Procedural Duties Research Articles

The national doctrine of good faith in civil proceedings: a review of the main scientific works

The article examines the scientific works of national scholars on civil procedure and the practice of justice in civil cases with a view to understanding the evolutionary path of formation and development of national legal thought and legislation on such a legal phenomenon as the principle of good faith. The author analyzes the issues of good faith and misconduct in procedure, abuse of procedural rights, civil procedural liability and procedural coercion, and procedural duties as related legal categories of our study. This topic is insufficiently developed, as domestic proceduralists mainly focus their efforts on the problem of abuse of procedural rights in civil proceedings, with fragmentary attention to the issue of procedural good faith. The article examines the main works of modern Ukrainian researchers who have studied the issues of the principle of good faith in its various manifestations, which, in our opinion, are conceptually complete and serve the purposes of studying the chosen subject matter. The author summarizes that a number of researchers consider good faith through the interaction of the court and the parties in civil proceedings, characterize it as a comprehensive, evaluative legal category which distinguishes between lawful procedural behavior and abuse of procedural rights, and draw attention to the need for a legislative definition of the definition and criteria for abuse of law. The author examines related legal categories which allow identifying possible forms of abuse of procedural rights, classifies them and assesses the legal consequences of their exercise. The author proposes measures to encourage participants to the court proceedings to behave in good faith during the consideration and resolution of a civil case. The author determines that good faith in civil proceedings is of integrative importance and may include similar legal categories: prohibition of abuse of procedural rights; requirement of good faith fulfillment of procedural obligations; procedural estoppel or prohibition of other unlawful obstacles to the administration of justice.

Civil procedural obligations of parties in legal proceedings

Civil procedural duties are elements of the civil procedural status of persons participating in legal proceedings. The nature of civil procedural obligations of the parties is determined by the nature of civil procedural relations. The civil procedural duty of the party is a measure of the necessary behavior of the participants in the civil process, which is designed to ensure the implementation of certain procedural actions or refrain from their implementation for the protection of rights and legal interests and to guarantee a fair, impartial, timely consideration and resolution of a civil case. The signs of civil procedural obligations of the parties include: 1) is an element of the procedural status of a person; 2) normatively defined in the provisions of civil procedural legislation; 3) aimed at protecting rights and legitimate interests; 3) are individual (applies to the parties or the plaintiff or defendant separately) or general (applies to all participants in the case); 4) aimed at ensuring effective civil justice. The civil procedural obligations of the parties in a lawsuit can be grouped according to several criteria. First, these are general duties that belong to all participants in the case. For the participants in the case, the civil procedural legislation establishes uniform limits of procedural rights and obligations. Special civil procedural duties are duties that are inherent only to the parties or individually to the plaintiff or defendant. An important place in the formation of the content of the procedural obligations of the parties belongs to the general principles of civil proceedings. Understanding this connection allows for a deeper understanding of the meaning of each duty and ensures the effectiveness of civil proceedings. The consequences of non-fulfillment of civil procedural obligations by the parties are defined in the civil procedural legislation. These are: application of measures of procedural coercion; bringing to legal liability; consideration of the case in the absence of the relevant party to the case; leaving a complaint, application, request without consideration or their return.

Application of measures of procedural coercion in the economic process: certain aspects

