Petut'yun ev iravunk'
P-ISSN: 1829-023X
E-ISSN: 2738-2508
Vol. 96 No. 2 (2023): State and Law
Full Issue
Articles
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Articles
SOME ISSUES OF PROTECTING THE RIGHTS AND LEGAL INTERESTS OF CRIME VICTIMS
AbstractThe article is devoted to some issues of protection of the rights of victims of crimes in criminal proceedings. The New Criminal Procedure Code provides for a number of innovations in relation to the legal status of private participants in criminal proceedings, in particular, persons who have suffered from a crime, which are important for the effective implementation of the rights and legal interests of the specified subject.
In the new Criminal Procedure Code, special attention is paid to the regulation of the legal status of a person who has suffered from a crime, which logically follows from the tasks of the criminal process, that is, to ensuring the protection of the rights of victims of a crime. . In the legal literature for many years, there is no single approach to the concept of the victim, which indicates the problematic nature of regulating the legal status of the subject of litigation in the legislation. It should be noted that the definitions of the concept of "victim" or "victim" both in material and procedural legislation are quite close, just from a material and legal point of view, a person acquires the status of a victim from the moment a criminal offense is committed against him, regardless of whether he is recognized as a victim. or not. From the judicial point of view, the term "victim" characterizes not only the fact of causing harm by a criminal act, but also the decision to recognize the victim.
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THE RIGHT TO THE PHYSICAL PARTICIPATION IN A TRIAL – A NEW FUNDAMENTAL RIGHT OF ACCUSED PERSON?
AbstractThe appearance of remote participation of accused parson in a criminal trial (by videoconferencing), well known since many years and activated during the pandemic period, poses a very important question: should the remote participation be considered as a real participation, one of the forms of trial in absentia or a variety of trial sui generis? Even in the last case, the question remains: is it possible to organize the participation of accused person in a trial by videoconferencing against his will, insisting that videoconferencing ensures his real participation? The recent French and Russian approach demonstrates the opposite answers to this question. In the context of the contemporary digital cult, it needs to ascertain that the accused person has a right not only to participate in a trial, but to participate in it physically.
Whatever its reasons, in the direction of absentee or remote proceedings in any case cannot occur against the will of the accused (defendant) and should not deprive him of the right to physical participation in the trial of his case, since neither absentee nor remote proceedings are full-fledged forms proceedings are not.
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Articles
FEATURES OF THE REVIEW OF JUDICIAL ACTS IN THE CASSATION PROCEDURE ACCORDING TO THE NEW CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ARMENIA
AbstractOn the basis of a comparative legal analysis, the article discusses the specifics of the revision of judicial acts in cassation in the light of the new Criminal Procedure Code, highlights gaps in the Code, analyzes certain controversial issues related to cassation proceedings, suggests ways to improve legislation, as well as practical proposals for the application of relevant criminal procedure norms․
In the new Code of Criminal Procedure of the Republic of Armenia, the institution of review of judicial acts includes four types: review of acts by appeal, cassation procedure, special procedure and exceptional procedure. It is noteworthy that a separate chapter is devoted to the general conditions (procedure) of judicial review. At the same time, a model has been established that makes it possible to distinguish between appellate and cassation proceedings. There are also grounds for reviewing acts that have not entered into legal force in a special manner for appeal and, separately, for cassation proceedings.
It is important to emphasize that precedent decisions of the Court of Cassation, being endowed with the attribute of binding, must ensure the predictability of justice, legal certainty, the presence of a uniform and effective judicial practice, and the ability to overcome legislative inaccuracies and gaps.
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IMPROVING THE BALANCE OF JUDICIAL, PROSECUTORIAL AND INVESTIGATIVE, POWERS TO ELIMINATE INVESTIGATIVE ERRORS AT THE PRE-TRIAL STAGES OF THE CRIMINAL PROCESS
AbstractJudicial control at the pre-trial stages, prosecutorial supervision and departmental (procedural) control are considered by the author through the prism of the relevant authorities in criminal proceedings - judicial, prosecutorial, investigative. The models of interaction between these authorities in law enforcement practice and the prospects for regulatory improvement of these types of control and supervisory activities are shown in order to comply with the principle of legality in criminal proceedings, protect the rights and freedoms of man and citizen, as well as identify, eliminate and prevent investigative errors.
