Pre-trial Proceedings Research Articles

Pre-Trial Proceedings in the Post-Pandemic World: Amending Federal Criminal Rule 53 for Virtual Criminal Hearings

Pre-Trial Proceedings in the Post-Pandemic World: Amending Federal Criminal Rule 53 for Virtual Criminal Hearings

Досудебное производство в уголовном процессе России: место, роль, значение и перспективы развития

The paper considers the problem of legislative registration of pre-trial proceedings as an independent part of the criminal procedure aimed at achieving its goals and objectives. The criminal procedure unity declared by the legislator, which is manifested in the general purpose of all criminal procedural activities (Ar¬ticle 6 of the Criminal Procedure Code of the Russian Federation), and the continued identification of the criminal procedure with criminal proceedings (Ar-ticle 1, pa¬rag¬raph 56 of Ar¬ticle 5, Article 6 of the Criminal Procedure Code of the Russian Federation) contradict its mixed nature, create a false impression of the unity of the criminal procedure activities of investigators, prosecutors, and judges, hinder the actual development of adversariality as a principle of exclusively judicial proceedings, negatively affect the quality and efficiency of the criminal procedure as a whole. According to the author, a clear division of pre-trial and judicial proceedings should increase the responsibility of the preliminary investigation bodies and the prosecution office for the effectiveness of pre-trial proceedings, as well as ensure the true independence of the court. Consideration of pre-trial proceedings as an independent type of activity separated from judicial proceedings allows deferring to the judgment of the scientific community the question of the necessity to fix both the goals and objectives specific to each part of the criminal procedure and the formulation of separate groups of principles determining the essence of criminal procedural activity in pre-trial and, separately, in judicial proceedings.

Deposition in German Criminal Procedure: A Critical Appraisal of the Post-Soviet Myth

The article examines the German experience of the legal establishment and practical application of the criminal procedural institute of deposition. Today, this procedure is being actively discussed throughout the post-Soviet space. The fact that seven countries of the former Soviet Union (Lithuania, Estonia, Moldova, Ukraine, Kazakhstan, Kyrgyzstan and Armenia) have implemented the institute of depositing into their criminal proceedings makes this discussion particularly acute. The author of the article concludes that the experience of FRG cannot serve as a positive example for this kind of reforms. According to the author, the German version of deposition has no coherent conceptual basis, and its very existence seems to be the result of historical accident. The article also demonstrates the far-fetched nature of the frequent parallels between German and post-Soviet deposition regulations. The hypothesis that the postSoviet reformers relied on the American experience, which has its own special internal logic, seems much more plausible. The central idea of the article is the fundamental incompatibility of the institution of deposition with the beginnings of a continental preliminary investigation. This conclusion may be useful for further reflection on the current problems of pre-trial proceedings.

Prerequisites for the Formation of a Special Procedure for Pre-Trial Proceedings in Relation to Entrepreneurs

Prerequisites for the Formation of a Special Procedure for Pre-Trial Proceedings in Relation to Entrepreneurs

Обвинительное заключение: процессуальное предназначение

The paper analyzes the problems of the procedural purpose of the indictment as a law enforcement act that completes the pre-trial investigation of a criminal case. The relevance of the study is caused by the duplication of the role of the indictment and the decision on indictment as a defendant, which arises from the system of procedural legislation and the common investigative practice, in terms of establishing the scope, content, and boundaries, in other words, determining the subject of the upcoming criminal trial at first instance. Based on the traditional for national criminal justice concept of retaining the institute of indictment as a defendant, the author substantiates the thesis about the misunderstanding of the indictment as a document determining the content and parameters of a criminal complaint made against an accused. The paper clarifies that during the pre-trial investigation, such a role can only belong to the decision on indictment as a defendant. The author analyzes the reasons influenced the emergence of the identified doctrinal-legal dissonance that are associated with the not quite reasonable law-making policy typical for the development of Soviet and post-Soviet criminal justice. The author proposes to reduce the procedural significance of the indictment not to the formulation of the subject of the upcoming criminal trial at first instance, but only to summarizing the results of the pre-trial investigation and the final recognition of its results appropriate for legal proceedings on merits, as well as to determining the moment of formal completion of pre-trial proceedings and the termination of all legal relations inherent in this criminal procedure stage. It is proposed to consider the indictment a reason (legal fact) for the commencement of judicial proceedings. Moreover, the author mentions other purposes of the indictment – law enforcement and organizational and technical.

