Criminal Proceedings 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).

At the threshold of criminalisation: repression of ‘oppositional’ civil society organisations in the Israeli settler state

ABSTRACT This article discusses the processes of criminalisation of oppositional political activism of Jewish-Israeli citizens. Israel strives to maintain Jewish supremacy, providing a privileged position to Jewish-Israelis while treating Palestinians by default as a threat. The article focuses on the sustained campaign waged against Breaking the Silence, an organisation established by veterans of the Israeli army that attempts to use a moral critique to campaign to end the occupation of the West Bank and Gaza. Since 2009, the organisation has become a target of a right-wing campaign of delegitimisation intended to silence it. The article discusses the process through which oppositional civil society groups are transformed from a position of privilege to a threat to be neutralised. Such processes of criminalisation involve multiple informal and formal tools, and actors from ‘civil society’ and ‘the state’. I argue that the distinction between the two spheres is artificial as both are part of the same hegemonic system. I contend that understanding the nature of the threat and those that pose it opens a window into the vulnerability of the system. The states’ coercive side, which was previously geared against Palestinians, turns towards its privileged citizens, thus rendering its vulnerability more visible.

Observations In Police Records And Their Prospection To Tutelas De Derecho In Criminal Proceedings

The main objective of the research was to analyze the normative limits to establish party observations in police records as part of the exercise of the right to defense and its prospection to protect rights in criminal proceedings. The results of the investigation showed that Peru continues to suffer the effects of abusive police activity that generates irreparable damage to the human essence of the people intervened in an abusive manner or without respect for their fundamental rights because they develop within them a criterion of abusiveness and disproportionality in the treatment by the intervening police officers. For this reason, the investigation establishes the importance of the right to write the observations of the detainee or his defense in the police records in order to denounce on the spot the abuses or arbitrariness committed during the proceedings, since, in most cases, there is a nonsense in the exercise of the function and it is established that the detainee refused to sign the report. It was concluded that there are problems related to arbitrariness in the exercise of police functions that are not reported in a timely manner by the victims, generating mistrust against the authorities and public institutions.

Rola ekspertyzy wariograficznej w postępowaniu karnym

The publication in question deals with the contemporary role of polygraph exper-tise in Polish criminal proceedings. It discusses the history of polygraph research. It refers to research techniques used by experts in the field, as well as to atypical cases of controversial research. Indicates the legal basis of polygraph research. Additionally, it draws attention to the issue of their evidentiary and diagnostic value. He extensively discusses the views of the Supreme Court and common courts formulated in this matter from 1963 to the present. Finally, it emphasizes the role of standardization of polygraph research and popularizing knowledge about it among lawyers.

Məhkəmənin hökm və ya qərarlarına yeni açılmış hallar üzrə baxılması üçün əsaslar

This research article conducted the grounds of proceedings on newly found circumstances, which are a type of particular proceedings in the criminal process of the Republic of Azerbaijan. According to newly found circumstances, the review of judgments and decisions of the court, which led to the issuance of a legally binding judgment or decision, and which were present during the investigation and trial of the case, but happens due to discovery of new unknown cases by the person who conducted the investigation or the court on the merits of the case. Chapter 54 of the Criminal Procedure Code of the Republic of Azerbaijan is devoted to the proceedings of newly opened cases. The first article - 461 of that chapter is dedicated to the grounds for considering court judgments or decisions in newly found circumstances. However, the specified article did not establish a legal understanding of the newly found circumstances. In this regard, we would suggest that Article 461 of the Criminal Procedural Code of the Republic of Azerbaijan to be amended regarding proceedings on newly opened cases and that institution to be given the following legal meaning: "Proceedings on newly found circumstances, the legally binding judgment of the court or other cases that make it possible to change any final decision are those cases that were not determined before - neither during the preliminary investigation nor at other stages of the criminal proceedings". Keywords: newly newly found circumstances, judgement, Supreme Court, the right to appeal, new verdicts, cassation instance.

