Pre-trial Criminal Proceedings Research Articles

The concept of effectiveness of ensuring the rights and legal interests of a person in pre-trial criminal proceedings

The following factors have a significant impact on the level of effectiveness of ensuring human rights and legitimate interests in criminal proceedings: the political regime in the country, the level of legal culture of the population, the level of economic well-being of the population, the state of compliance with the rule of law, etc. It is possible to assess the effectiveness of ensuring human rights and legitimate interests in criminal proceedings only taking into account the above factors. The purpose of this scientific work is a legal analysis of signs of the effectiveness of ensuring human rights and legitimate interests in criminal proceedings; based on the studied characteristics, formulate the concept of the effectiveness of ensuring the rights and legitimate interests of a person in pre-trial criminal proceedings. The methodological basis of the research is based on general scientific and special methods, in particular, dialectical, comparative legal, formal logical, structural and functional, and the method of theoretical generalization. It was found that the effectiveness of ensuring the rights and legitimate interests of a person in criminal proceedings is manifested in two aspects: 1) the ability of procedural guarantees to achieve the goal of providing an individual with a legal and actual opportunity to use the right and satisfy the legitimate interest in a minimum period of time; 2) the ability of procedural guarantees to achieve the goal of providing individual with a legal and actual opportunity to renounce the right and legitimate interest in a minimum period of time. It has been determined that the effectiveness of ensuring the rights and legitimate interests of a person in criminal proceedings is the ability of procedural guarantees in a minimum period of time to achieve the goal of providing individual with the legal and actual opportunity to use the right and satisfy a legitimate interest or the opportunity to renounce the right and legitimate interest in pre-trial criminal proceedings.

The Mechanism of Overcoming the Abuse of Law in Pre-Trial Criminal Proceedings

The Mechanism of Overcoming the Abuse of Law in Pre-Trial Criminal Proceedings

ON THE LACK OF POWERS OF THE PROSECUTOR IN MODERN PRE-TRIAL CRIMINAL PROCEEDINGS

The article expresses the author’s position on the insufficiency of the power and administrative powers of the prosecutor in modern pre-trial criminal proceedings. Despite the fact that the prosecutor is included in the number of his participants on the part of the prosecution, it is difficult to ensure the establishment of the circumstances of the crime by the legal means provided to him when his signs are detected, as well as the identification and exposure of the person or persons who committed it. This has been repeatedly addressed and continues to be addressed by many legal scholars. Nevertheless, the situation remains at that level, which is established by Federal Law No. 87-FZ of 05.06.2007, who made significant and not entirely explicable changes to the Criminal Procedure Code of the Russian Federation in terms of limiting the supervisory powers of the prosecutor at the initial and subsequent stages of pre-trial proceedings. The individual powers currently used by prosecutors are analyzed in the article in their comparison with those established by the USSR Law of 30.11.1979 “On the Prosecutor’s Office of the USSR”, as well as the Criminal Procedure Code of the Russian Federation in its original version. At the same time, attention is drawn to the obvious imbalance of powers to supervise the procedural activities of the preliminary investigation bodies and the bodies of inquiry, which is noted by both practitioners and legal scholars, as well as representatives of civil society institutions. It is also obvious that certain provisions of the Criminal Procedure Code of the Russian Federation do not correspond to the basic provisions of the Federal Law “On the Prosecutor’s Office of the Russian Federation”, the declarative nature of a number of norms of the Criminal Procedure Code of the Russian Federation on the role of the prosecutor in pre-trial proceedings. Doubts are expressed about the validity of the exclusion from it of the prosecutor’s right to give binding instructions to the preliminary investigation bodies. The article expresses the opinion on the expediency of returning to the prosecutor the right to conduct inspections on reports of crimes of certain categories, as well as the initiation of criminal cases based on their results, as well as on the results of studying the materials of pre-investigation inspections, on which decisions were made to refuse to initiate criminal cases, if the prosecutor comes to the conclusion that there are sufficient grounds for this. In this regard, the author considers it necessary to significantly reform the modern institution of prosecutorial supervision in pre-trial proceedings. To do this, it is necessary not only to amend Article 37 of the Code of Criminal Procedure of the Russian Federation, but first of all - the inclusion of the main supervisory powers of the prosecutor in this area in the Federal Law “On the Prosecutor’s Office of the Russian Federation”, establishing its priority over the norms of the Code of Criminal Procedure of the Russian Federation.