Процессуальное и криминалистическое обеспечение достоверности результатов опознания

The article discusses the most significant issues of legal regulation and forensic support for the identification of living persons carried out within the framework of pre-trial proceedings. Empirical materials illustrating typical mistakes made during this procedure are provided. The authors also emphasize the necessity of working with the recognized individuals during the identification process. Examples of procedural and criminalistic errors in presenting individuals for identification in conditions that exclude visual observation by the identifier are examined. The essence of presenting individuals for identification is defined as an independent investigative action, the procedure of which is regulated by Article 193 of the Criminal Procedure Code of the Russian Federation. The main characteristic of identification is identified as the recognition (identification) of the presented object. The conclusion is justified that this recognition is the procedural form of criminalistic identification.

The Russian system of pre-trial proceedings as a synthesis of different types of criminal procedure

The article is devoted to the study of prerequisites that determined the distinctive character of the Russian system of pre-trial proceedings in a criminal case. Analyzing the vector of development of national criminal justice and criminal procedure legislation, drawing comparative parallels with foreign mechanisms of preliminary investigation, the author comes to the conclusion that the gradual separation of the Soviet and post-Soviet system of pre-trial proceedings was caused by the well-known historical cataclysms of the 20th century. It is noted that a unique model of pre-trial proceedings has been formed in Russian Federation that represents a chaotic synthesis of various, including poorly compatible, elements inherent in different types of criminal proceedings.

Типичные следственные ситуации по медицинским уголовным правонарушениям

В статье предпринята попытка охарактеризовать один из структурных элементов, входящий в содер-жание методики досудебного расследования уголовных правонарушений — типичные следственные ситуации, образующиеся при досудебном производстве по медицинским уголовным правонарушени-ям. Проведен анализ состояния расследования медицинских уголовных правонарушений по данным статистической информации по всей Республике, высказаны пожелания по детализированию данных статистики по двум позициям. Для повышения эффективности деятельности подразделений следствия и дознания в ходе досудебного производства по медицинским уголовным правонарушениям предло-жены типичные следственные ситуации, возникающие в начале досудебного расследования по данной группе уголовных правонарушений. Каждая типичная следственная ситуация описана со своими характерными признаками, указаны благоприятные и неблагоприятные стороны. Имеющиеся возмож-ности современной криминалистики дают возможность развития профессионализма следственных подразделений и органов дознания в борьбе с преступностью в ходе досудебного расследования уго-ловных дел, которые необходимо реализовывать через сложившиеся типичные следственные ситуации, в том числе предложен примерный алгоритм досудебного расследования медицинских уголовных правонарушений.

Efficiency of Pre-Trial Proceedings – Current State and Pro Futuro Challenges; Bratislava Legal Forum 2022

On September 12 and 13, 2022, the international scientific conference "Bratislava Legal Forum 2022" was held under the auspices of the Alumni Club of the Comenius University in Bratislava, Faculty of Law. The central theme of the plenary session was "The rule of law and the academy in the storms of 100 years". This year's conference was significant because it was also part of the celebration of the 100th anniversary of the founding of Comenius University in Bratislava, Faculty of Law. Discussion in Section no. 13 Criminal law, Criminology and Criminalistics, in Slovak, Czech and English, was conducted as part of a project supported by the Research and Development Support Agency APVV no. 19-0102 ”The efficiency of pre-trial proceedings – research, evaluation, criteria and influence of legislative changes ”. The given section was aptly titled: "The efficiency of the pre-trial proceedings – current state and challenges for the future".

