Pre-trial Criminal Proceedings Research Articles

ПОНЯТТЯ ЕФЕКТИВНОСТІ ЗАТРИМАННЯ ОСОБИ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ

The article focuses on the study of the concept of the effectiveness of detention of a person in criminal proceedings. It is emphasized that criminal procedural detention is an important tool of the criminal procedural activity of the prosecution. Not enough attention has been paid to the definition of the effectiveness of criminal procedural detention in the scientific literature. When posing the problem statement, it is noted that the study of the concept of the effectiveness of detention is the starting point in the study of ways to improve the effectiveness of such coercive measures. The relevance of the study of the concept of the effectiveness of criminal procedural detention is also enhanced by the fact that achieving a clear understanding of the effectiveness of detention can serve as a reliable basis for developing and improving the effectiveness of criminal procedural detention. The effectiveness of criminal procedural detention takes into account the balance of interests of the state and the individual, the balance of legal capabilities of law enforcement agencies and effective mechanisms for protection against arbitrariness. There are three signs of the effectiveness of criminal procedural detention: prompt achievement of the goal; legality on the basis of a qualitative law; short-term restriction of the right to liberty. During the presentation of the main material the procedural characteristic of each of them is given. We do not consider the selected criteria of efficiency of criminal procedural detention to be exclusive. The effectiveness of any criminal procedure institution is not a static phenomenon. It is dynamic and depends on the specific circumstances of the criminal proceedings. Based on the study of the above features, the concept of the effectiveness of criminal procedural detention is formulated. The effectiveness of criminal procedural detention is the ability to detain in a legal manner, regulated by a quality criminal procedural law, by short-term restriction of the right to freedom to promptly achieve the goal of ensuring proper conduct of the suspect and the information support of the initial stage of pre-trial criminal proceedings.

Prosecutor at the initial stage of criminal proceedings: finding ways to optimize activities in the light of digital technologies

This article is devoted to the problems of participation of the Prosecutor at the initial stage of criminal proceedings and the search for ways to optimize its activities in the light of the digital transformation of the Prosecutor’s office of the Russian Federation, carried out in three main areas, namely high-tech supervision, digital infrastructure, and the environment of trust. The transition to high-tech supervision and the development of digital infrastructure should lead to work with a single electronic case on the basis of a single interdepartmental digital online platform. At the same time, a single interdepartmental digital online platform will ensure interaction both within the prosecutor’s office and the interaction of the prosecutor’s office with the investigation, inquiry, public, and court bodies. The conclusion is drawn that the digital transformation of the Russian prosecutor’s office optimizes the activities of prosecutors at the initial stage of criminal proceedings, but this should be preceded by legislative changes aimed at strengthening the role of the prosecutor in pre-trial proceedings. It also states the need to increase the availability of information to citizens about the activities of prosecutors and the state of legality in pre-trial criminal proceedings and expand the list of statistical data posted on the official website of the General Prosecutor’s Office of the Russian Federation.

Об особенностях раскрытия и расследования киберпреступлений

В статье, с целью анализа современного состояния киберпреступности, рассматриваются методы борьбы с ней и факторы достижения положительного результата, зависящего от оптимизации следствия и криминалистического обеспечения. Автор, указывая на проблемы, с которыми сталкиваются следователи в расследовании киберпреступлений, приходит к выводу о необходимости совершенствования данной правоохранительной деятельности. Особое внимание уделено комплексному исследованию проблем, связанных с уголовно-правовой квалификацией, уголовно-процессуальным порядком проведения расследования, криминалистической методикой и тактикой, оперативно-розыскным обеспечением раскрытия, международным сотрудничеством. Все это направлено на оптимизацию механизма проведения следственных, процессуальных действий и оперативно-розыскных мероприятий по выявлению, фиксированию и проверке цифровых доказательств в электронной форме. В данной работе выделяются и описываются характерные особенности исследования научно-теоретических и практико-прикладных проблем правоприменительной деятельности должностных лиц государственных органов следствия, уголовного розыска, экспертов и специалистов, ответственных за раскрытие и расследование киберпреступлений. В статье выяснены особенности объекта посягательства, выраженного в информации, хранящейся на технических носителях информационных систем и передаваемой по коммуникационным каналам связи глобальной сети Интернет. Автором обобщен материал по исследуемой теме и вводится в научный оборот термин «технология расследования», который наиболее полно отражает комплексный механизм, межотраслевой подход (уголовное право, уголовный процесс, криминалистика, оперативно-розыскная деятельность, судебная экспертиза, международное уголовное право, юридическая психология и др.) к процедуре досудебного производства уголовных дел связанных с преступлениями, совершенными в киберпространстве. Излагаются взгляды отечественных и зарубежных ученых в сфере уголовно-правовых, криминологических, криминалистических, оперативно-розыскных и международно-правовых характеристик киберпреступлений. Значительное внимание уделяется субъективным и объективным факторам, способствующим совершению рассматриваемых преступных деяний, а так же приведены примеры наиболее распространённых их видов. В заключении приводится перечень причин, способствующих совершению этих преступлений, и выработаны авторские предложения по совершенствованию алгоритма деятельности правоохранительных органов в раскрытии и расследовании киберпреступлений.

