Vol 5, No 4 (2019)

Full Issue

Personalia

S. A. SHEYFER CONCEPT ON THE INVESTIGATIVE ACTIONS COGNITIVE ORIENTATION: PROBLEMS AND PROSPECTS (ON THE 95TH ANNIVERSARY OF THE TEACHER)

Rossinskiy S.B.

Abstract

The article analyzes and evaluates the results of professor S. A. Sheyfer’s scientific research, that relate to the formation of the concept of cognitive orientation of investigative actions. The author believes: S. A. Sheyfer’s fundamental work was allowed to form the correct notion of investigative actions, which are means of establishing circumstances relevant to the criminal case, and to distinguish them from other procedural actions that are in the arsenal of modern preliminary investigation bodies. The author remains generally a follower of S. A. Sheyfer. But at the same time he draws attention to the debatability of some of the positions expressed by him, gives them an assessment and offers his own options for solving existing problems.

Juridical Journal of Samara University. 2019;5(4):7-14
pages 7-14 views

INDIRECT COGNITION IN CREATIVE HERITAGE OF S. A. SHEYFER

Zaitseva Е.А.

Abstract

The article analyses the contribution of S. A. Sheyfer to the development of criminal procedure exercises on proof, cognition and investigative actions. The phenomenon of indirect cognition in the structure of criminal procedure proving is considered. The author, when analyzing this form of cognition, relies on an «instrumental» approach to understanding mediated cognition of meaningful information. The article discusses whether the judicial examination is an investigative action. It is justified that during the forensic examination the investigator carries out cognitive operations through a judicial expert. It is shown that not only the actions of the investigator are included in the structure of the investigative action – the appointment and production of judicial examination, but also the research carried out by the judicial expert is also carried out in criminal procedure. During the study, the expert implements his criminal procedure status by entering into appropriate legal relations with the investigator. The author polemizes with scientists who deny that the judicial examination has the properties of an investigative action.

Juridical Journal of Samara University. 2019;5(4):15-22
pages 15-22 views

PROBLEM OF RELATIONSHIP BETWEEN THE INVESTIGATOR AND THE PROSECUTOR IN THE SCIENTIFIC HERITAGE OF PROFESSOR S. A. SHEYFER

Tarasov А.А.

Abstract

The novelty of the article is a comparative analysis of it in the development of procedural guidance the investigation by the prosecutor in the scientific works of professor S. A. Sheyfer from the Soviet era to the present, the positions of other supporters of this idea at different stages of reforming the domestic criminal process, studies of modern authors, is devoted to relations between different participants of the process from the prosecution in pre-trial proceedings in criminal cases. The purpose of this analysis is to identify new and confirm previous arguments in favor of maintaining the prosecutor’s leading position in the implementation of criminal prosecution in pre-trial proceedings in criminal cases. The main argument in favor of such organization of prosecutorial activities is the continuation of prosecutorial activities by the prosecutor and in court by maintaining the public prosecution, formulated and substantiated before the trial. The objective was to identify substantive contradictions between the prosecutor’s function of criminal prosecution on behalf of the state and supervision of the legality of the preliminary investigation and inquiry and the set of powers that the prosecutor has under the current criminal procedure law. The article uses methods of system analysis and synthesis, comparative legal and historical methods. The study shows that in the course of reforming the domestic pre-trial proceedings in criminal cases, significant mistakes were made that require correction. The purpose of this correction is to preserve for the prosecutor, as a representative of the public prosecution service, the ability to exercise procedural leadership of the preliminary investigation, actively influencing the formation and justification of the accusation, which is then brought before the court. In conclusion, it is shown that this is how S. A. Sheyfer imagined the procedural role of the prosecutor – as a representative of the prosecutorial authorities, actively influencing the detection and investigation of crimes.

Juridical Journal of Samara University. 2019;5(4):23-29
pages 23-29 views

ON THE SCIENTIFIC HERITAGE OF PROFESSOR S. A. SHEYFER ON THE ISSUE OF THE PENETRATION OF OPERATIONAL-SEARCH MEASURES IN THE SYSTEM OF INVESTIGATIVE ACTIONS

Sementcov V.A.

