method of materialistic dialectics, logical, systemic and structural methods were used. The empirical basis of the study was made up of court decisions and the results of research performed by other authors. Study results. The nature of the emerging links between the legal norms of appeal in the Russian criminal procedure legislation is analyzed, the features of legal relations regulated by them are investigated, their place in the sectoral subject of criminal procedure regulation is determined. The main scientific directions on the subject under consideration, in conjunction with the author's conclusions, made it possible to identify a relatively independent area of the law on the topic under study. Conclusions. The author comes to the conclusion on heterogeneity of the legal norms of appeal, on different conditions for realizing the right to a complaint, depending on the stage of criminal proceedings and the subject of law. In connection therewith, a different legal regulation of legal relations in connection with the criminal procedure appeal is inevitable. The results of the study give the opportunity to conclude that the issues of appeal are not limited in their legal regulation by one universal legal institution of the industry and represent a more complex set of norms having relative independence within the branch of criminal procedure law.

Некоторые проблемы реализации обстоятельств, исключающих преступность деяния

Introduction. The article focuses on the problems of implementation of circumstances excluding the criminality of an act. The authors make an attempt to establish some mistakes in the application of criminal and criminal procedure laws in the sphere of the institute of circumstances excluding the criminality of an act in Mongolia. The relevance and significance of the development of the institute of circumstances excluding criminality of an act both in the criminal law theory and in law enforcement activity is proved. Some problems of development of the institute of circumstances excluding criminality of an act are analysed, as well as some areas of their solution are determined. Other problems of application of the norm on encroachment committed for the purpose of detention and suppression are also investigated, as this norm and the institute of circumstances excluding criminality of acts are the most important issues of criminal law theory. Law enforcement officers are more likely to become subjects of an offence while performing their duties, as the failure to apply the norms relating to circumstances excluding the criminality of an act often leads to an unlawful result. In this regard, there is a need to strengthen the application of these norms in legal practice and carry out theoretical research in the field of criminal law.
 Research methods: Using systematic and formal-legal methods, the norm on circumstances excluding the criminality of an act regulating discharge was investigated. By means of specific-sociological and statistical methods, data on crimes related to unlawful acts against the public authorities of Mongolia were obtained and analysed, as well as the results of surveys conducted among law enforcement officers. The results enable us to identify problems in this area.
 Results. In the process of analysing the circumstances excluding the criminality of an act, the authors came to the following conclusions.
 Cases of refraining from the use of special means and physical force by police officers who are afraid of being accused of abusing their power are quite common. As a result, a criminal has the opportunity to resist a police officer and to avoid being detained or to comply with lawful demands of a police officer.
 Despite the legality of their actions, law enforcement officers often act with a lack of confidence because of the probability that they are likely to be punished for carrying out their duties. In practice, police officers are often blamed instead of being properly assessed for the legality of their actions: when they arrest or are resisted making it.
 Coming into force article 4.2 of the Criminal Code of Mongolia, which protects law enforcement officers from such consequences, has become an important legal support of law enforcement officers in fulfillment their crime fighting duties.
 Although the law in the new Criminal Procedure Code of Mongolia provides for “circumstances excluding the criminality of an act” as one of the grounds for the closure of a criminal case, the implementation of this ground is a matter of doubt, and the legal nature of its implementation should be improved in practice.

Criminal Law Policy in the Harmonization of Tax Regulations: Its Implications for State Income from the Tax Sector

Criminal acts in the field of taxation are a form of crime that is very detrimental to the state because they hinder state income from the tax sector. Taxes are the primary source of state income, which is then used for state management and in implementing development to improve community welfare. One effort to minimize criminal acts is to create regulations that become the basis for law enforcement for tax obligations. Overcoming criminal acts requires a criminal law policy that supports law enforcement. Criminal law outlines criminal policy, either substantive or procedural criminal law. The formulation of criminal law policy in tax laws is in line with the formation of tax law through the tax reform policy, which began in 1986 through the formation of several laws in the field of taxation. Finally, the Law Number 7 of 2021 concerning the Harmonization of Tax Regulations continues the policy. With the implementation of the Law on Harmonization of Tax Regulations, there needs to be a more in-depth study of tax criminal policies in this law towards optimizing state revenues from the tax sector. The research was conducted using normative legal research methods and supported by primary data. The approach used is a statutory approach, namely by analyzing various related laws in studying legal synchronization both vertically and horizontally and using legal theories. The research finds that criminal law policy in the Law on Harmonization of Tax Regulations applies more non-penal than penal policy. Non-penal prioritizes administrative settlement rather than criminal law settlement. The administrative settlement will enable more income through administrative fines. However, this approach does not fully support optimizing state revenues from the tax sector in the long run because this policy would not support taxpayer compliance.

Язык и стиль уголовно-процессуальных документов органов уголовного преследования БССР середины ХХ столетия

Introduction. Studying the history of criminal procedure institutions allows to fully comprehend their essence, as well as to comprehend the logic of the legislator who formulated a certain rule of law in one form or another. In this regard, the analysis of archival criminal cases is of particular scientific interest, the study of which contributes to the objective study of the documentation of the pre-trial criminal procedural activity of the criminal prosecution bodies of the Byelorussian Soviet Socialist Republic (BSSR) of the mid-twentieth century and its further evolution.
 The purpose of this article is to study the documentation of the pre-trial criminal procedural activities of the criminal prosecution bodies of the BSSR of the mid-twentieth century.
 Methods. The methodological basis of the research is a combination of general scientific (dialectical, deduction, induction, analysis, synthesis, etc.) and private-scientific methods (legal-technical, comparativelegal, empirical, etc.).
 Results. In the course of the study, the conclusion was formulated that the pre-trial proceedings of the BSSR in the middle of the mid-twentieth century were to some extent influenced by pre-revolutionary legislation and law enforcement practice, which was reflected both in the provisions of the Criminal Procedure Code of the BSSR and in the activities of the Soviet criminal prosecution bodies. On the other hand, the systematic deviations of investigators and interrogators from the archaic requirements of the Soviet criminal procedure law subsequently led to the transformation of such actions into the norms of the law of the Criminal Procedure Code of the BSSR of 1961 and the Criminal Procedure Code of the Republic of Belarus.
 In addition, attention is drawn to the preservation of the rules of registration of certain procedural documents (known at least since the beginning of the twentieth century) in the modern activities of the Belarusian criminal prosecution bodies. In the process of writing the article, the procedure for conducting face-to-face interrogation and the presentation for identification at the stage of development of the criminal process, when they such have not yet been considered by the legislator as investigative actions, is considered.

