Vol 3, No 4 (2017)

Full Issue

Events

FROM THE EDITORSHIP

Bezverkhov A.G., Taran A.S.

Abstract

24 октября 2017 г. ушел из жизни Семен Абрамович Шейфер - доктор юридических наук, профессор, заслуженный юрист Российской Федерации, почетный профессор Самарского государственного университета. В лице Семена Абрамовича Шейфера научное сообщество понесло невосполнимую утрату. Семен Абрамович был Человеком и Ученым, умудренным большим жизненным опытом, обладающим энциклопедическими знаниями уголовно-процессуального права, писавшим о болевых точках современной следственно-судебной практики. Профессор Шейфер снискал при жизни непререкаемый авторитет у отечественных и зарубежных процессуалистов, работников следствия, прокуроров, адвокатов, судей, коллег, аспирантов, студенчества. Круг научных интересов Семена Абрамовича был весьма разнообразен. Однако его постоянный научной любовью и увлечением были следственные действия. Без преувеличения можно сказать, что проблему следственного действия еще никому не удавалось так скрупулезно, как С.А. Шейфер, исследовать и широко осветить в специальной литературе.
Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):9
pages 9 views

Personalia

ON LIFE AND CREATIVE LEGACY OF THE PROFESSOR SHEIFER SEMEN ABRAMOVICH

Azarov V.А.

Abstract

The article is devoted to presenting separate, but very significant results of scientific activities of professor Sheifer Semen Abramovich. In particular, it discusses the forecasts of respected professor on the prospects of development of legislation on criminal proceedings, suitable options for reforming of its pre-trial phase, the conclusions of professor S.A. Sheifer on possibilities of improvement the effectiveness of preliminary investigation, strengthening of prosecutorial and judicial powers are interpreted.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):10-12
pages 10-12 views

«THE ESSENCE AND METHODS OF ASSEMBLING EVIDENCE IN THE CRIMINAL PROCESS»: SHINE AND VECTORS OF REALIZATION OF PROFESSOR S.A. SHEIFER CREATIVE HERITAGE

Grigoryev V.N.

Abstract

Professor S.A. Sheifer managed to develop a brilliant theory of gathering evidence in the criminal process, to identify the technology of collecting evidence, to present in detail the cognitive structure of the main among them – the investigative action. All creative heritage of Sheifer, in fact, is about how to find out the circumstances of the committed crime qualitatively, that is, what was formerly called the establishment of truth. And the modern process is imprisoned not for establishing the truth, but for punishing the suspects and accused, in most cases – without clarifying the actual circumstances. By inertia, theoretical battles continue to collect evidence. But this is not really necessary for the modern process. This is the paradox of modern justice. In this I see the tragedy of Sheifer’s creativity, the breakdown of his creative heritage, which in the conditions of «business justice» loses relevance. But I strongly believe that there will come a period when the ideas of Sheifer and the demands of Russian civil society in the sphere of combating crime will again be consonant. Then his ideas, laid on the basis of electronic technologies, will again be in demand in all their brilliancy and enduring intellectual magnificence.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):13-24
pages 13-24 views

IN THE DEVELOPMENT OF THE IDEAS OF S.A. SHEIFER ON THE WAYS TO OPTIMIZE THE SUBJECT COMPOSITION OF CRIMINAL PRE-TRIAL PRODUCTION

Derishev Y.V., Morozova O.S.

Abstract

The article deals with the problems associated with the development of a general concept of optimization of the system of participants in pre-trial proceedings in the criminal process in Russia. On the basis of highlighting the basic features of the program for improving pre-trial production (the formation of trends in the evolution of the institution, the reorganization of its functional and legal structure, the creation of a regime of real procedural independence of the investigator, leveling the contradictions in the operation of individual principles, etc.), the authors propose general criteria and a mechanism for optimizing the subject composition of this phase of criminal legal proceedings. The prerequisites and directions for improving the legal status of key participants are determined, and solutions of certain legislative and law enforcement problems are
proposed. A special analysis is devoted to the contribution of Professor Sheifer Semyon Abramovich to the solution of problems related to the optimization of the institutions of criminal pre-trial production, the influence of his writings on the formation of the scientific views of the modern scientific school of domestic processivism.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):25-30
pages 25-30 views

THE CREATIVE HERITAGE OF THE PROFESSOR S.A. SHEIFER AS THE BASIS OF MODERN UNDERSTANDING OF THE EXERCISE OF EVIDENCE IN THE SCIENCE OF THE RUSSIAN CRIMINAL PROCESS

Zaytsev O.A.

Abstract

The article presents some of the most significant scientific results of the creative activity of Professor Semen Abramovich Sheifer. The author made a generalized description of the work of well-known process scientists, developing his ideas on the problems of proof and evidence in the criminal process. Particular attention is paid to the current ideas about the possibility of establishing objective truth in a criminal case as a result of criminal procedural proof, the development of new approaches to the further development of the system of investigative actions. The analysis of the views of researchers on the resolution of problems arising in the criminal procedural activity of the investigator, as well as during pre-trial proceedings from the point of view of the formation and development of the investigative power and its relationship with the judicial and prosecutorial authorities was carried out. Some statements of scientists on the scientific creativity and personal qualities of Professor S.A. Sheifer are made. It is concluded that his scientific heritage will serve as a reliable support for the modern understanding of the doctrine of evidence in the science of the Russian criminal process and will contribute to the further development of the Russian theory of law.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):31-37
pages 31-37 views

S.A. SHEIFER ABOUT THE SYSTEM OF INVESTIGATIVE ACTIONS

Zaytseva E.A.

