Participants In Criminal Proceedings Research Articles

Предупреждение преступлений коррупционной направленности в процессе их расследования

Рассмотрена деятельность следователя по предупреждению преступлений коррупционной направленности на этапе их расследования. Проведен анализ состояния, устремленности и тенденций данной деятельности. Обращено внимание на недостаточную эффективность регламентированных законодательством действий следователя в аспекте реализации мер предупреждения коррупционных преступлений. В соответствии с Уголовно-процессуальным кодексом Республики Беларусь следователь обязан выявлять причины и условия, способствовавшие совершению коррупционных преступлений. В дальнейшем он выносит представление об устранении выявленных причин и условий совершения преступления либо воздерживается от таких действий, руководствуясь своим усмотрением в пределах предоставленного права. В связи с этим предложено на уровне закона закрепить обязанность следователя принимать меры реагирования в случае выявления причин и условий совершения преступления. Автор указывает на вероятные направления следственной деятельности в связи с необходимостью предупреждения коррупционных преступлений. Одним из таких направлений представляется реализация предупредительных мер индивидуального характера в отношении участников уголовного процесса. Объектами предупредительного воздействия, осуществляемого в процессе производства следственных действий, выступают подозреваемые (обвиняемые), а в ряде случаев — и иные участники уголовного судопроизводства. Иное направление осуществления мер предупреждения коррупционных преступлений разворачивается за пределами расследованного уголовного дела. В этой ситуации объектами предупредительно-профилактической работы следователя являются организация (учреждение), в котором произошло коррупционное преступление, её руководящий состав, а также неопределённый круг иных лиц, профессиональная или служебная деятельность которых осуществляется в данной организации (учреждении). В качестве самостоятельного направления противодействия коррупционным преступлениям автор предлагает совместную профилактическую деятельность, участниками которой выступают следователи, расследовавшие уголовные дела о коррупционных деяниях, и специализированное подразделение Следственного комитета. Осуществление предупредительнопрофилактической деятельности по указанным направлениям представляется возможным на нормативно-правовой основе, что предполагает совершенствование действующего процессуального законодательства.

Gender aspect of the participation of minors in criminal proceedings

The article analyzes statistical information for recent years regarding the commission of criminal offenses by minor girls and boys, the gender aspect of their participation in criminal proceedings, and the main differences. It was concluded that Ukraine does not pay due attention to the gender aspect of the participation of minors in criminal proceedings.
 In science and practice don’t pay attention that the majority of girls who are arrested have unique challenges compared to boys. It is a good idea that programs for girls should be designed to take into account the unique situations of girls, as well as to address the special problems that girls face in a gendered society. Unfortunately, traditional rehabilitation strategies have largely been shaped by healthy assumptions about what young people, usually boys, need. Sometimes girls will benefit from these ideas, and sometimes they will not apply to girls' problems at all.
 According to statistics of recent years, girls are less likely to be prosecuted for serious and especially serious crimes than boys. It is considered that scientists of foreign countries actively substantiate the difference between the participation of girls and boys in the field of juvenile justice. They found a gender difference in the behavior of minors. It turned out that boys were more likely to break the law, get arrested, participate in violent crimes, and sell drugs. Instead, girls were more often prosecuted for non-violent crimes.
 Juvenile probation programs do not include a gender perspective, although it has been proven that juvenile girls and boys often have different problems that need to be addressed, and a one-size-fits-all approach may not always help. With this in mind, it is necessary to develop and implement probation programs separately for minor girls and for minor boys.

