Russian Criminal Procedure Research Articles

The Discursive Nature of the Prosecution and Defense

Introduction: the adversarial nature and equality of the parties are defined as the main principles of Russian criminal procedure (Part 3 of Article 123 of the Constitution of the Russian Federation, Article 15 of the Code of Criminal Procedure of the Russian Federation). The Constitutional Court of the Russian Federation defines the equality of the parties as the basis for the formation of the necessary guarantee of defense and fair trial of the case and states that the latter is impossible if the court has not assessed on the merits all the arguments and circumstances presented during the trial by its parties on the part of the prosecution and defense and has not provided them with equal procedural rights. The paper deals with the study of certain aspects of the balance of such categories as legal liability, criminal liability, prosecution, and defense. Purpose: to analyze the trends formed in the doctrine related to the resolution of urgent problems in terms of establishing the correlation of such concepts: legal liability, criminal responsibility, criminal procedural responsibility, prosecution, and defense. Methods: the general scientific dialectical method of cognition, a systematic approach, as well as the general scientific (deduction and induction) and specific scientific methods (logical and legal analysis and synthesis). Results: the current issues of the theory and law enforcement practice regarding the nature, types, and structure of prosecution and defense in criminal procedure are investigated. Conclusions: despite the ongoing discussions regarding the nature of the prosecution and defense in court procedure, a significant number of issues remain unresolved and require further detailed scientific analysis. First of all, the study of the defense function, which contributes to the realization of the rights granted to the accused, should certainly contribute to the development of new theoretical approaches and legislative innovations.

Minority of a deed provided for by the criminal law: praxis legis, guae debet esse

Objective: to develop scientifically substantiated provisions on the insignificance of a deed provided for by the criminal law and to propose measures to improve legislation and law enforcement in this area. Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in development and functioning, which contributed to the use of the following research methods: a) general scientific (logical, systemic, analysis and synthesis, induction and deduction), b) special (documentary, practical, comparative-legal, formal-legal). Results: the work substantiates the conclusion that the recognition by an inquirer, investigator, prosecutor, judge of the insignificance of a deed provided for by the criminal law should be based on the following information: about the occurrence of all elements and signs of corpus delicti in the deed; about the infliction of small (minor) harm to law-protected interests in conjunction with the intent of the perpetrator aimed at causing such, including the lack of desire to cause harm, which excludes the existence of a reasonable amount of criminal-law harm. It is proposed to supplement Part 1 of Article 24 of the Russian Criminal Procedure Code with a new ground for refusal to initiate criminal proceedings (termination of criminal proceedings), namely, the insignificance of the deed, and to consider it as a circumstance excluding criminal prosecution of a suspect (accused). Scientific novelty: the following means to distinguish a minor act from a crime were substantiated: a) the introduction of the “reasonable amount of criminal-legal harm” category in the investigative and judicial practice, b) the need for law enforcement to establish objective and subjective conditions of minor significance of the deed, c) the proposal on modernizing the criminal-procedural legislation. Practical significance: the main provisions and conclusions stated in the article can be used in scientific, pedagogical, law-making, investigative and judicial activity when considering the issues of application and improvement of the norm on the insignificance of a deed provided for by the criminal law, on the delimitation of such deed from a crime.

The Need for the Institution of a Pretrial Cooperation Agreement (Pretrial Plea Agreement) in the Russian Criminal Procedure

The Need for the Institution of a Pretrial Cooperation Agreement (Pretrial Plea Agreement) in the Russian Criminal Procedure

Proof and proving: legislative technique of criminal procedure laws of the Republic of Moldova and the Russian Federation