The Investigative Team as an Object Of Criminal Procedure Legal Relations: A Methodological Analysis

The author presents methodological research of an investigative team viewed as a category of the object of criminal procedure relations. Having studied the law enforcement practice of assigning preliminary investigation to an investigative team and the positions of different authors who examined the theoretical and methodological aspects of the institute of investigative teams in criminal proceedings, the author concludes that the work of investigative teams requires a specification of conceptual approaches that are, to some extent, aimed at improving the procedural order of the organization and the work of an investigative team. The author also describes the complex of general and specific research methods used to study various structural elements of the institute of preliminary investigation carried out by an investigation team in criminal proceedings: from the standpoint of historical-legal analysis of the development of the institute of collegiality of pre-trial proceedings in criminal cases; from the standpoint of analyzing theoretical and practical clauses on the procedure of normative regulation of the organization and work of an investigative group on investigating crime; specific features of the interconnection of key structural elements in the work of investigative teams and the problems of their correlation are identified. The application of a range of methodological research options allows the author to outline the theoretical legal provisions for an investigative team as an object of criminal procedure relations.

МЕДІАЦІЯ ЯК СПОСІБ ДОСУДОВОГО ВРЕГУЛЮВАННЯ ПУБЛІЧНО-ПРАВОВИХ СПОРІВ У СФЕРІ ДЕРЖАВНОЇ РЕЄСТРАЦІЇ

The article is devoted to the study of such a method of pre-trial settlement of public legal disputes in the field of state registration as mediation. It is emphasized that the creation of opportunities for the development of alternative (non-judicial) methods of dispute resolution is one of the main tasks of a democratic, legal state, which tries to ensure the protection and guarantee of the rights of all subjects of law at the appropriate level. This creates an obligation for the state to promote the development of such non-state institutions, such as, in particular, intermediaries (mediators), who help to settle the dispute without bringing it to court. It has been determined that mediation is the activity of professional intermediaries who direct participants of legal dispute into compromise and settlement of the dispute independently by the participants. The article considers peculiarities of mediation procedure in administrative court. Existing additional difficulties in administrative proceedings for the mediation procedure were considered. The content of the draft law of Ukraine «On mediation» concerning such complications has been analyzed. The existing division of the mediation procedure at this stage was examined. It has been observed that the practice of settling conflicts between authorities and private individuals in pre-trial proceedings tends to indicate a reluctance on the part of the authorities to compromise, not only because of the legal nature of their decisions, but also because of certain, so to say, established business practices for quite some time. This is a fundamental reluctance of the authorities to compromise. It is indicated the legislative and factual prerequisites for the application of the mediation agreement in the settlement of public law disputes in the field of state registration, which combines the advantages of both the mediation procedure (economy in terms of time and money, significant relief of the judicial system) and the trial procedure (application guarantees of subjective rights, freedoms, legitimate interests at the level of administration of justice). The author has submitted proposals on improvement of administrative legislation aimed at settlement of mediation as a way of pre-trial settlement of public-legal disputes in the sphere of state registration.

О причинах наделения органа дознания непроцессуальными полномочиями полицейского характера

Introduction: the transformation of the pre-trial proceedings system predicted recently can be planned after a proper assessment of the available organizational and legal resources, a genuine understanding of their role and potential in solving various tasks of combating crime. In this regard, the purpose of the paper is to determine the essence of the bodies of inquiry in the general system of the criminal procedure regulation and to identify the reasons for their being given a number of police powers: to carry out the actual attachment of a person, to conduct operational investigative measures, in particular, the search for the accused. Methods: the methodological framework for the paper consists of general scientific (dialectical, systemic, structural-functional, logical, etc.) and specific scientific (formal-legal, comparativelegal, historical-legal, prognostic, etc.) research methods. The results of the study allow revealing the main reason that has influenced the mixing of procedural and non-procedural (police) powers of the bodies of inquiry – an inadequate assessment by the legislator of the results of the gradual giving the sort of police law enforcement agencies some judicial and investigative powers. Conclusions: investigative or judicial orders on carrying out operational-search and administrative-legal measures should be addressed not to the body of inquiry as a subject of the criminal procedural regulation, but to the police and other sort of police bodies given the required state authority.

Procedural independence of the investigator (comparative legal analysis of the legislation of the Russian Federation and the Socialist Republic of Vietnam)

The article deals with issues related to the procedural independence of the investigator in criminal proceedings, as well as its relationship with the procedural powers of the investigator. Analyzing the provisions of the Code of Criminal Procedure of the Russian Federation and the Code of Criminal Procedure of the Socialist Republic of Vietnam, the authors come to the conclusion that the procedural independence of the investigator in pre-trial proceedings in a criminal case in Vietnam is significantly limited. The authors are convinced that in its further development, the Vietnamese legislator, within the limits of what is permissible, will expand the procedural independence of the investigator by granting him additional procedural powers.

