Domestic Criminal Process Research Articles

Проблемы привлечения адвокатом-защитником специалиста в уголовном судопроизводстве

The article studies the problems of attracting a specialist defense lawyer in criminal proceedings. The author examines the main reasons for the opposition of government entities to the right of the defense to present a specialist’s report, which contains a revision of the expert’s report. The legal positions of the European Court of Human Rights, as well as the Constitutional Court of the Russian Federation on issues of expert evidence are noted. In addition, the researcher turns to practical examples of both negative rejection of a specialist’s conclusion as unacceptable criminal procedural evidence, and the positive practice of perceiving a specialist’s conclusion as a basis for ordering a repeat forensic examination and even termination of a criminal case. Ultimately, the author concluded that it is necessary to reform the domestic criminal process in order to increase the efficiency of attracting a specialist defense lawyer as a means of countering criminal prosecution.

ELECTRONIC DIGITAL VIRTUALIZATION IN CRIMINOLOGY: OBJECTS AND FORMS OF RESEARCH; CRIMINALISTIC SIGNIFICANCE FOR THE CRIMINAL PROCESS

The purpose of the study. The article analyzes the manifestations of electronic digital virtualization in criminology, which is reflected both in the expansion of the range of objects of its research, and in the emergence of new types and forms (methodological, hardware-man-made) research in this field. The results of forensic practice make it possible to counteract the criminalization of the electronic digital virtual sphere and become potentially and actually, after their appropriate regulatory and legal formalization, a source of new objective evidence in the fight against criminal manifestations in the electronic digital information and communication environment. Conclusions. Domestic criminology, in the process of a dynamic transition of society from the industrial stage of development to the information one, acquires innovative areas and objects of research, including and in a virtual environment, which is accompanied by the generation and implementation of types and forms of research with virtualization elements. The results of forensic research in a virtual environment should be guaranteed to be able to become a source of objective evidence in the domestic criminal process, which requires the dynamic development of the legislative framework in this area, which at present is very much limited only to the field of computer-technical expertise.

Постановления, устраняющие недостатки приговора, как иные судебные решения в российском уголовном процессе

The subject of the study is the legal nature of the decisions made in the process of execution of the final court decision, the purpose of which is to eliminate its shortcomings that impede its execution. Such decisions include rulings on the execution of a sentence in the presence of other unexecuted sentences; on the offset of the time spent in custody, as well as the time spent in a medical institution; on clarifying doubts and ambiguities arising during the execution of the sentence. The scientific approaches of researchers to the legal nature of these decisions and their place in the criminal process are considered. 48 Уголовное судопроизводство № 1-2024 When applying the dialectical method of cognition, these decisions are investigated in conjunction with other court decisions issued in the domestic criminal process. The use of such private scientific methods of cognition as analysis, synthesis, abstraction, induction, deduction, systemic led to the conclusion that these decisions have procedural and legal features that are different from those that are normatively fixed and theoretically developed in the science of the criminal process, such as characteristic of interlocutory judgments. The position on the need to separate these decisions into an independent group of “other court decisions” in the Russian criminal process is substantiated.

Порядок привлечения лица в качестве обвиняемого в уголовно-процессуальном законодательстве России и зарубежных стран

The article analyzes the provisions of the criminal procedural legislation of foreign countries regulating the procedure for handing over the criminal procedural status of the accused to a person with the refraction of these legal positions on the domestic criminal procedural doctrine and practice. From the point of view of the comparative approach and taking into account the legal traditions of the domestic criminal process, proposals are formulated to improve the institution of bringing a person as an accused. It is noted that the existing procedure for giving a person the status of an accused person is dissonant with the principles of competitiveness and equality of the parties to the defense and prosecution and is more typical of the investigative type of criminal process. According to the authors, in an adversarial criminal trial in Russia, an accusation should be brought against a person by a prosecutor or other representative of the prosecuting authority before a court with the participation of the defense. The decision on bringing a person to criminal responsibility should become the exclusive prerogative of the court.

