Pre-trial Stage Research Articles

НЕКОТОРЫЕ АСПЕКТЫ СОВЕРШЕНСТВОВАНИЯ ДОКАЗЫВАНИЯ ПРИ РАССМОТРЕНИИ СУДОМ МАТЕРИАЛОВ В ПОРЯДКЕ ст. 165 УПК РФ

The court’s consideration of petitions under Article 165 of the Criminal Procedure Code of the Russian Federation is the most popular and common form of judicial control at the pre-trial stage of a criminal procedure. Decisions on these petitions provide for the observance of public interests to ensure the investigation of a criminal case and the establishment of all legal circumstances and private interests of citizens to protect their constitutional rights and freedoms. This relationship between public and private interests determines special attention to the proof of facts when considering this category of materials since the proof is the basis for making a court decision. This type of judicial control aims at establishing facts that confirm the existence of procedural grounds for the investigative action indicated in the petition and – given the focus of the investigative action on restricting constitutional rights and freedoms – the involvement of the person, the object of this investigative action, in the crime on the fact of which a criminal case has been initiated. In proving, an actual link is to be established between the person concerned and the legal grounds for the requested investigative action. Otherwise, in the absence of facts related to the circumstance in proof, there are no grounds for conducting investigative actions. For the correct proof of facts, the judge must correctly determine all specific facts confirming procedurally sufficient grounds for conducting a specific investigative action and the parties involved, and, based on the results of the verification of the compliance with the requirements of the criminal procedure law when filing a petition and with the grounds for conducting the investigative action indicated in it, make a procedural decision in accordance with the “sufficient reason” evidentiary standard. In order to increase the efficiency of going to court and court’s considering these materials, it is advisable to fix in law the possibility of sending such petitions, supporting materials and the prosecutor’s decision on their validity to the court in electronic form, and of their resolving by the judge without the parties’ participation outside the adversarial procedure. In addition, in order to optimize the specified procedure for considering the petitions of the preliminary investigation body, the judge must have the technical opportunity to promptly receive electronic information regarding the special status of persons that are objects of the petition, ownership of property, cadastral value of real estate, information on declaring persons bankrupt, which excludes executive actions against them. Taking into account the lack of adversariality and the requirement of complying with private and public interests, in order to verify the validity of the investigative action declared in the petition, the judge, if there is this technical opportunity, can establish compliance with the procedure for initiating a criminal case, approval on the petition in relation to certain categories of persons listed in Article 447 of the Criminal Procedure Code of the Russian Federation, the proportionality of the value of the property subject to seizure, the amount of possible property penalties, the correct determination of the composition of the participants in the petition under consideration, and other issues of compliance with the requirements of the criminal procedure law on the petition. In order to prevent arbitrary use of information databases, a special program (including AI-based) should be developed forautomatic control over the correspondence of the requested information to the date of consideration and the circle of persons (property) indicated in the petition. In modern conditions, the introduction of the proposed electronic opportunities for resolving petitions will contribute to the improvement of the criminal procedural proof when the court considers materials in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation and to the greater effectiveness of this type of judicial control in order to ensure citizens’ constitutional rights to judicial protection.

Процессуальный статус прокурора в досудебных стадиях уголовного судопроизводства в зарубежных странах

Процессуальный статус прокурора в досудебных стадиях уголовного судопроизводства в зарубежных странах

О ПРАВЕ УЧАСТНИКОВ СО СТОРОНЫ ОБВИНЕНИЯ НА ОБЖАЛОВАНИЕ В АПЕЛЛЯЦИОННОМ ПОРЯДКЕ ПРОМЕЖУТОЧНЫХ РЕШЕНИЙ СУДА, ВЫНЕСЕННЫХ НА ДОСУДЕБНОМ ЭТАПЕ: ЗАЩИТА ЧАСТНЫХ И ПУБЛИЧНОГО ИНТЕРЕСОВ