UPAYA PAKSA (DWANG MIDDELEN) DALAM DUGAAN TERJADINYA TINDAK PIDANA BAGI PENYIDIK

The supreme court didn’t make the gradation on the evidence law in the process of the law enforcement on the first stage/pre-trial (investigation and introgation) and the second stage/trial (prosecution and verdict). Meanwhile, the provisions of article 184 KUHAP is related with the provisions of the next article 185, 186, 187, 188, and 189 KUHAP. That proves that the gradation of legal evidence in article 184 is for the second stage/ trial process. The research method used in this research is normative legal research. The research approach used is the statutory approach, the conceptual approach and the cases approach to coercive measures (dwang middelen) in the alleged occurrence of criminal acts for investigators based on the Criminal Procedure Code and the Constitutional Court Decision Number: 21/ PUU-XII/2014. This study aims to analyze disharmony as a legal consequence of the Constitutional Court Decision No. 21/PUU-XII/2014.
 If the verdict of supreme court aquo has the character final and binding, then after 30 days it was decided and declared in the gazette. As the law effect, all measures from the investigator were guided by KUHAP, in the frame of the force effort (dwang middelen) when the determination of the suspect, the arrest, and the detention is called as the breach of the legality principle and the rechtmatigeheid van bestur principle. That measures is null and void (neitigheid van rechtswege), therefore when tested by the pre-trial process about that measures, then the lawsuit filed by the applicant is very feasible and rasionable based on the law and appropriate to be accepted by the judge of pre-trial examiner.

Mediation as a Pre-trial Process at the Tribunal for Consumer Claims, Malaysia: The Way Forward

Mediation as a Pre-trial Process at the Tribunal for Consumer Claims, Malaysia: The Way Forward

AXBOROT TEXNOLOGIYALARI SOHASIDA SODIR ETILADIGAN JINOYATLARNI TERGOV QILISHDA JAMOATCHILIK BILAN HAMKORLIK

The article is devoted to the investigation of crimes in the field of information technology, which are becoming more and more dangerous in our society and are relatively new to the practice of law enforcement agencies. This article directly analyzes the dynamics of growth and current statistics of crimes committed with the help of information technology, the indicators of detection of investigated crimes in this area. The article also substantiates the necessity and conditions for the interaction of investigating authorities with the public in the investigation of crimes committed with the help of information technology. In the article, the authors describe the international legal framework and the importance of cooperation between the investigative authorities and the public in pre-trial proceedings. In particular, today there is an objective need to establish cooperation with financial institutions, banks, mobile operators, Internet providers, and payment systems to detect, investigate and prevent crimes committed using information technology. At the same time, the need for the Central Bank to create a single base for interaction with law enforcement agencies of the country is substantiated. The authors of the article analyze the problems associated with the involvement of specialists in the investigation of this category of cases and make a number of proposals to address these issues.

PARTICIPANTS IN PRE-TRIAL PROCEEDINGS TO BE WARNED ON THE INADMISSIBILITY OF DATA DISCLOSURE

The article justifies the need to clarify the inadmissibility of disclosing pre-trial production data to all persons who take part in the pre-investigation check and during the preliminary investigation, as well as their warning about criminal liability for disclosing pre-trial production data under Art. 310 of the Criminal Code. The opinion is justified that not only the parties and other participants listed in Chapter 8 of the Code of Criminal Procedure of the Russian Federation should be prevented, but also those persons whose participation is fixed in specific norms governing the production of certain procedural, investigative actions, as well as the use of procedural coercion measures. Since the participants in the pre-investigation check do not have a mainly procedural status, involving them in procedural actions should be the basis for explaining the inadmissibility of disclosing the data received. Since the inadmissibility of disclosing data of pre-trial proceedings is aimed at ensuring the secrecy of the preliminary investigation, as well as the protection and security of the rights of participants in the criminal process, the accused, the suspect should be warned of responsibility under Art. 310 of the Criminal Code, since the fact of attraction for one crime does not give the right to commit another in order to ensure the right to defense, which should be realized only by legal means.