Working Paper 54: Targeting illicit wealth through non-conviction based forfeiture

This paper explores the wide variety of non-conviction based (NCB) forfeiture laws in Latin America, with a special focus on the region’s predominant model, Extinción de dominio. It argues that NCB forfeiture legislation, which allows for the recovery of stolen assets outside of criminal proceedings, can contribute significantly to a state’s policy response to rampant economic and organised crime. The paper emphasises the importance of critically reviewing and harmonising domestic practices of NCB forfeiture aroundemerging standards, so that they can reach their large potential. Ensuring their alignment with international human rights and other recognised norms and rules ultimately builds trust, lends legitimacy and fosters judicial cooperation in international NCB forfeiture cases. About this report This paper is published as part of the Basel Institute on Governance Working Paper series, ISSN: 2624-9650. You may share or republish the Working Paper under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (CC BY-NC-ND 4.0). Suggested citation: Solórzano, Oscar. 2024. ‘Targeting illicit wealth through non-conviction based forfeiture: Identifying human rights and other standards for Latin America.’ Working Paper 54, Basel Institute on Governance. Available at: baselgovernance.org/publications/wp-54. Disclaimer This Working Paper is intended for general informational purposes and does not constitute and/or substitute legal or other professional advice. The contents are the sole responsibility of the author and do not necessarily reflect the views and the official position of the Basel Institute on Governance, its donors and partners, or the University of Basel.

Issues of property rights protection in criminal proceedings in the context of the right of access to justice

Issues of property rights protection in criminal proceedings in the context of the right of access to justice

The problematic aspects of excessive interference in property rights as a result of temporary seizure of property in criminal proceedings

The problematic aspects of excessive interference in property rights as a result of temporary seizure of property in criminal proceedings

Violation of the rules of subject matter jurisdiction in criminal proceedings

Violation of the rules of subject matter jurisdiction in criminal proceedings

Presentation for identification in criminal proceedings on sexual criminal offenses

Presentation for identification in criminal proceedings on sexual criminal offenses

Legal principles of evidence in criminal proceedings about organized groups and criminal organizations in the sphere of circulation of narcotic drugs, psychotropic substances or their analogues

Legal principles of evidence in criminal proceedings about organized groups and criminal organizations in the sphere of circulation of narcotic drugs, psychotropic substances or their analogues

Regarding the possibilities and means of legal investigation in criminal proceedings

Regarding the possibilities and means of legal investigation in criminal proceedings

International legal experience of implementing measures to ensure criminal proceedings in special periods

International legal experience of implementing measures to ensure criminal proceedings in special periods

A Comparative Analysis of the Prosecutorial Strategies Employed by the United States of America and Germany in the Prosecution of IS-Affiliated Women on Terrorism-Related Charges

This article aims to elucidate the similarities and differences between the prosecutorial strategies employed by the United States of America and Germany in the prosecution of IS-affiliated women on terrorism-related charges. By using comparative and doctrinal legal research methods, this article reviews and dissects the criminal proceedings against seven American and seven German IS-affiliated women prosecuted on terrorism-related charges. The article first highlights the fluctuating role of IS-affiliated women, thereby exhibiting the broad spectrum of female engagement in ISIS, ranging from passive participants to active facilitators of violence. Following this, the article presents the international obligations stemming from terrorism-centred UNSC Resolutions and their subsequent transposition into domestic law, forming §2339A and §2339B of the United States Code and §129a and §129b of the German Criminal Code. Finally, the article compares the prosecutorial strategies employed by the two States on the following four grounds: (1) types of evidence, (2) charges, (3) mitigating and aggravating factors, and (4) sentencing. Ultimately, a juxtaposition of the prosecutorial strategies employed by the United States of America and Germany in the prosecution of IS-affiliated women on terrorism-related charges identifies contrasting, albeit at times similar, approaches to prosecution primarily as a result of the time at which initiation of criminal proceedings ensues.

О некоторых аспектах выявления и расследования преступлений, совершенных в отношении половой свободы и неприкосновенности несовершеннолетних

