Vol 5, No 4 (2019)

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.