Abstract

In the article S.A. Sheifer’s contribution to the development of the doctrine about the investigative actions is analyzed. On the basis of understanding of investigative actions in narrow sense of this word, approach to investigative actions as to dialectic unity of form and content is shown, where as a form the procedure of informative and certifying receptions of subjects of proof established by the criminal procedure law, and contents – actually operations and receptions directed to establishment of circumstances of the studied event. The author divides worrying of respected scientist concerning attempts of modernization of system of investigative actions due to the introduction of detective activity in it as «special investigative actions». The fundamental difference of these two ways of knowledge of an event of the past is proved in the article. Inadmissibility of introduction to the law of criminal procedure of the alien sets of norms functioning by other rules, governing other public relations is reasoned. It is shown that the mode of implementation of the majority of detective activities can’t create appropriate guarantees of reliability of the obtained information, and it demands additional efforts on verification of these data and their transformation into judicial evidences.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):38-42
pages 38-42 views

S.A. SHEIFER. THE CONCEPT OF EVIDENCE FORMATION

Lazareva V.A.

Abstract

Passed away one of the most famous researcher in criminal proceedings modern Russia, honored lawyer of the Russian Federation, Doctor of Laws, professor Semen Abramovich Sheifer, who devoted his entire creative life to the exploration of the most pressing issues of the law of criminal procedure – proving, investigation, preliminary investigation issues. Developed over the years the concept of evidence has had and continues to have a significant impact on the development of national theories of evidence and determining the prospects for further reform of criminal proceedings. Analysis of theoretical heritage of the professor S.A. Sheifer is presented in this article.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):43-48
pages 43-48 views

ABOUT GATHERING, FORMATION, EXPLORATION AND USE OF EVIDENCE IN CRIMINAL PROCEEDINGS (CONTINUING THE WORK OF PROF. S.A. SCHAFER)

Rossinskiy S.B.

Abstract

The author of this present article tries to examine the structure (stages) of the working with forensic evidence in the criminal procedure.
Author of this article tries to continue the work of famous Russian scientist, dr. sci. (law), professor S.A. Sheifer – one of the most famous scientists in the field of theory and methodology procedure evidence law of evidence.
The author takes as a basis for methodological approaches to concept and essence of working with forensic evidence in the criminal procedure, which includes informative, objective assurance and argumentation (logical) aspects. The author considers it necessary to complement the classic structure of the working with forensic evidence (picking–inspection-evaluation) the new elements: formation, exploration and use of evidence.
This idea will allow us to reconcile the theory of criminal process and criminalistics.
This will have a positive impact on further improvement of legislation, investigative and judicial practice.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):49-57
pages 49-57 views

ON THE CREATIVE LEGACY OF PROFESSOR S.A. SHEIFER AND ITS IMPORTANCE FOR THE FORMATION OF SCIENTIFIC VIEWS ON THE PRODUCTION OF INVESTIGATIVE ACTIONS

Sementsov V.A.

Abstract

The article emphasizes the importance for modern criminal process of a creative heritage of professor Sheifer on the problems of carrying out investigative actions. The main directions of research undertaken by S.A. Sheifer on the most relevant aspects of the investigation: lack of legal interpretation and consensus about the concept of improvement and development of the system of investigative actions, the actual grounds of carrying out, to give the results of application of technical means during investigative actions of independent evidentiary value, about the controversy in the consolidation of Criminal Procedure Code control and record of negotiations as investigations on the inadmissibility of merging procedural and operational-investigative activities are investigated. It is concluded that along with other problems of the criminal process, still in demand by numerous re-searchers are those associated with the production of investigative actions, as one of the conditions of successful development of science in general.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):58-62
pages 58-62 views

S.A. SHEIFER ABOUT THE COGNITIVE ESSENCE OF THE DETENTION OF THE SUSPECTED

Tarasov A.A.

Abstract

When covering the problems of the system of investigative actions, S.À. Sheifer invariably included in their number the detention of the suspect, during which procedural fixation received important information for the case – the time, place and reason for the detention of a particular person. For such an approach, the Criminal Procedure Code of 1960 had legal and regulatory grounds. In the Russian Criminal Procedure Code of 2001 there are no similar direct instructions, but S.À. Sheifer under the current law insisted on the cognitive nature of the detention and the evidentiary significance of its protocol. At present, some authors have made judgments about the inaccuracy of the described position of S.À. Sheifer and proposed arguments that refute the possibility of classifying suspect as a consequence of collecting evidence, not only under the current criminal procedural law, but also in principle specificity of the procedural nature of this action itself. The article supports the position of S.À. Sheifer, critical judgments about the current practice of detaining a suspect and suggested ways to improve it.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):63-67
pages 63-67 views

EVIDENCES AND PROVING IN THE CRIMINAL PROCESS: SCIENTIFIC LEGACY OF PROFESSOR S.A. SHEIFER

Shadrin V.S.

