Vol 9, No 3 (2023)

21–22 апреля 2023 г. в Самарском университете состоялась организованная кафедрой уголовного процесса и криминалистики юридического института Всероссийская научно-практическая конференция с международным участием «Проблемы обеспечения прав и свобод личности в процессе доказывания по уголовному делу», посвященная юбилею доктора юридических наук, профессора Валентины Александровны Лазаревой.

Конференция имела успех в профессиональном сообществе России и зарубежных стран не случайно, в первую очередь благодаря масштабу личности юбиляра, ее выдающемуся вкладу в уголовно-процессуальную науку и активной педагогической деятельности.

Based on the statistical data on the use of preventive measures presented on the website of the Judicial Department at the Supreme Court of the Russian Federation, the article examines the reliability of allegations of excessive use of detention and insufficient use of non-isolation preventive measures. By comparing the indicators that reveal the total number of defendants whose criminal cases were sent to the court of first instance and the number of application of “judicial” preventive measures in pre-trial and trial proceedings, the number of persons against whom preventive measures not related to isolation were applied is determined and a conclusion is made on the sufficient use of preventive measures alternative to detention. Discussing the thesis about the excessive use of detention, the author focuses on the ratio of the number of convicts to actual imprisonment and the number of accused in custody. Allegations about the excessive use of detention are reliable only in cases where the number of accused in respect of whom a measure of restraint was applied exceeds the number of persons sentenced to real imprisonment.

The article deals with the discussion issue of the role of the prosecutor in judicial proceedings through the prism of the principle of adversarial parties and the main powers of the prosecutor’s office in the legal state. The conclusion is made about the inconsistency of the regulatory regulation of the supervisory powers of the prosecutor in relation to the preliminary investigation and inquiry bodies, which entails a different format of the behavior of prosecutors in forensic proceedings. The dual situation is critically assessed, when the prosecutor does not support the petition of the preliminary investigation authorities in court. The author analyzes the ways out of this situation, proposes to reformat the relationship of the prosecutor with the investigator, transferring the authority for procedural management of the inquiry from the prosecutor - the head of the inquiry unit. It will allow prosecutors to concentrate all the efforts on supervision of respecting the rule of law in pre-judicial criminal cases production, to change a role of the prosecutor in judicial and control procedures.

The article deals with problematic issues of criminal proceedings against persons with whom a pre-trial cooperation agreement is concluded. The implementation of the norms of the institute of a pre-trial cooperation agreement provided for in Chapter 40.1 of the Code of Criminal Procedure of the Russian Federation, in practice leads to the consideration by the court of criminal cases with a pre-trial agreement without examining the evidence of the prosecution, which gives rise to reasonable doubts about their legality, validity and fairness. Judges are limited in their ability to form a proper idea of the proof of the guilt of the accused person on the basis of their own inner conviction and are forced to rely on the conclusions of the preliminary investigation, which does not always turn out to be performed at a sufficiently satisfactory level due to the lack of incentive for investigators to create a sound and reliable evidence base for the prosecution in connection with the accused’s stated consent to the charge and the obligations assumed to assist the preliminary investigation authorities in uncovering crimes and exposing their accomplices. As a result, there is a real risk of conviction of innocent people, which is confirmed by examples from judicial practice. Provided for by part 7 of Article 316 of the Code of Criminal Procedure of the Russian Federation, the condition of the decision in a criminal case with a pre–trial cooperation agreement is «only if the judge comes to the conclusion that the accusation with which the defendant agreed is justified, confirmed by the evidence collected in the criminal case» exists only nominally, since appropriate means, due to the lack of the court’s ability to carry out a full-fledged judicial investigation, for this clearly not enough. As a result, the question arises about the expediency of existence of the institution of a pre-trial agreement, at least in the legal regulation that is currently provided for by the criminal procedure law.

The purpose of the article is the formation of approaches to the public law regulation of virtual and augmented reality technologies. The object of the study are the social relations that have developed in the field of public and legal recognition of modern digital technologies. The relevance of the study is determined by the need to bring the concept of legal regulation of information (digital) relations to the modern level of information technology. The work is done on the basis of a combination of general philosophical, general scientific and special methods of knowledge – historical analysis, formal method, as well as the method of comparative law. The author defines the features of virtual and augmented reality, which have public and legal significance. The analysis of possible directions of legal regulation of the Metaverse and the consequences of their impact on the implementation of values with constitutional recognition is carried out. The argumentation in favor of the combination of social and technical regulation of relations in the application of virtual and augmented reality technologies is offered.

This article examines the legal features of regulation of labor relations in the Russian Federation, caused by the partial mobilization in 2022. In the course of a special military operation on the territory of Ukraine there was a need for mobilization measures, which caused costs in the domestic economy. Mobilization of three hundred thousand able-bodied people could not but affect the legal regulation of labor relations. In this regard, the legislative authorities of the Russian Federation have adopted amendments and additions to the Labor Code. The purpose of the publication is to reveal the peculiarities of regulation of labor relations during the mobilization. The article uses such general scientific methods of research as generalization, analysis and concretization. On the basis of comparison and analysis of legal regulation of labor relations during mobilization in 1914, 1941 and 2022 the authors come to a conclusion about inevitability of new changes in the Russian legislation.