In modern legal realities, there is a situation where a participant in criminal proceedings, who believes that his rights have been violated by an investigator, is in a state of uncertainty when filing a complaint: should he file a complaint with the head of the investigative agency, the prosecutor, or directly to the court?
It is in the promising models of dynamic judicial control, permanent prosecutorial supervision and total departmental control over the preliminary investigation that we see an effective criminal procedural mechanism for the reasonable implementation of the balance of judicial, prosecutorial and investigative powers, the main direction of development of which is associated with compliance with the principle of legality, protection of human rights and freedoms and citizens, preventing investigative errors, their effective identification, correction and prevention at the pre-trial stages of criminal proceedings.
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INCORRECT INTERPRETATION AND APPLICATION OF THE CONCEPT OF “MATERIAL EVIDENCE” AS A BASIS FOR UNREASONABLE RESTRICTION OF THE RIGHTS OF A BONA FIDE PURCHASER OF REAL ESTATE DURING CRIMINAL PROCEEDINGS
AbstractThis article is devoted to the disclosure of the content of the concept of material evidence in the RA Code of Criminal Procedure, the incorrect interpretation of the concept of material evidence in law enforcement practice, as well as the practice of considering land plots allegedly acquired by criminal means as material evidence. The author analyzed in detail the illegality of such practices, as a result of which the rights and legitimate interests of bona fide purchasers of property are violated. The article states that real estate that does not have any characteristics that are important for the criminal proceedings cannot be recognized as material evidence. The sole purpose of admitting such property as material evidence is to covertly seize such property.
Recognition of property as material evidence in the absence of legal grounds, and then the factual seizure of this property, violates the right of the owner of the property to freely dispose, use and own the property belonging to him (Article 60 of the Constitution of the Republic of Armenia), the right to judicial protection guaranteed by Article 61 of the Constitution of Armenia and Article 299 of the Code of Criminal Procedure.
To summarize, the author notes that the practice of recognizing real estate owned by a bona fide purchaser as material evidence and the subsequent actual seizure of such property contradicts the generally accepted concept of material evidence and violates the constitutional and conventional rights of the owner. Therefore, this practice should be reviewed.
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ADVERSARIALITY IN RUSSIAN CRIMINAL PROCEEDINGS
AbstractThe article reveals the concept of adversariality in the Russian criminal process. Taking into account the typological approach, the author highlights the characteristic features of the adversarial principle. In addition, the paper substantiates that the adversarial principle does not contradict the inquisitorial nature of the Russian criminal process as a whole.
Adversarialism in Russian criminal proceedings does not at all contradict the duty of the court to comprehensively, fully and objectively examine the circumstances of the criminal case. The confrontation between the parties here can be called a method of legal dispute, arising because the defense must, due to its social purpose, challenge the accusation (no matter how justified it may be and unless the client demands otherwise), and the prosecution must refute the arguments of the defense (unless the authorities criminal prosecution, based on their research, they are convinced of the opposite).
Since a legal dispute in Russian criminal proceedings is assumed, at least due to the position of defense predetermined by law and the procedure for judicial debate (impossible without confrontation), adversarialism as a method cannot be excluded from Russian legal proceedings.
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GROUNDS AND CRIMINAL PROCEDURE PROCEDURE FOR CHANGING THE SUPERVISING PROSECUTOR
AbstractThe article is devoted to the grounds and the order of changing the supervising prosecutor. In the framework of the article, it was emphasized that the proper legislative consolidation of the procedures for appointing and changing the supervising prosecutor is one of the most important guarantees of ensuring the latter's autonomy and independence. In this light, on the basis of the analysis of the existing legal regulations and practice, the issues on the procedure and grounds for changing the supervising prosecutor were discussed in detail showing specific proposals aimed at improving the legislation.
