Judicial Investigative Practice Research Articles

Violence Under The Regulation Of The New Criminal Code Of The Republic Of Armenia

Considering that the definition “violence” received a new interpretation in the new RA Criminal Code, which entered into force on July 1, 2022, it became necessary to consider the content of this definition and the possibility of its application within the framework of the Аrticles of the Special Part of the RA Criminal Code. This issue has become more relevant due to the differences in the interpretation of the definition “violence” enshrined in Article 3 of the RA Criminal Code, and the term previously given by the RA Court of Cassation on November 1, 2012 in the criminal case ԱՐԴ/0176/01/11 in relation to Arevik and Tsovinar Sahakyan: especially since practice not only accepted the position of the indicated RA Court of Cassation and widely applied it. As a result of the comprehensive analysis carried out in this context, implementing the goals of this study, recommendations of both a legislative and practice were presented. It is undeniable that intentional physical influence on another person against his/her will or regardless his/her will, or causing him/her physical harm in this way is considered violence, however, this definition doesn’t completely solve the issues posed by the RA Criminal Code, and doesn’t satisfy the requirements of certain Articles of the Special Part of the RA Criminal Code. Consequently, on the basis of the presented recommendations, it will be possible not only to clarify the existing confusion that arises between the analyzed definitions, but also, by applying the presented interpretations in practice, to form a judicial-investigative practice that will comply with legislative norms and is based on the principles of law. The article examines the problem of the definition “violence” of practical and theoretical significance, based on which the article can be useful to both theorists and practitioners. The presented comments can be effective for formulating further decisions of the RA Court of Cassation, as well as for specialists carrying out legislative activities.

Prank and Criminal Law

The article is devoted to the study of such a little-studied phenomenon in the domestic theory of criminal law as prank. In the context of digitalization, the need to understand its legal consequences has increased significantly. The author comes to the conclusion that the Russian science of criminal law is at the stage of early understanding of pranking. To date, no single solution has been developed both in terms of improving criminal legislation and regarding the rules for qualifying pranking. Under these conditions, judicial investigative practice selectively and very contradictorily reacts to pranking by applying traditional criminal law norms on liability for theft, extortion, theft, hooliganism, etc. Taking into account the social essence of the phenomenon, the article concludes that a simple decision to criminalize pranking does not exist. Based on an analysis of existing points of view in the science of criminal law and materials from law enforcement practice, approaches to the criminal legal assessment of pranking are highlighted.

POLITICAL AND LEGAL CATEGORY ‟POLITICAL HATRED” IN THE DIGITAL PUBLIC DISCOURSE OF GOVERNMENT AND SOCIETY AND IN THE JUDICIAL AND INVESTIGATIVE PRACTICE OF MODERN RUSSIA

The purpose of this publication is a systematic analysis of the political and legal category “political hatred” in the sphere of civil public space, as well as in the law enforcement and judicial investigative practice of modern Russia. The main general scientific methods that are used to achieve this goal are systemic, normative and comparative research methods, elements of logical analysis, as well as such private empirical methods as discourse analysis, content analysis and monitoring of digital discourse of government and society. Topicality of the issue under consideration lies in the fact that in the context of the conduct of the Ukraine conflict, the number of criminal cases classified on the grounds of “political hatred” has sharply increased in judicial investigative practice. At the same time, in existing legal acts and in the scientific literature on political and legal issues, a detailed categorical analysis of the concept of “political hatred”, its features and content is almost completely absent. The authors of this article tried to eliminate this objectively arising gap by developing, on the basis of theoretical analysis and study of law enforcement practice, their own vision of the emerging situation and interpretation of the political and legal category of “political hatred”.

