<<
>>

INTRODUCTION

Urgency of a theme of dissertational research. The constitution of the Russian Federation has proclaimed a priority of the person, having assigned care of it and its rights to the state (item 2). With reference to the criminal trial the specified mission of the state is realised, first of all, in activity of its bodies and officials on maintenance of the laws of persons involved in criminal procedure relations.

Its version is maintenance of criminal procedures held in custody and in the places of confinement. For the given group of participants the problem of maintenance of the rights gets special sounding as it difficult actively and independently to realise the rights.

The operating criminal procedure legislation could not ignore the given requirement held in custody and in the places of confinement and has provided the certain mechanism of maintenance of their rights.

However the existing variant of system of maintenance of laws of procedure held in custody and in the places of confinement, unfortunately, is not faultless. With reference to it many questions influencing efficiency of its functioning up to the end are not resolved. Among them the questions, concerning its separate segments, for example, maintenance of criminal procedures of the persons actually detained; maintenance of criminal procedures of the suspects detained by subjects, provided ch. 3 items 40 UPK the Russian Federation; maintenance of laws of procedure detained and taken into custody condemned, evading from enduring the punishment to which are applied detention, taking into custody, etc.

The specified problems are perceived even more sharply against growth of number convicted, long time held in custody. Such growth is connected with an uneasy social and economic and political situation in the country. The Prosecutor General of the Russian Federation in the report on enlarged session of board of the State Office of Public Prosecutor has noticed, that in 2016 in comparison with 2015 the number of arrested persons on the neoterminated affairs of inspectors of the Ministry of Internal Affairs and SK Russia has increased by 4 % and has constituted almost 26 thousand persons, from them 1 thousand 300 (growth on 69 %) contains in investigatory insulators already more года1. As to 2017 for its first half of the year 57381 petition for election of a preventive punishment in the form of taking into custody is satisfied. Also the problem of excessive duration of the maintenance convicted under guards besides, has still an effect. The given negative tendency any more develops the first year against decrease in quantity of registered crimes and persons, their made.

Consequence of such position are references of interested persons, both in degrees of jurisdiction, and to the Representative under human rights in the Russian Federation. So, in 2016 435 references concerning duration of terms of holding in custody suspected and convicted [1 [2] [3] [4] have arrived. In 2017 growth of quantity of references of citizens on questions on the questions connected with arrests and terms of holding in custody (+4,6 %) [5] is observed.

Quite often such references admit lawful and proved. Especially it is characteristic for the situations connected with disposal of legal proceeding in the European Court under human rights (further - ESPCH) 1.

So, in the report on activity of the Representative under human rights in the Russian Federation for 2017 the attention that under decisions ESPCH in connection with the infringements admitted at the criminal trial, in particular, as a result of long holding in custody in proceeding, and also non-observance of norms of international law about justice realisation in reasonable term, from the budget of the Russian Federation is paid is paid: in 2016 - more than 424 million rbl., in 2017 - 900 million rub [6 [7] [8].

In this connection there are clear the priorities placed by the State Office of Public Prosecutor of the Russian Federation. They as has noted JU.JA.seagull, consist in increase of level of guarantees of the rights convicted and condemned, in custody, improvement of conditions of their maintenance,

3

Rendering of medical aid by it.

The decision of the specified problem is impossible without development by jurisprudence and the legislator of the additional remedial levers, allowing to raise quality obespechitelnoj the activity which is carried out concerning persons, held in custody and in the places of confinement, that, in turn, assumes the decision in jurisprudence of some the debatable problems concerning a theme of research.

Among them questions on concept, basic elements of maintenance of criminal procedures held in custody and in the places of confinement; object pravoobespechitelnoj activity; a circle of the subjects who are carrying out pravoobespechitelnuju activity in relation to specified participants; features of the remedial status of persons from among the participants of the criminal trial held in custody and in the places of confinement; the general directions of maintenance of the rights of participants of the specified category.

All it demands deep theoretical judgement, studying of practice of application of the criminal procedure legislation in a part concerning a regulation of maintenance of the rights held in custody and in the places of confinement, its generalisation and the analysis for the purpose of perfection of the specified kind pravoobespechitelnoj activity.

