The rule-of-low state: theory and practice
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The Balance of Public and Private Principles in Criminal Proceedings
Copyright (c) 2025 The rule-of-low state: theory and practice
Does It Exist (and Should It Exist) a Balance of Public and Private Principles in Russian Criminal Proceedings?
In order to effectively fulfil state tasks in the field of activities of criminal justice authorities, a legislative definition of a reasonable correlation between public and private principles is required both in criminal procedure legislation and in the same-name area of self-realisation of the subjects of criminal proceedings. Purpose: to study formation patterns and establish scales (proportions) of interaction between state (public) and private interests in criminal proceedings. Methods: formal and dialectical logic, comparison, description, interpretation, historical and interpretation of legal norms. Results: the research reveals a methodologically and substantively justified disparity in the ratio of legal means and methods of ensuring public and private interests in criminal proceedings in Russia. The existing imbalance of public and private principles, reflecting primarily the official nature of the activities of state bodies authorised to carry out criminal proceedings, has objective prerequisites rooted in the history of the formation of the national criminal justice system. The presence, precisely in the rank of exception, of legal means of protecting private interests in the public branch of Russian law, and specifically in criminal procedure law and in the relevant field of state activity, is strictly dictated by our belonging to the continental legal system and the mixed nature of Russian criminal proceedings.
The Creation of the Institution of the Departmental Criminal Court and the Ideologization of the Process of Justice Reform in France
The Justice Programming Act of 23 March 2019 created a new judicial body in France, the departmental criminal court, which is composed of five professional judges and, instead of a court of assizes, hears crimes committed without recidivism and punishable by either 15 or 20 years of imprisonment. The judicial reform was hastily adopted without the support of either the judiciary or the lawyers. It is fully part of the global processes of justice reform, which, in particular, has resulted in its atomisation and “de-statization”.
Methodological Prerequisites for Recognising the Balance of Public and Private Interests as a Principle of Modern Russian Criminal Procedure
The drafters of the Criminal Procedure Code of the Russian Federation attempted to implement the idea of restructuring criminal proceedings following the Anglo-Saxon model. To this end, the principle of adversarial proceedings was introduced into the Code at the pre-trial and trial stages. As a result, the judicial proceedings were brought into conformity with the constitutional rule on the mandatory exercise of any justice based on adversarial principles (Part 3 of Article 123 of the Constitution of the Russian Federation). The content of pre-trial proceedings, where the investigator was a full-fledged “master” of the case, remained unchanged in principle. The situation in which the adversarial nature declared in the General Part of the Criminal Procedure Code of the Russian Federation was not ensured in pre-trial proceedings by an appropriate procedural mechanism, led to further reform of the Code and constant additions and amendments to it. This did not lead to substantive changes in the existing continental criminal procedure of mixed type and its transfer to the Anglo-Saxon adversarial form, but revealed the main criterion for reforming the current and creating future criminal proceedings, which is the balance of public and private interests. Methods: the research is carried out using dialectical, general scientific (logical, analysis, synthesis, induction, deduction) and specific scientific (formal-legal, interpretation of legal norms) methods. Results: the balance of public and private interests is the main factor in improving the current and creating prospective national criminal procedure legislation. The article substantiates its content and the need to enshrine it in Chapter 2 of the Criminal Procedure Code of the Russian Federation as a principle of criminal proceedings with the proposal of the wording of the relevant norm.
Referral of Individual Issues of a Criminal Case for Resolution in Civil Proceedings
The article addresses problematic issues arising when the fate of a civil claim cannot be determined in a criminal case considered in a court of first instance, as well as in cases of termination of a criminal case or criminal prosecution in pre-trial proceedings. The purpose of the study is to substantiate the idea of the need to improve legislation, taking into account the analysis of the problems of regulating civil claims in criminal proceedings, as well as the use of property seizure in order to secure such a claim. Methods: in preparing the article, the dialectical method is used, as well as general scientific (logical, analysis, synthesis, induction, deduction) and specific scientific (formal legal, interpretation of legal norms) methods. Results: the authors have developed approaches related to solving problems of proving circumstances relating to the amount of harm caused by a crime when transferring the issue of its compensation from criminal to civil proceedings. Relevant case law is illustrated. The article proposes measures to ensure the safety of seized property at the onset of conditions associated with the change of the legal dispute resolution regime. The ways to optimise legislative regulation of this direction of law enforcement activity are outlined.
