Procedural Legislation Research Articles

Rule of Law Principles and Legislative Procedures

Rule of Law Principles and Legislative Procedures

Digital opportunities for promotion of multi-door Courthouse concept

The article presents the prospects and new horizons of realization of a multi-door courthouse concept concerning modern digitalization processes. The legal system of contemporary Russia, deprived of several ideological institutions of the Soviet-era past, faced the same problem, which was relevant for the U.S.A. when creating the multi-door courthouse concept. The procedural legislation in force up to October 2019, which provided the possibility of non-judicial forms of protection of rights since the codification of 2002, proved ineffective in creating a worthy alternative to the state judicial procedure for protecting rights. Ground has been established to introduce the multi-door courthouse concept into Russian realities in a new way: a digital multi-door courthouse. This paper analyzes the modern approach to a “multi-door courthouse” in the Russian Federation, addressing its evolution, current issues and future perspectives. To achieve the paper’s aim, the authors used comparative legal analysis to show the development of the concept in different countries and a systemic approach to study the implementation of a “multi-door courthouse” in the Russian Federation.

On some the trends in the development of the prosecutor's supervision of the procedural activities of the bodies of inquiry

The article is devoted to some aspects of the prosecutor's supervision of the procedural activities of the bodies of inquiry, including the problematic aspects of determining the legal status of the body of inquiry as a participant in criminal proceedings. The authors note that despite a number of changes in Russian legislation, a considerable number of issues concerning the procedural position of the body of inquiry in the criminal process of Russia still remain unresolved. The prosecutor has always had a wide range of powers in relation to the inquirer's proceedings, however, the reform of pre-trial proceedings in 2007 not only narrowed the prosecutor's powers during the preliminary investigation, but also created additional conditions for a possible reduction in the prosecutor's powers in the field of procedural management of the inquiry. In this regard, the paper examines the question of the validity of granting the prosecutor a significant amount of powers in relation to the bodies of inquiry. The methodological basis of the article is the general scientific dialectical method of cognition, as well as the complex application of such methods as analysis, historical, formal-logical, system-structural and statistical. The conducted research allowed us to formulate conclusions according to which the modern development of the prosecutor's supervision of the procedural activities of the bodies of inquiry should be associated not so much with amendments to the criminal procedure legislation limiting the scope of the prosecutor's powers, but rather with increasing the effectiveness of the prosecutor's activities in the context of digitalization. It is argued that the wide range of powers available to the prosecutor in relation to the bodies of inquiry is seen as traditional, expedient and justified.

The interplay between environmental crime and corporate sustainability due diligence

Environmental crimes are a growing concern of today’s society, as are human rights violations committed by corporations. The European Union has defined both topics as legislative priorities and put forward two legislative instruments to better regulate these issues. On a first glance, there is no connection between these topics. However, this paper suggests that there is such a connection, and that the excellent timing of the proposals, which are being discussed at the same time, should be seized. This paper thus argues that the proposal for an Environmental Crime Directive should encompass a human rights approach by criminalizing the violation of serious due diligence obligations of the Corporate Sustainability Due Diligence Directive. Through a detailed analysis of the legislative drafting procedure leading to the proposal for an Environmental Crime Directive, this paper will assess whether such human rights approach is possible and whether it should be followed.