Modern Trends and Prospects for the Development of Criminalistics Doctrine on the Personality of Participants in Criminal Proceedings

The article is devoted to the criminalistics research of the personality of participants in criminal proceedings as a particular criminalistics theory. The stages of formation are analyzed, expediency, scientific viability and practical significance are substantiated. The author›s own point of view on the correlation of the scientific categories “criminalistics doctrine”, “criminalistics theory” is expressed, the names and essence of the foundations of criminalistics research of personality developed in science are analyzed. It has been established that its specificity lies in the subjects, goals and objectives of the study. Unlike criminological, criminal law and criminal procedural study of personality, criminalistics research is aimed at identifying personal properties, signs and conditions that characterize the subjects of criminal proceedings, expressed in the process of carrying out activities related to the commission of a crime, to address issues of identification and diagnostic nature. The results obtained are used to build criminalistics models of a crime, to put forward a sufficient number of substantiated criminalistics versions, as well as to develop techniques and combinations of tactical influence. The main trends in horizontal and vertical development of the criminalistics theory of personality are outlined. It is noted that the horizontal development of particular theory involves a criminalistics study of various categories of participants in criminal proceedings, traditionally limited to the off ender and the victim. It is indicated that the vertical direction of development of the criminalistics study of personality is aimed at the study of individual features, substructures and personality characteristics, among which at present the most popular are the study of the digital image and digital behavior, as well as the ethnic characteristics of the personality of participants in criminal proceedings. It is concluded that it is necessary to develop a criminalistics doctrine about the personality of participants in criminal proceedings and the implementation of its results in practical activities to identify, investigate, disclose and prevent crimes.

Certain aspects of ensuring the safety of participants in criminal proceedings (On the example of Belarus Criminal Procedural Law)

Certain aspects of ensuring the safety of participants in criminal proceedings (On the example of Belarus Criminal Procedural Law)

Сучасні концепції некласичної та постнекласичної методології пізнання в контексті дослідження запобігання (протидії) кримінальним правопорушенням щодо учасників кримінального провадження

The article is devoted to the problem of researching the essence of methodology as a science as a whole, as well as specific problems of modern research methodology, in particular, in the field of criminal law and criminological science, in particular, on the basis of non-classical and post-classical approaches in methodology in the context of researching specific criminological problems of preventing the commission of criminal offenses regarding participants in criminal proceedings Attention was drawn to the fact that the discovery of a number of methodological problems (including in the field of criminological science) became a catalyst for the emergence of a large number of theoretical studies, in particular, related to new, sometimes revolutionary, conceptual approaches to the methodology of scientific knowledge in general, as well as to individual doctrines, first of all, in the fields of criminal law and criminal procedure, as well as in applied fields, in particular, sociology, statistics, psychology. Criminological science uses the methodological basis of these fields to study crime problems, in particular, in the field of socially dangerous encroachments on the rights, freedoms, and legitimate interests of participants in criminal proceedings. It was established that the modern research methodology in legal science, including and in the criminological field - in the field of crime prevention and countermeasures against participants in criminal proceedings, is implemented in the plane of the discursive direction of the general theory of systems (system approach) based on general scientific principles, as well as the principles of general philosophical classical methodology. However, in the process of conducting research in legal science, in particular, in criminology, more and more attention is paid to the doctrines of non-classical and post-non-classical methodology.

Defense as an Obligatory Element of the Defense Lawyer’s Status Emergence in Criminal Proceedings

The paper analyses a defense lawyer’s status shaping and differentiates its main stages, determining the moment of the emergence of the status of a defense lawyer, as well as the significance of the formalizing procedural actions necessary for this. The paper pays attention to the emergence of the protection function, the acceptance of an order and the entry of a lawyer into a criminal case as procedurally significant events that do not coincide with the moment the defense lawyer’s status arises, although it occupies a certain place in the process of its formation. The author substantiates the impossibility of a simultaneous acquisition of a defense lawyer powers. This is due to the need to implement some of them to ensure the right of a criminally prosecuted person to defense and a lawyer’s task to find out circumstances that prevent the acceptance of an order for defense or exclude his participation in criminal proceedings. It is shown that it is inexpedient to establish the emergence of the status of a defense lawyer, as well as to word a conclusion on the observance of the right to defense only on the basis of a formal sign of the provision by a lawyer of a certificate and a warrant, provided for in part 4 of Art. 49 Code of Criminal Procedure of the Russian Federation. The significance of the actual implementation by a lawyer of protection from accusatory activity as an external procedural manifestation of the emergence of the status of a defense lawyer is determined.

