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§3. The Corpus delicti and reflexion of system of its basic elements in the ultimate fact on criminal case

The crime requires only a pretext

Aristotle

Many domestic scientific-protses sous it is scarlet isty recognise, that material and remedial criminal relations have own maintenance. It is thus noticed, that remedial relations are directed on an establishment material [357], that by and large completely keeps within a design of the mechanism of criminally-legal regulation offered on these pages.

And we already noticed, that the real-life public relation between the criminal and to the victims presented by competent public authorities, has both remedial, and the material aspect, and differently, falls both in material, and in remedial sphere of legal regulation.

In this connection the legal designs developed in the right material and directed on knowledge of elements criminally-legal relations, predetermine designs in the right remedial. As the basic two interconnected designs act "corpus delicti" and «the ultimate fact on criminal case».

The structure of the corpus delicti developed in criminal law, dictates coordination of corresponding elements in structure of the ultimate fact provided in item 73, 421, 434 UPK the Russian Federation. We will consider conformity and interaction of these elements within the limits of a design of the mechanism of criminally-legal regulation.

Under the general rule, the perpetrator on criminal law is made, reached the age of the criminal liability established by the criminal law the physical person (item 19 UK the Russian Federation). If obratitvsja to search of its exact analogue in a subject design доказвівания we actually will not find it. Besides, in structure of the general subject доказвівания (item 73 UPK the Russian Federation) is not mentioned about age and responsibilities of convicted (suspect). Tolvko at the reference to osobvsh to criminal trial usages (gl. 50, 51 UPK the Russian Federation) age of the minor and presence at the person who have made forbidden ugolovnvsh by the law act, mental derangements at the moment of act fulfilment ввіступают in quality дополнителвнвіх the circumstances which are coming under to an establishment. From what it is possible to draw a conclusion - while at investigating agencies and vessels will not arise doubts in age or responsibility convicted, they at it prezjumirujutsja.

Meanwhile, at golo the vno-remedial law enters enough the big formalized list of requirements shown to the perpetrator, neustanovlenie some of them can lead to actual "defeat" of [358] consequences as it, for example, happens in a case neu formation or an erroneous establishment of biographical particulars of the person (when the person does not inform the a surname, a name, a patronymic or informs another's name).

So, at golo the vno-remedial law demands in all written pleadings accepted concerning the suspect, convicted, to specify a surname, a name and a patronymic of this person (item 146,147, item 1 ch. 2 and ch. Z item 174, item 1 ч.1 item 220, ch. 3 items 231, item 1 ч.1 item 306, item 1 ч.1 item 308, 318 UPK the Russian Federation), and also year, month, number and a place of its birth (item 171, item Z ч.2 item 223.1, item 3 ч.1 item 225, ch.

1 items 265, item 4 ч.1 item 304 UPK the Russian Federation). Even the constitutional position provided by item 51 of the Constitution of the Russian Federation not to testify against itself will be applied only after an establishment of the person of this person. Heyстановление persons suspected or convicted of unusual cases is good cause for election as court of a preventive punishment in the form of taking into custody (and. 2 ch. 1 items 108 UPK the Russian Federation) or, for example, for transfer of the statement of the private prosecutor to the head of the organ of inquiry or to the chief of agency in charge of preliminary investigation for the decision of a question on excitation of criminal case and manufacture of preliminary investigation (ch. 1.1 items 319 UPK the Russian Federation), other would contradict the purpose of the criminal trial to a-establishment of the person who have really committed a crime, and destroying a presumption of its innocence. C other party, the person who is doing not come under to the criminal liability, but the made act forbidden by the criminal law (item 21 UK the Russian Federation), in criminal trial cannot be convicted or to suspects, and receives the remedial status of the person, in which relation manufacture about application of a forced measure of medical character (item 437 UPK the Russian Federation) [359 [360] is led. After all it is not casual, term during which to the person should be accused in committing a crime, interrupts before reception of the expert opinion in case of a premise suspected in a psychiatric hospital for manufacture of judicial-psychiatric examination (ch. 3 items 203 UPK the Russian Federation).

Thus, if the criminal law, speaking about the criminal liability bases, means the perpetrator the law criminal procedure connects realisation of criminal prosecution with the person of the suspect convicted that is a little bit wider the than the first, partly therefore the given situation should not cause remedial obstacles for attraction of this person to the criminal liability and punishment.

For example, when in the inquiry on a previous conviction on there is nobody Ivanov it is underlined: «It Sidorov, is condemned then for such crime»; «It Petrov, is condemned then for such crime» - and at anybody from pravoprimenitelnyh bodies do not arise doubts concerning manufacture continuation in the relation

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This person.

By the way, at the golovno-law of procedures supposes cases of assignment to participants of the criminal trial of a pseudonym at unwillingness to inform them the biographical particulars, for example, with a view of the safety and close (ч.9 item 166 UPK the Russian Federation). Similar cases are known also by judiciary practice. Not a secret, that in territory of the Chechen republic the recalled operative employees of FSB («working on liquidation of insurgents») carry out the official powers not under the real surname, a name, a patronymic, thus receiving original "remedial" immunity from criminal prosecution.

There are also other examples. So, with a view of avoidance prejuditsialnosti a sentence on business in the relation of one of accomplices and nenarushenija presumptions of innocence of other accomplices, the Supreme Court of the Russian Federation has explained (item 24): «Taking into account that trial in court is made only concerning defendants, use in a sentence of the formulations testifying to guilt in committing a crime of other persons, is not supposed.

If business in the relation of some convicted is allocated in separate manufacture or ceased in connection with death in a sentence it is underlined, that the crime is made by the defendant together with other persons, without a mention of their surnames, but with instructions accepted concerning their remedial re - [361] shenija (for example, the person, business in which relation is allocated in otdelvnoe manufacture) »[362].

If predpolozhitv, that the establishment of the person convicted is непреодолимвім процессуалвнвім an obstacle for dalvnejshego criminal proceedings absurdity of a situation it is obvious, poskolvku for the criminal law enough and the establishment of responsibility and age of the person, its made is necessary, and at the same time nothing forbids primenitv by analogy ch. 9 items 165 UPK the Russian Federation or in general are simple not указвіватв a surname, a name and a patronymic guilty as it offers delatv Plenum of the Supreme Court of the Russian Federation. Invshi words, absence of procedure does not interrupt the is standard-logic formula of the mechanism of criminally-legal regulation [363].

However, meet and инвіе primerv і when defenders in interests obvi - njaemyh пвітаются obosnovatv before the inspector, made the decision on the criminal case termination, that to one of the accomplices, being «obshcheizvest - HBiM kriminalvnvsh authority», is necessary prisvoitv a pseudonym, чтобві not ввізватв an unreasonable bias at присяжнвіх assessors by manufacture on affairs in the relation of other accomplices. However it of anything the general has with ввішеприведеннвіми reasons, as well as сокрвітие protses no sou алвнвіх immunities from investigation agencies bodies and inquiry.

In one case, the last is a question of action criminally - protsessualvnogo the law in time, i.e. at the moment of detection protses a sou alvno go immunity at the suspect, скрвівшего dannvsh the fact, manufacture on business proceeds with the account protses a sou алвнвіх features of its status, and dokazatelv - stva, полученнвіе till this moment, do not admit nedopustimvshi. The truth dej - stvujushchemu does not suffice the ugodovno-remedial law the position similar ch. 2 items 5 UPK of Ukraine 2012г.: «Admissibility of evidence is defined by the positions of the present code operating at the moment of their reception» [364] as admissibility of evidence is estimated both to, and after detection of remedial immunity of the suspect convicted at different stages of the criminal trial by different subjects.

In other - "probelnost" UPK the Russian Federation. So, in case of detection of signs of the crime made by the foreign subject, the using diplomatic immunity, and akkreditujushchego the state on its bringing to criminal liability, it is necessary to make of absence of the consent the decision or on refusal in excitation of criminal case or on its termination by manufacture on the initiated business, however in item 24 and 27 operating UPK the Russian Federation does not provide such bases. While it is necessary to be content only with the reference to item 3 UPK the Russian Federation which are analogue of item 22 of the Viennese convention on the diplomatic intercourses 1961г. [365].

At the same time, originality of application operating ugolovnoju the law of procedures by analogy in the resulted variants leads to that actually concerning the established person with the unstated person, to be exact with the unstated status, correspondence manufacture («is spent evades from court in a court hall»), C other party, at occurrence of doubts concerning its age or responsibility of item 196 of the Code of Criminal Procedure of the Russian Federation, for example in the presence of data that the person was earlier on training in establishment for persons with a delay or backlog in mental development, about reception by it in the past of craniocereberal traumas or strangeness in acts and the statements, testifying to possible presence mental races - strojstva [366] - assumes obligatory appointment of expert testimony in court. The original paradox turns out: that the person for expert investigation as though is, but simultaneously for court convicted as though "is absent". However similar "absence" or "presence" at session of the court does not cancel a presumption of its responsibility and achievement of age of the criminal liability which the charge party has the right to call at any time into question.

Also at golo the vno-remedial law knows also other case of manufacture for lack of convicted, only here absence of the last is connected with absolutely natural course of events - owing to his death. In this situation the presumption of its responsibility even if doubts in it arose at his life (as a rule also operates, examination in this case to spend it is impossible), however criminal trial bodies had not time to establish it. Besides, at manufacture continuation on such criminal case when relatives of the died insist on it with a view of its rehabilitation, criminal prosecution proceeds, and it proceeds already concerning died, and it is completely not obligatory, that manufacture on business will come to the end with its justification or the termination on reabilitirujushchemu to the basis, there can be and ascertaining of the fact of guilt died, a truth, only in the decision about the criminal case termination in connection with his death (item 4 ч.1 the item 24 UPK the Russian Federation and item 1 of item 254 UPK the Russian Federation) [367].

The given manufacture lifts also one more important question - a question «for - m¾nv і» died convicted by someone another, legal jaz віком, assignment convicted. Lives, for example, provides such variashy: in football is a bench «запаснвіх», in criminal trial is запаснвіе присяжнвіе assessors, but here about "store room" convicted the criminal procedure law does not speak words.

«And after all in the meantime process against my son proceeds, him on - the former convict of those crimes which it and has opened» - speaks mother Sergey Magnitskogo, died in hospital SIZO «Sailor's Tishin». «At first I passed the witness... And now to me here have thought up the status« the legal representative ». Usually it happens at children or incapacitated, and I here represent in court of the dead son, he is a defendant. However, at all I do not represent, that they want from me. Perhaps dream to see in a cage, and can, wait, that I will reserve the son...» [368].