Abstract

Proving in criminal cases, deservedly recognized as the core of the criminal process, was the sphere of increased attention of Professor S.A. Sheifer. His well-argued views on the concept and significance of evidence, the purpose and content of evidence constitute a significant legacy of the science of the domestic criminal process, which deserves careful analysis by contemporaries and future generations of lawyers. In this article, S.A. Sakharov retains its topicality and development. In the last years of his life, Sheifer presented ideas about the essence of evidence, their properties, content and form, as well as elements of the process of proof, first of all collecting evidence and ways to implement it. Scientific judgments of Sheifer are especially valuable in that they are tested "for strength" in the conditions of competition of ideas in the theory of evidence, the permanent change in the criminal procedural legislation and the ongoing search for a model of the criminal process more appropriate to the modern era of Russian statehood.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):68-73
pages 68-73 views

ON SUBJECT OF PROPERTY CRIMES

Bezverkhov A.G.

Abstract

The article examines the methodological issues of the crime subject as one of the objective features of the composition of criminal infringement. At the same time, the «real» concept of the pre-meta crime is subjected to critical analysis, according to which the material elements of the external world, above all things, should be understood as the subject of crime. It appears that the content of the subject of crimes against property (chapter 21 of the Criminal Code of the Russian Federation) is reasonably interpreted in the general doctrine of property crimes and explanations of the Plenum of the Supreme Court of the Russian Federation in broad terms, embracing both things (rec corporales) and other objects property relations (rec incorporales) in the part in which they constitute the economic value, have a value expression and are subject to monetary valuation. It is concluded that the subject of encroachments described in Chapter 21 of the Criminal Code of the Russian Federation should be considered property, property benefits and advantages in the form of: a) receipt of guilty cash and non-cash money,
documentary and non-documentary securities, currency valuables, other movable or immovable property (land plot, subsoil block, apartment or room in residential buildings,
non-residential premises, business or other object representing a property complex);
b) concessions (grantings) of property rights, including in their composition both the right to property, including the right of claim of the creditor, and other rights having monetary expression, for example, the exclusive right to the results of intellectual activity and the means of individualization equivalent to them; c) performing work (for example, performing construction or repair work) or providing services (for example, transferring tour packages purchased by the victim to a guilty person, repairing an apartment or car, constructing a dacha, etc.) that have monetary value; d) simplification of debt (refusal to demand repayment of debt through, for example, the destruction of a debt receipt); discounts from debts; deferrals or installments of payments; reduction in the amount of rent and other payments; obtaining preferential loans (reducing interest rates for the use of bank loans); the execution of the property obligation of the guilty party or other persons to the victim (for example, repayment of the debt); e) other complete or partial exemption from property obligations, as well as improper extraction of any other material privileges or advantages.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):74-79
pages 74-79 views

DOCTRINE OF INVESTIGATIVE ACTIONS ON THE THRESHOLD OF THE «DIGITAL WORLD»

Aleksandrov A.S.

Abstract

Investigative model of investigation of crimes and the system of investigative actions morally and materially outdated in modern conditions. Cybercrime, as an element of the digital world, dictates the transition to a new legal model of criminal procedural activity. The existing system of investigative actions can be replaced with one universal investigative action – obtaining digital information. The subject of carrying out this action can be both a competent state body and any person, but also a robot. In general, the function of preliminary investigation can be technologized and deformed, that is, it lacks a procedural, and even more so – investigative, shell. Only at the stage of submission to the court, digital information received by any entity, by any means, should become an element of the legal system – accusations or protection and thereby obtain legal status. The Prosecutor or the defender has the right to choose the form and method of presenting
information received in order to exclude reasonable doubts about its authenticity and usefulness.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):80-85
pages 80-85 views

ABUSE OF RIGHTS IN CRIMINAL PROCEEDINGS: SOME RESULTS OF THE STUDY

Andreeva O.I., Trubnikova T.V.

Abstract

The article presents the results of a study of law enforcement practice, carried out in 2016 – 2017 on the project «Abuse of the right in criminal proceedings: systemic and nonsystemic manifestations, their prevention and suppression». The subject of the study were materials of archival criminal cases, materials of appellate and cassation proceedings, complaints filed in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, published court decisions and materials of complaints in the archives of the Constitutional Court of the Russian Federation. The article describes the situations that are considered or can be considered as abuse of the right by the participants in the criminal process, systematizes the identified forms of abuse of law, estimates the prevalence and nature of these forms (systemic / non-systemic), identifies the causes and conditions that contributed to a number of situations of abuse of rights, their relationship to the quality of the current law is shown, the best and worst measures of response to the abuse of law, used in practice.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):86-94
pages 86-94 views

CRITERIA OF RELEVANT POSITION TO THE SYSTEM OF PRINCIPLES OF THE CRIMINAL PROCESS IN RUSSIA

Barabash A.S.