Цифровизация досудебного уголовного судопроизводства

Цифровизация досудебного уголовного судопроизводства

ON THE USE OF VIDEOCONFERENCING IN PRE-TRIAL CRIMINAL PROCEEDINGS

An urgent issue at the current stage of the development of criminal procedure is the use of videoconferencing in pre-trial criminal proceedings. The interest in this topic is caused both by the lack of legal regulation and ongoing discussions in the scientific community, as well as by the emerging and challenging situation with regard to the threat of coronavirus infection. In the context of the pandemic, the Court has acquired the right to conduct all criminal proceedings using videoconferencing systems, and investigators and interrogators are prevented from using remote technologies even during such an investigative action as an interrogation. This problem requires research and resolution by both scientists and legislators. Purpose: to analyze and develop scientific and legal foundations for the use of videoconferencing in pre-trial criminal proceedings. Methods: the author uses empirical methods of comparison, description, interpretation as well as theoretical methods of formal and dialectical logic. Results: the study makes it possible to trace the gradual increase in the use of videoconferencing in criminal proceedings, to analyze the advantages and disadvantages of the introduction of remote technologies at the preliminary investigation stage, to identify gaps in the legal regulation of this issue in criminal proceedings, to propose a solution to the problem taking into account the emerging judicial practice, and the legislation of a number of foreign countries.

PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

ОСНОВАНИЯ ОТМЕНЫ АРЕСТА, НАЛОЖЕННОГО НА ИМУЩЕСТВО В ДОСУДЕБНОМ ПРОИЗВОДСТВЕ ПО УГОЛОВНЫМ ДЕЛАМ

The article examines the normative legal basis of the grounds for canceling property seizure in pre-trial criminal proceedings. The problem of the legislator’s usage of evaluative categories in removing investigator’s, interrogator’s or court’s restrictions is also analyzed. The solution of this problem is made dependent on the implementation of public or private interests. Discussing these issues, the authors come to the conclusion that this sphere is neither presented nor analyzed in academic monographic works. This circumstance indicates the novelty of the study owing to the legal positions of the Constitutional Court of the Russian Federation on the issue. The conclusion about the priority of public principles over private interests concerning matters which are not related to civil lawsuits is made on the grounds of empirical data and the analysis of legislative approaches. The contradictions of the provisions of the Criminal Procedure Code of the Russian Federation regulating the basis and procedure for canceling property seizure and the laws on bankruptcy are identified. The directions for improving the legal regulation of these issues are presented. The necessity of a multisectoral regulation of some aspects of law enforcement is inferred. The examination of private principles in canceling property seizure is connected with securing a civil lawsuit in criminal proceedings. The authors substantiate the existence of additional opportunities in making decisions in this field via the legal regime. This regime is also used in some other legal acts and may be put into practice in accordance with the Criminal Procedure Code of the Russian Federation. However, the imposed restrictions can be canceled on the basis of the decision by a person considering a criminal case. The authors note the incoherence of some provisions of Part 3 and Part 9 of Article 115 of the Criminal Procedure Code of the Russian Federation. This incoherence is connected with different approaches to the view on public and private interests in decision making. The authors substantiate the necessity of a legal linking of grounds for canceling property seizure with the decision on imposing this resriction. The conclusion about the comprehensive order of property seizure is made in the final part of the article. It is also stated that this order does not contain distinct criteria of the legality of the decision. Certain parts of the criminal procedure laws should be corrected. Some ways to improve the field of legal regulation concerning the opportunity of canceling seizure are given.