The article is devoted to the study of certain aspects of the application of measures of procedural coercion in the economic process. In particular, the study of the effectiveness of the application of certain measures of procedural coercion in the economic process. This topic was chosen for research in view of the illegal behavior of participants in the economic process, which, according to the analysis of court practice, has recently become a mass phenomenon and has diversified into various types. The state of war in Ukraine also affected both the process of consideration of economic disputes and the behavior of the participants in the economic process, in particular of a negative nature, such as failure to appear at a court session without a valid reason, which prolongs the time frame for consideration of the case. For this purpose, it was established that in accordance with Part 3 of Article 42 of the Economic Procedural Code of Ukraine (hereinafter referred to as the Code of Economic Procedure of Ukraine), in the event that a party to the case fails to fulfill its obligations, the court shall apply procedural coercion measures to such a party to the case provided for by the Code of Criminal Procedure [1]. Pursuant to part 1 of Article 132 of the Criminal Procedure Code, measures of procedural coercion are: 1) warning; 2) removal from the courtroom; 3) temporary seizure of evidence for investigation by the court; 4) fine. At the same time, the application of procedural coercion measures to a person does not exempt him from fulfilling his duties. It was determined that in accordance with Part 2 of Article 131 of the Criminal Procedure Code, procedural coercion measures are applied by the court by issuing a resolution. At the same time, paragraph 16 of part 1 of article 255 of the Criminal Procedure Code establishes that decisions of the court of first instance on the collection of a fine in the procedure of procedural coercion may be challenged in the appeal procedure [1]. Also, the court itself can cancel the decision on the collection of a fine issued by it in accordance with the sixth part of Article 135 of the Criminal Procedure Code, if the person in respect of whom it was issued corrected the committed violation and (or) provided evidence of the validity of the reasons for not fulfilling the relevant requirements of the court or his procedural duties. Based on the results of the analysis of the norms of economic procedural legislation and court practice, the need to make changes to the norms defining the procedure for applying measures of procedural coercion in the economic process is substantiated.

Refusal to open a lawsuit in a civil process

The article examines the refusal to open a lawsuit as a procedural duty of the court in civil proceedings. It is claimed that during the exercise of the right to file a lawsuit, a number of civil procedural duties appear before the court, which it must implement depending on what grounds will be established at the stage of opening the lawsuit. One of these duties is the duty of the court to refuse to open proceedings on the case, if grounds for this are established by the court. The view of the refusal to open proceedings on the case as a possibility of the court is denied, since «possibility» indicates a right, but the procedural right of the plaintiff cannot be opposed by the right of the court, because it does not correspond to the generally accepted idea of the corresponding relationship of rights and obligations. Fulfillment of an obligation is a condition for the realization of a certain right. Having exercised the right to file a lawsuit, the plaintiff presented the court with the need to fulfill a certain civil procedural duty, depending on what grounds he establishes. The reasons for refusing to open a lawsuit are analyzed and their exceptional nature is noted. The explanation of the mentioned grounds is carried out not only using the provisions of the doctrine of civil procedure, but also the modern practice of applying the norms of civil procedural legislation, including the legal positions of the Supreme Court. A classification of grounds for refusal to open a lawsuit is carried out in the context of their comparison with the prerequisites of the right to sue in the procedural sense (the right to file a lawsuit). It is noted that the prerequisites of the right to a lawsuit do not presuppose the emergence of civil procedural relations at the stage of opening a lawsuit. They point to the existence of the right to a lawsuit in statics, where the will of the person to initiate the opening of legal proceedings has not yet manifested itself.

Addressing Contradictions in Evidence: the Duty of the Court

This article examines the complexities surrounding the court’s assessment of evidence, particularly concerning contradictions encountered during the adjudication of criminal cases. It emphasizes that the resolution of such contractions is an essential aspect of a judge’s procedural duties. Mere logical coherence in the court’s conclusions is insufficient to validate a verdict; instead, all significant contradictions within the case materials must be meticulously identified and rectified through objective scrutiny and evaluation of the evidence. Additionally, the author highlights the court’s obligation to justify, in cases where irreducible doubts persist regarding the defendant’s guilt, the inability to eliminate such doubts in the verdict.