Abstract

The chapter № 2, which is called «Principles of criminal justice», in the current Code of Criminal Procedure in the Russian Federation is included. Some authors are satisfied with this and believe that each of the norms of this chapter formulates this or that principle, but there are not so many norms. Most of it, starting with their understanding of the principle, offers a different number. The author of this text also has its own idea of what should be put into the content of the concept of «principle». Firstly, it is requirement to activities, the implementation of which guarantees the achievement of the goal of criminal process. With the help of this approach from the mass of norms-requirements are exuded those without realization of which it is impossible to obtain the result or the received result can not be accepted. The very concept sets the criterion for assigning this position to the system of principles. But each result requires an additional verification. For this purpose, developments in the theory of systems were used. From the standpoint of systems approach, any activity, including criminal procedure, can be regarded as a system. Based on the fact that principles should be built into
the activities of elements, it is as systemic as system activity itself. Therefore, in the case of analysis from the position of compliance with the criteria of the element of the system we can determine what the concept is. Authors, who used the systems approach to solve the problem in question, do not differentiate the concept of the system and system-forming signs. In this text it was done and it was made possible to determine the criteria for assigning provisions to the system of principles and to confirm the accuracy of what we had already allocated to in this concept.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):95-99
pages 95-99 views

CRIMINAL PROCEDURE LEGISLATION IN 2017

Belonosov V.O.

Abstract

The article considers the problem of state criminal law procedure and the quality of insertion
of changes. The reason was the adoption in 2013 and 2014 annually 25 and 30 laws, respectively. The state of Criminal Procedure Law in 2015 and 2016 were subjected by the author to the analysis of сentral publications. This article is the analysis of the changes adopted in 2017, continues this tradition. During the past year 14 laws reforming the Code of Criminal Procedure were adopted, 4 decisions of the Constitutional Court of the Russian Federation recognized that the criminal procedure rules are partially inconsistent with the Constitution of the Russian Federation. During the entire period of its existence, the Code of Criminal Procedure has varied 222 laws and was corrected 27 the Decisions of the Constitutional Court of the Russian Federation, and in general, 249 normative legal acts. The characteristic again of the changes is interesting: the way they are reasoned and consistent, if they improves the criminal procedure regulation, as well as the interests of citizens or agencies, if they do not produce any contradictions and gaps? It was noted that despite the trend towards stabilisation of the Criminal Procedural Law it remains highly unstable changing monthly 1.2 law. The promises of deputies to tighten the practice of amendment in the Code of Criminal Procedure were not fulfilled – no more than 1 time per year. The interests of agencies in lawmaking is dominated by almost 2 times above the interests of citizens. Inconsistencies, contradictions, omissions are continues to be. However, the legislator has chosen the right way for stabilization, although it is not consistent. Attention to the changes in criminal procedure legislation is lawful, but it must not be weakened.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):100-104
pages 100-104 views

ON THE SIMPLIFICATION OF CRIMINAL PROCEEDINGS, INVESTIGATIVE AND OTHER PROCEDURAL ACTIONS

Gladysheva O.V.

Abstract

One of the main vectors of modern development of Russian criminal procedure is the simplification of procedural forms. Its implementation takes place in rather difficult conditions: in the absence of theoretical certainty in matters of fact, the combination of performance criteria, scope and limits of simplification. However, there is another aspect that impedes this process – incoherence of realization of simplification of procedural forms, in which one procedure combine both General and more simple forms, and case from the production of any procedural action is considered as the simplified form. At present, the trend of simplification has not touched a trace of governmental action, although their production, for example, when an abbreviated form of inquiry, complicates the procedure attached to this form of inquiry combined character. It is proved that the procedure
of investigating governmental action is subject to improvement in the direction of simplification at the expense of internal resources, elimination of elements of the form, obsolete. With the simplification of the procedure of certain forms of pre-trial proceedings should make more use of the potential of other procedural actions aimed at obtaining evidences.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):105-109
pages 105-109 views

THE DOCTRINE OF THE PROSECUTION (INVESTIGATIVE) POWER: SAMARA AND NIZHNY NOVGOROD VARIANTS

Goryunov V.Y., Sherstnev V.B.

Abstract

The classical doctrine of the accusatory power of state found its development in the development of the Samara and Nizhny Novgorod law schools. This is the doctrine of how criminal activities should be organized by criminal procedural means. The article analyzes the peculiarities of the Samara doctrine of «accusatory-investigative power», the main exponent of which was Professor S.A. Sheifer. He contrasted the views of Nizhny Novgorod scholars on the prosecution authorities, which should be implemented in adversarial criminal proceedings. The authors of the article believe that the reform of preliminary investigation of the classical model of the accusatory authority is in the interests of progressive state and legal development. The prosecutor must formulate and file a charge (criminal action) in court, and the investigator must assist the prosecutor in obtaining evidence of the charge.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):110-112
pages 110-112 views

ON THE ISSUE OF HIRING A SPECIALIST BY A DEFENSE ATTORNEY DURING THE PRE-TRIAL STAGE (IN THE LIGHT OF THE AMENDMENTS INTRODUCED BY THE FEDERAL LAW № 73-FZ DATED APRIL 17, 2017)

Kasatkina S.A.

Abstract

The article is about a study of the problem of criminal defendants not being able to properly exercise their right to participate in the pre-trial investigation by means of hiring legal council
(specialist). The author analyzes the amendments made to the Criminal Procedure Code of the
Russian Federation that aim to improve the protections for criminal defendants with regards to
gathering evidence. The author then concludes that the law now has more passive guarantees
to ensure proper and diligent carrying out of their duties by persons charged with conducting
criminal investigations to ensure that the defendant can properly organize his or her defense. The
article pays attention to the lack in the current regulations of a legal mechanism that defendants
can use to exercise their right to hire a specialist. In that light, the article suggests that more
court supervision should be used over the actions (or inaction) and decisions made by officials
that may violate the right of the defendant to take part in the investigative process, which should
reduce prosecution bias in how evidence is collected and presented in criminal cases.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):113-120
pages 113-120 views

INSPECTION OF THE SCENE DURING THE INVESTIGATION OF VIOLENT CRIMES COMMITTED BY JUVENILES: CONDITIONS OF EFFECTIVENESS

Kornakova S.V., Sergeeva O.S.

