Principles Of Criminal Proceedings Research Articles

Computer data examination: the essence and procedural order

The article is devoted to clarifying the essence and procedural order of computer data examination in criminal proceedings. This type of examination, as defined by the Law of Ukraine No. 2137-IX dated 15.03.2022, is a novelty of criminal procedure legislation and requires theoretical elaboration. It is noted that the legislative consolidation of the types of examination should be determined by the need to establish specific procedural requirements for their conduct. It is specified that the direct object of such an examination is the audio-visual representation of computer data, which is defined as information contained in the storage device of an electronic computer in a format suitable for processing, transmission and interpretation by computer computing devices.
 Within the framework of the article, the examination of computer data is distinguished from the examination of computer equipment (by the object criterion) and from the removal of information from electronic information systems (by the (non)secrecy criterion). The author emphasises that the procedural order of the analysed procedural action is regulated by Articles 104, 105, 223, 237 of the CPC of Ukraine, as well as the requirements for collection and verification of evidence (Chapter 4 of the CPC of Ukraine), the principles of criminal proceedings (Chapter 2 of the CPC of Ukraine) and other general provisions of criminal procedural legislation. The subjects of the computer data examination are the investigator, prosecutor, coroner, detective and operative officer (upon written order).
 It is recommended to conduct the investigated procedural action involving a specialist. The computer data examination is defined as a public investigative (detective) action carried out by the prosecution with the use of electronic computing equipment by means of direct perception of audio-visual expression of computer data in order to obtain information about facts relevant to criminal proceedings.

International legal standards for the protection of a defender or a person’s representative from interference in their activities

The article provides a scientific analysis of international legal standards for the protection of a defender or a person’s representative from interference in their activities. It is emphasized that the formation of an effective legal mechanism aimed at achieving compliance of domestic legislation with international standards is important for ensuring the process of bringing national legislation into compliance with the requirements of leading legal democracies. It was emphasized that the practice of the European Court of Human Rights serves as an additional tool for the effective implementation of the function of protecting a person and representing his interests in criminal proceedings. In view of numerous violations of the basic components of the right to professional legal assistance, as well as the rights of defenders and representatives of persons involved in criminal proceedings, it is emphasized to take into account the provisions of the European Convention on Human Rights and the conclusions set forth in the decisions of the European Court of Human Rights regarding related to the activities of a lawyer, a person’s representative in an adversarial criminal process. It was concluded that the international legal norms, which establish general requirements for the implementation of judicial proceedings, are not only a procedural guarantee of ensuring the right to qualified legal assistance at the national level, their implementation in terms of the protection of a defender or representative of a person involved in criminal proceedings from external interference is designed to create conditions for the fulfillment of their functions by the specified entities. The principles of criminal proceedings are highlighted, which reflect the main requirements for the unhindered activity of a defender or a person’s representative in criminal proceedings, such as: legality; Rule of Law; ensuring the right to protection; the right to a fair trial; the right to freedom and personal integrity; equality before the law and the court, etc. Attention is drawn to the fact that any form of obstruction to the legitimate activity of a defense attorney or a representative of a person providing legal assistance in criminal proceedings, as well as violations of statutory guarantees of their activity, defined in international legal acts, must be considered as illegal, criminally punishable acts, defined by Art. 397 of the Criminal Code of Ukraine.

The system of procedural guarantees of the participants’ rights in criminal proceedings during pre-trial investigation

The current criminal procedural legislation of Ukraine contains legal guarantees designed to ensure proper protection, safeguarding and realisation of the rights, freedoms and legitimate interests of participants in criminal proceedings. However, in the legal literature, there is no unified approach to defining the essence and content of the system of procedural guarantees of the rights of participants to criminal proceedings, which negatively affects the functioning of the entire system of criminal procedural guarantees, its efficiency and effectiveness. The stability and effectiveness of the studied system of guarantees is an indicator of the level of development of many areas of public life and the legal status of an individual in the State. In this context, the issue of guaranteeing the rights, freedoms and legitimate interests of participants to criminal proceedings during the pre-trial investigation is controversial for both legislators and scholars, and is important for every citizen of Ukraine, since pre-trial investigation and criminal procedural activities in general are associated with interference with a person's private life and restriction of his or her rights, freedoms and legitimate interests in cases provided for by law.
 An analysis of the essence of the system of procedural guarantees of the participants’ rights in criminal proceedings during pre-trial investigation has been made, and its structure and main constituent elements have been characterized. It has been proved that the system of the studied guarantees forms a set of conditions and means which are inextricably linked and interact.
 Based on the results of the study of scientific discussions and positions of procedural scholars, the author establishes that the system of procedural guarantees of rights, freedoms and legitimate interests of participants to criminal proceedings should be considered as a set of interrelated and interacting regulatory and organisational guarantees contained in the provisions of substantive and procedural law and regulatory legal acts.
 Based on the results of the study, it has been proposed to define the elements of the system of procedural guarantees of rights, freedoms and legitimate interests of participants to criminal proceedings during pre-trial investigation, namely: criminal procedural form, principles of criminal proceedings, procedural status of a person, measures to ensure criminal proceedings, measures to restore violated rights of a person, control and supervision of authorised bodies, legal sanctions.