On Expanding the Range of Victims of Coercion To Testify

Building a state governed by the rule of law involves improving the mechanism for combating encroachments on justice ensuring observance of human and civil rights and freedoms. In changing criminology realities, in the focus of discussion are the ways to increase the effectiveness of guaranteesaimed to observe the rights and freedoms of persons involved in criminal proceedings, also with the help of criminal legal means. The paper presents the criminal law analysis of the signs of a victim of coercion to testify (Article 302 of the Criminal Code of the Russian Federation). The subject of the study is the set of definitions used by the legislator to describe the signs of a victim of coercion to testify, as well as the provisions of criminal procedure legislation regulating the legal status of participants in criminal proceedings protected by the norm under consideration. The analysis of the stated problems is based on the legal views of the highest judicial authorities, with regard to historical, legal and doctrinal aspects. An interdisciplinary approach made it possible to identify the peculiarities of the legal status of persons classified by the legislator as victims of coercion to testify. The paper analyzes the legal status of the person whose criminal case was severed from the rest as a result of a plea bargain with him, as well as the person against whom proceedings to take compulsory measures of medical nature are conducted. The study focuses on the applicant, the eyewitness, the victim of the crime and parties of no procedural status but possessing important criminal information. The current criminal legislation does not provide for bringing the offenders to justice in case of undue influence against parties with an informal procedural status in the course of criminal proceedings. The paper substantiates the need to classify these parties as victims of coercion to testify. There is a discrepancy in the terminology of criminal and criminal procedure laws, and imbalance in providing punishment according to general and special rules. The undertaken research proposes to improve the legal and clerical condition of the current version of Article 302 of the Criminal Code of the Russian Federation in terms of clarifying the range of victims, and to review the penalty with regard to the general rule.

Дистанционное проведение отдельных следственных действий в России и некоторых странах ближнего зарубежья: сравнительный анализ

The rapid advancement of digital technologies has revolutionized various aspects of contemporary society, including the field of law enforcement and criminal justice. One significant development in this regard is the utilization of video conferencing systems (VCS) for conducting investigative actions remotely. This article seeks to explore the implementation of remote investigative actions in Russia and select neighboring countries, with a focus on the legal framework, practical implications, and potential challenges. Comparative analysis encompasses an examination of the legal provisions governing remote investigative actions in Russia, the Republic of Belarus, the Republic of Kazakhstan, and the Republic of Tajikistan. Particular attention is paid to Article 189.1 of the criminal procedural legislation of the Russian Federation, which regulates the conduct of investigative actions via video conferencing. The analysis evaluates the efficacy, feasibility, and adherence to procedural safeguards in remote interrogations, face-to-face confrontations, and presentations for identification. In conclusion, the analysis underscores both the advantages and shortcomings of remote investigative actions facilitated by video conferencing systems (VCS). While such technological advancements offer opportunities for efficiency and cost-effectiveness, concerns regarding procedural fairness, privacy protection, and technological limitations persist. Accordingly, there is a pressing need for legislative refinement and procedural guidelines to ensure the effective implementation of remote investigative actions while safeguarding the rights of all parties involved. Collaboration between legal experts, law enforcement agencies, and technology developers is essential to address these challenges and optimize the utilization of digital technologies in the criminal justice system.

Conciliation Procedures in the Civil Process: Legislative Innovations and Prospects for Further Development

The paper analyzes the provisions governing conciliation procedures consolidated in the Russian procedural legislation in 2019. The author elucidates the legal nature of alternative dispute resolution in general and conciliation procedures in particular, explains their informal nature and inexpediency of giving them the same strict legal form as procedural actions. The legislative consolidation of conciliation procedures is primarily associated with the need to inform citizens about the possibility of their use and registration of their result. Based on the study of judicial data, the author concludes that, despite a number of positive legislative innovations, the use of conciliation procedures has not fundamentally changed. With this in mind, the author highlights cultural, organizational and economic obstacles that prevent a wider application of conciliation procedures. Based on the results of their analysis, the author proposes three main directions for further legislative developments. The paper pays special attention to the judicial conciliation procedure that appeared in 2019, which has great potential, but requires the creation of appropriate conditions for its application.