Concerning certain features of evidence assessment in different legal systems and in the practice of the European Court of Human Rights

The article examines certain features of the assessment of evidence in criminal proceedings in various legal systems and in the practice of the European Court of Human Rights. Different approaches to understanding the essence of the concept of "standard of criminal procedural evidence" are analyzed and the author's definition of it is proposed. It is illustrated that the rules of evaluation of evidence, which take place in Anglo-Saxon and continental jurisdictions, differ significantly. In the countries of the Anglo-Saxon legal family, objective criteria for the evaluation of evidence have been established - standards of evidence based on the idea of ​​assessing the probability of certain variants of the actual picture of the proceedings and have a guiding nature. Continental European countries, on the other hand, apply a subjective criterion for evaluating evidence, using the category of "internal conviction", which is based on the personal conviction of the subject of evidence in the truth of a certain fact. It was concluded that the effectiveness of evidentiary activity can be increased by introducing objective elements into the assessment rules, which leads to the development and normalization of standards of criminal procedural evidence in the domestic criminal process. This will contribute to the development of the same approach to making procedural decisions and the implementation of procedural actions by all subjects of evidence in various criminal proceedings and stages, who will understand the level of requirements for their adoption or conduct.
 When analyzing the practice of the European Court, it was determined that the rules for applying the standard of proof "beyond reasonable doubt" by the European Court and national courts (in particular, the Anglo-Saxon legal system) differ. In this regard, the opinion was expressed that domestic criminal proceedings should be guided by the practice of implementing this standard in the legal systems of common law countries.

Возвращаясь к вопросу о целесообразности следственных судей в процессе доказывания по уголовному делу

In criminal proceedings, starting from the judicial reform of 1864, the idea of creation a principle of adversity was fundamental. Due to political and ideological prerequisites, it is impossible to draw an unambiguous conclusion about the existence of an adversarial criminal process in Russia. At various stages of its formation, the procedural form was predominantly investigative or mixed, which means that at the pre-trial stages the role of the criminal prosecution prevailed due to the assigned burden of proof. But adversarial principles are still present in court.
 Undoubtedly, the 1991 reform concept set the task of creating an absolutely competitive judicial process. However, the adversarial form of criminal proceeding is still not always feasible, since there is no balance between the defense and the prosecution in the procuring of evidence. As a rule, at the pre-trial stages, the case lies in the hands of the criminal prosecution authorities, the defender is actually constrained in obtaining proof, dependent on the manifestation of procedural goodwill in the course of the preliminary investigation.
 In this regard, the goal of the research is to consider the role of such a procedural participant in the criminal process in the certain foreign states as an investigating judge, and the positive and negative aspects of their role.
 On the one hand, the experience of Ukraine shows that the investigating judge is a completely reasonable participant in the criminal process in terms of the implementation of judicial control and in ensuring the balance of interests of the defense and the prosecution in the implementation of objective competitiveness. On the other hand, Kazakh lawyers demonstrate the problems and workload of the investigating judge, whose procedural role is anything but simple.
 In order to research the issue of the expediency of the investigating judges in Russia, the following methods were used in this study: conversations, axiomatic method, analysis and synthesis.
 The article explores the perspectives of modern Russian and foreign scientists on the relevance or the futility of implementation the role of an investigating judge in Russian criminal procedure. That discussion ultimately comes down to the mentality of the domestic criminal process, that still remains predominantly accusatory at the pre-trial stages.

Questioning an Attorney as a Witness in the Client’s Case: Issues of Legality of Compelling Appearance and Admissibility of Evidence