SOME ASPECTS OF THE PREPARATION OF AN INVESTIGATION OF VIOLATIONS OF THE LAWS AND CUSTOMS OF WAR

The article is devoted to the analysis of the material, as a result of which the need for the development of an educational and typical method of investigating the violation of the laws and customs of war (a crime stipulated in Article 438 of the Criminal Code of Ukraine) has been announced. On the basis of views generally known to the scientific community, it was established that, from a scientific point of view, the most important purpose of the methodology proposed for the development of the investigation of violations of the laws and customs of war should be the presentation of theoretical provisions and developed on their basis typical recommendations regarding providing the implementers of the pre-trial investigation of the specified crime with an appropriate system of procedural and extra-procedural (actually a forensically legalized) actions and measures of their optimal and effective activity to achieve the goal and tasks of criminal proceedings determined by it. It is specified that the methodology updated in the process of development should cover the following main sections: 1) forensic characteristics of the crime provided for in Art. 438 of the Criminal Code; 2) typical investigative situations at the stage of identifying signs of violations of the laws and customs of war and the stages of its investigation; 3) forensic issues of initiation of criminal proceedings; 4) preparation (organization and planning) of the investigation; investigative versions, circumstances to be established by pre-trial investigation; 5) algorithm of investigative (search) public and private actions (other procedural and nonprocedural actions and measures); 6) peculiarities of the execution of the actions and measures provided for by this algorithm, as well as their complexes (tactical operations); 7) ensuring coordination of the activities of law enforcement agencies in the investigation and interaction with variously functioning state and non-state bodies, organizations, other subjects involved in this process; 8) forensic prevention measures. Considerations regarding the general aspects of the organization of the investigation of violations of the laws and customs of war are outlined, with an emphasis on «operational and organizational issues». The essence of a) possible models of organization of the investigation of a violation of the laws and customs of war; b) principles of information and analytical work relevant to the investigation; c) unfavourable factors for the investigation in the conditions of war, related, first of all, to his qualification and adequate understanding of certain principles of criminal proceedings is partially revealed. Attention was drawn to high-profile cases of misunderstanding the purpose and tasks of the specified category of criminal proceedings, which led to reasonable doubts about the proper observance of the guarantees of the right to a fair trial.

Some issues of tactical and forensic support for concluding a plea agreement

In the article, the author examines some problematic issues of tactical and forensic support of one of the compromise procedures provided for in the current Criminal Procedure Code of Ukraine - the plea agreement.
 The essence of tactical and forensic support for concluding a plea agreement is considered, as a set of certain procedural actions, formal procedures and related tactical techniques of the prosecutor, as the procedural head of the pre-trial investigation and the public prosecutor, based on the recommendations of criminology and the position of the prosecution in the case, which ensure at the pre-trial investigation and during the trial, the creation of certain conditions for the parties to enter into a plea agreement on mutually beneficial terms for the parties, with the aim of resolving the conflict for the sake of procedural economy. Such support may take the form of tactical operations ("achieving a compromise with the suspect", "checking the testimony of the suspect who admits his guilt", "ensuring the safety of the suspect (accused)"), which are carried out taking into account certain investigative, defense or judicial situations, using compromising tactics. Tactical methods in this context are considered as rational and most effective methods of action, which are chosen by the prosecution in specific situations in order to create conditions for overcoming the conflict on the basis of mutually beneficial concessions that do not contradict the norms of substantive and procedural law (in particular, the principles of criminal proceedings, which are legality and dispositiveness), and ensure the proper implementation of procedural functions by the parties, the achievement of the objectives of criminal justice, and aimed at both overcoming opposition to the investigation and proving to the defense the need to discuss the prospects and conditions of concluding the relevant agreement.
 An analysis of the stages of the prosecution's actions from the initiation to the conclusion of the plea agreement was carried out. A certain range of tactical techniques during communications with the victim, who gives consent to conclude an agreement in the cases provided for in clause 3, part 4 of the article, is defined. 469 of the CPC.