Criminal Prosecution for Organizing or Maintaining Dens for the Consumption of Narcotic Drugs, Psychotropic Substances, Their Analogues and Providing Premises for The Same Purposes Under the Legislation of the Republic of Kazakhstan

The main aim of the study is to consider problematic issues related to the qualification of a criminal offense, provided for in Article 302 of the Criminal Code of the Republic of Kazakhstan “Organization or maintenance of dens for the consumption of narcotic drugs, psychotropic substances, their analogues and the provision of premises for the same purposes”. This article describes the circumstances that make it difficult to prosecute persons who provide their homes or other premises for the consumption of narcotic drugs, psychotropic substances, their analogues, as well as the organizers of this type of illegal activity, creating conditions for anesthesia of the population. Through the study and analysis of statistical information, available approaches to this issue, as well as materials of judicial investigative practice in cases of this category, an attempt was made to consider the causes and conditions conducive to the commission of this offense, an author’s vision of resolving the situation was proposed. The article presents the data of criminal statistics in Kazakhstan for 2015-2018, identifies the most typical conditions conducive to the creation and functioning of drug traffickers, makes reasonable proposals for amending Article 302 of the Criminal Code of the Republic of Kazakhstan, aimed at improving the current criminal law. The materials of the article can be of practical value for law enforcement officers fighting the specified type of crime.

Использование животных при хулиганстве и иных преступлениях, совершенных из хулиганских побуждений

The features of criminal-legal estimation of use of representatives of fauna at hooliganism and other crimes which are made with hooliganism motives are considered. The author points out inconsistency of the settled judicial-investigative practice of recognizing dogs as an object used as a weapon during commitment of a crime. The subjective signs of the use of animals during the commitment of the researched acts are analyzed. Practical examples of bringing to responsibility of persons who use animals during the commission of a crime under Art. 213 of the Criminal Code and other acts of hooliganism are demonstrated.

О ПОНЯТИИ И СИСТЕМЕ ПРИНЦИПОВ УГОЛОВНОГО СУДОПРОИЗВОДСТВА

The article discusses the system of principles of criminal proceedings. The author, based on the study of legal literature, judicial investigative practice, analyzes the existing system, focuses on controversial issues that require special attention.

УСКОРЕННОЕ ДОСУДЕБНОЕ ПРОИЗВОДСТВО ПО УГОЛОВНЫМ ДЕЛАМ: ПРОБЛЕМЫ ТЕОРИИ И ПРАКТИКИ

The article discusses the system of principles of criminal proceedings. The author, based on the study of legal literature, judicial investigative practice, analyzes the existing system, focuses on controversial issues that require special attention.

FALSIFICATION OF MEDICINES AND DISTRIBUTION OF FALSIFIED MEDICINES IN UKRAINE: CRIMINALISTIC MEANS OF DETECTION AND COUNTERACTION

The aim: To formulate criminalistic recommendations to increase the effectiveness of combating falsification and contribution of falsified medicines. To accomplish analyze of the current state and trends in combating this criminal offense, to create the basis of criminalistic characteristics and methods of their investigation, taking into account the results of the generalization of judicial investigative practice and foreign experience. Materials and methods: The examine and analysis of results and generalization of 128 criminal proceedings of such criminal offenses, court decisions for the period 2012- 2020; questionnaires of practical workers (205 people); results of generalization and analysis of published materials of investigative and judicial practice; foreign experience in combating falsification of medicines, etc. In the process of conducting this research, general scientific and special research methods were also used. Results: Based on the results of the generalization of investigative and judicial practice, a criminalistic description of falsification and contribution of falsified medicines in the form of descriptive and statistical information model has been developed, its elemental composition was determined and analysed. Reasonable that in theoretical terms criminalistic characteristics are the basis for building appropriate criminalistic methods, and in practical terms is considered as a kind of guideline that can be successfully used by investigators in the conduct of specific criminal proceedings, which allows choosing the most effective directions and means of investigation. Conclusions: One of the priority areas of research in criminalistics is the development of criminalistic characteristics and basics of investigation methods of falsification and contribution of falsified medicines, which must be carried out on the basis of the modern general theory of criminalistics, current legislation and practice, results of generalizationand analysis of investigator of judicial practice and foreign experience.