The paper studies the legal regime of questioning an attorney (defense lawyer) as a witness in the client’s criminal case.Given the opinion of the Constitutional Court of the Russian Federation, the author considers in which cases it is necessary to obtain a preliminary judicial determination on the performance of investigative activities against an attorney. The paper analyzes the constitutional and legal positions of the Constitutional Court of the Russian Federation, given in the ruling of April 11, 2019 No. 863-O, and the emerging court practice. The author concludes that the investigative practice of calling upon and questioning an attorney as a witness in their clients’ cases without a preliminary court determination can be adjusted by the specified definition of the Constitutional Court of the Russian Federation. Based on the constitutional and legal positions reflected in the ruling of the Constitutional Court of the Russian Federation No. 863-O, an attorney cannot be brought to trial in a criminal case where he provides legal assistance to the client. Also he should not be forced to participate in investigative actions that are being carried out against him without obtaining a preliminary determination.If there is a preliminary court determination to conduct investigative actions against an attorney in the status of a witness in his client’s criminal case, it is impossible to challenge the attorney in this criminal case. If the investigator fails to comply with these requirements, the recognition of the evidence obtained in this way should be deemed inadmissible, and the right of the principal to defense should be considered violated. This violation should be recognized as significant and regarded as an obstacle to consideration of the criminal case on the merits in the judicial stages of the domestic criminal process. If we are talking about violations of a criminal law nature on the part of a lawyer, his principal or a third party, the guarantees of the regime of lawyer secrecy do not apply to such relations. It is not necessary to obtain a preliminary court determination on the questioning of a lawyer as a witness in such situations.

ДОКАЗИ І ДОКАЗУВАННЯ У КРИМІНАЛЬНОМУ ТА ЦИВІЛЬНОМУ ПРОЦЕСАХ: ПОРІВНЯЛЬНИЙ АНАЛІЗ

The article carries out a systematic and comparative analysis of doctrinal approaches to the definition of the concept of evidence and proof in criminal and civil processes, as well as an analysis of the legal norms of the criminal procedural and civil procedural codes, which define the concepts of evidence and proof. The purpose of this publication is a comparative analysis of evidences and proving in criminal and civil processes and the author’s development of the structure and content of evidence in criminal and civil processes based on the analysis of various doctrinal approaches to their understanding in the said processes. The article proves that, in general, the construction of Art. 84 of the current Code of Criminal Procedure of Ukraine and Art. 64 of the Criminal Code of Ukraine of 1960 are very similar, which gives some scientists grounds to unreasonably believe that the legislator left an information model of evidence based on the theory of reflection in the current Criminal Code of Ukraine. The author analyzes various concepts of evidence and proof in the modern theory of criminal procedural evidence and concludes that the most well-founded and the one that corresponds to both the epistemological and legal nature of court evidence is the concept according to which court evidence, being a category of objective-sub objective, represents the unity of factual data, their procedural sources and procedural form, which can be recognized as evidence itself only when it is recognized as such by the relevant subject of evidence or the court. In a specific criminal proceeding, evidence can be recognized as evidence itself if it meets such properties as propriety and admissibility. On the basis of a comparative analysis of doctrinal approaches to the definition of the concept of proof in the criminal process, the author concludes that, based on epistemology, logic, psychology, the theory of proof activity in the criminal process, the most well-founded concept of proof, which is based on the principles of the domestic criminal process and meets the needs of practice, is the concept, which defines criminal procedural evidence as the process of obtaining evidence and substantiating by it the subject of evidence and the court of its legal position and relevant decisions in criminal proceedings in accordance with its competence. The work reveals the content of obtaining evidence and substantiating its legal position and relevant decisions by the subject of evidence and the court. Analyzing doctrinal approaches to defining the concept and content of evidence and proof in a civil process in a comparative aspect with doctrinal approaches to defining the concept and content of evidence and proof in a criminal process, the author concludes that the terms «proof» and «proof» used in the theory of civil the process by individual scientists as different categories with different meanings are actually synonyms in the Ukrainian language. The author justifies that the fundamental categories of «evidence» and «proof» need unification at the doctrinal level, in the educational process and, accordingly, in the CPC and in the CPC of Ukraine, because from the point of view of epistemology, logic, theory of activity, psychology and law, evidence and proof in criminal and civil processes essentially have the same meaning. At the same time, the difference, in particular, of proof in criminal and civil processes lies in the object, purpose, tasks, means of proof and the legal status of the subjects of proof.

