Procedural Legislation Research Articles

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.

Представительные органы и власть народа: слитно или раздельно?

The article is based on an analysis of legislative procedures in the State Duma and a comparison of the content of bills, introduced by certain subjects of the right of legislative initiative, it is concluded that the laws adopted by representative bodies to a greater extent embody the interests of the ruling elite, and not the will of the people as the source of power. Measures are proposed aimed at providing conditions for the people to exercise their power.

The judicial expertise - a mandatory part of legal investigations

Both the Civil Procedure Code and the Criminal Procedure Code as well as their application in criminal, civil, commercial and contraventional cases, state the use of scientific evidence in finding out the truth, consisting in the judicial expertise. Unless the law expressly provides for the obligation to carry out an expertise, and we consider here the forensic expertise - meant to establish the days of medical care provided, or the cause of death, or establishing the identity of a person based on the expertise of biological traces, in various other cases the procedural legislation does not oblige the court to administer scientific evidence, leaving the choice to its discretion or, where appropriate, to the criminal investigation body. However, even if there are no provisions that expressly oblige the use of judicial expertise, we consider that both the investigation and prosecution body, the policeman or the prosecutor, as well as the courts, are obliged to order the performance of a judicial expertise when the facts deduced through the investigation or judgment cannot be clarified otherwise than on scientific basis and using the knowledge of experts in the respective domain. Beyond the classical forensic expertise of writing, namely the graphoscopic expertise, of ballistic expertise and automotive technical expertise on the dynamics of the occurrence of driving accidents - our list is not exhaustive - which are commonly carried out in both civil files, but especially in criminal cases there are situations in which we believe that it is necessary to administer scientific evidence to find out the truth. No matter how well prepared the person who finds and investigates a contravention or a crime, is, or those who are called upon to rule on civil cases, they cannot rule on technical issues, the existence of chemicals or possibly prohibited substances, as well as the overcoming of accepted decibels or the existence of products that could be considered waste - and the list could continue with other examples. However, in practice the tendency of those called to perform the act of justice is increasingly observed, to be limited to the mere findings made “with their own senses” by agents, local police or national police workers, employees of the Environmental Guard. These so-called technical findings or observations do not have the value of judicial expertise and cannot supplement such evidence by scientific quality or by objectivity, as long as they are drawn up by individuals who do not have the necessary and recognised level of scientific training, and are part of the bodies who only observe and note the facts and sanction them or send them to competent bodies for resolution. Consistent with European jurisprudence, we believe that finding out the truth involves the use of independent and objective judicial experts, highly trained specialists, or recognized and independent laboratories of expertise.

Процессуальные возможности для заключения между сторонами оспоримой сделки реституционного соглашения об «иных последствиях» ее недействительности

The author considers the rules of paragraph 3, Art. 431.1 of the Civil Code of the Russian Federation in the context of its doctrinal interpretation and judicial enforcement. At present, neither in science nor in practice there is a uniform view as to what procedural mechanism should be used for exercising the rights of the parties to a voidable transaction to conclude an agreement on other consequences of its invalidity (restitution agreement). The author has made an attempt to derive an alternative formula for the procedural implementation of the norm of paragraph 3 of Art. 431.1 by referring to the background of the emergence of the norm in civil legislation, the specifics of the restitutionary legal relationship and the transformational features of the decision to invalidate a voidable transaction, and has developed specific proposals. For instance, based on the experience of German civil procedure, the concept of “partial solutions” is proposed for being introduced into procedural legislation.

Regulations regarding writ procedure in the common law system

In this article, the author offers an analysis of the legislative framework of the writ procedure in the common law system, based on the example of the civil procedural regulations in the United States of America and those in the United Kingdom of Great Britain and Northern Ireland. The author outlines the main characteristics and procedural aspects of the examination of cases in the writ procedure in the common law system, highlighting the differences in the regulations adopted in the civil procedural legislation of the Republic of Moldova. In the analysis presented in this article, the author emphasizes the basic characteristics of the writ procedure – the absence of a legal litigation and the indisputability of the creditor’s claims, the importance of holding by the parties of the documents – the only type of evidence admissible in the writ procedure. At the same time, the author highlights the importance of the existence of the writ procedure – a simplified judicial procedure, which offers to the litigant parties the possibility to obtain resolution of non-litigant cases in a much faster and more efficient way, compared to the duration of the classic judicial procedure.