Современные способы совершения преступлений, связанных с доведением несовершеннолетних до самоубийства с использованием социальных сетей, и ответственность за них

The article discusses certain aspects of the commission of crimes related to bringing juveniles to suicide. The author’s classification of these crimes is proposed, relevant examples of judicial investigative practice are given. In addition, as an argument for the additional argumentation of the author’s arguments, the results of a sociological study on the activities of destructive network communities related to the incitement of minors to suicide were published.

Criminal Law Analysis of Iatrogenic Crimes and Practice of Applying the Norms of Criminal Law, Providing Responsibility for their Commission

Introduction. Caring for the health of citizens is the most important task of any state, and the article 41 of the Constitution of Russia directly establishes the right of everyone to protection of health and medical care. Despite the noble and humane mission that medical workers are called upon to carry out, helping people and saving their lives, the problem of medical errors (iatrogenic) leading to tragic consequences has clearly indicated its presence recently. The high public danger of such phenomena causes the need for their criminal law assessment. The problems that arise in this case are connected, first of all, with a diverse understanding of the essence of medical errors and iatrogenic crimes, the lack of uniformity in the application of the criminal law establishing liability for their commission. Theoretical Basis. Methods. The article is based on the analysis of Russian and foreign criminal, administrative, civil legislation, court sentences and decisions, scientific publications in Russian and foreign publications. In addition, expert opinions, doctrinal ideas and opinions on the topics of this work were used. In the process of preparing the article, a number of general scientific and private scientific research methods were used. Results. The article discusses issues related to the specifics of the criminal law assessment of acts committed by medical workers in the process of professional activity. The positions of specialists are given regarding the definition of this specific group of crimes, the author’s vision is formulated on the classification of specific socially dangerous acts as “iatrogenic”. The current legislation in the field of health care is examined, which makes it possible to concretize the terminology used in the articles of the Russian Criminal Code providing liability for iatrogenic crimes. The judicial-investigative practice of applying the indicated norms of the criminal law is analyzed, the problems of qualification of such acts are revealed. Discussion and Conclusion. In conclusion, the authors differentiate such concepts as “medical error”, “accident”, “iatrogenic crime”, determine that the deliberate commission of an iatrogenic crime should be assessed either according to the rules on the circumstances that exclude the criminal act, or as a general criminal act; designate a circle of crimes defined as “iatrogenic”; come to the conclusion that the solution to the problem of counteraction to iatrogenic crimes cannot be associated with the intensification or expansion of criminal repression.

NOVELS OF CRIMINAL LEGISLATION IN THE CONDITIONS OF PANDEMIA

The relevance of the chosen topic is caused by changes in the current Russian administrative and criminal legislation in connection with the spread of a new coronavirus infection. Based on specific examples, the authors confirm that, in various constituent entities of the Russian Federation, a diverse practice of the application of such norms is emerging, which leads to the lack of a uniform application of the law. The subject of the study is legislative, doctrinal, interpretative provisions, as well as judicial investigative practice, reflecting the specifics of applying the law in the field of protecting citizens from the threat of the spread of infectious diseases. The purpose of the study is to analyze legislative novels and develop scientifically sound provisions to improve existing legislation and law enforcement practices in the field of counteracting encroachments in the field of sanitary and epidemiological welfare of the population. The main research method is the dialectical-materialistic method of cognition, which allows you to objectively and comprehensively consider the problems of legal assessment of offenses in the field of ensuring the sanitary and epidemiological well-being of the population. Along with it, general scientific research methods were used: analysis, synthesis, deduction, induction, abstraction; special research methods were used: formal legal, interviewing. The work provides a detailed critical analysis of the composition of administrative offenses and crimes in the field of sanitary and epidemiological welfare of the population, explores the most important issues for law enforcement. In addition, the authors propose measures to improve legislation in this area. The criminological risks of introducing a system of immune passports are studied. The scientific novelty of the study is evidenced by the main conclusions and conclusions reached by the authors, containing recommendations for improving legislation in this area and the practice of its application. The independence of the conclusions made is confirmed by a comprehensive approach to the study of new norms of the current administrative and criminal legislation, as well as materials of judicial investigative practice.