Legal restrictions are a specific method of legal regulation

The analysis of scientific sources provides grounds to assert that legal regulation is the regulation of social relations carried out through law and the entire set of legal means. The concept of «regulation» (from Latin regulo - rule) implies organization, adjustment, and bringing something into conformity with something else. In our view, to regulate means to define the behavior of individuals and their collectives, to direct their functioning and development, to provide certain limits, and to organize them purposefully. Alongside this, some scholars relate the term «regulation» solely to law as a system of norms and some other specific legal phenomena (legal relations, acts of law implementation). They disagree with the existing understanding of the regulation of social relations as the rigid and authoritative norming by the state and law, as, in their opinion, the category of «regulation» is not synonymous with coercion, rigid, and authoritative prescription. The legal norm establishes only a model of relations in which social interests must be correlated with the interests of society members, and alongside this, law widely uses such means of influencing people’s behavior as stimulation, encouragement, granting rights, etc. It is argued that to transition to the definition of legal regulation, it is necessary to refer to the theory of law, which provides explanations for the concepts of «legal influence» and «legal regulation». Legal influence is considered a broader concept, as it includes the normative-organizational influence on social relations not only through a system of special legal means (those that directly regulate these relations - legal norms, legal relations, acts of implementation and application of law), but also through other legal phenomena – legal consciousness, legal culture, legal principles, law-making process, etc. A proposed definition states that legal regulation is the authoritative influence on social relations carried out by the state through all legal means for the purpose of their organization, establishment, protection, and development. Besides such (regulatory) influence, law also exerts a spiritual-ideological influence on individual and social consciousness (both in the process of legal regulation and beyond). «Restrictions» and «prohibitions» as legal categories have been analyzed. The etymology of the words «restriction» and «prohibition,» their relationship to each other and to adjacent and synonymous concepts, have been explored, and an original interpretation of the content and essence of these concepts has been proposed. A number of features characterizing restrictions and prohibitions as legal categories have been identified (defined in normative legal acts; established to prevent potential abuses of law; associated with a «narrowing» of an individual’s legal status; presuppose a specific model of behavior, specifically restrictions entail active behavior, meaning to do only what is defined within limits; prohibitions entail passive behavior, meaning to refrain from doing prohibited actions; they perform a protective function in social relations; non-compliance with them is accompanied by a negative response from the state. The concept, characteristics, classification, and a systematic analysis of restrictions and prohibitions as means of legal regulation have been defined. Based on the analysis of dictionary, reference, encyclopedic literature, as well as specialized legal sources, the article formulates original definitions of «restriction». The specificity of these particular restrictions and prohibitions lies in their special area of application (they apply to individuals when exercising their powers within the civil service); they apply to specific subjects (directly to individuals who have the legal status of civil servants); their application is determined by a special purpose; they are characterized by specific, comprehensive normative legal regulation; their application is ensured by state coercion. Distinctive features inherent to restrictions and prohibitions in the field of legal regulation have been identified: individual character; preventive nature; limiting aspect; coercive nature; the presence of a special subject; connection to professional activity; relation to delict norms, and their essence has been explained. The normative basis for defining and applying restrictions and prohibitions as means of legal regulation has been characterized (substantive legislation, procedural legislation, sub-legislative normative legal acts). A classification of restrictions and prohibitions has been conducted, and it is proposed to conditionally divide them into three groups (personal, property, and mixed).

Legitimacy of Subjects of the Right to Judicial Protection in the Law Enforcement Practice of Land and Property Disputes Resolution: Formulation of the Problem

The article is devoted to the study of the problems of the ownership of the plaintiff and the defendant as parties to a land-property dispute in the current law enforcement practice of courts of general jurisdiction. The author emphasizes that the primary task of the judicial branch of government and a specific court as its representative is to correctly determine the subject composition of the case, the subject of which is the resolution of a land and property dispute. Achieving the specified task has two main consequences: obtaining legal protection of the violated, unrecognized or disputed right by the proper “offended” person and placing responsibility for the committed encroachment on property rights on the actual violator. The article analyzes the procedural institution of replacement of an improper defendant as a mechanism designed to ensure the implementation of the principle of ownership of the parties to the dispute in the civil process. In particular, the author drew attention to the fact that in the judicial practice of courts of all instances, the terms “proper plaintiff” and “improper plaintiff” are used, the definition of which is not contained in the current civil procedural legislation. In addition, the article analyzes the judicial law enforcement practice formed in the part of replacing an improper party in cases for the resolution of land and property disputes and formulates relevant conclusions regarding the ambiguity of the positions of courts of general and administrative jurisdiction in this matter. The author conducted a comparative analysis of the legal regulation of the institution of replacement of the proper party in a dispute under civil and administrative procedural legislation. Based on the results of the research, the author outlined the scientific and practical aspects of the investigated issues in this field of civil procedural law. In particular, the author comes to the conclusion about the inconsistency of the legislator’s vector regarding the development of an effective procedural mechanism for the protection of the rights of subjects of land legal relations, which in turn creates prerequisites for possible abuse of the court’s procedural powers.