The proper legislative fixation of the grounds and procedure for changing the supervising prosecutor is an important guarantee in terms of ensuring the latter's independence and independence. At the same time, the existing regulations from this point of view, in the context of the analysis, give grounds to claim that they need additional improvement, which will certainly strengthen the guarantees of the independence and independence of the supervising prosecutor, especially since certain steps have already been taken by the legislator in this direction under the conditions of the new Criminal Procedure Code.
In addition, the approaches outlined in the article have both theoretical and practical importance.
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CONTEMPORARY ISSUES OF SECRET INVESTIGATIVE ACTIVITIES
AbstractНегласные следственные действия предусмотрены новым уголовно-процессуальным кодексом Республики Армения, сущность которых состоит в том, что они помогают выявить преступления, используя следственные навыки, которые должны реализоваться с сохранением общих правил. Результаты негласных следственных действий, которые были выполнены безосновательно или с игнорированием общих правил, предусмотренных законом, или с нарушениями должны быть признаны недопустимыми, даже если в их следствии для процесса были приобретены существенно значимые данные о фактах.
Предусмотренное законом императивного требования сбора доказательств посредством исполнения доказательных действий предусмотренных исключительно законом, реализовались два предъявляемых условия допустимости доказательств, то есть доказательство должно быть получено из источника, предусмотренного законом, и только с помощью средств, предусмотренных законом. Следовательно, если законом не предусмотрено, то или иное действие, даже если действие результативное и необходимое для уголовного процесса, оно не может служить, средством сбора доказательств.
Поскольку негласные следственные действия ограничивают конституционные права человека, для обеспечения равновесия между борьбой против преступления и защитой человеческих прав законом предусмотрено, что негласные следственные действия могут быть использованы в расследованиях тяжких и особо тяжких преступлений, а также преступлений дачи и получения взяток.
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ANALYSIS OF THE CERTAINTY OF LAW IN THE CONTEXT OF SET THEORY
AbstractIn the framework of this scientific article, the author considers the certainty of law in the context of the unity of its components: accessibility of legislation and court decisions, foreseeability, stability and consistency of law, legitimate expectations, non-retroactivity, res judicata. Moreover, the author analyzed and presented this unity through set theory, because of which the author received the “formula for the certainty of law”.
The author concluded that the general area obtained as a result of solving the above components and their intersection is the certainty of law, due to its proper implementation, the presence of a specific mechanism for drafting normative legal acts, as well as the exclusion of the occurrence of uncertain situations in legal practice are provided.
In the work, the author paid special attention to the study of the legal certainty formula, applying the synergistic approach, because of which the author concluded that such a combination of the components of the certainty of law does not have a purely technical, mechanical nature, i.e., these components are not combined through such mathematical, arithmetical operations because "it is necessary". In other words, such a combination has an important goal, that is, ensuring a qualitative result - the effectiveness of law-making and law-enforcement activities.
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CONTEMPORARY CHALLENGES OF EXERCISING THE RIGHT TO EDUCATION IN THE CONTEXT OF THE RIGHT TO FREEDOM OF RELIGION
AbstractIn the modern world new challenges and problems arise in connection with the harmonious exercise of the rights to freedom of religion and belief and education, which require more effective, human rights-based solutions, or the modernization of existing solutions. The study of international experience allows us to note that it is not always possible to balance the exercise of the rights to freedom of religion and education.
Despite the variety of alleged contradictions it is paramount to formulate the principle by which the possible problems should be solved. At the same time, such an approach raises the question of what the principle or criterion is that should be decisive to solve alleged contradictions.
Therefore, this work aims at recurring to the problems of correlation between the parents’ (guardians’, sometimes also children’s) right to freedom of religion and the children’s right to education and formulating the ways of solving the said problems, without delving into clear definitions of religion, faith, belief, conscience and education.
As a result of the analyzes summarized in this work, we have come to the conclusion that the possible problems and alleged contradictions of the correlation of the right to freedom of religion and the right to education of children need to be resolved in the context of the principle of the best interests of the child (interests of the child, general interests (welfare) of the child).