Prevention and overcoming of counteraction to the investigation of crimes committed against participants in criminal proceedings

The study is devoted to the scientific analysis of the prevention and overcoming of resistance to the investigation of crimes committed against participants in the criminal process. It was concluded that the systematic implementation of scientific recommendations, which are based on the provisions of criminology, criminal process and psychology, will help to increase the effectiveness of activities in the specified area. Arguments are presented in favor of granting operational units the right to immediately initiate and conduct visual surveillance of persons who were discovered in the process of secret investigative actions (search), with the aim of obtaining more information about their personal data and evidence of their involvement in committing or preparing a crime against participants in criminal proceedings. The focus is on the increased effectiveness of victimological prevention and individual prevention of crimes of the studied category. The appropriateness of the use of Ukraine, taking into account the national specifics of the world's best practices to overcome countermeasures and prevent crimes against participants in criminal proceedings, in particular, the system of early prevention and security measures, is justified.

Types of Pre-Trial Form of Criminal Procedure Appeal

Criminal procedural appeal is one of the main ways of exercising the rights of all participants in criminal proceedings. This right is included in the procedural status of almost every participant and can be exercised exclusively within the framework of legal relations. The relevance of the research topic is emphasized by the fact that the content of the criminal procedure law allows us to assert that the entire scope of appeal is heterogeneous in its characteristics, which leads to different approaches in determining the forms of appeal. The purpose of this work is to designate and put forward for a wide scientific discussion the problem related to the definition of the system and certain types of appeal in pre-trial criminal proceedings and to propose author's approaches to its solution. On the basis of traditional methods of scientific research, methods of obtaining, studying and evaluating information of a theoretical, legislative and practical nature: dialectics, analysis (functional, systemic, logical), synthesis, generalization, modeling, comparative legal, a scientifically based idea of the types of pre-trial criminal procedural appeal, differing in essential characteristics. According to the results of the study, it was found that in the pre-trial form of appeal, which is applied independently, it is distinguished by its self-sufficiency, independence, isolation and specificity of means: several types are distinguished: universal; internal; limited; secondary; subsequent. The author believes that these types as a whole form a system of pre-trial form of criminal procedure appeal.

Examination of evidence at the initiative of the court of appeal in criminal proceedings

Today, the combined chamber of the Criminal Court of Cassation as part of the Supreme Court is trying to solve the problem of the appellate court’s initiative in the examination of evidence, since the approaches of individual court chambers, namely the First and Third ones, differ. The purpose of this study was to identify those cases when the appellate authority is entitled to investigate the evidence proactively, without encroaching on the components of the principle prescribed in Article 22 of the Criminal Procedural Code of Ukraine. The formal-logical method helped generalize that the content and form of such a review must comply with the principles of criminal proceedings, including equality before the law and the court, as well as competition between the parties (it has been proven that their absence may indicate a violation of both constitutional and convention rights), freedom in presenting their evidence to the court and in proving their persuasiveness before the court. The results of the deductive method helped formulate the following theses: the legislator, understanding the equality of procedural rights not as their uniformity, normalizes it in the Criminal Procedural Code as equality in terms of the possibilities of exercising the granted rights; the legislator also determines such equality of rights from the functions that a certain participant in criminal proceedings is endowed with. The combination of prosecution, defence, and justice in one guise contradicts the adversarial nature of the judicial procedure. The study revealed that the passivity of the parties forces the court to choose its activity within the limits of the function of justice defined for it, and its initiative is aimed at examining the evidence to make a legal, well-founded, and fair decision. It is proved that these features of judicial proceedings are a priori inherent in the appeal review, along with its inherent features, including the determination of the amount of evidence to be examined, as well as compliance with the limits of judicial review, which are normalized by Article 404 of the Criminal Procedural Code of Ukraine. It was found that the initiative of the court of appeal to examine evidence and their further investigation in this court is permissible in situations where such evidence became known after the adoption of the appealed court decision. Compliance with this rule will protect the court from possible violations of the requirements of Article 22 of the Criminal Procedural Code of Ukraine, and scientific developments in this area are designed, among other things, to pave the way for the unity of judicial practice through doctrinal recommendations.