Abstract

The scientific heritage of professor S. A. Sheyfer is investigated, with the analysis of his numerous fundamental works on criminal procedure and criminalistics on the penetration of operational and investigative measures into the system of investigative actions. The author emphasizes S. A. Sheyfer’s ideas about criminal procedural evidence and evidence, the cognitive nature of investigative actions and the prospects for the development of their system, the use of non-procedural cognitive measures in proving. On the basis of four-stage process of formation of new cognitive receptions and those requirements which are provided for their production, S. A. Sheyfer expressed doubts in legitimacy of reckoning by the legislator of control and record of telephone and other negotiations, obtaining information on connections to number of investigative actions. Special attention is paid to the position of S. A. Sheyfer in part of this option penetration of detective-search measures in the system of investigative actions as their legalization in the form of tacit procedural (special secret) investigation, with a justification that the results of the investigative activities of evidence can not be considered because they did not meet the cognitive and procedural characteristics of the trail-governmental action.

Juridical Journal of Samara University. 2019;5(4):30-35
pages 30-35 views

Criminal procedure

MULTI-VECTOR DEVELOPMENT OF RUSSIAN CRIMINAL JUSTICE – A PARADOX OR A PATTERN?

Shadrin V.S.

Abstract

The article draws attention to the introduction of amendments and additions to the criminal procedure law in order to improve criminal proceedings, often of the opposite nature – both aimed at protecting the person involved in the criminal proceedings, including as a suspected accused, defendant, and to increase opportunities criminal prosecution of these persons. The leading role in determining the vectors of development of criminal proceedings belongs, of course, to the criminal procedure policy developed by the relevant state bodies, but the criminal procedure policy has not yet led to the creation of a clear, well-defined concept of the development of the domestic criminal process. An example of inconsistency and insufficient reasonableness of legislative decisions is the current attitude of the legislator to the formation of the procedural status of the prosecutor. A clear definition of the ways of development of domestic criminal proceedings is due to the need for a clear choice of the model of the criminal process.

Juridical Journal of Samara University. 2019;5(4):36-42
pages 36-42 views

ON HYPERACTIVE CRIMINAL PROCEDURE LAW-MAKING

Belonosov V.O.

Abstract

The article analyzes the changes that have occurred in the criminal procedure legislation in 2018. This article is a logical continuation of a series of articles in which the author makes an annual analysis of the changes made in this branch of law in order to assess the effectiveness of the newly introduced criminal procedure regulation and its characteristics. The properties of hyperactive lawmaking are considered. It is stated that, despite the excessively large number of changes introduced into the Code of Criminal Procedure of the Russian Federation, it does not get better, and its repressiveness is increasing. It increases the number of flaws, which sometimes even causes some authors to talk about the adoption of a new Criminal Procedure Code. There is disagreement with this position and it is proposed that, if we do not introduce a moratorium on introducing amendments to the Code of Criminal Procedure, then we will drastically reduce them. Changes to the Code of Criminal Procedure should not be made by a conjuncture hyperactive lawmaking, but by a thoughtful, fundamental, integrated approach with preliminary extensive discussion. As a model, it is proposed to consider the Criminal Procedure Code of France, where criminal procedure relations are described more fully and democratically.

Juridical Journal of Samara University. 2019;5(4):43-50
pages 43-50 views

CORRELATION BETWEEN THE RULES OF CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION AND OTHER LEGAL ACTS: LAW, THEORY, LEGAL PROVISIONS OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION AND COURT PRACTICE

Golovachuk O.S., Proshlyakov A.D.

Abstract

The essence of the article boils down to provisions of parts 1 and 2 of Article 7 of the Code of Criminal Procedure of the Russian Federation regards resolving conflicts of the Code of Criminal Procedure of the Russian Federation and other legal acts. The legal positions of the Constitutional Court of the Russian Federation on this subject are given. The points of view of scientists in Criminal Procedure regarding conflicts of the Code of Criminal Procedure of the Russian Federation and other legal acts and approaches of resolving them are analyzed. The collisions of the Code of Criminal Procedure of the Russian Federation are investigated and other federal and federal constitutional laws regarding the grounds for exemption from punishment, the status of the Commissioner for Human Rights in the Russian Federation, as well as the «invasion» of the Code of Criminal Procedure of the Russian Federation in the legal regulation sphere of other branch of the law – the liberation of the civil party from paying the state fee for bringing a suit, is an example of judicial practice related to the enforcement of the rules of part 6 Article 114 of the Code of Criminal Procedure on the amount of the monthly allowance paid to a suspect or accused temporarily suspended from office, which contradict the departmental legal act of the Minister of Defense of the Russian Federation, it is concluded that the priority of any departmental legal act over the rules of the Code of Criminal Procedure of the Russian Federation is inadmissible.

