Russian Criminal Procedure Legislation Research Articles

Combined (Visual-Verbal) Investigative Actions: Legal Nature and Significance for Proof

Russian criminal procedure legislation provides for investigative actions based on a combined combination of visual and verbal perception. At the theoretical level, to date, some problems of the evidentiary significance of the results of these investigative actions and their place in evidence in a criminal case have not been solved. The aim of the study is to develop an optimal theoretical model for using combined investigative actions in proving the results. The objectives of the study are: to analyze the legal nature of these actions, to distinguish elements of visual and verbal perception in their structure, to identify the possibility of removing material objects during the investigative actions under consideration, to establish the possibility of announcing the protocols of investigative actions in a court hearing. The study is based on the dialectical-materialistic general method, which involves the study of phenomena in systemic communication and totality, as well as on general scientific methods of analysis and synthesis, induction and deduction, and private-legal methods. Results of the Study. A distinction was made between the ratio of visual and verbal components in various investigative actions. Based on this, it was concluded that material objects could be removed as part of the verification of evidence on the spot, and this was impossible during the investigative experiment and verification of evidence on the spot. It is stated that the information provided in the course of conducting the investigated investigative actions verbally does not relate to the testimony. The results of all the indicated investigative actions in terms of the types of evidence are minutes and are subject to announcement at the court hearing, regardless of the existence of conditions established by law for the announcement of evidence. The results of combined investigative actions have important evidentiary significance in the paradigm of a mixed type of criminal process. The author believes that this type of proceedings is optimal, which requires an improvement in the regulatory design of combined investigative actions.

Realization of the Purpose of Criminal Proceedings by the Investigator and by the Defense Counsel: Opposition or Interaction?

The author discusses relationships between the prosecution and the defense during the preliminary investigation of a criminal case. Based on the analysis of contemporary Russian criminal procedure legislation and the links between the criminal procedure theory and criminalistics, the author concludes that it is necessary to single out the following forms of relationships between the defense counsel and the investigator: cooperation and counteraction to the investigation. The author, taking into account existing theoretical views, differentiates between these two concepts using the criterion of the legality of the actions of the sides. Correspondingly, it is suggested that cooperation is the activity of the sides carried out within the framework of the criminal procedure legislation and aimed at the realization of the purpose of criminal court proceedings as stated in Art. 6 of the Code of Criminal Proceedings of the Russian Federation. Using this as a basis, the author attempts to outline the procedural types of such interaction depending on the manner in which the defense counsel participates in proofing a criminal case. Firstly, there is a situation in which evidence is collected directly by the defense council. The author believes that in this case the investigator checks the evidence acting as an independent auditing body in the legal relationships and does not perform the function of the prosecution. Secondly, there is a procedural form of interaction when the defense counsel participates in the collection of evidence carried out by the side of the prosecution.

СРАВНИТЕЛЬНЫЙ АНАЛИЗ ОПЕРАТИВНО-РОЗЫСКНОГО МЕРОПРИЯТИЯ И СЛЕДСТВЕННЫХ ДЕЙСТВИЙ НА ПРИМЕРЕ ОБСЛЕДОВАНИЯ ПОМЕЩЕНИЙ, ЗДАНИЙ, СООРУЖЕНИЙ, ОСМОТРА МЕСТА ПРОИСШЕСТВИЯ И ОБЫСКА

In practice, criminal intelligence as a form of control is often carried out without proper procedural arrangement. This issue is very urgent and problematic as, according to the criminal procedure code, evidence obtained when examining a crime scene in respect of procedural legislation violation often cannot be considered admissible. The paper considers the existing forms of gathering evidence and facts of a crime when investigating a crime scene; two of them – inspection and search – are procedural; one is a criminal intelligence action – premises, buildings, structures, terrain compartments, and vehicles examination. The authors carried out a comparative analysis of these forms and concluded on the gaps in the Russian criminal procedure legislation. The paper gives a brief overview of obtaining evidence when investigating crime scenes in the legislative acts of the former republics of the Soviet Union, in particular the Republics of Kazakhstan, Belarus, Estonia, and Azerbaijan. The authors considered the legislation on the operative search activity of foreign countries. The paper presents a comparative table reflecting the positive and negative aspects of the applicable legislation, the advantages and disadvantages of investigative activities and criminal intelligence under the study; studies the issues of entering the materials of operative search activity into the crime case file. As the basic conclusion, the authors highlight that by nature and inner content, the investigative activities under the study (a crime scene examination, a search) and criminal intelligence (premises, buildings, structures, terrain compartments, and vehicles; public and non-public examination) duplicate each other in some degree.