The article examines the problem of determining the list of participants on the part of the prosecution, endowed with the right to appeal the interim decisions made at the pre-trial stage of criminal proceedings. Currently, the appeal and revision of interim decisions are carried according to Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation. However, Chapter does not take into account the specificity of the preliminary investigation stage, in particular, the subject composition of its participants. As a result, the list of the subjects entitled to appeal of the interim court decisions at the pre-trial stage of criminal proceedings remains controversial. The article discusses the right of the investigator and the head of the investigative body to file an appeal as well as the right of the victim to initiate proceedings in the court of appeal in defense of private interest. Drawing on the analysis of literature and practices of appealing interim court decisions, the author identifies the problems of theory and practice, including: 1) the prosecutor’s right to appeal is not sufficient to ensure tp protect public interests; 2) the controversial right of the investigator, or the head of the investigative body to file a complaint with the court of appeal; 3) there is no legal obligation of state bodies to notify the victim about the initiation of a petition before the court for a preventive measure or an investigative action, which may prevent the victim from exercising their right to appeal. The author proposes: 1) to supplement the Criminal Procedure Code of the Russian Federation with a list of subjects for filing (presenting) a complaint of interim decisions, including the investigator as the main participant in the process at the stage of preliminary investigation; 2) to legislate the investigator’s obligation to notify the victim about the initiation of a petition before the court for the application of a preventive measure, placement of the accused in a hospital for an examination, etc., as well as the obligation of the court to send the victim copies of decisions on these petitions.

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.

Contemporary criminal defence practice: importance of active involvement at the investigative stage and related training requirements

ABSTRACTThe shifting focus of criminal proceedings from the trial to the pre-trial stages leads to a changing role of criminal defence practitioners across Europe. European criminal defence lawyers are now expected to enter the proceedings earlier and exercise “active” and “participatory” defence as early as the investigative stage. Criminal lawyers, trained in the traditional trial-centred paradigm, are ill-prepared for this role, which results in an important skills gap. Legal representation at the investigative stage presents unique challenges, such as shortage of information, time pressures and the closed nature of pre-trial proceedings. It requires lawyers to operate in a more complex communication environment, than the one to which they have been accustomed. This article sets out the main elements of a professional training programme aiming to fill in the emerging skills gap. The training programme (SUPRALAT) was successfully implemented in Belgium, Hungary, Ireland and the Netherlands, and is being expanded further. The training focuses on effective communication skills, experiential learning and the development of reflective skills. It includes elements of interprofessional training and encourages the development of “communities of practice”.

Особливості призначення та проведення експертизи у кримінальному провадженні: новели законодавства

У статті розглядаються законодавчі зміни порядку призначення експертизи у кримінальному провадженні та характеризуються обставини, за яких сторона обвинувачення та сторона захисту мають право призначити експертизу. Досліджується роль експерта та його висновку у кримінальному провадженні. Окрема увага приділяється призначенню експертизи стороною захисту.

Theoretical and applied nature of the powers of the investigating judge in the criminal proceedings