The specified circumstances have defined a choice of a theme of dissertational research and testifies to its urgency, the scientific and practical importance.

Degree of a readiness of a theme of research. In a science ugolovnoprotsessualnogo the rights scientific and applied questions of maintenance of the rights of participants of the criminal trial were mentioned in K.I.Amirbekova, M.T.Ashirbekovoj, F.N.Bagautdinova, N.N.Borozenets, O.V.Gladyshevoj, O.S.Grechishnikovoj, A.V.Grinenko, E.N.Grinjuk, K.F.Gutsenko, S.M.Darovsky, I.S.Dikareva, E.A.Zajtsevoj, O.A.Zajtseva, M.N.Zatsepinoj, R.H.Iljasova, N.I.Kapinusa, O.V.Kachalovoj, V.M.Kor-'s works nukova, S.A.Kurushina, V.A.Lazarevoj, P.A.Lupinskoj, JA.V.loshkobano howl, N.S.Manovoj, So-called Melkumjan, I.A.Nasonovoj, S.B.nekenovoj, M.V.Parfenovoj, I.L.Petruhina, G.A.Pechnikova, V.V. Rudicha, K.A.Savelyev, V.V. Sidorov, V.A.Sementsova, A.S.Strojkovoj, L.G.Tatjaninoj, A.V.Uryvaeva, JU. V.Frantsiforova, V.S.Shadrin, S.P.ShCherby, etc.

Separate aspects of maintenance of the rights of the person at its detention, the conclusion under guards were considered within the limits of the dissertational researches devoted to corresponding kinds of criminal procedure compulsion. In a substantiation of the told we will refer to works of such authors, as V.N.Avdeev, S.N.Alexey, F.A.Bogatsky, N.V.Bulanov, B.B.damask steel, I.A. The Hague, M.G.Gajdysheva, M.H.Geldibaev, A.T.Goltsov, E.V.guselni kova, E.B.Dogot, D.A.Dolgushin, M.S.Egorov, A.S.Epaneshnikov, I.e. Ermolenko, E.V.Zolotar, JU.JU. Priests, V.A.Kulikov, E.K.Kutuev, L.V.Lozhkin, E.A. A raspberry, N.V.Nikoljuk, V.V. Nikoljuk, R.V.Orlov, A.V.pi ven, K.V.Pitulko, A.JU, Popkov, A.N.Reznikov, V.V. Rudich, G.S.Rusman, V.V. Seroshtan, N.I. The Snegiryov, I.V.Sobolev, M.J.Fomin, D.V.Phillip, I.M.Hapaev, J.B.Chupilkin, D.V.sphere, O.I.Tsokolova, etc.

Problems of maintenance of the rights of the person subjected to taking into custody, were investigated in I.A.Tamashanova's dissertations (2006) and V.J.Melnikova (2014). However in both works the specified problems were studied in a context of application of taking into custody to which separate heads are devoted, paragraphs, and not considered in a combination to maintenance of criminal procedures of arrested persons and the persons containing in the places of confinement.

Its kinds, interrelation between them were not exposed to independent research structure of maintenance of criminal procedures held in custody and in the places of confinement. Remained not resolved a number of other questions. The given circumstances predetermine necessity of the complex analysis pravoobespechitelnoj the activity which is carried out in the criminal trial concerning held in custody and in the places of confinement, cause an urgency of a theme of dissertational research.

As object of research the complex of the legal relations developing in the criminal trial in connection with maintenance of criminal procedures of its participants, held in custody and in the places of confinement, including the arising problem situations demanding the scientific permission acts.

Object of research are the criminal procedure norms regulating maintenance in the criminal trial of the rights of participants of the criminal trial, held in custody and in the places of confinement; achievements of a criminal procedure science in this area, and also practice of realisation of the given norms.

The purpose and research problems. The research objective consists in working out and a substantiation of the scientific positions having theoretical and practical value for maintenance of criminal procedures held in custody and in the places of confinement, and also specific proposals on optimisation of the criminal procedure legislation regulating questions of the specified kind obespechitelnoj of activity.

