Vol 3, No 4 (2017)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.