The Presence of the Defense Lawyer in Vietnam’s Criminal Justice System: Substantive or Cosmetic?

Defense lawyers play an important role in protecting the rights and interests of the accused, contributing to upholding justice and reducing the number of wrongful convictions. In Vietnam, in accordance with the current Criminal Procedure Code of 2015, defense lawyers have been given more and more rights to perform legal defense activities. However, defense lawyers are still considered to bepassive participants in criminal proceedings, classified under the “judicial complementary” group. The right of lawyers to collect evidence is restricted. Furthermore, other rights have not been fully implemented. The number of lawyers compared to the entire population remains low, and there are very few criminal cases that include the participation of defense lawyers. These circumstances beg the question of whether the presence of defense lawyers in Vietnam’s criminal justice system is substantive or merely a cosmetic façade intended to improve Vietnam’s global image. This paper seeks to answer this question by analyzing the results of surveys conducted with Vietnamese lawyers. Moreover, it provides some recommendations to strengthen the role of defense lawyers in the criminal justice system of Vietnam.

Juvenile victim in criminal proceedings: ensuring the right to representation and communication

The juvenile victim is one of the least protected participants in criminal proceedings, in connection with which the doctrine proposes to provide by law for cases of mandatory participation in the process of the victim's representative to protect the rights and legitimate interests of the juvenile victim. Also expand the list of cases where the court may decide to consider criminal proceedings in closed session, including criminal proceedings in which the victim is a minor and expand the content of specialization of judges in criminal proceedings against minors, including criminal proceedings in which juvenile victims are involved.
 We also believe that lawyers who represent the interests of children should be educated and aware of children's rights and related issues, receive ongoing and in-depth training, and be able to communicate with children at their level of understanding.
 In our opinion, criminal proceedings in which a minor is a victim should be carried out by a judge authorized in accordance with the Law of Ukraine “On the Judiciary and the Status of Judges” to conduct criminal proceedings against minors.
 We believe that there may be cases (for example, violent criminal offenses) when re-examination in court may be excessively traumatic for the juvenile victim. In such a case, such a victim should not be knowingly subjected to secondary victimization by an appropriate judicial action. It is possible to interrogate a minor victim with the participation of the court during the pre-trial investigation in order to properly procedurally record his testimony, which can be used during the trial, according to the rules provided for in Art. 225 of the CCP.

Actual aspects of the application of psychophysiological research methods using a polygraph in the implementation of state protection measures against participants in criminal proceedings

Actual aspects of the application of psychophysiological research methods using a polygraph in the implementation of state protection measures against participants in criminal proceedings

Народное участие в правосудии: на примере шеффенского суда и суда присяжных

Lay participation is an indicator of a democratic society. This article analyzes some traditional forms of lay participation in criminal proceedings, in particular, the Schöffen courts in Germany and jury trials in the UK, e.g., the main competencies of people's judges, staffing rules, etc. The author highlighted some general and special disadvantages, as well as those associated with the application of these forms in Russian criminal trials. The diachronic analysis of courts with people's assessors and jury courts revealed a number of differences and similarities. In Russia, Schöffen courts took place during the reign of Catherine the Great, as well as in the Soviet period; jurors participated in criminal trials in the second half of the XIX century and still do. The article also describes the current domestic legislation on lay participation in judicial proceedings.

