scholarly journals Preliminary Hearing Judge

2020 ◽  
Vol 5 (1) ◽  
pp. 35
Author(s):  
Lirime Çukaj (Papa) ◽  
Denisa Laçi
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Judicial System ◽  
Main Task ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Provisions ◽  
Italian Law ◽  
Preliminary Session ◽  
The Impact

A new figure in the judicial system was foreseen in the legal amendments undertaken in the Code of Criminal Procedure, by law no. 35/2017, in the framework of the Justice Reform. The Code of Criminal Procedure has been changed in various aspects, including in here the changes that are related with the subjects of the criminal proceedings. I have previously set out what are the problems that emerged in the criminal process in general, and in the Preliminary phase of Investigation in particular, to understand the effects of this figure and the reason for it to enter into the judicial system. This preliminary investigation control based in ower law now is made by the Preliminary Hearing Judge (PHJ) and the Preliminary Investigation Judge (PIJ). The main task of this article, is to determine the impact that the PHJ has had on the progress of a fair and complete criminal process, since it has been sanctioned by law and has begun its functions. On the other hand what are the issues that this subject presents regarding the functions that the law attributes and their implementation in practice? The main focus of this paper is precisely those legal provisions that have provided for the manner in which this procedural subject operates, to further understand its impact on the criminal process in general and on the preliminary investigation phase in particular. An important aspect is making an overview of the Italian law from where we are based to foresee this judicial figure. After a comparison between these legal provisions we came in conclusion of the problematics that PHJ presents. We outline, at the end of the study, our conclusions arising from the examination of the preliminary session and PHJ, as well as some recommendations that I consider necessary for the process of criminal proceedings, in the light of the changes that have taken place.

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

2017 ◽  
Vol 21 (5) ◽  
pp. 178-184
Author(s):  
T. K. Ryabinina
Keyword(s):  
Russian Federation ◽  
Legal System ◽  
Criminal Procedure ◽  
The United States ◽  
Anglo Saxon ◽  
Criminal Process ◽  
Legal Provisions ◽  
The Russian Federation ◽  
Anglo American ◽  
The Impact

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.

scholarly journals PROBLEMS OF APPLICATION OF CRIMINAL PROCEDURE RULES ON THE PARTICIPATION OF A SPECIALIST IN PROCEDURAL ACTIONS DURING THE PRELIMINARY INVESTIGATION

2021 ◽  
Vol 31 (3) ◽  
pp. 522-527
Author(s):  
O.V. Chelysheva ◽  
A.V. Shakhmatov
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Clear Distinction ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Complex Problems ◽  
Special Knowledge

The article examines the complex problems of the participation of a specialist in the production of procedural actions during the preliminary investigation. Conclusions are drawn about the need for a clear distinction between the functions of a specialist and an expert in the process of involving them in investigative actions, about the independence of a specialist in criminal proceedings. The authors also consider it necessary to classify such participants in the criminal process as a teacher and a psychologist as specialists. It is noted that the criminal procedure legislation does not require a detailed differentiation of the functions of a specialist, since, depending on the type of investigative action, the assistance of a specialist can be of a diverse nature. In various investigative actions and at their various stages, it can be of a consulting nature or the nature of performing physical actions that require special knowledge, skills and abilities.

Digital Transformation of Russian Criminal Proceedings

2020 ◽  
Vol 2 (3) ◽  
pp. 86-99
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Theoretical Basis ◽  
New Technologies ◽  
Digital Technologies ◽  
Criminal Procedure ◽  
Digital Transformation ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Method ◽  
Criminal Procedure Law ◽  
The Impact

