Criminal Procedure Reform Research Articles

Duality of Criminal Procedure Policy Trends in the New Criminal Procedure Reform in France

Duality of Criminal Procedure Policy Trends in the New Criminal Procedure Reform in France

The End of Batson? Rulemaking, Race, and Criminal Procedure Reform

The End of Batson? Rulemaking, Race, and Criminal Procedure Reform

Эмпирические данные применения современных средств стимулирования обвиняемого к добровольному признанию своей вины по состоянию на 2022 год

The admission of guilt by the accused has always been relevant for the criminal process in Russia. For many years it occupied the position of the “queen of evidence” and had to be obtained by any means. The most common means of obtaining such a confession was torture. However, as a result of the criminal procedure reform, the accused’s confession of his guilt has become an ordinary, ordinary proof.
 Despite the complete change in its status, it still remains necessary for the criminal process of Russia. In this regard, positive means of stimulating the accused have been developed for many years, which would not violate his rights and would not force such a confession. Currently, we have a whole set of effective and practical means of stimulating the accused to voluntarily admit his guilt. However, not all of them are relevant.
 Thanks to the statistical indicators for 2021, as well as the survey conducted, the author identified the most popular means of encouraging the accused to voluntarily admit his guilt, as well as the least implemented in practice. In addition, this article reflects the dynamics of the implementation of incentive funds over the past five years, as well as conclusions for each of the funds presented.

Модель деятельности прокурора в уголовном процессе: ключевые проблемы и возможности реформы

Introduction: after the adoption of the Criminal Procedure Code of the Russian Federation, endless changes and additions are being made to it with alarming frequency. If desired, this situation can be explained by dynamically developing social relations, changing the state legal policy. However, it seems that numerous and often chaotic changes in the criminal procedure legislation are associated with the lack of a strategically verified and planned idea of the directions for the development of criminal proceedings. The development strategy of this type of state activities is largely influenced by the presence of a verified model of procedural activities of the prosecutor – one of the most influential subjects in the system of law enforcement agencies of any state, in any system of criminal proceedings. In this regard, the purpose of the paper is to identify the key problems in the legal model (the legislative regulation) and the actual model (the practice) of the prosecutor’s activities in criminal proceedings, to analyze their correlation and directions for their improvement, as well as the impact of these processes on the reform of the entire criminal procedure as a whole. Methods: the methodological framework for the research consists of the general scientific (dialectical, modeling method, system, structural-functional, logical, etc.) and the specific scientific (formal legal, comparative legal, etc.) research methods. Results: based on the analysis of the legislative provisions and law enforcement practice, it is concluded that there is a significant discrepancy between the current practice of prosecutorial activities in the criminal proceedings in the country and its legal regulation. Such a discrepancy between the legal and factual models of the prosecutor’s activities entails significant problems in law enforcement, which are caused by both shortcomings in the legal regulation of the prosecutor’s activities and the distortions of the law enforcement practice. Conclusions: the models of the prosecutor’s activities in criminal proceedings that exist today as autonomous (with a high level of inconsistency) – legal and factual, are the result of inconsistent changes in the domestic criminal procedure legislation introduced into it rather hastily, without conducting scientific examinations and assessing possible risks. As a result, the prosecutor’s management of pretrial criminal prosecution continues to exist, but already as a “shadow practice” of the prosecutor. Overcoming the existing gap between the legal and actual models of the prosecutor’s activities will require reforming some procedures of criminal procedural activities, taking into account some factors revealed during this study, which, in fact, allows talking about the legal model of the prosecutor’s activities as the basis of the strategy of reforming criminal proceedings.