Case not idle, and a question actual. Even from the point of view of the competitiveness, operating UPK the Russian Federation does not subdivide witnesses on two groups - witnesses for the defence and witnesses for the prosecution. (Actually it all the same occurs at drawing up of the bill of particulars, the indictment or the decision, but it is not necessary to forget, that the same person can act and in that, and other quality). And on the other hand, and whether has died convicted the right to have the defender, after all with his death its legal capacity has stopped (and. 2 items 17 GK the Russian Federation), and in pure in civil-law sense - assignment of the died physical persons are impossible, as their laws of procedure do not enter (and cannot enter) into structure of the mass of the succession.

In this case assignment remedial, by analogy with died sustained (ч.8 item 42 UPK the Russian Federation) - to one of close relatives is possible only. But such succession of choses in action at all does not mean the assignment of the perpetrator attracting actual replacement of one of elements of the corpus delicti. In the mechanism of criminally-legal regulation is not present (and cannot be) such designs where elements of one substitute elements of others, differently it would be impossible to approve about coordination of material and remedial designs in the mechanism and about its interbranch nature. If to make such assumption it will turn out, that it is possible to recognise the close relative insisting on continuation of manufacture on business at an "adverse" outcome guilty of committing a crime, to appoint to it punishment and to send it to leave. Fortunately for it, ugolovnoprotsessualnaja the form excludes a similar outcome, i.e. mater the palno-right voe preemstvo.

Thereupon, two reservations are necessary.

The first. The analogy ch.b item 247 UPK the Russian Federation when at protection of the absent defendant participation of the defender in proceeding admits obligatory is admissible and the court takes measures on its appointment.

The second. Analogy ch. The Russian Federation should not mean 8 items 42 UPK, that pravoprimenitelju it is necessary one of close relatives to recognise to the defendants however specified to persons the rights which the suspect should possess, convicted (defendant) for a possibility unaccordance to defend in criminal trial the rights and legitimate interests in any ways not forbidden by the law should be provided would mean belittling of honour and to -

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stoinstva persons the state. [369]

Owing to a principle of the presumption of innocence as it is defined in statve 49 (chastv 1) Constitutions of the Russian Federation, vinovnostv persons in committing a crime, no less than it nevinovnostv, should бвітв it is proved not in proiz - volvnom, and lishv in provided federalvnvsh by the law an order, i.e. comes under to an establishment iskljuchitelvno within the limits of criminally-protsessualvnv_h relations. Accordingly, protection of the rights and законнвіх interests of close relatives of the died suspect (convicted), having tselvju its rehabilitation, also should osushchestvljatvsja in criminally-protses sou алвнвіх forms by granting of a necessary legal status by it and ввітекающих from it the rights.

In this connection, the Constitutional court of the Russian Federation has obliged federalvnogo the legislator to make to operating legal regulation of change, направленнвіе on maintenance state, including judicial, protection of honour, advantage and a reputation of the died suspect (convicted) and the rights, ввітекающих from a principle of the presumption of innocence, including konkretizirovatv perechenv persons, kotorvsh, besides close relatives, can бвітв is accorded a right nastaivatv on continuation of criminal proceeding with tselvju to possible rehabilitation died, процессуалвнвіе формві their admission to participation in business and a corresponding legal status, to provide features of manufacture of preliminary investigation and proceeding in case of death of the suspect, convicted (defendant), and also feature of the decision on the criminal case termination on data nereabilitirujushchemu to the basis [370].

Meanwhile, it appears, that the legislator all the same has designated the given subjects in the criminal procedure law as interested persons (ч.1 item 123,4.1 of item 3891 UPK the Russian Federation), and the Constitutional court of the Russian Federation in the resulted decision so them and names. System of accepted total written pleadings

Indirectly, but nevertheless ввітекает from system interpretation of item 4 ch. 1 items 24 UPK the Russian Federation (i.e. it tolvko the decision about the criminal case termination). The problem sees that modern pravoprimeniteli does not operate and does not think the legal designs offered by the doctrine, and the Constitutional court is forced указвіватв on their existence, obliging their legislator to "register" in the criminal procedure law [371].

Besides, the criminal procedure law actually holds back possibility of the further criminal proceeding concerning other live accomplices of perfect act. The accessory theory of partnership apprehended by the legislator in the modern criminal law, orders in the most general case - if there is executor there is no organizer, no instigator or the helper. Differently, there is no person - there are no also affairs. However it not absolutely so, is more exact - at all so. If the criminal law vivacity of the convicted interests only at the moment of committing a crime (item 9 UK the Russian Federation), ugolovnoprotsessualnyj - at the moment of its recognition that and fulfilment with its participation of certain legal proceedings (item 4 UPK the Russian Federation). That is why if by the moment of the termination of preliminary investigation and a business direction in court one of convicted-accomplices, for example, the executor - has died, it at all oznacha

et, that business comes under to the obligatory termination behind death died and manufacture continuation on business with a view of exposure of other live accomplices as it, in particular, was on criminal case concerning Sergey Magnitskogo and William Braudera is impossible. In this sense «the law Magnitsky», accepted by the Congress of the USA, has under itself absolutely certain criminal procedure bases when representatives of legislature of the foreign state, appealing to item 4 ч.1 item 24 UPK the Russian Federations, actually specify to the Russian bodies of the criminal trial, what decision is necessary for accepting on the given criminal case. It is obvious, if in item 4 ч.1 item 24 UPK the Russian Federation by an example of our Tadjik colleagues the instructions that manufacture continuation on business is necessary as well concerning other persons who have made together with died criminal action probably, there was no and «a certificate Magnitsky», and answer rigidly adhered to it in a kind «law Dimy contained Jako -

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vleva ». [372 [373] [374]

At the same time, ushcherbnost an existing position of a consequence on the given criminal case forces to make one more basic note-criminal prosecution of the died it is inadmissible.

First, because to sentence died simply absurdly (though not - which so do not consider), as well as to send Immanuila the Edging on Solovki, and it is equal for the same reason, that it already just over sojourns two hundred years in places considerably more remote, than Solovki, and to take it therefrom it is not obviously possible! [375 [376] [377] As spoke one of seven wise men of Ancient Greece Hilon: «About the dead follows speaks or it is good, or anything» [378]. The Supreme Court of the Russian Federation adheres to the Same opinion also.

So, the Presidium of the Supreme Court of the Russian Federation in the decision from April, 1st, 2009 №21-П09 has specified, that if business in the relation of some persons is allocated in separate manufacture or ceased in connection with their death in a sentence it is underlined, that the crime is made together with other persons, without a mention of their surnames and with obligatory instructions of the bases of the termination of criminal case if that took place [379].

In spite of the fact that formally aforementioned legal position of the Supreme Court of the Russian Federation concerns only a sentence, it appears, it should be extended by analogy and to other remedial decisions and the certificates containing the description of criminal action or acts with participation died (the decision about attraction as convicted accomplices, the bill of particulars, etc.) and accepted after the termination concerning it criminal prosecution.

So the inspector has arrived also at removal of the decision from April, 30th, 2010, having specified, that assistance to the criminal society for monetary compensation was provided with the employee of the Main investigatory management at Central administrative board of internal affairs on Sverdlovsk area in which relation criminal case materials are allocated in separate manufacture. The surname of this employee in the decision is not mentioned in full conformity with razjasne -

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niem Plenum of the Supreme Court of the Russian Federation from April, 29th, 1996 №1

That is why causes bewilderment when in mass-media the information is sounded, that the assistant to the Prosecutor General of the Russian Federation approves the bill of particulars concerning the died S.Magnitskogo and live U.Braudera, last of which and initiated acceptance «the certificate Magnitsky» the Congress of the USA [380 [381] obviously on purpose to avoid the criminal liability under the Russian criminal law.

Secondly, it is represented abundantly clear, that criminal proceeding should be initiated not differently, as on events of the foreseeable past. Not casually after all there is a concept of statute of limitation in criminal cases. It is rather difficult to present, that can achieve from the witness at the description of events of murder of members of an imperial family of almost centenary prescription and what prospect of such criminal case when eyewitnesses of these events, as well as potential convicted any more does not remain in live.

At the same time, it has not prevented Presidium of the Supreme Court of the Russian Federation to rehabilitate the killed victims as follows:

«The fact of death of Romanova N.A., Romanovoj A.F., Romanovoj Island H., Romano - vojt.n., Romanovoj M. N, Romanovoj A.N. and Romanova A.N. is established by the state civil registration and confirmed, available in materials death date-17 has put July, 1918 x-copies of death certificates of the named persons who have been given out by the Central department the REGISTRY OFFICE of of St.-Petersburg where as a cause of death it is specified - execution, a death place - Ekaterinburg the House of special function.

About political grounds of the coercive measures applied concerning Romanova N.A. and members of his family, that the decision on the execution, accepted by extrajudicial public authority without carrying out of preliminary investigation and court, has been recognised by legitimate by one of the supreme bodies of the government of RSFSR - Presidium VTSIK testifies. Moreover, the persons, made the decision on Romanova N.A.'s execution and members of his family, and also executors of the given decision were not exposed to criminal prosecution from the state - the Russian Soviet Federal Socialist Republic.

From the documents investigated by court, it is visible, that Romanovs have been deprived a life not as a result of fulfilment of a criminal offence by someone. Romanov N.A. and members of his family were held in custody and have been shot on behalf of the state. Application of such repressive measure has been caused by that the former Russian emperor, his wife and children - members of the Russian Imperial House, from the point of view of public authorities of RSFSR, to class, social and religious signs represented danger to the Soviet state and a political system.

Resulted above circumstance testify that Rum - novn.a., Romanova A.F., Romanov of Island H., Romanov So-called, Romanov M. N, Romanov

A.N. And by Romanov A.N. have been subjected political reprisals and in this connection they come under to rehabilitation »[382 [383].

