Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.37-44
Serhii Tikhonov, V. Vasylynchuk
Improvement of normative legal regulations of stages of operational investigative activities always was in the center of attention as authorities, as scientists. This makes actual the conducting of fundamental research. The definition and argumentation of the distribution of operational investigative activities at the stage, the ways of improvement in terms of modern changes to regulatory and legal acts, justifies the relevance of this article.The purpose of the article is to develop and publish recommendations, changes and additions to the normative and legal acts with improvement the role of the prosecutor during conducting operative-search cases by units that do operational investigative activities. During the research, we used a complex of scientific methods: systemic, formal-dogmatic (legal-technical), comparative-legal, analysis, synthesis, induction and deduction. Special literature was studied, the Law of Ukraine “On the Operational Investigative Activities,” Criminal Procedure Code of Ukraine, practice of judgement, and also we consulted with experts. After the research, a holistic view of the Ukrainian model of the stages of operational investigative activities was presented.The stage of operational investigative activities is a period during which the authorized operational units in accordance with the requirements of regulatory and legal acts search for and record information on the verification of a criminal offense, upgrade the acquisition of operational information, conduct operational proceedings and operational-investigative support of criminal proceedings in order to fulfill the tasks of operational investigative activities and criminal justice.Based on the results of the conducted research, it is proposed to improve the operative investigative legislation by determining the grounds for conducting operational investigative measures prior to the issuance of the decision of the investigating judge; operational support of criminal proceedings; to provide for the carrying out of operational investigative measures in special conditions, where the subjects of operational investigative activities can carry out operational investigative measures without a decision of the investigating judge in relation to a person, place or thing located in a temporarily occupied territory or a territory where state authorities are temporarily not exercise their powers; for all subjects of operational investigative activities in operational proceedings regarding the recording of information on particularly serious crimes, it is advisable to provide for the possibility of extending the terms up to 5 years.Prospects for further research should be the development of information and analytical support for the stages of operational investigative activities.
{"title":"Stages of Operational Investigative Activities","authors":"Serhii Tikhonov, V. Vasylynchuk","doi":"10.18523/2617-2607.2022.9-10.37-44","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.37-44","url":null,"abstract":"Improvement of normative legal regulations of stages of operational investigative activities always was in the center of attention as authorities, as scientists. This makes actual the conducting of fundamental research. The definition and argumentation of the distribution of operational investigative activities at the stage, the ways of improvement in terms of modern changes to regulatory and legal acts, justifies the relevance of this article.The purpose of the article is to develop and publish recommendations, changes and additions to the normative and legal acts with improvement the role of the prosecutor during conducting operative-search cases by units that do operational investigative activities. During the research, we used a complex of scientific methods: systemic, formal-dogmatic (legal-technical), comparative-legal, analysis, synthesis, induction and deduction. Special literature was studied, the Law of Ukraine “On the Operational Investigative Activities,” Criminal Procedure Code of Ukraine, practice of judgement, and also we consulted with experts. After the research, a holistic view of the Ukrainian model of the stages of operational investigative activities was presented.The stage of operational investigative activities is a period during which the authorized operational units in accordance with the requirements of regulatory and legal acts search for and record information on the verification of a criminal offense, upgrade the acquisition of operational information, conduct operational proceedings and operational-investigative support of criminal proceedings in order to fulfill the tasks of operational investigative activities and criminal justice.Based on the results of the conducted research, it is proposed to improve the operative investigative legislation by determining the grounds for conducting operational investigative measures prior to the issuance of the decision of the investigating judge; operational support of criminal proceedings; to provide for the carrying out of operational investigative measures in special conditions, where the subjects of operational investigative activities can carry out operational investigative measures without a decision of the investigating judge in relation to a person, place or thing located in a temporarily occupied territory or a territory where state authorities are temporarily not exercise their powers; for all subjects of operational investigative activities in operational proceedings regarding the recording of information on particularly serious crimes, it is advisable to provide for the possibility of extending the terms up to 5 years.Prospects for further research should be the development of information and analytical support for the stages of operational investigative activities.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49547479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.3-11
M. Koziubra