Abstract

The article is devoted to the analysis of factors influencing the effectiveness of inspection of the scene during the investigation of violent crimes committed by juveniles. Taking into account the conditions which determine the quality and the performance of this investigative action, the article defines the objectives, membership, structure and the procedure for its implementation. Special features of each stage of the examination of the scene and their specificity are defined. Attention is drawn to the importance of criminalistic characteristics of a specific type of crime that is the seed information database of the activities of the investigator, therefore, allows to make specific assumptions about the nature of the events under investigation and to plan the course of examination of the scene. Authors draw a conclusion about dependence of the result of inspection of the scene on the professionalism of the investigator, his/her level of knowledge and ability
to recognize in a single case, the manifestation of common features of a certain type of crime.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):121-125
pages 121-125 views

PROBLEM OF SEIZURE OF OBJECTS AND DOCUMENTS AND FOR DISCOVERY OF INFORMATION CONTAINING BANK SECRECY

Kornukov V.M., Neverova N.V.

Abstract

The Russian legislation declares and to a certain extent guarantees the confidentiality of Bank accounts, deposits and perform operations on them. The questions of essence and the legal nature of Bank secrecy cause serious disagreements not only in the science of civil law since it is enshrined in the Article 857 of the Civil Code of the Russian Federation, but also in science of financial and banking law. The content of the Article 26 of the Federal law of the Russian Federation «Concerning banks and banking activities», which defines the mode of operation of banks and other credit institutions with banking secrecy, faulty from the point of view of the ratio of the contained terms and provisions of the regulatory structures used in other fields of law. This especially applies to the norms and provisions of the criminal procedure law governing investigation of offences and trial of criminal cases, the implementation of which provides for the production of actions related to the seizure of objects and documents containing Bank secrecy. The most common of these is the notch. In addition to the seizure of documents of the state bodies and officials conducting criminal procedure, is entitled to receive in credit institutions information about accounts, deposits of legal entities and individuals by sending them requests. However, the regulation of these powers of subjects of criminal process in the Criminal Procedure Code of the Russian Federation not at all consistent with the legal regulations contained in the Federal Law «Concerning banks and banking activities». They have a lot of differences as on the subjects of banking secrecy and its content and mode of provision. Many questions on this topic require research and additional legal regulation.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):126-130
pages 126-130 views

ISSUES OF LEGALITY IN THE CONSIDERATION BY THE PROSECUTOR OF THE CRIMINAL CASE RECEIVED WITH AN INDICTMENT

Kozyavin A.A., Makhova E.A.

Abstract

The indictment, drawn up by the investigator and agreed by the head of the investigative body,
perhaps, is the main procedural document authorities involved in criminal prosecution. This important procedural document contains an output to establish the fact of Commission of crime
by a person subjected to criminal prosecution. This is the conclusion of the investigation based
on collected on the case evidence listed in the indictment. The indictment, in contrast to other
procedural documents of the investigation, shall be made after the investigation is complete, all
installed on the case circumstances and is based on the totality of evidence, revealing in a logical
sequence as the essence of the charges against the accused, and the logic of the process of criminal procedure proof. This role of the indictment in a natural way in the current system of criminal procedure determines and the importance of prosecutorial supervision at the stage of verification of the results of the preliminary investigation and transfer of criminal case for trial on the merits.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):131-137
pages 131-137 views

REASONS AND GROUNDS FOR REGISTERING A REPORT ON A CRIME, INITIATING A CRIMINAL CASE AND INITIATING CRIMINAL PROSECUTION IN CRIMINAL CASES ON ENVIRONMENTAL CRIMES

Lukomskaya A.S.

Abstract

This article discusses the problems of the procedure for the adoption, registration and verification of a report on an environmental crime. The author substantiates the idea of delineation and investigation of the reasons and grounds for registering a report on a crime, initiating a criminal case and initiating criminal prosecution in criminal cases on environmental crimes. Describing the idea of unifying the stage of initiating a criminal case, considering it through the prism of the specifics of environmental crimes, it is justified to distinguish between the reason and the grounds for registering a communication, for initiating a criminal case, for initiating a preliminary investigation, where: any communication of a citizen with a request on the protection of his violated right; the basis for the registration of a crime report is any report of a crime provided for in § 43, Art. 5 of the Code of Criminal Procedure; the reason for initiating a criminal case is to consider any communication about a crime provided for in § 43, Art. 5 of the Code of Criminal Procedure, if it contains information about the event of a crime or about the circumstances indicating the event of a crime, and the absence at the time of their apparent falsity; the basis for the institution of a criminal case is to consider the identification of the event of the commission of a crime (in conditions of evidence), and the certification of an event indicating the commission of a crime (under conditions of non-obviousness); the reason for the initiation of a preliminary investigation, criminal prosecution on behalf of the state, consider a report on the crime provided for in § 43, Art. 5 of the Code of Criminal Procedure of the Russian Federation, according to which a decision was made to initiate criminal proceedings; the ground for initiating a preliminary investigation is to recognize the decision to institute criminal proceedings. The author comes to the conclusion that there is a need to develop a unified procedure for processing and sending structural units of environmental monitoring bodies to law enforcement agencies on the facts of criminally punishable violations of environmental and natural resource legislation.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):138-143
pages 138-143 views

PROBLEMS OF CARRYING OUT EXTRADITION VERIFICATION IN THE RUSSIAN FEDERATION

Markova T.Y., Yurkevich M.A.