The article states that authority is a key structural element of criminal procedural competence. At the pre-trial stage, the investigative judge, who is empowered with powers that are specifically defined in the criminal procedure code, is a guarantee of the rights, freedoms and interests of individuals in criminal proceedings. In the general theory of competence distinguish the most typical powers, which include: a) to manage; b) to manage; c) to decide; d) participate; e) to standardize; e) to organize; g) develop; g) specify; h) coordinate; i) to control; and) prohibit. In turn, looking at the issues of authority of the investigating judge through the lens of the dogma of competence theory, gives the opportunity to point out certain features and to isolate some theoretical and applied problems. In accordance with the doctrine of criminal proceedings, powers are perceived as a duty (an inseparable combination of law and obligation) of a governmental entity. At the same time, the totality of such powers provides the possibility for the subject to fulfill his criminal procedural function. Therefore, it is no coincidence that the authority of the court in the scientific literature is defined as “fixed by the rules of criminal procedural law and determined by the subject matter of keeping the circle of rights and duties (responsibilities), established to perform specific procedural actions and to take appropriate procedural decisions in criminal proceedings. In turn, other researchers, adapting this definition to the procedural status of the investigating judge, propose to define his authority as a set of interrelated rights and obligations (responsibilities) established for him to perform procedural actions and to make procedural decisions on judicial execution. control over observance of rights, freedoms and interests of persons in criminal proceedings . Thus, as we can see, the science of criminal proceedings proposes to take the powers of an investigating judge as a means of exercising his function, and the CCP focuses on the fact that the function (judicial control) is one of the possible powers of the investigating judge. There are nine groups of powers for the investigating judge: 1) powers related to the application of criminal prosecution measures; 2) powers related to the consideration and resolution of issues concerning the granting of permission to conduct statutory investigative (investigative) actions, the NSRD and other procedural actions aimed at collecting evidence by the parties; 3) the authority to consider and resolve complaints against the decision, actions or omissions of the investigator and the prosecutor; 4) the power to collect evidence through interrogation and the appointment of expertise; 5) powers related to updating and setting procedural time limits; 6) the authority to consider and resolve allotment issues; 7) the authority to decide at the stage of pre-trial investigation the fate of material evidence; 8) the authority to resolve the issue of the use of information obtained as a result of the NSDF on the features of a criminal offense not investigated in this criminal proceeding in other criminal proceedings; 9) the general duties (powers) of the investigating judge on the protection of human rights enshrined in Art. 206 CPC. The authority of the investigating judge, defined by the scholars as enshrined in the rules of criminal procedural law and determined by the subject matter of keeping the circle of rights and duties (responsibilities), is established for the execution of specific procedural actions and the adoption of appropriate procedural decisions in criminal proceedings.

Российское следствие глазами историка

The article is dedicated to the famous Russian historian and legal expert Doctor of History Dmitriy O. Serov and a brief analysis of his studies concerning the establishment and development of the Russian law enforcement authorities in the first third of the 18th century: courts, prosecutor’s office, fiscal service, investigative authorities. Having started his scientific activities from studies of history of the spiritual life of the Russian society from the 17th to the 18th century, D.O. Serov then moved on to the legal aspects of history of the 18th to the 20th century, history of the personnel of the national government machine focusing on investigative authorities and was recognized in our country and abroad as one of the best experts of the Peter the Great’s epoch, specialist in history of the Russian law enforcement and judicial systems, leading scientist studying history of the Russian investigative authorities. D.O. Serov developed new areas of historical and legal research; identified, researched and introduced into scientific discourse many earlier unknown or briefly mentioned archive files including the Instruction to Major’s Investigative Chancelleries of December 9, 1717. The educational course History of the Russian Investigative Authorities was launched based on his research; a new professional holiday, the Day of an Investigation Officer of the Russian Federation, was introduced by Resolution of the Government of the Russian Federation No. 741 of August 27, 2013 (July 25, the day of establishment of the first M.I. Volkonskiy investigative chancellery); some memorable dates of history of the national pre-trial investigation were introduced (including December 9, the Day of Establishment of Major’s Investigative Chancelleries). D.O. Serov justified that the Russian investigative authorities originated in the form of investigative chancelleries. The basis for acknowledgment of such chancelleries as investigative authorities is their characteristics as an independent permanent government authority, designated to investigate criminal cases on the pre-trial stage, being the only function of this authority. D.O. Serov’s research showed that the reason for a short life of such authorities was not their low efficiency. Quite the opposite, major’s investigative chancelleries were in advance of their time and turned out to be misfitting even for the reformed state mechanism of Russia.

Understanding users’ dynamic behavior in a free trial of IT services: A three-stage model

A free trial of an information technology service (ITS) provides users an opportunity to obtain direct usage experience without purchase commitment, which can significantly reduce their uncertainty about the utility and quality of the ITS and promote their intention of final purchasing. Previous studies of user behavior in a free trial of ITS have mainly focused on either the adoption intention in the pre-trial stage or purchase intention in the post-trial stage. There is a lack of study investigating the trial stage that facilitates the transition and connection between these two separately studied stages. In this study, we view free trial as a motivated learning process and propose a Three-Stage Model (TSM) based on the learning motivation theory and reference-dependent theory to investigate users’ free trial behavior dynamics in moving from motivation to trial, making efforts to gain trial experience, and finally making a further purchase decision after the trial. We collected 377 users’ free trial experience to test our TSM using partial least squares-based structural equation modeling. Our results indicate that the perceived trial benefit and social influence strongly motivate user’s willingness to trial and that the utility experience and flow experience gained through trial effort leads to a willingness to accept and ultimately affect user’s willingness to pay through the mediation effect of expected additional value and price justification. Our study contributes to the theory that explains the dynamics of user decision-making behavior in the context of a free trial of ITS.