The article attempts to determine the approaches to explain and propose directions for obtaining answers to one of the most inexplicable theoretical and practical mysteries of law, namely how could one explain that given the absence of its common understanding (e.g. even concerning the term “law” or its analogy in the lexicon of a given nation), similar legal issues are solved primarily similarly in different legal systems.Regardless of the fact that the issue was a matter of research in Western legal scholarship for quite a while, admitting the problem, the ways of solving it are still under development. Therefore, the article critically analyzes the most common approaches to explaining the processes of legal systems integration and acculturation.Despite the activization of the influence of the named processes’ on the national legal systems, the article stipulates that they are unable to answer the raised question positively. The answer has to be looked for in deeper layers of legal history, namely in the common qualities of the phenomenon we know as the law. This quality is the category of justice which explains its essence.Regardless of the fact that the issue of justice and its correlation with the law is mostly in focus of European researchers, specifically those in the field of natural law, this and similar terms (its name differs in different languages) is widely applied far beyond the European continent. They originate in Ancient East, Egypt and Babylon. Early Christianity and other religions (Islam, Buddhism, Hinduism, etc.) also mention justice. This provides grounds to stipulate that justice is a universal category.Nevertheless, the issue of justice itself is quite relative and dynamic, therefore we cannot rely on it as the direct regulator of human behavior. Law, being a dynamic issue itself, requires more definite and stable guides. Universal principles of law may be the perfect fit for those in all legal systems. Justice widely reflects in those principles.Unfortunately, they are not yet adequately addressed in theoretical jurisprudence. However, their detection provides possibilities for adequate explanation of the named mystery of the law.
{"title":"Unsolved Mysteries of Law","authors":"M. Koziubra","doi":"10.18523/2617-2607.2022.9-10.3-11","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.3-11","url":null,"abstract":"The article attempts to determine the approaches to explain and propose directions for obtaining answers to one of the most inexplicable theoretical and practical mysteries of law, namely how could one explain that given the absence of its common understanding (e.g. even concerning the term “law” or its analogy in the lexicon of a given nation), similar legal issues are solved primarily similarly in different legal systems.Regardless of the fact that the issue was a matter of research in Western legal scholarship for quite a while, admitting the problem, the ways of solving it are still under development. Therefore, the article critically analyzes the most common approaches to explaining the processes of legal systems integration and acculturation.Despite the activization of the influence of the named processes’ on the national legal systems, the article stipulates that they are unable to answer the raised question positively. The answer has to be looked for in deeper layers of legal history, namely in the common qualities of the phenomenon we know as the law. This quality is the category of justice which explains its essence.Regardless of the fact that the issue of justice and its correlation with the law is mostly in focus of European researchers, specifically those in the field of natural law, this and similar terms (its name differs in different languages) is widely applied far beyond the European continent. They originate in Ancient East, Egypt and Babylon. Early Christianity and other religions (Islam, Buddhism, Hinduism, etc.) also mention justice. This provides grounds to stipulate that justice is a universal category.Nevertheless, the issue of justice itself is quite relative and dynamic, therefore we cannot rely on it as the direct regulator of human behavior. Law, being a dynamic issue itself, requires more definite and stable guides. Universal principles of law may be the perfect fit for those in all legal systems. Justice widely reflects in those principles.Unfortunately, they are not yet adequately addressed in theoretical jurisprudence. However, their detection provides possibilities for adequate explanation of the named mystery of the law.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48186409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.18-25
I. Basysta
In the currently effective Criminal Procedure Code of Ukraine, the issue of collection of procedural expenses is codified in a somewhat ambiguous form. So the scholars discuss whether the list provided in Article 118 of the Criminal Procedure Code of Ukraine is exhaustive, how “procedural” and “court” expenses should be construed, and whether a collection of procedural expenses in a criminal proceeding qualifies as a civil law action. It is not surprising that, in this situation, the judicial practice in the mentioned sphere of issues can vary significantly.The Grand Chamber of the Supreme Court practically bound the courts to resolve the issues of distribution of judicial expenses in any resolution that finalizes any criminal trial proceeding. This also includes the relevant decision in a ruling on closing a criminal proceeding due to exemption of a person from criminal liability.For this reason, an attempt is made to prove that Part 3 of Article 285 of the Criminal Procedure Code of Ukraine needs to be amended by adding a phrase to the effect that a suspect or an accused needs to be informed that in cases where he or she is exempted from criminal liability, and the criminal proceeding related to them is closed due to this reason (which does not constitute rehabilitation), the court would still collect certain procedural expenses from this person.Because in its current wording, and also in the cases where the legislator, in Article 124 of the Criminal Procedure Code of Ukraine, in particular in its Parts 1 and 2, applies only the approach that it is possible to collect procedural expenses from the accused “in case of a judgment of conviction,” I do not consider it possible to collect from a person who is “factually acquitted” from a criminal liability the procedural expenses that are mentioned in Parts 1-2 of Article 124 of the Criminal Procedure Code of Ukraine.