The importance of electronic evidence in criminal proceedings

The development of digital technologies contributes to the change of criminal procedural relations and the emergence of electronic evidence used in the proof process. The author’s position is formulated based on the results of the analysis of theoretical approaches in criminal procedure science to the definition of the concept of “electronic evidence”. Arguments are presented confirming the need to use electronic evidence in criminal proceedings in order to overcome the risks associated with the realization of the rights and legitimate interests of participants in a criminal case, the preservation of evidence in case of their referral to the place of investigation, destruction or modification in case of counteraction to the investigation. The article reveals the importance of electronic evidence in criminal proceedings. Based on the analysis of the norms of criminal procedure legislation and law enforcement practice, the factors that determine the increasing importance of electronic evidence in criminal proceedings are substantiated.

Refusal to open a lawsuit in a civil process

The article examines the refusal to open a lawsuit as a procedural duty of the court in civil proceedings. It is claimed that during the exercise of the right to file a lawsuit, a number of civil procedural duties appear before the court, which it must implement depending on what grounds will be established at the stage of opening the lawsuit. One of these duties is the duty of the court to refuse to open proceedings on the case, if grounds for this are established by the court. The view of the refusal to open proceedings on the case as a possibility of the court is denied, since «possibility» indicates a right, but the procedural right of the plaintiff cannot be opposed by the right of the court, because it does not correspond to the generally accepted idea of the corresponding relationship of rights and obligations. Fulfillment of an obligation is a condition for the realization of a certain right. Having exercised the right to file a lawsuit, the plaintiff presented the court with the need to fulfill a certain civil procedural duty, depending on what grounds he establishes. The reasons for refusing to open a lawsuit are analyzed and their exceptional nature is noted. The explanation of the mentioned grounds is carried out not only using the provisions of the doctrine of civil procedure, but also the modern practice of applying the norms of civil procedural legislation, including the legal positions of the Supreme Court. A classification of grounds for refusal to open a lawsuit is carried out in the context of their comparison with the prerequisites of the right to sue in the procedural sense (the right to file a lawsuit). It is noted that the prerequisites of the right to a lawsuit do not presuppose the emergence of civil procedural relations at the stage of opening a lawsuit. They point to the existence of the right to a lawsuit in statics, where the will of the person to initiate the opening of legal proceedings has not yet manifested itself.

The State Protection of the Rights of the Victim in Criminal Proceedings

The article is devoted to the study of the issue of providing state protection to the victim and restoring his violated rights and legitimate interests . Having made a comparison with the legal position of the suspect and the accused, the author notes that the victim is in an unequal position in relation to him: although the criminal procedure legislation of the Russian Federation regulates the possibility of the victim exercising his rights, but guarantees of their observance (and restoration of lost) the law does not provide for the state; if the suspect and the accused have a defender for these purposes (including one provided free of charge), then the victim does not have such a “trustee” . Such an incorrect approach initially led to an imbalance in criminal proceedings and violation of the rights and legitimate interests of the victim .The object of this study is the social relations that arose between the victim and the State as a result of the commission of a crime by the perpetrator . The subject of the study is the norms of criminal procedure legislation regulating the legal status of the victim in criminal proceedings, as well as other norms affecting criminal proceedings . The author used the comparative legal method as the main methods of scientific research, as well as the method of analyzing the norms of criminal procedure legislation .The author of the article considers it expedient to empower the prosecutor to ensure state protection of the rights of the victim and proposes to introduce a new Article 16 .1 into Chapter 2 of the Code of Criminal Procedure of the Russian Federation, which enshrines the principle of ensuring the right to state protection of the rights of the victim by analogy with Article 16 of the Code of Criminal Procedure of the Russian Federation . In addition, the author describes in detail the legal mechanism for early compensation by the State to the victim of damage caused by the crime .

