Petut'yun ev iravunk'
P-ISSN: 1829-023X
E-ISSN: 2738-2508
Vol. 90 (2021): State and Law
Articles
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Articles
ON THE CIRCUMSTANCES PRESENTING THE PROFESSIONAL QUALIFICATION OF THE INVESTIGATOR
AbstractThe article is devoted to some issues of the pre-trial stage, in particular, those related to the legal status of an investigator which presuppose the efficency of this stage. Here the author analyzes the questions concerning the improvement of professional skills of an investigator, realations of the state bodies involved in the criminal procedure, as well as enlargement of the investigator’s procedural independence.
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Articles
SOME ISSUES OF PRELIMINARY HEARINGS ACCORDING TO THE NEW RA CODE OF CRIMINAL PROCEDURE
AbstractThe article, in the context of the basic requirements of adversarial trial and equality of the arms, reveals the existing practical issues of current legislative regulations of the stage of preparation of the case for trial, their solutions in the new RA Code of Criminal Procedure. In particular, the article turns to the issue of the legitimacy of making a decision on the merits of the case or applying detention as a measure of restraint within the framework of current legislative regulations without convening a court session. Some reference is made to the existing European and American experience in this regard.
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Articles
INTERNATIONAL LEGAL ASSISTANCE IN CRIMINAL MATTERS VS DIGITALIZATION OF CRIMINAL PROCEDURE: ARE THE CONCEPTIONS COMPATIBLE IN THE CONTEXT OF THE NEW US LEGISLATION?
AbstractThe idea of digitalization of criminal procedure, turned into one of the ideological «markers» of the contemporary development, directly raises the question concerning the international cooperation of the states in criminal matters, essentially through the prism of the collection by one state of the evidence located on the territory of another state. The problem became even more complex after the adoption by the US of the Clarifying Lawful Overseas Use of Data Act (Cloud Act) 2018. There is an evident menace for the traditional approaches to mechanisms of the international legal assistance in criminal matters, based on principles of the state sovereignty and mutual respect of the states. This problem is underestimated in legal doctrine.
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Articles
SOME ISSUES OF LEGAL SETTLEMENT OF COOPERATION PROCEDURE ACCORDING TO THE NEW RA CRIMINAL PROCEDURE CODE
AbstractCooperation proceedings are envisaged for the first time in the new RA Criminal Procedure Code; the theoretical study of this institute is of great importance for its correct application. The article discusses some issues of cooperation proceedings, in particular, the essence and significance of cooperation proceedings, the subjects of cooperation proceedings, their powers, as well as the initiation of cooperation proceedings. Legislative gaps have emerged in the issues under discussion, which need legal regulation.
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Articles
CERTAIN ASPECTS OF IMPROVING OF MODERN PRE-TRIAL CRIMINAL PROCEEDINGS IN RUSSIA
AbstractThe article, in the context of theoretical legacy of reputable Soviet and Russian scholar of criminal proceedings Professor A.B. Soloviev, describes current legal issues related to the level of autonomous functioning of the stage of initiation of criminal proceedings, compliance with the legal terms prescribed for that particular stage. Through the prism of scientific views of Professor A.B. Soloviev, the author explains the problematic issues of implementation of prosecutorial supervision on pre-trial stages, exploitation of the results of operational and investigative actions in activity of judicial proving during those stages, implementation of digital technologies during the investigative and procedural actions. Moreover, the research outlines the significance of improving governmental protection mechanisms of persons involved in criminal proceedings.
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Articles
TOPICAL ISSUES OF BRINGING A SPECIAL CATEGORY OF PERSONS TO CRIMINAL RESPONSIBILITY UNDER THE CRIMINAL PROCEDURE LEGISLATION OF THE REPUBLIC OF ARMENIA
AbstractThe article discusses the controversial issues of bringing a special category of persons to criminal responsibility under the current and adopted new Criminal Procedure Code of the Republic of Armenia (hereinafter – the RA Code of Criminal Procedure); identifies existing gaps in legislation; analyzes judicial practice, as well as the legal positions of the Constitutional Courts of the Republic of Armenia and the Russian Federation; suggests ways to improve legislation, as well as practical recommendations for the application of relevant criminal procedure norms.
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Articles
JUDICIAL DEPOSITION OF TESTIMONY ACCORDING TO THE NEW CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ARMENIA
AbstractThe article is dedicated to one of the innovations of the new Criminal Procedure Code of the Republic of Armenia - the institute of judicial deposition of testimony. The author states that the model of judicial deposition of testimony enshrined in the new Code is in fact aimed at two main purposes: to ensure the real possibility of exercising the right of the accused to cross-examine; on the other hand, to significantly expand the defense opportunities. In contrast to the current rules, according to which the collection of evidence during pre-trial proceedings is a monopoly of the prosecution, the model of deposition of testimony essentially allows a defense attorney not only to obtain evidence, but also to have this evidence already secured during pre-trial proceedings, which greatly complicates the possibility of challenging the legality acquisition procedures. Recognizing that this institution is new for the domestic litigation and that unforeseen problems may arise during its practical operation, the author notes that the broad system of legal guarantees is designed to neutralize potential problems as much as possible.