Злоупотребление процессуальными правами и реализация дискреционных прав властными субъектами в досудебном производстве: понятие и соотношение

In the course of pre-trial proceedings, government entities are authorised to carry out procedural actions and make decisions, most of which are determined as a result of an assessment of the sufficiency of the grounds and conditions for this, based on internal conviction. Sometimes the discretionary rights of such participants are difficult to assess from the point of view of the validity and sufficiency of the information (evidence) available in the audit materials or the criminal case. This leads to appeals against the actions and decisions of officials as having been carried out with abuse of procedural authority. But can this right be abused? To answer this question, it is necessary to clarify the essence of abuse of procedural rights and determine their relationship with discretionary ones. In the course of the study, by analysing the available approaches and practices of applying the norms of the Criminal Procedure Code, it is concluded that an intentional dishonest act under the guise of the exercise of one’s procedural rights by a government entity, excluding the subsequent proper exercise by other participants in criminal proceedings of their procedural rights or their procedural duties within a reasonable time, should entail procedural, disciplinary or criminal liability depending on the consequences and be regarded as abuse. Abuses of the right by the prosecutor and the person in charge of the criminal case to timely grant the status of a participant, to charge, to cancel procedural decisions, during investigative actions, and when choosing measures of criminal procedural coercion have been identified and considered in relation to discrete powers. Some ways to overcome such abuses are presented.

Sygnalizacja rażącego naruszenia obowiązku procesowego przez radcę prawnego w postępowaniu karnym

Signalling a gross breach of procedural duty by attorney-at-law in criminal proceedings The purpose of this article is to present the institution of signalling a gross breach of procedural duties by an attorney-at-law who is a defense counsel or an attorney of a party in criminal proceedings. This institution is regulated by the provisions of Article 20 of the Polish Code of Criminal Procedure, while this provision is also applicable in other procedures: proceedings in cases regarding fiscal crimes and fiscal offenses, misdemeanour proceedings and executive criminal proceedings. The analysis of the applicable regulation leads to the conclusion that signalling constitutes an action of the procedural authorities "outside" the pending criminal proceedings. A notification of a breach of a procedural duty addressed by a public prosecutor or a court to the council of the competent district chamber of attorneys-at-law does not in itself hold the alleged offending attorney-at-law liable for professional liability. The decision as to whether any consequences are to be drawn against him or her as a result of the finding of a violation is taken autonomously by the organs of the attorneys-at-law self-government. They are obliged to take action about the prosecutor's or court's signalling, and the dean of the council is obliged to inform the body of the violation of such action.

Legal relations in criminal proceedings: controversial issues of structure and content

Theorists of criminal proceedings traditionally view the legal relationship as a two-way legal relationship of subjects of criminal proceedings regulated by the norms of criminal procedural law, where the right of one subject of the legal relationship corresponds to the legal obligation of another subject. This approach not only prevails in educational literature on criminal procedure, but is also taken as the initial approach when conducting special scientific research. However, in this area there are procedural obligations for which it is impossible to find corresponding rights of any of the participants in the criminal process. The purpose of the study is to clarify the legal nature of such criminal procedural legal relations in which the connection between procedural rights and obligations is not obvious. The authors make an attempt to explain such legal relations from the point of view of the theory of general regulatory relations and to justify their criminal procedural nature. They substantiate the fallacy of the approach that assumes the existence of procedural duties corresponding to each other within the framework of the criminal procedural relationship. The methodological basis of the study was the dialectical method. In addition, general scientific methods of analysis, synthesis and a systematic approach were used, as well as special legal methods: legal interpretation and the formal legal method. The results of the study showed that the public legal obligations of subjects of criminal proceedings constitute an element of general regulatory legal relations in which the state is the authorized party. During the transition of a general legal relationship to the law enforcement level, personalization of the subject composition of the legal relationship may occur when a certain participant in the criminal process (for example, a prosecutor) begins to exercise control over the fulfillment of the procedural duties of the authority. On this basis, the authors conclude that criminal procedural legal relations are not only legal relations that develop between participants in criminal proceedings, but also general regulatory relations that consolidate the competence of government bodies and officials in the field of criminal proceedings.