Achievement of the specified purpose is carried out by means of the following

Problems:

- Disclosing of concept and value of maintenance ugolovnoprotsessualnyh the rights held in custody and in the places of confinement;

- Object definition pravoobespechitelnoj the activity which is carried out concerning participants of the criminal trial, held in custody and in the places of confinement;

- Specification of a circle of the subjects involved in maintenance of the rights held in custody and in the places of confinement;

- Research of structure of maintenance of criminal procedures held in custody and in the places of confinement;

- Studying of the general directions pravoobespechitelnoj the activity which is carried out concerning held in custody or serving time in the form of imprisonment, the specified persons concentrated round following basic laws of procedure: on protection, for reasonable term of the criminal trial, on a personal immunity, on respect of honour and advantage of the person, on the appeal of legal proceedings and

Decisions;

- Revealing of the problems arising during maintenance criminally - laws of procedure held in custody and in the places of confinement;

- Substantiation of conclusions and offers on perfection of the criminal procedure legislation with a view of improvement of quality of maintenance of criminal procedures held in custody and in the places of confinement.

Methodological basis of research form a general dialectic method of scientific knowledge and based on it general scientific and chastnonauchnye methods of knowledge and reception of new scientific knowledge: historical, system-structural, sociological, sravnitelnopravovoj.

Analysis and synthesis methods were used for revealing of essence of maintenance of criminal procedures held in custody or serving time in the form of imprisonment, and also system of the rights held in custody or serving time in the form of imprisonment. The system-structural analysis has served for definition of structure of maintenance of criminal procedures held in custody or serving time in the form of imprisonment and an explanation of system communication of components of its structure (stages, remedial manufacture, a remedial mode). The Legallistic method was applied to revealing in a standard regulation of maintenance criminally - laws of procedure of held in custody or serving time blanks held in custody in the form of imprisonment and contradictions which have defined directions of formation of new model pravoobespechitelnoj the activity which is carried out concerning specified persons. The is concrete-sociological method was used at interrogation of practical workers. In work comparative-historical and rather-legal methods also were applied to revealing of possibility of the account of historical experience of maintenance of criminal procedures held in custody or serving time in the form of imprisonment and modern experience pravoobespechitelnoj the activity which is carried out concerning specified subjects.

As theoretical basis of dissertational research works of the Russian scientists in the field of theory of state and law, the criminal, criminal procedure, criminally-executive right, and also criminalistics, the ethics, concerning problems of dissertational research have served.

The standard base of dissertational research includes the Constitution of the Russian Federation, the international legal acts, criminally - the remedial, criminal and criminally-executive legislation of the Russian Federation, the subordinate legislation, decisions of the European Court under human rights (further - ESPCH), decisions and definitions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, the foreign legislation.

As empirical base of research the data received during the analysis of published judiciary practice ESPCH, the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, and also materials of archival criminal cases and results of questioning of the practical workers spent in the Voronezh, Volgograd, Belgorod, Bryansk, Kursk, Lipetsk, Tambov areas have served. In total during research during the period with 2011 on 2017 227 practical workers are interrogated, 214 archival criminal cases are studied.

Scientific novelty of research consists in complex consideration of problems of maintenance of criminal procedures held in custody and in the places of confinement.

In the dissertation the maintenance of concept of maintenance ugolovnoprotsessualnyh the rights held in custody and in the places of confinement is opened, the author's definition of the given concept is formulated; the circle of subjects of the criminal procedure relations arising in connection with the specified kind pravoobespechitelnoj of activity is specified; the object pravoobespechitelnoj activity is defined; classification of laws of procedure held in custody or serving time in the form of imprisonment is offered; in the general structure pravoobespechitelnoj activity the general directions of maintenance of criminal procedures held in custody and in the places of confinement and arising during given pravoprimenitelnoj problem activity are allocated and studied; typical errors and the omissions supposed at election, conclusion prolongation under guards and its appeal, complicating maintenance of criminal procedures held in custody are systematised; The theoretical model of perfection of norms of the criminal procedure legislation and practice of its application regarding maintenance of laws of procedure held in custody and in the places of confinement is developed; on the basis of the given theoretical model the complex of the legislative short stories directed on optimisation of maintenance of laws of procedure held in custody and in the places of confinement is formulated.

