Domestic Criminal Proceedings Research Articles

Legacy of M. S. Strogovich and Modern Problems of Functional-Legal Construction of Criminal Pre-Trial Proceedings

In November 2019, the world legal community widely celebrated the 125th anniversary of Professor M. S. Strogovich, who, according to his scientific colleagues and students, was a scientist who was “ahead of time”.This article provides a retrospective and comparative analysis of the positions of M. S. Strogovich and his colleagues on certain problems of domestic criminal proceedings, in particular its pre-trial phase, in the context of the direct influence of the scientist's scientific heritage on the development of modern criminal procedure law. The Author of the article particularly interesting views of the scientist and his participation in discussions related to defining the essence and purpose of the preliminary investigation, the implementation of the functions of preliminary investigation in relation to criminal prosecution, the problems of implementation of the principles of presumption of innocence and the adversarial nature of pre-trial proceedings in criminal cases, and, finally, the General Manager of the “investigative case” in modern Russia.M. S. Strogovich consistently adhered to the idea of the need to develop and strengthen procedural guarantees of individual rights, guarantees of justice, and this can be seen in this article. Thus, defining the essence of the criminal process as a system of actions of the relevant officials and the procedural legal relations that arise in connection with them, which in itself was a serious “scientific courage” of those years, M. S. Strogovich particularly defended the position that all participants in criminal proceedings are subjects of the rights granted to them and the duties assigned to them, and they should not be considered objects of unilateral power of officials. This idea has become widespread and generally accepted as the basic definition of domestic (Soviet and Russian) criminal proceedings.The article analyzes M. S. Strogovich’s scientific steps on the conceptual turn from revolutionary-radical ideas about the construction of criminal proceedings to its classical canons and traditions of the Russian criminal process, On the basis of which the conclusion is made about the indispensable use of the scientist's legacy in modernьRussian procedural studies.The research of M. S. Strogovich’s legacy carried out in the article will fully allow to rethink the modern system of criminal proceedings in a new way, can be used as a kind of key to finding solutions to law-making and law enforcement problems, for the further development of the national science of criminal procedure law.

The Unintended Negative Effect of Positive Complementarity

Abstract Ending impunity cannot be achieved by international criminal tribunals alone. Therefore, it is important that states will take a significant part in these efforts. The principle of complementarity is aimed to incentivize states to conduct domestic criminal proceedings against alleged perpetrators of international crimes. This article calls for a broader examination of the way in which the principle of complementarity incentivizes domestic actors. It argues that beyond the potential positive effect of complementarity on domestic criminal law, the shadow of the International Criminal Court creates a negative incentive for domestic courts to intervene in constitutional and administrative cases that examine general conduct of hostilities cases. The paper demonstrates this negative effect by examining a shift in the attitude of the Israeli Supreme Court in conduct of hostilities cases. In addition, the paper discusses the ways in which domestic courts attempt to regain their reputation following their increased deference in conduct of hostilities cases.

Provisional Measures Under ICSID Rules: The Power of Tribunals to Interfere with Domestic Criminal Proceedings

In several recent International International Centre for Settlement of Investment Disputes (ICSID) cases, investors accused the respondent state of unfairly using its criminal law enforcement powers to advance its position in the arbitration. If the investor turns to the tribunal to intervene by ordering provisional measures, the tribunal finds itself in the most uncomfortable position: at the heavily contested border between state sovereignty and the tribunal’s duty to safeguard the arbitration process. The latest decisions indicate that tribunals are prepared to step in and order the suspension of domestic criminal proceedings when presented with specific evidence of harassment or intimidation of claimants or witnesses. This article reviews these controversial cases, describes the situations in which a request for provisional measures can be successful, what exactly the investor is required to show, and how far tribunals have been willing to go. Provisional Measures, ICSID, Procedural Integrity, Equality of Arms, Criminal Proceedings, Criminal Investigation, Parallel Proceedings, Article 47, Sovereignty

Procedural Haze: The ICC’s Jurisdiction over the Situation in Palestine

Abstract Palestine’s ratification of the Rome Statute, and limited retroactive acceptance of the jurisdiction of the International Criminal Court (ICC, or the Court), constitutes one of the major legal developments of the Israeli-Palestinian conflict in the past decade. But such a milestone does not come without contentious legal and political challenges. Several procedural obstacles are likely to arise, especially relating to jurisdiction and admissibility, which will determine whether the ICC even gets to substantive questions of accountability. No matter which cases might ultimately be prosecuted, any ICC investigation – and perhaps even the preliminary examination – is thus likely to confront the antagonisms surrounding Palestinian statehood, bilateral agreements between Israel and the Palestinians, border disputes, and domestic criminal proceedings.