{"title":"Collection of Procedural Expenses Due to Closing of Criminal Proceeding Based on Exemption of a Person from Criminal Liability: Specific Issues","authors":"I. Basysta","doi":"10.18523/2617-2607.2022.9-10.18-25","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.18-25","url":null,"abstract":"In the currently effective Criminal Procedure Code of Ukraine, the issue of collection of procedural expenses is codified in a somewhat ambiguous form. So the scholars discuss whether the list provided in Article 118 of the Criminal Procedure Code of Ukraine is exhaustive, how “procedural” and “court” expenses should be construed, and whether a collection of procedural expenses in a criminal proceeding qualifies as a civil law action. It is not surprising that, in this situation, the judicial practice in the mentioned sphere of issues can vary significantly.The Grand Chamber of the Supreme Court practically bound the courts to resolve the issues of distribution of judicial expenses in any resolution that finalizes any criminal trial proceeding. This also includes the relevant decision in a ruling on closing a criminal proceeding due to exemption of a person from criminal liability.For this reason, an attempt is made to prove that Part 3 of Article 285 of the Criminal Procedure Code of Ukraine needs to be amended by adding a phrase to the effect that a suspect or an accused needs to be informed that in cases where he or she is exempted from criminal liability, and the criminal proceeding related to them is closed due to this reason (which does not constitute rehabilitation), the court would still collect certain procedural expenses from this person.Because in its current wording, and also in the cases where the legislator, in Article 124 of the Criminal Procedure Code of Ukraine, in particular in its Parts 1 and 2, applies only the approach that it is possible to collect procedural expenses from the accused “in case of a judgment of conviction,” I do not consider it possible to collect from a person who is “factually acquitted” from a criminal liability the procedural expenses that are mentioned in Parts 1-2 of Article 124 of the Criminal Procedure Code of Ukraine.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68267426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.26-36
Kateryna Bida
The paper addresses the topic of business entities’ rights and interests protection in courts with participation of the prosecutor. The goal of the publication lies in defining the nature of the prosecutor’s participation in commercial trials influence upon adherence with the principle of equality of commercial process parties as a necessary condition for adjudicating a just judgment in a case. To reach this goal, the author defines and fulfills the following tasks: 1) to define the main academic approaches to the resolution of the prosecutor’s participation in a commercial process issue; 2) to describe normative regulation of the prosecutor’s participation in a commercial process; 3) to expose the meaning of the principle of equality of the parties of a commercial process; 4) to define the most important provisions regarding the prosecutor’s engaging into the commercial process elaborated in case-law of national higher courts and ECtHR; 5) to make conclusions on adhering to the principles of equality of the parties of a commercial process and efficient business entities’ rights protection in a trial with the prosecutor’s participation.The methodology of the study includes such methods as formal-legal and comparative-legal methods, the method of systematic analysis and generalization of judicial practice.The scientific novelty of the study is in defining the influence of the prosecutor’s participation in the commercial process on the (1) balance of interests of the parties, ensuring the principle of equality before the law and the court of all the participants of the economic process, (2) observing the principle of dispositibility and the rule of law, taking into account the constitutional principles of representation of the individual’s interests in the court by the lawyer, as well as participants circle of economic legal relations and economic procedural relations.According to the results of the research, it was concluded that narrowing of the range of cases (grounds) for the prosecutor’s participation in the commercial process in order to protect the interests of the state meets the standards of rule of law, of equality of the parties, and of dispositivity in the judication of disputes with the purpose of protection by business entities of their rights. The development of Ukrainian legislation in this direction is generally in line with the process of democratization of society, the rule of law, and the right to fair trial, which is impossible to ensure without respect for the principle of equality of the parties.