Proof and proving lies at the heart of criminal procedure regulation, significantly impacting the quality of law enforcement. In the post-Soviet states that once shared a unified legal system during the USSR dissolution, original criminal procedural laws emerged, exhibiting intriguting examples of evidence and proof rules’ layout. The purpose of the study is to discern the distinct design characteristics of evidence and prove institutions in the criminal procedure laws of the Republic of Moldova and the Russian Federation. The study’s methodological framework rests upon the general scientific principles of cognition such as objectivity, comprehensiveness, pluralism, and historicism. It employs historical, formal-logical and comparative methods, as well as document analysis. By comparing the normative models of evidence and proof institutions in Moldovan and Russian criminal procedure laws, a shared approach to the concept of evidence as a fusion of form and content becomes apparent. Distinct features of the Moldovan criminal procedure law include the systemic and structured arrangement of evidence rules, the formal adoption of the concept of a means of proof, and precise use of terminology. Conversely, the Russian criminal procedure law disperses evidence rules actoss general and specialized sections, leading to regulatory duplications and terminologicals inaccuracies. The historical roots of the evidence and proof institution layout trace back to November 20, 1864, Charter of Criminal Procedure. The Charter’s systematization of norms reflected the nuances of the pre-revolutionary Russian process. Despite the subsequent stage structuring evolution during the Soviet era and procedural form differentiation, the Soviet legislator retained the pre-revolutionary rules’ systematization on evidence. Presently, the current criminal procedure law maintains much of the previous regulatory content, highlighting essential areas for enhancement in evidence and proof institution design to allign more closely with the process’ stage structure and procedural form differentiation, thus mitigating potential abuse of rights. Addressing these design shortcomings is crucial. Rectifing Russian legistation following the comparative study allows drawing insights from Moldova’s legislative experience.

Participation of the defender according to 1864 Regulations of Criminal Procedure

In connection with the adoption of the Regulations of Criminal Proceedings, it became possible to study and study the procedural status of participants in criminal proceedings, including the defense lawyer. In this connection, the author examines his procedural status from the perspective of the rights and obligations available during the period under review, and also analyzes the possibility of him realizing his criminal procedural function. Examining the norms of the Regulations of Criminal Proceedings, the author comes to the conclusion that the defense attorney could enter into a criminal case by appointment or invitation, and had both his own rights and those granted to the parties as a whole. At the same time, the rights of the defense attorney, as a rule, correlate with the rights of the defendant, and the rules of law emphasize the simultaneous participation of the defense attorney and the defendant.The purpose of this article is to examine the position of the institution of defence during the period of duration of the significant document in the sphere of russian criminal procedure — Regulations of Criminal Proceedings. In this article the object of consideration is the legal rules of the Regulations of Criminal Proceedings, which the participation of the defender in criminal cases is subject to. As an example, the author gives legal practice of the Councils of Barristers, which could clarify the provisions of the Charter of Criminal Proceedings regarding the participation of a defense attorney in criminal cases

Russian Criminal Procedure to Protect the Rights and Legitimate Interests of Entrepreneurs

The article discusses changes in Russian criminal procedural legislation related to criminal proceedings on crimes in the economic sphere committed by entrepreneurs in connection with their entrepreneurial or other economic activities. It is noted that these changes are due to the general policy of the state aimed at increasing the economic activity of the population and accelerated economic development of the country as a whole. In this regard, the author provides critical statements by the country’s leaders regarding the current law enforcement practices. The article consistently sets out individual institutions of criminal procedural law affected by these changes. Thus, the features of initiating criminal cases for certain crimes in the economic sphere classified as cases of private-public prosecution are described. The general rules for conducting investigative actions, including those related to the seizure of electronic storage media in cases of this category, are described. Considerable attention is paid to the selection of preventive measures against entrepreneurs and general restrictions on the use of detention against them. Special grounds for termination of criminal prosecution of entrepreneurs in connection with their compensation for damage are described. The author notes that the process of improving legislation in this area is far from complete and will continue depending on the needs of practice.