It is interesting, that Generalvnaja the Office of Public Prosecutor of the Russian Federation all the same has excited on August, 19th, 1993 criminal case upon murder in 1918 of members semvi Romano - BBix, and the cores dokazatelvstvami guilts of the persons who have committed the given crime, steels мемуарні N.K.Krupsky, the conclusions of the expert on magic of M.V.Skarjatina, memoirs and research of historians E.Radzinsky, A.N.Avdonina, P.Mulvtatuli, etc., that has not prevented in January, 2009 to Investigatory committee at Office of Public Prosecutor of the Russian Federation prekratitv criminal case upon  destruction of members imperial semvi in connection with smertvju the persons who have made umvnnlennoe murder. Such dokazatelvstv the history holds back an admissibility, how holds back and legality of the criminal prosecution for a long time deceased persons, and about

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Renewal on August, 21st, 2007 investigations!?

Under the similar scenario investigation собвітий storm vilvnjusskoj television towers develops on January, 13th, 1991.

So, in January, 2010 депутатві Diet Литвві have accepted the resolution in which have obliged pravitelvstvo Литвві ofitsialvno obratitvsja to Russia as to pravopreemnitse the USSR, with requirement to pay to indemnification to families lost and got wounds during January events of 1991 in Vilnius.

On January, 31st, 2011 the Ministry of Justice of Lithuania has informed, that amendments are prepared for corresponding law by which for «suffered from the Soviet occupation» during the period with 1940 for 1991 the right to demand indemnification irrespective of a limitation period is provided.

In the summer of 2010 the State Office of Public Prosecutor of Lithuania has renewed investigation of January events by 1991. The new group of public prosecutors of five persons has been formed,

Before which was a task in view to provide bringing to criminal liability of Soviet "originators" of January tragedy which now ostensibly "disappear" in Russia and Belarus.

The first step of the Lithuanian public prosecutors was the training for a new profession of the charges incriminated "disappearing", in charges about fulfilment of war crime, to be exact, of a crime against humanity. The basic impulsive cause for this training for a new profession was that in January, 2011 expired a limitation period of criminal prosecution of suspects on business about revolution.

On July, 14th, 2011 in a transit zone of Viennese airport Shvehat under the European warrant of arrest initiated by Lithuania the Austrian law enforcement bodies had been detained the former deputy chief of "Alpha" the lieutenant colonel of KGB M.V.Golovatov. However the Austrian justice after careful studying of the so-called "substantiations" presented by Lithuania ostensibly testifying to fault Golovatogo, has considered their unpersuasive, inconcrete and politized. Under the statement of the chief of criminal division of a department of justice of Austria of Christian Pilnacheka they have received from Lithuania only a historical sketch of January events of 1991 in Vilnius which in any way did not prove fault Golovatova [384 [385].

It is represented obvious and unconditional, that history questions should remain questions of history and should not be resolved ugolovnoprotsessualnymi by means. Certainly, on this theme it is possible to discuss long, especially if to recollect words of baron Robert Bartini: «the Past, the present and the future — same. In this sense time is similar to road: it does not disappear after we have passed on it, and does not arise this second, opening for on -

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Collar ».

Our representation about the Universe traditionally manages four measurements: three-dimensional space and time. At Bartini there was a Universe («World Bartini») where there were three measurements of space and three measurements of time which are interconnected and co-operate among themselves. Bartini considered, that changing space, it is possible to change time. And on the contrary. Paraphrasing known mister Koroveva, that who is well familiar with the fifth measurement, it is possible to move apart a premise to desirable limits, I will tell more, to lines knows what limits! Meanwhile, is absolutely precisely inadmissible to move apart to the specified limits [386] criminal trial, including at the expense of change of one of limits of action of the criminal procedure law.

However, for example, the death of the victim which is in direct causally - investigatory communication with act for which fulfilment the person is condemned by the become effective sentence of court, can attract rather unpredictable consequences, up to a recognition of separate positions at a goal about vno-remedially go the law mismatching the Constitution of the Russian Federation [387].

Thirdly, with necessity the question of the remedial legal personality of it convicted, otherwise, pravodeesposobnosti is mentioned.

With a view of economy of a paper and time will consider for an initial lemma: «the legal personality of participants of the criminal trial includes as the components the standing in court and capacity to sue» [388].

It is thought, what not «we will open Americas» if as the standing in court of the perpetrator we will understand ability to have laws of procedure and to perform remedial duties, and under capacity to sue - ability the actions to get and carry out laws of procedure, to create for myself remedial duties and to execute them. In spite of the fact that the resulted definitions coincide with the analogues from item 17 and item 21 of the Civil code of the Russian Federation, the moments of their occurrence essentially differ.

So, at the considered participant of the criminal trial protses - sualvnaja pravosposobnostv arises on achievement of certain age by time of fulfilment of the act forbidden ugolovnvsh by the law, and depends on the concrete corpus delicti (item 20 UK the Russian Federation). For example, in case of murder fulfilment protses the sou alvnaja pravosposobnostv at the person, its made, will be a cart - nikatv in fourteen years, and in case of death causing on imprudence - tolvko in sixteen, esti in so-called deni the "protsessualvnogo"

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Births.

C other party, the person who has reached of 14-year-old age, comes under to the criminal liability tolvko for the general crimes (specified in ч.2 item 20 UK the Russian Federation) unlike the exclusive. For example, at posjagatelistve for a life of the employee the right ohr anitelino go body such person would come under to responsibility under the item ч.2 item 105 UK the Russian Federation, instead of under item 317 UK the Russian Federation. At the same time, at murder 14 - summer a matter at once after childbirth of the newborn child to bodies predva - ritelinogo investigations after refusal in criminal case excitation under item 106 UK the Russian Federation does not follow vozbuzhdati criminal prosecution under item 105 UK the Russian Federation [389 [390].

As to protses a sou alvnoj capacity of the given person, that it directly depends on the moment of assignment to the last corresponding protsessualvnogo the status.

Under the general rule, the perpetrator in the criminal trial is transformed to a remedial figure of the suspect convicted, and from the moment of approach of the events specified in ch. 1 item 46 or ч.1 item 47 UPK the Russian Federation, also gets capacity to sue. However in case of a deviation from this rule (a variant of development of the is standard-logic formula) the variants directly connected with the presumption of sanity of the given person, as well as in a case with its standing in court which is absent at destroying a presumption of achievement of age of the criminal liability by it are possible.

Once again we will underline - from the moment of removal of the corresponding written pleading (for example, decisions about attraction as convicted) at the person arises capacity to sue, till this moment it is remedially actually incapacitated [391], the standing in court arises at the moment of actual occurrence of ability to have laws of procedure and to perform corresponding duties [392] as the remedial status of the person is established proceeding from its actual position [393] and is only remedially made out by the decision, but not formed by it [394].

Features of responsibility of the given person at various stages of the criminal trial directly influences it protsessualvnuju capacity.

So, if the person has made forbidden ugolovnvsh the law act in state of insanity or at it after committing a crime there has come the mental derangement doing nevozmozhnvsh awarding punishment or its execution such participant of the criminal trial can бвітв is recognised protsessualvno nedeesposobnvsh if its mental condition does not allow it osushchestvljatv процессуалвнвіе the rights provided by item 46 and 47 UPK Russian Federation (ch. 1 items 437 UPK the Russian Federation), or uchastvovatv in session of the court (ch. 1 items 441 UPK the Russian Federation). Thus pravoprimeniteli each time at the decision of the given question should pribegatv to the help of the experts participating in manufacture sudebnopsihiatricheskoj of examination, and if necessary and to medical evidence psychiatric стационара393 [395]. Therefore schitatv, that this participant of the criminal trial always protsessualvno is incapacitated [396], бвіло wrong [397] as the criminally-legal aspect of diminished responsibility of the person not always has the jural significance at capacity to sue definition.

Besides, the criminal law knows cases of the reduced responsibility (item 22 UK the Russian Federation), backlog cases in mental development of the minor who has been not connected with mentally frustration (ch. Z item 20 UK the Russian Federation), and also cases of state of drunkenness owing to the use of alcohol, narcotics or other stupefying substances (item 23 UK the Russian Federation). Also that is characteristic, all these cases are actual and significant for the criminal law only at the moment of act fulfilment, whereas for the criminal procedure law - at the moment of criminal proceeding (item 4 UPK the Russian Federation).

Under the general rule at the golovno-law of procedures does not limit the specified persons in capacity to sue. At the same time, ч.4 item 433 UPK the Russian Federation makes remedial gradation on persons in which relation manufacture about application is led force-telnyh measures of medical character taking into account their mental condition at the moment of criminal proceeding, and on the persons, suffering the mental derangements which are not excluding responsibilities, or frustration of sexual preference (pedophilia), without their mental condition at the moment of criminal proceeding (concerning the last manufacture about application of forced measures of medical character is not supposed, but measures can be appointed).

So, it turns out, that the second group of persons which in criminal trial use the status convicted, the suspect; criminal trial bodies authentically know about frustration available for them, however concerning the specified persons the capacity to sue presumption operates until expert by will not be established, that they do not have ability independently to protect the rights and legitimate interests in the criminal trial (item Z ch 1 item 196 UPK the Russian Federation) [398].

Meanwhile, we will note - the first group convicted does not use the status, however be agree ч.1 item 437 UPK the Russian Federation to such person should is accorded to carry out personally a right laws of procedure of the suspect convicted belonging to it (the item of item 46,47 UPK the Russian Federation). It at all does not mean, that its indication which «can be considered by court at an estimation of its mental condition, and also danger of the person to or other persons or possibility of causing by it of other essential harm, at definition of a kind of a forced measure of medical character» [399], are regarded as indications of the suspect convicted. It is considered, that it occupies remedial position of the participant «groups convicted».

In our opinion, such special remedial position of the given person by sufficient image is regulated in item 437 UPK the Russian Federation, but owing to features of proving the second item 74 UPK the Russian Federation it is necessary to add a part with indications of the person in which relation manufacture about application of forced measures of medical character is led, and its legal representative, differently judiciary practice of the indication of the first and will not consider as a source of proofs on business [400], and indications of the second, on the contrary, - only as witness's testimonies [401]. That circumstance looks rather strange also, that the Russian Federation the ultimate fact is expanded by article 434 UPK, and the list of evidences is not present [402], thus, that indications of such person [403] can be considered by court at an estimation of its mental condition, and also danger of the person to or other persons or possibility of causing by it of other essential harm, at definition of a kind of a forced measure of medical character [404].