Examination of evidence at the initiative of the court of appeal in criminal proceedings

Today, the combined chamber of the Criminal Court of Cassation as part of the Supreme Court is trying to solve the problem of the appellate court’s initiative in the examination of evidence, since the approaches of individual court chambers, namely the First and Third ones, differ. The purpose of this study was to identify those cases when the appellate authority is entitled to investigate the evidence proactively, without encroaching on the components of the principle prescribed in Article 22 of the Criminal Procedural Code of Ukraine. The formal-logical method helped generalize that the content and form of such a review must comply with the principles of criminal proceedings, including equality before the law and the court, as well as competition between the parties (it has been proven that their absence may indicate a violation of both constitutional and convention rights), freedom in presenting their evidence to the court and in proving their persuasiveness before the court. The results of the deductive method helped formulate the following theses: the legislator, understanding the equality of procedural rights not as their uniformity, normalizes it in the Criminal Procedural Code as equality in terms of the possibilities of exercising the granted rights; the legislator also determines such equality of rights from the functions that a certain participant in criminal proceedings is endowed with. The combination of prosecution, defence, and justice in one guise contradicts the adversarial nature of the judicial procedure. The study revealed that the passivity of the parties forces the court to choose its activity within the limits of the function of justice defined for it, and its initiative is aimed at examining the evidence to make a legal, well-founded, and fair decision. It is proved that these features of judicial proceedings are a priori inherent in the appeal review, along with its inherent features, including the determination of the amount of evidence to be examined, as well as compliance with the limits of judicial review, which are normalized by Article 404 of the Criminal Procedural Code of Ukraine. It was found that the initiative of the court of appeal to examine evidence and their further investigation in this court is permissible in situations where such evidence became known after the adoption of the appealed court decision. Compliance with this rule will protect the court from possible violations of the requirements of Article 22 of the Criminal Procedural Code of Ukraine, and scientific developments in this area are designed, among other things, to pave the way for the unity of judicial practice through doctrinal recommendations.

Features of simplified proceedings regarding criminal offenses in the court of first instance

Summary court proceedings regarding criminal misdemeanors are a differentiated type of court proceedings in the court of first instance. Three forms of simplification of court proceedings regarding criminal misdemeanors are singled out, in particular: 1) with accelerated holding a trial in a court session; 2) without holding a trial in a court session; 3) with holding a trial without examining the evidence regarding those circumstances that are not contested by anyone. The list of documents, the presence of which is a prerequisite for the consideration of the indictment by the court in the order of summary court proceedings, has been determined. The author states that a summary court proceeding without a trial in a court session limits the right to a fair trial, provided for by the Convention on the Protection of Human Rights and Fundamental Freedoms. It has been established, that the features of summary court proceedings regarding criminal offenses are: 1) procedural speed; 2) simplification of the procedural form; 3) greater efficiency compared to the "usual" form of court proceedings; 4) changed structure of the proof process; 5) modification (restriction) of certain principles of criminal proceedings. The definition of summary court proceedings for criminal misdemeanors is proposed. The grounds for conducting court proceedings in a simplified manner have been determined, in particular: 1) legal material ground (qualification of the accused's act as a criminal misdemeanor); 2) procedural grounds: a) the presence of the accused's consent to this procedure for consideration of the indictment; b) undisputed recognition by the accused of his/her guilt in committing the incriminated misdemeanor; c) recognition (non-dispute) by the accused of the circumstances of the proceedings, established during the investigation; d) the presence of the prosecutor's initiative (petition) to consider the indictment in a simplified manner

VALUE AND AMOUNT OF THE RETURN OF THE APPROVAL ACT AND CLOSURE ON THE APPLICATION OF APPLICABLE MEASURES OF MEDICAL OR EXCITING CHARACTER OF THE PROSECUTOR