When will the courts recognize the independence of the grounds for compensation for damage caused by the illegal use of procedural for in Part 3 of Article 133 of the Code of Criminal Procedure of the Russian Federation?

The uncertainty of the criminal procedure legislation regarding the recognition of the right to compensation for harm for a certain category of persons gives rise to the relevance of the study of this issue. Based on the provisions of part 3 of Article 133, Article 139 of the Criminal Procedure Code of the Russian Federation, an analysis of the normative complex has been carried out with the help of which, in judicial practice, compensation for harm to persons caused by the unlawful application of procedural coercion measures to them should be ensured. Special attention is paid to court cases, the content of which reveals the problems of establishing the grounds for compensation for damage caused by the illegal use of procedural coercion measures. It is concluded that only participants in criminal proceedings, criminal prosecution against whom has been terminated on rehabilitative grounds, or illegally subjected to compulsory medical measures, as well as other persons illegally subjected to procedural coercion measures, have the right to compensation for harm in rehabilitation. Thus, the list of persons eligible for rehabilitation is definite and not subject to broad interpretation.

Russian Criminal Procedure to Protect the Rights and Legitimate Interests of Entrepreneurs

The article discusses changes in Russian criminal procedural legislation related to criminal proceedings on crimes in the economic sphere committed by entrepreneurs in connection with their entrepreneurial or other economic activities. It is noted that these changes are due to the general policy of the state aimed at increasing the economic activity of the population and accelerated economic development of the country as a whole. In this regard, the author provides critical statements by the country’s leaders regarding the current law enforcement practices. The article consistently sets out individual institutions of criminal procedural law affected by these changes. Thus, the features of initiating criminal cases for certain crimes in the economic sphere classified as cases of private-public prosecution are described. The general rules for conducting investigative actions, including those related to the seizure of electronic storage media in cases of this category, are described. Considerable attention is paid to the selection of preventive measures against entrepreneurs and general restrictions on the use of detention against them. Special grounds for termination of criminal prosecution of entrepreneurs in connection with their compensation for damage are described. The author notes that the process of improving legislation in this area is far from complete and will continue depending on the needs of practice.

On the issue of strengthening the supremacy of State power in criminal proceedings

The article raise the question of the need to strengthen the supremacy of state power in criminal proceedings. The analysis of law enforcement practice is given and attention is drawn to the fact that trust in state bodies and officials conducting criminal proceedings is falling. It is proved that the supremacy of state power in criminal proceedings is within the legal norms of the Constitution, criminal and criminal procedure legislation of the Russian Federation. It is concluded that the arbitrariness of state bodies and officials, going beyond these norms is a violation of the rule of law both at the legislative and law enforcement levels, undermines confidence in state bodies conducting criminal proceedings, in state power as a whole, and, accordingly, weakens the internal sovereignty of the state. It is argued that the basis for strengthening the supremacy of State power in the field of criminal justice is to strengthen social justice, ensure social solidarity, the legality of production and increase public confidence in state power. It is substantiated that a new version of the CPC is needed, which will be aimed at improving the effectiveness of criminal proceedings, including by simplifying it while maintaining the existing procedural guarantees for the protection of the subjective rights and legitimate interests of participants in criminal proceedings.