Introduction. Currently, in most states, criminal process undergoes a transformation under the influence of digital technology. However, compared to other types of legal proceedings, criminal process is more conservative and less inclined towards the modernization of information. Despite this, problems of digitalization of criminal proceedings are being actively investigated by scientists. In some states, practical use of digital technologies in criminal proceedings has already been attempted, which requires study. Theoretical Basis. Methods. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted to the problems of introducing informational technologies into criminal proceedings. Comparative legal analysis revealed the general directions in the digital transformation of the criminal process in modern states. Based on the formal legal method and general scientific methods, the features of the consideration of criminal cases by the courts in the context of the active introduction of new technologies are investigated. Results. The article reveals promising directions for introducing digital technologies into the Russian criminal process. The impact of the COVID-19 pandemic on the activity of courts for the examination of criminal case materials is assessed. Discussion and Conclusion. The digitalization of criminal proceedings ensures their optimization and can transform the mechanisms of protecting and ensuring the rights of participants in the process. Modern technologies can be used during certain stages of criminal proceedings and in the making of procedural decisions both in judicial and in pre-trial stages. However, further scientific research of the issues under consideration, as well as preparation of conceptual suggestions to the legislator with the purpose of changing the norms of the current criminal procedure law are necessary.

scholarly journals ON A PROSECUTOR AS A SUBJECT OF PROVING ON PRE-TRIAL STAGES OF A NATIONAL CRIMINAL PROCEDURE

2020 ◽  
Vol 12 ◽  
pp. 27-30
Author(s):  
Aleksey A. Zakharyan ◽  
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Scientific Methods ◽  
Foreign Countries ◽  
The Subject ◽  
Forensic Tools ◽  
The Right

The participation of the prosecutor in the criminal process covers both his judicial and pre-trial stages. It is well known that the prosecutor in the Russian criminal process acts as the subject of evidence, not only as the state prosecutor, but mainly as the person conducting the criminal process or observing (supervising) his proceedings in the pre-trial stages of criminal proceedings. In the doctrine of the Russian criminal process, starting with the Charter of the Criminal Procedure of 1864 and up to and including the modern Code of Criminal Procedure of 2001, the prosecutor, to one degree or another, acted as a full-fledged subject of evidence in the preliminary investigation. In the current legal regulation of the prosecutor, despite a number of sign if I can t deformations of his procedural status, it can be attributed to full-fledged subjects of evidence. After the well-known reform of June 5, 2007, which significantly affected the procedural status of the prosecutor at the pre-trial stages of the criminal process, the prosecutor, in the opinion of many well-known procedural scientists (the positions will be given in the presentation of the material), ceased to be a full-fledged subject of proof, since the participation of the prosecutor in evidence is associated with the availability of authority to collect, verify and evaluate evidence. The Russian prosecutor is deprived of forensic tools, he does not have the right to independently collect evidence by carrying out investigative actions, and in relation to the investigation he is deprived of even the authority to give the investigator binding instructions on collecting and verify in evidence. Based on the objectives of the study, the author assesses the content of the powers of the prosecutor as the subject of evidence in the pretrial stages of Russian criminal proceedings When writing the article, the author used general scientific methods (analysis, induction, deduction and others and private scientific methods (formal logical, comparative, legal). Based on analysis of the latest trend since forming the pre-trial stages of the criminal process of foreign countries, it is proposed to clarify the procedural status of the prosecutor in pre-trial proceedings.

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

2021 ◽  
Vol 16 (4) ◽  
pp. 142-151
Author(s):  
V. I. Ivanov
Keyword(s):  
Criminal Law ◽  
Mutual Influence ◽  
Preliminary Investigation ◽  
Hierarchical Structures ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Procedural Law ◽  
Goals And Objectives

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

scholarly journals Legacy of M. S. Strogovich and Modern Problems of Functional-Legal Construction of Criminal Pre-Trial Proceedings

2020 ◽  
Vol 17 (4) ◽  
pp. 495-513
Author(s):  
Yu. V. Derishev
Keyword(s):  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
Scientific Heritage ◽  
125Th Anniversary ◽  
Criminal Procedure Law ◽  
Definition Of