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THE ORIGIN AND DEVELOPMENT OF THE IDEA OF CONSTITUTIONAL RESPONSIBILITY
AbstractThe article is devoted to the historical foundations of the emergence of legal responsibility. The article presents the emergence of constitutional responsibility in the pages of the historiography of the Armenian reality,as well as the legal life of foreign countries. Parallels have been drawn in the newly created, successive periods and the current bases of legal responsibility. The peculiarities of the process of "constitutional construction" since the achievement of independence, the main ways of their improvement, the ways to avoid possible negative consequences and the tools were addressed. Important aspects related to constitutional legal relations and constitutional sanctions were discussed in the work. The issues of positive constitutional responsibility of state and local self-government bodies and officials were analyzed. The author proposed to enshrine the institution of constitutional responsibility in the Constitution of the Republic of Armenia. The article contains the important idea according to which the measures of constitutional responsibility are addressed to the subjects of constitutional legal relations, who bear the duty to follow the constitutional legal norms and to answer for their legally significant behavior. Nowadays, in the Republic of Armenia, the problem of responsibility of government bodies, officials and other subjects of constitutional legal relations is becoming more important due to the membership of the Republic of Armenia in the family of European states and the need to fulfill the obligations assumed by the state. Orientation towards Europe will not only allow the Republic of Armenia to conduct an effective transformation policy, but will also contribute to the formation of Armenia and the European Union, our most important strategic partner in the long term.
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THE NECESSARY CONSTITUTIONAL GUARANTEES IN THE TERMS OF THE SPECIAL ADMINISTRATIVE REGIME
AbstractThe article is devoted to the investigation of the necessary constitutional guarantees in the terms of the special administrative regime. In the article the author discusses the importance of definition of additional constitutional guarantees that will ensure sufficient control over the exercise of powers of the executive and will prevent the danger of abuse of power by the executive.
Within the framework of the article, the necessity of defining additional guarantees providing the possibility of effective parliamentary control over the exercise of powers of the executive power under the conditions of the special administrative-legal regime and the problem of revealing the content of those guarantees was discussed. As a result of the analysis, the author concluded that the parliamentary control established by the Constitution should be applied not only when declaring a state of emergency, but also when making amendments in the decision of the Government if the aim is to increase the volume of restrictions on rights and freedoms, to define new measures in the mentioned decisions, which are needed to be adopted. The justification and the underlying information must be presented by the Government in each case, ensuring the implementation of parliamentary control over the measures planned within the framework of the special administrative regime.
In the article, the author also referred to the need to make necessary legislative changes during the special administrative regime and to replace the strictest special administrative regime with the less one in the shortest possible time. Within the framework of this work, the author also discusses some issues regarding the duration and extension of the special administrative regime.
As a result of the research several conclusions and recommendations were made in this article.
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CURRENT ISSUES OF APPLICATION OF LEGAL INTERPRETATION METHODS
AbstractResearches on interpretation methods in legal literature mainly highlight the problems of using this or that particular method and make conclusions about the most correct or most incorrect method, valuing or criticizing its features.
As a result of this research, it was revealed that each of the methods of legal interpretation has its positive and negative aspects, therefore, the use of a single method cannot provide the necessary efficiency for revealing the meaning of a legal norm, moreover, the person interpreting the norm can assign the desired meaning to the norm. arbitrarily choose only the necessary method or several methods, as a result of which the true meaning of the norm will not be revealed.
The theoretical significance of this research is that the issue of improving the application of legal interpretation methods still needs deep and comprehensive scientific study.
In order to ensure the proper functioning of the norm in legal practice, it is practically necessary to first of all identify the meaning embedded in its text. Legal interpretation is the legal tool that ensures the transition of the legal regulation process from the establishment of a legal norm to its implementation, so it should be done comprehensively, addressing all legally significant phenomena affecting the meaning of the norm, while not leading to an overly broad interpretation of the meaning of the norm.