International Arbitration and National Criminal Proceedings: Presentation Given to the Luxembourg Arbitration Association, 30 June 2020

Given as a presentation given to the Luxembourg Arbitration Association, this paper examines how arbitral proceedings and domestic criminal processes can interact; how parties to arbitrations have attempted to use domestic criminal proceedings to advance their interests; and how arbitral tribunals can and should respond to such attempts. It concludes that arbitral tribunals must take account of concurrent national criminal proceedings but cannot defer entirely to them. This is not only because they undertake a different role but also because national authorities cannot always entirely be trusted. In turn, this means that tribunals can find themselves between Scylla and Charybdis, so that arbitrators must be skillful navigators to get safely to their destination: an enforceable award.

The power of investment tribunals to enjoin domestic criminal proceedings

Abstract The article examines the current state of play regarding interim measure requests to enjoin a host State from pursuing criminal actions within its territory. Balancing the host State’s inherent power to investigate and prosecute criminal actions that have allegedly taken place in its territory against the fundamental principle of integrity of the arbitration proceedings, it is suggested that, under exceptional circumstances, investment tribunals may restrain the host State’s police power. A severe threat to the integrity of the arbitration may merit the issuance of far-reaching interim relief, including orders to suspend domestic criminal proceedings and orders to ensure the claimant’s reasonable and confidential access to legal counsel. The author further argues that, under the most extreme circumstances, tribunals are empowered to order the temporary release of individuals who have been tried, convicted and imprisoned in the host State.

Институт публичного обвинения в уголовном процессе России: к вопросу о постановке проблемы

The article is devoted to the substantiation of the problem of the existing institution of public prosecution in the domestic criminal proceedings. It is argued that this institution does not correspond to the vector of competitiveness indicated in the Constitution of the Russian Federation, the CPC of the Russian Federation and other normative acts and needs a thorough scientific analysis.

Forms of Interaction between an Investigator and Bodies of Inquiry at the Initial Stage of Pre-Trial Proceedings

Despite the prolonged use of certain forms of interaction between the investigator and investigative agencies at the initial stage of pre-trial proceedings, the criminal procedure legislation still lacks some aspects of their implementation. This makes it necessary to study the current situation and substantiate the theoretical and practical provisions concerning interaction between an investigator and investigative agencies in the context of verification of the report of the crime in the light of the planned digitalization of domestic criminal proceedings. The author suggests that the forms of interaction, the application of which is expedient at the initial stage of pre-trial proceedings, include two procedural forms (giving written instructions to an investigative agency about carrying out operational search activities, obtaining explanations, obtaining assistance in carrying out investigative and other procedural actions) and two organizational forms (joint planning and formation of an investigative and task force). In order to increase the efficiency of criminal procedure at the initial stage of pre-trial proceedings, to ensure clarity of the language of criminal procedure law and its compliance with law enforcement, the auther proposes to amend Part 1 of Article 144 of the Code of Criminal Procedure by supplementing it with the right of authorized officials and bodies to give to investigative agencies mandatory written instructions for obtaining explanations, and to receive assistance from the investigative agency in carrying out verification actions. At the same time, the paper demonstrates the author’s approch to excluding obtaining explanations from the general list of procedural actions specified in Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation and conducted by authorized subjects of verification of the report of the crime. Also, the paper analyzes the importance of introduction of electronic document circulation into criminal proceedings from the point of view of efficiency of interaction between the investigator and investigative authorities at the initial stage of pre-trial investigation.

Tendencies of Development of Activities of a Prosecutor in Elimination of Obstacles to Consideration and Resolution of Criminal Cases under the 1864 Charter of Criminal Proceedings