Purpose. The purpose is to investigate the essence of the return of the indictment and the request for the use of compulsory measures of medical or educational nature of the prosecutor and the identification of its significance in criminal proceedings. Methods. The methods used are analysis, synthesis, comparison, analytical and statistical. Results. It is established that the importance of the institute for the return of the indictment, the institute for the return of the request for the use of compulsory measures of a medical nature and the institution for the return of the petition for the use of compulsory measures of educational nature of the prosecutor, if they do not meet the requirements of the CPC of Ukraine in the system of current norms of the CPC of Ukraine and generally accepted principles and norms of international law, should be considered as important elements of the mechanism for ensuring a human right to a fair trial. The main aspects that determine their essence, such as ensuring by means of a return of the indictment by the court, a request for the use of compulsory measures of a medical nature and a petition for the use of compulsory measures of educational nature of the prosecutor on the constitutional rights of the accused and the victim for judicial protection and access to justice, as well as realization of other principles of criminal proceedings. It is stated that after analysing the legislative regulation of existing institutes of returning to court proceedings in the first instance, their limited regulatory consolidation, which could lead to abuses of pre-trial investigation, delaying consideration, violation of the rights and interests of participants in criminal proceedings. Conclusions. It is recommended to formalize (to standardize) the reasons for the return of the indictment, the request for the use of compulsory measures of a medical or educational nature of the prosecutor, to establish clearly defined deadlines for eliminating the identified deficiencies, and to legislatively establish the duty of the prosecutor to immediately send the indictment, a request for the use of compulsory medical or educational measures character to the court after eliminating the identified shortcomings.

Standard of proof in criminal proceedings: “variable” or “stepwise” ?

The article is devoted to the analysis of the issue of division of standards of proof in criminal proceedings, in particular one of the types - variable standard of proof, which is distinguished by scholars of the Anglo-Saxon legal system. The article analyzes the question of the possibility of dividing the standards of proof depending on the severity of the criminal offense.
 The motives and scientific arguments in favor of distinguishing a variable standard of proof in criminal proceedings are studied. Positively assessing the attempt of the appropriate scientific division of standards of proof in criminal proceedings, the authors argue that it is still impossible to agree with him to the end. In particular, according to the authors, the introduction of a variable standard of proof in criminal proceedings will not contribute to the unity of judicial practice in the process of making procedural decisions during criminal proceedings.
 In addition, the article argues that decisions in criminal proceedings are made on the basis of internal conviction, which determines and assigns the type and measure of punishment, and not vice versa. Therefore, it is at least surprising the position of some scholars that the sanction of a sentence that can be imposed on an accused must determine the necessary level of “persuasion” (“evidence”) for his appointment. It is argued that in some cases, the establishment of a variable standard of proof in criminal proceedings will lead to a violation of the principles of criminal proceedings, in particular equality before the law and the courts.
 The article presents the position of the authors on the doubtfulness of establishing the degree of proof of the circumstances of criminal proceedings depending on the severity of the criminal offense, as in criminal proceedings there is a single procedure and the same set of procedural rights.

Criminal procedural guarantees of the rights of persons in proceedings with mutual legal assistance and in the order of adoption

The article is devoted to the issues related to the implementation of criminal procedural guarantees in the provision / receipt of international legal assistance and adoption proceedings. Emphasis is placed on the fact that in the scientific doctrine there is no established definition of criminal procedural guarantees in the provision / receipt of international legal assistance and in the implementation of proceedings by the way of adoption. It is proposed to understand them as a set of legally established methods and means (general and special), which ensure the effective implementation of the tasks of criminal proceedings, as well as prevent violations of procedural rights of persons involved, as well as their fundamental rights, freedoms and legitimate interests. The position of scholars on the separation of the following constituent elements in the system of criminal procedural guarantees is supported: criminal procedural form; general principles of criminal proceedings; procedural status of a person; criminal procedural mechanism for exercising the rights of the subjects of the criminal proceedings related to the provision / receipt of international legal assistance and the transfer of proceedings from the competent authorities of a foreign state. The disclosure of the content of criminal procedural guarantees, which are implemented in the studied procedural forms of international cooperation in criminal proceedings is through the prism of these interconnected and interdependent elements

Investigation of the Purpose, Goals and Objectives of the Criminal Procedure by means of Systemic Approach