LEGISLATIVE REGuLATION OF THE LIST OF EXPENSES RELATED TO PROCEDuRAL COSTS IN CRIMINAL PROCEEDINGS

The use of the institute of procedural costs is one of the tools that ensure the participation in criminal proceedings of both its participants and other persons in-volved in criminal proceedings. This determines the importance of legislative regulation on the attribution of certain expenses of these persons to those that are subject to reim-bursement by the state. At the same time, unreasonable restrictions should not be allowed in the reimbursement of those expenses that are really necessary for the performance of the procedural duties assigned to these persons. Methodologically, the approach to the regulation of the list of procedural costs can be presented in two types: exhaustive or open, assuming an expansive interpretation. Currently, the legislator has established an open list of costs, indicating in paragraph 9 of Part 2 of Article 131 of the Criminal Procedure Code of the Russian Federation “other expenses incurred during the criminal proceed-ings”. A comparative historical analysis of approaches to the regulation of types of costs used at different times in the Russian criminal process, as well as a study of the attitude to the currently established open list of the Criminal Procedure Code of the Russian Fed-eration from the doctrine and law enforcement allowed us to conclude that the existing approach is ineffective and suggest in the future a transition to the establishment of a list of specific procedural costs, which will make the practice more stable and predictable.

Automated Uncertainty: A Research Agenda for Artificial Intelligence in Administrative Decisions

Administrative bodies in the European Union (EU) and its Member States increasingly rely on artificial intelligence (AI) technologies to make sense of complex scenarios. However, scholarship and practice have both shown that the adoption of AI in the public sector is accompanied by various risks, such as algorithmic discrimination or lack of oversight over decision-making. This article proposes that analyses of administrative decision-making in the age of AI must account for automated uncertainty, that is, for the uncertainty stemming from using AI in the public sector. Automated uncertainty is closely connected to the technical opacity of AI systems—but, unlike traditional forms of scientific uncertainty, it affects not only the facts but also the very decision-making structures of public administration. As a result, traditional remedies for uncertainty in administrative decision-making do not fully respond to the implications of AI-based automation for the procedural duties governing administrative decision-making. The article accordingly concludes with proposals of how administrative law scholarship can account for automated uncertainty and ensure that the use of AI does not erode the safeguards provided by the legal framework for administrative decision-making.

System polityczny Szwajcarii, czyli przypadek jedyny w swoim rodzaju

POLITICAL SYSTEM OF SWITZERLAND OR ONE OF A KIND CASE Switzerland has a unique political system, because of its institutional curiosities and unique democratic procedures. It seems that everyone should be surprised by the same state construction that dialectically combines confederation with federation. The Swiss political system represents a rare model of assembly government, known also as parliamentary-committee system. Its main trait is the lack of power division as a foundation of democratic order. Bicameral parliament – the Federal Assembly, composed of the National Council as representation of people and the Council of States representing the cantons acts as supreme authority and appoints all remaining federal institutions. The mode of election of the National Council is based on strict proportional representation without electoral thresholds and with maximal openness of the whole electoral process. The Federal Council that is popularly considered as government is executive institution and always has seven members. The Swiss governments acts as a collective body without prime minister. One of the members of the Federal Council serves as president. He has only formal procedural duties and has no political prerogatives. And, what is important, contrary to the name of his office, the president is not head of federation, because this role falls to the entire Federal Council. Four strongest political parties of country are represented in the government, and in a result of this, the permanent cooperation of the Swiss system makes a unique consensus democracy.

