Pre-trial Stage Research Articles

Regarding the defense counsel’s participation in criminal proceedings at the pre-trial investigation stage

Regarding the defense counsel’s participation in criminal proceedings at the pre-trial investigation stage

KAJIAN HUKUM TINDAK PIDANA PENCURIAN YANG DILAKUKAN SECARA BERSAMA-SAMA

The crime of theft which is committed jointly or often called theft with weighting, is a serious violation of law and has important implications in the criminal justice system. This study aims to examine the legal aspects related to the criminal act of theft which was carried out jointly based on the Criminal Code. The type of research used in this research is normative legal research. The legal material used is the Criminal Code as the primary legal material. The approach used is the statutory approach, the conceptual approach and the case approach, in this case the Case Study of Curanmor by Mother-in-law and Son-in-law in the Legal Area Tangerang Banten Police. The results of this study indicate that criminal responsibility for the perpetrators of the crime of theft committed jointly by in-laws and sons-in-law can be subject to Article 363 paragraph (1) with a maximum prison sentence of 7 (seven) years, can even increase to 9 (nine) years if in the trial process it is found that the theft was carried out at night by destroying the victim's house in order to facilitate the illegal possession of the target object. As for law enforcement for the perpetrators of the crime of theft through 2 stages, namely the pre-trial stage, namely investigation and investigation by the police and the trial stage, namely the process of proof and prosecution by the Public Prosecutor in the trial and the Verdict by the Panel of Judges. In relation to the case studies in this study, several factors lead to the occurrence of theft, including the high economic value of vehicles, relatively low vehicle safety, black markets, lack of public safety awareness, and social and economic disturbances. It is understood that the crime of motor vehicle theft is committed by the lower middle class in an effort to maintain life as an effort made by son-in-law and mother-in-law in this case;

Arrangements and Agreements at the Pre-Trial Stage in the German Criminal Procedure

Modern criminal procedure tends to employ the increasing number of various kinds of agreements, arrangements, which results, in the practical sphere, in the facts that special procedures displace ordinary investigation and the subsequent ordinary procedure of judicial proceedings. In the Russian criminal procedure, special procedures for making a court decision are becoming increasingly common with the consent of the accused with the charge brought against him or when concluding a plea agreement. In the American criminal procedure, the conviction of the accused based on his plea has become regular, and a full trial by the court is an exception. The Russian criminal procedure by its nature tends more towards the continental criminal procedure and historically German and French criminal procedures have had a great influence on its formation, thus, it seems interesting and informative to familiarize yourself with foreign experience, in particular with the German one. Russian and German criminal trials are based on the principle of legality, or lawfulness, where the investigation and consideration of the case are subordinated to one of the principles of the process: the comprehensiveness, completeness and objectivity of the investigation of the circumstances of the case. Recently, both Russian and German criminal trials have started using arrangements and agreements more. In contrast to the Russian criminal procedure, the German one faced the problem of arrangements and agreements much earlier. Therefore, Germany has already developed a well-established practice of their application and theoretical justification and it seems important to consider the German experience in terms of the application of arrangements and agreements in criminal proceedings in order to comprehend the designated problem.

“The Child Needs to Tell it to Me in Words”

Abstract Much research on child witnesses in child sexual abuse trials is focused on children’s performance in legal proceedings. Witness competency, that is predicated on the adversarial justice system’s principle of orality, is core to child witness testimony, and is determined at the pre-trial stage. However, this article highlights the need to consider child witness competency as a dynamic concept, that varies in response to the ecologies of the trial processes as they unfold. Set in a low-middle-income country, this qualitative study describes and analyzes trial processes through a child-inclusive lens, identifying barriers and facilitators to child witness competency. The results were mixed, yielding three major conclusions for consideration: (i) the importance attributed to physical infrastructure, and the creation of vulnerable deposition rooms; (ii) the role of judicial discretion in issues of child witness competency and (iii) role of intermediaries, with regard to enhancing child witness competencies.