ISOLATED LEGISLATIVE REFORMS OF CRIMINAL PROCEDURE AS AN OBSTACLE TO THE CONVERGENCE OF PROCEDURAL LAW

Abstract. The urgency of developing unified approaches to the reform of procedural legislation is justified by its aggravated lack of system and chaotic nature of the changes introduced. Purpose: to analyze the current legislative work on the reform of criminal procedure and other legislation and its impact on the quality of criminal proceedings and the prospects for its convergence with other types of judicial process. Methods: the method of comparative law is the determining method of the research. In addition, general and special methods are applied (analysis and synthesis, logical, special-legal). Results: the study reveals the lack of consistency between the changes made and those planned in the sectoral procedural legislation. The development of digital technologies contributed to the spread of the use of web conferences in court and capabilities of Portal of Government Services in arbitration, civil and administrative proceedings, but not in criminal ones. The bills under consideration in the State Duma of the Russian Federation to modify the procedure for appealing challenges in criminal proceedings and to exclude decisions on administrative offences from the list of acts of prejudicial significance in criminal proceedings, do not take into account the state of the relevant universal institutions in other forms of justice.

Criminal Justice Reform: A Transformative Agenda

Few of the criminal justice system’s problems are new. Indigenous and racialized persons continue to be over-represented in the criminal justice system. Pretrial detention rates have increased significantly during the past 30 years. The criminal law is still used to regulate social problems — poverty, homelessness, and substance use — that it cannot fix. Although law reform happens with some frequency, these underlying problems persist. This article advances a transformative agenda for criminal justice reform. It argues that law reform fails to address three mutually reinforcing features of the criminal justice system that exacerbate its persisting problems. First, reform efforts accord insufficient importance to rehabilitation and reintegration. Second, reform initiatives do not address the growth of police powers that lack adequate transparency and oversight. Third, existing reforms ignore how the justice system increasingly allocates power towards prosecutors and the police, while removing that power from judges. This article’s core argument is that the criminal justice system must be completely transformed in order to address its underlying issues. It contends that meaningful criminal justice reform must take place across four dimensions: (1) substantive criminal law reform; (2) sentencing reform; (3) criminal procedure reform; and (4) institutional reform. It concludes by providing an agenda for criminal justice reform, which includes a set of concrete proposals in each of these four dimensions. Ultimately, this article shows why transformative law reform is necessary to treat individuals with greater dignity, foster rehabilitation and reintegration, and combat the criminal justice system’s worst tendencies.

SUD MUHOKAMASIDA ISBOT QILISH PREDMETI SIFATIDA PREYUDITSIYADAN FOYDALANISH MASALALARI

The relevance of the article lies in the fact that in the criminal process the institution of prejudice allows you to resolve conflict situations in the activities of state bodies and officials involved in criminal proceedings, easily resolve pre-trial situations that require a lot of money and effort. The purpose of this article is to develop theoretical directions for solving problems related to the use of the institution of prejudice in criminal procedure law based on analysis. The goal is to determine the prospects for improving national legislation related to the use of the institute of prejudice in criminal proceedings, as well as to prepare legal proposals and recommendations from the institute. The level of scientific novelty of the results lies in the study of theoretical, legal and practical issues from the point of view of the science of criminal procedure law to improve the legal guidelines for the application of the institute of prejudice in criminal procedure law. The conclusions of the article can be used as a separate area of criminal procedure reform in the development of the institution of prejudice, the preparation of proposals and recommendations for improving legislation, lectures and special courses on criminal procedure law. It provides that the legislation determines the nature, direction and content of criminal proceedings according to special rules. Various views on the biased value of evidence and the mechanisms for its recognition have been challenged by higher courts.

The Judicial Pardon Arrangement as a Method of Court Decision in the Reform of Indonesian Criminal Law Procedure

Judicial Pardon is a new concept formulated in the 2019 Draft of the Criminal Code. The concept refers to the judges’ new powers to forgive defendants who are convicted guilty. However, the formulation of the concept has not been adjusted to the formulation of decision types in the draft of the Criminal Law Procedure. There has to be a harmonization between the Draft of the Criminal Code and the Draft of the Criminal Law Procedure. This article is based on a legal study on the importance of regulating judicial pardon as a form of the court decision. It reveals that judicial pardon is in line with the insignificant principle that if an act already fulfills the elements of a criminal act but is not significant with the essential characteristics of the criminal act, it cannot be declared as a criminal act. However, it is not consistent with the essential nature of a criminal act. In addition, a judicial pardon is a form of shifting punishment towards a flexible balance model from the original one that is absolute. Therefore, it is important to amend the Draft of the Criminal Procedure Law on the types of judges’ decisions. The current judges’ decisions are not compliant with the concept of judicial pardon. The amendment can be processed by adding a decision of conviction without punishment as a type of judge’s decision. The article offers a concept related to legal remedies on judicial pardon as a final and binding decision. Therefore, legal remedies cannot target such decisions.