Introduction. The article is devoted to some problematic issues that arise in the practice of investigating crimes committed against sexual freedom and inviolability of minors (rape, sexual violence, lewd acts, sexual intercourse and other acts of sexual nature with a person under the age of sixteen). The criminalistic characteristics of crimes are given, special attention is paid to the characteristics of the offender and the victim, the methods of committing crimes, the mechanism of trace formation. Typical investigative situations that develop at the initial stage are revealed, the specifics of initiating a criminal case and organising an investigation are revealed, criminal and criminal procedure legislation is analysed. Methods. The methodological basis was the system of scientific research methods used, based on the universal dialectical method, the use of which determines the choice of systemic, activity-based, functional and interdisciplinary approaches in the study of the personality of the offender and the victim in cases of crimes against sexual freedom and inviolability of minors and the totality of its properties and qualities as an integral object. In addition, when studying the mechanism of crime and the investigator’s search and cognitive activity, historical, formal-logical, statistical, sociological, comparativelegal, and modeling methods were used. Results. The most problematic aspects of obtaining significant criminalistic information as a result of verbal investigative actions have been identified, recommendations have been developed to overcome possible opposition from suspected defendants, as well as legal representatives of the victim; the legal positions of judicial authorities and law enforcement practice have been analysed; algorithms for the investigator’s actions in identified problematic situations have been formed. The provisions are substantiated that a minor as a subject of criminal proceedings has a number of characteristics of a demographic, socio-role and moral-psychological nature, which determine the peculiarities of perception, memorisation, analysis and reproduction of significant criminalistic information about the act committed against them. The conclusion is reasoned that special attention should be paid to the tactics of interrogation of victims, which is limited by the current criminal procedural requirements and is characterised by short-termism, one-time nature, and the list of participants. The importance of the results of this investigative action is justified by the prevalence of the results of interrogations in the evidence base for this category of crimes, because due to the postponement of the crime from the beginning of the investigation, the search for other traces, as well as the production of experimental and search investigative actions is significantly complicated.

Определение уголовно-процессуальной правосубъектности несовершеннолетних: постановка проблемы

The article presents research findings on a critical issue regarding the protection of the rights and legitimate interests of minors involved in criminal proceedings, focusing on the challenges related to their criminally-remedial legal personality, its theoretical definition, and legislative regulation. Also, the article provides an analysis and comparison of the concept of “legal personality” in Russian criminal and sectoral legislation. The author examines various scholarly perspectives on the definition of the criminally-remedial legal personality of minors in criminal proceedings. Legal provisions that guarantee the protection of minors’ rights and legitimate interests are reviewed, along with an analysis of their practical implementation. In conclusion, the article identi-fies issues within Russian legislation that require more detailed study and offers potential solutions to the out-lined problems based on the materials discussed.

Возможность реабилитации юридических лиц в уголовном судопроизводстве

The article examines the issues surrounding the right to rehabilitation of legal entities in criminal proceedings and the feasibility of its implementation. A comparison is made between the rehabilitation of natural persons and legal entities. Both the classical (substantive, material) and formal (procedural) approaches to rehabilita-tion in criminal proceedings are considered. It is noted that viewing rehabilitation solely from the perspective of the substantive approach significantly narrows the full range of related actions, decisions, and legal relation-ships, focusing primarily on the question of innocence and, consequently, on correcting the mistake made by the state through its bodies authorized to carry out criminal prosecution. The presence of the criterion of inno-cence presents a challenge in relation to the rehabilitation of legal entities, as the terms “guilt”, “innocence”, and “culpability” in the criminal legal sense are inapplicable to them. The author concludes that a legal entity, being a kind of abstraction, cannot possess such qualities as consciousness and will inherent in a person as a being endowed with reason. However, the prosecution of individuals directly related to the activities of a legal entity can at least harm its business reputation. Innocence, in turn, opens up the possibility for their rehabilitation, and thus, the rehabilitation of legal entities should also be considered and addressed.

Функціонування в Україні пенітенціарних таборів для військовополонених російської федерації