Issues of the Theory of Criminal Procedure Agreements: Parties and Conclusion Procedure
There are four types of criminal procedure acts in pre-trial criminal proceedings: acts of application of law, procedural appeals, procedural acts of dispositive nature and procedural agreements. In the current criminal procedure legislation, there is only one example of the latter type of procedural acts, namely a pre-trial co-operation agreement. Such a limited scope of contractual relations in criminal proceedings is explained by its public law nature; however, this does not mean that this type of criminal procedure acts has no prospects for development. To make them real it is required to develop a theory of criminal procedure agreements. The purpose of the study is to develop, based on analysing the regulation of a pre-trial cooperation agreement, general provisions that could constitute a theoretical basis for the regulation of criminal procedure agreements. In particular, it is necessary to define parties of procedural agreements, their subject matter, guarantees of the rights and legitimate interests of participants of procedural agreements at the conclusion stage, the limits of appealing against the refusal of authorities to conclude procedural agreements. The dialectical method serves as the methodological basis of the research. In addition, the general scientific methods of analysis, synthesis and systematic approach are used, as well as special legal methods, primarily logical-legal and legal interpretation. Results: the study shows that the obligations under a procedural agreement for each of its participants imply the performance of actions only in the interests of the opposing party; the conclusion of a procedural agreement requires the participation or control of the authorities conducting criminal proceedings; the participation of entities defending the rights and legitimate interests of a party to a procedural agreement shall act as a mandatory procedural guarantee of the legality of its conclusion; the decision of an official to refuse to conclude a procedural agreement shall be subject to appeal in the manner prescribed by law.
Returning a Criminal Case to the Prosecutor and Balancing Public and Private Interests
Criminal proceedings, being public by their nature, require in civilised states a balance between public and private interests. The approaches of the Constitutional Court of the Russian Federation to determining this balance are not always accurately embodied by the legislator in newly adopted criminal procedural norms. In recent years, there has been a gradual strengthening of public principles and narrowing of the sphere of private interest in a number of institutions of criminal procedure law. This is illustrated by the legal institution of returning a criminal case to the prosecutor. Purpose: to analyse the norms of the legal institution of returning a criminal case to the prosecutor through the prism of the balance of private and public interests. Methods: comparative-legal, historical, legal-dogmatic and interpretation of legal norms. Results: the study allows to substantiate the thesis that the balance of private and public principles in criminal proceedings is a very mobile “substance”, which is under the influence of constantly developing social relations (objective factor) and requests of ruling elites (subjective factor); the article reveals the main trends in the establishment of this balance in the system of norms of the legal institution of returning a criminal case to the prosecutor.
Private and Public Interests in Proceedings in Criminal Cases and the Digitalisation of Criminal Proceedings
The development of modern technologies that penetrate all spheres of public life, including criminal proceedings, the digitalisation of criminal proceedings raises the issue of whether the technologies introduced and the changing interaction between participants in criminal proceedings are compatible with private and public interests realised in the course of criminal proceedings. The purpose of the article is to analyse the compliance of the process of implementation of modern digital technologies with private and public interests in criminal proceedings. Methods: comparative-legal, system analysis, synthesis, prognosis. The author concludes that from the perspective of private and public interests in criminal proceedings, a number of technologies introduced in criminal proceedings fully correspond to both, as they facilitate the possibility for participants in criminal proceedings to exercise their rights, increase their awareness, and they optimise and rationalise the process of criminal proceedings for the state. However, a number of technologies are mainly in the public interest, as they optimise the activities of persons responsible for criminal proceedings, i.e., judges, investigators, prosecutors, and facilitate the work of authorised participants in the process. Artificial intelligence-based decision-making technologies in their current form do not serve either private or public interests, because they lack the emotional intelligence so necessary for resolving legal conflicts.