ОТКАЗ ОТ ПРАВА НА ОТПРАВЛЕНИЕ ПРАВОСУДИЯ: ЮРИДИЧЕСКАЯ ПРИРОДА И СОДЕРЖАНИЕ

The paper presents the results of legal research on the involvement of citizens in the administration of justice during criminal proceedings. The existing Russian criminal procedure legislation provides for a relevant procedure. However, some aspects of citizens’ participation in the administration of justice in the sphere of criminal proceedings, for today, are regulated insufficiently, which causes certain difficulties by an executor of law. The study focuses attention on the special constitutional and legal significance of such participation as a form of interaction of the state and society on the whole. The authors consider the participation of citizens in the administration of justice both as a constitutional guarantee of the defense of human and civil rights and freedoms in the Russian Federation and concerning the procedural support of the corresponding right of a criminal procedure participant. The paper states that citizens’ participation in the administration of justice is characterized to a greater degree by their rights than by responsibility. The authors justify the conclusion on the necessity of different interpretations of the concepts of civil duty and legal duty. Such attitude is proved by the fact that the imposed form of participation in justice does not make impossible the juror’s intentional violation of bans stipulated towards a juror. The paper pays attention to the study of the process of trial jury formation in criminal proceedings. The authors identified and analyzed the reasons for citizens’ unwillingness to exercise this right. The study considers both the admissible not contradictory to legal rules forms of such denial and its covert types hindering the administration of justice. It is identified that the waiver of a right to exercise justice can be caused both by objective and subjective factors. Based on the analysis of statistical data and with the account of the examples from judicial practice, the authors justify the necessity of further improvement of norms of the current legislation in ensuring the citizens’ participation in the administration of justice.

International Standards of Preventive Measures and Their Implementations in the Legislation of the Russian Federation

The goal of this research is to identify problems arising during the implementation of international standards for the selection of preventive measures into Russian criminal procedure legislation. The authors specify the concept of international standards of criminal court proceedings, present the specific features of their incorporation into constitutional norms as well as rules in different branches of law. The importance of preventive measures in the general mechanism of legal regulation is shown. The authors prove the necessity of systemic changes in the part of Russian legislation that deals with the legal regulation of preventive measures with the purpose of creating an integrated mechanism of criminal prosecution and protection against it. Key findings of research include: 1) Russian criminal proceedings, including its part regulating the selection of preventive measures, should fully correspond to international standards; 2) international standards are implemented in Russian criminal procedure legislation both indirectly, though constitutional clauses, and directly, through the improvements in the Criminal Procedure Code of the Russian Federation; 3) preventive measures should only be selected if there are sufficient grounds for them, and these grounds are not the at the discretion of officials involved in criminal proceedings, they are real evidence in the materials of a criminal case that is necessary and sufficient for selecting a specific measure from the measures included in the law; 4) circumstances that are taken into consideration when selecting a preventive measure, if they potentially provide for a stricter measure from their general list, should be explicitly laid down in the law, and contrary to this, the list of circumstances that could improve the position of a person is not exhaustive; 5) to give a person an opportunity to defend their position, the possibility of selecting the preventive measure of detention is only feasible for the accused, and should be excluded for the suspect; 6) since the proper behavior of a person, from the position of the prosecution, is to give testimony that proves their involvement in a crime, the corresponding indication that this is necessary to ensure such behavior should be removed from the law when selecting the preventive measure of recognizance not to leave; 7) the supervision of the command staff of a military base over military personnel should not be substituted with an actual deprivation or limitation of the freedom of movement within the territory of the base; 8) when there are no grounds for selecting detention, the court should have a possibility to select any other preventive measure from those included in the law. From the methodological standpoint, this research is an analysis of international normative legal acts and generally recognized principles and norms of international law regulating preventive measures as well as the problems of their implementation in Russian criminal proceedings. The following methods were used: comparative legal, historic legal, sociological, interpretation of law norms, a number of logical methods. The obtained data was used to formulate key conclusions, which made it possible to correctly use a number of terms, and determine the necessity of a systemic improvement of Russian legislation through the introduction of mechanisms that ensure the rights, liberties and lawful interests of a person when selecting a preventive measure.