LIMITATION OF FREEDOM OF DISPOSAL OF SUBJECTIVE RIGHT IN CRIMINAL PROCEEDINGS IN RUSSIA

The article examines the inadmissibility of waiving the subjective right in the criminal process in Russia. Based on the nature of a subjective right, a participant in criminal proceedings is free to use it (he can both use the right and refuse the social benefit provided to him), however, he may be limited in this freedom. With the help of general scientific methods of analysis and synthesis, the article substantiates that the impossibility of a person to renounce his subjective right is a restriction of the right. The authors come to the conclusion that depriving a person of the opportunity to dispose of his subjective right in the form of not accepting a waiver of it by the inquirer, investigator, court must comply with the general requirements for the restriction of rights: legality, reasonableness, proportionality. According to the requirement of legality, the possibility of not accepting a waiver of a subjective right on the part of officials conducting criminal proceedings should be clearly and unambiguously fixed in the criminal procedural legislation; the requirement of reasonableness necessitates the compliance of the applied restriction of the right with the established goals and grounds; according to the requirement of proportionality, the restrictive means used must be adequate to the aim pursued. The results obtained can be used for further scientific study of issues related to the legal status of the individual in the criminal process, the study of the restriction of rights and freedoms in the process of criminal proceedings.

Forensic Classification of Subjects Counteracting Investigation of High-Tech Crimes

The paper defines the concept of counteraction to the investigation of high-tech crimes employing the author’s definition of high-tech crimes. A forensic classification of the subjects of this counteraction is proposed, in which the procedural status of these subjects is used as a formal classification criterion. A hierarchical classification scheme is described, which includes groups and subgroups of counteraction subjects of varying degrees of similarity. The subjects of «internal» opposition include participants in criminal proceedings, divided into four main groups: on the part of the defense; by the prosecution; administering justice; other subjects. For the subjects of «external» opposition, the following groups are identified: law enforcement officers who are not subjects of criminal proceedings in a specific criminal case; persons associated with the accused (defendants); heads of government bodies; media workers. For each group of subjects, forensically significant features of counteraction to the investigation of high-tech crimes are analyzed, typical motives and methods of counteraction are given. It is noted that the proposed classification scheme can be used not only for high-tech crimes, but also for other types of criminal acts.

EUROPEAN STANDARDS OF THE INSTITUTE OF SAFETY OF PARTICIPANTS IN CRIMINAL PROCEEDINGS

The article analyzes the European standards of the institute for ensuring the safety of participants in criminal proceedings and compares it with the legislative provisions of this institute in Ukraine. It was established that the legislation of Ukraine declares the recognition, observance and protection of human and citizen rights and freedoms as the duty of the state. The protection of human rights in the criminal process cannot be considered separately from the criminal and criminal procedural policy of the state, which is an integral part of the legal policy of any democratic society. The author emphasizes that one of the manifestations of the state protection of the constitutional rights to life, liberty and personal integrity is ensuring the safety of the citizen in the field of criminal proceedings. In connection with the fact that the problem of unlawful influence on witnesses, victims, judges, prosecutors, investigators, inquirers, their relatives and close persons has become particularly acute, measures were taken at the legislative level to strengthen the state protection of these persons, which were reflected in the norms of special legal acts. On the basis of the conducted research, it was established that the Federal Republic of Germany developed and adopted the Law “On Regulation of Issues of Ensuring the Protection of Witnesses Who Are Threatened with Danger”. The law establishes that security measures may be applied to witnesses who give or may give important testimony for the purpose of establishing the truth in particularly serious crimes, as well as to their relatives and loved ones, if their life, health, or well-being are in danger. The mentioned law provides for the implementation of the Witness Protection Program, which establishes the regime of secrecy regarding the personal data of protected persons, as well as the possibility of their relocation to another place of residence. A study of the experience of other foreign countries regarding the standards of this institute was also conducted and the possibilities of their implementation on the territory of our country were determined. It was concluded that despite the significant financial support of the state program for ensuring the safety of witnesses in European countries and a significant array of cases of its application, the level of ensuring the safety of participants in criminal proceedings and the degree of trust in law enforcement agencies remain at a rather low level, which results in the reluctance of sub entities to provide the data necessary for the investigation.

