Legal Science and Law Enforcement Practice

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1 Factors of effective performance of the special legal regimes, Limanskaya A.P.
The effective performance of the special legal regimes is influenced by numerous factors. They include literacy of the structure of special regulation orders; appropriateness of the nature of the legal arrangements to the interests and tasks, which the special legal regime must implement; training of subjects, ensuring implementation of legal orders; the level of legal awareness and culture of the society and participants of the specific social relations, as well as the quality of law enforcement. Special attention is given to the last component. The author’s position is that the effectiveness of the special legal regime depends primarily on the quality of legislative mechanism: literate presentation of the text, accuracy and intelligibility of performance rules, absence of divergence and ambiguity of legal wordings, the level of specification of legal principles, etc. At the same time even the qualitative law may be ineffective if it is put into practice incorrectly. Using examples from law enforcement practice, the author describes how the law enforcer implements the provisions of the general legal regime in conditions provided for the special legal regime. Some examples from court practice are given when law can be wrested during its implementation and the legislative requirements are not met. Law enforcement practice being a key element for the effective performance of the special legal regimes can itself be an obstacle for their implementation. The author comes to the conclusion that the main causes of it are bureaucracy and corruption.
2 Organizational and legal mechanism of ensuring the constitutional rights and freedoms of man and citizen: problems and prospects of modernization in modern Russia, Kirichek E.V.
In the contemporary legal science the problem of organizational and legal mechanism of ensuring the constitutional rights and freedoms of man and citizen is perhaps one of the most complicated. Any sphere of state and society functioning is connected with the issue of rights and freedoms of man and citizen. For the Constitutional Law the category of «organizational and legal mechanism of ensuring the constitutional rights and freedoms of man and citizen» is one of the problems of greatest interest generating a lot of debatable issues. Despite the significant number of works devoted to these issues it is necessary to note the insufficient development of problems in this sphere. The reason lies in the continuing reforms in Russia and instability of the current legislation regulating these issues. These factors determine the topicality and practical importance of the research and the necessity of studying the peculiarities of the considered mechanism for the purpose of improving the efficiency of its functioning and indicate the need for scientific and practical recommendations. Using the system approach the author examines the peculiarities, ways and stages of development of the modernization of the mechanism which contribute to the prevention of its divergence. It is shown that modernization of this mechanism has its prospects in Russia. The author makes some conclusions concerning further development of this mechanism. It is determined that this mechanism has static and dynamic sides along with the substantive and procedural components. An important postulate of justice in the legal state is formulated.
3 Unity and differentiation in the regulation of the legal status of budget and state-owned institutions, Komissarova E.G.
The typology of institutions as non profit organizations «consuming» budget financing and participating in social and political life of the state is gaining strength. The state solves the problems of restructuring the budget sector of economy and develops a new concept of interaction with different types of institutions, including budget and state-owned ones. After adoption of new Federal Law the sphere of legal regulation of their legal personality has lost its uniformity. The issue of balance between the rules of different branches of law concerning budget and state-owned institutions became urgent. Analyzing the rules involved in the regulation of relations concerning these kinds of state (or municipal) institutions the author comes to the conclusions about inadmissibility of isolation of the budget law rules from the civil law rules which continue to be a priority for such institutions. The author distinguishes between budget and state-owned institutions according to the property independence features, objectives of the additional activities generating income, scope of responsibility for debts and obligations. Unlike budget institutions, the status of legal person for state-owned organizations performs official function, ensuring the participation of these subjects in property, tax, administrative, labour relations. Meanwhile, civil law should also regulate state-owned institutions activities. The rules of subsidiary liability of the founder act as the guarantor of responsibility for these institutions. However, their efficiency is doubtful because of strict procedure of sanctioning the payment of monetary obligations established by a financial authority for state-owned institutions, which excludes the possibility to penalize the institutions’ funds.
4 Regime of property rights for natural resources in the context of criminal responsibility for their misappropriation, Zabavko R.A.