Compromise Criminal Law Relations (on the Example of Releasing a Person from Criminal Liability in View of Reconciliation with the Victim)
Norms and institutions based on satisfying private interests have been established in public branches of law. In criminal law, the problem of the relationship between private and public principles is particularly acute, given the importance of protected relations and the special power of the state in resolving issues of criminal liability. One of the most striking examples of the expression of private principles in criminal law is the release of a person from criminal liability in view of reconciliation with the victim (Art. 76 of the Criminal Code of Russian Federation). The main attention is paid to this norm due to the uncertainty of the grounds for releasing from criminal liability and contradictory disclosure in court decisions of the conditions of releasing from criminal liability mentioned in this article. Purpose: to study compromise criminal law relations and to consider the possibilities of improving the norm of Article 76 of the Criminal Code of Russian Federation and the practice of its application, based on the compromise nature of this norm and the content of the relations regulated by it. Methods: empirical methods of description, interpretation, theoretical methods of formal and dialectical logic; specific scientific methods: legal-dogmatic and interpretation of legal norms. Results: the article concludes that it is important to leave sufficient discretion to the law enforcement officer when releasing a person from criminal liability in view of reconciliation with the victim. Discretion should be limited in the only way – by legislation. It is in the law that the basis for the decision should be defined in order to balance public and private interests and in accordance with the compromise nature of the relevant rule. Without such a basis, judicial practice will remain contradictory. In the absence of legal limits of discretion, the Supreme Court of the Russian Federation sometimes imperatively bans the application of Article 76 of the Criminal Code, which destroys the foundations of compromise in criminal law.
Protection of Personal Non-Property Rights (Private Interest) of a Deceased Victim in Criminal Proceedings (By Public Law Methods)
Protection of citizens’ rights from criminal encroachments by criminal law and criminal procedure methods is the task of state bodies and officials. It is solved through criminal prosecution of suspects and defendants. The victim, endowed by criminal law and criminal procedure law with the right of criminal prosecution has the right to protect his or her rights and interests, including through the right to an effective investigation. The death of the victim does not suspend or eliminate the need to investigate and resolve the criminal case, since the purpose of criminal proceedings is to bring to criminal responsibility the person who committed the crime, to impose a fair punishment (or to release the innocent from criminal responsibility), to protect and restore the victim’s rights. Whether the victim’s rights are lost due to his death, whether the institute of legal succession in criminal proceedings is sufficiently regulated, what rights and to whom are transferred from the deceased victim, what are the features of protection of personal non-property rights of the victim through criminal proceedings. These issues are the subject of discussions in science and have not yet been resolved at the legislative level. The purpose of the study is to identify the problems of succession in criminal proceedings and their resolution in the doctrine regardless of what property or personal non-property rights of the deceased victim are protected, as well as to determine the impact on the status of the successor of the deceased victim of the moment of the victim’s death and the connection of the victim’s death with the crime. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; specific scientific methods: legal-dogmatic and interpretation of legal norms. Results: the study reveals the need to regulate the transfer of rights of the deceased victim to his close relatives, close persons or relatives, and in their absence to persons on the prosecution side through the institute of criminal procedure succession. The regulation of procedural rights of the legal successor of the victim should not be affected by the following circumstances: whether the victim died as a result of a crime committed against him or not in connection with it, or when the crime was committed against the property or personal non-property rights of the already deceased victim, protected by the state in the form of fundamental rights and freedoms enshrined in Chapter Two of the Constitution of the Russian Federation.
The Criminal Procedural Phenomenon of the Oath: a Legal Rudiment or an Undervalued Public Law Procedure?
The author’s scientific focus is on the question of whether the oath, as a procedural mechanism, is an outdated legal rudiment that has irretrievably lost its relevance in the context of modern criminal justice, or whether the oath should be considered a valuable but underestimated public law procedure allowing to increase the efficiency of criminal proceedings by strengthening the moral responsibility of participants for the content (completeness and truthfulness) of testimony. Purpose: to analyse the procedural institution of the oath, to determine its potential for strengthening the trust of the population, participants in criminal proceedings towards the criminal justice system and increasing responsibility for giving evidence. In the course of the study, the method of historical analysis is used, which makes it possible to determine the role and significance of the oath in criminal proceedings in different periods; the comparative legal method based on the analysis of criminal procedure legislation of some foreign countries; as well as the method of legal modeling, which allows to determine what transformations are required in the existing regulatory basis of the swearing-in procedure for individual participants in Russian criminal proceedings. Results: the swearing-in procedure for participants in criminal proceedings contributes to the formation of a correct attitude of those questioned to their procedural obligation to give truthful and complete testimony, and increases public confidence in justice.