Besides, the remedial status of the person in which relation manufacture about application of forced measures of medical character is led, after removal by decision court about application of forced measures of medical character, "is not transformed" (as in a case with convicted) in the status condemned, and, sledovatelvno, limitation periods under item 78 UK the Russian Federation not прервіваются, and continue ischisljatvsja, that in itself is illogical

In this connection, in practice there is steam adoks alvnaja a situation. So, on - skolvku according to item 103 UK the Russian Federation prinuditelvnoe treatment in a psychiatric hospital is equated to punishment under criminal law in the form of deprivation свободві (one denv пребвівания in a psychiatric hospital = one denv deprivations svobodv і) it turns out, that such person can is actually termless «отбвіватв punishment» as term of the last is certain by the treatment moment.

C another storonn і, at the expiration of limitation periods of criminal prosecution irrespective of presence and character of disease of the person the court the decision about the criminal case termination can it osvoboditv both from the criminal liability, and from punishment [405 [406], and not asking for that of the consent of this person (as it is offered in ч.2 item 27 UPK the Russian Federation) as at the given kind of manufacture convict-telnyj a sentence is not enacted (ch.ch. 2-4 items 443 UPK the Russian Federation).

At the same time, on our deep belief, нормві the general part of the Criminal code of the Russian Federation, including gl. 11 UK the Russian Federations, are reguljativnimi, establish (somewhere obviously, somewhere is implicit) procedure, for example, applications of limitation periods of criminal prosecution. However, in criminally-protsessualvnom sense is better they would not do it and that is why.

If ranvshe under item 48 UK RSFSR the limitation period was estimated for a moment you - decision executions about attraction of the person as convicted (on affairs, on kotorvsh predvaritelvnoe investigation not provodilosv, - at the moment of appointment of session of the court) now under item 78 UK the Russian Federation - at the moment of coming into force of a sentence of court that does not mean any other protsessualvnogo the certificate, poskolvku criminal law application by analogy is not supposed (ч.2 item 3 UK the Russian Federation). It is thought, it would be perfect pravilvnvsh and логичнвім dopustiti analogy регулятивнвіх norms of the general part of the criminal law [407 [408] [409], instead of to forbid to apply by analogy all law.

C the given opinion the Supreme Court of the Russian Federation, rzjasniv agrees also, that the instructions in ч.2 item 78 of the Criminal code of the Russian Federation on coming into force of a sentence of court do not mean impossibility of application of positions of article 78 UK the Russian Federation when at a legal investigation in essence the court takes out other, except a sentence,

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The total decision.

Meanwhile, there is «behind brackets» a situation of becoming res judicata of the decree. Here one of cases of my own practice before - stavitelvstva on ugolovnvsh to affairs when the Russian Federation put in pawn in item 78 UK the design of calculation of limitation periods of criminal prosecution has changed zakonnvsh, obosnovannvsh and a fair sentence.

So, on April, 11th, 2012 the Full court on ugolovnvsh to affairs of the Sverdlovsk provincial court has changed a sentence Top-Isetsky of regional court of of Ekaterinburg of Sverdlovsk area from 20.01.2012 on business №22-2300/2012 on following bases:

«Having estimated all dokazatelvstva in aggregate, the court obosnovanno recognised K wine вині m and pravilvno qualified its actions on ч.2 item 146 of the Criminal code of the Russian Federation.

In this case, according to the full court, the trial court, proceeding from set приведеннвіх in a sentence dokazatelvstv, has made obosnovannvsh вві waters that K, possessing наввіками ispolvzovanija kompvjuternoj the technicians, having at home... персоналвнвій kompvjuter, ввіделеннвій the access channel to a network the Internet from Open Company "Telesetv-service", participating in the project «Kommunikabelvnaja setv» the Internet - the provider of Open Company "Telesetv-service", during the period from 01.12.2009 till it is illegal, contrary to will of legal owners, is - polvzoval обвектві the copyright in the large size.

Punishment K in a kind обязателвнвіх works is appointed taking into account character and degree of the social danger of the committed crime, даннвіх about the person of the guilty.

At the same time, according to and. "And" ch. 1 item 78 UK the Russian Federation the person who has committed a crime nebolvshoj of weight, is released from the criminal liability if from the date of committing a crime have expired two years.

According to ch. 2 items 78 UK the Russian Federation limitation periods are estimated from the date of committing a crime and till the moment of the introduction of a sentence of court in validity.

Apparently from business materials, K it is condemned for a crime provided ch. 2 items 146 UK the Russian Federation which concerns a category nebolvshoj the weights, the given crime are ended 03.03.2010г.

Thus, limitation periods on the given crime have expired 03.03.2012г., that is after adjudgment, but to its introduction into validity, and therefore the full court considers neobhodimvsh a trial court sentence izmenitv, having released K from punishment in connection with the expiration of terms having given -

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nosti ».

So, vozvrashchajasv to a question about protsessualvnoj capacity of participants «группві convicted», we will specify - приведеннвіе reasons, ALLOW, BO - перввіх, utverzhdatv, that in criminally-protsessualvnom law the question about protsessualvnoj capacity обвиняемвіх, suffering by physical and mental lacks (at least, partially) [410 [411] is solved; in-vtorv_h, concerning all persons, указаннвіх in ч.1 item 97 UK the Russian Federation, operates a presumption protsessualvnoj capacity until it will not be confuted expert by.

Absence any of elements in protsessualvnoj the legal personality of participants of the criminal trial can imetv vesvma notable protses - sualvnoe value for criminal case.

So, if obratitvsja to a question protsessualvnoj capacity of persons, koto - рвіе bvshi застигнутві flagrante delicto in a condition opvjanenija, for example, ввізванном the alcohol use, that, under the general rule, given obstojatelv - stvo their responsibility does not exclude (item 23 UK the Russian Federation), however for practice a case actual.

For example, during search V and M., together with other persons detained for the period of carrying out of investigatory action, have drunk about 6-7 bottles of vodka and cognac, and M at the moment of its interrogation as the suspect was in a condition of alcoholic intoxication in this connection could not carry out to the full the protection [412].

Defender M has referred to the decision of Plenum of the Supreme Court of the Russian Federation from October, 31st, 1995 №8 «About some questions of application by vessels of the Constitution of the Russian Federation at justice realisation» according to which «proofs should admit received with law-breaking if at their collecting and fastening have been broken guaranteed by the Constitution of the Russian Federation of human rights and the citizen» [413].

And it is valid, in case of interrogation of the person who are in state of drunkenness, its right of defence guaranteed by item 45 of the Constitution of the Russian Federation as the person thus cannot carry out to the full the specified constitutional law [414] is broken, i.e. it is possible to consider it in remedial sense ogranichenno capable.

Meanwhile, judiciary practice on such affairs develops in the interesting image.

So, the court of court of cassation by consideration of the complaint condemned where, including, the attention to the question on inadmissibility of witness's testimonies P which at the moment of interrogation «nahodilasv in a condition alkogolvnogo opvjanenija, and during the conflict slept» was brought, recognises polnostvju protsessualvno as capable such person as «in session of the court neither condemned, nor its lawyer did not bring an attention to the question on a recognition inadmissible P.Sudom's witness's testimonies of its indication принятві lishv in that part in which they will be adjusted with others of the proof - mi on business. In this connection the statement in the complaint about inadmissibility of the given dock - zatelvstva nesostojatelvno» [415].

In other case the court simply leaves from an estimation of the given argument, considering, that «narkozavisimostv B on which ссвілается in the complaint condemned as on its basis ogovora B not svidetelvstvuet about unauthenticity of indications B, exposing I in fulfilment of crimes, for которвіе it is condemned, on - skolvku court is not established motives for ogovora condemned by the specified person (ввіделено me - JU.K.) »[416], i.e. the court has not checked up, and in what condition was B at the moment of evidence whereas condemned in the complaint it is direct uka - звівает, that« indications of witnesses C., F, B cannot javljatisja dokazatelvstvami in view of their unauthenticity. Witnesses B in court it is not interrogated, its indications by court not proverenv і, it was the addict and at the moment of a summer residence of an appearance with guilty was in a condition narcotic opvjanenija, however examination about a condition establishment opvjanenija to it not бвіла is spent, than item 179 UPK the Russian Federation is broken. B it has reserved under the pressure of employees of militia, чтобві ostatisja on a subscription about неввіезде »[417].

However the criminal procedure law orders to spend survey of the person for revealing of a condition of its intoxication, and also expert testimony in court, if there is a necessity of survey of such participant of the criminal trial for an estimation of reliability of its indications (item 179 UPK the Russian Federations), poskolvku in such cases, as a rule, arise (and dolzhnv і) a cart - nikatv doubts in its ability pravilvno vosprinimatv obstojatelvstva, important for criminal case, and davatv indications, and also in ability itself hundred jatelvno zashchishchatv the rights and законнвіе интересві (item 196 UPK the Russian Federations).

Primechatelvno, that in administrative legal proceedings with the person who is in a condition opvjanenija, as a rule, do not make any to process - алвнвіх actions (except, naturally, osvidetelvstvovanija on a condition opvjanenija), even term of administrative detention is estimated not since the moment dostavlenija, and since its time ввітрезвления (ч.4 item 27.5 KoAP the Russian Federation), i.e. when the person re - alvno in a condition osoznanno ispolvzovatv the rights and sobljudatv возлагаемвіе on it in the duty law.

Hunting on чернвіх the cats is remembered, when after Voland's disappearance with the retinue in Armavir nachalasv, one conscious citizen dragged the caught animal for the forepaws braided by a green tie, achieving easy kicks that the cat by all means went on hinder legs. Deprived by the gift for speaking nature, the cat than could not be justified. And only the cat has been delivered in police station, there were convinced, that from the citizen in the strongest image the cat who has not uttered words in the protection smells as spirit owing to what its indications have immediately doubted, and, has been recognised in what by innocent [418].

Thus, the indications of the person given in state of drunkenness, can be both inadmissible, and doubtful from what follows, that absence or restriction of capacity to sue of participants of the criminal trial make certain demands to proofs on criminal case.

C other party if the limited capacity to sue of the convicted can attract inadmissibility or unauthenticity of its indications, that, for example, will lock to the Representative under human rights in the Russian Federation davatv indications about obstojatelvstvah a private life of the applicant and other persons without them pisvmennogo the consent, become известнвіх to it in the course of consideration of the complaint [419], - attracts inadmissibility of its indications as the witness owing to absence at it criminally-protses a sou alvnoj legal capacities [420]. Analogichnvju cases are provided and in

ch. Z item 56 UPK the Russian Federation.

Invshi words, the criminal procedure law provides conditions of an admissibility and reliability of a certain kind of the proofs following from the remedial legal personality of their source, i.e. an admissibility and reliability of indications with reference to remedial pravodeesposobnosti the person who are giving evidence.