The article states that with the beginning of the full-scale invasion of the Russian Federation to Ukraine more than two and a half years have passed. During this time, law enforcement agencies initiated 127,814 criminal proceedings under various articles of the Criminal Code of Ukraine. It should be noted that many of them have already been examined by domestic courts and those guilty of criminal offenses have been held criminally liable. It has been proven that all of them are serving their sentences in a camp that functions as a correctional colony for prisoners of war sentenced to imprisonment for a certain period or to life imprisonment. Since the problem of the functioning of prison camps for prisoners of war in Ukraine has not been the subject of research yet, the article states that their creation in Ukraine is an unprecedented practice during the years of Ukraine's independence, which is connected with the events of the invasion of the Russian Federation to the territory of our country as a "special operation" on February 24, 2022. It is noteworthy that theMinistry of Justice of Ukraine ensures the functioning of prison camps for prisoners of war in Ukraine as the subject of the implementation of state policy in the field of punishment and probation. It has been proven that currently four camps for prisoners of war of the Russian Federation have been created in Ukraine. All of them comply not only with international humanitarian law, but also with Ukrainian legislation. Unfortunately, Article 13 of the Convention is simply ignored by Russian Federation, thereby demonstrating disrespect for the norms of international humanitarian law. Moreover, our soldiers are held captive not in separate camps for prisoners of war, but in ordinary penal colonies, subjecting them to physical mutilation, acts of violence and intimidation, although this Convention categorically prohibits the use of reprisals against prisoners of war. The author's definition of the Ukrainian camp for prisoners of war of the Armed Forces of the Russian Federation was formulated. These are specially equipped places on the basis of correctional colonies of the State Criminal Enforcement Service of Ukraine for the forced detention of captured enemy servicemen with the aimof their final release and repatriation. A comparative analysis of the maintenance of prisoners of war in Ukraine and Russia was carried out. It is noted that if the personnel of the camp for prisoners of war establish that persons who took part in hostilities and were captured do not belong to prisoners of war, then such persons enjoy the protection of the Convention until their status is determined by a competent tribunal. Such persons, however, use benefits and protection. They include medical and spiritual personnel who provide assistance to prisoners of war. They are also provided with all opportunities to provide medical and spiritual assistance to prisoners of war. During the performance of their medical and spiritual duties, they also use certain privileges, in particular, they are allowed to periodically visit prisoners of war who are part of work teams or in hospitals outside the camp. It is worth paying attention to the fact that after the exchange of our soldiers and their return to the Motherland, it becomes clear how many of our prisoners of war in the Russian Federation different from the Russian occupiers in the POW camp in Ukraine. If the physical and moral condition of our soldiers is suppressed, they are tired and exhausted.

Довкіллєве правосуддя в Україні та світі

The article is devoted to the study of domestic and foreign trends in environmental justice. To solve the set goal, the following research methods were used, in particular: the method of scientific observation is to form the topic and purpose of the research; comparative legal method in the study of foreign experience of environmental justice; logical method – for theoretical generalization and formulation of research conclusions. The main models of environmental justice that exist in the world include such as consideration of environmental cases by courts of general jurisdiction, consideration of environmental cases by judges specializing in environmental issues or specialized environmental divisions of courts, consideration of environmental cases by specialized environmental courts. Environmental courts, as specialized judicial authorities, deal with the resolution of environmental conflicts and the protection of the environment and function in particular in countries that are members of the European Union, such as Sweden and Austria. In Ukraine, environmental justice is carried out in the form of civil, economic, administrative and criminal proceedings. At the same time, civil, economic, administrative and criminal cases in the environmental sphere differ among themselves in terms of the type of offense, the subject of the dispute, the composition of subjects, etc. Judicial practice in the environmental sphere covers a wide range of environmental relations, in particular on atmospheric air protection, land protection and use of land resources, subsoil protection and use of minerals, protection of forests and use of forest resources, protection and use of territories and objects of the nature reserve fund, access to environmental information, waste management, etc. Environmental justice in Ukraine may be limited to the functioning of certain specialized environmental units in courts, or involve the formation of a system of specialized environmental courts throughout the country, including a higher specialized court. At the same time, the implementation of environmental justice will be more or less time-consuming and costly (depending on the model chosen for implementation).

Особливості проведення слідчих (розшукових) дій (допиту) в умовах воєнного стану

The article is devoted to the study of the peculiarities of conducting investigative actions (interrogation) caused by the introduction of martial law on the territory of Ukraine. The article analyzes the legislative innovations that were established in connection with the full-scale invasion of the Russian Federation into the territory of the state, in particular, the possibility of using as evidence by the court the video recording of the statements that were given to the prosecutor, the investigator in the conditions of martial law, as well as recording the course and results of the interrogation of the victim, suspect or witnesses (with the participation of a defense attorney) using available technical means of video recording, which are aimed at increasing the level of protection of citizens’ rights. The significance and relevance of the question of interrogating a witness, or victim in the mode of a video conference is outlined. The need to regulate the interrogation is substantiated so that the court is empowered, in exceptional situations, with the possibility of a "departure" from the principle of immediacy of the examination of testimony during the trial, enshrined in Article 23 of the Criminal Procedure Code, under the condition of mandatory observance of due process guarantees. The duty of the court tomonitor the interrogation to prevent possible extraneous influence on the interrogated subjects is characterized. The specific properties of the interrogation of a minor and the need, to avoid a possible psychological injury to the child, to observe all the guarantees and rights of a minor are substantiated. The child’s right to free secondary legal assistance, which provides for the protection and representation of interests in courts, other state bodies, and local self-government bodies, before other persons, as well as drafting procedural documents, is analyzed. Gaps and problematic aspects are singled out, which negatively affect both minors and the results of criminal proceedings in general.