Vol 7, No 2 (2021)

The article analyzes the issues of prosecutor’s supervision in the field of transport security from the standpoint of an integrated approach. The material was prepared in the wake of the All-Russian research and practical conference held on May 14, 2021, dedicated to the 300th anniversary of the Russian prosecutor’s office. Transport security as a subject of prosecutor’s supervision covers a variety of areas of relations related to administrative, criminal, civil and procedural branches of law. Railway, water and air communication is subject not only to special socio-economic laws, but also requires special legal regimes dictated by the significant remoteness and dynamics of the subjects under supervision, the increased risk of harm to legally protected relations, the need for constant and uninterrupted functioning of transport facilities, the importance of the transport segment for the entire economic life of the country. All this determines the need for very prompt and at the same time balanced supervisory decisions, which is possible due to the close cooperation of science and practice.

The article considers human rights activities as a phenomenon that constitutes an integral part of the legal society. It identifies problems of a theoretical and practical nature associated with difficulties in this area, caused by both the COVID-19 pandemic and other reasons. An attempt has been made to assess the legal and moral and ethical aspects of such a necessary activity at the present stage of the development of public relations, attention is paid to the position of international bodies regarding human rights activities, its goals and objectives. The importance and relevance of the topic is explained by the fact that, in the opinion of human rights defenders themselves, the entire system of human rights protection, created after one of the most terrible periods in modern world history, is going through a crisis at this historical stage, which is increasingly aggravated under the influence of numerous problems of political and economic nature. Military conflicts, migration, a pandemic clearly demonstrate the obvious need to address the issue of the essence of human rights activities, including its moral and ethical component.

The article examines the history of the development of legal enlightenment in Russia, its modern legal regulation, as well as the theoretical basis associated with its implementation. Revealing the paramount importance of legal enlightenment for the formation of civil society and state of law, the authors point out the need to create a unified system of normative legal acts regulating this activity. Currently, the legal regulation of the activities of various subjects of legal enlightenment is unsystematic, since at different levels there are a large number of unrelated legal acts, which makes it difficult to achieve the goals of legal enlightenment. Among other things, the study carried out a comprehensive theoretical analysis of activities in legal enlightenment, on the basis of which the authors, on the one hand, conclude about the unity of rational and irrational moments in this activity, on the other, about the primary impact on the emotional-volitional side of a person in the process of legal enlightenment. Linking the structure of legal enlightenment with elements of legal awareness – legal ideology and legal psychology, the authors point to the unity of legal training and legal literacy with in the framework of legal enlightenment, offering their definition of the concept of legal enlightenment.

The article examines the main elements of constitutional and conflict diagnostics, which is a system of consistently applied methods, legal principles and presumptions, aimed at obtaining information about the causes, content, consequences and methods of preventing and resolving a constitutional conflict. Constitutional and conflict diagnostics is theoretically justified by the author as a new method of the science of constitutional law, which allows lawyers to study constitutional conflicts and constitutional norms of the conflictological type. The use of constitutional and conflict diagnostics will allow to establish and investigate the causal relationship between the formation of law, its normative expression and subsequent law enforcement, which will reflect the constitutional conflict. The author believes that the following methods are used in the course of diagnosing a constitutional conflict: dialectical, systematic, historical, statistical, methods of formal logic, formal-legal method, method of legal modeling, and other methods. The author also proposes to consider as the principles of such diagnostics: the principle of taking into account the specific historical situation, dialectical unity, systematic study of the conflict and the principle of the rule of law. The author suggests considering the following presuppositions used in the course of constitutional and conflict diagnostics: the presumption of the inevitability of constitutional conflicts, the presumption of the solvability of constitutional conflicts, and the presumption of the prevention of conflicts.

The article systematically examines the collection, storage, dissemination and use of information about private life (including genetic data) without the consent of the data subject under the pretext of having public interests. The relevant legal provision (Article 152.2 of the Civil Code of the Russian Federation) is subjected to a thorough critical analysis from the perspective of: a) identifying its relationship with the norm of the Civil Code of the Russian Federation, which provides for a general ban on uncoordinated transactions with the specified information; b) the breadth and uncertainty of the content (including due to the absence of any differentiation of regulation based on the type of actions performed on the information, as well as the evaluative nature of the concept of «public interest»). Based on the thesis about the inexpediency of unconditional refusal to use the category of «public interest», the author emphasizes the relevance of the formulation and legislative fixation of «algorithms» for recognizing the fact of the presence of public interest (taking into account the provisions of Article 55 of the Constitution of the Russian Federation), as well as the establishment of restrictions of a subject, target, organizational and other nature for the collection, storage, dissemination and use of information about private life in the public interest. Particular attention is paid to the issue of the voluntary participation of individuals in the planned general genetic passporting of the population of Russia (it is emphasized that ignoring the principle of consent cannot be explained only by referring to the presence of public interest).