A specific system of legal property relations for natural resources provided by their inter-branch legal control has developed in the RF. The RF Constitution provides all the citizens with equal access to natural resources herewith it not only guarantees safeguards of the citizens’ rights to favorable environment and information about its condition but it also guarantees the right to use natural resources. Rules of Civil and Ecological (land, water, forest) Law establish the order of these rights implementation upon which natural resources are put into economic turnover. As the result almost all natural resources can be in private property whereas in the context of environmental management there is a big difference among legal status of state, organizations, individuals. Recognizing natural resources as a subject of transaction the civil legislation provides their turnover in the treaty regime. Meanwhile the ecological legislation imposes extra restrictions on such transactions connected with compliance with the requirements of public law character that is public interest in the preservation of the favorable environment. As an object of protection Criminal Law of the RF first of all establishes ecological aspect (social relations on rational use of natural resources and the preservation of the favorable environment and biological diversity) whereas the criminal law protection of the ecological aspect is not applicable. The author of the article investigates regime of property right for natural resources, states their involvement in essential social processes. The author determines the necessity of the criminal law protection of property right for natural resources.
5 Victimological conditionality of violent crime, Yuzikhanova E.G.; Nifontov V.A.
Violence as a form of mental and (or) physical coercion extends beyond the criminal code application. Study of violence allowed to determine its main types, forms and levels. The most common type of violence is domestic violence which is characterized by both criminal and non-criminal acts. Analysis of quantitative and qualitative characteristics of violent crime indicates a serious threat to public safety. Insufficient attention from the law enforcement agencies and the public resulted in the formation of legal nihilism, consumer attitude of citizens towards the activities of internal affairs bodies. Most people don’t know how to improve the safety of their homes, life and health and prevent violent and acquisitive crimes. In this connection it is necessary to study the basic concepts of victimology: victimhood and victimization. Complexity of violence prevention is primarily connected with the ambiguous role of a victim in crime mechanism. In most cases of violent crimes the victim behaviour provoked these crimes. In spite of the proclaimed priorities of the protection of citizens’ life and health, the level of the Russian population victimization is much higher than the European one. In such circumstances of modern life as general stress, moral disorientation and financial problems violence rapidly became a commonplace thing. The author proves the importance of increasing the «victimological resistance» of citizens as a significant reserve, which can be competently used to ensure the successful prevention of violent crimes, as the level of public and personal safety should be determined by the level of violent crime.
6 Police reform, reform of the prosecutive authority in Russia – the way to eurointegration, Aleksandrov A.S.
The concept of the Russian law enforcement system’s reform developed by the Institute of law enforcement problems of the European University (St. Petersburg) and introduced to general public by A. Kudrin is discussed in the article. The author supports the main idea of the concept about turning federal criminal police into the main subject of criminal prosecution in cases of serious crimes, as well as the release of law enforcement bodies from non-core functions. Measures to reform the preliminary investigation process including the proposals of crime detection and investigative activities merger, deformalization of proving, elimination of bringing a criminal case stage, proposed by the authors of the concept are evaluated positively. The correctness of the conclusion about a prosecutor as a head of prosecutive authority in a legal state is confirmed. A prosecutor carries out the procedural leadership of the criminal police empowered by law to detect, solve and investigate crimes. The author of the article estimates and supports the proposal to simplify the management schemes in the Ministry of the Interior of the Russian Federation. Unrealistic proposals for the division of the police into three levels as well as for abolishment of the bodies dealing with economic security and countering corruption are estimated negatively. Provisions of the document are criticized according to the needs to exercise the functions of detecting and solving economic crimes by the police. The comments on organizing the functioning of the educational organizations of the Ministry of the Interior of the Russian Federation are made.