PRODUCTION OF REMOTE INVESTIGATIVE ACTIONS: EXPERIENCE OF FOREIGN COUNTRIES

The article discusses the prospects for expanding the practice of conducting remote investigative actions during pre-trial proceedings. The author analyzes the legislative structure of Article 189.1 of the Code of Criminal Procedure of the Russian Federation, notes the formulations that prevent its effective implementation. A comparative legal analysis with similar provisions of the legislation of foreign countries is carried out, novelties of foreign legislation that can be used to improve Russian pre-trial proceedings are noted. The author proposes to simplify the procedure for conducting interrogations of participants in criminal proceedings using video conferencing, providing for the possibility of using video communication technologies in the criminal procedure legislation. The article points out the need to comply with additional procedural guarantees in this case, which may include mandatory video recording of the course of the investigative action, the possibility of recording the results of the investigative action in the form of a video file and (or) an electronic document certified with an electronic signature. The provisions of the criminal procedure legislation of the Republics of Kazakhstan, Belarus, India, Estonia, Armenia, which provide for fixing the circumstances to be proved in a criminal case not only in paper, but also in electronic form, are considered. Based on the analysis of the experience of the above-mentioned foreign countries, it is noted that the introduction of such practices in pre-trial criminal proceedings in the Russian Federation is significantly hindered by the lack of a Unified state information System providing for the possibility of storing criminal cases in electronic form, the procedure for the test introduction of such a system at the regional level is proposed.

Prospects for the implementation of the system of electronic criminal proceedings in Ukraine

Using the dialectical method, the article is devoted to the study of the impact of digitization on the implementation of pre-trial criminal proceedings and court proceedings in Ukraine. Based on the study of the positive international experience of electronic criminal proceedings, the good features of the introduction and further development of electronic criminal proceedings have been identified, such as: optimization of the investigation and trial procedure; improvement of supervision and control; saving budget funds; reducing the number of employees; elimination of red tape and corruption risks; automation of communication processes and others. In the conclusions, the authors argue that it is desirable to determine in the procedural legislation the possibility of introducing a special regime of court proceedings, in the form of videoconferencing and procedures for signing court judgments, etc., during the period of war or state of emergency.

Some Features of the Criminal Procedural Status of a Witness

The relevance of the topic is due to the fact that the problems of the procedural position of a witness today need some addition and adjustment, while this particular issue requires special attention in connection with the expansion of the information space and the simplification of access to information contained in the materials of the criminal case of all participants in criminal proceedings. The question of the participation of a lawyer in criminal proceedings in order to provide qualified legal assistance to a witness remains important. In particular, the procedure for involving a lawyer in a criminal case has not been established, his procedural status has not been clearly regulated, and the issue of the possibility and limits of participation of a lawyer in investigative actions conducted with a witness has not been resolved. The purpose of the study is to analyze the legal problems related to the realization by the witness of his rights, the performance of his duties. The article deals with problematic issues related to the procedural status of a witness, analyzes the relevant norms of domestic criminal procedure legislation and the legislation of a number of foreign countries. The methodological basis of the work was the position of the general scientific dialectical method of cognition and the general theory of law, which made it possible to reveal the essence and features of the procedural status of a witness in pretrial criminal proceedings. The work widely uses the comparative legal method, which made it possible to identify the relationship between domestic and foreign legislation in the field of witness immunity. As a result, the following conclusions were made. It seems that it is necessary to provide a witness who has not formally received the status of a suspect or accused with qualified legal assistance on a mandatory basis, in order to protect his legal rights and interests. In addition, part 3 of Art. 56 of the Criminal Procedure Code of the Russian Federation, supplementing it with a ban on taking evidence from all persons who, by virtue of their official duties, are its bearers and must keep it.