CERTAIN PROBLEM ASPECTS OF THE PROTECTION OF PARTICIPANTS IN CRIMINAL PROCEEDINGS IN MODERN CONDITIONS

The article identifies and characterizes certain problematic aspects of the protection of participants in criminal proceedings, which are caused by the introduction of martial law in Ukraine. It was established that with the introduction of martial law in Ukraine, the practice of implementing the norms of criminal procedural legislation received many new problems and challenges that require regulatory regulation or solution by judicial practice. One of such unresolved problems is the restriction of constitutional rights and freedoms and legitimate interests of individuals in the context of the protection of participants in criminal proceedings during martial law. Attention is drawn to the fact that the provisions of the Criminal Code of Ukraine do not provide for any special forms of criminal justice in the languages of martial law, and therefore the subjects of criminal proceedings (investigators, judges and courts) face a difficult task - to ensure the implementation of criminal justice in extraordinary conditions, but according to the rules peace time It has been proven that participants in criminal proceedings can actively move around the territory of the country and beyond its borders in order to minimize threats to their health and life, which complicates both the realization of the procedural rights of the participants in criminal proceedings and their fulfillment of their procedural duties. The opinion is substantiated that changes related to the specifics of criminal proceedings under martial law should be formalized by a separate special law, which will come into force only in emergency conditions or under martial law. The factors that influence the fact that the norms of criminal procedural law, which were effective in peacetime, became ineffective in the conditions of martial law are identified: 1) the presence of a real threat to the health and life of the subjects of criminal proceedings (investigators, judges, prosecutors); 2) the existence of a real threat to the health and life of participants in criminal proceedings; 3) disorder in society, which occurs in extraordinary conditions, is used by individual participants in criminal proceedings to delay criminal proceedings or to avoid criminal justice; 4) lack of evaluation criteria in the conditions of martial law of violations by participants in criminal proceedings of their procedural duties; 5) the use of traditional forms of court proceedings, which in the conditions of martial law and conditions of scientific and technical progress, no longer meet the needs of modern civilized society; 6) the potential of the forms of protection of individual rights in criminal proceedings provided for by criminal procedural legislation is not fully used in practice.

Types of Legal Bonds Arising in the Mechanism of Ensuring the Proper Discharge of Duty by Participants in Criminal Proceedings

The article discusses the problem of ensuring the discharge of duty of participants in criminal proceedings. The article reveals the elementary structure of the security mechanism, functioning of which guarantees the proper discharge of the duty of participants in criminal proceedings. The heterogeneity of the elements that make up the internal structure of the security mechanism under consideration is determined and the types of bonds that arise between them during their interaction are established. The importance of these bonds for the functioning of the mechanism for ensuring the proper discharge of criminal procedural duties is assessed. The forms of manifestation of these bonds at implementation of the law-enforcement by the authorities in criminal cases are revealed.

The Essence of the Concept of Guaranteed Securing of Proper Performance of Duties of Participants in Criminal Proceedings

The article deals with the problem of fulfilling the duties of participants in criminal proceedings. It identifies means to ensure their proper execution. The concepts of legal obligations, guarantees (means) of ensuring their fulfillment, the system of these means combined into a legal mechanism of provision are discussed relying on the theoretical knowledge existing in the legal sciences. The elementary content of the theoretical concept of ensuring the proper execution of criminal procedural duties is determined and its essential concept is formulated. The elements that make up its basis are revealed and its importance for the effective solution of the tasks of criminal proceedings is substantiated.

Institute of Compensation for the Actual Loss of Time: Some Problematic Issues of Law Enforcement

Procedural abuses, which are the abuse of procedural rights and non-fulfillment of procedural duties, are among the most common and urgent problems of civil procedural law, which have a significant negative impact on the effectiveness of justice, limiting the possibility of exercising the right to judicial protection, countering the correct and timely consideration of cases, forming a disdainful attitude to the law and the court. The main mechanism for countering procedural abuses in civil proceedings, which has a wide scope of application, is the institution of compensation for the actual loss of time. The purpose and objectives of the study: to analyze the specifics of the legal regulation of the institute of compensation for the actual loss of time in historical retrospect and its current state; to check the validity of the legislator’s approach to attributing compensation for the actual loss of time to court costs; to identify problems of law enforcement and features of judicial practice that have a direct impact on the use and effectiveness of the legal institution in question, its practical applicability. Research methods: general scientific (analysis, synthesis, induction, deduction, abstraction, generalization) and private scientific (comparative legal, historical legal, formal legal, structural and functional). Conclusions: the institute of compensation for the actual loss of time, which has a long history of its development, despite the relevance and increasing need for the function it performs, remains the only universal mechanism for countering procedural abuses in civil proceedings. However, its gap-like and fragmentary legal regulation, ambiguous interpretation, and diversely developing judicial practice have turned the institution of compensation for the actual loss of time, which has a significant potential for its use, into a rarely used and ineffective legal institution.