Implementation of the principle of competitiveness of the parties and free- dom in the presentation of their evidence to the court in the criminal process of some countries of the world

One of the tasks of criminal proceedings is to protect the individual, society and the state from criminal offenses, which is achieved through the implementation of other tasks, in particular, by ensuring a rapid, complete and im-partial investigation and trial. In this case, any procedural decisions in criminal proceedings must be based on evi-dence that serves as a kind of link between the event of a criminal offense and the consciousness of the investigator, prosecutor, investigating judge, court. Evidence itself is the main content of criminal procedure in both the pre-trial investigation and in the judicial stages of criminal proceedings in most countries.The authors note that the Constitution of Ukraine as one of the main principles of justice provides for adversarial parties and freedom in providing the court with their evidence and proving their persuasiveness before the court. Factor The Criminal Procedure Code of Ukraine has significantly expanded the scope of this principle of the do-mestic criminal process, including in the field of evidence. Thus, the defense, as well as the prosecution, was given the opportunity to collect evidence during the pre-trial investigation, as a result of which the right of the parties and other participants in criminal proceedings to submit evidence (things and documents) is becoming increasingly important.The article also examines that the principles of criminal procedure in France include: the principle of formality, prosecution, legality, equality, dignity, protection of the victim, urgency of the trial, presumption of innocence, publicity, oral and adversarial proceedings. And the main principles of the criminal process in Germany include: the principle of formality (publicity); the principle of charge; the principle of legality and the principle of compulsory research. A characteristic feature of modern law in the field of criminal procedure in the United States is the consis-tent expansion of the institution of delegated legislation. The US Congress has delegated to the Supreme Court the right to establish rules of criminal procedure that have the force of federal law.

Development of forensic tactics at the stage of mature science

The article completes a series of works devoted to the study of the history of forensic tactics. The author’s vision of periodization of formation and development of this section of science is given. It is concluded that the trends of the current stage of development of forensic tactics are determined by radical changes in the evidence paradigm, based on the competitive ideology of the reformed criminal process. This poses a number of urgent tasks for scientists and practitioners, including improving the tactics of interrogation, inspection, search, presentation for identification, and the development of methods for conducting new investigative actions for our judiciary, such as simultaneous interrogation of two or more persons, investigative experiment. The whole spectrum of covert (investigative) investigative actions – an institution also still unknown to the domestic criminal process – is in dire need of tactical and forensic support.
 The need to substantiate the expediency of expanding the cognitive boundaries of forensic tactics, extending its recommendations to the field of criminal proceedings is becoming more and more tangible. It is necessary to continue developing the theory of court situations, tactical decisions, tactics of judicial interrogation and other procedural actions. The problems of planning court proceedings, in particular in the aspect of ensuring the continuity of court proceedings, remain relevant and require further research on the basis of the provisions of the current legislation.
 The specific activities of the investigating judge require completely new tactical developments. There is an urgent need to develop tactical recommendations on the means of ensuring criminal proceedings, overcoming the opposition to pretrial investigation and trial of criminal cases, protection of participants in criminal proceedings. Extremely important from the standpoint of current trends in criminal justice is the development of tactical and forensic recommendations to ensure judicial proceedings on the basis of procedural agreements and other special procedures of criminal proceedings (simplified, special, etc.).

Regarding the use of special knowledge by an expert on legal issues in the criminal procedure of Ukraine

The article is devoted to the study of the feasibility of introducing the institute of expertise in the field of law in the domestic criminal process. The correlation and interrelation of special and well-known knowledge is analyzed. The content of special knowledge possessed by a forensic expert as a complex concept, including professional knowledge in the field of science, art, technology and craft, which are not publicly available and well-known, as well as certain skills and abilities how to apply them in order to obtain such a procedural source of evidence as an expert opinion. The peculiarities of the world experience of realization of the institute «amicus curiae» both in the countries of continental law and in the Anglo-Saxon legal system states are studied. It is noted that the subject and task of such expertise in foreign countries is the interpretation of legal norms in law enforcement practice, the establishment of compliance of certain legal facts with the current legislation requirements. The possibility of using legal knowledge by a forensic expert is determined, in particular, it is proposed the author's concept that the expert opinion on legal issues (as, in fact, the conclusion of a forensic expert) will not have an obligatory value, and its strength is in the rationality of arguments, reasoning of conclusions and proposals. It is noted that the opinion of a specialist in the field of law does not oblige to make a decision in favor of a particular participant in the process, but makes you think and motivate your actions, especially those participants in the process who are endowed with authority. According to the results of the study, it is substantiated that the involvement of legal experts in the domestic criminal process will be the key to making fair and reasoned decisions. The advantages and possible consequences of the legal expertise introduction of are highlighted, the relevant amendments to the CPC of Ukraine and recommendations for obtaining the status of a participant in criminal proceedings by a legal expert are proposed.