Artificial Intelligence Technologies in Criminal Procedural Proving

Objective: to summarize and analyze the approaches, established in criminal procedural science, regarding the use of artificial intelligence technologies, to elaborate an author’s approach to the prospects of transformation of criminal procedural proving under the influence of artificial intelligence technologies.Methods: the methodological basis of the research is integrity of general, general scientific and specific legal methods of legal science, including abstract-logical, comparative-legal and prognostic methods.Results: the main areas of using artificial intelligence technologies in the cri mi nal procedure are defined, such as prophylaxis and detection of crimes, organization of preliminary investigation, criminological support of crime investigation, and assessing evidences at pre-trial and trial stages. The author comes to a conclusion that the rather optimistic approach to this issue, established in the science of criminal procedure, significantly outstrips the actually existing artificial intelligence technologies. The main requirements are identified, which the activity of using artificial intelligence in collecting evidences in a criminal case should satisfy. The author pays attention to the problems of using artificial intelligence technologies in conducting expert assessments, requiring an improved methodology of forensic work. The issue is considered of the prospects of transforming the criminal-procedural proving process under introduction of artificial intelligence technologies. A conclusion is substantiated that the assessment of evidences with mathematical algorithms, in which preset values of each evidence quality are used, contradict to the principle of free assessment of evidences in the criminal procedure. The author comes to a conclusion that today there are no sufficient grounds for endowing artificial intelligence with legal personality during proving.Scientific novelty: the work presents an attempt to consider the role of artificial intelligence in the criminal-procedural proving; it specifies the requirements to be met by this technology during evidences collection and analyzes the prospects of transforming the proving process under the introduction of artificial intelligence technologies.Practical significance: the main provisions and conclusions of the research can be used to improve a mechanism of legal regulation of artificial intelligence technologies in the criminal procedure.

Participation of the Defender in the Pre-Trial form of Appeal

Relevance. Appeal in criminal proceedings is extended to all stages and proceedings. The right to appeal has been elevated to the rank of a criminal procedural principle and is included in the procedural status of almost every participant. The scale of the implementation of the right to appeal, the lack of uniform practice and its proper provision determine the relevance of research in this area. A special place in the system of ensuring the right to appeal is occupied by the defender, who does not always have both sufficient powers and means of their implementation.The purpose of the study is to determine the optimal legislative regulation of the procedural status of a defender in a pre-trial criminal procedural appeal.Objectives: study of theoretical developments and provisions of criminal procedure legislation in terms of regulating the procedural status of the defender in the field of appeal; development of the author's position on the proper and possible procedural position of the defender in this area.Methodology. Traditional general scientific, private scientific and special methods were used.Results. A set of new knowledge about the procedural potential of a defense lawyer in criminal procedural appeal at the pre-trial stages of criminal proceedings.Conclusions. To optimize the procedural regulation of the defender's status and to ensure proper assistance to the principal in the implementation of appeal actions. It is offered: supplement Part 5 of Article 125 of the Code of Criminal Procedure with the powers of the court to decide on the return of the complaint for its resubmission; determine the specific grounds for leaving the complaint without consideration (adding Article 125 of the Criminal Procedure Code of the Russian Federation with a new part 5.1); supplement the content of Article 123 of the Criminal Procedure Code of the Russian Federation with a new part 1.1 – requirements for drawing up a complaint.In the field of appeal, it is necessary to actively introduce digital resources. To do this, it is necessary to establish additional requirements for the design and content of an electronic complaint, to ensure the preservation of attorney-client confidentiality when forwarding, storing an electronic document, archiving it, etc.

CRIMINAL CASES RELATED TO CHEQUES IN THE LIGHT OF THE OMANI LITIGATION PROCEDURES FACILITATION LAW PURSUANT TO ROYAL DECREE NO. 125/2020

The study included the legal nature of the different forms of crimes committed on cheques by highlighting the most important crimes on cheques and how they are dealt with before the judiciary under the law of facilitating litigation procedures. The study was divided into two sections, where the first section dealt with the legal nature of crimes against cheques by dealing with the concept of the cheque and its characteristics in addition to images of crimes against the cheque. To achieve the objectives of the article, doctrinal legal research methodology using a qualitative approach was adopted. The study reached results, the most important of which are the procedures specified the period within which the cheque case must be decided within a maximum period of 60 days, and the legislator limited the litigation stage in this type of case to two levels, primary and appeal only. Therefore, the rulings issued by the Court of Appeal regarding cheque offenses are not subject to appeal before the Supreme Court. The study also recommended that the legislator make a special regulation for the duration of the cheque case in the pre-trial stage, whether before the police station or the public prosecution, in addition to specifying a specific period of time for this case to remain with these authorities, in order to ensure the speedy consideration and decision on it.