Pre-Trial Prevention of Insolvency: Technology, Procedures, Innovations

The purpose of this work is to determine the essence of pre-trial prevention of insolvency of an economic entity, consider the content of this phenomenon, and study its use in order to prevent the existing negative consequences of insolvency proceedings in the economy. The methodological basis of the study comprises the general scientific dialectical method of cognition, which allows considering the institutions of law in the relationship, integrity, and development. Special and specific scientific methods are used: historical and legal, formal and logical, the method of comparative law. In order to achieve this result, the following more specific tasks are proposed: to determine the place of pre-trial prevention of insolvency of an economic entity within the framework of the institution of insolvency; to isolate the structure of the phenomenon of pre-trial prevention of insolvency; to determine the essence of the specific aspects of pre-trial prevention of insolvency; to analyze the features of individual procedures and develop proposals for the legal regulation of their conduct; to develop proposals to improve domestic insolvency law in order to ensure the possibility of preventing the negative consequences of bankruptcies in the pre-trial stages. Based on foreign experience, it is proposed to regulate the activities of domestic entrepreneurs in the field of pre-trial prevention of insolvency of economic entities at the legislative level.

The Adversarial System in Criminal Procedure: Norms and Implementation

The research is devoted to the analysis of the essence and place of the adversarial system in modern criminal procedure regulation. The existing acute debatability regarding the procedural status of the adversarial system in the criminal procedure law of the Russian Federation necessitates the appeal of scholars to this category. The purpose of identifying the true procedural nature of the adversarial system and the boundaries of its implementation is directly related to the determination of the correct place of this procedural category in the modern system of criminal procedure regulation. The analysis of modern scientific views on the procedural status of the adversarial system indicates the presence of diametrical views on the compliance of the adversarial system with the characteristics of an independent industry-wide principle. A controversial opinion about the extension of the principle of adversarial practice to the pre-trial stages of Russian criminal proceedings is noted. According to the authors, the current law enforcement practice confirms the implementation of the "pure" adversarial system only in the judicial stages of the criminal process. Taking into account the provisions of the Constitution of the Russian Federation and the position of the Supreme Court of the Russian Federation, the work provides an argumentation of the authors’ position on the advisability of changing the status and, accordingly, the place of the adversarial system in the structure of the Code of Criminal Procedure of the Russian Federation from the "industry-wide principle" to the "general condition of the trial".

Improving the System of Statistical Accounting of Appeals to the Court at the Initial Stage of Criminal Proceedings in the Digital Era

Based on the results of compilation and analysis of statistical data on consideration of complaints of interested persons by the courts of general jurisdiction, filed pursuant to articles 125 and 125.1 of the code, the author proposes some measures for improving the system of judicial statistics given the active introduction of digital technology in the field of criminal procedural relations. The paper notes the priority role of the court in the implementation of the constitutional right of citizens to access justice and in their protection from illegal actions (inaction) and decisions of bodies and officials carrying out criminal prosecution. To optimize the areas of judicial activities the author suggests broad interpretation of the provisions of part 1 of article 30 of the Criminal Procedural Code of the Russian Federation and the formation of the court composition for consideration of requests submitted with the court at pre-trial stages of the criminal process, with the use of an automated information system. The paper substantiates the necessity of successive integration of the State Automated System of legal statistics with the State Automated System «Pravosudie [Justice]», which will allow users of these systems to track the results of the procedural activities of the preliminary investigation, prosecution and court activities at all stages of criminal proceedings. The author also considers it relevant to reflect in more detail the results of consideration and resolution by the court of citizens’ appeals received at the initial stage of criminal proceedings in the annual analytical reviews prepared by the Judicial Department at the Supreme Court of the Russian Federation based on summary statistical reports of all courts of the Russian Federation.