In November 2019, the world legal community widely celebrated the 125th anniversary of Professor M. S. Strogovich, who, according to his scientific colleagues and students, was a scientist who was “ahead of time”.This article provides a retrospective and comparative analysis of the positions of M. S. Strogovich and his colleagues on certain problems of domestic criminal proceedings, in particular its pre-trial phase, in the context of the direct influence of the scientist's scientific heritage on the development of modern criminal procedure law. The Author of the article particularly interesting views of the scientist and his participation in discussions related to defining the essence and purpose of the preliminary investigation, the implementation of the functions of preliminary investigation in relation to criminal prosecution, the problems of implementation of the principles of presumption of innocence and the adversarial nature of pre-trial proceedings in criminal cases, and, finally, the General Manager of the “investigative case” in modern Russia.M. S. Strogovich consistently adhered to the idea of the need to develop and strengthen procedural guarantees of individual rights, guarantees of justice, and this can be seen in this article. Thus, defining the essence of the criminal process as a system of actions of the relevant officials and the procedural legal relations that arise in connection with them, which in itself was a serious “scientific courage” of those years, M. S. Strogovich particularly defended the position that all participants in criminal proceedings are subjects of the rights granted to them and the duties assigned to them, and they should not be considered objects of unilateral power of officials. This idea has become widespread and generally accepted as the basic definition of domestic (Soviet and Russian) criminal proceedings.The article analyzes M. S. Strogovich’s scientific steps on the conceptual turn from revolutionary-radical ideas about the construction of criminal proceedings to its classical canons and traditions of the Russian criminal process, On the basis of which the conclusion is made about the indispensable use of the scientist's legacy in modernьRussian procedural studies.The research of M. S. Strogovich’s legacy carried out in the article will fully allow to rethink the modern system of criminal proceedings in a new way, can be used as a kind of key to finding solutions to law-making and law enforcement problems, for the further development of the national science of criminal procedure law.

scholarly journals Assurance of Evidence

2017 ◽  
Vol 6 (s2) ◽  
pp. 69-73
Author(s):  
Adrian Leka
Keyword(s):  
Relevant Literature ◽  
Preliminary Investigation ◽  
Sexual Exploitation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Trials ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Provisions ◽  
Procedure Code

Abstract This paper reflects the detailed theoretical and interpretative treatments of criminal evidence and the process of proving according to criminal procedural legislation, based on the Constitution and E.C.H.R. Theoretical and interpretive depeened treatments, are based on the scientific research closely connected to the judicial practice of the implementation of this legislation, the positions held by judicial practice. Special attention is paid to all criminal evidence, meaning, object, features, procedural rules of receiving, verification and evaluation of them throughout the penal process, the rights and obligations of the parties in this process. The implementation of legal provisions onto evidence, evidence search tools and the process of proving, by procedural subjects in judicial practice has recognized and shown the most important issues in relation to other instutitutet of criminal procedural law. The terminology used in this paper is supported and conditioned by the terminology used by the legislator in dispositions of the Criminal Procedure Code. Provision of proof is a relatively new institute in the criminal proceedings. It first became known in the procedure code of 1995, in order to preserve the value of the data found during the preliminary investigation. Providing of proof would be applied in all those cases where evidence risks to be damaged, disappear, et lost and receiving it can not be deferred until the trial. Regarding to the relevant literature in Albanian language, only few authors have mentioned it sporadically, not emphasizing the real importance of evidence assurance institute. Even in the commentary of criminal proceedings this institute is dealt with very little, in summary, if we refer to its importance. Assurance of proof is provided in the Criminal Procedure Code in Articles 316-322. In these provisions is expressed the whole procedure of securing evidence, from the definition of specific cases in which it might apply (Article 316 Criminal Procedure Code), continuing with the presentation of evidence and the application for evidence assurance and subjects legitimized in its appearance (Articles 317,319 Criminal Procedure Code), as well as the right of the court in disposition of this requirement. An important element to be treated is to determine the scope of the institute of evidence assurance. Often in practice it is said that the demand for evidence assurance, is applied more in criminal offenses smuggling of women for sexual exploitation, trafficking of minors for other exploitation purposes, sexual relations with minors etc. In this paper is also treated the evidence assurance institute as well as that of the research means of evidence, these institutions closely linked to criminal trials and the process of proving. Of the most important institutes of criminal procedural law is that of "criminal evidence and proving process" which is rightly considered as the backbone institute of this right. The importance of criminal evidences and the process of proving is determined by the purpose itself and content of the criminal legislation. These institutes are directly related to the content and task of this science, to what is the process of detecting and proving the truth in criminal trials. While acknowledging the special place it occupies the evidence assurance institute it is not yet determined its importance really. In this brief theoretical material, I tried to treat through a slightly wider framework assurance of evidence focusing on its importance, theoretical and practical problems in determining the scope of these institutes.