ТЕОРЕТИЧЕСКИЕ ОСНОВЫ ОРГАНИЗАЦИИ ПРОКУРОРСКИХ ПРОВЕРОК В ДОСУДЕБНОМ ПРОИЗВОДСТВЕ ПО УГОЛОВНЫМ ДЕЛАМ

The prosecutor’s inspection of the implementation of the law in pre-trial criminal proceedings is the main form of prosecutorial supervision over the procedural activities of the bodies of preliminary investigation and inquiry. The study aims to form an idea about the procedure for conducting prosecutorial inspections in the pre-trial stages of criminal proceedings, as well as about the ways and methods of their organization. The methodological basis is a set of dialectical, systemic research methods. It is proposed to optimize the legal regulation of the procedure for conducting inspections, while unifying practical recommendations and provisions of departmental regulatory legal acts. It is concluded that methodological foundations of the organization of inspections by the prosecutor should be a unified form of the procedure for the implementation of prosecutorial inspections, regulated in detail by law.

TO THE QUESTION OF MODERNIZATION PRELIMINARY (PRE-JUDICIAL) PROCEEDINGS IN CRIMINAL CASES

The Code of Criminal Procedure of the Russian Federation was not able to establish a specific decision on the issue of reforming criminal proceedings, in particular in resolving issues of pre-trial criminal proceedings. In such cases, it is very important to determine the direction of further criminal procedure legislation, which is followed by state bodies in their criminal prosecution of perpetrators of a crime. Also, the law enforcer expects from the legislator not only a thorough analysis of the organizational and legal system of the preliminary investigation bodies, but also the inclusion in the practical activities of the law enforcement bodies of sufficiently effective normative legal acts that assist in the qualitative investigation of crimes [1, p. 58 ]. The reason for the changes and amendments can be explained by the fact that in the preparation of a normative legal act certain rules are not considered, the exclusion of which entails the formation of public relations, which did not find their fixation in the act, or normative legal acts have been adopted sequentially to resolve them, where first, deficiencies are identified that need to be made with appropriate adjustments. It is not an exception to the Code of Criminal Procedure.

Procedural Appeals in the Course of Pre-Trial Criminal Proceedings

Procedural Appeals in the Course of Pre-Trial Criminal Proceedings

Managerial Competencies of an Investigator and the Specifics of Their Implementation in Crime Investigation

The authors describe the contents of managerial work of an investigator that includes the following elements: analysis of the investigative situation; provision of investigative leads; planning; taking investigative or other procedural actions; organization of interaction not only with the departments involved in investigative and criminalistic work, but also with other government and non-government bodies, public organizations and community members; making a decision to end preliminary investigation. They also describe the specific features of managerial work of an investigator while taking into account the variability of investigative situations and their contents, legal status of the participants of criminal proceedings, the deficit of time and the boundaries of investigative and other procedural actions, the necessity of psychological support of an investigator’s work, the presence of prosecutor's supervision that makes it possible to identify drawbacks in an investigator's work in time and quickly correct them, as well as of court control that underlines the importance of procedural actions that can only be sanctioned by a court decision. The opinions of scholars regarding the concept of «managerial competencies» and its contents are presented. The authors show that it is necessary to form and further improve the managerial competencies of an investigator on the basis of a competence approach used in public service, and to introduce a special complex of psychological techniques that show if an investigator possesses or lacks the competencies necessary for his work, in the process of psychological support of an investigator’s managerial activities. They also describe the correlations between the competencies of people that manage an investigation and the effectiveness of the work of agencies responsible for the pre-trial criminal proceedings in general. The specific features of implementing the competencies of an investigator in investigating crimes are described.