The purpose of this scientific work is to deeply and comprehensively study the issue of the need for the joint mandatory application of legal interpretation methods and its guidelines.
As a result, it is concluded that legal interpretation cannot successfully achieve its goal by the use of one or more separate interpretation methods, but the joint use of all possible legal interpretation methods is needed, taking the interpretation as a guideline, accepting it to ensure the unity and stability of the legal system, which should be manifested by interpreting the norms in accordance with the constitutional significance of the relations regulated by them and the general logic of the Constitution.
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SOME PROBLEMS OF RESTRICTION OF THE PRINCIPLE OF ACCESS TO JUSTICE
AbstractIn the article entitled "Some problems of restriction of the principle of access to justice", the author touched upon the scientific and practical problems of restriction of the principle of access to justice, raised such important questions as whether the principle of access to justice and the right to judicial protection can be restricted, and if so, then how and to what extent, whether the general criteria for restriction of rights and freedoms should be applied to them.
Review of various scientific and practical sources on the issues discussed in the article allowed the author to conclude that in the absence of conventional and constitutional grounds for stipulating permanent or temporary restrictions of the fundamental right to judicial protection and, accordingly, the principle of access to justice by the state to a certain degree for certain aims and under certain conditions, they are absolute and not subject to any restrictions.
Possible restrictions relate not to the restriction of the right to judicial protection, but to its integral component - the right to access to the court, the right to a court. States are under the obligation to establish appropriate procedural conditions for recourse to the courts, which must be overcome by persons seeking judicial protection.
Therefore, the conditions for exercising the right to access the court, provided for by law, are aimed at increasing the effectiveness of the exercise of the right to judicial protection, but at the same time they should not compromise, undermine the very essence of the constitutional right to judicial protection, otherwise they jeopardize the existence of the principles the inviolability of this right and access to justice.
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THE ISSUE OF INTERPRETATION OF THE CONSTITUTIONAL PROVISION ON THE DECLARATION OF MARTIAL LAW AND MOBILIZATION
AbstractThe article is devoted to the issue of practical interpretation of constitutional norms on declaring martial law and mobilization. In particular, it is debated whether it is a Government's right or obligation to declare martial law and mobilization. The analysis shows that the determination whether there are the conditions for declaring martial law exhaustively listed in the Constitution, is the right for the Government. However in the presence of such conditions, declaring martial law is an obligation for the Government (not a right). After having declared martial law, it is up to the Government to declare mobilization or not. The said analysis is based not only on the constitutional regulations, but also on their practical application, and especially in the context of aggressive actions initiated by the Azerbaijani side on September 13, 2022. In the article it is emphasized how the constitutional regulations should be interpreted in practice. Besides, the regulation of the RA Law “On the legal regime of martial law”, which provides for an additional condition for declaring martial law, is discussed in article. As a result, the inconsistency of this norm with the Constitution and the need for amendments are emphasized. The regulation of the RA Law “On the legal regime of martial law”, which provides for an additional condition for declaring martial law, is also discussed. As a result of the analysis, it is argued that this norm is contrary to the Constitution and is subject to amendments.
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INFORMED CONSENT AS A GUARANTEE OF ENSURING PHYSICAL AND MENTAL INTEGRITY OF A PERSON IN BIOMEDICINE
AbstractMedical science is evolving constantly and this evolution cannot happen without biomedical research involving human participant.
The work is devoted to the necessity and obligation of conducting clinical trials, medical interventions with the informed consent of a person when conducting biomedical research with the participation of a person, regardless of his age or legal capacity, as well as disclosure of the content of informed consent.
Informed consent presupposes the autonomy of a person, that is, the performance of actions with a considered decision, which is based on complete, objective and accessible information provided by a competent medical professional in an understandable language, which in this case manifests itself as the freedom to receive or refuse to receive medical intervention or medical information, as a result any physical or mental impact on the person without his consent is excluded.
According to the study of foreign experience, an effective mechanism for obtaining informed consent is the involvement of the institution of the mediator of the medical system in the process, which makes it easier for a person to understand the information provided to him, and at the same time saves the time of the person providing medical care, which can be spent on the process of providing medical care.