A VALORAÇÃO DA PROVA ORAL NO PROCESSO PENAL BRASILEIRO

The present work had as main objective the accomplishment of a jurisprudential survey regarding the analysis that has been carried out by the Courts when evaluating the oral evidence in the scope of the domestic criminal process. Initially, brief considerations were made regarding the system of evidential valuation adopted mostly in Brazil -rational persuasion -in order to enter objectively in the assessment of oral evidence by national jurisprudence. In this context, several judgments of the Supreme Federal Court, Superior Court of Justice and several State Courts were analyzed, in which precedents were established regarding the valuation of the victim's word, the testimony of police witnesses and informants, as well as the statements of the defendant, whether he is a collaborator or not.Data collection was performed based on accessible sources, such as: printed documents, scientific articles, books and judges, always considering the need for data collection from various sources. The data were analyzed using the hypothetical-deductive method, collected information analyzed and compared in a dialectical way. The results achieved with the research with concrete as to the contribution to the debate that permeates the theme, concluding by the need to build a jurisprudential framework that allows the valuation of the evidence in order to respect the principles of the presumption of innocence and the prohibition of protection deficient.

Problems of withdrawal of electronic media of information in the domestic criminal process

Problems of withdrawal of electronic media of information in the domestic criminal process

ФУНКЦІЇ АДВОКАТА В КРИМІНАЛЬНОМУ ПРОЦЕСІ

The article examines the problematic issues of the lawyer’s functions in the criminal process. The purpose of the article is the doctrinal definition of the lawyer’s functions in the domestic criminal process based on the results of the analysis of the doctrinal interpretation of the concept of function in the criminal process, the doctrinal understanding of the status of the lawyer and defense and their functions in the criminal process. On the basis of the analysis of scientific sources, as well as the provisions of the national procedural legislation, the concept, content and types of functions of the lawyer in the criminal process were investigated. The author’s definition of the concept of criminal procedural functions is formulated. It has been proven that a lawyer performs three functions in a criminal trial: defense; representation; advisory and legal assistance. These functions are defined and their content is disclosed. The function of protection as a type of advocacy consists in ensuring the protection of the rights, freedoms and legitimate interests of a suspect, accused, defendant, convicted, acquitted, a person in relation to whom the use of coercive measures of a medical or educational nature is expected or the question of their use in criminal proceedings is being decided, a person, in relation to which the question of extradition to a foreign state (extradition) is being considered, as well as a person who is criminally liable in criminal proceedings. The function of representation as a type of lawyer’s activity is to ensure the implementation of the rights and obligations of the client in the criminal process, namely the implementation of the rights and obligations of the victim, civil plaintiff, civil defendant and witness. The function of advisory and legal assistance as a type of advocacy consists in providing legal information, consultations and clarifications on legal issues, legal support of the client’s activities, drafting statements, complaints, procedural and other documents of a legal nature, aimed at ensuring the realization of rights and freedoms and legitimate interests of the client, preventing their violations, as well as assisting in their restoration in the event of a violation. It is proved that in comparison with Art. 48 of the Criminal Procedure Code of Ukraine of 1960, in the Criminal Procedure Code of Ukraine of 2012 (Articles 46–54), the legislator significantly expanded the list of grounds for which a defense attorney, after being involved in criminal proceedings, has the right to refuse to perform his duties. It is emphasized that the current Code of Criminal Procedure of Ukraine significantly improved the legal status of the defender, compared to the Criminal Code of Ukraine of 1960, which is manifested, in particular, in the establishment of additional procedural rights and a special procedure for his entry into criminal proceedings.