The purpose of the paper is to conduct a systemic study of the internal structure and functions of criminal procedural activity based on patterns of formation of tree-like hierarchical structures, to determine the goals and objectives of criminal proceedings at different levels of the system hierarchy. Within the framework of the study, the criminal procedure is considered as a system with complex inter-element relationships and its own mutual influence on its structural elements. Based on the distinction between the categories "purpose", "goal", "result", the author concludes that the purpose of the criminal process is to resolve the materials on the merits in the production of the preliminary investigation bodies and the court in accordance with the requirements of criminal procedural law providing for criminal law application. The study establishes the possibility of achieving the goal of the criminal procedure at any stage in the case of the simultaneous fulfillment of two conditions: the identification of objective criminal procedural grounds for the completion of the criminal process using the criminal law and ensuring the implementation of the principles of criminal proceedings. Through the goals and principles of criminal procedural activity, the author defines the objectives and main functions of criminal proceedings, identifies the general goal and objectives of the bodies of inquiry, preliminary investigation and the court. The author concludes that the establishment of objective criminal procedural grounds for the resolution of materials in production with the application of criminal law is ensured because of preliminary verification of the materials, preliminary investigation or the implementation of the functions of the judiciary by solving the tasks facing the bodies of inquiry, investigation and court. The paper establishes the real purpose and goals of criminal prosecution, defense, judicial and departmental control, prosecutorial and judicial supervision.

GUARANTEES OF PROVIDING NON-INTERFERENCE IN PERSONAL AND FAMILY LIFE DURING APPEAL AND CASSATION PROCEEDINGS

The article is devoted to issues related to the filing of appeals and cassation complaints, as well as additional materials attached to them in the preparation of judicial consideration at the stages of appeal and cassation proceedings. The peculiarity of using these materials is that they may contain confidential information related to the circumstances of personal and family life, which is not subject to disclosure. There are currently no warnings regarding their use in the legislation, in connection with which amendments and additions to the Criminal Procedure Code of Ukraine, aimed at legislative regulation of this issue, have been proposed and justified. The mechanism of ensuring the rights and freedoms of the individual in the aspect of implementing the norms of international legal documents in the field of criminal proceedings and the practice of the European Court of Human Rights has been analyzed. On examples from the judicial practise of considering materials of criminal proceedings, the specifics of ensuring non-interference in personal and family life in the courts of appeal and cassation are shown. Attention is drawn to the peculiarities of the functioning of these courts, their role in identifying injustices and making legal and well-founded court decisions aimed at ensuring non-interference in the personal and private life of citizens as a principle of criminal proceedings. Keywords: criminal proceedings, court proceedings, appeal proceedings, cassation proceedings, principles of criminal proceedings, personal and family life, procedural guarantees.

ВІДЕОКОНФЕРЕНЦІЯ ЯК ПРОЦЕСУАЛЬНА ФОРМА ВИКОРИСТАННЯ ІНФОРМАЦІЙНИХ ТЕХНОЛОГІЙ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ УКРАЇНИ

The article deals with specific controversial issues concerning features of using videoconferencing in criminal proceedings in general as well as at its specific stages; also own conclusions and propositions are justified which are aimed at further development of criminal procedural legislation of Ukraine with the regard to the questions raised. The essence, meaning, advantages, current state, and perspectives of using videoconferencing in criminal proceedings of Ukraine and the area of international cooperation among the states in criminal justice are examined. The state of legal regulation of using videoconferencing in criminal proceedings is analyzed. Code of Criminal Procedure of Ukraine provides for using videoconferencing both in criminal proceedings of Ukraine and criminal proceedings with a foreign element. Based on the analysis of grounds and procedure of video-conferencing features of its usage both in criminal proceedings of Ukraine and in the area of international cooperation among the states in criminal justice are identified. Videoconferencing can be used based on the decision of an investigator, prosecutor, investigative judge, or court in each case taking into account circumstances of criminal proceedings and subject to grounds provided for by the Code of Criminal Procedure of Ukraine. Before the start of investigative (search) action or court session using video-conferencing one shall ensure that nothing prevents a person from giving testimony, making motions, providing evidence, etc. This fact is essential for the admissibility of evidence used in criminal proceedings obtained using videoconferencing. Conducting requested procedural actions by video-conferencing ensure that an accused person, a victim, and other participants have an opportunity to express themselves on the raised issues, make arguments aimed to rebut the conclusions of the opposing party, provide evidence and make motions during pre-trial investigation or trial. Specificities of conducting a questioning using videoconferencing in the area of international cooperation as well as advantages of obtaining testimony from individuals put into custody or serving a sentence in a foreign state using videoconferencing compared to traditional means are formulated. The issue of interrelation between videoconferencing and principles of criminal proceedings is examined and it is showed that using videoconferencing is fully consistent with principles of criminal proceedings. Videoconferencing is one of the procedural forms of using information technologies in criminal proceedings and is used to conduct an action, participants of which are geographically separated one from another and thus communication among them are conducted using the communication technologies that support real-time image and voice transmission.