7 Subject competence of preliminary investigation bodies needs revision and additional regulation, Suprun S.V.
Subject competence of preliminary investigation bodies (according to Section 2 of Article 151 of the Criminal Procedure Code of the Russian Federation) tends to lose its independence due to merging with the alternative type of competence. The preliminary investigation body has the right to investigate the crime being a subject of its competence and simultaneously the other bodies of preliminary investigation’s competence. The powers of these bodies concerning the conducting of preliminary investigation of such crimes are based on the following rule: preliminary investigation body first revealing a crime brings the criminal case and conducts its investigation. There is a similar rule referring to alternative type of competence (according to Section 5 of Article 151 of the Criminal Procedure Code) which allows to delimit the types of competence. It is necessary to keep the independence of subject competence by removing repeating types of crimes from its competence into the alternative competence. In this case the alternative competence will include competence of preliminary investigation bodies of: 1) the Russian Federation; 2) Investigative Committee and Ministry of Internal Affairs of the Russian Federation; 3) Investigative Committee, Ministry of Internal Affairs and Federal Drug Control Service of the Russian Federation; 4) Investigative Committee and Federal Security Service of the Russian Federation; 5) Federal Security Service and Federal Drug Control Service of the Russian Federation; 6) Federal Security Service and Ministry of Internal Affairs of the Russian Federation; 7) Ministry of Internal Affairs and Federal Drug Control Service of the Russian Federation.
8 Dispute between investigator and prosecutor is unacceptable in court, Spirin A.V.
At the preliminary investigation stage a restraint can be used in order to prevent and stop any evasion investigation, further criminal activity, obstruction of criminal proceedings as well as to ensure execution of sentence to the accused (the suspect). The most stringent restraint provided by criminal procedure legislation is placement in detention which is used by judicial decision. When choosing this restraint, some problems can arise because of gaps in legislative regulation. It is necessary to pay attention to the fact that the prosecutor is suspended from investigator’s presenting an application about detention to the court. Participating in trial, the prosecutor must substantiate the investigator’s application though he doesn’t take part in its preparation and becomes familiar with the application shortly before trial. Experts and scientists propose different solutions to the problem. The range of solutions is wide. One of the proposals is to grant the prosecutor the authority to agree with the investigator upon the application about detention. Other proposals prove uselessness of the prosecutor’s participation in trial when considering the application about detention. Basing on the analysis of opinions and legal precedents, some proposals focusing on optimizing the procedures for placement in detention as a restraint are formulated. Amendments to article 108 of the Criminal Procedure Code of the RF are proposed. Substantiated by criminal case files they will form a unified position in prosecution during trial, when deciding on a restraint in the form of detention against the accused (the suspect).
9 Crimes in the insurance business as kind of insurance crimes: problems of detection and solution, Borovskikh R.N.
According to the subject of crime, crimes in the insurance sphere are classified into three groups: criminal encroachments of insurers, insured persons, beneficiaries, committed against the property interests of insurance companies; criminal encroachments of employees of insurance companies, insurance agents and other intermediaries in the insurance sphere, committed against both insurers and insurance companies; criminal encroachments of the chiefs and senior officials of insurance companies (these acts are called crimes in insurance business). Social danger of such crimes is determined by their high latency, highly organized nature of their commission, the scale of property damage caused to the clients of the insurance company, its employees and the state. One of the most serious crimes of this group is false insurance when under the cover (in a legal form) of insurancecontracts the insurance operations, the contents of which are tax evasion, legalization and export of capital abroad, cashing of funds and other crimes, are carried out. Difficulty in recognizing such crimes should be countered by means of criminalistic tools of their detection and suppression, including the use of sources of information on planned and committed crimes. These sources include statements of insurers, reports of insurance supervision bodies, the Federal Financial Monitoring Service and tax authorities, as well as the results of crime detection activities, reports of competitors and bodies of self-insurance, mass media reports. Law enforcement agencies should not start its work only when the crime is reported. It’s necessary to act from the positions of initiative, pragmatism, prevention.
10 Use of the results of operational-search activities as evidence in criminal investigations connected with money laundering or legalization of any other property obtained by crime, Pokhlebaev I.V.; Gorkina E.V.