On the issue of the introduction of information and telecommunication technologies in criminal proceedings

Assessing the development of Russian criminal procedure science in modern conditions of digitalization, the author seeks to understand what impact the use of information and telecommunication technologies can have on the development of criminal proceedings, ensuring human and civil rights and freedoms. Discussing the threats of the rapid implementation of IT technologies by the criminal community, it is concluded that it is necessary not only to counter criminal encroachments, but also to digitalize criminal procedures through the introduction of electronic criminal proceedings, electronic interaction of subjects of criminal prosecution with individuals and legal entities using cyberspace (messengers, information platforms), and the use of video conferencing. Attention is focused on an integrated approach to the formation of an information society and scientific and technological development, and some aspects of this approach are presented, implemented in the educational and scientific activities of the Moscow Academy of the Investigative Committee named after A.Y. Sukharev. Using the example of the investigator’s exercise of the right to appeal against the prosecutor’s decisions using information and telecommunication technologies, the author’s position on optimizing the timing of the preliminary investigation, procedural control, prosecutorial supervision and taking response measures aimed at protecting the rights of participants in criminal proceedings is argued. Considering legislative measures for the digital transformation of criminal procedure law, the author comes to the conclusion that they are aimed at improving criminal proceedings by introducing a new form of proceedings, simplifying the work of subjects of criminal prosecution, and providing additional guarantees to «non-professional» participants in criminal proceedings by ensuring their access to justice .

Restitution as a Prerequisite for Case Termination: Analyzing Conditional Exoneration in Russian Criminal Procedure

Restitution as a Prerequisite for Case Termination: Analyzing Conditional Exoneration in Russian Criminal Procedure

Механизм преодоления злоупотребления правом в досудебном уголовном производстве

Abuse of law is a complex legal phenomenon, quite heterogeneous and diverse in its manifestations. There is no consensus in science about its legal nature and essence, but scholars rightly say that such an act must be prevented and suppressed. The absence in the Russian Criminal Procedure Act of a prohibition of abuse of rights by participants in criminal proceedings, and hence of means to prevent and suppress such abuse, makes it very difficult to counter it, which creates the risk of prolonging the length of time in a criminal case, reducing the quality of its investigation and unduly restricting the rights and freedoms of participants in criminal proceedings. Authors offer their own vision of the legal nature of abuse of rights in criminal proceedings, cite typical examples of it, build a mechanism for overcoming abuse of rights in pre-trial criminal proceedings, naming its necessary elements and content, indicating the reasons for its creation. It is concluded that a legal basis for the establishment of such a mechanism in criminal proceedings is necessary. It is summarised that the introduction into the Code of Criminal Procedure of a prohibition against the abuse of rights parties to criminal proceedings will make it possible to counteract its manifestations by means of general and private prevention and the suppression of such an act.

Representation of a Minor Victim in Criminal Proceedings: Analysis of Federal and Regional (Stavropol) Legislation

Introduction. The current Russian Criminal Procedure Law provides for the institution of his representation to protect the rights and legitimate interests of a minor victim in criminal proceedings. This article is devoted to the analysis of federal and regional legislation providing for general and additional measures aimed at protecting the rights of minors by victims. Theoretical Basis. Methods. The theoretical basis of the study was the scientific works of domestic and foreign authors devoted to the representation of the legitimate interests of a minor victim in criminal proceedings, in particular, providing him with free qualified legal assistance. The use of the formal legal method of research allowed us to identify the features of the legal regulation of the entry into criminal proceedings of the representatives of the minor victim. Results. An overview of the most significant issues for law enforcement related to the provision of a representative-lawyer to an imperfect victim, including on a gratuitous basis, is presented. In particular, the differences, positive and negative sides of the regulatory regulation of the procedure for ensuring the participation of a representative-lawyer of a minor victim under the Criminal Procedure Code of the Russian Federation and the Stavropol Territory Law “On additional guarantees for the protection of the rights of minors recognized as victims in criminal proceedings” dated November 11, 2010 No. 94-kz. Discussion and Conclusion. The participation of a legal representative and a representative – a relative or representative – of another person to protect the rights and legitimate interests of a minor victim seems to be inadequate. The proper realization of everyone’s right to receive qualified legal assistance requires ensuring the participation of a representative-lawyer in the interests of a minor victim. It is proposed to legislate the participation of a lawyer as a representative of a minor victim as a case of mandatory participation in the criminal process of a representative-lawyer.