The substantive provisions which are taken out on protection:

1. Author's definition of concept «maintenance ugolovnoprotsessualnyh the rights held in custody or serving time in the form of imprisonment» is answering to criminal trial appointment the activity of inspectors guaranteed by the law, investigators, heads of the organ of inquiry, the chief of division of inquiry, the chief of agency in charge of preliminary investigation, the public prosecutor, court on creation by means of statutory means of real possibilities for realisation being in conditions nesvobody (in places of holding in custody or in the places of confinement) laws of procedure to the suspects convicted, the defendants condemned, enquired to delivery by the person, and the person transferred according to ch. 5 items 456 UPK the Russian Federation on territory of the Russian Federation competent body or the official of the foreign state for fulfilment of the actions specified in inquiry about a call.

2. Classification of laws of procedure held in custody or serving time in the form of the imprisonment, forming object pravoobespechitelnoj the activity which is carried out concerning specified participants of the criminal trial: by kinds of the norms regulating criminal procedures held in custody and in the places of confinement; under the remedial status of the person belonging to participants of the criminal trial, held in custody and in the places of confinement; on the location of the person caused by application of this or that measure of criminal procedure compulsion; on age held in custody and in the places of confinement; on an accessory of remedial immunity held in custody or serving time in the form of imprisonment; on the subjects providing the rights held in custody or serving time in the form of imprisonment; As regards criminal trial (a stage, manufacture) on which there is a maintenance of criminal procedures held in custody and in the places of confinement.

3. Position that the greatest influence on pravoobespechitelnuju the activity which is carried out concerning participants of the criminal trial, held in custody and in the places of confinement such principles of the criminal trial as reasonable term of the criminal trial, render legality, maintenance suspected and convicted rights of defence, a personal immunity, respect of honour and advantage of the person, the right to the appeal of legal proceedings and decisions. They, predetermining specificity obespechitelnoj the activity which is carried out concerning participants of the criminal trial, held in custody and in the places of confinement, allow to allocate following remedially significant directions in its system: maintenance of the right of defence of the specified participants; maintenance of their right to reasonable term of the criminal trial; maintenance of their right to a personal immunity; Maintenance of their right to respect of honour and advantage of the person; maintenance of their right to the appeal of legal proceedings and decisions.

4. Author's ordering of typical errors and the omissions supposed at election, conclusion prolongation under guards and its appeal, criminal procedures complicating maintenance held in custody:

- Errors and omissions regarding application of the bases for taking into custody which share on two kinds:

Connected with application as the bases for taking into custody of circumstances which the legislator do not concern that (the reference to weight of the brought accusations as on the basis for taking into custody; use at prolongation of taking into custody of the stereotypic formulations which are not concerning the bases for election and prolongations of the given preventive punishment; a recognition as the basis of prolongation of holding in custody of refusal convicted from a cooperation with the investigation; use as the basis of prolongation of holding in custody of necessity of the further performance of investigatory actions; a recognition as the basis of taking into custody of absence of the defendant in the session of the court, having individual character);

Connected with the inadequate argument pravoprimenitelem at acceptance of corresponding decisions of presence of the bases for application of taking into custody concerning the concrete person or their absence (neprivedenie vessels of the concrete facts confirming presence of the bases, provided in ch. 1 items 97 UPK the Russian Federation; ignoring of arguments of the party of protection in favour of taking into custody change on other preventive punishment);

- Errors and the omissions supposed concerning procedural conditions of election, prolongation of taking into custody and its appeal (wrong calculation of terms of a finding of the person under guards; non-observance of requirements of item 4 of item 5 of the European Convention on urgent consideration of complaints to the decision on taking into custody; nerassmotrenie possibilities of application of an alternative preventive punishment taking into account the individual circumstances, concerning suspected and convicted; neukazanie in the substantive provision of the decision of the judge about prolongation of holding in custody of concrete term for which preventive punishment action is enlarged, and final date of this term; consideration of a question on election, prolongation of taking into custody for lack of the defender).