{"title":"Equality of the Parties in the Disputes for Protection of Economic Rights with Participation of the Prosecutor: on the Materials of Case-Law","authors":"Kateryna Bida","doi":"10.18523/2617-2607.2022.9-10.26-36","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.26-36","url":null,"abstract":"The paper addresses the topic of business entities’ rights and interests protection in courts with participation of the prosecutor. The goal of the publication lies in defining the nature of the prosecutor’s participation in commercial trials influence upon adherence with the principle of equality of commercial process parties as a necessary condition for adjudicating a just judgment in a case. To reach this goal, the author defines and fulfills the following tasks: 1) to define the main academic approaches to the resolution of the prosecutor’s participation in a commercial process issue; 2) to describe normative regulation of the prosecutor’s participation in a commercial process; 3) to expose the meaning of the principle of equality of the parties of a commercial process; 4) to define the most important provisions regarding the prosecutor’s engaging into the commercial process elaborated in case-law of national higher courts and ECtHR; 5) to make conclusions on adhering to the principles of equality of the parties of a commercial process and efficient business entities’ rights protection in a trial with the prosecutor’s participation.The methodology of the study includes such methods as formal-legal and comparative-legal methods, the method of systematic analysis and generalization of judicial practice.The scientific novelty of the study is in defining the influence of the prosecutor’s participation in the commercial process on the (1) balance of interests of the parties, ensuring the principle of equality before the law and the court of all the participants of the economic process, (2) observing the principle of dispositibility and the rule of law, taking into account the constitutional principles of representation of the individual’s interests in the court by the lawyer, as well as participants circle of economic legal relations and economic procedural relations.According to the results of the research, it was concluded that narrowing of the range of cases (grounds) for the prosecutor’s participation in the commercial process in order to protect the interests of the state meets the standards of rule of law, of equality of the parties, and of dispositivity in the judication of disputes with the purpose of protection by business entities of their rights. The development of Ukrainian legislation in this direction is generally in line with the process of democratization of society, the rule of law, and the right to fair trial, which is impossible to ensure without respect for the principle of equality of the parties.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45894852","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.57-62
L. Kovalenko
The article reveals the essence of the informational and legal basis of the activity of pre-trial investigation bodies. The scientific conclusions regarding the informational and legal bases of the activities of the pretrial investigation bodies were analyzed. The main areas of research of scientists who, at various stages, were engaged in the study of problems related to the general characteristics of the information and legal foundations of pre-trial investigation bodies were studied. It is substantiated that the informational and legal bases of the activity of pre-trial investigation bodies are: informational and legal principles of the activity of pre-trial investigation bodies, some types of information, information systems, acts of pre-trial investigation bodies and other components. Considerable attention is paid to clarifying the content and classification of information used by pre-trial investigation bodies in their activities. The content of other components of the informational and legal basis of the activity of pre-trial investigation bodies is clarified. Arguments are given in favor of the fact that the most sustained in theory and the most suitable for the Ukrainian system of informational and legal bases of activities of pre-trial investigation bodies is the codification of norms that would regulate the informational and legal bases of activities of pre-trial investigation bodies into the relevant law or code.On the basis of the achievements of legal science, the norms of the current national legislation, the practice of its application, a theoretical generalization of the problems of the informational and legal basis of the activity of pre-trial investigation bodies was carried out, the conceptual bases were outlined and the modern idea of the concept, essence, signs, types of informational and legal acts of the bodies was clarified of pre-trial investigation, information systems, and other components of the informational and legal bases of the activity of pre-trial investigation bodies. The provision on the introduction of international standards of the informational and legal bases of the activity of pre-trial investigation bodies into the national model is argued.