The fight against money laundering is one of the priority directions of the anti-criminal policy worldwide. Having an international character, this phenomenon forms the financial base of crime, including transnational organized one. The author outlines the need to solve the problem of the use of intelligence as evidence in criminal cases. The examples of criminal investigations connected with money laundering or legalization of any other property obtained by crime are given. When investigating these crimes, the matter of primary importance is new sources of evidence often characterized as insufficient and difficult to assess. The author identifies the cardinal problems of the proving process in criminal cases of given type. The ways of getting information important for the investigation are considered. The causes due to which these sources cannot be used in criminal cases as direct procedure evidence are determined. The article describes the significant facilities in identifying money laundering by means of operational-search activities. The authors state that the facilities are not fully implemented. There are some gaps both in operational support of investigation and in criminal cases of operative accounting initiated by agencies of operational-search activities. The authors describe the main gaps in implementing the materials of operational-search activities against persons suspected of money laundering or legalization of any other property obtained by crime. The necessity of giving evidential significance to the information received from undercover sources is proposed. Some amendments to part 9 of Article 166 of the Criminal Procedure Code of the RF are proposed.
11 Security of suspect (accused) who concluded pre-trial cooperation agreement as a tactical operation, Pritkova E.V.
Problematic issues connected with ensuring the security of a suspect (accused) who concluded the pre-trial cooperation agreement are analyzed in the article. This activity is analyzed in the context of one of the criminalistic categories – tactical operation. Tactical operations are suggested to solve problems concerning establishment of facts having evidential significance in criminal cases of any category. There is an opinion that such tactical operations are able to solve other problems, for instance to overcome some existing and projected counteraction to a criminal investigation, to reach a compromise between the prosecution and defense. Considering the fact that one investigative action will not eliminate security threats to the mentioned participant in the criminal procedure, the conclusion about the need to review ensuring the security of the suspect is made. Basing on the existing doctrine of tactical operations, the structure of the considered tactical operation which comprises a purpose, a condition, resources, subjects and an object is distinguished. The tactical operation is defined as a system of investigative, procedural, operational and other activities. It also includes some tactical options used by the investigator and interacting individuals against the suspect. They are intended to achieve conditions when possibility to influence the suspect in order to harm his interests is excluded. In conclusion it isnoted that the clarification of the nature and the content of the considered tactical operation will help to highlight its stages and allow developing of some appropriate tactical recommendations for its implementation, depending on the current investigative situation.
12 Legal bases of the organization and production of forensic examination: status, gaps and development prospects, Muzhenskaya N.E.
The main regulatory legal acts forming the system of legal regulation of the organization and production of forensic examination are reviewed in the article. It is stated that in general production of forensic examination is sufficiently regulated by the current legislation. However, many existing methods of production are fixed in forensic examination guidelines and instructions of departmental and sector levels. Recommendations on objects research; criteria for evaluating objects research; rulesfor collecting samples for comparative studies etc. while producing auto-technical and certain types of biological, gemological, construction and technical, forensic examinations, as well as certain types of examination of materials, substances, goods and food are a subject to departmental regulation. At the same time methods of production of a significant number of forensic examinations, including criminalistics expert examination have not been settled by legislative, departmental or any other legal regulation. Rules of evidence evaluation suggest fixing methods of these studies at the interagency level, by means of issuing joint orders of the departments responsible for their production. Such methods must be scientifically justified and contain the following information: name of the objects of study, tasks to an expert in a particular type of forensic examination (study of a specific object), the procedure for study of a particular object of examination, an indication of methods that can be applied in a particular case, conditions of forensic examination production: order and quantity of samples for comparative examination, information about conclusions (definitive, probable).
13 Systematics of criminalistic registration at the present stage, Kurin A.A.
Criminalistic registration undergoes significant changes during the period of IT technologies development. Structural analysis of criminalstic registration system is conducted to solve the problem of optimizing the accounting and registration, crimes detection and investigation activities. It allows to reveal system’s advantages and drawbacks. The differences in structure and technical capabilities of law enforcement agencies require unification and typification of developing computer-aided information systems and criminalistic registration resources. The research results allow to assume that there should exist a common methodological base with logistics information systems. The functioning of entiresystem should be a subject to common developing principles. The model of functioning of dynamically changeable criminalistic registration system in terms of boundary conditions providing its operation with maximum results is proposed. Effectiveness is defined as maximum data capacity with minimum labor expenditures per information unit. The existing system’s functionality is largely reduced due to system’s boundedness and absence of external sources of integrated information. The system’s limited capacity is connected with narrowly defined functionality of information resources and absence of integrating database management system. The possibility of using the systems of interactive control of objects, which turnover is restricted by legislation, is considered. Its purpose is objects’ turnover control and search for lost objects. The author suggests informatization program which can be implemented at the level of information system of non-criminalistic purpose of the RF regions and act as information segment of criminalistic registration system. Some conclusions regarded as medium-term program of criminalistics registration system improvement and development are made.