Fast-Track Legislation: The Transformation of Law-Making Under Joko Widodo’s Administration

<div class="WordSection1"><p>Since the end of 2019, the President and the House of Representatives had performed different legislative functions. Since the Law on the Commission Eradication Commission was amended, legislation had dramatically been transformed. Several laws have been passed and amended quickly. This study discusses three legal issues. <em>First,</em> the conceptual limitation of fast-track legislation in Indonesia. <em>Second</em>, the rationale behind fast-track legislation under Joko Widodo's administration. <em>Third</em>, the impact of fast-track legislation under Joko Widodo's administration. In this <em>socio-legal</em> study, a qualitative analysis is conducted. This study has identified that (1) fast-track legislation in Indonesia can only be adopted through <em>Perpu</em> with all its exemptions and exceptions; (2) the transformation of law-making under Joko Widodo's administration is associated with political pragmatism, political personalization, the elimination of the opposition, and cartel parties; and (3) the transformation of law-making under Joko Widodo's administration is detrimental to the future of Indonesia's democracy. The transformation has degraded the quality of deliberation in law-making. Besides, it does not adhere to law-making procedures, resulting in elitist and conservative laws.<em></em></p></div><p><em><br clear="all" /></em></p>

Developments in DNA analysis and forensic procedures legislation: comparisons across Australian jurisdictions

ABSTRACT Forensic procedures legislation guides the collection and analysis of forensic material, including DNA, and the establishment of DNA databases. It requires the balancing of several competing interests, such as identifying and convicting those who commit criminal offences, ensuring that individuals in Australian society are not subjected to unlawful or unfair treatment, and preserving individual privacy and civil liberties. With increased data-sharing arrangements across jurisdictions, harmonising forensic procedures legislation becomes pivotal. Reviews published in 2003 and 2010 established the existence of discrepancies and inadequacies in the forensic procedures legislation of Australian jurisdictions. Since then, jurisdictions have made amendments to their own legislation that may further reduce the extent to which harmonisation exists across jurisdictions. This study, therefore, aimed to examine the legislative amendments made between 2010 and 2022 to the forensic procedures legislation of Australia’s Commonwealth, States and Territories and compare current legislation with that of the Commonwealth. The findings from the comparative analysis highlight key elements of current legislation that represent a significant departure from the protection of individual rights to privacy and civil liberties. The article then discusses the potential implications of these departures and suggests some directions for further research, legislative review, and critical analysis.

Use of electronic search systems in the investigation of corruption crimes in Ukraine: opportunities and challenges for human rights

The purpose of the article is to study the use of electronic search systems during the investigation of corruption crimes in the context of the balance of interests of criminal justice and ensuring guarantees of human rights and freedoms. Methodology. In the process of scientific research, the following methods were used: dialectical, logical, dogmatic, monographic, systemic and structural, comparative and legal, sociological, legal modelling. Research results. It was established that in accordance with the developed and tested methods investigators use various information systems when investigating on corruption crimes; the content and features of these schemes were studied. International documents establishing the limits of the possible use of artificial intelligence in criminal proceedings were considered. The decisions of the ECtHR on the need for a balanced approach to interference with privacy and delimitation of such interference, were studied. Practical implementation. The ways to achieve a balance of the interests of the parties in the criminal procedural legislation of European countries were investigated in order to implement their positive experience in Ukraine. Value/originality. The principles, on which the process of regulating the use of electronic search systems, databases, algorithms and artificial intelligence in the criminal procedural legislation of Ukraine should be based, are proposed.

Medical and forensic aspects of performing a remote interrogation of persons with disabilities

The purpose of the study is to develop new proposals for improving criminal procedural legislation in the field of conducting remote investigative actions with disabled persons, taking into account their physiological and functional characteristics. Research material and methods: This study is based on an analysis of the norms regarding the criminal procedural legislation of the Republic of Kazakhstan and a number of foreign states that regulate the procedure for conducting remote investigative actions - as well as scientific publications on the research topic in the field of psychology and medicine. An integrated approach involves considering the studied phenomena of communication during an investigative action as a set of interconnected and interdependent elements, i.e., consideration of the issue from the medical, psychological and legal points of view. Situational and systemic types of analysis, complex sociological analysis, diagnostics and forecasting investigative situation were also used. Methods of analysis and synthesis, induction, deduction,methods of qualitative and quantitative analysis were employed to clarify the legal essence of the studied phenomenon. Findings: practical recommendations aimed at improving and developing the performance of remote investigative actions involving persons with disabilities (further – FWDs) y creating optimal conditions for the transfer of verbal, medical, and psychological information, as well as technical and forensic support for conducting RIAs. The following conclusions were made: in order to improve the current legislation, it is advisable to consider the issue of developing and including a special norm in the legislation, taking into account the characteristics of the communicative competencies of persons with disabilities. This norm regulates the procedure for conducting investigative actions involving the mute, deaf, blind and other persons with disabilities.

Analisis Dasar Pertimbangan Hakim Praperadilan pada Perkara Penetapan Tersangka Tindak Pidana Korupsi Dana Desa

Ensuring the preservation of human rights and the coherence of law enforcement's tasks are predicated on the pre-trial provisions of the criminal procedure legislation. As part of its mission to ensure that the criminal justice system is fair, the pretrial facility has put safeguards in place to monitor the effectiveness with which police officers carry out their tasks. All eyes are on the judge's evaluation of the law's applicability in light of pre-trial judgment 4/Pid.Pra/2022/PN.Kla. Normative and empirical theories of law are both used in this study's methodology. Primary data collected from the field and secondary data collected from various relevant legal sources are both used in this study. The study team included a law school professor, a prosecutor from the South Lampung District Prosecutor's office, and a judge from the Kalianda District Court. The court considered the following factors in rendering pretrial decision 4/Pid.Pra/2022/PN.Kla, in accordance with the study's conclusions: Instead of using the seizure reports and records that initially connected the suspect to the South Lampung District Prosecutor's Office ( Respondent) as evidence, the judgment was based on legal, social, and philosophical factors. Beyond that, the applicant was not suspected of being the subject of an official audit by the State Financial Loss Calculation Audit (PKKN). In order to establish a monetary loss to the state, the investigator must explicitly recognize a critical component that forms the foundation or risk of the inquiry. All of the applicant's pretrial requests were therefore granted by the court. The officials tasked with carrying out the pretrial decision's enforcement have finished their task. Kla is based on the multi-stage execution of criminal legislation.