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MAIN DIRECTIONS OF REFORM IN THE SPHERE OF PROVISION OF PUBLIC SERVICES
AbstractThe article presents the basic principles of the process of providing public services, reveals their essence, the legal content of the term "public service" within the framework of public administration reforms. The article substantiates the need to adopt a separate legal act regulating the provision of public services, fixing within its framework the principles for the provision of public services, as well as introducing a system for evaluating services, and also presents proposals for choosing an institutional model for the provision of services.
The most important principles of the process of public service provision are as follows. client-oriented, legal certainty and predictability, efficiency, proportionality, equality, impartiality and transparency, confidentiality, accountability, the principle of "digital design", the principle of "single window". The work reveals the content of the specified principles, which may have great significance in case of their further legislative consolidation.
The paper presents the need for coordination of the process of providing public services by a single "center", which will allow to exclude possible cases of non-uniform approach of different bodies in the sphere of provision of public services, complication of the process of service provision, practice of unclear division of powers between various bodies.
The article presents the experience of other countries regarding the main directions of public administration reforms, multi-functional centers of service provision.
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THE SUBJECTS OF PROFESSIONAL LIABILITY INSURANCE
AbstractThe article attempts to identify the most significant problems of professional liability insurance at the present time and ways to overcome them in order to form an independent type of liability insurance. The need to introduce general norms of professional liability insurance is justified by the differences of such a contract with insurance contracts of contractual and tort liability, as a complex, having features in the subject composition, insurable interest, insurance risk of the contract. The article examines the legal relationship that arises between the “insurer” and the “policyholder” on the one hand, the “client” and the “service provider” on the one hand, and the “injured person” and the “insurer” on the other. In this regard, special attention is paid to the status of the beneficiary in professional liability insurance and legal gaps are indicated that do not allow the actual beneficiary of this type of insurance to exercise the rights defined by law in the event of an insured event. To solve the problem, it is recommended to turn to the institute of "beneficiaries by law", which means that the legislation imperatively defines the range of persons who act as beneficiaries within the framework of the relevant type of insurance contract.
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THE PERFORMER'S RIGHT TO EQUITABLE REMUNERATION
AbstractIt starts the discussion by exploring the concept of equitable remuneration envisaged in international treaties. Then the article studies the main developments regarding equitable renumeration in recent years. In this regard, the article analyses the new regulations on the performer's right to equitable remuneration provided by the Directive on Copyright and related rights in the Digital Single Market and the implementation of its provisions of in the EU member countries. Additionally, the article studies the main challenges for the performer's equitable remuneration in the era of streaming services and platforms.
The final part of the article analyses regulations on the right to equitable remuneration according to Armenian legislation. The analysis shows that there need to be more regulations in this regard; thus, the articles set up suggestions for amendments to the current Armenian legal framework, ensuring the performer's right to equitable remuneration.
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THE PROBLEM OF THE CORRELATION BETWEEN CONTRACTUAL AND EXTRA-CONTRACTUAL LIABILITY IN CIVIL LAW
AbstractThe correlation between contractual and extra-contractual liability is the focus of the article. The article addresses the concepts of contractual and extra-contractual liability, the features inherent in contractual liability, the main principal directions underlying their differentiation, the necessity for theoretical and practical separation.
The article analyzes the interrelationship of contractual and extracontractual liability under the system of civil liability, the objective reasons for the need for specific regulations of contractual liability, highlights the importance of appropriate regulations in civil turnover. The current legislation, interpretation of judicial practice, structural flaws of the existing regulations of the institution of civil liability, the impact on the regulation of contractual and extracontractual liability and their interpretation are also touched upon.
It is concluded that special rules should apply to contractual liability under the general civil liability system. This division results from the contract's special function and significance in civil turnover and is necessary to guarantee the predictability that the parties to a contract anticipate and to balance the risks.