Scientific and technical support for investigative activities: content and directions

The article is devoted to the problem of scientific and technical support for investigative activities, the relevance of the study of which is due to the fact that the accelerated development of technology significantly changes the methods and means of committing crimes and also expands the space for illegal activities. In this regard, the issue of innovative re-equipment of investigative activities, narrowing the gap between the possibilities of the results of scientific and technological achievements and the actual practice of their use by representatives of law enforcement agencies, is an acute issue. Therefore, the identification of promising areas of integration into the investigative activities of the latest scientific and technical means and technologies that ensure its effectiveness and compliance with the modern needs of judicial investigative practice is quite important practically significant.The purpose of this article is to clarify and disclose the content of scientific and technical support for investigative activities; the study of the possibilities of using modern products and the latest technologies in the activities of investigators, prosecutors, detectives, identifying priority areas of scientific and technical support for the activities of pre-trial investigation bodies.The author presents the possibilities of using modern products in the activities of authorized entities and preliminary investigation bodies. It is concluded that the content of scientific and technical support lies precisely in the interconnected solution of problems that contribute to the creation of optimal conditions for using the achievements of science and technology in order to effectively protect society and the state, basic social values of a person, as well as providing forensic information and establishing the truth in criminal investigations

Use of special knowledge in investigation of anti-morality crimes

The scientific article deals with some aspects of the investigation of crimes against morality. The peculi-arities of the use of special knowledge in the investigation of this category of criminal offenses are con-sidered. The author emphasizes that during criminal proceedings at the stage of both pre-trial investigation and in court, questions may arise, which, due to their narrow specialization and unlawful nature, may not be within the power of the investigator and the court. In such cases, other participants in the criminal process are involved in the process of proving - persons who have special knowledge sufficient to make a qualified solution to the problem. It is noted that special knowledge is a set of theoretical knowledge and practical skills in the field of science, technology, arts, crafts obtained as a result of vocational training and professional education used for the prevention and investigation of criminal offenses. The view is maintained that the following should be attributed to independent forms of the use of specialized knowledge: the direct application of specialized knowledge in science, technology, art and craft by the judge himself; appointment of examinations; appointment of audits; knowledge that is inherent in various types of professional activity, except knowledge that is professional for the investigator and the judge, and is used in the investigation of crimes and criminal proceedings in court in order to facilitate the establishment of the truth of the case in cases, forms and procedures determined by criminal- procedural legislation; consulting assistance of a specialist without involving him personally in court actions; expert's participation in court actions. It is emphasized that specialized knowledge can be used directly and indirectly by an authorized person. Based on the analysis of judicial investigative practice, the following were distinguished among the main forms of use of special knowledge in the investigation of crimes against morality: direct (use of special knowledge by investigators in carrying out individual procedural actions); mediated (appointment of forensic expertise and involvement of relevant specialists in individual procedural actions).

VIOLATIONS OF THE RIGHTS OF PERSONS AFFECTED BY CRIMES

The article discusses the most common methods and forms of violation of constitutional and proceduralrights of certain categories of persons affected by crimes. Attention is drawn to the causes of these violationsby persons who are called upon to protect persons whose rights and legitimate interests have beenviolated. Based on the study of materials of judicial investigative practice, certain categories of personsare distinguished whose constitutional and procedural rights are violated more often in comparison withother categories. Based on the isolation of various criteria, the article considers categories such as minorsand juveniles; foreign citizens; persons serving a sentence of imprisonment; women affected by domesticviolence. Particular attention is paid to victims of crime in places of execution. This category of persons isthe most vulnerable due to the special legal situation determined by the conditions of isolation from society.The study of the problem of violations of the rights of persons affected by crimes will contribute to thedevelopment of measures aimed at the prevention of unlawful actions (inaction) of persons called to protectand respect these rights.