Internal Conviction or the Standard of Proof?
The article, devoted in general to evidence in criminal proceedings, focuses on the problem of standards of proof and their role in ensuring the fairness of court decisions. The article studies the correlation of the concepts of “standard of evidence” and “standard of proof”, raises the question of criteria for assessing the sufficiency and reliability of evidence. Particular attention is paid to the interaction of the standard of proof with the subjective element – the judge’s inner conviction, which plays a key role in shaping the final decision. The paper analyses the contradictions that arise in applying these standards in the context of acquittal and defamation judgements, and discusses the safeguards for establishing the truth of a judgement in balancing procedural formality and judicial discretion. Purpose: the study of standards of proof, their content, the possibility of application in Russian criminal proceedings. Methods: general scientific methods (system and structural-functional analysis, synthesis, induction and deduction), as well as specific scientific (special) methods: comparative-legal, formal-legal, interpretative. Results: based on the conducted research, the author offers recommendations for improving legal mechanisms aimed at minimising judicial errors and strengthening confidence in the justice system.
“Post-Investigative” Familiarisation with Criminal Case Materials in the Context of Balancing Public and Private Interests
The relevance of the article is due to the unsuitability for the needs of law enforcement practice of the currently existing rules to acquaint defendants and lawyers with criminal case materials at the end of the preliminary investigation, primarily because of the predisposition of these rules to intentionally delay such a study. Purpose: to identify the causes that predetermined the emergence of shortcomings in the normative regulation of familiarisation with criminal case materials and to formulate proposals for their elimination. Methods: general scientific (dialectical, systemic, structural-functional, logical, etc.) and specific scientific (formal-legal, historical-legal, prognostic, etc.). Results: the article suggests that there is a need to review conceptual approaches to the procedure of familiarising the accused and his or her counsel with criminal case materials. The article states that in the modern context of the development of pre-trial mechanisms for criminal proceedings there is an objective need for the formation of a new, or rather, a highly updated model of the final part of the preliminary investigation, based on a reasonable balance of public and private interests as the most important condition for the implementation of state policy in the field of criminal justice. The article notes that when developing such a model, first of all, it is necessary to abandon the current extremely high level of comfort for non-powerful participants in criminal proceedings to realise their procedural opportunities.
The Balance of Private and Public Interests in Criminal Proceedings: Judicial Polity
Every human activity, including judicial proceedings, is driven by interests. These interests can be private and social, state and public. They often do not align and may contradict one another. The challenge lies in finding their balance. The public interest represents a rational compromise between social and state interests. Achieving this balance depends on the nature and quality of the state and its ability to provide conditions for the coexistence of various conflicting private and social interests through mutual adaptations that optimise sustainable interactions among different social forces. Purpose: to identify the optimal relationship between the forms of state governance on one hand and the public interest on the other, so that a reasonable balance of public and private principles is observed; to determine the place and role of public and private interests in contemporary criminal proceedings; to formulate the basic requirements for the mechanism of criminal proceedings, which would meet the correct proportions of public and private elements in it. Methods: structural-functional analysis, comparative-historical, institutional, typological, evolutionary, genetic, and formal-legal methods. Results: the best conditions for balancing public and private interests can be created under a form of governance such as a republic-polity (in the Aristotelian sense), where all subjects of political action perform coordinated functions beneficial to the common good, and authorities take into account the rational interests of all categories of citizens. In the realm of criminal proceedings, this form of governance corresponds to the principle of strict legality (officiality) in criminal prosecution. Contemporary “Western” left-liberal democracies operating within a postmodern paradigm have proven incapable of ensuring this principle. The fate of criminal proceedings increasingly depends on relativistic notions held by authorities regarding what constitutes a crime; the positions of prosecutors and investigators concerning the expediency of criminal prosecution; and agreements made between victims and defendants in the name of restoring “public peace”. This significantly complicates the achievement of both private and general crime prevention goals. However, the balance of interests in criminal proceedings is not the same as reconciliation or “public peace”. It primarily represents a process and outcome of a fair procedural struggle among parties endowed with sufficient legal subjectivity; this interconnected status ensures that every interest, including private egoistic interests, is directed toward and objectively contributes to the common cause of justice. A fair balance of interests in criminal proceedings can be ensured if all evidence is collected by the parties solely within adversarial judicial procedures, including during preliminary investigations; if preliminary investigation authorities assume a neutral function of objective investigation rather than accusation; if the burden of proof is flexibly dependent on the actual capability of participants in proving specific facts of the case (objective “feasibility of proof”); and if the termination of criminal cases “by mutual consent” is permitted only for excusable (exculpatory) offences, whose social danger depends on the perception of the victims.