PETITIONS IN CRIMINAL AND CIVIL PROCEEDINGS: COMPARI-SON

The «cross-cutting» institutions of criminal, civil, arbitration and administrative procedures are not always universal and identical. Despite terminological coincidences and generally similar notions of petitions in different types of proceedings, the places they occupy in criminal and civil proceedings are different. Purpose: to determine the balance of petitions and applications in criminal procedures, on the one hand and in civil, arbitration and administrative procedures, on the other hand. The determining method of the study is the method of comparative law. In addition, general and special methods (analysis and synthesis, logical, special-legal) are applied. Results: the criminal procedure concept of petitions includes heterogeneous appeals of law enforcement agencies to the court and requests addressed to these bodies by the participants in the pre-trial stages of proceedings, which have no analogues in civil procedure and «classic» petitions of the parties before the court. In criminal procedure, in contrast to arbitration, administrative and civil procedures, petitions many times prevail over applications.

In the Name of Dark Web Justice: A Crime Script Analysis of Hacking Services and the Underground Justice System

The Dark Web serves as a key venue for peddling illegal goods and services, from stolen possessions and drugs to illicit activities. The concurrent increase in Tor network usage and the development of cryptocurrency has led to the creation of major black market sites. One of the most popular illicit services offered on the Dark Web is hacking, which includes website/social media account hacking, Denial-of-service attacks, and custom malware. At the same time, the Dark Web community has formed its own justice system leveraging the layer of anonymity that exists between underground community users and the cybercrime ecosystem. Existing studies predominantly focus on the major drug market operating on the Dark Web, firearm sales, sexual exploitation, and money laundering. To address the gaps in the current research as well as the relative nascency of an underground justice system to monitor hacking services on the Dark Web, this study attempts to broadly capture the dynamic nature of hacking services, which requires continuous research to identify new trends and develop effective responses. The study aims to examine the characteristics and the operations of the hacking service market and the underground justice system on the Dark Web via an in-depth examination of Dark Web forums with a crime script analysis vis-à-vis thematic analysis. The study defines the crime script as that which includes pretrial, mid-trial, finalization, and exit stages. This research sheds light on Dark Web justice courts’ procedures and the courts’ implications for shaping the future of the Dark Web.

Jurisdictional context and the (over)use of pretrial detention

On any given day, nearly half a million people are held in local jails awaiting trial. This population, comprised of individuals who have yet to be convicted, accounts for the vast majority of recent jail population growth. Although mounting evidence demonstrates the devastating social and financial toll of America’s pretrial practices, limited scholarly research has considered the contextual factors that undergird our overreliance on pretrial detention. Drawing on data across multiple administrative and publicly available datasets, we examine associations between contextual factors and pretrial detention across 2,136 counties. In our analyses, factors consistent with the focal concerns and minority-group threat perspectives emerge as key considerations at the pretrial stage. We find that the effects of threat are largely mediated by jail capacity. These results shed light on the broader contextual factors that pattern pretrial detention usage, underscoring their relevance for future pretrial research and ongoing reform efforts.

FEATURES OF INTERACTION BETWEEN THE COURT AND THE PROSECUTOR IN THE PROCESS OF PROOF DURING PRE-TRIAL PROCEEDINGS IN A CRIMINAL CASE

Proceeding from the common human rights goals of the court and the prosecutor to achieve the appointment of criminal proceedings and the relationship of their powers in the pre-trial stages, the article discusses the content and features of the procedural interaction of these participants in the process of evidence. As an example, on the basis of an analysis of the procedure for consideration by the court of complaints in accordance with Article 125 of the Russian Code of Criminal Procedure, attention is drawn to the essence of the participation in evidence in such cases of the court and the prosecutor; the legal and law enforcement problems of the exercise of their powers and various options for their solution are proposed. At the same time, the importance of ensuring the correct combination of control and supervisory powers of these participants in the criminal process is indicated; moreover, taking into account the content of the resolution of the Plenum of the Supreme Russian Federation on the category of materials updated in 2022, the need for a clearer legislative definition of the limits of evidence, increasing the assets, is justified. In addition, the directions of improving the procedure for considering such complaints, the need to comply with the sequence of their reception for consideration are specified. The study used general scientific methods (analysis, deduction) and private scientific methods (formal-logical, comparative jurisprudence, etc.). As conclusions, it is proposed to make a number of additions to the criminal procedure law, including Article 37 of the Code of Criminal Procedure of the Russian Federation and other norms.