{"title":"Informational and Legal Basis of the Activities of Pre-Trial Investigation Bodies","authors":"L. Kovalenko","doi":"10.18523/2617-2607.2022.9-10.57-62","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.57-62","url":null,"abstract":"The article reveals the essence of the informational and legal basis of the activity of pre-trial investigation bodies. The scientific conclusions regarding the informational and legal bases of the activities of the pretrial investigation bodies were analyzed. The main areas of research of scientists who, at various stages, were engaged in the study of problems related to the general characteristics of the information and legal foundations of pre-trial investigation bodies were studied. It is substantiated that the informational and legal bases of the activity of pre-trial investigation bodies are: informational and legal principles of the activity of pre-trial investigation bodies, some types of information, information systems, acts of pre-trial investigation bodies and other components. Considerable attention is paid to clarifying the content and classification of information used by pre-trial investigation bodies in their activities. The content of other components of the informational and legal basis of the activity of pre-trial investigation bodies is clarified. Arguments are given in favor of the fact that the most sustained in theory and the most suitable for the Ukrainian system of informational and legal bases of activities of pre-trial investigation bodies is the codification of norms that would regulate the informational and legal bases of activities of pre-trial investigation bodies into the relevant law or code.On the basis of the achievements of legal science, the norms of the current national legislation, the practice of its application, a theoretical generalization of the problems of the informational and legal basis of the activity of pre-trial investigation bodies was carried out, the conceptual bases were outlined and the modern idea of the concept, essence, signs, types of informational and legal acts of the bodies was clarified of pre-trial investigation, information systems, and other components of the informational and legal bases of the activity of pre-trial investigation bodies. The provision on the introduction of international standards of the informational and legal bases of the activity of pre-trial investigation bodies into the national model is argued.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46365862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.77-86
Yu. Myroshnychenko
The article presents the situational characteristics of the next stage of court proceedings as an element of the basic court methodics, which in its content should disclose the activities of the court at all stages of the court proceedings, give recommendations on its choice, conduct proceedings, use the most appropriate means of influencing specific court situations, presented by complexes of procedural actions and tactics of their carrying out at various stages of court proceedings.The analyzed stage includes the preparatory part of the trial, clarification of the circumstances established during the pre-trial investigation, and verification of their evidence. Situations at this stage are characterized by the fact that the court with the participation of the parties conducts a direct examination of all evidence necessary to substantiate the sentence or other decision that may be made as a result of the trial.The example of the situational characteristics of the central part of the proceedings demonstrates what a basic judicial methodics can look like, which contains recommendations on the decisions and actions of the presiding judge in a given situation of a certain stage of the general procedure of criminal proceedings. The structure of this model, which will continue to be filled with new elements, can theoretically be used as a sample for building criminalistic methods of certain types of court proceedings, and applied as a set of practical advice for judges to resolve specific court situations. It is stated that the key issue that radically affects the choice of tactics of the trial is to determine the order of submission by the parties of the evidence collected by them, which includes the order and method of their study. Variants of the sequence of judicial examination of evidence are presented, in particular in multiepisode cases, in cases of crimes committed by criminal groups, in situations where the accused deny their guilt. The issue of the possibility of using in court the testimony of the accused, victims and witnesses obtained during the pre-trial investigation was considered.