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Articles
THE POWER TO OVERTURN THE JUDICIAL ACT THAT DOES NOT RESOLVE THE MERITS OF THE CASE IN THE CONTEXT OF THE RIGHT TO JUDICIAL REVIEW AND THE EFFECTIVENESS OF JUSTICE
AbstractIt follows from the analysis of the current criminal procedure regulations that as a result of the review of the judicial act that does not resolve the case on the merits, the RA Court of Cassation is authorized to reject the appeal leaving the judicial act in legal force or making a new judicial act. If there is practically no problem with the interpretation and application of interpretation in relation to the first of the powers of the Court of Cassation in question, then the situation is different in terms of the second power. In particular, according to the interpretation given by the RA Court of Cassation regarding the second power, the issuance of a new judicial act presupposes the exercise of any power that the Court of Cassation has when reviewing the judicial acts resolving the case on the merits, including the reversal of the judicial act. Meanwhile, the position of the RA Constitutional Court on the same issue is that the court conducting the review within the framework of reviewing the judicial acts that do not resolve the case on the merits, in particular while reviewing the lawfulness of detention, is authorized to make a decision to choose or not to choose the detention as a preventive measure without sending the case for a new trial. This solution is also given in the new RA Code of Criminal Procedure.
Considering the issue in the context of balancing of the right to judicial review and the interests of the efficiency of justice, the article concludes that the legislative regulation of the powers of cassation review of judicial acts that do not resolve the merits of the case should include the possibility of overturning the judicial act and sending the case for a new trial. It is another matter that due to the need to make a final court decision as soon as possible as a result of reviewing this type of judicial acts, in practice the exercise of the mentioned authority should be based on the existence of the overriding interest in ensuring the legitimate interests of the individual.
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Articles
GENERAL DESCRIPTION OF THE INSTITUTE OF JURISDICTION AND METHODOLOGICAL ISSUES OF ITS LEGAL REGULATION IN THE RA NEW CRIMINAL PROCEDURE CODE
AbstractThis article is devoted to the discussion of the Institute of Jurisdiction and methodological issues of its legal regulation in the RA new Criminal Procedure Code. The author finds that Jurisdiction, being one of the Criteria determining a Court established by law, is not properly regulated by the RA new Criminal Procedure Code. Both the current code and the new code do not define the definition of Jurisdiction, moreover, it is impossible to trace the meaning that the Legislature gave to it from the legal regulations on its various aspects.
In order to determine the Jurisdiction of a criminal case, in one case, the court area of the place of commission of the crime or the seat of the body of the pre-trial investigation or the place of residence or registration of the defendant is taken as a basis; in the case of a legal person - the characteristics of the place of commission of the crime, the location of the legal person or the place of reaching dangerous consequences (if the crime was committed outside the territory of the Republic of Armenia or the place of the commission could not be determined); and in the other case, the basis are the cases heard by the courts of first instance, appellation and cassation. Moreover, from the substantive analysis of the definitions "Jurisdiction of General Courts of First Instance", "Jurisdiction of the Criminal Court of Appeal", "Jurisdiction of the Criminal Chamber of the Court of Cassation" given in the new Code, "Competence of the General Court of first Instance", "Specialization of Judges in the General Court of first Instance", "Competence of the Court of Appeal" and "Competence of the Court of Cassation" given in the RA "Judicial Code of the Republic of Armenia" Constitutional Law, becomes clear, that the legislature has essentially co-ordinated them (Competence and Jurisdiction of the court), which in our opinion is methodologically problematic, as they, being independent legal definitions, called to solve various legal problems, should not be co-ordinated.
Based on the above, the author discussed the issues of the general description of the definitions of Competence and Jurisdiction of the Court, their interconnectedness, delimitation and has offered precise suggestions on the legal regulation of different aspects of the Institute of Jurisdiction in the new Criminal Procedure Code of the Republic of Armenia.
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Articles
CONSIDERATIONS ON THE PROVISIONS REGARDING FORENSIC EXPERTISE OF THE DRAFT OF CRIMINAL PROCEDURE CODE OF THE RA
AbstractThe article is referred to the one of the most important issues of a forensic expertology and criminalistics namely criminal procedural regulation of the institution of forensic examination, comparatively analyzing the provisions of the current Criminal Procedure Code of the RA and the new Criminal Procedure Code of the RA. The article presents new conceptual approaches to the legal status of competent bodies, which are liable to implement judicial examination, their liability as well as the role and basis of the examination conduction. As a result, legal omissions in the existing Criminal Procedure Code of the RA and the Draft of Criminal Procedure Code are revealed. It is noted that the issues identified have both theoretical and practical significance. It is emphasized that within the framework of legal regulation of the draft of the Criminal Procedure Code of the RA examination is presented in a separate chapter as a separate procedural (evidentiary) action in contrast to the current Criminal Procedure Code, in which the appointment and conduct of an examination is regulated as a separate investigative action.