Классификация уголовно-процессуальных функций

Considering that researchers have different opinions on the determination of the content and quantity of criminal procedure functions in the Russian criminal proceedings, the article analyzes statutory and scientific approaches towards the review of the essence of these matters. Based on the results of the analysis, the author justifies her view on the concept of functions and the classification of such functions. The study is based on the mixed type of the Russian criminal procedure that is characterized by the legally established triad of procedural functions supplemented by their multitude and certain systematicity. To conclude, the author states the need for amendment of the existing concept of three criminal procedure functions.

Иммунитеты должностных лиц государств от иностранной уголовной юрисдикции: обзор позиций государств

Following the recent changes in the paradigm of the immunity of State officials within the customary international law, the article analyzes the submissions of States to the UN International Law Commission connected to Draft articles on the immunity of officials from foreign criminal jurisdiction. Based on national legislation and jurisprudence provided by States, an assumption is made about the possible universal scope of the Draft Articles, as well as an assumption about its applicability to the Russian criminal procedure.

Институт дополнительного расследования в законодательстве Российской Федерации и Республики Беларусь: истоки и тенденции развития

The paper analyzes the problem of overcoming the objectively existing contradiction between the institution of returning a criminal case for additional investigation and the adversarial principle. Despite the enshrinement of the principle of adversarial proceedings and equality of parties in Art. 15 of the Code of Criminal Procedure of the Russian Federation, the initially eliminated institution of additional investigation was soon restored in its previous form. This allows the court, instead of pronouncing an acquittal, to provide the investigator with an additional possibility to continue collecting accusatory evidence. The purpose of the work is to search for alternative ways to ensure the effectiveness of criminal proceedings complying with the principles of the Russian criminal procedure, including those tested in the Republic of Belarus. In the Republic of Belarus, the technique of changing the charge to a more serious one directly during the trial and eliminating the incompleteness of the preliminary investigation by suspending the trial proceedings to collect additional evidence is used as such method. Taking into account the dynamics of legal phenomena and legal means, using methods of historical and comparative analysis, the author of the paper studies the origins of the institution of additional investigation in the Russian Federation and the Republic of Belarus, analyzes its development, and compares the means of criminal procedural response to the errors of the preliminary investigation revealed during the trial. The study demonstrates the failure of the experience of both countries, as they have failed to free the court from its unusual duty to make up for shortcomings and eliminate errors in the preliminary investigation. The author concludes that it is necessary to search for fundamentally different means of improving the quality of the preliminary investigation directly during pre-trial proceedings.

CONSTITUTIONALITY OF THE INSTITUTION OF CRIMINAL PROCEDURAL PREJUDICE

The authors considered the institution of criminal procedural prejudice and its compliance with the Constitution of the Republic of Kazakhstan, as it has a multidimensional holistic nature, arising in order to establish the circumstances to be proved in criminal proceedings. The study reveals the role, place and content of prejudice in criminal proceedings in Kazakhstan based on the study of law enforcement practice and analysis of legislation of foreign countries. Some problematic situations arising from the application of prejudice in criminal proceedings, as well as issues of implementation of new regulations on prejudice in criminal proceedings, are considered. The authors recognize prejudice as an established means of solving problems arising in the judicial and investigative practice in the legal field. It is noted that despite the noticeable influence of Russian criminal procedure science and legislation on the formation of this institution in Kazakhstan, the domestic legislator and the scientific community maintain a conservative attitude to the institution of prejudice. During the period of active formation of national legislation, the problem of harmoniously designed procedural institutions should not remain unresolved, especially if they contribute to the most effective administration of justice. Recognizing prejudice as a large and in many respects complex theoretical and applied problem of the science of Kazakhstan criminal procedure law, which still remains poorly developed and therefore in need of thorough and comprehensive research. Interestingly, the topic of prejudice is still not included in university law curricula, but in textbooks on criminal procedure (criminal procedure law) it is rarely affected. In the criminal procedure norm itself, which enshrines prejudice, the legislator has not established clear mechanisms for its implementation, and therefore, the authors propose options for harmonizing criminal procedure law, as well as adjusting the provisions of criminal procedure legislation on prejudice, as part of the institute of evidence, taking into account advanced foreign experience.