ON THE POSSIBILITY OF RECALLING AN APPEAL OR CASSATION COMPLAINT OF THE DEFENDER TO THE ACCUSED, CONVICTED

The problems of litigation stages become ever more pressing for their participants, as amendments to the criminal procedural legislation in effect are very frequent. The developing a legal position on one or the other law-related situation, to say nothing about exclusive legal issues, is not something that can be done in a day, and the situation where the judges do not have the same position on an issue is especially upsetting. The legal issue of ability (inability) by the accused, by the convicted to withdraw the appeal or cassation appeal of the defense lawyer is one of those. The fact is obvious and undeniable that in the court practice, this issue was already being resolved multiple time, yet no clear single legal position was developed for the problem. Thus, the panel of judges of the Second Judicial Chamber of the Court in its decision as of 10.05.2018 in case No. 462/4125/16к (proceedings No. 51-357км17) concluded that, by virtue of the requirements of Part 1 of Art. 403, Art. 432 of the Criminal Procedure Code of Ukraine, the petition of the convicted person to refuse the cassation appeal of the defense lawyer cannot be considered in the court of cassation, since another person applied, and not the person who filed the complaint. At the same time, the decision of 03.07.2018 of the panel of judges of the First Court Chamber of the Cassation Criminal Court of the Supreme Court (case No. 448/208/15к, proceedings No. 51-3132км18) contains the opposite conclusion. In particular, that the suspect, the accused or the convicted person has the right to carry out procedural actions and refuse a complaint filed in his interests, unless the participation of a defense lawyer is mandatory or the person is in such a vulnerable position that calls into question the voluntariness of such actions. Similar legal positions have been expressed in other judgments of the Court. Due to the disagreement of the panel of judges of the Second Judicial Chamber with such conclusions, on September 17, 2020, the decisions of this situation were submitted to the Joint Chamber for consideration, and a corresponding appeal was sent to the members of the Scientific Advisory Council. My own considerations, as a member of the Scientific Advisory Council at the Supreme Court, were set out in the scientific opinion of 25.12.2020, so I will try to share them also with the scientific community and a wide range of practicing lawyers. Based on the results of the scientific and practical search, it was proved that the current statement of Part 1 of Art. 403 of the Code of Criminal Procedure of Ukraine requires immediate alignment with the procedural rights of a suspect, accused, convicted person, acquitted person. As well as a defense attorney and with the requirements of such principles of criminal proceedings as discretion, ensuring the suspect, the accused have the right to defense, the adversarial nature of the parties and the freedom to present their evidence and in proving their credibility before the court. The criminal procedural law cannot and should not provide for the obligatory refusal of a cassation appeal by a defense attorney, presented in the interests of an accused, a convicted person, exclusively by the same person - a defense attorney. The participation of a defense attorney in criminal proceedings does not limit the procedural rights of both the suspect, the accused, and the convicted, acquitted. The accused, the convicted person has the right to withdraw the appeal or cassation complaint of the defense lawyer. Restriction of the right to withdraw an appeal or cassation complaint of a defense attorney by an accused or a convicted person may take place in two cases. In particular, if there are grounds for the mandatory participation of a defense attorney in criminal proceedings. And/or if the defense attorney proves that he/she has a justified conviction about the fact of self-incrimination by the accused or convicted , which gives him grounds to take a position that will be different from the will of the accused, convicted, including when appealing court decisions in the appeal and cassation procedure.