The article is devoted to the institution of criminal liability for attacks on the honor and dignity of the individual. The article, using the historical method, examines the stages of development of this institution and the features of protecting the honor and dignity of the individual from the point of view of the values of a modern democratic state. The author analyses the impact of explicit and implicit criminal policy objectives on the ways to protect the honor and dignity of the individual. Particular attention is paid to the criminalization and decriminalization of libel and slander. The research is aimed at identifying the problems of targeting in changes in the institution of criminal liability for attacks on honor and dignity, when the relevant criminal law norms are replaced by administrative law norms. The author seeks to depoliticize the protection of the personal right to honor and dignity on the basis of the principle of equality of citizens before the law. The current Russian criminal legislation is mainly aimed at protecting the honor and dignity of persons in connection with their social accessories. Within the protective concept of criminal law, the author of the article justifies the conclusion that the right of anyone who has suffered from slander or insult to achieve the truth and state censure of the perpetrator is guaranteed. Such a view will also be interesting to researchers of the criminal process.

In the modern Russian criminal proceeding the role of the head of the investigative body has increased so much that it is no longer necessary to talk about any procedural independence of the investigator. This situation is highly criticized in the legal literature and the researchers note the necessity to return the investigator to the former procedural status. According to the author of the article, the current state of the issue should not be considered problematic since in the conditions of the changed criminal procedure regulations the investigator is no longer a single body of the preliminary investigation. The preliminary investigation is carried out jointly by the investigator and the head of the investigative body, who is assigned a leading and controlling role. In fact, there are grounds to speak about the collegiality of the modern preliminary investigation. At the same time, the preliminary investigation body is currently an investigative body and therefore procedural independence should be provided not to the investigator, but to the investigative body.

The ending of preliminary investigation is final stage of pre-trial criminal proceedings, consisting in the preparation of materials by the person conducting the preliminary investigation, and the transfer of these materials to the prosecutor. This article is devoted to topical issues of the ending the inquiry in an abbreviated form, in particular, the problematic issues related to the compilation of the indictment. The analysis made it possible to establish that the indictment is the procedural decision of the inquiry officer who completes the criminal prosecution when conducting the inquiry in an abbreviated form in which he, in the form of a state-imperious command, within the limits of his competence and in accordance with the criminal procedure law, on the basis of the factual data established in the case, gives answers to the legal questions arising in the case about the guilt of the person who committed the crime. In addition, significant shortcomings in the legal regulation of the procedure for ending an inquiry in an abbreviated form with the indictment have been identified, which are discussed in this article.

The article is devoted to the issue of cooperation between the institutions of the European Union in the process of adopting legal acts within the framework of a special legislative procedure. Authors analyzed the scope of application of special legislative procedure and ordinary legislative procedure in the EU. It was revealed that the adoption of acts in accordance with one or another type of legislative procedure reflects the dual nature of the European Union, which contains both supranational and interstate principles of legal regulation of various spheres of public relations. The main types of special legislative procedure (consultation, approval) are considered, within the framework of which, in practice, there is intense inter-institutional interaction in the process of developing the final text of the draft act, including through informal consultations and other procedures not directly enshrined in the EU primary law. Although the Council continues to dominate in most cases of the use of special legislative procedure, Parliament nevertheless has relatively wide opportunities to influence the position of the Council. De facto, the expansion of the Parliament’s powers within the framework of a special legislative procedure is facilitated by both the position of the EU Court, expressed in a number of decisions on specific cases, and the increased degree of Parliament’s influence on the activities of the Commission (which, as a general rule, has the right to initiate legislation), enshrined in the provisions of the constituent agreements.