The issue of Public and Dispositive Principles of Russian Criminal Proceedings (Through the Prism of Scientific Views of Professor L.N. Maslennikova)
The development of digital technologies, their implementation in the criminal procedure sphere of state activity, the formalisation of the process, on the one hand, and the insufficient scope of powers of participants in criminal proceedings to protect their rights and legitimate interests in criminal proceedings, on the other hand, make it necessary to re-examine the nature of publicity and dispositivity of criminal proceedings, to assess their correlation, to try to establish the boundaries of the optimal ratio and/or balance. This research is especially relevant through the prism of the scientific works and views of Larisa Nikolaevna Maslennikova as a tribute of deep respect and recognition in honour of the anniversary of the professor. Purpose: to identify the main scripts of Professor L.N. Maslennikova’s scientific approach to the essence, content and correlation of public and dispositive principles of modern criminal procedure and to assess their relevance through the prism of the legal positions of the Constitutional Court of the Russian Federation. Methods: dialectics, trialectics, methods of comparative research, description, interpretation; axiological method, axiomatic; specific scientific methods: legal-dogmatic and interpretation of legal norms. Results: the article formulates a conclusion about the relevance and effectiveness of the trialelectic method for analysing the public law nature of modern criminal proceedings; identifies the main trends of its development, allowing to ensure an optimal correlation of public and dispositive principles of criminal procedural activity.
Personal Data Protection in Criminal Proceedings
The penetration of information technologies and systems into all spheres of society and the state also affects the criminal justice system. The issues of its susceptibility to the trends of the era of computerisation, informatisation and digitalisation are related to many factors: the growing number of crimes committed with the use of information and communication technologies or in the sphere of computer information, the need to change the information environment of law enforcement and judicial bodies, the readiness and ability of the state to ensure the necessary level of information security of participants in criminal proceedings. The most vulnerable to these factors are the privacy and personal data of participants in criminal proceedings. Although the law of criminal procedure has in recent years established a number of additional procedural guarantees for their protection (non-disclosure of data on the verification of the crime report, the possibility of testifying under a pseudonym), unfortunately, this is insufficient at present. The article analyses the development of legislation on personal data, the concept of personal data, their correlation with the concept of citizens’ privacy, specific ways of personal data protection in criminal proceedings (inadmissibility of disclosure of preliminary investigation data, testimony under a pseudonym, closed court sessions).
The Adversarial Principle and the Balance of Public and Private in Criminal Proceedings
The proper understanding of the principles of adversarial proceedings and equality of the parties before the court in the administration of criminal proceedings was seriously transformed during the period of operation of the Criminal Procedure Code of the Russian Federation. This was largely influenced by the neoliberal Western agenda, actively imposed in the Russian Federation until 2022. Contrary to the historically formed public-law form of organisation of criminal proceedings in Russia, an expansive interpretation of the principle of adversarial proceedings and equality of the parties before the court was promoted, which influenced the formation, primarily among defence lawyers, of unfounded proposals to equalise the procedural opportunities of the lawyer and the investigator. The purpose of the study is to prove the necessity of transforming modern national criminal procedure legislation and the practice of its application to ensure the relationship with the current stage of development of our state, its historically established constitutional law and institutional forms. The paper provides examples of the organisation of criminal proceedings in other states, showing a very selective approach not only to the principle of adversarial proceedings and equality of parties in criminal proceedings, but also to the principle of presumption of innocence. The main research methods are the system-structural method, the comparative method, analysis, synthesis, and induction. Special legal and logical research methods are used. The study concludes that there is a need for a rational approach to the procedural possibilities of implementing the principle of adversarial proceedings and equality of parties as a permissible balance of public and private in the public-law form of organising criminal proceedings in the state, which primarily affects the preservation of state sovereignty in criminal proceedings. At the same time, it is pointed out that there are no contradictions between the adversarial method and the method of comprehensiveness, completeness and objectivity in criminal proceedings and that it should be normatively enshrined in the current criminal procedure legislation as a norm-principle.