Legal Sanctions, Enforcement and Responsibility as a Guarantee for Prosedural Independence of Prosecutor at Pre-Trial Criminal Proceedings

Legal Sanctions, Enforcement and Responsibility as a Guarantee for Prosedural Independence of Prosecutor at Pre-Trial Criminal Proceedings

Article 7 of the Directive 2012/13/EU on the Right to Information in Criminal Proceedings: A Missed Opportunity to Ensure Equality of Arms in Pre-Trial Proceedings?

This article critically examines the EU law provisions on the right of access to the materials of the case in pre-trial criminal proceedings (Article 7 of Directive 2012/13/EU). It argues that they are insufficient to ensure adequate protection of this right in Member States. Furthermore, the approach chosen by EU legislator did not properly implement the European principle of the equality of arms in pre-trial proceedings. It is submitted that a clearer standard is needed to ensure an appropriate balance between the interests of adequate protection of individual rights and of protecting safety and security. It is suggested that although some room for national interpretation is desirable, the right of early access to the case materials should be endorsed by all Member States with derogations applied sparingly and under specific circumstances. Here further guidelines from the cjeu play significant role in order to ensure equality of arms in pre-trial proceedings.

LIMITS OF COMPETENCE OF AN INVESTIGATING JUDGE IN THE PRE-TRIAL CRIMINAL PROCEEDINGS

The Institute of Investigation Judge exists in a number of European countries; the Institute of Investigation Judge was introduced in Latvia in 2005. Historically, the investigating judge was created to investigate, but today the institute has survived transformation and, at present, its main function is to monitor respect for human rights in pre-trial criminal proceedings. The relevance of the study is determined by the lack of studies on the performance of an investigating judge. The objective of the study is to explore the role of investigating magistrate in pre -trial criminal proceedings identify gaps and offer concrete solutions. The research tasks include investigating the historical development of the investigating judge, analysing the extent of the powers of the investigating judge in pre-trial criminal proceedings, investigating appeals against decisions taken by the investigating judge. In the view of the author, the main deficiencies found in the activities of the investigating judge in pre-trial criminal proceedings shall be confronted with the cooperation of the investigating judge and the person directing the proceedings, observance of procedural time periods and appeal of decisions of the investigating judges.

CRIMINAL RESPONSIBILITY FOR THE ILLEGAL CROSSING THE STATE BORDER

The author of the publication, selected the topic “Criminal responsibility for the illegal crossing the State border” for his publication. The subject of the publication is important, because in the search for better quality of life, a large number of immigrants try to enter the European Union illegally. The purpose of the publication is to explore and clarify what forms of criminal liability exist when crossing the national border illegally and what is the problem of criminalization in the process. The following tasks were highlighted for drawing up the publication: to study clarification of the concept of the State border in connection with criminal responsibility for illegally crossed State border; to carry out an analysis of procedural issues in pre-trial criminal proceedings and judicial proceedings. Conduct a penal policy analysis, determination of the problems of application of penalties.

ADMISSIBILITY OF EVIDENCE IN THE INVESTIGATION OF ROAD TRAFFIC ACCIDENTS IN PRE-TRIAL CRIMINAL PROCEEDINGS

The research paper is devoted to the problems of evidence’s disposal admissibility in road accident investigation during pre-trial criminal proceedings. The understanding of evidence admissibility in the Latvian and foreign criminal procedural law theory and law enforcement practice is examined; implementation of the establishment during pre-trial criminal proceedings by investigating road accident crimes during pre-trial criminal proceedings. The objective of the research paper: to investigate theoretical and practical issues of the establishment of disposal admissibility by investigating road accident crimes during pre-trial criminal proceedings; to identify problems in this context and to offer their solutions. During the practice pre-trial criminal investigation in road accident cases indicate shortcomings in the legal framework, as well as the competence of officials conducting criminal proceedings, the organization of work and the lack of methodological materials and standardized forms related to the specific nature of the road accident investigation. The solutions proposed by the author are related to the strengthening of the attachments’ admissibility specified in section 130 of the Criminal Procedure Law as evidence in criminal proceedings.