Psychological Grounds for Judicial Activity

The subject of the research is the personal traits of a judge and psychological peculiarities of judicial process. The authors focus on personal traits of all participants of a judicial process. The stage of trial is the climax of the entire pre-trial procedure. At this stage there is a direct confrontation between parties, available evidences are presented, studied and evaluated, in rare cases new evidences are discovered. This is the stage when a judge has the main role, besides legal functions he also arranges and manages regulation of interaction between all participants. In the course of their research the authors have used the methods of bibliographical analysis, analysis of documents and observation over participants of court procedcure. For efficient performance of his or her functions, a judge must have excellent knowledge of law and a whole number of personal qualities such as strong will, resistence to stress, communicative skills, etc. A judge experiences the influence of certain negative factors that accumulate and may seriously harm his or her personality. Another important role is performed by a prosecutor who also represents the state but is always at the part of accusation. Prosecutor's competence, argumentation and persuasion skills allow to complete efforts made by law enforcement agencies at the pre-trial stage. The accused is another participant worthy of attention. At the stage of trial his or her personality undergoes serious changes that define his or her further behaviour. The judicial decision-making process implies all kinds of available evidences as well as personal traits of all participants of a criminal process. 

Procedural Algorithm for Ensuring the Right a Minor Suspect or Accused to Defense in Pre-Trial Criminal Procedure

In terms of scientific interpretation and law-enforcement practice, Koryakina analyzes criminal procedure legislation that regulates ensuring the right to defense of a suspect or accused who haven't reached their legal age at the time of trial. The main problem here is that the procedure of pre-trial ensurance of the right to defense of a minor suspect or accused do not cover the full range of legal rights and interests as it is set forth by the Criminal Procedure Code of the Russian Federation. Thus, the legal status of a minor is equalized to the status of an individual of legal age. The aim of the research is to discover new theoretical and practical provisions about the process of ensuring the right to defense of a minor suspect or accused at the pre-trial stage of criminal procedure. The research objectives include analysis of doctrinal and regulatory ensuring the right of minors to defense as well as analysis of specific features of such process. In her research Koryakina has also used sociological, formal legal, comparative legal analysis, systems approach and modelling, historical legal and logical legal methods. In her article the author offers new provisions aimed at developing the mechanism of protection of minors' legal rights and interests taking into account not only their age but also their lack of life experience. Thus, the scientific novelty of the research is caused by the fact that the author suggests to renew the procedure of ensuring the right of minors to defense. 

Захист прав потерпілого під час досудового розслідування

Захист прав потерпілого під час досудового розслідування

Сутність й актуальні питання арешту майна в кримінальному провадженні на стадії досудового розслідування

The purpose of the article is to study the essence and actual issues of property seizure in criminal proceedings at the stage of pre-trial investigation. Methodology. The paper uses general scientific and special-scientific methods of cognition, the concrete combination of which is determined by the purpose and objectives of the study. Using the formal-logical method has allowed to define, clarify and supplement the individual concepts of the category and thus to organize the conceptual-categorical apparatus. Methods of formal and logical logic were also used, in particular methods of analysis and synthesis, deduction and induction, analogies and generalizations, and others like that. The scientific novelty of the article is due to the fact that it is a study of the seizure of property in criminal proceedings at the stage of pre-trial investigation at the present stage of state-legal development with the allocation of a number of urgent problems in this area. Conclusions. Today, the seizure of property is one of the most common examples of limiting the property rights of individuals in the criminal process at the pre-trial stage. Further research in this area should be linked to the detailed elaboration of specific legal regulation issues in this area. As an example, this is a matter of ensuring the rights of third parties, the property of which the issue of arrest is being resolved. Problems arise in the case of securities seizure. The seizure of securities requires the creation of an effective mechanism for controlling their circulation. Another interesting issue is the possibility of arresting property that has funds in the form of so-called criminals, whose status as an object of civil-legal relations is not clearly defined today, not to mention the criminal procedural status of this phenomenon, etc. Keywords: property; arrest; criminal proceedings; pre-trial investigation; procedure; criminal process.