This article discusses topical issues of the activities of employees of the internal affairs bodies in the process of disclosing and investigating crimes committed with cryptocurrency assets. In the process of global digitalization, society has switched to the use of information and telecommunication technologies in various spheres of life. The trend of using information and telecommunication technologies is gaining momentum in the illegal strata of society. Criminals are increasingly using innovative technologies to commit crimes. The study provides a comprehensive analysis of the concept and features of cryptocurrency, as well as the most common crimes that infringe on cryptocurrency assets and (or) are committed with their use. The effectiveness of the activities of internal affairs bodies in the process of detecting and investigating crimes committed using information and communication technologies (on the example of cryptocurrency assets) is based on organizational forms of interaction between departments of internal affairs bodies. In conclusion, an algorithm of actions is proposed aimed at improving the efficiency of operational activities in the fight against the illegal use of information and communication technologies, in particular, cryptocurrency assets.

We encounter human rights at every step, whether it’s about their recognition and guarantee, about the means to ensure their realization, or about the violation of those rights. It is a legal institute of both national and international law, but it is also a phenomenon that has many other faces. In this regard, after giving a short presentation on the term and concept of human rights, the paper points out that, depending on the context, human rights mean different matters, such as a special «concept» (the idea that there are certain human rights, which are inalienable and independent of the will of the state); basic legally protected human rights; specific legal solutions; situation in practice; clearly defining the human rights of certain beneficiaries; human rights law as a branch of law, especially international law; etc. Noting that human rights can be understood in various ways, the author gives their narrow definition, according to which it is a set of certain entitlements and privileges that are recognized to each human being or members of a certain category of people (a group and its members) that as such enjoy special legal protection. After considering various dimensions of human rights (philosophical, ideological, political, economic, etc.), the author emphasizes that the most important is the legal dimension, because human rights are inseparable from law as a social phenomenon, i.e. a normative order (objective law) while at the same time they represent legally protected interests of individuals and groups (subjective law). Taking a closer look, law defines: what are human rights, which rights are legally protected and what is their content, who are the enjoyers of certain rights, who are the bearers of legal obligations, what are the mechanisms for realizing the guaranteed rights, which are the mechanisms of supervision over how established solutions are implemented, and other issues, such as the procedure and method of correction of established violations of human rights, punishment for violation of human rights, etc. Seen from another angle, the role of law is reflected in: 1) norming (legal regulation); 2) creation of conditions and mechanisms for the realization of human rights; 3) supervision over the implementation of established solutions and, if necessary, making the necessary corrections; 4) ensuring satisfaction in the sense of creating conditions for compensation of material and moral damage and realization of those solutions and 5) punishment for violation of human rights. An integral part of the legal dimension should also be the undertaking of normative, organizational and functional efforts to prevent the abuse of human rights.

More than 20 years have passed since the entry into force of the Criminal Procedure Code of the Russian Federation. During this time, a huge experience of its application has been accumulated, which allows us to reasonably judge the advantages and disadvantages of legal regulation of criminal procedural activity. A large number of changes made during this time to the criminal procedure law indicates a desire to eliminate the shortcomings made during the creation of the Criminal Procedure Code of the Russian Federation, to further improve criminal procedure law. The solution of these tasks, however, is impossible without a critical analysis and rethinking of both previously existing and currently used procedural institutions, including the institution of returning a criminal case from the judicial stages to the pre-trial stage that preceded them. Therefore, the author has chosen as the main method of historical research of the regulatory framework and law enforcement practice, according to which he considers the historical prerequisites for the abolition of the institute of additional investigation at the end of the XX century as a tool for correcting investigative errors, as well as the role of the Constitutional Court of the Russian Federation in the liquidation of this institution and its subsequent revival. Judicial practice is also analyzed, which testifies to the use of the institution of returning criminal cases to the prosecutor not only in order to make up for the incompleteness of the preliminary investigation, but also to worsen the situation of the accused by charging him with committing a more serious crime after the court returns the criminal case. The analysis of the law and the practice of its application allow us to reasonably assert the gradual transformation of Article 237 of the Criminal Procedure Code of the Russian Federation from a way of removing obstacles to the judicial review of a criminal case and making a lawful procedural decision into a way of filling gaps in accusatory evidence and correcting deficiencies in the formulation of charges, which according to Article 252 of the Criminal Procedure Code of the Russian Federation should determine limits of judicial proceedings. As a result of the conducted research, the article concludes that the current version of Article 237 of the Criminal Procedure Code of the Russian Federation and its application in practice contradict the principles of criminal procedure, such as the independence of the court, the adversarial nature and equality of the parties, the presumption of innocence, as well as the purpose of criminal proceedings.