14 The use of criminalistic computer modeling while planning the crime investigation, Kovalev S.A.; Smagorinskiy B.P.
The efficiency of using the typical programs during the crime investigation planning is significantly increased when putting the information contained therein into special computer databases, or using the incremental hypertext technology of access to information. The use of these programs with the appliance of computer technology makes special demands on the content and structure of such software products. The concept and types of crime investigation planning are studied from the position of investigator’s activity programming (algorithmization); some innovative ways of using the computer modeling method for planning the investigation of certain types of crimes are shown. The efficiency of using criminalistic recommendations on crime investigation planning to develop the computer-aided information system of crime investigation and to determine the form of its electronic digital implementation is analyzed. The operating software tools applied for the optimization of crime investigation planning are examined. The author studies the previously developed software products optimizing the investigator’s activity, including the process of crime investigation planning. These products contain only a few models (algorithms) of certain types of crimes investigation and are not multiversion computer-aided information systems which can model the crime investigation process according to the real situations. To eliminate above mentioned defects the author proposes to integrate innovative information technologies into forensic science, particularly computer modeling method, in order to improve the quality of investigator’s analytical activity and develop computer-aided crime investigation methods. These methods include two basic elements: computer-aided information systems of investigation and criminalistic computer models of certain types of crimes investigation.
15 Problems of the electoral system modernization at the elections of the state duma deputies: modern challenges and responses, Grudinin N.S.
The democratic political regime involves people’s participation in state administration in the form of the elections of the deputies of the State Duma of the Federal Assembly of the Russian Federation. Representative democracy is spread much wider in the political practice than direct democracy. The stability of electoral legislation and electoral system is a condition of the State Duma effective functioning. The proportional electoral system used in modern Russia implies voting for party lists rather than for candidates for deputies. It results in one party domination in the State Duma, depersonalized nature of party lists, weakened link between deputies and their electors, lowered quality of representation in the State Duma. It is necessary to modernize electoral system which must include both majoritarian and proportional components, remain stable and not undergo major changes before the next deputies’ elections. It is proposed to adopt an amendment to the Russian Federation Constitution to improve the efficiency of the activity of Federal Assembly’s lower house as a body of popular representation, to realize constitutional regulation on the Russian people sovereignty, to stabilize the Russian electoral legislation. This amendment should consolidate the grounds of electoral system at the State Duma deputies’ election. The pre-existing mixed model of electoral system considered as still actual implies one half of deputies to be elected according to majoritarian system, the other half - by proportional system. The modernization of electoral system at deputies’ elections is regarded as necessary condition for further development of Russia as a democratic constitutional state.
16 Legal foundations of the activities of commissions for minors and their rights protection:from collisions of subordinate legislation to the new federal law , Vinnichenko E.O.
The commissions for minors and their rights protection play the leading role among the bodies providing juvenile deliquency prevention activities in the RF. During the study of the legal regulation of such commissions’ activities some collisions were discovered. The provision «On the commissions for minors and their rights protection» approved by the decree of the Presidium of the Supreme Soviet of the RSFSR of June, 3, 1967, is currently obsolete but still acting. The resolution of the Government of the RF «On the approval of the model provision on the commissions for minors and their rights protection» of November, 16, 2013, N995 was enforced. The temporary act is aimed at elimination of legislative gaps in the legal regulation of commissions’ activities, it is a subject to the obsolete provision which is not invalidated yet. It does not regulate a number of significant issues concerning organization of the commissions’ activities. All these facts create some problems in law enforcement practice. The Federal Law «On the principles of the organization of the commissions for minors and their rights protection activities» could overcome present collisions, but its project has some faults relevant to the above mentioned provisions. It is necessary to revise the mechanism of commissions’ forming, to releasethem from the function to try juvenile delinquency cases and empower law enforcement agencies with it. Basing on the research results some suggestions on the improvement of legislative regulation of the activities of the commissions for minors and their rights protection are stated.