Investigative Knowledge as Object of Interdisciplinary Research

The paper is devoted to the current problems of theory and practice of cognitive activity of an investigating officer in the field of pre-trial criminal proceedings. The ideas expressed by the authors, the developed provisions and recommendations, characteristics and classifications concerning the subject, methods, means and technologies of the investigator’s cognitive mission are based on empirically established regularities of two groups (categories). The first is the regularities of criminal and related types of legally significant behavior (activity), as well as the process of its reflection in the material environment. The second group is the laws underlying the organization and implementation of anti-criminal investigative activities in the stages of initiation of criminal proceedings and preliminary investigation. Attention is given to the issues concerning the relation of investigative knowledge and recognition, essence and mechanisms of these forms (directions) of professional activity of the investigating officer, as well as the problem of formation, interaction and recognition of mental images of the acts containing indicia of crimes. Along with this, the paper reflects the concept definitions of investigative cognition and investigative recognition formulated by the authors.

К вопросу о деятельности следователя на этапе привлечения в качестве обвиняемого

The accused is a party to criminal proceedings who has a personal interest in the outcome of the prelim-inary investigation. His rights and legitimate inter-ests in criminal proceedings are subject to severe restrictions related to the preventive measures and the subsequent criminal sentencing. In recent times, the Russian procedural scientists indicate the prob-lems of the institution of the indictment that require a scientific solution. The paper deals with the issues that take place within a set of procedures related to the indictment in pre-trial criminal proceedings. Based on the analysis of the views of scientists and empirical material, the author justifies the need to exclude the formal approaches of the subject of proof (investigator) to bringing charges and reveals the significance of this preliminary investigation stage for the prosecution, the defense and criminal proceedings as a whole.

The Role of the Prosecutor in the Prevention and Elimination of Investigative Errors: Russian and German Experience

The paper is devoted to the prevention, identification and correction of mistakes during the preliminary criminal investigation because establishing the offence and all the circumstances that constitute evidence forms the basis for a just verdict, helps prevent crimes against justice and reach other goals of punishment. The authors present the conceptual and normative background for the model of permanent prosecutors supervision as the dominant control and supervision activity in the pre-trial criminal proceedings that allows to effectively implement the strategies of criminal prosecution and protection of human rights. This model establishes the authority of the prosecutor for the procedural management of the criminal prosecution in the criminal process as a significant supervision authority. The tasks of identifying, correcting and preventing (not making) mistakes in pre-trial investigations are equally urgent in Russia and in Germany. Although the Criminal Procedure Code of Germany gives the prosecutors office the leading role in the investigation, in practice the investigation is more often carried out by the police while the role of the prosecutor is reduced to summarizing the results of the police investigation and making the final decisions. At the same time, the prosecutors office has considerable powers of discretion regarding the initiation or non-initiation of criminal prosecution, the prosecutor uses his/her own discretion to determine the procedure and method of investigation. It is important to examine some aspects of the prosecutors role in German criminal court proceedings within the framework of correcting investigation mistakes in Russian criminal process. The model of prosecutors supervision presented in the paper does not preclude the legislative provisions for the transfer of some authority of the court to the prosecutor at the pre-trial stages of the criminal process. This model of prosecutors supervision allows timely and effective identification, correction and prevention of investigation mistakes at the pre-trial stages of criminal court proceedings.

К ВОПРОСУ О МЕСТЕ СУДЕБНОЙ ЭКСПЕРТИЗЫ В ДОСУДЕБНОМ ПРОИЗВОДСТВЕ

The article raises questions related to the ambiguously defined processuai status of forensic expertise, as a special source for obtaining new factual data, with the lack of systematic theoretical study of issues related to the place, value and criteria for the admissibility of this type of evidence in pre-trial criminal proceedings. It is pointed out that it is inadmissible to directly apply the rules and techniques for the implementation of adversarial measures taken in the civil process. The factors influencing the reduction of the status of the expert's conclusion as factors of the disclosure and investigation of criminal offenses at the stage of preliminary investigation are indicated. The generally accepted provisions of forensic expertise are singled out and general prerequisites are formulated to create conditions for the effective use of the results of forensic analysis. Formulated controversial provisions that require further discussion.