The paper substantiates the relevance of historical experience of the legal regulation in the context of the modern reform of the prosecutor’s work aimed at elimination of obstacles to consideration and resolution of criminal cases with a view to ensure the adoption of a lawful and reasonable decision on the case, which will certainly contribute to the achievement of the objectives of criminal proceedings. The paper investigates the cases of the 19th century when prosecutors returned criminal cases for additional investigation at the pre-trial stage of criminal proceedings. The author has examined the evolution of the goals, objectives and functions of the institution of return of cases by the prosecutor for further investigation in the specified period. The subject of the study amounts to the examination of the institution of additional investigation from the standpoint of its historical genesis. The author focuses on the analysis of the procedure applied to cases returned by the prosecutor for further investigation, the grounds for investigation and ways of correcting the revealed violations. Taking into account the historical experience, the author comes to the conclusion that it is necessary to improve the activity of the prosecutor aimed at eliminating obstacles. The author has formulated and substantiated proposals for modernization of the legal regulation of the procedure under consideration, as the return of the case for additional investigation constitutes a reserve mechanism for achieving the purpose of criminal proceedings that has restorative nature with regard to the legal rights and interests of the participants of criminal proceedings and their compliance with the relevant legal procedure. This procedure is important for making the right decision on the merits. Thus, the purpose of the work is to elucidate the process of formation and functioning of the institution of additional investigation enshrined in the Charter of Criminal Proceedings. To achieve this goal, the basic scientific methods (dialectical method of cognition, method of systematic analysis, deduction and induction, methods of comparisons and analogies, and a number of others) have been used. The main objectives of the study have been achieved on the basis of the comparative legal method. The practical significance of the work is that it justifies the need for legislative unification of legal norms regulating the activities of the prosecutor aimed at removing the obstacles to the consideration and resolution of criminal cases and introduction of appropriate amendments and additions to normative legal acts that would coordinate the procedure for sending cases by the procurator for additional investigation in strict compliance with the fundamental principles of domestic criminal proceedings.

Forensic medical examination in the context of expanding the possibility of competitiveness realization in criminal proceedings

The involvement of special knowledge in criminal proceedings has always created the problem of assessing the reliability of conclusions formulated on the basis of their application. At the beginning of the 20th century, one of the ways to solve this problem was the expansion of competition between the parties. For a long time, in criminal proceedings, competition has not been actively developed due to the particular historical development of society and the state. In the same period, it became a separate medical profession and the formation of a domestic forensic medical examination took place. With the adoption in 2001 of the current Code of Criminal Procedure, competition as a principle returned to the domestic criminal proceedings (Article 15 of the Code of Criminal Procedure of Russian Federation. Competition of the parties). In the practice of forensic medical examination, little has changed, since, on the one hand, the involvement of an expert's opponent in the process was difficult to implement, and on the other hand, his participation in criminal proceedings for several reasons had little effect on the outcome of case. At the same time, forensic medical examination remained an unshakable pillar in cases of crimes against health and life (and in other categories of cases whose corpus delicti provides for harm to health). The situation began to change rapidly from April 2017 after the coming into force of a number of federal laws that significantly simplified the organization of opposing an expert in criminal proceedings and created the conditions for a more critical assessment of an expert opinion. The purpose of the work is to analyze the consequences of federal laws for forensic expert practice.

ИЗБРАНИЕ МЕРЫ ПРЕСЕЧЕНИЯ В ВИДЕ ЗАКЛЮЧЕНИЯ ПОД СТРАЖУ И СРОКИ СОДЕРЖАНИЯ ПОД СТРАЖЕЙ: НЕКОТОРЫЕ ТЕОРЕТИКО-ПРАВОВЫЕ ВОПРОСЫ

One of the significant problems in contemporary domestic criminal proceedings is the issue of uniform, lawful and justified application of preventive measures in the form of remand in custody. This concerns both the selection of this measure of procedural coercion and the extension of the period of detention in custody. An analysis of scientific publications, legisla-tion, and the positions of the Constitutional Court, the Supreme Court and the European Court of Human Rights suggests the need to improve the provisions of the Code of Criminal Proce-dure regulating the application of this preventive measure. Under Article 109 of the Code of Criminal Procedure, which specifies the duration of remand in custody, remand in custody during the investigation of an offence may not exceed two months; if it is impossible to complete the preliminary investigation within that period and there are no grounds for changing or quashing the preventive measure, the period may be extended to six months. Further extensions (up to 12 months) may be made in respect of persons accused of serious or particularly serious offences only when the criminal case is particularly complex and there are grounds for choosing this preventive measure. The period of detention (up to 18 months) can be extended at the pre-trial investigation stage only in exceptional cases in respect of persons accused of especially grave crimes. As a general rule, this period is the maximum and no further extension is permitted. The exception to this rule is the extension of the period of remand in custody until the accused and his or her counsel have been informed of the case file (up to 30 days) or, if that is not sufficient, for a longer period of time. After the pretrial investigation has been completed, the period of remand in custody may also be extended by the court, on application by the investigator or the person conducting the initial inquiry, to ensure that the prosecutor, and also the trial court, takes account of the period provided for in article 221, paragraph 1, or article 226, paragraph 1, or article 226.8, or article 227, paragraph 3, of the Code of Criminal Procedure (article 109, paragraph 8.1 of the Code). The time limit may also be extended in the cases referred to in paragraph 8.2 of Article 109 of the Code of Criminal Procedure - to ensure that the higher prosecutor, as well as the trial court, takes decisions on the received criminal case for a period, the length of which is deter-mined by taking into account the time limits referred to in paragraph 4 of Article 221, or paragraph 4 of Article 226, or paragraph 4 of Article 226.8, as well as paragraph 3 of Article 227 of the Code of Criminal Procedure. Thus, the current Code of Criminal Procedure of Russia allows for a reasonable length of detention and does not set a time limit for a person under arrest to be held in strict isolation from society, limiting detention to an overall limit of 18 months only during the pre-trial investigation. This is because even very long periods of detention may be compatible with Article 5 § 3 of the European Convention. Article 5 § 3 of the European Convention on Human Rights, as the safeguards in that provision do not imply any permissible period of detention beyond which it would automatically be breached or guarantee compliance with it.