Juridical Journal of Samara University. 2019;5(4):51-57
pages 51-57 views

INTERNATIONAL LEGAL PARADIGM OF THE CRIMINAL PROCEDURE: REALITY WHICH NOT EVERYONE ACCEPTS

Samaryn V.I.

Abstract

The article defines the international legal paradigm of the modern criminal procedure, implying penetration of the principles enshrined in international legal acts in the criminal procedure legislation, and the assumption of direct implementation of international treaties in criminal proceedings. The mentioned paradigm replaced the national-state paradigm of a closed criminal procedure. Certain aspects of the occurrence of the international legal paradigm are revealed: application of international treaties of the Republic of Belarus in criminal proceedings, the transcendence of the institute of international legal assistance at the level of the national legal system, and the possibility of international legal protection in criminal cases brought in Belarus. The legitimacy of harmonization of criminal procedure legislation within the framework of the Eurasian Economic Union is established. The paradigm in question is also characteristic of the criminal procedure in modern Russia. Amendments to legislation are proposed to ensure the guarantees provided for by the Constitution of the Republic of Belarus.

Juridical Journal of Samara University. 2019;5(4):58-66
pages 58-66 views

PRE-TRIAL PROCEEDINGS: PROSPECTS OF DEVELOPMENT

Lazareva V.A.

Abstract

The article analyzes the problems and prospects of development of pre-trial proceedings and its place in the criminal procedure system. Almost two decades have passed since the adoption and entry into force of the Criminal Procedure Code of the Russian Federation – a sufficient period to think about the prospects for further development of criminal procedure legislation. The period of comparison with the Criminal Procedure Code of the RSFSR in order to demonstrate the advantages of the new law is completed, and the process of identifying and eliminating its shortcomings seems to be endless. The vast array of changes made to the criminal procedure act had transformed his face, but had they made it more perfect? What next-to continue to reform the criminal justice system, improving its institutions, or time dictates the need to develop a fundamentally different model of criminal proceedings? The article considers the proposals for reforming pre-trial proceedings from the standpoint of the theory of evidence, analyzes the project of introducing the figure of an investigative judge into the criminal process of the Russian Federation, and concludes that there is no alternative to moving in the direction of the development of competitiveness. The differences between the inquiry and the preliminary investigation are so insignificant that they allow us to raise the question of the unification of pre-trial proceedings in cases of crimes requiring preliminary investigation, and the absorption by the pre-investigation check of the current abbreviated form of inquiry in cases in which the investigation is not caused by an objective necessity. As a result in the Russian Federation the concept of judicial proofs – data on the circumstances having value for business received in fair (competitive) procedure by the judge from the sources presented by the parties has to be formed.

Juridical Journal of Samara University. 2019;5(4):67-73
pages 67-73 views

MODERN IDEA ON ADVERSARIAL PRE-TRIAL PROCEEDINGS AND PROBLEMS OF ITS ENSURING

Gladysheva O.V.

Abstract

The article presents modern ideas about adversarial criminal proceedings, preserving the historical continuity in determining its main features and attributes, with a gradual transformation and adjustment, including pre-trial proceedings. It is noted that according to professor S. A. Sheyfer, who did not deny the competitive elements of pre-trial proceedings, the preliminary investigation is not completely adversarial. It is proved that under the influence of new conditions there is a tendency to revise not only the essence of competition, but also the means of its implementation. The conclusion is made about not always correct understanding of adversarial proceedings in criminal proceedings, in a certain distortion of its content, contrary to established ideas. The author’s form of the mechanism of ensuring the rights at interrogation of the lawyer protecting, representing interests of participants in criminal proceedings, as the witness is formulated. It is proposed to introduce into the criminal procedure law the rules allowing to realize the adversarial nature in the pre-trial proceedings in terms of the transfer of a lawyer-defender or a lawyer-representative to the status of a witness.