Abstract

This article examines the problems that arise in the course of an extradition audit, which is an
integral part of the procedure for extraditing persons for the purpose of prosecuting or executing
a sentence. The authors consider cases of violation of the individual’s rights to freedom and personal inviolability, the principle of legality in the proceedings, as well as the principle of legal
certainty. The article criticizes drafts of normative acts designed to improve the procedure for
issuing, proposals are made to change them. The article points out the inadmissibility of unlimited time for conducting an extradition audit, the duty of the prosecutor’s office to be guided when determining the content of the charge by official acts that formulate the charge against a person in accordance with the law. It also points out on the need for a legislative definition of such grounds for denial of extradition, as the person’s refugee status, taking into account the meaning of the Convention on the Status of Refugees. It is stated that it is necessary to pass a judgment in all cases of imprisonment at the time of the extradition. The relevance of the chosen topic is due to the presence of legislative gaps in the regulation of the extradition institution and the need for their immediate elimination.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):144-148
pages 144-148 views

POTENTIAL DIRECTIONS OF REFORMATION THE STAGE OF CRIMINAL CASE INITIATION IN THE RUSSIAN LAW

Marina E.V.

Abstract

In the article author discusses about the current problems associated with the existence of the stage of initiation of criminal proceedings and practice of its application. The experience of the Republic of Kazakhstan and Ukraine on reforming this stage is examined. The author comes to the conclusion that the stage of initiation of criminal case can have several forms. In case when the initiator of criminal prosecution is the state the stage of criminal necessary and should be pre-tested. This stage is primarily to protect the rights of the suspect from unlawful and unjustified infringement of his rights. In those cases when the victim gives himself a statement to law enforcement authorities as, for example, when reporting the theft or fraud, stage of initiation of criminal proceedings needs to be simplified. In such situations the victim should be warned about criminal liability for false accusation and perjury and the statement shall immediately be subject to registration after which the investigator or the investigator performed a preliminary investigation.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):149-152
pages 149-152 views

MEASURES OF PROCEDURAL COMPULSION AT ABOUT THE PRODUCTION OF INQUIRY IN ABBREVIATED FORM

Nasonova I.A., Zotova M.V.

Abstract

An inquiry in abbreviated form is considered as a kind of inquiry that is carried out, as a rule, by the inquirer, in a criminal case instituted against a particular person on the grounds of one or more of the offenses set forth in paragraph 1 of part three of Article 150 of the Code of Criminal
Procedure. One of the stages of the shortened form of inquiry is the application of measures of
procedural coercion, to which special attention is paid in the article. The article states that the
application of such measures requires the establishment of additional procedural guarantees that
reduce the risk of violation of the rights of citizens. One of such guarantees in the future should
be the enactment in the law of a ban on the use of detention and home arrest. In favor of this
measure, the paper gives arguments. Among them: the implementation of a shortened form of
inquiry is carried out in cases of crimes that do not differ in high public danger; the confession of
a person’s guilt; the need to compensate for the lack of procedural safeguards laid down in any
model of simplified proceedings in relation to the suspect. In the paper, it is argued that these
circumstances, along with others, do not in any way support the exacerbation of the need for the
application of preventive measures, especially those related to restraining freedom.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):153-156
pages 153-156 views

LEGAL NATURE AND THE BASIS OF THE DECISION GUILTY VERDICT WITHOUT THE IMPOSITION OF PUNISHMENT

Popova I.P.

Abstract

Criminal procedure law, depending on the attitude towards punishment, provides for three types of conviction. At the same time, the law does not contain an exhaustive list of grounds for the resolution of each of them. The grounds for the decision of the conviction without the appointment of punishment in the law are not given at all. The study of judicial practice shows that sentences of this kind are decided by courts. In this connection, it seems important to investigate the nature and grounds of the resolution of one of the important final judgments.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):157-161
pages 157-161 views

PROBLEMS OF REFORMING THE RUSSIAN CRIMINAL PROCEEDINGS IN THE LIGHT OF DISCUSSIONS ON THE INTRODUCTION OF THE FIGURE OF THE JUDICIAL THE INVESTIGATOR OR THE INVESTIGATING JUDGE

Ryabinina T.K.