{"title":"Situation Model of the Next Stage of Court Proceedings","authors":"Yu. Myroshnychenko","doi":"10.18523/2617-2607.2022.9-10.77-86","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.77-86","url":null,"abstract":"The article presents the situational characteristics of the next stage of court proceedings as an element of the basic court methodics, which in its content should disclose the activities of the court at all stages of the court proceedings, give recommendations on its choice, conduct proceedings, use the most appropriate means of influencing specific court situations, presented by complexes of procedural actions and tactics of their carrying out at various stages of court proceedings.The analyzed stage includes the preparatory part of the trial, clarification of the circumstances established during the pre-trial investigation, and verification of their evidence. Situations at this stage are characterized by the fact that the court with the participation of the parties conducts a direct examination of all evidence necessary to substantiate the sentence or other decision that may be made as a result of the trial.The example of the situational characteristics of the central part of the proceedings demonstrates what a basic judicial methodics can look like, which contains recommendations on the decisions and actions of the presiding judge in a given situation of a certain stage of the general procedure of criminal proceedings. The structure of this model, which will continue to be filled with new elements, can theoretically be used as a sample for building criminalistic methods of certain types of court proceedings, and applied as a set of practical advice for judges to resolve specific court situations. It is stated that the key issue that radically affects the choice of tactics of the trial is to determine the order of submission by the parties of the evidence collected by them, which includes the order and method of their study. Variants of the sequence of judicial examination of evidence are presented, in particular in multiepisode cases, in cases of crimes committed by criminal groups, in situations where the accused deny their guilt. The issue of the possibility of using in court the testimony of the accused, victims and witnesses obtained during the pre-trial investigation was considered.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43521882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.71-76
A. Koshman
The article studies the influence of COVID-19 pandemic on the implementation of information and communication technology while delivering justice. Rapid spread of SARS COVID-19, connected with the introduction of quarantine limitations and introduction of anti-epidemic measures greatly contributed to the development of electronic justice. The core reason for the misapprehension has been uncovered to determine the concept of electronic justice and its structure as well as the name and content of its separate elements. It also provides supporting points for the usage of the concept of remote justice on the national level, which is viewed as a separate element of electronic justice and envisages сase hearing and deciding with the help of information and communication technology without the mandatory presence at the courtroom. Previous research and court practice prove the controversial impact of remote justice on the parties’ rights and the justice efficiency. Attention is drawn to the importance of conducting scientific analysis of remote justice from the point of view of its unprecedented volume of implementation. A number of countries have adopted the system of holding remote court trials as a main form of hearing a case while other exceptions had to be conditioned. In such cases court hearings are delivered by means of audio or video conferences when the parties, their representatives, judges and court employees are outside the courtroom. In-depth study of the ways to carry out remote justice, analysis of its benefits and problematic aspects will give an opportunity to precisely assess the prospects of remote justice implementation on a regular basis particularly in Ukraine. The article justifies an idea that the assessment of the remote justice impact on the delivery of the personal right of the court protection should be carried out by means of adherence to and full implementation of constitutional principles of judicial proceedings. It is essential to characterize how completely the equality of the court trial parties is proved in front of the law and court during the remote delivery of justice; it is also applicable to the competitiveness of the parties, freedom to provide proofs to court, proving of them in front of the court, transparency of the trial etc. It has been concluded that the scientific analysis of opportunities which are provided by the independent implementation of constitutional concepts, which are held by remote justice will serve as a source of information to decide on the future volume and formats of implementation of this form of justice in Ukraine.