ПОЛНОМОЧИЯ ПРЕДСЕДАТЕЛЬСТВУЮЩЕГО В СУДЕ С УЧАСТИЕМ ПРИСЯЖНЫХ ЗАСЕДАТЕЛЕЙ В КОНТЕКСТЕ СОСТЯЗАТЕЛЬНЫХ НАЧАЛ РОССИЙСКОГО УГОЛОВНОГО СУДОПРОИЗВОДСТВА

The main objective is to examine the powers of the presiding judge in jury trials in the context of adversarial principles of criminal proceedings. Particular attention will be paid by the authors to different approaches to the notion of adversariality and the definition of the role of a professional judge in such courts, as well as the degree of his activity during the judicial investigation. The main methods used by the authors were dialectical and systematic method, analysis, synthesis, as well as special legal methods of knowledge. The outcome of the research will be a definition of the role of the presiding judge in a jury trial. Forms of criminal procedure that allow the individual to directly participate in the deci-sion-making process of the judiciary are responsible for ensuring citizen participation in the administration of justice in the state. Two such forms have been developed in the world practice so far: the classical jury trial model and the Scheffen model. Each of them provides certain (broad or narrow) powers of a professional judge, the scope of which determines the degree of independence of citizens and the ultimate prospects for the development of a system of popular democratic justice in an adversarial system of criminal proceedings. In today's Russia, the classical jury trial model, modeled after the English jury trial, does not provide for broad powers of the court. In addition, there is the adversarial principle in Russia, which is fostered by the existence of jury trials. However, strict adherence to its provisions may lead to a misunderstanding of the role of the presiding judge in such a court. The activity of a professional judge should be balanced in accordance with the needs of the criminal case under consideration. Thus, requesting additional evidence in the course of the trial in order to verify existing evidence should not be considered a violation of the adversarial principle. Thus, the development of the optimal model for jury trial functioning as well as the determination of the presiding judge's role in the context of adversarial principles of criminal proceedings is a socially-systemic task. It requires a comprehensive dogmatic, comparative-legal and political-legal approach in order to develop the jury trial model which is more con-sistent with the legal system of the state.

Differentiation of a Criminal Procedural form as a Condition of Development of Modern Legislation

The purpose of the article is to study the current state of differentiation of a criminal procedural form as one of the conditions of legislation development. To this end, the tasks are as follows: 1) to analyze scientific periodicals devoted to the problem of definition of the concept of "procedural form" and "differentiation of procedural form"; 2) to distinguish the differentiated forms of pre-trial investigation and judicial proceedings on the basis of a systematic examination of the current criminal procedural legislation. While writing the article, a set of general scientific and special methods of scientific knowledge was used, namely: historical-legal, dialectical, formal-legal and system-structural method. The interrelated application of these methods led to the science-based conclusions and suggestions. The article presents scientific points of view regarding the interpretation of the concept of "criminal procedural form" and "differentiation of procedural form", which made it possible to state the lack of unity of their understanding. Legal understanding of the essence of criminal procedural form is not only theoretical, but also applied, because: first, it is the key to achieve the tasks of criminal proceedings; secondly, it guarantees the implementation of the principles of criminal proceedings and respect for the rights of the participants in the proceedings; third, its violation leads to the inadmissibility of evidence. In the context of the development of criminal procedural legislation differentiated forms of pre-trial investigation and judicial proceedings are of great importance. The latter also provide an additional guarantee for a particular category of persons (e.g. juveniles, persons who have committed a socially dangerous act in the state of insanity, etc.). Based on an analysis of the CPC of Ukraine, particular and special differentiated forms of pre-trial investigation and court proceedings are distinguished.