Juridical Journal of Samara University. 2019;5(4):74-80
pages 74-80 views

ABOUT CRIMINAL AND PROCEDURAL FUNCTIONS OF THE INVESTIGATOR

Ashirbekova M.T.

Abstract

The article considers the issue of criminal procedural functions of an investigator. It is emphasized that the position of the legislator, who suggested the investigator the only function of the prosecution, is methodologically unjustified, since the criminal process is a jurisdictional law-enforcement process, the very existence of which is caused by the need to apply criminal law to resolve criminal law conflicts. It is proved that the investigator performs the functions stipulated by the logic of the stages of applying the law: establishing the actual basis of the case – establishing the legal basis – resolving the enforcement decision. The first stage of the application of law corresponds to enforcement actions that characterize the function of the investigation. At the next two stages, depending on the results of the investigation, the prosecution functions or the law enforcement function are implemented. In the legal assessment of established factual circumstances as grounds for criminal liability, the function of the prosecution is realized. In the absence of such grounds, a law enforcement function. It is also noted that the addressees of the law-enforcement function, except for the accused, are all private individuals involved in the criminal process. In this regard, the law enforcement function is universal.

Juridical Journal of Samara University. 2019;5(4):81-85
pages 81-85 views

PROCEDURAL FUNCTION OF THE INVESTIGATOR AND ITS REFLECTION IN THE MAIN DECISIONS ON CRIMINAL CASE

Starodubova G.V.

Abstract

In the article the problem of definition of procedural function of the investigator is analyzed. The difference of approaches in definition of the directions of its activity is specified. The conclusion that the investigator carries out crime investigation function is drawn, and exposure of the person in its commission is completely covered by this direction. The main decisions of the investigator which are making out and concretizing criminal prosecution of the defendant assume objectivity at their acceptance. The Code of Criminal Procedure of the Russian Federation, having called the investigator among participants of criminal trial from charge, does not assume unilaterality and subjective and accusatory orientation of its activity at investigation of crimes at all. However other formal definition of the place of the investigator in the system of participants of criminal procedure is hardly capable to increase automatically quality and efficiency of pretrial investigation. In this regard issues of morality of the investigator and his procedural activity are updated.

Juridical Journal of Samara University. 2019;5(4):86-90
pages 86-90 views

MODERN PROBLEMS OF ESTABLISHMENT SIGNIFICANT FOR THE CRIMINAL CASE OF CIRCUMSTANCES AT THE CONCLUSION OF PRE-TRIAL COOPERATION AGREEMENT

Loshkobanova Y.V.

Abstract

The development of modern Russian criminal justice goes in the direction of simplification of the order of activity of officials and state bodies. Models are created that exclude or limit the use of traditional methods of obtaining and researching evidence. The pre-trial cooperation agreement is one such innovative model, the application of which is based on exclusive rules of evidence. Their application in practice causes numerous problems in various spheres: from establishing the necessary facts to ensuring the rights, freedoms and legitimate interests of participants in criminal proceedings. Particularly relevant is the resolution of such problems as determining the subject of proof at the conclusion of pretrial agreement on cooperation, verification of the validity of charges brought against the accused, the recovery of certain procedural powers of the court in the study of actual data in special judicial proceedings, etc. Based on the results of scientific research of the outstanding scientist-processualist S. A. Sheyfer, the author formulates his own conclusions and proposals for the resolution of these procedural problems to establish the actual circumstances arising at the conclusion of a pre-trial agreement on cooperation.

Juridical Journal of Samara University. 2019;5(4):91-98
pages 91-98 views

SUBJECT MATTER AND LIMITS OF PROOF AT THE STAGE OF APPOINTMENT OF THE COURT SESSION

Ryabinina T.K.