Admission of a Notary to Entrepreneurs in Custody: Problems of Implementation

The relevance of this work is due to innovations in the Russian criminal procedure legislation, according to which the right to see a notary was provided for entrepreneurs in custody. The author has studied the notary’s access to such business entities as individual entrepreneurs in the case of a crime committed by them in connection with their business activities and (or) the management of their property used for business purposes, as well as members of the management bodies of a commercial organization in connection with the exercise of their powers to manage the organization or in the implementation of business activities by a commercial organization. On the basis of the Russian criminal procedure and notary legislation, the author indicates possible options for applying a preventive measure in the form of detention in respect of persons who have committed crimes in the sphere of business activity; the issue of changing the legislation governing the admission of a notary to persons in custody accused of committing crimes in the sphere of business activity, and the conditions for carrying out notarial actions is considered. The author analyzes the issue of the need to perform notarial actions in relation to citizens of another category (not entrepreneurs), in respect of which a preventive measure in the form of detention has been chosen. The issues of possible abuse of the right to meet with a notary, carrying out notarial actions and registration of notarial documents are considered.

Information Technologies in Fixing the Evidence in Court

The paper aims to analyze modern combined methods of fixing evidence at the stage of the trial in the criminal process in Russia. For this, the following objectives were defined: to analyze foreign criminal practice, to indicate the shortcomings and prospects for digital technologies implementation in Russian court practice, to compare foreign and Russian legislation relative to the use of information technologies during investigation and proceedings stages, and to develop recommendations. Research methods combine theoretical (comparative and legal) analysis of Russian and foreign legislation were used together with empirical ones (data analysis of the judicial practice cases).Findings: generally accepted forms of conducting criminal proceedings are complicating (online court sessions broadcasting, electronic documents compilation and information storage, combining methods of fixing evidence at various stages of criminal justice). Preserving the written form of keeping the record of a court session, and providing that information and technological means of fixing (video recording and audio protocolling) are necessary. The use of ubiquitous audio or video recording of investigative actions on the one hand will help to avoid numerous procedural mistakes in pre-trial proceedings, providing certain guarantees for the rights of participants in criminal proceedings. The authors propose to supplement Russian criminal procedure legislation and other countries with a number of norms, according to which it is necessary to introduce information fixation means in courts – audio recording or video recording at the trial stage. These means should be used by the court at the request of a defendant and (or) one’s defense counsel.

Adversarial process: urgent problems of modern Russian criminal proceedings

Раскрывается перечень системных недостатков современного уголовного судопроизводства. Гипотезой исследования является тезис о том, что продолжающиеся преобразования порядка осуществления уголовно‐процессуальной деятельности не привели к ее трансформации на основе принципа состязательности процесса. Проблемным полем исследования является анализ новейших изменений в Уголовно‐процессуальном кодексе РФ и их влияние на качественную модернизацию отечественного правосудия. В заключение сформулированы предложения по совершенствованию российского уголовно‐процессуального законодательства.

Понуждение к действиям сексуального характера: правовые позиции Верховного суда Российской Федерации и Республики Казахстан

The relevance of the study is due to the importance of finding effective and at the same time humane measures to combat crime against minors that meet the generally accepted principles and norms of international law. The purpose of the study is to consider the international legal norms that form the basis of standards in the field of implementation of the rights of minors involved in the criminal proceedings orbit. We consider some aspects of the fair juvenile justice standards implementation in the Russian criminal procedure legislation. We analyze the provisions of the key normative acts in the field of juvenile justice, their application practice, as well as doctrinal approaches to the prospect of further improvement of the criminal procedural form of legal proceedings against minors. On the basis of the analysis, we highlight the proceedings features in the criminal cases category: criminal prosecution can be initiated only after reaching a certain age; expanded the subject of proof; the production involves additional participants; the establishment of additional grounds and conditions for the use of coercive measures related to the restriction of freedom; confidentiality, which determines the characteristics of the trial; expansion of the range of issues resolved by the court in sentencing. It has been concluded that the existing domestic criminal proceedings the order of proceedings in criminal cases in juvenile, despite the peculiarities that distinguish it from the general procedure, it is impossible to recognize the self-differentiated procedure.