Хищения с использованием электронных платежных систем (региональная судебно-следственная практика)

The advent of the electronic currency and the effecting of electronic payments has caused new forms of thefts and types of acquisitive crimes. The judicial investigative practice of criminal cases of embezzlement committed using bank cards and other types of electronic payments has encountered problems with the qualification of such acts. The author identifies the most common enforcement problemsand their causesby a retrospective study of judicial practice, the changing norms of the criminal law. At the same time, a ten-year period of work of the judicial investigating authorities was studied. On the basis of traditional general scientific methods of cognition, as a result of a system-legal analysis of the considered set of specific situations, the author gives an author's view of the complex of causes that cause a lack of uniformity in judicial investigative practice. Using the hermeneutic approach, the author paid special attention to the application by the courts of the interpretation of the criminal law by the Plenum of the Supreme Court of the Russian Federation in different years. In conclusion, ways of resolving contentious issues of qualification of thefts and fraud in the field of electronic means of payment are proposed. It has been ascertained that high-quality and uniform law enforcement can provide additional clarification on the delimitation of related and competing theft from the Plenum of the Supreme Court of the Russian Federation. It is concluded that in general, the current concept of the Plenum of the Supreme Court of the Russian Federation does not contain contradictions with the novels of the criminal law, but can be improved. The rationale and edition of possible additions to the relevant decision of the Plenum of the Supreme Court of the Russian Federation are given.

О формах нефизического (психологического) насилия в уголовном законодательстве России

The article is devoted to the study of forms of non-physical violence stated in the articles of the Special Part of the Criminal Code of the Russian Federation. The main objective is to study the issues of representing the forms of non-physical violence in criminal law, aimed at developing recommendations for improving criminal law to increase its effectiveness. The authors analyzed the provisions of the criminal legislation of Russia and the materials of judicial investigative practice, which made it possible to identify a number of shortcomings. The results led to the conclusion that the most common forms of non-physical violence are: threat, coercion, blackmail, bullying and insult. According to the authors, cheating cannot be related to the variety of violence since the phenomenon itself does not cause moral suffering to the victim, hence, a crime with this attribute is not violent. In addition, the authors conclude that not all forms of non-physical violence are reflected in the criminal law. The authors propose to consolidate the use of hypnosis as a qualifying attribute in some elements of the crime, as this will allow to resolve a number of qualification problems, and will also contribute to the correct particularisation and differentiation of punishments.

SOME PROBLEMS OF QUALIFICATION OF CRIMES COMMITTED BY MEDICAL WORKERS: PROBLEMS OF LAW

The relevance of the study is determined by a number of factors, including an increase in the number of appeals and complaints against medical workers due to their poor quality of services, an increase in the number of crimes they commit, and the number of draft laws prepared to improve the law in this area. Based on the materials of the judicial investigative practice, the presented publication conducted a study of objective and subjective signs of a crime, providing for liability for causing death by negligence by a medical worker in the case of poor quality medical care or medical services. In addition, the criteria for delimiting the corpus delicti, providing liability for causing death by negligence and carelessness, on the basis of which recommendations on the qualification of the offense are proposed. The authors have developed recommendations for improving the application of criminal law in relation to medical workers. The work used materials of criminal cases in which the subjects of crimes were medical workers.

Responsibility for Bribery or Coercion to Testify or Avoidance of Giving Testimony or Misinterpreting (Art. 309 of the Criminal Code of the Russian Federation): Legislative Structure and Implementation Practices