The System of Procedural Groundings to Stay Criminal Procedure in Legislation of the Russian Federation

The optimization of individual institutes of criminal procedure legislation contributes to the improvement of domestic criminal proceedings as a whole. One of the most important activities of the legislative bodies in this area is the further rationalization of the criminal case at each stage of the criminal process in accordance with the Russian legislation on the appointment of criminal proceedings. To date, this kind of optimization is impossible without an analysis of established practice and the development on its basis of proposals to improve the institution of suspension of criminal proceedings. In turn, the key place in this legal institution is occupied by the system of procedural grounds for the suspension of criminal proceedings. A balanced, well-thought-out and scientifically justified activity of legislative bodies in this area predetermines the reduction of the risks of reducing the level of protection of the rights and legitimate interests of participants in criminal proceedings. In addition, qualitatively new approaches to solving this problem, improvement of existing and introduction of new procedures in the mechanism of implementation of the Institute of suspension of criminal proceedings can change in a positive way the investigative and judicial practice, minimizing the possibility of artificial (unreasonable) delay of criminal proceedings and adoption of a final decision on it.

The Reopening of Proceedings After the Judgment of the ECtHR in Cases Against Lithuania

The author of this article examines the case law of the Lithuanian courts of general jurisdiction and administrative courts related to the reopening of domestic criminal, civil, or administrative proceedings when the European Court of Human Rights (hereinafter – the ECtHR or the Court) finds a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms and/or Protocols in the cases against Lithuania.

MULTI-VECTOR DEVELOPMENT OF RUSSIAN CRIMINAL JUSTICE – A PARADOX OR A PATTERN?

The article draws attention to the introduction of amendments and additions to the criminal procedure law in order to improve criminal proceedings, often of the opposite nature both aimed at protecting the person involved in the criminal proceedings, including as a suspected accused, defendant, and to increase opportunities criminal prosecution of these persons. The leading role in determining the vectors of development of criminal proceedings belongs, of course, to the criminal procedure policy developed by the relevant state bodies, but the criminal procedure policy has not yet led to the creation of a clear, well-defined concept of the development of the domestic criminal process. An example of inconsistency and insufficient reasonableness of legislative decisions is the current attitude of the legislator to the formation of the procedural status of the prosecutor. A clear definition of the ways of development of domestic criminal proceedings is due to the need for a clear choice of the model of the criminal process.

Standards of Criminal Procedure Evidence

The strategy of integration development of Ukraine envisages, in particular, the implementation of international standards of justice in the legal system of Ukraine. The article explores the essence of such a legal category as ‘the standard of criminal procedural proof’. The rules of evidence in the Anglo-Saxon and continental legal systems in the context of this issue are analyzed, as well as domestic criminal procedural legislation on the peculiarities of assessment of evidence in various criminal proceedings and at various stages. Conclusions are made on the existence of objective evidence of standards in the Anglo-Saxon family of law (‘beyond reasonable doubt’ and ‘probability balance’) and the subjective standard of proof in the countries of the continental system of law (‘on the basis of internal conviction’). The opinion on the lawfulness and expediency of the allocation of certain objective standards of proof and in domestic criminal proceedings is expressed.

DEBATABLE ISSUES OF ABUSE OF RIGHTS WHEN THE COURT IMPLEMENTS ITS DISCRETIONARY POWERS

In this article the author examines the general theoretical problems associated with the abuse of the right of a judge in the exercise of his discretionary powers in the framework of justice. The author considers the category of “abuse” through the categories of “good faith”, “interest” and “impartiality”. The author substantiates the claim that the judge's interest in the case does not imply his lack of impartiality. The article states that a significant change in the direction of criminal proceedings from national values to the recognition of the individual, his rights to individuality and self-realization has led to the development of procedural contradictions caused by the collision of the traditions of domestic criminal proceedings with innovations borrowed from the Anglo-Saxon adversarial process. In order to determine the optimal ratio of judicial discretion and its limits in criminal proceedings, as well as to prevent abuse by the court, the author has developed proposals to consolidate the principle of good faith of participants in criminal proceedings and the definition of abuse in the exercise of court rights.