Controversy over the Reform of Criminal Procedure Introduced by the Act of 19 July 2019

An extensive reform of criminal procedure entered into force on 4 October 2019, implementing numerous changes to all of its stages. The changes were justified by a few goals, amongst which the one considered the most important was creating conditions for quicker resolution of cases in court proceedings, i.a. by counteracting the possibility of the obstruction of justice as well as preventing unnecessary repetition of evidentiary procedures. The legislator also aimed to remove the redundant formalisms occurring in the proceedings as well as designed mechanisms with the purpose of accelerating the preparatory proceedings and strengthening the position of the aggrieved in the criminal procedure. Undoubtedly the legislator’s intentions were legitimate and solved some of the fundamental problems that occur in the contemporary criminal procedure, particularly in regards to its extensive length. Solutions adopted in the Act, as a rule, deserve praise, particularly when it comes to removing unnecessary formalisms of the criminal procedure. However, despite the declaration of respect and compliance with the required procedural guarantees, especially those connected to the protection of the rights of the parties as well as the principle of the fairness of a criminal trial, the legislator was not able to fully maintain the standard of the guarantees, as it was reduced to accelerate the proceedings. In this aspect the discussed amendment can raise serious concerns. This article attempts to analyse the solutions adopted in the amendment, particularly those that cause the biggest controversies, especially concerning their compliance with the requirements of the Polish Constitution, European Convention on Human Rights, as well as the minimal standards relating to the subject set by the European Union.

Jueces que dicen el derecho: Levene y Maier Reformadores de la justicia penal argentina

Ricardo Levene (h.) y Julio Maier se destacaron de forma simultánea como jueces, juristas y profesores de derecho penal, y fueron quienes en el siglo XX bregaron en la Argentina por la reforma del primer Código de Procedimientos en lo Criminal para la Justicia Federal, que habí­a sido promulgado en el año 1888. En este trabajo se presentan las trayectorias de ambos "reformadores" para hacer visible el impacto tanto de su experiencia comode la internacionalización en la gesta y la promoción de la transformación legislativa en materia penal a nivel local con su consecuente incidencia en la región latinoamericana. Se muestra, en particular, su apuesta por el derecho penal comparado y su circulación transnacional, tanto en su formación académica comoen el trabajo profesional asociado fuertemente a la reforma de la justicia penal. La metodologí­a de investigación es cualitativa, llevada a cabo por medio de entrevistas y el relevamiento de fuentes secundarias. En las conclusiones, se enfatiza el aporte de abordar las trayectorias de los expertos en derecho de modo de apreciar el impacto de la transnacionalización en la conformación de redes profesionales y la circulación de las ideas jurí­dicas, en este caso, en la constitución de los procesos de reforma procesal penal federal y la consecuente transformación del modelo de enjuiciamiento estatal.

Transforming the Culture of Chinese Prosecutors Through Guiding Cases

Public prosecutors are a key element within the legal complex, and crucial to the effective implementation of legal reforms. China’s procurators (public prosecutors) have previously colluded with local governments, police, and courts to “strike hard” against crime while overlooking systemic beating and torture of detained suspects to obtain confessions, shoddy investigative practices, and frequent miscarriages of justice. However, fifteen sets of Guiding Cases issued by the Supreme People’s Procuratorate since 2010 promote an unprecedented change in Chinese procurator culture away from “striking hard” to substantive protection of criminal suspects’ rights and exclusion of tainted evidence. They reinforce criminal procedure reforms since 2010 by demonstrating how procurators should protect innocent people against wrongful convictions and police brutality. They also stress the broader duty of China’s procurators to uphold the public interest against corrupt businesses and officials, especially in food safety, land-taking, and environmental protection cases. With other key actors in China’s “legal complex”—rights lawyers and civil society groups—still suppressed by the government, this effort to transform procurator culture is an essential, though still incomplete, step on China’s tortuous path toward a fair and just legal system.