SECRET INVESTIGATIVE ACTIONS: RUSSIAN AND FOREIGN EXPERIENCE OF LEGAL REGULATION

Approaches to legislative regulation in the criminal procedural codes of individual former USSRrepublics of the new institution of covert investigative actions are analyzed. Contradictory assessments ofthe reform of Russian criminal procedure legislation in this context are given, taking into account foreignexperience. There is a tendency to expand the legislative consolidation of the investigator's powers to usesecret methods of obtaining information in the interests of the investigation. The existence of prerequisitesfor more active use by the investigator of secret methods of solving and investigating crimes is substantiated.Their importance in the fulfillment of the investigator's duty prescribed in the Code of Criminal Procedureof the Russian Federation to take measures to identify the person who committed the crime is emphasized.The conclusion is made that there is insufficient scientific support for the introduction of the institution of covert investigative actions in the Criminal Procedure Code of the Russian Federation. Current directions ofscientific research in this area, which should be interdisciplinary in nature, are highlighted.

THE PLACE OF LEGAL NORMS ON APPEALING AGAINST ACTIONS (INACTION) AND DECISIONS IN THE CRIMINAL PROCEDURE LAW OF RUSSIA: PROBLEM STATEMENT

The article examines the criminal procedural norms governing criminal procedural appeal in the aspect of the main scientific directions on the topic under study. The purpose of the study is to determine the essence and the place of the legal norms of appeal in the criminal procedure law, the specifics of legal relations regulated by them. Materials and methods. To achieve the purpose of the study, the method of materialistic dialectics, logical, systemic and structural methods were used. The empirical basis of the study was made up of court decisions and the results of research performed by other authors. Study results. The nature of the emerging links between the legal norms of appeal in the Russian criminal procedure legislation is analyzed, the features of legal relations regulated by them are investigated, their place in the sectoral subject of criminal procedure regulation is determined. The main scientific directions on the subject under consideration, in conjunction with the author's conclusions, made it possible to identify a relatively independent area of the law on the topic under study. Conclusions. The author comes to the conclusion on heterogeneity of the legal norms of appeal, on different conditions for realizing the right to a complaint, depending on the stage of criminal proceedings and the subject of law. In connection therewith, a different legal regulation of legal relations in connection with the criminal procedure appeal is inevitable. The results of the study give the opportunity to conclude that the issues of appeal are not limited in their legal regulation by one universal legal institution of the industry and represent a more complex set of norms having relative independence within the branch of criminal procedure law.

Осовременивание российского уголовно-процессуального закона как жизненно важного инструмента правового регулирования

The reason for writing the article was the date – 20 years from the date
 of entry into force of the Criminal Procedure Code of the Russian Federation. This
 circumstance was used as a pretext to study the current state of its scope and the limits
 of legal regulation. Against the background of some historical generalizations and mention
 of radically changed fundamental provisions, he considered the theoretical concept and
 the most significant innovations of the Russian criminal procedure legislation, thanks
 to which changes in the content and forms of law enforcement activity could occur, as
 well as positive changes in the mechanism of observance of human and civil rights and
 freedoms in criminal proceedings. The criminal procedure legislation itself is regarded
 as the expected result of many years of scientific research and painstaking legislative
 work. It has everything necessary for public recognition for many years, and recognizes
 the absence of ideological dogmas, which were saturated with its predecessors, as an
 important stylistic innovation. We believe that the Code needs to improve its wording. It
 is difficult to use it because of the many references in one article to others, the lack of
 detail of individual regulations and a number of systemic shortcomings.