Допрос на досудебной стадии как подготовительный этап к допросу в судебном разбирательстве

Допрос на досудебной стадии как подготовительный этап к допросу в судебном разбирательстве

PROTECTION OF THE RIGHTS OF DISABLED PERSONS AS VICTIMS OF CRIME IN CRIMINAL PROCEDURE

The aim of the research is to conduct comparative analysis to the Criminal Procedure Laws of the Republic of Lithuania, of the Republic of Latvia and the Ukraine on the rights of protection of disabled persons who became victims of criminal acts (crimes and misdemeanours). Some group of persons are more attractive target for criminals due to their physical or/and mental weakness. Disability is the one of main factors, that directly has impact on them, when accessing to justice - especially during pre-trial investigation stage of criminal procedure. The authors of the research paper are going to focus on disabled persons’ access to justice particularly during interview. The above mentioned issue points out the main objectives of the research:To describe disabled persons.To analyse international and national laws on protection of the rights of disabled persons as victims of criminal acts in criminal procedure.To identify the issues related to disabled persons’ access to justice, especially in criminal procedures.To propose suggestions, which could improve protection of the rights of disabled persons in criminal procedures.

La inmersión en un proceso durante todo el curso

It is undeniable the effectiveness of practical teaching in Procedural Law, therefore a teaching method is set out in this paper which combines the diverse tools of learning by doing which currently tend to be used as a complement of teaching. The model presents the approach of a group work dynamic to carry out during the completely academic year, where would be analyzed cases studies through role-plays since pre-trial stage of proceedings until final judgment, with the intention to obtain optimal learning results

DECISION OF THE EUROPEAN COURT ON HUMAN RIGHTS AS MANDATORY ELEMENT OF JUDICIAL CONTROLIN CRIMINAL PROCEEDING

The purpose of this article is opening of necessity of application of ECHR practice in the decisions of the investigating judge to increase the value of judicial control over the observance of rights, freedoms and interests of individuals in criminal proceedings. The article includes analysis of the current legislation on the definition of judicial review at the pre-trial investigation stage. Judicial control is revealed through the powers of the investigating judge in criminal proceedings. There were examined opinions of scientists in relation to determinations of judicial control and function of investigation judge on the stage of pre-trial investigation. It is possible to draw conclusion from the analysis of the last scientific researches, that expansion of scopes of judicial control in a criminal production, it is a next step to rethink the value of judicial control in criminal proceedings. Decisions taken by the investigating judge should be based on the principles of legality and rule of law. The conclusion about the need to study the application of ECHR investigating judges to strengthen the role of the court at the stage of pre-trial investigation and reduction of procedural errors that can become new ECHR judgments against Ukraine. Judicial statistics and decision of consequence judges content are analysed with the use of practice of ECHR for 2018 and beginning 2019 years. Out of analysis of judicial statistics a conclusion is made that tendency on application of practice of ECHR in 2019 is slowly, but grows. The necessity of wide use of practice of ECHR courts is examined during realization of judicial control in a criminal proceedings. The estimation is given to expansion of the list of proceedings that must be carried out with the permission of the investigating judge. It is analyzed the shortcomings of the application of the ECHR practice courts and disadvantages such as the decision by the investigating judge ruling, not under criminal procedural rules. The practice of the Grand Chamber of the Supreme Court is analysed. It is given the risks of the work of the investigating judge, who can relate to undue interference in the work of law enforcement. It is noted the decision of the ECHR “Volokhi against Ukraine” dated November 2, 2006. It is concluded that the judicial review of the investigative actions should also include the application of the ECHR practice, and application of ECHR in the activities of the investigating judge at the pre-trial investigation stage is a prerequisite for respect for the rule rights in criminal proceedings and the strategic task for Ukraine. Key words: European Court of Human Rights, court control, criminal proceedings.