5. A conclusion that application by officials of criterion of a rationality to definition of term of the criminal trial and, in particular, holding in custody term should be considered as the important remedial means used during maintenance of criminal procedures held in custody and in the places of confinement. Efficiency of its application will be promoted by inclusion in number of the circumstances considered at definition of reasonable term of the criminal trial and specified in ch. 3 items 6.1. UPK the Russian Federation, durations of the maintenance of the person under guards.

6. A complex of the legislative short stories directed on perfection of maintenance of laws of procedure of suspects, of which relation criminal procedure compulsion is applied by captains river and the Courts of Admiralty sojourning in long voyage, or chiefs of winterings in absence of transport communications with winterings, including:

- Fastening to the subjects provided ch. 3 items 40 UPK the Russian Federation,

Duties on maintenance with the help it is information -

Telecommunication systems of laws of procedure of persons in which relation they have excited criminal case and have made detention, including the right of defence and the legal process of application of taking into custody;

- Addition specified in ch. 1 items 11 UPK the Russian Federation of a circle of the subjects, obliged to explain to participants of the criminal trial of their right, a duty, responsibility and to provide possibility of realisation of these rights, with agency in charge of preliminary investigation and the persons provided ch. 3 items 40 UPK the Russian Federation;

- Addition specified in ch. 2 items 16 UPK the Russian Federation of a circle of the subjects, obliged to explain suspected and convicted their rights and to provide possibility to be protected by all not forbidden UPK the Russian Federation with ways and means, agency in charge of preliminary investigation and the persons provided ch. 3 items 40 UPK the Russian Federation;

- Addition of a part 2 items 53 UPK the Russian Federation the offer: «the Specified duties concerning the client from among detained by the persons provided by a part of third article 40 of the present Code, the defender carries out with use of systems of a video multiport conference.».

- Addition of article 108 UPK the Russian Federation a part 3.1 following maintenances: «3.1. In need of election as a preventive punishment of taking into custody the persons specified regarding third article 40 of the present Code, with the consent of the public prosecutor initiate the corresponding petition submitted in the form of the electronic document by means of information-telecommunication systems according to requirements of a part of first article 474.1 of the present Code before court. Rules of a part of first article 474.1 of the present Code are applied and to reception by the specified persons of the consent of the public prosecutor.»;

- Addition of article 108 UPK the Russian Federation a part 4.1 following maintenances: «4.1. To the suspect, of which relation detention was made by the persons specified regarding third article 40 of the present Code, under the decree the right to participate in session of the court with use of systems of a video multiport conference is provided.».

7. A substantiated conclusion about necessity of fastening in ugolovnoprotsessualnom the legislation along with possibility of citizens to carry out actual detention of following guarantees of maintenance of the rights of the detained: actual detention suspected by the citizens who have appeared on the crime scene, whenever possible should not be interfaced to humiliation of honour and advantage detained and creation of danger to his life and health; citizens who have made actual detention of the suspect to deliver obliged immediately such person in agency in charge of preliminary investigation; in the detention report circumstances of such detention and, in particular, that actual detention of the person has been made by the citizen who is not possessing imperious powers should be necessarily reflected.

8. Offers on the corrections of the current legislation directed on perfection of maintenance of the law of procedure held in custody and in the places of confinement on the appeal of legal proceedings and decisions, concerning:

- Expansions fixed ch. 5 items 21 of the Federal act «About holding in custody of crimes suspected and convicted of fulfilment» from July, 15th, 1995 № 103-FZ a circle of participants, whose actions and decisions are supposed to the appeal, at the expense of agency in charge of preliminary investigation, the chief of agency in charge of preliminary investigation, the chief of division of inquiry, the head of the organ of inquiry. Use in the text ch. 5 items 21 of the specified Federal act of concept "investigator" instead of a word-combination «the person making inquiry»;

- Expansions fixed ch. 5 items 21 of the Federal act «About holding in custody of crimes suspected and convicted of fulfilment» from July, 15th, 1995 № 103-FZ borders of object of the appeal which is carried out held in custody suspected and convicted, at the expense of inclusion in it along with actions and decisions of the state bodies and officials of their inactivity;

- Inclusions of the head of the organ of inquiry in a circle of persons containing in item 126 UPK to which the administration of a place of holding in custody directs complaints suspected and convicted, containing under [9] guards on the ground that the given participants of the criminal trial can address with complaints not only to the public prosecutor, in court, but also to the head of the organ of inquiry as it follows from item 124 UPK the Russian Federation;

- Additions provided ch. 5 items 21 of the Federal act from 15.07.1995 № 103-FZ and item 126 UPK the Russian Federation of an order of a direction of complaints held in custody the requirement about an obligatory direction of such complaints to the addressee in the sealed package not later than days from the moment of their giving;

- Grantings held in custody and in the possibility places of confinement to send the complaints through the lawyer.