As a result, an attempt was made to justify the relative autonomy of contractual liability within the framework of civil liability, as well as the necessity of particular legislative rules to protect legal certainty, the coherence of legal practice, and its further advancement.
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THE CONCEPT OF THE RIGHT OF CONSTRUCTION AND THE GROUNDS OF ITS EMERGENCE
AbstractThe right of construction, like some civil law institutions, originated from Roman law and was established by the current civil legislation of the Republic of Armenia. Having undergone changes over time, it has turned from a long-term rental contract into a property right of a person who is not considered an owner of it. At present, the institution of the right of construction is significantly different from the institution of the right of construction, superficies accepted in Roman law.
The article covers some issues related to the concept of the right of construction, its Roman origin, and existing legal regulations in various foreign countries.
Taking into account the fact that the right of construction is formulated by a civil contract, the nature of which is not regulated by legislation, the article presented the basis of the origin of the right of construction, in particular, presented the current legislative regulations regarding the contract of the right of construction, highlighted certain problems related to the provision of the right of construction in practice: In the article, there are also made some legislative analyzes, including the decisions made by the RA Court of Cassation, at the same time it was proposed to envisage the contract for the granting of the right of construction as a separate type of contract, envisaging its legislative regulation, which aims, among other things, to specify the nature of the contract for the granting of the right of construction, excluding the possibility of granting the right of construction under any civil law contract.
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FUNDAMENTALS FOR CONSIDERATION OF CASES IN ADMINISTRATIVE PROCEEDINGS FOR TYPES OF CLAIMS NOT PROVIDED BY LEGISLATION
AbstractOne of the effective legislative guarantees of addressing the right to effective judicial protection and fair trial is the proper regulation of the claim institute. The stage of bringing an action in administrative proceedings is characterized by the definition of the types of claims, which within the context of the administrative proceedings of the RA, limit the right of the person to apply to the Court, which leads to a number of problems at the scientific-practical level. The article discusses such questions, that lead to the disclosure of the origin of the claim institute in the administrative procedure, the problems of the ratio between the right to a fair trial and the applicability of the institute of claim, the role of the court within the context of the selection of the proper claim type, as well as the consideration in court of those claims that do not correspond to the types of claims determined by the Administrative procedural code of the RA, including the claims brought by state bodies, and study of legislative gaps. A significant part of the article is also devoted to the analysis of foreign experience and models used in different countries.
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DEFINITION AND CHARACTERISTICS OF LABOR DISPUTES
AbstractThe article analyzes the problems related to the definition of the term "labor dispute" and the characteristics of the labor dispute. As a result of the study, by performing a comparative analysis of the definitions of the term "labor dispute" found in various doctrinal sources and foreign legislative regulations, it was emphasized that in the presence of non-uniform approaches to the definition of the term "labor dispute", it is necessary to ensure a comprehensive definition of the concept of "labor dispute" by legislation, and also to emphasize that the labor dispute arises in the presence of an unsolved disagreement, and not from the moment of applying to the body that solves the dispute. In addition, the concept of "labor dispute" should include all types of labor disputes, such as disputes arising due to disagreements arising during carrying out of employment relations and termination of employment relations, as well as disputes arising during the process of forming labor relations. The work also refers to the characteristics by which the labor dispute differs from other civil disputes, through which an opportunity will be created to determine the legal regulations that solve the dispute in the most effective way. The solutions proposed as a result of the study will lead to a comprehensive definition of the term "labor dispute" in RA legislation and the existence of more effective structures for separating labor disputes from other civil law disputes.
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“WHEN IN DOUBT, FOR THE ACCUSED” (IN DUBIO PRO REO)
AbstractIn dubio pro reo - in case of doubt for the accused. This basic principle of criminal law is widely known. But as well-known as the name is, its application in Armenian legal practice is mostly unknown. Experience shows that there is considerable uncertainty among lawyers about its meaning. This may be due to the fact that Armenian lawyers do not deal with it in sufficient depth. Irrespective of the reasons for this, this article is intended to remedy the situation. First, the principle in dubio pro reo is explained in abstract terms. Subsequently, its concrete application is examined in various stages of criminal proceedings, such as the indictment, the preliminary hearing and the main hearing, the verdict as well as the criminal conviction on the basis of case studies. In doing so, it focuses on mistakes that lawyers often make in this area. Special attention is paid to the application of the principle in dubio pro reo in the revision. This article therefore aims to show how the principle of doubt can appear and be mastered in practice.