МЕЖДУНАРОДНЫЕ И КОНСТИТУЦИОННЫЕ ОСНОВЫ ПРОИЗВОДСТВА ПО УГОЛОВНЫМ ДЕЛАМ В ОТНОШЕНИИ НЕСОВЕРШЕННОЛЕТНИХ

The relevance of the study is due to the importance of finding effective and at the same time humane measures to combat crime of minors that meet the generally accepted principles and norms of international law. The purpose of the study is to consider the international legal norms that form the basis of standards in the field of implementation of the rights of minors involved in the orbit of criminal proceedings. In this study we consider some aspects of the implementation of fair minor’s justice standards in the Russian criminal procedure legislation. Also we analyze the provisions of key regulations in the field of juvenile justice, the practice of their application, as well as doctrinal approaches to the prospect of further improvement of the criminal procedural form of legal proceedings against minors. On the basis of the analysis we highlight the features of the proceedings in the category of criminal cases: criminal prosecution can be initiated only after reaching a certain age; expanded the subject of proof; the production involves additional participants; the establishment of additional grounds and conditions for the use of coercive measures related to the restriction of freedom; confidentiality, which determines the characteristics of the trial; expansion of the range of issues resolved by the court in sentencing. It has been concluded that the existing domestic criminal proceedings the order of proceedings in criminal cases among minor, despite the peculiarities that distinguish it from the general procedure, it is impossible to recognize the self-differentiated procedure.

ISSUES OF ENSURING PROCEDURAL INDEPENDENCE OF AN INVESTIGATOR IN RUSSIAN CRIMINAL PROCEEDINGS

The article analyzes certain problems of ensuring the procedural independence of an investigator in the Russian criminal process. The author notes the inner inconsistency of the norms of modern Russian criminal procedural legislation concerning the participation of an investigator in criminal proceedings, which raises problems when trying to apply said norms practically. The author also claims these issues of the criminal procedural legislation to be one of the factors reducing the procedural independence of an investigator. The article examines the influence of prosecutors supervision, as well as departmental and judicial control on the procedural independence of an investigator. There is an emphasis on the considerable debatableness of these issues. The article sees the investigator's discretion as the main way of realizing his procedural independence. Summing up, the author makes proposals on improving Russian criminal procedure legislation and disposing of duplicate control over the investigator's activities.

Russian Llaw and International Standards of Pre-Trial Proceedings in Criminal Cases Against Minors

Pre-trial proceedings in criminal cases against minors are conducted according to general rules established by law. At the same time, international statutes set out special requirements aimed at the comprehensive protection of the rights and lawful interests of the above-mentioned category of people. Their comparison allowed the authors to identify a number of discrepancies and draw conclusions regarding the key aspects of improving Russian criminal procedure legislation regulating the pre-trial proceedings against minors. Pre-trial investigation against minors should only be conducted in the form of preliminary inquiry. Besides, all of its stages should provide conditions for the correction of juvenile delinquents, including the stage of pre-trial investigation. Organizations working outside the scope of criminal proceedings, including NGOs and human rights groups, should work with minors and correct their behavior irrespective of the process and results of pre-trial investigation and court proceedings. The law should include the provision for the confidentiality of information about the underage suspect and accused. In particular, the law should state that no information regarding the underage suspect or accused can be made public, even if this information will in the future result in court proceedings during a closed hearing. Before the case is referred to the court, the investigator or detective should decide if it is possible to terminate the criminal case (criminal prosecution) against the accused minor. Besides, the criminal case (criminal prosecution) can be terminated both on special grounds if coercive measures are taken against such a person, or on other grounds stated by law and applicable to adults.

IMPROVEMENT OF GUARANTEES FOR THE SUPPORT OF the RIGHTS of MINORs IN CRIMINAL PROCEDURES BY IMPLEMENTing the IDEAS OF JUVENILE JUSTICE: LEGAL ASPECTS

Russia's accession to the Council of Europe and the signing of relevant international agreements contributed to the development of regulations on the rights of a child and branching juvenile law in the Russian legal system. Meanwhile, it should be pointed out that processes of legal regulation in the field of the formation of the legislative basis of juvenile law are in some way incomplete, which is the result of the imperfection of the existing legal acts affecting the rights and interests of minors. The issue of the expediency of creating juvenile justice in Russia is being discussed for a long time in the legal papers and at the legislative level. The provision on the formation of juvenile justice was included in the 1991 Concept of Judicial Reform in the Russian Federation. Later, different authors worked out several draft Laws on Juvenile Justice. At parliamentary hearings in the State Duma, the prospects of creating juvenile courts in the system of courts of general jurisdiction were considered. Meanwhile, such close attention to the indicated problem does not have a significant impact on the increasing child and adolescent crime in the country. The plurality of the above-mentioned legal problems and their multifaceted nature necessitate improvement of justice in relation to minors. This raises a number of theoretical, legal, practical and ethical issues that require studying and adopting relevant decisions at the legislative level. Therefore, studies that allow analyzing the current Russian criminal procedure legislation from the point of view of the possibility of functioning of juvenile justice on its basis relying on international legal standards are really urgent. The criminal procedure legislation in the Russian Federation as a whole is focused on continuous improvement in the context of ensuring the maximum number of procedural guarantees of the legality of criminal proceedings, as well as observance of human rights with the application of their minimum restrictions, including in relation to such category of persons involved in criminal proceedings as minors. In this article, the authors consider the institution of juvenile justice as an additional guarantee of securing the rights of minors in criminal proceedings in Russia, propose the ways to address current and debatable aspects of this problem. The paper analyzes the current criminal procedural legislation, decisions of the Plenums of the Supreme Court of the Russian Federation as well as the judgements of the courts in specific cases concerning the problems of the study. In the study of individual topics of the issue, scientific literature as well as statistical data have been used. The conclusions and proposals made in the work are aimed at improving the current legislation of the Russian Federation and law enforcement practice, and can also be used in the educational process.