Basic methodological concepts of domestic criminal process

Basic methodological concepts of domestic criminal process

ГАРАНТІЇ ПРАВ І СВОБОД ОСОБИ ПІД ЧАС ПРОВЕДЕННЯ НЕГЛАСНИХ СЛІДЧИХ (РОЗШУКОВИХ) ДІЙ... ТА ОПЕРАТИВНОРОЗШУКОВИХ ЗАХОДІВ У ДОСУДОВОМУ РОЗСЛІДУВАННІ В УМОВАХ ВОЄННОГО СТАНУ, НАДЗВИЧАЙНОГО СТАНУ АБО У РАЙОНІ ПРОВЕДЕННЯ АТО

The article substantiates that the current Criminal Procedure Code of Ukraine, having implemented the institution of covert investigative (search) actions and preserving the possibility of conducting operative and investigative measures in the interests of criminal justice, has significantly expanded the means of obtaining evidence in criminal proceedings. On the basis of the analysis of the materials of the practice of domestic law enforcement agencies and courts, the practice of the European Court of Human Rights, the norms of the current criminal procedural legislation, the legislation on operative-investigative activity and regulatory-legal departments, typical violations of the legislation in the conduct of undercover investigative (investigative) actions and their use are distinguished results in evidence by pre-trial investigation bodies and courts, which lead to the violation of human rights: 1) absence or groundlessness of factual and legal grounds for conducting secret investigative (search) actions; 2) violation of the deadlines for conducting secret investigative (research) actions; 3) incompleteness and violation of legislation when drawing up protocols of secret investigative (search) actions; 4) drawing up protocols of secret investigative (search) actions by unauthorized entities; 5) conducting or authorizing the conduct of covert investigative (search) actions by unauthorized entities; 6) the absence in the materials of the criminal proceedings of the decisions of the investigating judge on granting permission to conduct secret investigative (search) actions; 7) violation of the rules of admissibility and propriety when using the results of secret investigative (search) actions as evidence in a criminal trial; 8) violation of legality in the tactics and organization of secret investigative (search) proceedings. It is proved that the guarantees of legality and observance of human rights in the conduct of covert investigative (search) actions and investigative measures and the use of their results in evidence in criminal proceedings are: a mixed form of the domestic criminal process with the expansion of adversarial principles in the pre-trial investigation; procedural (legal) form of covert investigative (detective) actions and operative-detective measures; effective departmental control, prosecutorial supervision, judicial control; independence of the court; high professionalism of defenders, prosecutors, judges and pre-trial investigation bodies; low level of corruption of justice bodies and developed public control over their activities. Under the special regime in the conditions of martial law, state of emergency or in the area of anti-terrorist operation the guarantees of personal rights during the conduct of covert investigative (search) actions and operative-search measures are preserved.

Conceptual problems of construction of the constitutional and legal model of adversarial proceedings of the criminal process of Ukraine