Abstract

The course of judicial reforms of the nineteenth and late twentieth centuries and the introduction of their provisions in life, we should remember about the amazing repetition of
history. The fact that both reforms, despite the obvious successes, to be called moving forward,
or at least not admit to inconclusive or erroneous, faced from the start the fledgling opposition.
The main argument in favour of derogations from the key provisions of judicial reform and then today is the mismatch of new procedural forms mentality of the Russian nation, its legal traditions and a particular historical moment and its national objectives. In General it should be recognized that the Judicial Statutes of 1864 were much more productive from the point of view of the procedural achievements of the revolution in domestic criminal proceedings, rather than reform of late XX – early XXI centuries. It creates a strong belief that you held in the autocratic Russia of the conversion procedure left us the legacy of "forever" but the novels of the Criminal procedural code of Russia of 2001 can not live for several decades. This is due to the fact that with all the shortcomings and trade-offs which cannot be avoided during the preparation and approval of legal regulations, the reform of 1864 was a coherent logical structure, the essence of which is the prosecution of organizational may not adjust an objective
knowledge of the circumstances of the offense and affect the power of the judiciary. Hence the
Institute of the judicial investigator, albeit with a certain cost, but objective and impartial, you can trust the goal of the criminal process, as the achievement of objective truth. They prevent excessive formal legal barriers in the course of evidence or in the system stages of the criminal process. Modern criminal procedure as a result of the reform 90-ies of XX century, just passed for a model of inconsistency, eclecticism and inconsistent implementation of ideas of the concept of "criminal complaint" in the traditional (pre-revolutionary times) the fabric of criminal procedure aimed at achieving the objective truth. As a result, democratic principles consistent with this concept, hopelessly bogged down in the old structure pre-trial and criminal procedure proof.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):162-168
pages 162-168 views

DEBATABLE QUESTIONS OF PRESENTATION FOR IDENTIFICATION

Tatyanina L.G.

Abstract

In practice there are questions connected with recognition by inadmissible proofs, protocols of identification in connection with abnormality of its carrying out, or incorrectness of fixing of results. The insufficient uregulirovannost the legislator of an order of carrying out identification brings in the subsequent to loss of one of proofs – the protocol of identification inadmissible that affects crime investigation process in general. For ensuring quality of carrying out presentation for identification it is offered to settle more carefully and consistently an order of carrying out this investigative action, to formulate the conditions necessary for its implementation. Need of settlement of an order of carrying out identification of animal and rare objects is proved. The offer on need of settlement of an order of presentation for identification with juvenile children for ensuring their physical and mental protection is proved. The position about a possibility of carrying out repeated identification when carrying out initial identification according to photos of more twelve-year prescription is proved.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):169-172
pages 169-172 views

PROCEDURAL PROBLEMS OF VIDEO RECORD APPLICATION IN CONDUCTING INVESTIGATORY ACTIONS WITH THE PARTICIPATION OF THE MINOR-YEAR LOST AND CERTIFICATE

Shestakova L.A.

Abstract

The article deals with the provisions of Part 5 of Art. 191 and part 6 of Art. 281 of the Code of Criminal Procedure related to the mandatory application of video recording during interrogation, confrontation, identification and verification of testimonies with minor victims and witnesses. One of the main prerequisites for the introduction of the analyzed norms in the Criminal Procedure Code of the Russian Federation was the international standards of criminal justice, which require the formation of such national legislative systems that would be maximally oriented towards caring for the physical and mental health and well-being of children. The purpose of the article is to identify and substantiate the advantages of using video recording in the course of investigative actions with minors. The author presents the results of a study of the materials of criminal cases
involving minors. It is established that practical workers do not use video recording, thus ignoring the requirements of Part 5 of Art. 191 of the Code of Criminal Procedure. The author of the article comments on the existing practice, suggests ways of solving the problems of applying the provisions of Part 5 of Art. 191 and part 6 of Art. 281 of the Code of Criminal Procedure.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):173-176
pages 173-176 views

ABOUT POSSIBLE ABUSES OF PRE-INVESTIGATION BODIES IN THE PRODUCTION OF SELECTED INVESTIGATIONS

Iunoshev S.V., Ubasev V.V.

Abstract

The article deals with the possibility of abuse by employees of preliminary investigation bodies in the course of investigative actions. The definitions of abuse of procedural powers are given and the applicability of this concept to actions carried out by the employees of the preliminary investigation bodies is confirmed. Some types of abuse are considered in the manufacture of such investigative actions as interrogation, presentation for identification, search and seizure. The authors propose ways to solve the problem of the abuse of powers by the employees of the preliminary investigation bodies in law enforcement practice, mainly by making appropriate changes to the criminal procedure legislation of the Russian Federation, and fixing new procedural safeguards to protect the rights and legitimate interests of participants in criminal proceedings. In particular,
the authors propose the introduction in the Code of Criminal Procedure of the rules on compulsory video shooting during the conduct of separate investigative actions, as well as reducing the possibilities for the investigator to make decisions on the conduct of investigative actions, guided solely by their own discretion.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):177-182
pages 177-182 views

Tribune of young scientist

JUSTICE AS A REQUIREMENT FOR THE JUDGEMENT OF COURT

Galkina E.A.