On the Relativity of the Limits of Public and Private Interests in Criminal Proceedings
The distinction between private and public interests and the search for a balance between them in the system of criminal procedure regulation are in one way or another connected with all other theoretical and practical problems of criminal proceedings and criminal procedure policy. The issues of the relationship between public and private interests have always been at the epicentre of scientific discussions and acute ideological confrontation. Purpose: to show that in criminal proceedings, the overriding publicity of which has never been questioned, the protection of the legitimate private interests of participants in criminal proceedings and other persons dependent on those proceedings has always constituted a public interest as well. Methods: the historical method allows us to trace the dynamics of the formation of scientific ideas about the relationship between public and private interests in criminal proceedings; the concrete legal method consists in comparing these ideas with the requirements of the law in force in different historical periods; the method of structural-system analysis and synthesis is used to substantiate the author’s position on the subjects representing each of the analysed interests in specific legal relations, on the content of these interests and their correlation in each case. Results: the article formulates a conclusion about the conditionality of dividing the interests protected in criminal proceedings into public and private ones, since the public beginning of the entire criminal procedure presupposes equal protection of each legitimate interest, no matter who is its bearer in a particular situation. This approach allows ensuring the protection of society and each person from both crimes and abuses of power that pose an equal threat to public interests.
Securities in Criminal Proceedings: Private Law Aspects in Public Law Relations
The civil law institute of securities “intersects” with Russian criminal proceedings in three main points: securities act as evidence, including material; securities act as seized property under a coercive procedural measure; securities may be pledged as a preventive measure. Purpose: to determine the ratio of public law and private law principles in the use of securities in national criminal proceedings. The main method of research is the method of comparative jurisprudence. In addition, general and special methods (analysis and synthesis, logical, special-legal) are applied. Results: the use of the private law institute of securities in public criminal proceedings demonstrates some distortions in the form of excessive coercion and disadvantages in the application of the dispositive method of regulation.
The Correlation of the Medieval European State and Law in the Doctrine of P.A. Kropotkin
The actual task of Russian state studies and jurisprudence remains the opposition to the ideological and theoretical constructions of Russian classical anarchism. Purpose: to establish the most significant features and disadvantages of P.A. Kropotkin’s interpretation of the correlation of state and law on the example of Medieval Europe. When writing the article, the author applies interdisciplinary and class approaches. General scientific and specific scientific methods are used: historical, problem-theoretical, formal-logical, textual. Materials: monuments of law, other historical sources, foreign and national historiography. The analysis shows that P.A. Kropotkin’s works are characterised not only by a pronounced anti-exploitation pathos, but also by an equally pronounced tendentiousness. Results: aprioriism, anti-statism and antilegism, radical localism, Eurocentrism, diffusionism, cyclism and catastrophism, clothed in the form of postulates, predetermined P.A. Kropotkin’s one-sided interpretations of the interaction of the medieval European state with positive and customary law. In the first case, it took a purely causative form, and in the second, it was predominantly conflictual. These are the key flaws of P.A. Kropotkin’s correlation concept.
Public Danger and Current Issues of Qualification of Violation of Inviolability of Housing
The inviolability of housing is the most important constitutional right. Violation of the inviolability of housing entails criminal liability. The crime is classified as a minor offence. However, under certain circumstances, this crime may have a very high degree of public danger. In this regard, the issue of the influence of various factors on the degree of public danger of violating the inviolability of housing is relevant. Purpose: to determine, based on the analysis of criminal legislation and modern judicial practice, the influence of various circumstances on the degree of public danger of violating the inviolability of housing; to interpret the basic concepts used in Article 139 of the Criminal Code of the Russian Federation; to develop recommendations for qualifying the crime; to make proposals for amending the current legislation. Methods: dialectical, comparative legal, logical and legal, systemic interpretation, analysis. Results: the conducted study establishes that the purpose of illegal entry into a home and some of the methods of its commission significantly increase the degree of public danger of the act, and also that the elements of the crime provided for in Article 139 of the Criminal Code of the Russian Federation do not cover all possible types of violation of the inviolability of housing. It is proposed to fill the gap by introducing amendments and additions to the legislation on administrative offences.