THE EXPERT'S OPPORTUNITIES TO PROVIDE ADDITIONAL CONCLUSIONS ON EXISTING AND NEWLY RAISED QUESTIONS IN HIS TESTIMONY

The production of forensic examinations is important for establishing the objective truth in criminal cases. Making a fair decision in each specific case often requires the use of special knowledge possessed by experts. The current criminal procedural legislation regulates in detail the material and procedural aspects of the organization and implementation of forensic examinations, as well as the peculiarities of using the results of their conduct in court proceedings. Forensic experts are often called upon to participate in criminal proceedings. However, despite the developed legislative framework and large-scale law enforcement practice, a number of controversial issues still remain that affect the institution of «additional expert conclusions». The purpose of the presented study is to analyze the expert’s ability to provide additional conclusions on existing and newly raised questions in his testimony. The authors come to the conclusion that the current legislation rightly provides grounds for additional and repeated examinations, which allows in various situations related to both the ambiguity and incompleteness of the submitted expert opinion, and the presence of specific contradictions in it, to resort to appropriate examinations. Attention is focused on the need to appoint additional examinations when new questions and circumstances arise in the case, since their solution and accounting require the use of special knowledge, as well as full-fledged research in individual situations.

Legal Regulation of E-courts in Ukraine as an Element of Access to Justice for the Protection of Individual Rights

The purpose of the research is to consider electronic judicial procedure as an element of access to justice regarding protection of rights of individuals. The assessment of the effectiveness of the judicial system in Ukraine in 2023 was 2.73 points on a 5-point scale. The judicial index consists of three equivalent components: the assessment of the level of trust in the judicial system of the CEOs of the EVA member companies, which this year was 2.17 points; the assessment of the impartiality of the judicial system, which is 2.88; and the average assessment of seven factors of the organization and operation of the judicial system, which is 3 and 13 points. It has been established that that certain elements of digitalization of social processes change the social space and, in particular, the mechanisms of judicial proceedings. In the process of the development of society, certain factors came to life and these factors led to the growth of the role of information and, and therefore, to a clearer allocation of the information function in the field of jurisprudence. The following conclusion was made: the need to use information technologies in the judiciary is due to the global informatization of modern society and the development of new forms of interaction in the civil sphere with the use of electronic means of communication: the global Internet, mobile and satellite communication systems, etc. “E-court” involves the use of information and communication technologies in the process of implementing procedural legislation. The novelties of the judicial system are aimed at expanding accessibility of justice in conditions of territorial peculiarities of the Ukrainian state, improving the quality of the process and efficiency, and achieving transparency and openness in the judicial system.

Peculiarities of Statutory Framework for Criminal Proceedings Conducted by an Investigative Group under the Legislation of the Russian Federation and the Republic of Belarus

The paper examines the features of the procedural order of statutory framework of the preliminary investigation conducted by the investigation group under the criminal procedure legislation of the Russian Federation and the Republic of Belarus. It has been determined that the statutory framework for the formation and activities of investigative groups in criminal proceedings of the Republic of Belarus is governed by the national criminal procedure law, which at the same time determines the grounds for assigning the conduct of a preliminary investigation to an investigative group, as well as the procedure for its activities. In addition, it has been established that the role of the prosecutor in the matter of procedural interaction with members of the investigative team in Belarusian criminal proceedings is significantly broader than in Russian criminal proceedings, where the competence and powers of the prosecutor in pre-trial proceedings are maximally limited. At the same time, the specifics of the formation of an investigative and operational group in criminal proceedings in the Republic of Belarus were determined.

Юридические гарантии реализации принципа равенства граждан перед законом и судом в уголовном судопроизводстве Российской Федерации

The article delves into the analysis of the constitutional principle of equality of all before the law and the court. The relevance of this topic is due to the problem of contradictions that have arisen between the normative and law enforcement position in implementing the principle of equality. In this regard, the author considers it para-mount to address the issue of creating special guarantees that ensure the foundational idea of equality for all before the law and court. It seems that the development of a system of guarantees for the implementation of the analyzed constitutional principle in the provisions of the current Criminal Procedural Legislation of the Rus-sian Federation will serve as a support for ensuring access to justice in criminal cases. It’s worth mentioning that the principle under consideration was reflected and actively applied in ensuring the rights of participants in criminal proceedings, according to the edition of the Criminal Procedure Code of the RSFSR. The author exam-ines various approaches to formulating the definition of “guarantees” in terms of implementing the researched principle and provides recommendations to eliminate the existing contradiction between legislation and prac-tice.