The specified reasons concerning the legal personality of participants of the criminal trial «groups convicted» force to pass and to other system of coordination of branch designs in the mechanism ugolovnopravovogo regulations - to financially-legal design of object of the crime opposite to the perpetrator, shown in a design of the victim in criminal trial - the physical person to whom the crime does physical, property, moral harm, or legal person in case of causing by a harm crime to its property and business reputation (item 42 UPK the Russian Federation).

At once we will be reserved, that is initially necessary to discriminate understanding of the victim in material and remedial sense. If in material sense sustained (as the object of a crime or an object element [421]) characterises that role which it carries out in the course of committing a crime the victim in remedial sense is a person to whom as a result of committing a crime physical, property, moral harm or harm of business reputation is done. If not to spend coordination of these branch designs within the limits of the mechanism of criminally-legal regulation in practice it leads to the roughest law-breakings.

So, on April, 26th, 2007 the deputy chief of a department of an investigatory part at GU the Ministry of Internal Affairs of Russia on the Ural federal district Shunina, having considered criminal case materials № 529539, the crime initiated to signs provided ch. 2 items 201 UES the Russian Federation, has established, that actions D as a result of abusing it powers at bankruptcy of Open Society cause a material damage to the budget of Sverdlovsk area. In this connection, SHunina, being guided by item 42, 45 UPK the Russian Federation the decision recognised as sustained - Sverdlovsk area in the name of the deputy chief of legal division of a department of the finance of Sverdlovsk area. However on June, 18th, 2007, having established during preliminary investigation, that actions D. And unstated persons the damage is caused the federal, regional and local budget (and not just regional), instead of Sverdlovsk area by victim on business have been recognised the federal, regional and local budget in the name of Interdistrict IFNS Russia № 16 on Sverdlovsk area [422].

The resulted comical case of a recognition victim of Sverdlovsk area and unsuccessful search - and who all the same should represent it in the criminal trial as item 45 UPK the Russian Federation (can be the governor!?), has led inspectors of even more absurd situation - priznatv the formation and expenditure form денежнвіх means, предназначеннвіх for financial maintenance of problems and state and local government [423] functions, to victims on criminal case.

And in that, and other case pravoprimeniteli with all ochevidnostvju "has wrongly transferred" a materialvno-legal design of object of a crime to especially remedial scope. Most well committed error it is possible to explain on a high treason example (item 275 UK the Russian Federation) where in the name of the Russian Federation, at first sight, like would coincide the victim both in criminally-legal, and in criminal procedure sense. However public formations (the Russian Federation, subjects of the Russian Federation and municipal unions) cannot be recognised by victims [424] on criminal cases on the basis of item 42 UPK the Russian Federation as to them the norms defining participation of legal bodies only in relations are applied, regulated by exclusively civil legislation that is why the similar analogy of item 2 of item 124 of the Civil code of the Russian Federation in the criminal trial is inadmissible.

Partly it the phenomenon of "two-objective" crimes, and also cases when criminal action in which there is no victim in remedial sense of a word is made, for example, speaks.

So, dismissal of action behind reconciliation of the parties on such affairs where there is no victim in understanding of positions of item 42 UPK the Russian Federation, is impossible as to be consiliated easier is nobody. The similar situation actually arises and on de -

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Llamas about "two-objective" crimes, where sustained ввіступает lishv as additional objective display of this encroachment [425].

Meanwhile, in case of reconciliation of the victim with convicted criminal proceeding of request of the aggrieved party stops under the decision world sudvi according to ch. 2 items 20 UPK the Russian Federation, and on affairs chastnopublichnogo charges - according to item 25 UPK the Russian Federation with the subsequent ССВІЛ-which on item 76 UK the Russian Federation. And the person guilty of fulfilment of socially dangerous act, provided ч.1 item 115, ч.1 116, ч.1 item 1281 UK the Russian Federation, can бвітв is released from the criminal liability even in the event that earlier it committed any crime while repeated committing a crime [426] excludes possibilities of application of item 76 UK the Russian Federation on affairs is private - public charge. The victim specified in ч.2 and 3 items follows otmetitv, that in reductions cases at the moment of excitation of criminal case of private and private-public charge 20 UPK the Russian Federation, is not the victim in sense statvi 42 UPK the Russian Federation - the term "victim" ispolvzovan in criminally-legal sense as the person who has suffered from a crime, and yet not recognised as the victim on criminal case that is why such "victim" has no the high-grade remedial status of the victim provided statnej 42 UPK Russian Federation. In criminal procedure sense it acts as the applicant, i.e. the person who has handed in the statement for a crime. Thereupon the instructions do not concern the given situation

ch. Z item 45 UPK the Russian Federation that representatives of the victim have the same laws of procedure, as persons represented by them as nobody can allocate another with the big rights, than has for this moment itself. Besides there are such inaliennable laws of procedure which can be reali -

zovany victim tolvko personally and independently, as, for example, the rights, предусмотреннвіе points 2, 3, 15 second parts statvi 42 UPK the Russian Federation.

Thus, the resulted reason does not suppose excitation of criminal case of private or private-public charge under the statement of the representative operating by proxy. Other decision of a question can lead to unjustified expansion of a circle of the subjects participating in bringing a prosecution on the same fact and concerning one and those persons. Besides, it will be necessary otvetitv and on a question and whom to warn about the criminal liability provided by item 306 UK the Russian Federation. The principal in the name of the attorney? And if the principal for this moment has withdrawn the power of attorney or has decided to withdraw the statement and has sent the second attorney? Becomes obvious, what not all designs from civil-law sphere can be applied in criminal trial sphere, but only specially specified in ugolovnoprotsessualnom the law.

Also we will add, as applicants can be different. Under V.K.Kolomejtsa's certificate, it can be the person who has pled guilty [427], i.e. perpetrator. Or, for example, the head of the commercial or other organisation which are not the state or municipal enterprise (item 23 UPK the Russian Federation). And last possesses exclusive remedial power, despite the note №2 to item 201 UK the Russian Federation, to address with the statement for bringing a prosecution, and, at the same time, it can be both to victims from a crime, and its subject. In case the head has committed a crime provided by chapter 23 UK the Russian Federation hardly he will address with the statement for criminal case excitation. And consequently, if the organisation wishes to involve such head in the criminal liability, at first it is necessary to replace it on this post, and already then to address in bodies of criminal prosecution [428].

Meanwhile, neustanovlenie sustained (the physical or legal person) not always interferes with criminal proceeding, for example, on affairs about plunder any kinds as will enough prove, that gratuitously withdrawn and (or) the turned property does not belong guilty, is for it the stranger. Knowingly the victim is considered the subsidiary [429] participant of the criminal trial which interests should defend bodies of the criminal trial from charge. As in the ultimate fact on criminal case sustained as display of object of a crime concerns the circumstances confirming character and the size of harm, caused by a crime (и.4 ch. 1 items 73 UPK the Russian Federation) as at decision-making on a recognition of the person sustained bodies of the criminal trial and officials should establish character of the harm caused as a result of a committed crime which depends, first, on business actual facts, and secondly, and specific features of the victim.

Besides, the given conclusions are especially actual, when the category "victim" concerns an uncertain circle of persons, victims from a crime. In difference about classical model when the victim is known, it really to establish and make with its participation a complex necessary investigatory and legal proceedings, the model of "the group victim» allows without loss of "remedial quality» criminal proceedings to facilitate preliminary investigation and consideration of such business in court. Occurrence of the given kind of the victim first of all is connected with mass infringements of the rights of rather big circle of persons, for example, as a result of swindle in granting sphere to the mass consumer of the electric power, unreasonable overestimate of tariffs by the operating companies with the subsequent neperechisleniem energosnabzhajushchim to the organisations of money resources. Differently, when in criminal trial there is a necessity of protection of interests of the big group of the citizens who have appeared in an identical juridiko-actual situation owing to infringement of their interests as a result of a crime, made by the same person.

The positive effect from such approach of the decision of a described problem is obvious:

First, it does remedially expedient investigation by agencies in charge of preliminary investigation and preliminary investigation and consideration of such criminal case in court when a considerable quantity of victims, small property damage is separately caused each of which, is not caused and not interrogated by criminal trial bodies, and their interests are protected by the public prosecutor;

Secondly, it allows most economically and soon (in reasonable term) to reveal all circle of victims and to equalise their possibilities on reception of compensation of the harm caused by a crime. And, two variants are possible. The first - when the public prosecutor declares and supports such "group" civil suit on criminal case. The second - when after the decision accusers but go a sentence (1) citizens can obratitvsja with the class action as civil legal proceedings where procedure razbiratelvstva, connected with necessity of the notification and revealing of all participants of group, allows to make uncertain structure of group of victims at the moment of civil case excitation quite defined and personified to adjudication [430], or (2) each citizen has the right to address with the claim separately in protection of the own rights if in a sentence at qualification of actions condemned by court they have been specified as victims (in ugolovnopravovom sense).

Thirdly, social justice as it is simultaneously effectively protected as the public interest (with the least remedial expenses is reached also and without loss of quality of investigation of circumstances of business illegal activity guilty), and private-law interests (is possible collecting of losses in favour of participants of group of victims without special delays and expenses) is barred.

Fourthly, the author of the present work defends for a long time already idea about an admissibility in criminal trial of so-called indirect civil suits, including recourse [431], and thus is not lonely in the conclusions [432].

Explanations of the Supreme Court of the Russian Federation about possibility not - establishments of the victim on criminal case in сMBicле statvi 42 UPK the Russian Federation are not less interesting.

So, in the project of the decision of Plenum of the Supreme Court of the Russian Federation predlagalosv bukvalvno the following:

Follows uchityvatv, that statvja 42 UPK the Russian Federation does not provide a recognition victim of the state or others publicly-pravovv_h formations in this connection in case of detrimenting of the Russian Federation, to its subjects or mu - nitsipalvnym to formations they cannot бвітв are recognised by victims on criminal case, including through the representative in the name of the Ministry of Finance of the Russian Federation or it territorialvnogo body. At the same time, public authorities and органні local government as legal bodies are not deprived the right trebovatv a recognition by their victims in case of causing by a harm crime to directly their property or business reputation.

When by a crime it is damnified exclusively to interests of a society or the state and there is no victim in understanding of article 42 UPK the Russian Federation, positions of article 76 UK the Russian Federation are applied cannot be. The person who has committed a crime, can be released from the criminal liability on other statutory bases.