Procedural Liability in Criminal and Administrative Proceedings: Integration Prospects
The institution of procedural liability as a means of protecting procedural law has been formed to some extent in almost every procedural branch of law. At the same time, branch types of procedural liability have both individual features characteristic of a particular branch of law and general features inherent in this legal phenomenon as a whole. The main attention of researchers of procedural liability is directed precisely at problematic issues within individual procedural branches. At the same time, procedural liability is of special interest from the point of view of interbranch research, because such an approach on the basis of the revealed branch regularities of existence of this legal institution allows to develop its general basic principles and standards, to unify the conceptual apparatus, to develop measures to improve the legislation and judicial practice. This determines the relevance of this study. Purpose: to carry out a comparative interbranch analysis of the institution of procedural liability from the positions of doctrinal and law enforcement approaches. Methods: the methodological basis of the study is the unity of universal, general scientific and special-legal methods of legal science, including abstract-logical, comparative-legal, formal-legal, structural-functional. Results: the article reveals general approaches to the definition of the concept and content of procedural liability in such branches of law as criminal procedure and administrative procedure. Based on the analysis of legislation, legal positions of the Plenum of the Supreme Court of the Russian Federation and examples of judicial practice, the article substantiates the position that there are sufficient prerequisites for convergence and unification of the institution of procedural liability in criminal and administrative proceedings. On the basis of the fact that in criminal and administrative proceedings the issue of competition between procedural and substantive types of liability is solved in a similar way, the article concludes that it is necessary to develop problems of such significance precisely at the interbranch level.
Some Aspects of the Criminalistic Assessment of the Reliability of Evidence Obtained Using Special Knowledge in the Investigation of Crimes Committed Involving Minors
В статье выявлены проблемы оценки достоверности доказательств, полученных в ходе проведения вербальных и невербальных следственных действий, а также особенности формирования показаний несовершеннолетних. Автор считает, что для подтверждения достоверности источников информации, полученной при расследовании преступлений, совершенных с участием несовершеннолетних, необходимо использовать специальные знания. Представлен перечень признаков, свидетельствующих о недостоверности заключения эксперта и специалиста. Цель: разработать общие рекомендации по криминалистическому обеспечению участия несовершеннолетних в вербальных следственных действиях, позволяющих обеспечить высокий уровень достоверности их показаний, а также тактические рекомендации по использованию специальных знаний в ходе получения достоверных доказательств несовершеннолетних. Методы: эмпирические методы сравнения, описания, теоретические методы формальной и диалектической логики. Результаты: выявлены пробелы в правовой регламентации участия несовершеннолетних в вербальных следственных действиях, сформулированы криминалистические рекомендации по обеспечению получения достоверных показаний несовершеннолетних.
Justices of the Peace Beyond National Borders: A Comparative Legal Study
Every year the workload of the Russian judicial system increases, especially at the level of justices of the peace, which necessitates the search for effective models of organizing such judicial bodies. Despite its rich history, there are currently shortcomings in the legal regulation of justice of the peace. It is in dire need of modernisation, due to insufficient material and technical support, chronic funding shortages and increasing workload. The solution to these problems is a priority area of legislative activity, but a more decisive and multifaceted approach is needed, including, in particular, reforming procedural rules for certain categories of cases. Purpose: to study foreign experience in the organisation and legal regulation of courts similar to Russian justices of the peace, as well as a historical analysis of the evolution of the institution of justices of the peace in these countries in order to enrich the national legal doctrine by integrating theoretically grounded foreign practices. Methods: comparative-legal, logical-legal, system analysis, historical. Results: the article reveals significant differences in the organisation and legal regulation of analogues of the Russian institution of justices of the peace in foreign countries; the article concludes that the Russian model of justice of the peace is a unique system that has no direct foreign analogues, with its inherent features and problems. The article offers recommendations aimed at further improvement of Russian legislation and practice of justices of the peace.
Videoconferencing in Russian Criminal Proceedings: Genesis, Current Status and Trends of Further Integration
The development of science and technology has predetermined changes in all spheres of life, including criminal proceedings in terms of conducting investigative actions remotely. The purpose of the article is to consider the background and characteristics of the use of videoconferencing technology in criminal proceedings. The article is prepared with the use of general scientific and specific scientific methods of research. Results: the article identifies promising directions for further use of videoconferenc-ing technology in criminal proceedings.