{"title":"Perspectives for the Application of Remote Justice after COVID-19 Pandemic","authors":"A. Koshman","doi":"10.18523/2617-2607.2022.9-10.71-76","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.71-76","url":null,"abstract":"The article studies the influence of COVID-19 pandemic on the implementation of information and communication technology while delivering justice. Rapid spread of SARS COVID-19, connected with the introduction of quarantine limitations and introduction of anti-epidemic measures greatly contributed to the development of electronic justice. The core reason for the misapprehension has been uncovered to determine the concept of electronic justice and its structure as well as the name and content of its separate elements. It also provides supporting points for the usage of the concept of remote justice on the national level, which is viewed as a separate element of electronic justice and envisages сase hearing and deciding with the help of information and communication technology without the mandatory presence at the courtroom. Previous research and court practice prove the controversial impact of remote justice on the parties’ rights and the justice efficiency. Attention is drawn to the importance of conducting scientific analysis of remote justice from the point of view of its unprecedented volume of implementation. A number of countries have adopted the system of holding remote court trials as a main form of hearing a case while other exceptions had to be conditioned. In such cases court hearings are delivered by means of audio or video conferences when the parties, their representatives, judges and court employees are outside the courtroom. In-depth study of the ways to carry out remote justice, analysis of its benefits and problematic aspects will give an opportunity to precisely assess the prospects of remote justice implementation on a regular basis particularly in Ukraine. The article justifies an idea that the assessment of the remote justice impact on the delivery of the personal right of the court protection should be carried out by means of adherence to and full implementation of constitutional principles of judicial proceedings. It is essential to characterize how completely the equality of the court trial parties is proved in front of the law and court during the remote delivery of justice; it is also applicable to the competitiveness of the parties, freedom to provide proofs to court, proving of them in front of the court, transparency of the trial etc. It has been concluded that the scientific analysis of opportunities which are provided by the independent implementation of constitutional concepts, which are held by remote justice will serve as a source of information to decide on the future volume and formats of implementation of this form of justice in Ukraine.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41604477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.45-56
Oleksiy Gorokh
The appearance of new criminal law institutes in the legislation requires scientific justification. The purpose of the article is to determine the author’s vision of the probation institution model in the draft of the new Criminal Code of Ukraine. In order to achieve the set goal, using historical legal, comparative, dialectical, systemic, hermeneutic, and other methods, international standards of treatment of offenders, the national and foreign legislation, doctrinal provisions were analyzed, formulated proposals for the project of the new Criminal Code of Ukraine were highlighted.According to the results of the conducted research, the provisions of the legal institution of probation in the project of the new Criminal Code of Ukraine have been scientifically substantiated. The considerations that guided the working group on the development of new criminal legislation when formulating new legislative provisions are given. The definition of the concept of probation and means of probation is substantiated, and the persons to whom probation is applied are outlined. Arguments are given regarding the expediency of establishing the general principles of probation and the rules for canceling, changing or supplementing probation measures. The duration of probation for different persons, as well as the legal consequences of probation, are determined.Probation as a criminal legal tool is a control, corrective and supervisory tool defined by the criminal law, which involves restrictions on the exercise of human rights or freedoms and is applied by the court to a person convicted of a crime, with the aim of ensuring the safety of society and encouraging this person to obey the law. At the same time, probation as a criminal law institution is an externally designed structural element of the field of criminal law (its General part), which constitutes a system of criminal law norms designed to comprehensively regulate social relations arising between the state and a person convicted of a crime, with the aim of ensuring society and encouraging this person to obey the law.The system of means of probation is a complex integrated complex of socially determined, qualitatively defined, interconnected and interacting elements, which have an integral structure. According to the content and functionality, the working group proposes to combine the means of probation into three groups: 1) control; 2) corrective; 3) supervisory.The positive consequences of probation in the form of non-fulfillment of the prescribed punishment occur for the person who behaved positively during probation. Probation has proven its effectiveness in practice, as more than 90 % of convicts to whom it is applied have positive consequences. The negative consequences of probation arise in connection with a person’s negative behavior and are differentiated for different categories of persons.