Developments of the Romanian State and Law in the Period of Communism

The establishment of the communist regime in Romania began in the immediate aftermath of World War II, with the seizure of power by the Romanian Communist Party (PCR) and the elimination of political opposition. The communist regime imposed a totalitarian ideology based on full state control over all aspects of social, economic and political life. During the communist period, the Romanian state was transformed into a totalitarian state with an authoritarian and centralized regime. Political power was concentrated in the hands of the Communist Party and the state became an instrument of its control. State institutions were subordinated to the party, and the separation of powers in the state was abolished in favour of an executive power dominated by Communist leaders. As far as the legal system is concerned, the communist period brought significant changes in legislation and judicial procedures. The law was used as a tool to control and suppress political opposition and all forms of dissent. Judicial proceedings were politicised and the independence of the judiciary was undermined in favour of the political interests of the communist regime.

The limits of action of prejudice in criminal procedural legislation of European countries

The peculiarities of the normative fixation of prejudice in the criminal procedural legislation of Austria, Germany and France and the limits of its effect are examined in the article. Prejudice affects the increase in the responsibility of judges, as it contributes to making legal and well-founded decisions that concern not only the rights and interests of the parties to a particular proceeding, which depends on the facts established in this decision, and in the future they may affect the observance of the rights and interests of others persons. It is argued that the concept of prejudice is not provided in the criminal procedural law of these countries, but, apparently, the decisions of courts and other bodies are recognized during the consideration of criminal cases by the courts of Austria, Germany and France without evidence. This emphasizes the authority and significance of the decisions of the court and other bodies, despite the fact that the legislation of these countries attaches great importance to the freedom of assessment of evidence and make decisions by the court based on the internal conviction of the judges. It was determined that the criminal procedural legislation of Austria, Germany and France recognizes the prejudicial significance of the circumstances established by the verdict and other court decision, as well as acts of criminal prosecution bodies during the consideration of a criminal case. At the same time, the probative force of such decisions is absolute for the court considering the criminal case, until they are recognized as illegal by a higher court. Unlike the Criminal Procedure Code of Ukraine, the Criminal Procedure Codes of Austria, Germany and France recognize the circumstances established by a verdict or other court decision, as well as acts of criminal prosecution bodies, without evidence, only by the court, the prosecutor and other criminal prosecution bodies are not endowed with such a right. In the Criminal Procedure Code, the specified state verdicts and acts of criminal prosecution bodies are evidence, their evidentiary force is absolute, which greatly facilitates the use of prejudice in criminal proceedings. Taking into account the positive legislative experience of these countries, it is proposed to include the verdict, which has gained legal force, adopted within the framework of civil, arbitration or administrative proceedings, among the other documents specified in Part 2 of Article 99 of the Criminal Procedural Code of Ukraine.

The use of a polygraph in the investigation of criminal offences: problems of tactics and legal regulation

The use of a polygraph in the investigation of criminal offences: problems of tactics and legal regulation

Criminal law and procedural characteristics of war crimes in Ukraine (after the full-scale invasion of the russian federation into Ukraine)

Criminal law and procedural characteristics of war crimes in Ukraine (after the full-scale invasion of the russian federation into Ukraine)

A synthesis of Kantian ethics and Rousseauvian General Will in justifying the moral ground of political laws

This article explores the Kantian and Rousseauvian solutions to the conflict between autonomy and authority. First, I discuss how the categorical imperatives (CI) are the supreme source of the legitimate authority of a limited number of political laws. By extending the synthetic a priori nature of the CI, I demonstrate how Rousseau’s General Will (GW) can justify political laws in a broader sense. I also refer to the theory of H.L.A. Hart and John Rawls to show that all political laws are binding if they are within the limits of injustice and have some moral foundation. I discussed the limits of authority of on debatable laws such as banning abortion. I analyzed the possibility of GW by using Condorcet’s theorem. I conclude that GW cannot fully justify political laws based on majoritarian direct democracy, owing to problematic assumptions, although it may be an improvement to the current legislative procedure of the U.S.