Judges, Citizens, and a Democratic Rule of Law: Building Institutional Trustworthiness to Recover Public Trust

This article argues that even though in Chile several successful reforms have been made, such as the Criminal Procedure reform, the Labor Procedure reform and the Family courts reform, public confidence in the justice system is still very low. It is argued that this gap should serve as an alert to legal professionals and policymakers in Chile that it is time to rethink and adjust the reform agenda. The article claims that the Chilean justice system must attend to its trustworthiness, which requires that it better incorporate and serve the fundamental principles of democracy, under Lincoln’s famous conception of a democratic government as one that is “of, by, and for the people”. To accomplish this task, a new set of reforms is suggested aimed at making the justice system more democratically trustworthy and, therefore, capable of recovering citizens’ trust.

Criminal procedure reform and the impact on homicide: evidence from Mexico

While significant efforts have been made to reform the criminal justice system across Latin America, we do not know the conditions under which reform effectively deters homicide, one of many goals of the reform. Drawing on a novel sub-national design in Mexico, I find that criminal procedure reforms aimed at improving due process are not sufficient for deterring homicide in places where non-state actors (i.e. drug cartels) effectively challenge the state’s monopoly of violence. I argue that in these settings, citizens are less willing to cooperate with the formal system of justice - despite reform efforts. Without society cooperation, the prosecution is less equipped to investigate, prosecute, and solve crime, resulting in impunity and little deterrence. Importantly, where the state maintains its monopoly of violence, reform is associated with less homicide. In selecting remedies to combat violent crime, therefore, different communities need to pursue different strategies, suggesting that the State can deter violence through fairness.

Salient Issues in Criminal Procedure Reform of the Elderly Criminal

Salient Issues in Criminal Procedure Reform of the Elderly Criminal

The reform of criminal procedure of corruption cases in China

Abstract In order to achieve fundamental results in punishing corruption crime, we should adhere to the legal anti-corruption pattern, advance with the Rule of Law, and make anti-corruption standardized and institutionalized. The bottom line is that we should reform and improve the criminal procedure for corruption crime in China. Problems in the current procedure for corruption crime mainly include: the presumption rules for corruption crime have not been established, the absence of stigma witness exemption system, the witness protection system, the investigation jurisdiction are not perfect, the supervision of investigation is weak, the lack of absentee trial system for corrupt crime, the non-institutionalization of off-site trial, technical investigation measures may be abused, and difficulties in person sought for corruption and asset recovery. To reform and improve the procedure for corruption crime in China, it is suggested that special procedures for corruption crime be set up as appropriate, relevant contents of the United Nations Convention against Corruption (UNCAC) should be reasonably absorbed, and efforts should be made to promote the institutionalization of the reform achievements in criminal procedure of corruption crime.

The Debate over the Adversarial and Inquisitorial Systems in the Criminal Procedure Reform of Korea

The Debate over the Adversarial and Inquisitorial Systems in the Criminal Procedure Reform of Korea

THE IMPACT OF LEGISLATION THE ANGLO-SAXON LEGAL SYSTEM ON THE REFORM OF THE RUSSIAN CRIMINAL PROCEDURE LAW

The article discusses issues concerning the impact of legislation some countries Anglo-Saxon legal family on contemporary reform of Russian criminal procedure. The author raises the problem of community many of the legal provisions and institutions of Russian and Anglo-Saxon law. The work focuses on the fact that due to frequent legal stories, contradictory law-enforcement practice, the active work of the constitutional Court of the Russian Federation and Plenum of the Supreme Court of the Russian Federation which, by their individual decisions initiate new legislative changes, the reference to comparative legal study of foreign models of the criminal process is inevitable. The study used General scientific and special legal methods of studies: analysis and synthesis, legal modeling, formally-legal. The scientific novelty of the research lies in the author's approach to the study of the problem, which has not only theoretical but also practical importance, consists in the fact that, despite the seemingly opposite type of the Russian legal system related to civil law jurisdictions, and countries of the Anglo-American conglomerate, however, in fact, at the present time, there is the mutual influence and complementarity. In support of this thesis, the author made analysis of such a legal institution as a simplified procedure (in countries with Anglo-Saxon legal family called plea of guilt), which is in the form of a special order of judicial proceedings was introduced in the Russian criminal process. The Russian version of this procedure differs from Anglo-American, however, at its core, it is based on the legislative regulations of great Britain and the United States. The work is concluded that the main influence in Anglo-Saxon law is in the Russian criminal process is manifested in the extension of adversarial origins.