Proper performance of duties that ensure the adversarial nature of criminal proceedings in Russia

The subject of the research is the mechanism for the execution of criminal procedural duties that ensure the implementation of adversarial in Russian criminal proceedings.The subject of the research is the mechanism for the execution of criminal procedural duties that ensure the implementation of adversarial in Russian criminal proceedings. The purpose of the research is to justify the existence of the problem of organizational-legal support for the proper fulfillment of the duties assigned to participants in the criminal process and to determine the main ways of solving. The hypothesis of the research is the thesis that the combination of legal, organizational, and other means existing in criminal procedure legislation does not guarantee the proper fulfillment of the duties imposed by the legislator on the participants in adversarial criminal proceedings.of the research is to justify the existence of the problem of organizational-legal support for the proper fulfillment of the duties assigned to participants in the criminal process and to determine the main ways of solving. The hypothesis of the research is the thesis that the combination of legal, organizational, and other means existing in criminal procedure legislation does not guarantee the proper fulfillment of the duties imposed by the legislator on the participants in adversarial criminal proceedings.The methodology. General scientific dialectical methods made it possible to study the conditions and the process of evolution of legal duties, to reveal their essence in the field of criminal proceedings. The system-structural method and the situational modeling method were used when studying the intra-system relationships of elements of the mechanism for the execution of criminal procedural duties and the system of means that ensure its implementation. The study of regulatory legal requirements was carried out using the formal legal method.The main results, scope of application. The article examines the problem of organizationallegal support for the proper performance of the duties assigned to participants in the criminal process, guaranteeing the proper implementation of adversarial in criminal proceedings. The general concept of duty is given, and the definition of criminal procedure is formulated. The nature of the duties is revealed and their classification is proposed. The fundamental legal significance of the category "Adversarial" as a principle of criminal procedure is identified and the significance of criminal procedural duties as the main security means of the specified procedural category is justified. The provisions of the current criminal procedure legislation in Russia are critically analyzed from the point of view of the presence or absence of legal and organizational means in them that ensure the creation of the conditions necessary for the emergence of a real possibility of proper performance of duties by participants in the criminal process. It is established that the organizational and legal resources required to effectively ensure the proper performance of criminal procedural duties are insufficient. A problematic situation in criminal proceedings is revealed in the form of imperfection of the means intended to achieve his appointment in the context of the implementation of the adversarial legal regime. The views of scientists on the issues studied in the article are studied, analyzed and evaluated.Conclusions. The essence of the scientific problem of research is formulated and proposals are put forward aimed at improving the criminal procedure regulation of the proper behavior of legally liable participants in the criminal process in order to increase the effectiveness of ensuring the implementation of adversarial in criminal proceedings in Russia.

65. One Thousand (1000) Consecutive New Routine Telephone Appointments

Virtual and Telephone consultations have become normal with in oral & maxillofacial surgery during the pandemic. The maximise face to face time, we moved to a telephone first appointment for referrals deemed appropriate at vetting. We analysed the outcome of these regularly to ensure they were as effective and efficient as possible to maximise face to face time, and free dental nursing staff up to assist with face to face and procedural duties.