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THE DECISION ON APPROVAL OF UNILATERAL DECLARATION OR FRIENDLY SETTLEMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS AS A GROUND FOR EXCEPTIONAL REVIEW WITH A NEW CIRCUMSTANCE IN THE RA CRIMINAL PROCEDURE
AbstractIn the submitted article, the authors discussed the conceptual issues of cosideration the decision on approval of unilateral declaration or friendly settlement of the European Court of Human Rights as a ground for exceptional review with a new circumstance in the RA Criminal Procedure. Based on the researches of the relevant international standards and practice of other states, the authors concluded that, as an opportunity to ensure restitutio in integrum, the ruling of the European Court of Human Rights on the approval of a unilateral statement or friendly settlement, which is the result of the state's recognition of the fact of violation of a person's right provided for in an international treaty of the Republic of Armenia, should in any case be considered in a criminal legal proceedings of the Republic of Armenia as a basis for an exceptional review on a new circumstance.
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SOME ISSUES OF INTEGRATION OF THE INSTITUTION OF ARREST IN THE GENERAL LOGIC OF JUDICIAL CONTROL OVER THE FUNDAMENTAL RIGHT TO LIBERTY AND SECURITY
AbstractIn the article, the author discusses the issues of reforming the institution of arrest, presenting them under the imperative of ensuring the smooth implementation of the reforms. In particular, the pressing need of reformation of the institution of arrest, its theoretical and practical goals, and the main milestones of the reform process since the 2000s, as well as the need for all low-profile reforms in terms of effective implementation of the new mechanisms established by the 2021 Criminal Procedure Code are presented. The original solutions of the new code aimed at the more complete guarantee of the constitutional right to personal freedom are also discussed, as well as the theoretical and practical problems that are still unresolved under the new Code. Recommendations are made aiming at their solution.
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CONCEPTUAL FEATURES OF SECRET MEASURES UNDER THE RA NEW CRIMINAL PROCEDURE CODE
AbstractWith the adoption of the new RA Criminal Procedure Code (hereinafter referred to as the New Code), the Armenian legal theory and legal practice are faced with a responsible task of redefining the institutions that have been researched and applied for decades, as the New Code is based on a fundamentally new concept. From this perspective, the study of new regulations on secret measures is highly relevant.
Within this framework, the paper studies the model of secret investigative measures envisaged by the New Code from the conceptual point, reveals the international standards for lawfulness of normative regulation of such measures, discusses some theoretical and practical problems arisen under the previous legal regulations.
As a result of the analysis, it was concluded that by incorporating some of the operative-investigative measures in the Criminal Procedure Code and referring to them as "secret investigative measures", the issue of their legal nature was resolved at the normative level.
Dicussing the criterion for differentiation of secret investigative measures and considering the ECHR case-law and number of international treaties ratified by RA, the author proposes to envisage the controled supply and purchase, as well as the undercover operation as covert investigative measures, making them the subject of initial judicial control. According to the author, this will ensure the use of the results of these measures as evidence, as well as the effective implementation of the commitments undertaken by the RA in the fight against crime in certain spheres.
The author notes that the new regulations, compared to the previous ones, essentially expand the scope of crimes that allow conducting covert investigative measures. In particular, under the new regulations, all covert investigative actions can be carried out in regard of serious or particularly serious, as well as corrupt offenses. In this connection, it was emphasized that the mentioned approach of the New Code is in line with the commitments undertaken by RA in the field of fight against corruption.
In the light of legal practice, the Author has expressed concern about the restricting the access to some of the information contained in the wiretapping content by the scope of serious or particularly serious or corrupt crimes. In particular, the actions under consideration, especially the receiving of information about incoming and outgoing calls of the subscriber, the time of starting and ending the telephone communication, the telephone number to which the telephone call was transferred in case of redirection, are very widely used in relation to other crimes as well.
Referring to the provisions of the New Code on the definition of the categories of persons who can be subjected to secret corrupt, the author concluded that it essentially meets international standards, provides a clear solution to a number of issues that have arisen in practice at the moment. Meantime, the Author notes that in connection with the recording of telephone conversations, the European Court has assessed that the restriction of the right of another person who have information about the crime is lawful, but the New Code, unlike the previous one, precludes that.
As a result of the research, the Author found that a fundamentally new concept of secret actions has been introduced in the RA criminal procedure legislation, which will be able to ensure the rights of a person in a state governed by the rule of law and the public interest in crime detection in a new, qualitatively high level, and its gaps and shortcomings reasonably can be discussed only after practical application.
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