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Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.63-70
Serhii Kolomiets
An important condition for the proper and fair application of immunity from punishment by the courts is compliance by the courts with the guidelines of release from punishment. It must be stated that the guidelines of release from punishment are a relatively “young” legal phenomenon that has not yet been sufficiently explored in criminal law doctrine. The purpose of the article is to define the concept of guidelines of release from punishment. With the use of dialectical, systemic, and hermeneutic scientific methods of cognition, the author analyzed the features of the analyzed concept and, for the first time in domestic legal science, formulated the definition of the concept of guidelines of release from punishment.Additional arguments are given in favor of the position that the principles and guidelines of release from punishment are relatively independent concepts of criminal law, which are in a certain relationship and relationship, which seems correct. In this regard, it is proposed to consider guidelines of release from punishment in the sense of not principles, but general rules of application of the provisions of this criminal law institution.It was concluded that the position expressed in the legal literature regarding the signs of the guidelines of release from punishment needs further improvement.The author believes that guidelines of release from punishment should be characterized by the following features: 1) certainty; 2) obligation; 3) generality; 4) productivity; 5) systematicity; 6) thoroughness based on the principles of exemption from punishment.Taking into account these characteristics, guidelines of release from punishment should be considered a system of general and mandatory for the court established by law, interrelated and interacting initial rules based on the principles release from punishment, which should be guided by the court applying a certain type of release from punishment in each criminal proceedings and for each convicted person.A formulation based on the analyzed concept of the system of guidelines of release from punishment seems promising for further research.
{"title":"Concept of Guidelines of Release from Punishment","authors":"Serhii Kolomiets","doi":"10.18523/2617-2607.2022.9-10.63-70","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.63-70","url":null,"abstract":"An important condition for the proper and fair application of immunity from punishment by the courts is compliance by the courts with the guidelines of release from punishment. It must be stated that the guidelines of release from punishment are a relatively “young” legal phenomenon that has not yet been sufficiently explored in criminal law doctrine. The purpose of the article is to define the concept of guidelines of release from punishment. With the use of dialectical, systemic, and hermeneutic scientific methods of cognition, the author analyzed the features of the analyzed concept and, for the first time in domestic legal science, formulated the definition of the concept of guidelines of release from punishment.Additional arguments are given in favor of the position that the principles and guidelines of release from punishment are relatively independent concepts of criminal law, which are in a certain relationship and relationship, which seems correct. In this regard, it is proposed to consider guidelines of release from punishment in the sense of not principles, but general rules of application of the provisions of this criminal law institution.It was concluded that the position expressed in the legal literature regarding the signs of the guidelines of release from punishment needs further improvement.The author believes that guidelines of release from punishment should be characterized by the following features: 1) certainty; 2) obligation; 3) generality; 4) productivity; 5) systematicity; 6) thoroughness based on the principles of exemption from punishment.Taking into account these characteristics, guidelines of release from punishment should be considered a system of general and mandatory for the court established by law, interrelated and interacting initial rules based on the principles release from punishment, which should be guided by the court applying a certain type of release from punishment in each criminal proceedings and for each convicted person.A formulation based on the analyzed concept of the system of guidelines of release from punishment seems promising for further research.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42854996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.87-97
Oleksii Tseliev
Since the establishment of the guidelines for the development of the welfare state and the rule of law in Ukraine, doctrinal debates about the content of these concepts have not stopped. Legal theoreticians, constitutionalists, jurists of the sectoral direction investigate various problematic issues related to both – the rule of law and the welfare state. Such studies mainly concern each concept taken separately. The range of scientific research is pretty wide, starting from the attempts to formulate a comprehensive definition up to efforts to provide a universal list of signs (components) of each of the named phenomena. However, many domestic researchers pay attention to the contradictions between the doctrines of the welfare state and the rule of law rather than to their separateness. These contradictions are embedded in their deep essence, and which, in their practical dimension, can hinder the development of both – the welfare state and the rule of law. Nevertheless, the Euro-Atlantic civilization, of which Ukraine sees itself as a part, is constantly moving towards the socialization of states and the development of the rule of law. This process does not take place with the same success in all states. Ukraine belongs to those states that prefer to declare this intention. There are many explanations for this state of affairs, but the author of this article focuses on only one of them, namely the unjustified interference of state institutions in the free development of society based on respect for human rights and the rule of law.The author’s conclusions relate to the ways of overcoming the existing contradictions between the two concepts. First of all, we are talking about human dignity, as the basis of all human rights, including social rights. Other ways are the application of such components of the rule of law as proportionality, limitation of discretionary powers, legal certainty, transparency and accessibility, the right to appeal, etc.
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