Intravesical gemcitabine and docetaxel in the treatment of BCG-naïve non–muscle invasive urothelial carcinoma of the bladder: Updates from a phase 2 trial.

507 Background: Combination intravesical Gemcitabine and Docetaxel (GEMDOCE) has demonstrated benefit for bacillus Calmette-Guérin (BCG) unresponsive non-muscle invasive bladder cancer (NMIBC) in retrospective series and is now being widely utilized as salvage therapy. BCG therapy is fraught with frequent drug shortages and some patients are unable to tolerate BCG due to side effects. Given ongoing BCG shortages as well as the promising efficacy and tolerability of GEMDOCE as a salvage therapy, our objective was to investigate the safety and efficacy of intravesical GEMDOCE for high-risk (HR) BCG-naïve NMIBC in a prospective manner. Methods: This study is an IRB-approved prospective single-arm open-label phase II trial for patients with BCG-naïve HR NMIBC. Intravesical gemcitabine (1,000 mg)/docetaxel (40 mg) in 100mL normal saline is given weekly for 6 weeks as induction followed by monthly maintenance therapy for 2 years among responders. The primary endpoint was 3-month complete response (CR), defined as a negative bladder biopsy 6 weeks after induction treatment. Secondary endpoints included adverse events (AE) and 12-month CR. Results: To date, the study has fully accrued with 25 patients enrolled from July 2020-August 2022. The pre-trial pathologic stages in our cohort were as follows: HGT1 with CIS (n = 7), HGT1 without CIS (n = 6), HGTa (n = 9), and CIS alone (n = 3) (Table). All 25 patients who completed induction therapy demonstrated CR at 3 months. Eight out of 9 (89%) patients with at least 12 months of follow-up demonstrated continued CR. One patient with HGT1 + CIS on enrollment developed a recurrence at 9 months with HGTa. No enrolled patients have undergone radical cystectomy. Grade 1 AEs were common (19/25 patients, 76%) including hematuria, urinary frequency, urgency, and fatigue. Two patients (8%) experienced a Grade 3 AE including urinary retention and UTI requiring hospitalization and intravenous antibiotics. Conclusions: In this ongoing single-arm phase II trial, GEMDOCE appears to be well-tolerated with promising short-term efficacy for patients with BCG-naïve HR NMIBC. [Table: see text]

Australia's Divergent Legal Responses to Women Who Kill Their Abusive Partners.

Concerns over the legal treatment of women who kill in response to domestic abuse have driven several jurisdictions to reform their homicide laws in recent years. This article examines how abused women are currently treated within the Australian legal system by analyzing homicide cases involving women prosecuted for killing an abusive partner in Australia from 2010 to 2020. The findings reveal the limitations of legal reforms to improve access to justice for abused women. Instead, there needs to be an increased focus toward pre-trial stages of criminal proceedings and to address persistent misconceptions and stereotypes associated with domestic abuse.

Pre-Trial Dispute Settlement Procedure with Participation of a Financial Commissioner: Procedural Challenges

The Institute of Financial Commissioner aims at effective pre-trial settlement of disputes between financial organizations and financial services consumers. At the same time, disputes not resolved in this manner are referred to the courts of general jurisdiction. The specifics of the legal status of the financial commissioner, peculiarities of the legal nature of the relations arising when considering a dispute between a financial institution and a consumer of financial services at a pre-trial stage, gaps in legal regulation result in the emergence of a number of important procedural problems: determination of the procedural status of persons involved in the dispute, application of the rules of generic and territorial jurisdiction, establishment of the procedure for consideration of the relevant categories of cases by courts of general jurisdiction, etc. The lack of legal regulation of procedural legislation in such cases, as well as full-fledged explanations of the Supreme Court of the Russian Federation on these issues, lead to the multidirectional and unsettled development of judicial practice, violation of the principle of legal certainty, emergence of barriers in the exercise of the right to court protection. The paper analyzes the above problems, the causes of their occurrence and suggests the ways to resolve them.