Abstract

The article is devoted to the peculiarities of evidentiary activity of the court at the stage of appointment of the court session. The study of different points of view of scientists and practitioners led the author to the conclusion that, despite the limitation of the powers of the court related to the verification of the materials of the criminal case received by the court, the reduction of issues to be clarified when appointing a court session, the nature and content of the court’s activities for the collection, verification and evaluation of evidence has not changed. The only circumstance that is not included in the scope of the verification actions of the judge is the question of the guilt of the accused in the commission of the crime, which in no way indicates a limitation of the control powers of the court at this stage. Therefore, the powers of the judge at this stage of the process are limited to establishing the sufficiency of evidence to resolve the main issue at the trial stage – the guilt or innocence of the defendant. Particular attention is paid to the evaluation of evidence, which differs from similar activities of the court at the trial stage.

Juridical Journal of Samara University. 2019;5(4):99-106
pages 99-106 views

COURT’S STUDY AND ASSESSMENT OF EVIDENCE IN A CRIMINAL CASE WITH AN INDICTMENT

Markovicheva E.V.

Abstract

The article discusses the main problems associated with a court’s consideration of a criminal case received after a shortened inquiry. The purpose of the article is to review features of the court’s study and assessment of evidence in this category of criminal cases. The author substantiates the need to preserve accelerated proceedings in Russian criminal proceedings, but insists on certain advantages of changing the regulatory model of reduced inquiry. The main attention in the article is given to contradictions in the normative regulation of the trial of criminal cases received by the court with an indictment. The article analyzes some features of substantiation in this category of criminal cases both in pre-trial and in judicial proceedings. Theoretical material is illustrated by examples from judicial practice. The author suggests changing the court proceedings on this category of criminal cases, reducing the list of grounds for returning the criminal case to the prosecutor, and expanding the rights of the accused.

Juridical Journal of Samara University. 2019;5(4):107-112
pages 107-112 views

SPECIAL PROCEDURE OF THE TRIAL WITH THE CONSENT OF THE ACCUSED TO THE CHARGE: PROBLEMS OF APPLICATION IN A NUMBER OF CASES

Kuvaldina J.V.

Abstract

The article considers the problem related with the application of a special procedure for the trial in a number of cases. Its urgency is determined by the introduction in the State Duma of the Federal Assembly of the Russian Federation by the Supreme Court of the Russian Federation of the draft Federal Law № 690652-7, which proposes to apply the simplified procedure provided for in Chapter 40 of the Criminal Procedure Code of Russian Federation only in cases of crimes of petty and medium gravity. The Prosecutor General of the Russian Federation supports the initiative of the Supreme Court of the Russian Federation. The article analyzes the provisions of bills introduced over the past seventeen years in the State Duma of the Federal Assembly of the Russian Federation, which proposed both narrowing down and expanding the range of application for the special procedure of trial in a number of cases, the opinion of law enforcement officers and scientists on this issue; methods used by prosecutors and public prosecutors in order to reduce the percentage of application of procedure provided for in Chapter 40 of the Criminal Procedure Code of the Russian Federation; the judges’ attitude to this position of state representatives on the side of prosecution. The author concludes that the initiative of the Supreme Court of the Russian Federation only aims to reduce the number of sentences decided in a special order and has nothing to do with protecting persons accused of serious crimes. The author’s conclusions are based on analysis of the results of research of criminal cases, which were prosecuted in a general procedure instead of a special one, a survey of judges and prosecutors and illustrated with specific examples. It is proposed that formulation of Part 1 of Article 314 of the Criminal Procedure Code of the Russian Federation should be kept so far as it relates to the range of cases in which a sentence may be judged in a special order.

Juridical Journal of Samara University. 2019;5(4):113-121
pages 113-121 views

CONCILIATING AGREEMENT AS A NEW BASIS FOR EXEMPTION FROM CRIMINAL RESPONSIBILITY AND CLOSURE OF CRIMINAL CASES OF MINORS

Shestakova L.A.

Abstract

The author of the article came to the conclusion that there are two competing models of criminal procedure policy: the model of «due process» and the model of «crime control». Restorative justice was supported in the second half of the 20th century. The restorative approach to justice was a natural result of the trends in the criminal process – humanization, private and public interest, acceleration and simplification of criminal proceedings. The author sees the consistent consolidation of the basic ideas of restorative justice in international acts. The introduction of restorative technologies in the criminal proceedings of many foreign countries began with changes in juvenile justice. The author of the article formulates proposals for restoring the institution of exemption from criminal liability of minors and for applying mediation in terminating a criminal case in connection with the reconciliation of the parties (Article 25 of the Code of Criminal Procedure of the Russian Federation).