The text analysis of Art. 309 of the Criminal Code of the Russian Federation revealed a number of shortcomings in the legislative structure of the component elements of a crime provided for therein. It is concluded that a different degree of danger of bribery and coercion of the participants in the legal proceedings underlying the design of their basic structures (parts 1 and 2 of Art. 309 of the Criminal Code of the Russian Federation) must be sustained in their qualified compositions (part 4 of Art. 309 of the Criminal Code RF). That is, bribery committed by an organized group and coercion committed by an organized group should be provided not in one but in different parts of Art. 309 of the Criminal Code, containing various sanctions. In Art. 309 of the Criminal Code, the use of violence that is not dangerous to life or health is a qualifying element of coercion of participants in legal proceedings (part 3). Consequently, the use of violence dangerous to life or health can only be an element of coercion of these persons. Further differentiation of responsibility is required under Part 2 of Art. 309 of the Criminal Code, since coercion to action is objectively more dangerous than coercion to inaction. Other gaps in the legislative structure of Art. 309 of the Criminal Code of the Russian Federation were identified in the course of a study of the judicial investigative practice of its application. It is concluded that formally forcing the victim to avoid reporting the crime (or bribing him for this purpose) is not tantamount to forcing him to avoid giving testimony, since reporting a crime with the law enforcement authorities cannot be considered a testimony. In this sense, it should be recognized that the disposition of the norm contained in Part 2 of Art. 309 of the Criminal Code, contains a gap that must be addressed by pointing to coercion to avoid reporting a crime.

Prohibition of Certain Acts and Stipulated Prohibitions in Combination with Bail and House Arrest: First Six Months of Instrumentation

Based on the study of court decisions, the article analyzes the first judicial-investigative practice of applying innovations in the system of procedural coercive measures — preventive measures in the form of a ban on certain actions, as well as bail and house arrest in combination with the prohibitions provided for in part 6 of article 105.1 of the Criminal Procedural Code of the Russian Federation. The subject of the study were 40 court decisions made by district and higher courts of 17 constituent entities of the Russian Federation. The author analyzes these decisions on preventive measures, the initiators of their election, the crimes charged with the accused, the stages of criminal proceedings at which they were taken. Decisions on the election of a ban on certain actions are analyzed according to the criteria: the number of simultaneous prohibitions; the time allowed to leave the premises; the places that the accused is forbidden to visit; the persons with whom they are forbidden to communicate. The analysis of the resolutions on the election of bail and house arrest with simultaneous establishment of certain prohibitions showed that the courts do not always properly motivate their decisions, subjected to defendants not covered by section 6 of article 105.1 of the Criminal Procedural Code of the Russian Federation prohibitions, permitted the defendants to take actions that do not provide their isolation from society. The data given in the article are accompanied by the author’s comments and references to the decisions set in the State automated system of the Russian Federation “Justice”. At the end of the study, the author provides conclusions and proposes to adjust in the near future the judicial practice of application of preventive measures following appropriate explanations of the Plenum of the Supreme Court of the Russian Federation, taking into account the changes made to the Criminal Procedural Code of the Russian Federation by the Federal law of 18.04.2018 No. 72-FZ.

FORENSIC EXPERT PRACTICE FOR PERFORMING LINGUISTIC EXAMINATION OF WRITTEN SPEECH

The article discusses the possibilities of solving linguistic (authorship analyses and semantic textual) tasks. It is pointed out the gaps in the normative legal acts that regulate the forensic expert activities and the need to resolve these contradictions. The examples from expert practice the approaches to the linguistic (authorship analyses) research are demonstrated and the form of expert conclusions, the wording of which is presented taking into account the state of development of linguistic examination. It is noted that the likely form of conclusions is associated with a lack of development and different approaches to the study of problems of gender, age, etc., which are studied in related sciences. The state of development of linguistic examination of written speech at the present stage is described and new research directions are indicated. The developed techniques that can be used in expert practice are listed, and promising areas in the field of linguistic research are indicated. The objects, the study of which is caused by the needs of the judicial-investigative practice, and its are currently not well understood are given. These include SMS messages, Internet correspondence, e-mail letters, etc. The difficulties of research of these objects are noted and it is indicated that the data of related sciences contain insufficiently studied material regarding the communicative study of these objects. However, the needs of both expert and judicial-investigative practices dictate the need to develop methods for researching new objects and improving old methods in view of the rapid growth of crime, taking into account the development of Internet crime.