The Functions of the Prosecutor in the Criminal Process in the Context of the Constitutional Principle of Separation of Powers

Based on a comprehensive analysis of the Constitution of the Russian Federation, the current criminal procedure legislation of the Russian Federation, the Federal Law “On the Prosecutor's Office of the Russian Federation” and the theoretical developments of specialists in the field of constitutional law, criminal procedure and prosecutorial supervision, and also taking into account the amendments to Article 129 of the Constitution of the Russian Federation, it can be argued that the institution of the prosecutor's participation in the criminal process has reached a new level of legal significance. The Author made an attempt to reveal the content and features of the human rights activities of the prosecutor in the criminal process from the point of view of the concept of separation of powers, to determine the place and role of the prosecutor in the system of relations between the bodies engaged in criminal procedure. According to the Author, the content of the powers of the prosecutor in the criminal process is a clear example of the reflection of the principle of subsidiarity of the branches of power. Implementing criminal prosecution in the criminal process, the prosecutor simultaneously performs a human rights function, since the legislator gives him the authority to identify and respond to violations of human and civil rights and freedoms while supervising the implementation of laws by the bodies of preliminary investigation, inquiry and operational-search activities at the pretrial stages, as well as when participating in court when considering criminal cases. The prosecutor, having the status of an independent body that is not part of the triune system of state power, acts as a guarantor of the implementation of the principle of proportional activity of all branches of state power. Thus, we can say that the implementation of the human rights activities of the prosecutor when considering criminal cases by the courts is a priority. The methodological basis of the study was made up of general scientific and particular scientific methods: analysis, synthesis, comparison, generalization, correlation, expert assessments.

Status of the victim in the adversary proceeding: Experience from Russia and recommendation for the Vietnam’s criminal procedures

Nowadays, most researchers believe that Russian Federation’s Criminal Procedure follows a mixed model instead of the traditional inquisitorial procedure model. Using the Russian Federation as an example, this article raises questions, including: How will the acquisition of adversarial elements affect the victim? Is the victim an independent party to participate in the adversary proceeding? Do the adversarial activities of the victim and the other subjects exist at the pre-trial stages? In Vietnam, with the limitation of the victim to participate actively in the adversary proceeding, it will be difficult for the victim to protect his or her legitimate rights and interests in criminal proceedings. He/she participates in the proceedings passively with the same role as witnesses. This article explores the role and position of the victim in the adversary proceeding of Russia. Analyzing the rights and obligations of the victim in the adversary proceeding, this article found that the victim in the Criminal Procedure Code of the Russian Federation is eligible to participate in the adversary proceeding as an independent party. Based on the results of research on the limitations of the victim’s role in Vietnamese criminal proceedings, the article discusses the significance of this study and proposes approaches to improve the victim’s participation in the adversary proceeding in Vietnam’s criminal justice system.

Архетип национальной уголовно-процессуальной системы и прокурор как ее доминантный субъект

The article proposes the author's definition and classification of primary and secondary signs of the national criminal procedural and legal organization of combating crime, as well as their manifestation in the legal status of the leading participant in pre-trial proceedings. The author concludes about the uniqueness of the modern form of pre-trial proceedings, which has become an organic part of the positive-legal criminal procedure model and doctrine. The legal organization of pre-trial and criminal proceedings as a whole is the result of balanced political forces. It is the political choice of the elite and, at the same time, an indicator of the real involvement in the political and legal processes of society. Now, a strong presidential power needs a strong accusatory power of the prosecutor's office. The investigative power must be subordinated to the power of the prosecutor: supervision over the procedural activities of investigators and bodies of inquiry is a form of prosecutor's management of law application in the pre-trial stages. The article presents a compromise concept of the investigative-prosecuting authority as the basis for optimizing the legal model of pre-trial proceedings and the entire legal system for combating crime. The specificity of the Russian investigative model of the legal organization of pre-trial proceedings is manifested in the separation of powers of two kinds: (1) the separation of the investigative-prosecuting and judicial powers and (2) the separation of the prosecutorial and investigative powers - the latter is redundant and does not correlate with the system of separation of powers in a legal state. The prosecutor and the investigator are the subjects of criminal prosecution, in relation to which the judiciary acts as a restraining force. It is the unity, not division, of the investigative and prosecutorial power in pre-trial proceedings that should be discussed. The one who conducts pre-trial proceedings with installed institutions of prosecution and evidence manages the criminal proceedings as a kind of “leading subject.” All other subjects, including the court, which is passive in the accusatory, that is, proactive plan, are followers. The prosecutor has a special position in the process, since he/she has exclusive powers regarding the transfer of a criminal case to court. The procedural role of the prosecutor has an inter-stage, general procedural character. Hence the author concludes about the superiority of the accusatory power of the prosecutor, which extends to pre-trial proceedings in relation to both the accusation and its proof. The prosecutor's office, as the accusatory power of the state, should be the central element of the criminal procedural and legal organization for combating crime. The institutes of accusation and proof, subject to the prosecutor, should form the elementary basis of the legal organization of combating crime.