Juridical Journal of Samara University. 2019;5(4):122-126
pages 122-126 views

Ethics and psychology of law-enforcement activity

LEGAL NIHILISM IN THE ACTIVITIES OF THE INVESTIGATOR AS A NEGATIVE FACTOR THAT DIRECTLY AFFECTS THE RESULT OF THE INVESTIGATION OF THE CRIME

Konin V.V.

Abstract

Criminal proceedings are one of the forms of the state exercising its power in ensuring the security of society from criminal encroachments. One of the pressing problems in the field of law enforcement today, which requires its resolution, is the problem of legal nihilism of participants in criminal proceedings. Quite a large number of publications are devoted to the issues of abuse by participants of criminal proceedings of their rights. But at the same time, questions of abuse of the rights by the investigator, and also the head of investigative body, during investigation of the criminal case, manifestation of legal nihilism at implementation of the procedural powers remain insufficiently investigated. The legal nihilism inherent in investigators seriously complicates the fight against crime, discredits not only the preliminary investigation, but also the entire law enforcement system as a whole. The article deals with the issues of investigative errors and abuse of law by the investigator in the investigation of a criminal case.

Juridical Journal of Samara University. 2019;5(4):127-131
pages 127-131 views

FEATURES OF THE NATURE OF THE ADVERSARIAL PRINCIPLE IN THE RUSSIAN JUSTICE

Marina Е.V.

Abstract

The article discusses various approaches to the disclosure of the content of the concept of competition. It is concluded that the traditional Russian and, above all, Soviet understanding of the principle of competition differs from the classical Roman principle of competition. The principle of competition, enshrined in the criminal procedure law of Russia, includes, in addition to the traditional element-the parties having the right to be heard, also an active court, which must ensure equal conditions for the parties in the course of justice, must «comprehend the truth» and at the same time remain an independent and neutral arbitrator. Such an approach is acceptable, it fits into the legal consciousness of the law enforcement officer, but under one condition, if the implementation of such a model of justice, the goal of the criminal process is achieved-respect for human rights and freedoms. However, the constantly changing criminal procedure legislation indicates that the current system does not allow to fully implement in practice the ideas that are enshrined in the law. This means that the principle of competition, its content can still be and perhaps should be revised, focusing not only on the traditions of our legal system, but also on European traditions.

Juridical Journal of Samara University. 2019;5(4):132-136
pages 132-136 views

PROSECUTOR’S SUPERVISION OVER THE IMPLEMENTATION OF URBAN PLANNING LEGISLATION

Lobachev D.A.

Abstract

The article deals with the problems of prosecutorial supervision over the implementation of urban planning legislation in the operation of shopping and entertainment centers. The question of the legality of use of non-residential buildings or premises as a shopping center, shopping and entertainment center, considered typical violations that require a proper legal response from the prosecutor’s office. Legal possibilities are estimated and the basic means of response of bodies of prosecutor’s office are defined. In a separate article the problem of evaluation by the prosecutor of the legality of the use of the building for a shopping center or shopping center when the building, originally built as a production, it was reconstructed without obtaining permits as planned construction changes in the object themselves did not affect structural and other characteristics of reliability and safety and do not exceed limiting parameters of permitted construction and established urban planning regulations.

Juridical Journal of Samara University. 2019;5(4):137-143
pages 137-143 views

Criminalistics and forensic enquiry

ON THE INNOVATIVE DEVELOPMENT OF CRIMINALISTIC SCIENCE IN THE DIGITAL AGE

Rossinskaya E.R.

Abstract

The article considers the problems of innovative development of criminalistic science in the context of global digitalization. The unity of criminalistics as a science having its own subject, system, tasks, objects is emphasized. The concept of the theory of the information-computer support criminalistic activities’ theory is considered. A system of this criminalistic theory has been proposed, including the concept of theory of information-computer support for criminalistic activities; doctrine about computer crime; digital traces as sources of criminalistic significant computer information; on information-computer criminalistic models of types of computer crimes; criminalistic investigation of computer tools and systems; on information-computer criminalistic software for investigative and judicial actions; on information-computer criminalistic support of computer crime investigation techniques; on the digitalization of the system of criminalistic registration, including the reference and information funds of criminalistic and forensic expertise, including the relationship and delineation of the digitalization of criminalistic and forensic expertise; on information and computer criminalistic support of civil and administrative proceedings. The main directions of development for the theory of information-computer support of criminalistic activities and elements of its system are outlined.