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PARTICIPATION OF THE DEFENDER IN PRELIMINARY HEARINGS: SEVERAL ISSUES
AbstractThe article concerns the participation of the defender in the stage of preliminary court hearings, which is an innovation in the Criminal Procedure Code of the Republic of Armenia.
In particular, the article discussed the importance of the preliminary hearing stage, the range of main issues to be discussed during the hearings, their subsections. In the course of the conducted research, the author came to the conclusion that the procedural stage of preliminary hearings provides new horizons for the activities of the defender, making it possible to exclude the further course of criminal proceedings in the presence of the necessary prerequisites as a result of the initial consideration of legal issues, as well as to execute a number of general-legal and criminal-procedural principles. The article also analyzed the fact that the preliminary hearing stage has a positive effect not only on the activities of the defender and the guarantee of the right to defense, but also makes it possible to hold a targeted discussion between the parties to the proceedings in conditions of more active participation of the court.
As a result of the analysis carried out within the framework of the article, the author came to the conclusion that the stage of preliminary hearings can be improved by providing for the implementation of such actions as, for example, determining the function of clarifying the indictment, which will allow the defense to ask questions about the indictment. As a result, it will be possible to ensure a smooth and lawful course of the main hearing stage in a more efficient manner.
The proposal aimed at improving the stage of preliminary hearings also consists in increasing the function of determining the subject of evidence in the list of issues to be discussed during preliminary hearings, which will ensure the principles of legal certainty and predictability.
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Articles
THE ISSUE OF THE CONSTITUTIONALITY OF THE REGULATION OF THE CRIMINAL CODE OF RA REGARDING THE RETROACTIVE EFFECT OF THE LAW ON MITIGATING THE PUNISHMENT
AbstractThis article presents the new regulation regarding the retroactive effect of the law on mitigating the punishment provided for in Article 9, Part 3 of the RA Criminal Code adopted on May 21, 2021. In particular, it is shown that the mentioned legal norm showed a differentiated approach. In one case, the new law mitigating the punishment is extended to those persons regarding whom, after the entry into force of the new code, there is still no legally effective final judicial act. In the other case, when the final judicial act, for example, the verdict has entered into legal force, the law mitigating the punishment has retroactive effect only when the punishment imposed by that verdict is more severe than the maximum threshold of punishment established for the same act under the new code, or imposed the type of punishment is more severe.
In addition, the article shows the interpretations of the RA Court of Cassation and the Constitutional Court given to the mentioned principle. Then the contradiction between the latter and the regulation provided by Article 72 of the RA constitution is shown. Finally, to solve the said contradiction, a legislative proposal is presented in the article.
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Articles
PROBLEMS OF CORRELATION BETWEEN PROVOCATION OF CRIME AND COMPLICITY
AbstractIn the normative regulations of various foreign countries, doctrinal comments, legal positions formed in stable case law, there are often parallels between provocation of a crime and complicity, which in the absence of a unified approach to the legal essence of provocation of a crime in criminal law makes it urgent to conduct a study of the relationship of these institutions and the problems arising around it.
During of work, we made the subject of the study the features of the institutions of complicity and provocation of crime, as well as the doctrinal comments of different authors, various regulations of foreign countries, it was possible to come to the conclusion that there are a number of common features between the two institutions that are the subject of discussion, which may also indicate that in the absence of clear criminal-legal norms regarding the provocation of a crime, it may be possible to consider it as a kind of manifestation of complicity.
At the same time, as a result of the work, it became possible to state that there are fundamental differences between the goals of provocation and the individual elements that make up the methods of committing a crime, which suggests that they cannot be identified and should be considered separately from each other.
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