The part of 1 article 75 UK the Russian Federation does not establish any restrictions depending on a kind, number and a priority of objects of the criminal trespass, from presence or absence of the victim, therefore application of the given norm is supposed both for crimes against person, and for others преступления432. [433]

Besides, the criminal law, and also its interpretation by the Supreme Court of the Russian Federation [434], do not establish dependence of the size of appointed punishment on the size and character of the harm caused to the victim.

C other party, taking into account dualism legal природні the sustained harm caused to property which ввіражается, as a rule, in a kind убвітков, vesvma it is conditionally possible postavitv an equal-sign between protsessualvnvsh and a floor-mat - rialvnvsh aspects of property damage otnositelvno its size. At the same time, nelvzja govoriti about an admissibility of practice of a recognition of the person victim in a case «causings to it убвітков by reception прибвіли», as for example, it took place бвітв, in particular, on «YUKOS business» when the court in a sentence has specified, that in rezulvtate realisations добвітой to oil "sustained" - добвівающим to "daughters" of YUKOS prichinjalisv убвітки, and then, in the same sentence - "daughters" from oil realisation have received прибвілв at a rate of more 3 billion US dollars [435] estv «убвітки» bore not because the damage that is why, that прибвілв without taking into account даннвіх «убвітков» could бвітв znachitelvno bolvshe has been caused.

That is why follows razlichatv property damage as a sign (or the characteristic) the remedial status of the victim and as an obligatory sign of act in spite of the fact that their sizes, as a rule, coincide, or at all указвіватв at qualification of act convicted on the property damage caused to the victim. As внісшая the degree of jurisdiction at a practice explanation on a number of criminal cases vaet, for example, that «illegal ispolvzovanie objects of the copyright it is necessary to consider absolutely unequivocally decrees - as completed crime from the moment of fulfilment specified dej -

stvy in large (especially large) size irrespective of approach the criminal of consequences in the form of actual detrimenting to the legal owner »[436].

Differently, the criminal procedure law does not co-ordinate a recognition of the person victim so that concerning it the objective party of a crime has been abided and satisfy and such harm, which approach the criminal law has been done considers as a completed crime sign. Otherwise loses sense of item 4 ch. 1 item 73 UPK the Russian Federation which obliges to prove on any criminal case character and the size of the harm caused by a crime, not specifying neither its kind, nor the size, volume.

Hence, any person to whom at performance of the objective party of a crime one or several kinds of harm - physical have been caused, property, moral - or one kind of harm, let us assume, physical, but various severity level, should be recognised by the victim on criminal case, i.e. the criminal procedure law does not discriminate persons more sustained or less victims from the criminal trespass, does not establish hierarchy of victims, for example, from severity level of the caused harm to health.

Thus, meeting in practice of organs of inquiry artificial division of the persons injured with a uniform crime, connected, in particular, with infringement of rules of traffic and operation of vehicles (item 264 UK the Russian Federations), on some groups, one of which admit victims (at causing of heavy harm by it to health) or those become close relatives of the victim, and others (which it is caused average weight or easy harm to health) - is not present, outrages the second group of victims on access to justice (item 52 of the Constitution of the Russian Federation) within the limits of the criminal trial, disqualifies on a civil suit presentation at criminal proceeding (the item 44 UPK the Russian Federation) and possibilities to state to me - є concerning reconciliation of the parties (item 25 UPK the Russian Federation) and also to appeal against a sentence in an appeal or cassation order, that is contradicts appointment of the criminal trial which consists, first of all, in protection of the rights and legitimate interests of persons and the organisations which have sustained from crimes (item 1 ch.І Item 6 UPK the Russian Federation). Refusal of the inspector recognise as victims on criminal case about a crime provided by item 264 UK the Russian Federation, persons by whom it is caused average weight or easy harm to health, can be quite appealed them in court (item 125 UPK the Russian Federation) and to be a subject of the judicial review [437].

C other party as judiciary practice testifies, there is a dependence of a kind and the size of appointed punishment from age of the victim [438] which not always can be regarded as the positive phenomenon.

In the Middle Ages of children perceived as melkokalibernyh adults and did not find any separate value in their small age and growth. In modern Russia have gone further: small children, judging by sentences for their tortures and murders, at all do not consider as high-grade people.

Here, for example, rather indicative judgements on "children's" affairs of the recent past.

In CHernogorske (Hakassija) in November, 2011 in hospital in extremely grave condition the five-monthly girl with kaheksiej, oprelostjami buttocks, pahovoj areas, the bottom finitenesses, hematomas of the top finitenesses, a hydrocephaly has arrived. 25-year-old mother, leaving in zagul, has given the daughter and the two-year-old son on care of the girlfriend-alcoholic, having left a half-package of dry cream and one diaper. Promised to return in day. Children have stayed at the girlfriend ten days without leaving and practically without a food. And here in a year criminal case has been considered, the world judge has sentenced careless mother to one and a half years of restriction of freedom then as the public prosecutor asked court about imprisonment for term two years shestv months.

In Krasnoyarsk following the results of similar incident - matv has thrown on pjatv days without meal ten-monthly malvchika and the two-year-old girl - the defendant otdelalasv conditional punishment. Having left children a bottle of a dairy mix and bread, the lady has left on a visit (to court has explained, that has got tired and has solved otdohnutv). Mal - chik ate itself: rassosal and сгрвіз a membrane between bolvshim and ukazatelvnvsh pal - tsami. After three days children's howl uslvipali neighbours and ввізвали police. The court of Lenin area of of Krasnoyarsk has sentenced the woman to a year of imprisonment conditionally with испвітателвнвім for a period of one year.

Soon after that one more process has taken place: in the Soviet area of of Krasnoyarsk matv has thrown without едві daughters - six and two years. The apartment was demountable, and neighbours on the fifth denv children's crying have found the proprietress kvartirn і, which открвіл dverv. Itself matv vernulasv only in 9 days. The court has sentenced it to 5 months of imprisonment conditionally.

Or other case - provodnitsa Anapa-Novokuznetsk has given birth to trains in the car of the boy and has there and then strangled him. A corpse has brought in an office compartment and has hidden in the road bag. By court it is recognised by made, it is sentenced to one and a half years of imprisonment with enduring the punishment in a colony-settlement [439].

About that it, actually, an actual problem, attempts of the legislator to complicate a fate guilty testify also, having expanded the list of the circumstances aggravating punishment, listed in item 63 UK the Russian Federation, point "and" (committing a crime concerning the minor (minor) the parent or other person to which the law assigns duties on education of the minor (minor), and equally teacher or other worker of the educational, educational, medical or other establishment, obliged to carry out supervision of the minor (minor)) [440]. However, as practice testifies, it does not solve a problem. Also it is connected not only with privileges of some structures of the crimes made by parents concerning children (for example, item 106 UK the Russian Federation where the sanction three times is less, than on ч.1 the item 105 UK the Russian Federation), but also that the child - the victim from a crime of the parents - actually acts as the silent participant of the criminal trial, he can tell nothing in the protection, is not necessary to it the professional defender-lawyer unlike at all minor convicted (item 51 UPK the Russian Federation). For protection of their interests to obligatory participation in criminal case their legal representatives (и.12 item 5, ч.2 item 45 UPK the Russian Federation) which parents are, adoptive fathers, trustees or trustees of the minor victim, or representatives of establishments or the organisations on which care there is a minor victim, guardianship bodies, i.e. convicted of committing a crime concerning the ward are involved.

So, the tutor of the Kyzylsky boarding school, has ground on three days of one of the pupils, letting out it from a room only a few time day in a dining room. The seventh-grader did not visit employment, is high-grade did not eat, and when wanted in a toilet, has been forced to knock on a door that it have let out long. During the spent check by Office of Public Prosecutor of Kyzyl it is established, that the tutor constantly shouted at it, offended and beat on a back. Criminal case [441] is as a result initiated. Excuse for comparison, but all it very much reminds on serving punishment in a corrective colony.

Conclusion only one - minor victims, especially juvenile, in the modern criminal trial at fulfilment concerning them crimes as a result of actions of legal representatives are not protected in any way. Owing to item 15 UPK the Russian Federation in similar cases they (legal representatives) cannot protect interests of minor victims as their interests simply contradict interests of the last [442]. Introduction of a post of the Representative at the President of the Russian Federation by the rights of the child [443], and then and regional representatives has not put the decision of the given problem in motion as the specified representatives have not received any laws of procedure in the criminal trial [444].

Thus, to protect minor victims remains only to the public prosecutor in court and to bodies of preliminary investigation in pre-judicial manufacture, and... And to the legislator whom recently delivering justice problems in the foreign states when crimes concerning adopted Russian children are committed by foreigners, including softness of appointed punishment foreign "parents" and why that not at itself here more interest, in Russia (is Enough to recollect «law Dimy JAkovleva»),

In general it is amazing, even judiciary practice reviews avoid this question, more truly it is not necessary before pravoprimenitelem. At the same time, for murder of the adult the Russian courts sentence up to lifelong, and for murder of the child can conditionally or year-two of a colony-settlement as though committing a crime concerning juvenile, other defenceless or helpless person is softening [445], instead of aggravating punishment being - telvstvom (and. "z" ч.1 item 63 UK the Russian Federation); and in некоторвіх structures - a qualifying sign (and. "In" ч.2 item 105, and. ч.2 item 111, the item "in" ч.2 item 112, and. "And" ch. Z and and. ч.4 item 131, and. "And" ch. Z and and. ч.4 item 132, and. "In" ch. Z item 228.1, and. "And" ch. Z item 230 UK the Russian Federation) [446]. According to the logic of the legislator should бвітв on the contrary - concerning juvenile punishment should for fulfilment of crimes бвітв more religiously, than concerning the adult.

How svidetelvstvujut others примерві from judiciary practice, «legislators, establishing povvinennuju criminal otvetstvennostv for the qualified murder, kotorvsh causing of death to the person, obviously for guilty being in a helpless condition is, kakovvshi persons, неспособнвіе owing to physical and mental condition zashchititv themselves admit, carries to them and juvenile children, owing to what given obstojatelvstvo, specified also in and."z"ch. 1 item 63 UK the Russian Federation, cannot бвітв is considered repeatedly at awarding punishment.

D B.A. has made especially grave crime, having taken life the newborn dochv in this connection to it, irrespective of set softening otvetstvennostv obstojatelvstv, should бвітв the punishment connected with realvnvsh by imprisonment »[447] is appointed.