The Burden of Criminal Procedural Proof

The urgency of the article stated in the article is due to the need to revise traditional scientific views on certain peculiarities of criminal procedural evidence in connection with the expansion of the adversarial nature of domestic criminal proceedings. The purpose of the paper is to determine the essence of the category ‘burden of proof’ and justify the necessity of introducing it into scientific and law enforcement circulation. The main approach to the study of this problem was to carry out a critical analysis of the norms of the current criminal procedural legislation that regulates the requirements regarding the burden of proof and the views expressed on their proper understanding and application. The publication expresses the view that the distinction between such legal categories as ‘burden of proof’ and ‘burden of proof’ is proposed, the definition of the concept of ‘burden of proof’ is proposed and the rules for burden sharing between parties of criminal proceedings are analyzed. The material of the article represents both theoretical and practical value. They can be used for further research into the essence of the concept of ‘burden of proof’, as well as for proper understanding and enforcement of criminal procedural law enforcement activities.

Procedural Haze: The ICC’s Jurisdiction over the Situation in Palestine

Palestine’s ratification of the Rome Statute, and limited retroactive acceptance of the jurisdiction of the International Criminal Court (ICC, or the Court), constitutes one of the major legal developments of the Israeli-Palestinian conflict in the past decade. But such a milestone does not come without contentious legal and political challenges. Several procedural obstacles are likely to arise, especially relating to jurisdiction and admissibility, which will determine whether the ICC even gets to substantive questions of accountability. No matter which cases might ultimately be prosecuted, any ICC investigation – and perhaps even the preliminary examination – is thus likely to confront the antagonisms surrounding Palestinian statehood, bilateral agreements between Israel and the Palestinians, border disputes, and domestic criminal proceedings.

Понуждение к действиям сексуального характера: правовые позиции Верховного суда Российской Федерации и Республики Казахстан

The relevance of the study is due to the importance of finding effective and at the same time humane measures to combat crime against minors that meet the generally accepted principles and norms of international law. The purpose of the study is to consider the international legal norms that form the basis of standards in the field of implementation of the rights of minors involved in the criminal proceedings orbit. We consider some aspects of the fair juvenile justice standards implementation in the Russian criminal procedure legislation. We analyze the provisions of the key normative acts in the field of juvenile justice, their application practice, as well as doctrinal approaches to the prospect of further improvement of the criminal procedural form of legal proceedings against minors. On the basis of the analysis, we highlight the proceedings features in the criminal cases category: criminal prosecution can be initiated only after reaching a certain age; expanded the subject of proof; the production involves additional participants; the establishment of additional grounds and conditions for the use of coercive measures related to the restriction of freedom; confidentiality, which determines the characteristics of the trial; expansion of the range of issues resolved by the court in sentencing. It has been concluded that the existing domestic criminal proceedings the order of proceedings in criminal cases in juvenile, despite the peculiarities that distinguish it from the general procedure, it is impossible to recognize the self-differentiated procedure.

МЕЖДУНАРОДНЫЕ И КОНСТИТУЦИОННЫЕ ОСНОВЫ ПРОИЗВОДСТВА ПО УГОЛОВНЫМ ДЕЛАМ В ОТНОШЕНИИ НЕСОВЕРШЕННОЛЕТНИХ

The relevance of the study is due to the importance of finding effective and at the same time humane measures to combat crime of minors that meet the generally accepted principles and norms of international law. The purpose of the study is to consider the international legal norms that form the basis of standards in the field of implementation of the rights of minors involved in the orbit of criminal proceedings. In this study we consider some aspects of the implementation of fair minor’s justice standards in the Russian criminal procedure legislation. Also we analyze the provisions of key regulations in the field of juvenile justice, the practice of their application, as well as doctrinal approaches to the prospect of further improvement of the criminal procedural form of legal proceedings against minors. On the basis of the analysis we highlight the features of the proceedings in the category of criminal cases: criminal prosecution can be initiated only after reaching a certain age; expanded the subject of proof; the production involves additional participants; the establishment of additional grounds and conditions for the use of coercive measures related to the restriction of freedom; confidentiality, which determines the characteristics of the trial; expansion of the range of issues resolved by the court in sentencing. It has been concluded that the existing domestic criminal proceedings the order of proceedings in criminal cases among minor, despite the peculiarities that distinguish it from the general procedure, it is impossible to recognize the self-differentiated procedure.