CONSTITUTIONAL AND LEGAL ISSUES OF APPLICATION OF CLAUSE 1, PART 1, ARTICLE 39 OF THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION
Authors:
1.
MIREA – Rossiyskiy tehnologicheskiy universitet
(kafedra gosudarstvennogo i administrativnogo prava, docent)
Type:
Сonference article
Published:
25.06.2021
Subject area:
VAC 12.00.09 Уголовный процесс
UDK 34 Право. Юридические науки
GRNTI 10.15 Конституционное (государственное) право
OKSO 40.03.01 Юриспруденция
BBK 67 Право. Юридические науки
TBK 7531 Конституционное право
BISAC LAW018000 Constitutional
BISAC LAW027000 Criminal Procedure
UDK 34 Право. Юридические науки
GRNTI 10.15 Конституционное (государственное) право
OKSO 40.03.01 Юриспруденция
BBK 67 Право. Юридические науки
TBK 7531 Конституционное право
BISAC LAW018000 Constitutional
BISAC LAW027000 Criminal Procedure
Language:
Russian
Keywords:
constitutional provisions, jurisdiction, legal positions, judicial practice, subjective discretion, location of the body, place preliminary investigation, deprivation of rights, judicial protection, conditions of application
Abstract (English):
Accurate determination of the place of preliminary investigation indicates adherence to the principle of legality in criminal proceedings and the achievement of goals on the protection of rights and lawful interests of the affected parties, as well as on protection of individual from wrongful and unfounded accusations and restrictions of their rights and freedoms. Science addresses the general questions pertaining to determination of the place of preliminary investigation, but does not give due attention to realization of discretionary powers of the higher investigating authority to determination of the place of preliminary investigation. The article reveals the essential conditions for application of such power by the investigating authority, and analyzes case law for compliance with these conditions. The conclusion is made that legislation does not contain clear and specific rules for determination of the place of preliminary investigation, including the territorial jurisdiction of advocating for the election or extension of pre-trial detention. The author describes the flaws in legal regulation associated with the possibility of determination of jurisdiction of a case in administrative proceedings, by means of law enforcement decision prior to the emergence of legal situation (for example, before submission of a request for the election or extension of pre-trial detention) by lowering the rank of investigating authority, for example to district level. From the practical perspective, elimination of such flaws should facilitate the proper application of the corresponding legal norm, as well as accurate determination of the place of preliminary investigation.
Accurate determination of the place of preliminary investigation indicates adherence to the principle of legality in criminal proceedings and the achievement of goals on the protection of rights and lawful interests of the affected parties, as well as on protection of individual from wrongful and unfounded accusations and restrictions of their rights and freedoms. Science addresses the general questions pertaining to determination of the place of preliminary investigation, but does not give due attention to realization of discretionary powers of the higher investigating authority to determination of the place of preliminary investigation. The article reveals the essential conditions for application of such power by the investigating authority, and analyzes case law for compliance with these conditions. The conclusion is made that legislation does not contain clear and specific rules for determination of the place of preliminary investigation, including the territorial jurisdiction of advocating for the election or extension of pre-trial detention. The author describes the flaws in legal regulation associated with the possibility of determination of jurisdiction of a case in administrative proceedings, by means of law enforcement decision prior to the emergence of legal situation (for example, before submission of a request for the election or extension of pre-trial detention) by lowering the rank of investigating authority, for example to district level. From the practical perspective, elimination of such flaws should facilitate the proper application of the corresponding legal norm, as well as accurate determination of the place of preliminary investigation.
Keywords:
constitutional provisions, jurisdiction, legal positions, judicial practice, subjective discretion, location of the body, place preliminary investigation, deprivation of rights, judicial protection, conditions of application
constitutional provisions, jurisdiction, legal positions, judicial practice, subjective discretion, location of the body, place preliminary investigation, deprivation of rights, judicial protection, conditions of application
1. Konstituciya Rossiyskoy Federacii (prinyata vsenarodnym golosovaniem 12.12.1993 s izmeneniyami, odobrennymi v hode obscherossiyskogo golosovaniya 01.07.2020) // Oficial'nyy tekst Konstitucii RF s vnesennymi popravkami ot 14.03.2020 opublikovan na Oficial'nom internet-portale pravovoy informacii. URL: http://www.pravo.gov.ru (data obrascheniya: 04.07.2020).
2. Ugolovno-processual'nyy kodeks Rossiyskoy Federacii ot 18.12.2001 № 174-FZ (red. ot 24.03.2021) // Rossiyskaya gazeta. 22.12.2001. № 249.