On Interchangeability Between the Suspension and Restraints in the Form of Detention and House Arrest Under Russian Criminal Procedure Legislation: Controversial Issues of Theory and Enforcement Practice

On Interchangeability Between the Suspension and Restraints in the Form of Detention and House Arrest Under Russian Criminal Procedure Legislation: Controversial Issues of Theory and Enforcement Practice

On interchangeability between the suspension and restraints in the form of detention and house arrest under russian criminal procedure legislation: controversial issues of theory and enforcement practice

On interchangeability between the suspension and restraints in the form of detention and house arrest under russian criminal procedure legislation: controversial issues of theory and enforcement practice

ОСОБЫЙ ПОРЯДОК КАК ИНСТИТУТ, НЕ ИМЕЮЩИЙ АНАЛОГОВ В ИСТОРИИ РОССИЙСКОГО УГОЛОВНОГО ПРОЦЕССА

The article is devoted to an up-to-date problem of special procedure regulated by Chapter 40 of the Criminal Procedure Code of the Russian Federation. The relevance of this problem is caused by the fact that nowadays up to 70 % of criminal cases are settled by means of special procedure, according to court statistics. Moreover, legislators continue to develop new institutions of criminal procedure which lead to the special procedure of hearing regulated by Chapter 40 of the Criminal Procedure Code of the Russian Federation (simplified inquiry, pre-trial agreement on cooperation). The main aim of this research is to investigate whether the institution of special procedure is adequate to Russian criminal procedure and its historical roots. The author analyses a well-spread opinion that special procedure has deep roots in many historical law documents such as Russkaya pravda, the Statute of Criminal Procedure of 1864, etc. As a result, it is stated that there are no sufficient foundations for such a point of view as, according to the Criminal Procedure Code of the Russian Federation, special procedure, regulated by Chapter 40, is based on the formal confession of guilt made by the accused. Nowadays this plea is not regarded as evidence. On the other hand, Russian criminal procedure legislation up to the RSFSR Criminal Procedure Code of 1960 considered confession of guilt made by the accused as perfect evidence. Such an approach was mainly based on the theory of formal evidence. Then the author comes to a conclusion that special procedure is similar to plea bargaining well-spread in the US. This conclusion is based on the same nature of these two institutions where each considers confession of guilt made by the accused as a sufficient foundation for conviction; there is no need for investigation in court; and there are some benefits for the accused who confessed guilt. Thus, the author concludes that special procedure is a new institution in Russian criminal procedure which has no historical background, and that special procedure is similar to plea bargaining. This conclusion can be used in order to reform Russian criminal procedure legislation.

Problems and Prospects of Reforming the Russian Criminal Procedure Legislation

The countdown of modern judicial reform in Russia has been conducted since the adoption by the Supreme Soviet of the the Decree On the Concept of judicial reform in the RSFSR (The resolution of the SC of the RSFSR, 1991). However, the duration of the ongoing reforms has not led to the resolution of problems in regulation of criminal procedure. Established in the RF CCP of 2001 dualistic model of criminal procedure is constantly adjusting, while introduced in the criminal procedure law changes don't improve it, but rather mislead the law enforcer. Fundamental to the criminal procedure reform, in our opinion, is the question of the definition of the essence of criminal procedure, depending on the solution on want it is necessary to build logic of transformations. It seems that we should return to the original understanding of criminal justice as a system of guarantees of the rights and freedoms of the individual, in respect of which a criminal prosecution, and on the basis of this approach to design as a separate institutes of criminal procedure, and in General of the Russian criminal procedural form. It seems that we should return to the original understanding of criminal procedure as a system of guarantees of the rights and freedoms of the individual, in respect of which a criminal prosecution, and on the basis of this approach to design a separate institutes of criminal procedure, and in general the Russian criminal procedural form. DOI: 10.5901/mjss.2015.v6n3p306