Hence, this question not to the legislator. Certainly, this problem deserves separate research and careful study.

The Criminal procedure law, as well as the logician of the corpus delicti [448 [449], does not suppose coincidence of the perpetrator (the suspect convicted) and the victim in one person, other state of affairs would mean an exception pub -

448

Persons of the criminal trial and competitiveness of the parties, and also impossibility of achievement of the purpose of the criminal trial - an establishment of the person who have really committed a crime, and destroying a presumption of its innocence.

Reliability of the given conclusions made the author of given research in the beginning 2013 [450], subsequently has proved to be true acceptance of the Federal act from 28.12.2013 № 432-FZ which has added item 45 UPK the Russian Federation with a part of the second. 1 and второй.2 the following maintenance:

«2.1. Under the petition of the legal representative of the minor victim who has not reached age of sixteen years in which relation the crime against sexual inviolability of the minor is committed, participation of the lawyer as the representative of such victim is provided with the investigator, the inspector or court. In this case expenses on a payment of the lawyer are compensated for the account of means federalvnogo the budget.

2.2. Under the decision of the investigator, the inspector, sudvi or to the court ruling lawful representatives of the minor victim can бвітв it is debarred from criminal case if there are bases polatati, that its actions aggrieve to interests of the minor victim. In this case to participation in criminal case another is supposed zakonnvsh representatives of the minor victim »[451].

Besides it, vvnneskazannoe also means, that in a case as well as with obvinja - emym (podozrevaemvsh) assignment of the victim (means protsessualvnoe) is forbidden [452]. In general absurdnvsh would be schitatv, that about - цессуалвнвіе the rights can peredavatisja as inheritance, that they are included into the mass of the succession, etc. Operating criminal procedure law only in two cases provides specific "inheritance" of the status of the victim:

S on criminal cases about the crimes which consequence was the death of the person, the rights of the victim pass to one of its close relatives (ч.8 item 42 UPK the Russian Federation);

S in case of death of the request of the aggrieved party which has sustained criminal case it is initiated by a filing of application by its close relative (ch. 2 items 318 UPK the Russian Federation).

However, zhiznv presents situations when infringements of rules of traffic by drivers of a vehicle have entailed smertv their close relatives. So, in practice прокуратурві Sverdlovsk area from 1997 on 1999 бвіло such two уголовнвіх affairs, прекращеннвіх the public prosecutor in connection with dejatelvnvsh repentance, that under the remark исследователей452 formalvno in any way укладвівалосв in frameworks of articles 75 UK the Russian Federation and 7 UPK RSFSR 1960г. (Item 28 UPK the Russian Federation). And it is absolutely fair, what not укладвівалосв as in подобнвіх cases there should not be a transition of the rights of the victim to the driver, despite its close relationship with the killed.

It is necessary to note, questions of assignment of the sustained - legal bodies, strictly speaking, do not enter into the ultimate fact on criminal case (item 73 UPK the Russian Federation) and are outside of the interbranch mechanism ugolovnopravovogo regulations.

If all the same remedially possible transition to recognise right the victim - the legal person as result of its reorganisation the similar situation in practice can quite lead to coincidence in the same person of the remedial status sustained and convicted that is inadmissible owing to requirements of item 15 UPK the Russian Federation and will bring to nothing the interbranch mechanism ugolovnopravovogo regulations.

So, the "new" victim, to a word speaking, in general could not exist at the moment of injury as a result of committing a crime (the legal person-assignee for that moment could be simple still it is created), in that case, it is represented rather doubtful as it can give evidence concerning event of crime if it was not at these being - [453] telstvah (harm a crime to directly it is not caused!) In COMMUNICATION C than, in case of an assignment assumption restriction of the right of defence of the rights and законнвіх interests of such "victims" from crimes accurately is traced (and. 1 ch. 1 items 6 UPK the Russian Federation), actually they cannot osushchestvljatv high-grade criminal prosecution. Meanwhile, it is perfect normalvno when manufacture on business is led without participation of the victim, интересві which должнві otstaivatv органві the criminal trial with сторонні charges, that polnostvju vpi - свівается and in logic of a subject of the mechanism of criminally-legal regulation.

Thus, follows zakljuchitv, the remedial status of the victim is inaliennable, and application not the relative by law of legal designs in the mechanism of criminally-legal regulation results last in "worthlessness", destroys it.

In practice, however, there are the cases "supposing" possibilities of transition protsessualvnvk of the rights of the sustained-legal person to other persons.

So, Hamovnichesky rajonnvsh the court of city Mockbbi in a sentence on Khodorkovsky and Lebedev's business has specified: «Доводві lawyer Rivkina K.E. that Open Society" Yuganskneftegaz "бвіл is got Open Society" Rosneft "for the large sum that svi - detelvstvuet about impossibility of plunder добвіваемой it of oil, the court considers neso - стоятельHBiми. Ochobhbim and they are estimated by an active of such enterprises as Open Societies" Yuganskneftegaz ", are запасні oil in such крупнвіе the sums, for которвіе бвіли проданві these активні. Stolen and already добвітая oil on cost of these actives vlijatv cannot» [454].

Apparently, the court intentionally leaves in a sentence from an estimation of a question of assignment of the victim - Open Society "Yuganskneftegaz" at which Khodorkovsky and Lebedev have stolen oil, however in the substantive provision of a sentence [455] recognises for the civil claimant of Open Society "НК" of Rosneft »(to which it agree ch. 1 items 44 UPK

The Russian Federation harm should be caused directly a crime) the right to satisfaction of the civil suit and the question on the size of compensation of the claim as civil legal proceedings leaves, motivating it is necessity of manufacture of the additional calculations connected with the claim.

It is thought, motives of decision-making by court can be the most different including are not necessarily specified in a sentence (after all in the deliberation room there should be a secret), however to veil infringement of coordination of legal designs within the limits of the mechanism of criminally-legal regulation even in such conditions as it has been shown, it is impossible. Probably, therefore the court also has accepted "golden mean": the right of action to recognise - the claim not to satisfy.

In connection with told, actual there is also a question of the standing in court of the victim. At first sight, anything difficult in it is not present, but it until criminal proceeding is not complicated by a foreign element.

Example 1 when there is a necessity of interrogation of citizens (subject) foreign states as victims in connection with impossibility of their appearance to the inspector (investigator) or in session of the court of the Russian court.

The formulated problem very sharply costs in practice in view of constant perfection of digital technologies in spite of the fact that the modern criminal procedure law does not exclude by manufacture investigatory and legal proceedings use of systems of a video multiport conference at criminal proceeding.

So, to it testify ch. 6 items 35, ch. 4 items 240, ч.2 item 389, ч.8 item 38913, ч.2 item 399, ch. 2 items 40113 UPK the Russian Federation, and, for example, item 259 and ch. 4 items 189 UPK speak the Russian Federation about filming or interrogation videorecording.

Besides, according to revealed by the Constitutional court of the Russian Federation to sense, item 125, 37б UPK the Russian Federations oblige court to provide to the applicant of the complaint held in custody possibility by direct participation in court session or by use of systems of a video conferencing to familiarise with all materials of cases considered by court and to inform of court the pozi - tsiju if the decision made by court is connected with application to the applicant of measures, сопряженнвіх from it ugolovnvsh prosecution, restriction of its freedom and inviolability of person; in other cases to the person who is serving time in the form of imprisonment, it is provided vozmozhnostv to finish to court the position by the admission to participation in business of its lawyers and other representatives, and also pivshi in the statutory ways.

The given legal position бвіла is formulated by the Constitutional court in definition from May, 19th, 2009 №57б-0-П which has positive value [456], and has already partially found the reflexion in item 2781 UPK the Russian Federation.

At the same time, in the formulated problem contains simultaneously not - skolvko differently on правленнвіх the questions concerning as следственнвіх, and about - цессуалвнвіх actions of bodies of the criminal trial.

So, the remedial status of the victim arises in case of its recognition that decision of the investigator, the inspector or court (ch. 1 items 42 UPK the Russian Federation).

During pre-judicial manufacture the inspector (investigator) establishes the person to whom physical, property, moral harm or harm of business reputation, i.e. the victim is done, and, accepting the corresponding decision, acquaints it personally under a list, explains it the rights provided by item 42 UPK the Russian Federation. After that, makes interrogation of the victim in a place of manufacture of preliminary investigation. If the victim is out of a place of manufacture of preliminary investigation, the inspector (investigator) has the right to charge manufacture of these actions to the inspector or agency in charge of preliminary investigation on the location of the victim which are obliged to execute the commission in time not later than 10 days (ch. 1 items 152 UPK the Russian Federation, и.4 ч.2 item 38 UPK the Russian Federation).

As a rule, in the commission it is underlined, that is necessary to declare the decision of the inspector leading manufacture on business, a recognition of the corresponding person victim under a list of the last, to explain it the rights provided by item 42 UPK the Russian Federation and connected with the civil suit, and to interrogate it on the questions formulated in the commission.

The interrogation procedure is in details enough regulated in the criminal procedure law and a special explanation does not require - agency in charge of preliminary investigation or the inspector at first makes sure of the person of the victim, explains it the rights, the responsibility provided by item 307, 308 Criminal codes of the Russian Federation, and also the interrogation procedure (ch. 5 items 164 UPK the Russian Federation), also start manufacture of the given investigatory action. I.e. in the given situation, as well as in any another, essentially not how to prove the identity interrogated and who it carries out is there should be a special representative the law or the international treaty the subject on realisation of the given investigatory (remedial) action.

In practice actually, there are cases of acquaintance of the victim who is in territory of other administrative area or the subject of the Russian Federation, the decision about a recognition its victim by a direction its means, for example, a fax communication with reception back from the victim of a facsimile copy with a mark about its acquaintance provided that the given kind of communication allows to establish authentically, that the document proceeds from the victim (probably, by analogy to item 2 of item 434 of the Civil code of the Russian Federation). But, as a rule, it is applied in the relation poter singing-legal bodies, data on which location are published in the Uniform state register of legal bodies (item 5 of the Federal act from 08.08.2001 №129-ФЗ «About the state registration of legal bodies and individual businessmen» [457]).