scholarly journals USING THE TACTICAL METHODS OF INQUEST FOR THE CRIME PREVENTION

2019 ◽  
pp. 319-331
Author(s):  
S. Tomin
Keyword(s):  
Crime Prevention ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Integrated Approach ◽  
Criminal Proceedings ◽  
Law Enforcement Agencies ◽  
Criminal Process ◽  
Stage Of Development ◽  
Legal Psychology ◽  
Key Words Prevention

The article elucidates the basic tactical methods of inquest, aimed at solving problems of the crime prevention. On the base of evaluation the norms of the current legislation and scientific works in the area of criminal process, criminalistics and juridic psychology, the features of the solution are investigated in the production of this investigative action such task as establishing the circumstances that facilitated the crime. The author draws conclusions about the need for an integrated approach to understanding interrogation from the standpoint of the criminal process, criminalistics and legal psychology. This approach is about solving with the help of tactical methods of inquest the following tasks: to identify the circumstances that contributed to the commission of a criminal offense; to carry out individual preventive effects on the interrogated person in order to prevent him from committing crimes in the future. At the present stage of development of the criminal process, both the above and other areas of crime prevention are not properly implemented in the practice of the preliminary investigation bodies, as well as the proper scientific research. The main reason for this is seen in the absence in the Criminal Procedure Code of Ukraine of an indication of crime prevention as the task of criminal proceedings in general and the bodies conducting criminal proceedings, in particular. Considering the above, the necessity of restoring the provisions regulating the duties of law enforcement agencies in solving the task of crime prevention in the process of investigation and judicial review of a criminal case is substantiated in the norms of the criminal procedure legislation of Ukraine. Key words: prevention, interrogation, tactical receptions, causes and conditions of a crime, preventive and educational influence.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

DEFINITIONS OF CATEGORIES PURPOSE AND TASKS OF CRIMINAL PROCEEDINGS IN THE MODERN CRIMINAL PROCESS

2018 ◽  
Author(s):  
Svitlana Patiuк ◽  
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Modern Theory ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Norms ◽  
State Changes ◽  
The Individual ◽  
Goals And Objectives ◽  
Functional Purpose

"Definitions of categories, the goal and objectives of criminal proceedings in modern criminal proceedings" analysed the legal norms and provisions of doctrinal concepts to determine the goals and objectives of criminal proceedings. The author formulated conclusions and generalizations that since criminal proceedings are a sphere of state activity, it depends on the direction of the political course of the state, changes in state policy, which always leads to a change in the ideology of the criminal process as a whole, including the transformation of goals and objectives criminal proceedings. The purpose and objectives of criminal proceedings depend on the historical form of the criminal process, a common feature of which is the ratio of freedom (interests) of the individual and the state, expressed in the procedural position of the main participants in the process. Criminal procedure legislation and doctrine define the resolution of a dispute (conflict) between the state and the accused arising as a result of the commission of a crime as the goal of the criminal process in most countries in which the adversarial nature of criminal proceedings prevails. As the goal of criminal proceedings in the modern theory of criminal procedure, it is proposed to consider the protection of the individual, society and the state from criminal offences in the settlement of criminal-legal conflicts arising as a result of these offences. The goal in the criminal process determines the setting of tasks and represents the ultimate conclusion from the sum of all the tasks being implemented. The task of criminal proceedings should be determined taking into account the functional purpose of the subjects of criminal proceedings, and therefore the task is the fulfilment of his duty by a participant in criminal proceedings, which is determined by his functional purpose, based on the principle of competition of the parties.

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