The article deals with the problems of legal regulation of expert activity. It is noted that there are many regulatory legal acts that regulate the conduct of various examinations. The article analyzes the legislation regulating the conduct of both non-judicial and judicial examinations, including supranational ones. Although non-judicial examinations are diverse, the article notes that their legal regulation has much in common, but general issues are not regulated uniformly in the absence of grounds for this, since we are talking about issues that are not related to the specifics of a particular examination. And this, in the author’s opinion, is a lack of legal regulation of expert activity. The article examines the novelties of the legislation on forensic examinations, in particular, conducted by non-state experts. Attention is drawn to all the main problems of legal regulation that have been discussed since 2012, when work began on a new law on judicial expert activity, but have not been resolved by the legislator. Attention is paid to the legal regulation of the activities of forensic experts. The article concludes that the courts are suspicious of the conclusions of expert examinations conducted by non-judicial experts when considering disputes between regulatory authorities and interested parties, as well as when considering criminal and administrative cases. Often, examinations conducted for the purpose of control are groundlessly rejected by the court, and the court appoints forensic examinations, which are entrusted to experts who do not have the necessary knowledge, experience, methods, equipment; they accept them «on faith», without establishing the reasons for discrepancies between experts, without conducting the necessary procedural actions. That is, not being experts, the judges unreasonably decide which of the two expert opinions to accept. As a result, significant harm can be caused to the state interests, which is shown by the example of customs examinations. It is also noted that there are many similarities between forensic examinations and, for example, examinations conducted for control purposes. It is proposed to formulate a single law on the basis of expert activity, not limited only to judicial expert activity. The issues that require legal regulation are listed. The need to take into account the achievements of the legislation of the Eurasian Economic Union on expertise in the development of national legislation was noted.

This article examines the problem of the exercise of parental rights (guardianship rights) in relation to a minor. At present, there are quite numerous disputes between parents, other persons entitled to rights in relation to minors, about the place of residence of the child and about with whom he will live. Controversial issues are resolved both out of court proceedings and in court. The Code of Civil Procedure of the Russian Federation establishes the powers of the prosecutor to apply to the court in cases of this category and to intervene to give an opinion.The purpose of the article is to present the results of a study of the peculiarities of the participation of a prosecutor in court proceedings in cases of the return of a child (on the exercise of access rights in relation to him). The tasks were to generalize judicial practice, identify violations in the consideration of cases by the courts, establish the specifics of the participation of the prosecutor in the proceedings in cases of this category. The author analyzes the issues of the prosecutor’s competence at the pre-trial stage of resolving disputes and the measures that he has the right to initiate in defense of the violated rights of the parent (another person who applied to the prosecutor’s office) in the administrative and judicial order. In connection with the consolidation in the Code of Civil Procedure of the Russian Federation, the right of the prosecutor to initiate proceedings in a court of general jurisdiction in cases of the considered category, attention is paid to the issues of determining jurisdiction and the subject of proof, the time frame for going to court, the time period for the proceedings, the time period for challenging the court decision. The emphasis is also placed on the implementation of the right of the prosecutor to intervene in the case to give an opinion. On the basis of the provisions of the 1980 Hague Convention, the results of practice, the generalization of the reasons for the cancellation of the decisions of the courts, the conclusions on the most significant aspects that need to be paid attention are substantiated. It is concluded that the judicial practice of considering cases of this category is being formed and is currently not free from violations of the requirements of the law. Attention is drawn to the conclusions of the Supreme Court of the Russian Federation based on the materials of the generalization of practice.

The article analyzes the question of the optimal composition of the court for resolving domestic violence cases as a means to ensure more effective protection of victims of family violence and an appropriate legal response to this phenomenon. Special attention is paid to the peculiarities of consideration of such cases by the jury. The author attempts to observe the advantages and disadvantages of this type of legal proceedings in domestic violence cases, taking into account the peculiarities of the procedural form itself, as well as the substantive legal characteristics of crimes committed in the domestic context. The analysis was conducted through the prism of the criteria of the court’s impartiality, the specifics of evidentiary process and of the judicial review of the final judgments rendered in such cases. As a result, it was concluded that, although the features of the procedural form in question impose certain restrictions on the participants in criminal proceedings, the consideration of domestic violence cases by a jury, as an alternative to a professional judge, has undoubted advantages and prospects for its more common use.

The article deals with the specifics of committing fraudulent actions in the field of mobile Internet applications. The question of the security of official (App Store, Google Play) and unofficial platforms for downloading user programs for various purposes is raised. Examples of fraud are given and their negative consequences are demonstrated. The essence of “fleeceware”-applications is revealed and the pros and cons of the IOS and Android operating systems, which are the technical base in the mobile devices of the largest companies, are noted. There is an age category that is more exposed or may be exposed to illegal actions on the part of fraudsters in the field of IT technologies. In turn, the emphasis is placed on some gaps in those. systems and legislation in which the fraudster avoids criminal prosecution. The high latency of such crimes is confirmed due to the small damage to the victims of the assault, if we consider each victim separately, as well as due to the complexity of the crime itself. Measures are taken to prevent fraudulent actions related to online applications on mobile devices against yourself.