Legal Principles for the Use of Special Knowledge while Investigating Murders

Based on the analysis of the Constitution of Ukraine and the Criminal Procedural Code of Ukraine, the author has established the relationship between the general principles of criminal proceedings and some provisions of the Basic Law of Ukraine.
 According to the results of the analysis of the provisions of criminal procedural legislation and regulatory acts regulating the activities of experts in case of their involvement in criminal proceedings, it has been determined that the Criminal Procedural Code of Ukraine does not contain an exhaustive list of principles of applying special knowledge of experts, however some of them are defined as the principles of forensic activities in the Law of Ukraine “On Forensic Examination”. For the first time, the author has determined the very general principles of criminal proceedings define the activity of experts in criminal proceedings.
 The author has singled out two components in the studied category: legal and organizational ones. The author has determined what should be understood as the legal principles for the use of special knowledge of experts while investigating murders, as well as their list. It has been established that the concept of organizational principles includes procedural features of involving experts.
 The author has provided a brief description of the principles of forensic activity, defined in the Law of Ukraine “On Forensic Examination”. The author has suggested provisions that should supplement this Law. Besides, the author has provided examples on how the implementation of the principles established by the legislator is ensured.
 It has been established that the purpose of involving an expert in criminal proceedings is to clarify the circumstances relevant to criminal proceedings, for the solution of which special knowledge is required. The author has substantiated the provisions, according to which the involvement of an expert in criminal proceedings requires the existence of two grounds: legal and factual, the content of which is revealed in the provisions of the article.
 The formulated conclusions are theoretical categories that determine the direction and content of the activities of experts and law enforcement officers in case of the application of special knowledge in criminal proceedings, in particular during the investigation of murders. The practical significance of the obtained results is to ensure a prompt, complete and impartial investigation and is one of the guarantees of the tasks of criminal proceedings.

Uzasadnione odstępstwa od zasady skargowości w kodeksie postępowania karnego?

Principle of accusatorial procedure states that criminal proceedings should be conducted only upon the request of a party and thus, the court cannot take the initiative. By the Act of 11 March 2016 the court’s right to demand supplementing preparatory proceeding during preliminary verification of indictment has been brought back to the criminal procedure. The possibility of adjourning or deferring the trial in order to demand additional evidence also has been restored. The aim of this study is to consider how these court powers affect the principle of accusatorial procedure and to answer the question whether departure from this principle is justified, for example, by the need to fulfill other principles of criminal proceedings.

ЗНАЧЕННЯ ТА СУТЬ ПОВЕРНЕННЯ ОБВИНУВАЛЬНОГО АКТА ТА КЛОПОТАННЯ ПРО ЗАСТОСУВАННЯ ПРИМУСОВИХ ЗАХОДІВ МЕДИЧНОГО АБО ВИХОВНОГО ХАРАКТЕРУ ПРОКУРОРУ

Purpose. The purpose is to investigate the essence of the return of the indictment and the request for the use of compulsory measures of medical or educational nature of the prosecutor and the identification of its significance in criminal proceedings. Methods. The methods used are analysis, synthesis, comparison, analytical and statistical. Results. It is established that the importance of the institute for the return of the indictment, the institute for the return of the request for the use of compulsory measures of a medical nature and the institution for the return of the petition for the use of compulsory measures of educational nature of the prosecutor, if they do not meet the requirements of the CPC of Ukraine in the system of current norms of the CPC of Ukraine and generally accepted principles and norms of international law, should be considered as important elements of the mechanism for ensuring a human right to a fair trial. The main aspects that determine their essence, such as ensuring by means of a return of the indictment by the court, a request for the use of compulsory measures of a medical nature and a petition for the use of compulsory measures of educational nature of the prosecutor on the constitutional rights of the accused and the victim for judicial protection and access to justice, as well as realization of other principles of criminal proceedings. It is stated that after analysing the legislative regulation of existing institutes of returning to court proceedings in the first instance, their limited regulatory consolidation, which could lead to abuses of pre-trial investigation, delaying consideration, violation of the rights and interests of participants in criminal proceedings. Conclusions. It is recommended to formalize (to standardize) the reasons for the return of the indictment, the request for the use of compulsory measures of a medical or educational nature of the prosecutor, to establish clearly defined deadlines for eliminating the identified deficiencies, and to legislatively establish the duty of the prosecutor to immediately send the indictment, a request for the use of compulsory medical or educational measures character to the court after eliminating the identified shortcomings.

Editorial: O impacto das novas tecnologias sobre a justiça penal – um horizonte denso de incógnitas

A sociedade contemporânea é dominada pelas novas tecnologias, marcadas por uma rapidíssima evolução e por uma capacidade expansiva inerente, em todos os âmbitos da vida individual e coletiva. Até mesmo no âmbito do processo penal o uso de instrumentos tecnológicos avançados modifica significativamente a fisionomia do sistema, com um impacto evidente em relação às práticas, direitos, garantias, institutos-chave. Este editorial apresenta um panorama dos tópicos da justiça criminal em que esse fenômeno é mais evidente e acarreta suas principais implicações, na perspectiva da tutela dos princípios essenciais do sistema processual e dos direitos fundamentais do individuo.