REQUEST FOR CHANGING THE PREVENTIVE MEASURE IN THE FORM OF DETENTION DURING PRE-TRIAL CRIMINAL PROCEEDINGS

The purpose of the article is to study the procedural possibilities of a request and permission to change the remand in custody to a more lenient preventive measure during pre-trial criminal proceedings. The article uses the methods of system analysis, synthesis, analogy and generalization. The author concludes that a direct appeal to the court with a request to mitigate the preventive measure in the form of detention at the preliminary investigation stage within the meaning of the criminal procedure law by the participants in criminal proceedings on the part of the defense is possible at the time when the court considers the investigator's request to extend the period of detention or to change the preventive measure, or at any time during criminal proceedings in the case of a bail application. When the request for changing the preventive measure is received during the preliminary investigation from the participants in the criminal proceedings on the part of the defense during the period between court sessions on the extension of the preventive measure, the court must assess its content. If there is no evidence of a change in the grounds for changing the preventive measure in the form of detention to a more lenient one, the court shall refuse to accept the request for consideration. If the circumstances indicated in the request show a change in the grounds for applying the preventive measure, the court must adopt it and consider it under the adversarial conditions with the participation of the parties in the order of Article 108 of the Code of Criminal Procedure of the Russian Federation. In the event of refusal to satisfy the request, a repeated request on the same ground is not permitted.

FINAL ACTS OF THE PRELIMINARY INVESTIGATION AS A KIND OF PROCEDURAL REQUESTS

Petitions, complaints and other forms of procedural requests are essential to the achievement of the objectives of criminal justice. These procedural acts ensure that citizens and organizations involved in criminal proceedings can exercise their rights and defend their legitimate interests. Even more important for solving the problems of justice are final acts of the preliminary investigation, which are procedural requests, through the presentation and defense of which the criminal prosecution authorities seek in court to bring the perpetrators to criminal responsibility or apply other criminal law measures to citizens. Thereby, procedural activities are carried out, the results of which directly affect the achievement of the objectives of criminal proceedings, as set out in Article 6 of the Code of Criminal Procedure of the Russian Federation. Purpose: to study the legal nature of the final acts of the preliminary investigation as criminal procedural acts, to identify in them the features of procedural requests and acts of application of law. Methods: the methodological basis of the study is the dialectical method. In addition, general scientific methods of analysis, synthesis and a systematic approach are used, as well as special legal methods: legal interpretation and logical-legal. Results: the research shows that the final acts of the preliminary investigation are hybrid in nature, combining the features of procedural requests and acts of application of law. The significance of the prosecutor’s approval of the final act of the preliminary investigation is revealed, since, by his decision, the prosecutor, on the one hand, acknowledges the achievement of the objectives of the pre-trial criminal proceedings and recognizes the stage of the preliminary investigation as completed, and, on the other hand, when assuming the procedural function of criminal prosecution, brings the corresponding procedural action to the court (brings a criminal claim). Taking into account the hybrid nature of the final acts of the preliminary investigation, it is shown that there is an imperfection in the regulation of the procedure of sending criminal cases to court for the application of coercive educational measures, as well as the imposition of criminal law measures in the form of a judicial fine.

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.

Some aspects of ensuring the right to a reasonable period of pre-trial criminal proceedings

Some aspects of ensuring the right to a reasonable period of pre-trial criminal proceedings

Reports and the their annexes prepared by the European anti-fraud office in the pre-trial criminal proceedings

The article is related to а specific procedure – the inclusion and application of the reports and their annexes prepared by the European anti-fraud office (OLAF) in the Bulgarian pre-trial proceedings. The reports and their annexes are prepared according to Regulation 883/2013 which regulates all the activities of OLAF in the EU and third countries. The reports and their annexes are a specific tool for our legislation and they can be used in the pre-trial proceedings as written proof tools according to the Bulgarian Criminal Procedure Code. This article explains the OLAF’s structure and the practical application of the OLAF’s reports and their annexes during the pre-trial investigation and focuses on the main problems which are encountered in the investigation practice related to their application as well.