Juvenile Justice and Women's Clubs: Ogden as a Case Study

Juvenile Justice and Women's Clubs: Ogden as a Case Study

Уголовно-процессуальные средства прокурорского надзора на завершающем этапе расследования

Introduction: the transformation of control and supervisory activities that has been taking place for a long time obviously affects the procedural status of the prosecutor as one of the main participants in this activity and, as a result, does not allow the discussion related to his purpose in modern criminal proceedings to subside. The current legislative framework in the context of the prosecutor’s powers of supervision in the preliminary investigation gives reason to talk about a certain ambiguity of the latter’s position. Thus, his purpose can be viewed through the prism of the procedural powers granted, his attribution to the prosecution, and the stages of criminal proceedings. The supervision of the legality of the investigation and the arguing for the State are inextricably linked. And if, on the one hand, they act as powers or forms of criminal prosecution by the prosecutor, then, on the other hand, criminal prosecution itself appears to be one of the functions of the prosecutor in the criminal process. The direction of supervisory activity, which includes the supervision of the course of the preliminary investigation – criminal prosecution – the participation in the consideration of criminal cases by the court, determines a certain isolation of the norms governing the activities of the prosecutor at the final stage of pre-trial proceedings when deciding whether to send a criminal case with an indictment to court. It seems possible to characterize this kind of activity as an independent stage of pre-trial proceedings, which, among other things, performs the so-called precaution function for the subsequent stage, as it helps to eliminate the shortcomings of the preliminary investigation. In this regard, the authors set a goal to disclose certain criminal procedural means of prosecutorial supervision at the final stage of criminal proceedings. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are the methods of information processing and logical analysis, synthesis, induction, deduction and generalization. Results: the authors’ content of the criminal procedural means of prosecutorial supervision presented in the work at the final stage of crime investigation, based on the analysis of the legislation and modern prosecutorial practice, provides a more comprehensive understanding of them and makes it possible to use them more effectively in the practical activities of authorized law enforcement officials. Conclusions: as a result of the study, certain criminal procedural means of prosecutorial supervision at the final stage of criminal proceedings have been disclosed to inform law students, the teaching staff of law schools, as well as practitioners to better understand the specifics of the prosecutor’s activities at the above stage of criminal proceedings.

Geneza of the legislation on the implementation of the right to an effective means of legal protection in pre-trial proceedings in the criminal process of Ukraine

The right to an effective means of legal protection, as a fundamental one within the framework of international national criminal procedural legislation, requires effective mechanisms for the realization of this right. An analysis of the practice of the European Court of Human Rights, whose activity is aimed at monitoring the implementation of the rights and freedoms provided for by the Convention on the Protection of Human Rights and Fundamental Freedoms, is useful in the research topic. The scientific article highlights the genesis of the legislation on the implementation of the right to an effective means of legal protection in pre-trial proceedings in the criminal process of Ukraine.The purpose of the article is to consider the legislation on the right to an effective remedy in retrospect, with an emphasis on the main normative legal acts, which contain provisions on the implementation of the right to an effective remedy in pre-trial proceedings in the criminal process of Ukraine. An important aspect in realizing the right to an effective means of legal protection is the legal basis of such activity. In particular, the study of the genesis of the legislation of this right indicates the development of mechanisms for its implementation, which subsequently creates grounds for evaluating their effectiveness and quality. The need to coordinate the state's guarantee of a number of human and citizen rights and freedoms, in particular within the criminal process, determines the need to improve the theory of guarantees of the rights and basic freedoms of the individual, as well as the concomitant formation and development of normative, law enforcement and other practices in order to increase the effectiveness of the functioning of human rights mechanisms . The author of the scientific article put forward the idea that the assessment of the quality of the mechanisms for ensuring the implementation of any right calls for a study of the genesis of legislation, in particular criminal procedural law. Taking into account the fact that law-making processes in the field of streamlining mechanisms for the realization of the right to an effective means of legal protection take place both at the international and national levels, the author refers to the fundamental documents, which, in fact, established the need for the formation and development of such mechanisms.