The Effects of a Shorter Criminal Procedure on Crime Rates

A shorter and simpler criminal procedure may aspect crime rates by increasing the perceived severity of punishment and by inducing a reallocation of police enforcement resources. Methodology: I investigate the impacts of a criminal procedure reform in the Iran that allowed certain less serious effect to be prosecuted via a simplified (fast-track) procedure. The share of cases actually prosecuted via the fast-track procedure varied substantially across police districts and openness, which provides the basis for the identification strategy. The shorter procedure had very deferent effects on ordinary crimes reported by the victims and on crimes that are identified mostly by the enforcement effort of the police. Results: Specifically, it led to a substantial increase in the number of recorded criminal offenses associated with driving. This finding is best rationalized by a reallocation of police enforcement effort towards crimes that have low enforcement costs. Conclusion: I also find some but rather weak evidence of a deterrent effect on burglary and embezzlement.

Patronage and Rationalization: Reform to Criminal Procedure and the Lower Courts in Chile

This article analyzes how the lower criminal courts in Chile transitioned from an inquisitorial to an adversarial justice system between 2000 and 2005 as part of the Criminal Procedure Reform. Drawing on the frame analysis of the street-level bureaucracy and judicial ethnography, I examine the transition between two different types of judicial bureaucracy from the perspective of the actors who implemented the reform. The study is based on in-depth interviews with officials and judges of both inquisitorial and adversarial courts, administrative managers of the new courts, and actors who designed the administrative reorganization of lower criminal courts. The study involved a three-month, weekly observation in an inquisitorial court in Santiago de Chile. The article emphasizes the specificity of the Chilean judiciary, where both inquisitorial and adversarial criminal courts still coexist.

Criminal procedure in Serbia: Between the reform and the value system breakdown

This paper discusses the correlation between the current reform of Serbian criminal procedure and the transformation of the fundamental principles of European-continental criminal procedure. In that context, the authors first provide a diagnosis of current state of affairs in domestic criminal procedure, which has been subjected to the process of legal acculturation embodied in spreading the Anglo-American criminal procedure into the European-Continental criminal procedure. In the second section, with reference to the 'Serbianisation' of Dworkin's Heracles, an imaginary perfect judge through whom Dworkin's famous theory of law as integrity is presented, the authors provide insights into the state of domestic criminal justice system. The most important conclusions are presented in the third part of the paper. Firstly, the authors point out that the process of transplanting elements of the Anglo-American criminal procedure into the European-Continental proceedings gives birth to Serbian Heracles, which embodies the spirit of time when the old system of values is destroyed and a new one is created. In the authors' opinion, the process of 'revaluation of values' is a dominant tendency in the criminal procedure law of the Western legal circle (which the Anglo-American and mixed continental procedures fall into), and it is a consequence of wider social trends. Changes in the criteria for comparing values first occurred in the accusatory proceedings, primarily because the standpoints and the metanarrative permeated with notions of pluralism and relativism were born and first applied in the Anglo-American procedure. However, considering the current legal acculturation, the last dams of revaluation of values have been demolished in the continental procedures as well. As nothing is either right or wrong anymore, an environment has been created in which the question of truth cannot be posed any longer. In the authors' opinion, the alternative is found in the process of simulating the pursuit of justice. The primary function of procedures imitating the judicial process is to serve and uphold the stability of the political system. Thus, postmodern procedures are an illusion created in order to deceive the public. An important role in that process is played by due process rules on fair proceedings which, as the authors believe, are the primary means of simulating the process of seeking justice in criminal proceedings.