Juridical Journal of Samara University. 2019;5(4):144-151
pages 144-151 views

ON LEGALIZATION OF THE GUIDING ROLE OF THE INVESTIGATION IN ORGANIZING AND CARRYING OUT FORENSIC EXAMINATIONS

Makarenko I.A., Exarkhopulo A.A.

Abstract

The Federal Law «On Amendments to the Federal Law ‘‘On State Forensic Expert Activities in the Russian Federation’’ and the Federal Law ‘‘On the Investigative Committee of the Russian Federation’’» are analyzed and the inexpediency of creating forensic expert institutions in the Investigative Committee is established. The authors come to this conclusion by analyzing the history of the formation of the Federal Expert Service in Russia and listing the arguments given by scientists to justify the need of removing forensic expertise from departmental subordination. Authors suppose that there is no state agency responsible for prosecution in criminal proceedings, let alone the Investigative Committee of the Russian Federation is unable to ensure the forensic experts independence. And even the judicial experts, being subordinate to the prosecution, are unlikely to remain independent, objective and impartial, carrying out the investigation tasks. In this case, the analogy with forensic institutions that were created in due time and are now preserved in the structure of law enforcement ministries and departments is not relevant since these institutions coexist with the bodies of preliminary investigation, but they are not subordinate to them organizationally or administratively.

Juridical Journal of Samara University. 2019;5(4):152-157
pages 152-157 views

TACTICS OF PRELIMINARY INVESTIGATION IN RELATION TO THE REQUIREMENTS OF THE CRIMINAL PROCESS

Khalikov A.N.

Abstract

A comparative analysis of the forensic tactics of the preliminary investigation with the general requirements of the Constitution of the Russian Federation, with the principles and objectives of the criminal process. The characteristic of investigative bodies of Russia proceeding from norms of the Code of Criminal Procedure is stated. It is shown that the investigative authorities are completely independent in terms of conducting preliminary investigation. The article presents a critical analysis of the criminal procedure mechanism, according to which the investigation bodies carry out their activities outside the prosecutor's supervision and judicial control. This leads to significant shortcomings, the main of which are violations of human rights and failure to perform the tasks of criminal proceedings. With such a criminal procedure mechanism of the investigative bodies in Russia will not be carried out proper forensic tactics aimed at combating crime.

Juridical Journal of Samara University. 2019;5(4):158-163
pages 158-163 views

SOME QUESTIONS OF FORENSIC EXAMINATION AND THEIR REFLECTION IN S. A. SHEYFER'S WORKS

D'yakonova O.G.

Abstract

The article is devoted to the analysis of some aspects of regulation and enforcement of the legal institute of forensic examination and their reflection in the works by Semen Abramovich Sheyfer. Attention is paid to the issue of the essence of forensic examination as an investigative or procedural action, the conclusion is made about forensic examination as a complex procedural action. There is still some discussion about the possibility of not only the appointment, but, above all, the production of forensic examination before the initiation of criminal proceedings. Giving a positive answer to this question, the author formulated several criteria that are mandatory for compliance. Summarizing the opinions of scientists on the possibility of a specialist to conduct research identical to the expert, the article emphasizes the impossibility of this action. Revealing the question of samples for comparative research, the author focuses on the essence of this action, concluding that it is either a procedural action or an action carried out within the framework of an expert experiment. Arguing about the possibilities of the parties to file petitions for the appointment and production of forensic examination, the author substantiates the idea that today there is a need to provide participants with the right to submit to the investigator or the judge an expert opinion obtained as a result of the independent treatment of participants to the expert (alternative examination). It is assumed that this right should be guaranteed by the obligatory inclusion of such an opinion in the criminal case and its evaluation as an expert opinion.

Juridical Journal of Samara University. 2019;5(4):164-172
pages 164-172 views

This website uses cookies

You consent to our cookies if you continue to use our website.

About Cookies