Орган конституционного контроля как субъект конституционализации уголовно-процессуального законодательства

The increasing influence of constitutional ideas and principles on the system of legal regulation, including the regulation of pre-trial and judicial stages of criminal proceedings, has had a serious impact on the emergence and development of the concept and practice of constitutionalizing the legal system in modern states. The same trend has also affected the sphere of criminal proceedings, since, firstly, it is objectified by the need to improve the system of protecting human and civil rights and freedoms. Secondly, this trend is due to the fact that the subjects of criminal proceedings involved in the criminal process, on the one hand, are protected by the rights that are established in constitutional norms and regulations, on the other hand, these rights may be restricted in cases provided for by law. Determination of the balance in this matter is provided by law enforcement agencies in the process of law enforcement activities. At the same time, when situations arise when there are doubts about the constitutionality of the norms of criminal procedure legislation, the Constitutional Court of the Republic of Kazakhstan has the last word in the dispute about the right, which expands the boundaries of constitutional legality through the adoption of regulatory decisions. In this aspect, the article analyzes the activity of the Constitutional Court of the Republic of Kazakhstan as one of the main subjects of the constitutionalizing the norms of criminal proceedings. The author of the article examines the work of the constitutional control body through the content of its normative resolutions, which are an important source of constitutionalizing criminal procedure law.

Examining the value of criminologists’ skills in the context of sentencing objectives: Perspectives from presiding officers in Bloemfontein, Free State Province

The role of criminologists in South Africa and many other countries has been evolving and expanding over the years. Criminologists are increasingly involved in various phases of the judicial process, including the pre-trial, trial, and post-trial stages.1 As a scientific discipline, criminology involves understanding the root causes of crime, its impact on society, and how to prevent and respond to criminal behaviour. However, it stands to reason that in making an informed and balanced contribution to a case in a court of law, the criminologist must familiarise themself with all aspects relevant to the case.2 The current study focused on the perception of presiding officers about criminologists as expert witnesses in their courts during sentencing. This study explored whether presiding officers valued criminologists knowing, understanding and applying sentencing objectives in writing their reports. A qualitative inquiry was conducted to explore whether it is important for a criminologist to understand sentencing objectives in order to provide an overall and thorough report to the court. Semi-structured interviews were conducted with presiding officers from the regional and high courts in Bloemfontein. The findings suggest that presiding officers prefer to appoint a criminologist who understands and has broad experience of all sentencing objectives in South Africa to assist them in deciding on appropriate sentences.

ГРАЖДАНСКИЙ ИСК В УГОЛОВНОМ ДЕЛЕ: ОТДЕЛЬНЫЕ УГОЛОВНО-ПРОЦЕССУАЛЬНЫЕ АСПЕКТЫ

The subject of the study is the criminal procedural aspects of such an institution as a civil suit in a criminal case. The problematic issues of filing a civil claim, its procedural form, the peculiarities of the legal status of the civil plaintiff and the defendant, the issues of proof in a civil claim in a criminal case are analyzed. Certain aspects of the investigator’s powers are studied as a reaction to the filed civil claim and following response. The aim of the study is to identify the problems of filing a civil claim in a criminal case and involving participants in the status of a plaintiff and a defendant. The objectives of the study are to determine the time and procedure for filing a civil claim, the obligation to provide evidence, the features of attracting a plaintiff at the pre-trial and trial stages. The article analyzes the existing positions of the Plenum of the Supreme Court of the Russian Federation on the issue in question.