Arrangements and Agreements at the Pre-Trial Stage in the German Criminal Procedure

Modern criminal procedure tends to employ the increasing number of various kinds of agreements, arrangements, which results, in the practical sphere, in the facts that special procedures displace ordinary investigation and the subsequent ordinary procedure of judicial proceedings. In the Russian criminal procedure, special procedures for making a court decision are becoming increasingly common with the consent of the accused with the charge brought against him or when concluding a plea agreement. In the American criminal procedure, the conviction of the accused based on his plea has become regular, and a full trial by the court is an exception. The Russian criminal procedure by its nature tends more towards the continental criminal procedure and historically German and French criminal procedures have had a great influence on its formation, thus, it seems interesting and informative to familiarize yourself with foreign experience, in particular with the German one. Russian and German criminal trials are based on the principle of legality, or lawfulness, where the investigation and consideration of the case are subordinated to one of the principles of the process: the comprehensiveness, completeness and objectivity of the investigation of the circumstances of the case. Recently, both Russian and German criminal trials have started using arrangements and agreements more. In contrast to the Russian criminal procedure, the German one faced the problem of arrangements and agreements much earlier. Therefore, Germany has already developed a well-established practice of their application and theoretical justification and it seems important to consider the German experience in terms of the application of arrangements and agreements in criminal proceedings in order to comprehend the designated problem.

Naczelne zasady procedury karnej w II RP

After Poland gained independence, it was necessary to unify many areas of law. There were three legislations in force in the area of criminal procedure at that time, i.e. the Russian Criminal Procedure Act of 1864, the Austrian Criminal Procedure Code of 1873, and the German Criminal Procedure Code of 1874. The Codification Commission, which was established in 1919, was responsible for the creation of the Polish codification. Its work resulted in the Code of Criminal Procedure issued in the form of a regulation, which came into force on 1 July 1929. The Code represented a mixed form of trial, with liberal tendencies manifesting themselves in it. It was based on the principles set out not only in the general provisions but also in the further parts. The principles of the criminal proceedings did not remain in a hierarchical relationship with each other. Conciseness, synthesis and a high level of legislative technique are the characteristic features of this very innovative codification.

Prospects for modernization of appeal proceedings in Russian criminal procedure: analysis of foreign experience

The article researches the problem of presenting new evidence on appeal. Part 6.1 of Article 389.13 of the Code of Criminal Procedure of the Russian Federation is analyzed. A comparison is made between Russian and German procedures and conditions for the presentation of new evidence to ensure a high standard of administration of justice in criminal cases. The characteristic features of the German criminal appeal are singled out and described, which can become a guideline for improving Russian proceedings in the courts of appeal. In view of the foregoing, the purpose of this study is to establish the essential features of foreign legal order in the indicated respect and to assess the possibility of formulating conclusions and proposals aimed at improving the domestic model of the criminal process based on the legislative and doctrinal experience of the related legal order. In this regard, at this stage, the main task is a systematic analysis of the appellate proceedings in Germany through the prism of legislation, doctrine and practice of law enforcement and, on this basis, an assessment of the domestic model of appeal in criminal proceedings. Due to the specifics of the study, the methodological basis is the comparative legal method in all its variety of manifestations as a complex methodological system. The study substantiates the ideas of a full-fledged appeal and the need for unconditional (free) presentation of new evidence in the Russian appeal. The result of the study and analysis were proposals for the modernization of criminal procedure law: the procedure for presenting new evidence in an appeal should be simplified.