Abstract

A category of justice in criminal proceedings is described. The aim of this article is to study justice as the verdict requirements established in article 297 of the Ñode of Criminal Procedure. To achieve the said objective analysis of norms of the Criminal Procedure Code, the Criminal Code, the Penal Enforcement Code of the Russian Federation, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the decisions of the Constitutional Court of the Russian Federation is carried out. The article deals with the problem of divergence in interpretations of the principle of fairness in criminal and criminal procedure law demonstrates understanding of Justice in international law. The author concludes that the principle of justice enshrined in the Criminal Code of the Russian Federation cannot be applied in criminal proceedings to the same extent. Fairness in the criminal process is much wider. The author believes that
the fair is the sentence that is decreed in accordance with the requirements of the law of criminal procedure and is based on the correct application of the criminal law. The views of the author are supported by statements of well-known scientists, researchers in the criminal process. In conclusion the conclusion about necessity of fixing the code of criminal procedure of the Russian Federation is made. A broad interpretation of Justice as a set of procedural safeguards for persons involved in criminal proceedings is presented.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):183-186
pages 183-186 views

ON THE FURTHER REFORM OF THE CRIMINAL JUSTICE SYSTEM OF THE RUSSIAN FEDERATION IN THE DIRECTION OF GUARANTEEING THE RIGHTS OF MINOR PARTICIPANTS

Demkina M.S.

Abstract

Taken in the draft Federal law on amendments to the Criminal Procedure Code of the Russian Federation in connection with the implementation of the Concept of development of a network of mediation services until 2017 plan integrated activities in implementing restorative justice for children, including those who committed socially dangerous acts, but have not reached the age at which in the Russian Federation of criminal responsibility, raises questions about the need to reform the legislation of the Russian Federation to protect the rights and interests of children and creation of childfriendly justice. Adequate legal protection of minors in the judicial process will not only help the child in the compensation of age-related difficulties, but also to prevent its inappropriate response to the conflict situation. The author shares the view that to solve the problems of veal judges it is advisable right now to bezel set a rule, according to which in the proceedings on this category of cases should engage the best selection of slate, Prosecutor, judges and lawyers specialized in juvenile cases, passed courses of improvement of qualification in the field of psychology. Regulation of the status of a teacher (psychologist) as a participant in the criminal process is required.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):187-191
pages 187-191 views

THE PROBLEM OF IMPROPER IDENTIFICATION BY THE COURTS OF THEIR TASKS FROM PRETRIAL PROCEEDINGS

Mironova M.A.

Abstract

The court in the adversarial process cannot and must not assume the exercise of neither accusatory nor defensive functions, the court proceeds to trial only if the allegations made by the party prosecuting, and resolves it within the charge. The accusatory bias caused by the identification of the court's objectives with those of the pre-trial stage of criminal proceedings (conviction of the perpetrator of the crime, including by collecting sufficient evidence). Guilt is predetermined by the shape and structure of the modern Russian criminal process that is not fully competitive.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):192-195
pages 192-195 views

INDEPENDENCE OF VERIFICATION OF EVIDENCE IN THE SYSTEM OF PROOF

Nikolaeva K.N.

Abstract

This article is devoted to one of the most relevant and debatable issues of today – the independence of verification of evidences in the system of proof. Having analyzed the various points of view available in the scientific literature, the author makes a valid conclusion that the verification (not the study) of evidences occupies a central place in the process of proof and is an element closely related to the collection and evaluation of evidences.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):196-198
pages 196-198 views

THE PROCESSIONAL, TECHNICAL AND TACTICAL PROBLEMS OF PERSONAL IDENTIFICATION IN CONDITIONS OF WITNESS INVISIBILITY FOR LINEUP AS SECURITY MEASURE IN CRIMINAL PROCEDURE

Svechnikova E.I.

Abstract

The article deals with the detailed analysis of security measure, used within preliminary
investigation relation to a witness – the presentation for personal identification in conditions of
witness invisibility for lineup, according to article 193 part 8 of Russian Criminal Procedure Code
(CPC of RF). The author points out the common statements connected with the presentation for identification such as purpose, aims, evidential value; compares the rules of identification procedure in ordinary mode and in conditions of witness invisibility for lineup. The results of
following research are based on statistical data, scientific summaries, legal positions of high
courts and materials of investigative activity. The author reveals multiple problems (processional,
technical and tactical) of personal identification in conditions of witness invisibility for lineup
which impede effective witness protection. The findings of represented research are anchored
on leading scientists’ opinions and investigators’ experience as soon as modern achievements of
criminal process. In conclusion the author suggests the optimal solutions of indicated problems,
the means to replenish some omissions in the legislation, the ways to improve efficacy of the
security measures system in common.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):199-205
pages 199-205 views

Reviews

REVOCATION OF THE OFFICIAL OPPONENT ON THE THESIS OF ANNA IGOREVNA VIDERGOLD «LEGAL POSITIONS OF THE SUPREME COURT OF THE RUSSIAN FEDERATION AND THEIR MANIFESTATION IN CRIMINAL PROCEEDINGS (THEORETICAL AND PRACTICAL ASPECTS)»

Taran A.S.

Abstract

REVOCATION OF THE OFFICIAL OPPONENT ON THE THESIS OF ANNA IGOREVNA VIDERGOLD
«LEGAL POSITIONS OF THE SUPREME COURT OF THE RUSSIAN FEDERATION AND THEIR
MANIFESTATION IN CRIMINAL PROCEEDINGS (THEORETICAL AND PRACTICAL ASPECTS)»
SUBMITTED FOR THE DEGREE OF CANDIDATE OF LEGAL SCIENCES IN THE SPECIALTY 12.00.09 – CRIMINAL TRIAL.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2017;3(4):206-209
pages 206-209 views

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