The resulted does not contradict the operating criminal procedure law as unlike interrogation, the recognition of the person victim is action remedial, instead of investigatory, and does not come within the purview ch. 5 items 164 UPK the Russian Federation when presence of the special representative of the subject (the inspector or agency in charge of preliminary investigation), obliged to make sure of the person of the victim is necessary and to warn the last under a list about the criminal liability for a summer residence of false indications and for refusal of evidence (item 307, 308 Criminal codes of the Russian Federation).

Concerning interrogation of the victim-foreign subject (subject) or legal person UPK the Russian Federation from the general order does not establish any withdrawals, except for granting to it of additional guarantees, as for example, attraction to participation in interrogation of the translator.

In spite of the fact that interrogation possesses as well as any other investigatory action by property of compulsion, in practice cases when the person wishes to give evidences to the inspector leading manufacture on business are frequent, it can be as the victim, thirsting to expose guilty, and itself convicted - to give evidences in the protection, but for example, the victim has no financial or other real possibility to arrive (for example, from the Antarctic station the East) and to take part in criminal case. As to convicted, bodies of preliminary investigation can take advantage of remedial possibility under item Z ch. 1 item 208 UPK the Russian Federation, and court - to give convicted to state the position by use of systems of a video multiport conference.

In a case with sustained - similar variants UPK the Russian Federation does not provide. At the same time, the victim can possess technical possibility to give corresponding evidences and is high-grade to take part in the criminal has put through video multiport conference system.

As the criminal trial is carried out on the basis of competitiveness and equality of the parties and has the appointment, on the one hand, protection of the rights and legitimate interests of victims against crimes, and with another - protection of the person against illegal and unreasonable charge, condemnation, restriction of its rights and freedom both convicted, and the victim should have equal possibilities to access to justice including in evidence possibilities equal in the way and means.

In pravoprimenitelnoj the rule for a long time already admitted to practice (while it definitively was not issued in ch. 4 items 240 and item 278.1 UPK the Russian Federation [458]), establishing possibility of interrogation by means of a video-conferencing of the witness who is in court-house of one subject of the Russian Federation, the court leading manufacture on business and located in other subject of the Russian Federation. And the witness's testimonies received thus vessels admit admissible. In the given situation interrogation is considered made in a proceeding place; interrogation time - time on the location of the court making interrogation; the written certificate of the report of session of the court interrogated is not required according to item 259 UPK the Russian Federation, however, in some cases, interrogation filming (ч.5 item 259 UPK the Russian Federation) is applied. As to the written prevention of the witness of the criminal liability under item 307,308 UK the Russian Federation the given subscription is selected by court on the location of the witness.

As to a question on possibility of carrying out of interrogation in a mode of a video conferencing of victims being outside of the Russian Federation - citizens (subject) foreign states in connection with impossibility of their appearance to the inspector (investigator), and also in session of the court of the Russian court the optimal variant is the direction of the corresponding commission body of preliminary investigation or court to heads of diplomatic representatives and the consular establishments of the Russian Federation located in the country of a finding of the victim - the foreign subject (submitted), about manufacture of such investigatory action by a call of the victim in the specified establishment (item Z.ch. З.ст.40 UPK the Russian Federation). The specified power is carried to such consular functions, as transfer of judicial and extrajudicial documents or execution of court orders or commissions on removal of indications for vessels of the represented state according to operating international agreements or, in the absence of such agreements, in any other order which is not contradicting laws and rules of the state пребвівания (and. j item 5 of the Viennese convention about konsulvskih the intercourses from 24.04.1963 [459]; ch. 2 items 3 of the Viennese convention on the diplomatic intercourses from 18.04.1961г. [460]). And, for example, in the Minsk convention указвівается, that agreeing сторонні have the right on the instructions of the компетентнвіх of bodies doprashivatv the proprietor of citizens through diplomatic predstavitelvstva or konsulvskie establishment (ch. 2 items 12) [461].

In this case any of principles of action Russian criminally-protses a sou alv but go the law will not be broken, and also will be will observe all to process - алвнвіе guarantees of the rights and freedom of the persons who have sustained from a crime, and the admissibility requirement dokazatelvstv, in this case - indications of the victim, to a floor - chennvk such by. Such point of view also finds support in the criminal trial doctrine among experts [462].

At the same time, it is necessary ponimatv, that,

In-pervv_h, powers of agencies in charge of preliminary investigation on heads diplomatic prehundred - vitelvstv and konsulvskih establishments of the Russian Federation are assigned subsidiarno that is why in case of need applications of the state compulsion concerning participants of the criminal trial in territory of the foreign state, the inquiry direction about legal aid as it should be gl is necessary. 53 UPK the Russian Federation [463];

Secondly, UPK the Russian Federation does not exclude dalvnejshee high-grade participation of the victim by ispolvzovanija video multiport conference systems in session of the court, including in case of the announcement перервіва but provided that the victim will be prinimatv participation in criminal case, nahodjasv indoors dip - predstavitelvstva or konsulvskogo establishment. The question on such form of participation of the victim in session of the court should reshatvsja court.

Other example when it is necessary priznati sustained the foreign legal body and dopustiti its representative to participation in criminal case.

In such cases, when, for example, on ugolovnvsh to affairs about protection of copyrights sustained ввіступает the foreign legal body, by rules statvi 5 Bern conventions on protection литературнвіх and художественнвіх products from 09.09.1886 [464] and ch. 1 item of II World convention on the copyright [465] otnositelvno a right protection iskljuchitelvnyh copyrights of the foreign legal owner is applied Russian zakonodatelvstvo on protection intellek - tualvnoj properties.

However from this rule estv an exception, according to which «by granting in territory of the Russian Federation охранві to product according to international treaties of the Russian Federation the author of product or other pervo the initial legal owner is defined under the state law, in which territory the juridical fact which has formed the basis for acquisition of copyrights» took place (and. 3 items 1256 of the Civil code of the Russian Federation).

So, in the USA all volume of copyrights to the computer program created on the instructions of the employer, belong to the last, including not only an exclusive property right to use this product, but also all personal non-property rights (the Code of laws of the USA, section "Copyright", item 201-). The accessory of copyrights to the computer program proves to be true affidavit fulfilment - a summer residence of the written evidence of oath which makes sure the notary [466 [467].

* * *

The considered interbranch design of the mechanism of criminally-legal regulation faces the objective validity, non-uniform on the structure and many-sided under the maintenance. At times it is necessary the mechanism «rabo - tat» in the destructive environment, to counteract the formations which purpose is destruction of system of the branch legal designs which are a part of the is standard-logic formula. However if before acceptance UPK the Russian Federation 2001 (the reference point while it is conditional) the mechanism most advantageously with them consulted and "digested", for last quarter of the century there was a replacement of the legal designs which have developed within centuries by antidesigns - the antisystem formations, called to displace the mechanism of criminally-legal regulation. In modern poreformennyj the period in it it is not necessary to doubt - permanent sporadic change of the bases of the criminal liability and change of an order of the criminal trial leads to a target and valuable disorientation, that, interrupting generational communication pravoprimenenija, destroys the mechanism of criminally-legal regulation.

Uniqueness of present position consists that antisystem formations are presented as positive ideologem progress, automatically legitimirujushchih projects of radical changes of the material and remedial criminal legislation. Under the fair statement of separate experts, «such projects are created by competent people and aimed at the decision of the ripened problems. It is desirable, that they as a result of realisation did not create new, not less serious» [468 [469]. The last is especially important. As the mechanism of criminally-legal regulation of such problems does not create, these problems come from the outside, to a counterbalance to it. And they have already got the status of independent formation (we name its antisystem), which while only slides on the smooth case of the mechanism, slightly mentioning its deep layers. The antisystem exists by an iceberg principle: While its top actively "cutting" system of the criminal trial is visible only, its underwater part bears in itself a charge of huge destructive force. But it is already big problem as under its influence the main tendencies of social development imperceptibly change, base installations as zakonodate -

- 468

lja, the states expressed in the criminally-legal policy, and participants of the criminal trial. It is as a result forgotten, that seeming become outdated norms of material and remedial criminal law appear deeply connected with arhetipnymi personal motivations owing to what serve protection of the basic rights and freedom of the person and the citizen.

So, further it will be a question not of problems which are generated by the mechanism of criminally-legal regulation as a result of the functioning, and about what it faces - about antisystem.

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A source: Kozubenko Yuri Vyacheslavovich. Criminal procedure aspects of the interdisciplinary mechanism of criminal law regulation. DISSERTATION for the degree of Doctor of Law. Ekaterinburg - 2018. 2018

More on topic §3. The Corpus delicti and reflexion of system of its basic elements in the ultimate fact on criminal case:

  1. § 2 are defined. Facultative signs of the subjective party of the corpus delicti in the criminal legislation of the countries of the far abroad
  2. § 1. Facultative signs of the subjective party of the corpus delicti in the criminal legislation of the countries of the near abroad [292]
  3. CHAPTER 2. FACULTATIVE SIGNS of the SUBJECTIVE PARTY of the CORPUS DELICTI In the FOREIGN CRIMINAL LEGISLATION
  4. 1.2. Criminally-legal determinants of the ultimate fact.
  5. the ultimate fact on affairs about tax crimes.
  6. § 3. A place of a subject of a crime in the corpus delicti
  7. §2. The objective party of the corpus delicti
  8. 1.1. Concept of the subjective party of the corpus delicti
  9. § 2. The signs characterising the subjective party of the corpus delicti against an environment
  10. Maljarova Ekaterina Aleksandrovna. CONTEXTUAL CIRCUMSTANCES AS the CORPUS DELICTI ELEMENT ON the INTERNATIONAL CRIMINAL LAW. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -, 2017 2017
  11. the organisation as the subject of a policy within the limits of the corpus delicti against humanity
  12. § 2. Sign designing «an emotional condition» subjective party of the corpus delicti
  13. § 5. Kriminologichesky aspect of facultative signs of the subjective party of the corpus delicti [255]
  14. §4. The subjective party of the corpus delicti
  15. § 2. Filosofsko-logic aspect offacultative signs of the subjective party of the corpus delicti [96]
  16. § 2. The Ultimate fact in the constitutional litigation of the Russian Federation and the United States of America
  17. § 1. Evolution of signs of the subjective party of the corpus delicti in the Russian legislation [1]
  18. § 3. Reflexion of system of punishments under criminal law in typical sanctions and in sanctions of articles of the Special part of the Criminal code of the Russian Federation
  19. § 1. Classification of facultative signs of the subjective party of the corpus delicti [367]
  20. § 3. Psychological aspect of facultative signs of the subjective party of the corpus delicti [167]