Principles of International Cooperation in the Course of Pre-Trial Criminal Proceedings

Principles of International Cooperation in the Course of Pre-Trial Criminal Proceedings

Historical overlook on the birth and formation of the institute of departmental procedural control in predictional criminal court proceedings in Russia

The authors submit to a detailed analysis the historical milestones of the origin and formation of the institution of departmental procedural control in criminal proceedings in Russia. Taking the generally accepted classification as the basis for constructing a preliminary investigation and highlighting seven periods of the formation of the institution of departmental procedural control, the principles for establishing a particular institutional model of a concrete historical period are reflected. As the main method in the process of writing this article, the general systemic method of cognition was used, which made it possible to comprehensively consider and analyze the process of origin and formation of the institution of departmental procedural control in pre-trial criminal proceedings in Russia. In addition, the authors argue that the institution of departmental procedural control of judicial control in the Russian Federation is quite young and its mechanisms need in-depth study. It is concluded that, through the analysis of statistical data, law enforcement practice, as well as the opinions and developments of scientists-processes, made it possible to identify the optimal ways to solve existing problems and directions for improving criminal procedure legislation.

Ending of the inquiry in an abbreviated form with an indictment

The ending of preliminary investigation is final stage of pre-trial criminal proceedings, consisting in the preparation of materials by the person conducting the preliminary investigation, and the transfer of these materials to the prosecutor. This article is devoted to topical issues of the ending the inquiry in an abbreviated form, in particular, the problematic issues related to the compilation of the indictment. The analysis made it possible to establish that the indictment is the procedural decision of the inquiry officer who completes the criminal prosecution when conducting the inquiry in an abbreviated form in which he, in the form of a state-imperious command, within the limits of his competence and in accordance with the criminal procedure law, on the basis of the factual data established in the case, gives answers to the legal questions arising in the case about the guilt of the person who committed the crime. In addition, significant shortcomings in the legal regulation of the procedure for ending an inquiry in an abbreviated form with the indictment have been identified, which are discussed in this article.

Features of Teaching Experimental Practice-Oriented Training Discipline ‘Activities of the Operative Employee of the Criminal Inspection During the Prime Proceedings in Criminal Cases’ for Preparations for Preparations

The article analyzes the experience of teaching an experimental practice-oriented academic discipline Activities of a criminal investigation officer in the course of pre-trial criminal proceedings.

Increasing the Efficiency of the Activities of the Preliminary Investigation Bodies in the Implementation of Measures Related to Compensation of Harm Caused by Crime as a Factor of Countering to Crime

The article raises the question of the importance of the activities of the head of the investigative body, the head of the inquest unit, the investigator and the interrogator in the implementation of the provisions of the current legislation regulating compensation for harm caused by a crime in the course of pre-trial criminal proceedings, as a factor in combating crime.

Development of adversarial principles and expansion of the lawyer’s powers as a means of ensuring the rights and legitimate interests of participants in pre-trial criminal proceedings

The article is aimed at identifying the main directions of improving the regulatory framework for ensuring the rights and legitimate interests of participants in pre-trial proceedings. The methodological basis for the solution of this problem is a comparative legal analysis of the legal regulation of pre-trial proceedings in the continental and Anglo-Saxon legal systems with the Russian regulatory framework. In the prognostic context, the formal-logical method, the modeling method, and the system-functional method are actively used. The article presents various positions of specialists in solving the problem, the directions of its solution are named. It is defined as a promising direction for the development of adversarial principles in pre–trial proceedings - further improvement of the institution of petitions and complaints. The content of the article is of practical value for the subsequent scientific search for an effective solution to the issue under consideration.

Organizational support of the prosecutor’s activity in pre-trial criminal proceedings on evasion of taxes, fees (mandatory payments)

Organizational support of the prosecutor’s activity in pre-trial criminal proceedings on evasion of taxes, fees (mandatory payments)

Current Issues of Collection, Verification and Evaluation of Evidence in Prediction Proceedings in Criminal Cases

The topic of collecting, checking and evaluating material evidence in pre-trial criminal proceedings is one of the broadest and most complex in criminal proceedings.

The investigator and his powers. Is it time to update the paradigm?

The article is devoted to the controversial aspects related to the concept of an investigator as a participant in criminal procedural legal relations in conjunction with the problem of his powers. In the light of the author's concept, original definitions of these concepts are proposed, a new approach to differentiation and systematization of the powers of an investigator in the field of pre-trial criminal proceedings is substantiated and implemented.