On the issue of procedural legal advocation of a civil plaintiff in criminal proceedings: doctrine and practical problems, ways to overcome them

The issue of the procedural status of a civil plaintiff in criminal proceedings and the issue of a person’s right to compensation for damage caused by a criminal offense has always been in the center of attention of lawyers - academics and practicing practitioners. The relevance of the chosen topic and the purpose of the research is due to certain doctrinal and practical gaps in the criminal procedural legislation of Ukraine, as well as contradictions between the norms of criminal procedural law, civil procedural law, and the provisions of inheritance law, which arise in the conditions of criminal proceedings, and are caused by death (or the condition, which makes it impossible to participate) of the injured person, who is a civil plaintiff in a civil claim for damages, at the stage of pre-trial and judicial criminal proceedings. Taking into account the set goal of criminal proceedings, which consists, among other things, in compensating the injured person for the moral and (or) property damage caused to him by a criminal offense, in this article the author not only analyzes individual scientific views and examines the relevant legal norms regulating procedural procedure of criminal legal succession, however, attention is emphasized and own proposals are made to improve the legal mechanism of legal succession of a participant in criminal proceedings, such as a civil plaintiff in a civil claim for damages presented in criminal proceedings. In conducting scientific research, the author used the formal-logical (dogmatic) method in interpreting the normative content of laws and formulating the definitions of individual legal concepts of the research issues, as well as the method of systemic-structural analysis, which contributed to the study of types of legal conflicts and gaps. Based on the results of the scientific research, the author outlined separate doctrinal and practical problems of the studied issue, and outlined the conclusions regarding the need to improve the current version of the Criminal Procedure Code of Ukraine and clarify the procedural rights of the civil plaintiff during procedural succession in criminal proceedings, by adding a new article to the Criminal Procedure Law, and made suggestions to the specified edition.

Оn the Judicial Mechanism of Applying Measures of Restraint in the Context of a Crime Concept Related to Business Activities

The correlation of the concepts of entrepreneurial activity, contained in the norms of civil and criminal procedural legislation, as well as in the provisions of the bill defining the concept of a crime related to entrepreneurial activity, is interpreted. The issue of the need to introduce a ban on the use of such a measure of restraint as detention in relation to persons engaged in legal business activities, but not having the status of an individual entrepreneur or head of a commercial organization, is being considered. The possibility of applying a pre-trial court decision in relation to this category of persons and changing the preventive measure for them to a softer one is analyzed. The issue of the application of the analogy of the criminal procedure law when deciding in the judicial procedure the issue of choosing a measure of restraint is being investigated. Proposals have been made for solving the identified problems by strengthening departmental procedural control, expanding the powers of the prosecutor, and introducing the institution of investigative judges. It is concluded that the proposed ways to overcome the considered imbalance between the norms of the Civil Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and the bill are most effectively eliminated by making appropriate changes to the norms of the criminal procedure law and the concept of a crime related to entrepreneurial activity proposed by the Supreme Court of the Russian Federation.

The Crime Of Money Laundering In The Perspective Of Criminal Law

The crime of money laundering is the act of processing large amounts of illegal money resulting from criminal acts into funds that appear clean or legal according to law, using sophisticated, creative, and complex methods. The crime of money laundering can be referred to as a process or act that aims to hide or disguise the origin of money or assets obtained from the proceeds of a criminal act which are then converted into assets that appear to originate from legitimate activities. In general, there are two main reasons why the practice of money laundering is fought and declared a criminal act, namely, firstly, the influence of money laundering on the financial and economic system is believed to harm the economy, for example, a negative impact on the effective use of resources and funds which are widely used for activities are illegal and cause less than optimal use of funds, thus causing harm to society. The position of the Indonesian Prosecutor's Office according to Article 2 (paragraph 1) is a government institution that exercises state power in the field of prosecution and other authorities based on law. About the crime of money laundering, the Prosecutor's Office said that according to Article 30 of Law Number 15 of 2002 as amended by Law Number 25 of 2003 concerning TPPU, it is stated that "investigation, prosecution and examination in court of criminal acts as intended in this Law, it is carried out based on the provisions in the Criminal Procedure Law. This type of research is Normative research. The approaches used are a statutory approach and a conceptual approach. The data source used is secondary data. Data analysis was carried out descriptively qualitatively. Concluding was carried out using a deductive method from general to specific, to that related topic, namely the Juridical Review of Ethical Witnesses for Police Members Who Commit Desertion. This research resulted in the findings of the Law on the Prevention and Eradication of the Crime of Money Laundering itself. provides a complete understanding of money laundering. Article 1 number 1 of the Law on the Prevention and Eradication of Money Laundering only states that money laundering is any act that fulfills the elements of a criminal act by the provisions of this law. Law enforcement against money laundering has been widely carried out after the promulgation of Law Number 15 of 2002 concerning the crime of money laundering as amended by Law Number 8 of 2010 concerning the Crime of Money Laundering