9. A substantiation of necessity of inclusion in number of persons on which position of item 42 of item 5 UPK the Russian Federation extends, the person transferred according to ch. 5 items 456 UPK the Russian Federation on territory of the Russian Federation competent body or the official of the foreign state for fulfilment of the actions specified in inquiry about a call, and also condemned, evading from enduring the punishment to which detention and (or) taking into custody (by means of addition of item 42 of item 5 UPK the Russian Federation) is applied.

The theoretical importance of dissertational research consists that its results have allowed to open structure of maintenance of criminal procedures held in custody and in the places of confinement; to reveal elements of the specified kind pravoobespechitelnoj activity, to investigate their interaction; to give a substantiation of necessity of increase of efficiency of maintenance of criminal procedures held in custody and in the places of confinement; to offer ways of perfection of a legal regulation specified obespechitelnoj to activity, that in the set enriches a science criminally the-law of procedure new knowledge of object and an object of research.

The practical importance of dissertational research is defined by possibility of application of the developed theoretical positions and offers directly during maintenance ugolovnoprotsessualnyh the rights held in custody and in the places of confinement.

Results of research on maintenance problems ugolovnoprotsessualnyh the rights held in custody and in the places of confinement can be used in legislative activity, in nauchnoissledovatelskoj to work and in educational process at studying of a course "Criminal procedure".

Reliability of results of research is provided by optimum methods of research of empirical researches, use of great volume of legislative and departmental normative acts, sufficient volume of the involved practical material, wide geography of interrogation of practical workers.

Approbation and introduction of results of research. Substantive provisions and the conclusions containing in the dissertation, have found the reflexion in the published 14 scientific articles, including 6 - in the editions recommended by the Higher certifying commission Minobrnauki of the Russian Federation for publication of results of dissertational researches.

Substantive provisions of dissertational research are reported at interuniversity scientific-theoretical conference «Problems, researches, innovations of a high school science» (Voronezh, on October, 28th, 2015), interuniversity scientific-theoretical conference «Fundamental and applied questions of humanitarian and economic sciences» (Voronezh, on October, 26th, 2016), the international scientifically-practical conference «the Public safety, legality and the law and order in III millenium» (Voronezh, on June, 15th, 2017), the All-Russia scientifically-practical conference «Actual problems of the right and pravoprimenitelnoj activity» (Novorossisk, on September, 29th, 2017).

Results of research are introduced in practical activities of the Belgorod provincial court, the Voronezh regional Office of Public Prosecutor, in scientific activity of the Voronezh institute (branch) of the Moscow gumanitarno-economic university, and also in educational process of the Voronezh state university, Syktyvkar state university of a name of Pitirima Sorokin, faculty of law of the Kuban state agrarian university of a name of I.T.Trubilina.

The dissertation structure is caused by a research objective, problems following from it and includes the introduction, two heads consolidating six paragraphs, the conclusion, the bibliographic list and appendices.

<< | >>
A source: VLADIMIROVA JULIA KONSTANTINOVNA. MAINTENANCE of CRIMINAL PROCEDURES of PARTICIPANTS of the CRIMINAL TRIAL which is held IN CUSTODY OR SERVING TIME In the form of IMPRISONMENT. The dissertation on competition of a scientific degree of the master of laws. Voronezh -. 2018

More on topic INTRODUCTION:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction
  13. INTRODUCTION
  14. Instead of Introduction …
  15. PRACTICAL INTRODUCTION OF RESULTS OF WORK
  16. 5. Attention strengthening to questions of legal introduction.
  17. Introduction
  18. Introduction
  19. Introduction