The article is devoted to the conceptual problems of building a competitive model of the criminal process of Ukraine under thecurrent Criminal Procedure Code of Ukraine (the CPC of Ukraine).Scientific understanding of the constitutional and legal essence and functionality of the modern model of the criminal process ofUkraine can be essential only when its concept is unquestionably based on the provisions of the Constitution of Ukraine andinternational legal standards and is carried out in terms of constitutional principles: rule of law, independence of court, right toprotection. as well as the principles of adversarial and other principles of justice. In the context of reforming the legal system of Ukrainein the European integration process, there is a convergence of the domestic legal system with the EU legal system, so the relevance ofthe study of the conceptual framework of the criminal process of Ukraine on the basis of international human rights law objectivelyincreases.The Association of Ukraine to the EU necessitated the adoption of a number of legal principles, first of all the rule of law andadversarial principles, through international law, and not exclusively through national prism, because their modern understanding isgreatly influenced by such judgemental factors as: 1) codification of international law and its progressive development; 2) compliancewith the international legal obligations of Ukraine as a subject of international law in the field of human rights protection, arising fromboth international treaties and customary international law; 3) the responsibility of Ukraine as a subject of international law for theimplementation of international obligations.
 The article analyzes the national experience of legal regulation of adversarial proceedings in criminal proceedings, explores va -rious scientific approaches to this problem and concludes on the actual inequality of the parties in criminal proceedings, as well asdefines the legislative model of the criminal process in Ukraine. The analysis of international legal acts, provisions of the Constitutionof Ukraine, CPC of Ukraine and positions of procedural scholars given in the article gives grounds to state that the tendencies of deve -lopment of criminal procedure legislation of Ukraine bring the criminal process of Ukraine closer to the public-competitive model withAnglo-Saxon elements on an international and constitutional conceptual basis.The conceptual foundations of the modern criminal process of Ukraine are a system of theoretical, legal and praxeological provisionsof general nature, enshrined in the provisions of international legal documents that define international standards in the field ofhuman rights and the Constitution of Ukraine, which directly affect the content and model of domestic criminal process. The basic basisof the concept of the criminal process of Ukraine is the Constitution of Ukraine, which determines the basis and form of any legal phenomenonin the state. Despite the fact that the concept primarily reflects the theoretical foundations, basic principles and prerequisitesof a particular activity, it forms the basic concepts, schemes and forms according to which this activity is implemented. Thus, changingthe conceptual basis of criminal procedure is its most radical reform, as it leads to the need to abandon previously substantiated postulatesand standards of thinking and action, to change the basic concepts that ensure a holistic perception of the system of this activity,and therefore should be based on Constitution of Ukraine, which will build a constitutional and legal model of adversarial criminal proceedingsin Ukraine.

Самостоятельность следователя: проблемные аспекты определения правовой сущности и функционального назначения

The article examines topical issues relevant to the domestic criminal process related to the determination of the legal nature and functional purpose of the category ≪procedural independence of the investigator≫. Based on the analysis of the theory, criminal procedural legislation and the practice of its application, the author concludes that from the point of view of the legal nature, the independence of the investigator should be considered as a ≪criminal procedure tool≫ provided to him by the law, functionally designed for professional activities. The concept of the category in question is proposed, as well as measures aimed at improving the legislation determining the legal status of the investigator and regulating his procedural independence.

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 victim’s rights in the use of coercive measures during pre-trial investigation in the Republic of Kazakhstan

Kazakhstan has adopted a policy of procedural economy, which is expressed in the acceleration of the pas-sage of criminal cases at all stages of the criminal process. The introduction of many new procedural institu-tions and forms of pre-trial investigation, the updating of criminal procedure legislation actualizes the issue of investigating the procedural status of the victim. The modern domestic criminal process should provide a balance between numerous novelties and procedural rules designed to ensure compliance with the principle of competition and equality of the parties to the prosecution and defense. In accordance with this principle, "the parties involved in criminal proceedings are equal, that is, they are given equal opportunities to defend their position in accordance with the Constitution of the Republic of Kazakhstan and the CPC. The authors have studied international documents regarding the regulation of the rights of victims in criminal proceedings. The victim is one of the Central figures in the criminal process, especially if it is a crime against the person, and must have broad rights to protect their interests. In this regard, the issue of choosing a preventive measure against a suspect (accused), taking into account the opinion of the victim, is of particular importance. The authors studied the opinions of scientists and practitioners on the issue under consideration, as well as the provisions of criminal procedure legislation regulating the rights and obliga-tions of the victim, the ratio of General and special norms. As a result, the authors concluded that it is necessary to grant the victim the right to Express his opinion on the use or non-use of coercive measures against the suspect. In the course of studying this issue, the authors applied methods of comparative analysis, deduction, forecasting, and others. On the basis of the research, appropriate recommendations were developed to improve the legal regulation of the rights of the victim in criminal proceedings of the Republic of Kazakhstan.