Ограничение возможности распоряжения своей жизнью и телесной субстанцией как иная мера уголовно-процессуального принуждения

The authors propose to create a new measure of criminal procedural coercion, which allows law enforcement agencies to limit the possibility of participants in criminal proceedings to dispose of their lives and bodily substance.

К вопросу о проблемах правового обеспечения безопасности статистов, принимавших участие в производстве следственных действий

The article examines the issues of state protection to participants in criminal proceedings and its extension not only to a fixed scope of subjects, but also to those who are involved in the criminal process, without having a clear procedural status. The author provides the definition of state protection, grounds and procedures for its application, classifies security measures, and analyses the current procedure for its application to participants in criminal proceedings involved in investigative actions. She considers the principal shortcomings in this legal institution and proposes the ways to solve the problem.

Институт дачи клятвы (приведения к присяге) как мера стимулирования правдивых показаний

The article considers the legal institution of oath in foreign legal systems as a measure to encourage participants in criminal proceedings to give truthful testimony during judicial interrogation. The author uses the comparative and comparative legal analysis, a survey with an inferior alternative, and doctrinal analysis to compare the institution under discussion with other incentive measures and highlight its advantages. In the first part, the author highlights the domestic views on the legal incentive measures to encourage truthful testimony and dwells on their practical effectiveness and legitimacy in relation to individual participants in the criminal process. Analysing the legal measures proposed by Russian researchers, the author emphasizes that such measures, among other challenges, violate the rights of some participants in the criminal process (suspects, the accused). He also indicates some forensic shortcomings of the proposed measures, among which is the stimulation of errors in the perception of the event under investigation. According to the author, if the institution of oath has none of the described shortcomings, it indicates its viability. The second part of the article contains a normative comparative legal analysis of the legislation of foreign countries (Islamic Republic of Iran, Georgia, Germany, and the USA) in terms of the institution under consideration. The third part contains a justification from the standpoint of the domestic legal doctrine, as well as from the standpoint of psychology (taking into account the results of a survey with the effect of an inferior alternative), the possibility of introducing the institution of oath of a non-religious nature by participants in criminal proceedings during the interrogation in the trial as a measure encouraging truthful testimony. These testimonies will be “true” not from the persepctive of the subject of criminal procedural proof, but from the perspective of the interrogated person. In conclusion, the author speaks about the possibility of introducing a legal institution of a non-religious oath (swearing-in) in the Russian criminal process, at least, in the interrogation of participants in the criminal process at the stages of judicial proceedings in a criminal case.

Some questions regarding freedom from self-disclosure as one of the principles of the criminal procedure

One of the principles of criminal proceedings - freedom from self-incrimination and the right not to testify against close relatives and family members - is analyzed in detail. The main disadvantages of its use directly in practice have been identified. The opinions of numerous scientists, the practice of the ECtHR and the experience of foreign countries regarding the application of the above-mentioned principles of the criminal procedural legislation of Ukraine were considered. Based on this, a number of proposals for improving the effective use of this principle are highlighted. It is worth noting that the entire criminal process must be carried out in compliance with all 22 principles provided for by the Criminal Procedure Code of Ukraine. Any procedural actions committed in violation or non-compliance with at least one of them becomes illegal. That is why it is extremely important for all participants in criminal proceedings to understand in detail, and most importantly, the meaning and essence of each of these principles, without exception. Because it depends on the observance of human rights, the establishment of justice and, above all, the decision of people's fate. A detailed explanation of each of the principles, the search for ways to improve, the elimination of conflicts in the current legislation and the exclusion of the possibility of abusing the rights arising from these principles are no less important than their observance in criminal proceedings.