Genesis of the structure of legal relations

It is noted that the theory of legal relations appears in the form of a wide and diverse array of knowledge and ideas, of course, it can be accepted as the main source that feeds the very process of further development and improvement of their essence, definition and composition. It is emphasized that two categories of social relations were distinguished in the general theory of law and branch sciences: “organized” and “organizational” social relations. The first always arise to achieve certain goals, the second to normalize the processes “being organized”.
 Procedural legal relations take the place of the initial, determining element in the composition of procedural proceedings. In turn, procedural proceedings are defined as the main element of the legal process, which is a systemic formation, a complex of interrelated and mutually conditioned procedural actions. Procedural legal relations, which justify the dynamics of material legal relations, in turn, are derived from the latter, have a subordinate, official character in relation to them, perform the role of a kind of procedural “superstructure” over the material-legal “base”.
 The peculiarities of the subjects of procedural legal relations can be seen in the following. First of all, procedural legal relations are characterized by the diversity and multiplicity of the composition of subjects, which are divided into, on the one hand, a group directly interested in the results of the legal process, that is, those whose interests are protected, the realization of subjective rights or powers, the fulfillment of legal obligations the whole arsenal of procedural methods, means and techniques helps to avoid or endure legal responsibility, and on the other hand, a group of leading subjects who perform their functions in “other people’s” interests, for the purposes of the case under consideration.
 Procedural powers in their “pure” form cannot be classified as either procedural rights or procedural duties. According to its purpose, it is, in a certain sense, a product of the synthesis of rights and obligations. First of all, this is a component of the competence of the relevant state body or official. Possessing procedural powers, they are not only procedurally authorized, but also obliged to perform actions provided for by the procedural law.
 The legally binding nature of powers is expressed in certain limits of their rights in relation to other persons and bodies and at the same time entrusting them with the obligation to use the rights granted to them to achieve their goals. It is necessary to take into account the combination of procedural rights and obligations within the limits of procedural powers, their various compositions in specific legal relations, taking into account the dynamism and multi-subjectivity of the latter.

Features of the criminal procedural status of a person in respect of whom proceedings are being conducted on the application of compulsory medical measures

The criminal procedural status of a participant in criminal proceedings is of particular importance in the implementation of his criminal procedural functions during the investigation of a criminal case. In the article, the author presents the characteristics of the criminal procedural status of a person who committed a socially dangerous act in a state of insanity and a person whose mental disorder occurred after the commission of a crime. The procedural rights, duties and legal responsibility of a key participant in the proceedings on the use of compulsory medical measures are considered. The procedural rights of this participant in criminal procedural legal relations are classified depending on the implementation of a specific function during the investigation of a criminal case. The author draws attention to the specifics of the content of the procedural status of a person in respect of whom proceedings are being conducted on the application of compulsory medical measures, and argues that such elements as procedural duties and legal responsibility of a participant in criminal procedural legal relations are not included in the criminal procedural status of a person suffering from a mental disorder. It is noted that the problem of balancing the rights and obligations of participants in the criminal process is emerging in this regard. The author suggests filling this gap with the duties of the legal representative of the person against whom the proceedings on the application of compulsory medical measures are being conducted.

Sachverhaltsermittlung im Verwaltungsverfahren zwischen Verfahrensrecht und materiellem Recht

The common doctrine on administrative acts in Germany holds that the finding of facts by authorities is not merely a procedural duty, but also bears relevance to the substantive legality of an administrative act. By way of example, an authority’s predictive decision can be declared unlawful on substantive grounds when the facts underlying that decision are inaccurate. Furthermore, an authority will have committed a discretionary error if it has failed to ascertain facts which do indeed bear discretionary relevance and, consequently, its decision did not account for these facts. Why does this “duplication” exist? This article shows how the substantive relevance of complete and accurate ascertainment of the facts is structurally based on three preconceptions: the notion that administrative procedural law merely has a “facilitative function” (“dienende Funktion”), the perspective of administrative court oversight, and the understanding of administrative court oversight as sheer error checking. Since these three preconceptions are themselves ripe for scrutiny, and each is indeed inchoate when used individually, this article presents an alternative dogmatic concept. It assumes a productive function in administrative procedure; supplements the perspective of oversight using that of the administrative measure; and understands administrative court oversight not as simple error checking, but also as a separate illumination of the facts and the law. Thus, an authority’s duty to ascertain the facts and an administrative court’s duty to review the facts can be reconciled, while at the same time the corresponding legal standards can be mapped in a (more) complete and consistent manner. In effect, the “duplication” of procedural and substantive law can be disentangled in favour of a more procedurally oriented approach to fact-finding among authorities and to fact-reviewing among administrative courts without impairing the efficacy of judicial review.