Automation of Law Enforcement: Problems and Solutions Using Machine Learning and Machine-Readable Law
The article explores the prospects for automating human activity in the application of law. The purpose of the study is to analyse the theoretical possibility of automating the law enforcement process through the use of modern information technologies and new approaches to the formation of law. The research methodology includes systematic approach, abstraction, analysis and synthesis. The author provides a list of fundamental problems that hinder automation of law enforcement, arising from the specifics of modern law, the process of its creation and application. Such problems include the lack of a single official database of sources of law, the imperfection of natural language, the need to use additional information about the world and society, etc. In addition, the article proposes possible solutions to these problems based on the application of machine learning and the introduction of machine-readable law. In particular, the author considers the use of neural networks for recognising printed text, vector models for organising semantic search through normative texts, large language models for performing cognitive operations and storing information about the world and society, computer vision systems for evaluating facts of objective reality. The author concludes that modern technologies and new approaches to the formation of law potentially allow, if not to achieve full automation of law enforcement, then significantly approach this goal.
The Effectiveness of the Modern System of Sentencing Juvenile Offenders
In recent years, there is a clear tendency to reduce the number of crimes committed by juveniles. Considering that punishment is the main form of criminal responsibility, it can be initially assumed that the achievement of the goals of punishment is conditioned by a competent preventive criminal policy and the correction of convicted persons. Purpose: to assess the effectiveness of the modern system of sentencing juvenile offenders through the study of certain statistical indicators. Methods: general scientific methods of analysis, synthesis, comparison, theoretical methods of formal and dialectical logic; specific scientific methods: the formal-legal method, which distinguishes the main legal terms; the statistical method, on the basis of which the current situation characterising juvenile delinquency in the Russian Federation is assessed. Results: an analysis of statistical indicators published annually by the Judicial Department of the Supreme Court of the Russian Federation and a study of the individual authors’ opinions lead to the conclusion that, despite the smooth decline in juvenile delinquency rates, the current system of sentencing such persons requires further improvement. In particular, when choosing the optimal criminal law measure, careful attention should be paid to the category of the offence and the repetition of unlawful conduct.
The 2016 South China Sea Arbitral Award: Issues of Legal Essence, Qualification, and Its Academic Assessments in the Context of “Crisis of International Law” Narratives
In 2016, the Permanent Court of Arbitration issued a landmark arbitral award on the territorial dispute between China and the Philippines over the South China Sea (hereinafter – SCS), which almost completely rejected China’s territorial claims as inconsistent with existing principles and norms of international law. However, the decision was not unilaterally accepted by the academic community, which raised questions about both the correct legal qualification and a full-fledged “crisis of international law”. The purpose of this paper is to analyze the essence of the 2016 arbitral award, as well as its academic assessments in the context of the discourse on the “crisis of international law”. To achieve this purpose, the author uses general scientific methods (dialectical, logical, systemic), which apply the tools of formal logic to analyze the arbitral award on the dispute as a complex system, as well as specific scientific and special research methods (formal-legal method, method of legal hermeneutics), which allow a detailed examination of both the legal essence of the award and its legal assessments in the academic literature. Results: although the 2016 award failed to bring full legal certainty to the parties’ relations regarding the SCS, it is, nevertheless a valuable precedent for the general practice of international law of the sea and will serve as a further legal guideline in settling similar disputes. Assessments of the arbitral award as having no real legal significance and as an example of a crisis in the entire system of international law seem untenable and indicate nihilistic tendencies in the international legal consciousness.
The Absence of a Hash Sum as a Procedural Error Arising in a Forensic Examination When Analysing Objects in a Digital Form
An urgent task when working with digital objects is to comply with procedural rules and regulations in appointing a forensic examination and conducting research. Failure to comply with them leads to procedural errors, one of which is the failure to specify the hash sum of a digital file in the ruling on the appointment of the expert examination and in the expert report itself. Purpose: to analyse a procedural error committed by investigators and experts when describing a digital footprint; to identify the importance of specifying the hash sum as an identifying characteristic; to suggest ways of preventing this error. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic. Results: the article reveals a procedural error associated with the illiterate description of a digital object sent for expert examination, and based on the analysis of judicial and expert practice the preconditions leading to its occurrence are identified; measures to prevent such errors are proposed.