17 The use of house arrest as a restraint in the russian criminal proceeding, Koloskova S.V.; Fetischeva L.M.
House arrest is regarded as a tool of humanization of modern criminal policy and criminal proceeding. The problem of using house arrest as a restraint to some privileged participants of criminal proceeding is studied. Some controversial issues of the process of choosing and using house arrest as a restraint are analyzed. It is proposed to introduce the requirement for the obligatory agreement from other people living in the same housing with the accused to use this measure. The victim’s opinion should be taken into account when making the court’s decision on choosing this restraint. It is proposed to legalize the possibility of withdrawing the accused’s international passport as an additional measure of changing his (her) legal status. The problems of possible correction of house arrest regime after its choosing as a restraint are investigated. The distinction between the cases requiring the court’s decision to change the house arrest regime and cases of changing this regime without court’s decision is drawn. The law enforcement agencies’ response to violation of the restriction by the accused recorded by means of the technical control devices is analyzed. Some changes in legislation regarding choosing other restraint instead of house arrest are proposed. Some proposals of changing the restraint principles applying to the criminal process, notably simultaneous use of house arrest and bail applied to one accused, are made. The authors’ conclusions are supported by the examples from the law enforcement practice and data of public opinion polls (among the subjects of criminal proceeding).
18 Modernization, expansion and globalization of organized crime: criminological situation in the Czech Republic, Pojman P.
The issues of modernization, expansion and globalization of organized crime are studied taking into account the international experience, political and legal practices prevailing in the Czech Republic. Organized crime is considered as a threat to internal and external security and as a part of both politics and business. The author proves that organized crime is becoming closer to the official political institutions than to the criminality. Three political regimes of political power and organized crime coexistence are described, such as criminal-syndicalistic, mafia-controlled and cleptocracy-based. The foreign crime expansion is studied, its three varieties are proposed and described, notably expansion as the highest stage of crime modernization, forced expansion, expansion of criminals without criminal business expansion. Some reasons of the expansion of the organized crime from the CIS into the CzechRepublic are shown. The drawbacks of migration legislative control which creates an entry barrier for law-abiding citizens, but does not exclude the criminal leaders’ entry, are investigated. The necessity to establish coordinating agencies operating throughout the EUis proved. Some political incidents occurred during the extradition of foreign citizens suspected of crime affiliations are analyzed. The legislative institutions breeding corruption and creating conditions for criminal activity are considered by the example of commercial insurance and immigrants’ entry to the Czech Republic. The political actions leading to significant errors and allowing foreign organized criminal groups to join the Czech criminality are explored. Some conclusions regarding damaging the Czech Republic’s international reputation and disintegration tendencies generated by the criminality are madeKeywords: modernization, expansion, globalization of crime, organized crime, corruption, the Czech Republic, the European Union.
19 Directions of work with police staff on resistance to alcohol abuse, Shatilovich S.N.
The problem of alcoholism among law enforcement officers is inherent in the shared problem of the RF society alcoholization. It can be compared with epidemy. The author reviews social and legal resistance to alcohol abuse by police officers. Being a chronic illness, alcoholism reduces people to social degradation and untimely death. Alcoholism is unsuitable for police service. Service in police imposes extra obligations on police officers. It is necessary to lay foundation for remediation of the situation. Within educational work with police officers it is necessary to take preventive measures. Road traffic accidents caused by drunk police officers provoke widespread discontent in the society and a quick response of the mass media. The author states the defining role of educational work. The success of educational work mainly depends on the attitude of leadership. The author also recommends enhancing the role of police staff leaders for carrying out daily educational work. He offers some preventive measures. They are as follows: to increase staff competence in statutory regulation field, exclude token approach to adviser or guarantor’s role; provide effective teamwork of leadership, guarantors, advisers and curators of educational establishments, and inform non-permanent staff about state of discipline and law regularly. The last but not least, law police officers should enter social organizations promoting healthy lifestyle.