DOI: 10.25136/2409-7136.2024.1.69475

Abstract: The article considers such a basis for the cancellation or modification of the sentence by the court of appeal as the consideration of a criminal case without the participation of a defender (lawyer), when his participation is mandatory in accordance with the the Code of Criminal Procedure, or with another violation of the right of the accused to use the help of a defender. This issue is investigated by the author in the context of the fact that paragraph 4 of Part 2 of Article 389.17 of the Code of Criminal Procedure of the Russian Federation includes two independent grounds for revoking the decision. The main focus is on the category of "other violations". Based on the study of judicial practice, the author notes the variety of cases that are considered by higher authorities as violations of paragraph 4, part 2 of Article 389.17 of the Code of Criminal Procedure of the Russian Federation and entail the cancellation of the decision of the court of first instance. The article gives a critical assessment of the approach according to which the violation of the defendant's right to use the help of a defender can in certain cases be compensated by the court of appeal, therefore, the detection of such a violation should not always entail the return of the criminal case to a new trial in the court of first instance. It is noted that this approach is obviously incorrect, and this position is justified. When writing an article, the author uses such methods as analysis, synthesis, logical, comparative legal, formal legal. The author concludes that if the court of appeal, in violation of the defendant's right to use the help of a defender in the court of first instance, does not send the case to a new trial, but independently makes up for the violation, it thereby deprives the defendant of the opportunity to exercise proper protection in two judicial instances. The session of the court of appeal cannot fully replace the proceedings in the court of first instance, since the rules for examining evidence are established in the appellate instance, which differ from the rules of the court of first instance (in terms of the procedure for research). The author of the article considers the position of the courts to be correct, in which the courts recognize the violation of the defendant's right to use the help of a defender as an irreparable violation, which should entail the cancellation of the decision with the referral of the case to the court of first instance. The article presents the positions of process scientists on the problem under consideration.

DOI: 10.7256/2454-0706.2023.8.44084

Abstract: The article discusses such concepts as witness immunity and the prohibition of questioning a person as a witness. This issue is being investigated in the context of the fact that these are two independent concepts and the allocation of each of them has its own basis: persons with witness immunity are exempt from the obligation to testify due to the presence of kinship and family relations, and the prohibition of questioning a person as a witness is associated with the implementation of certain activities by this person. The main focus is on the prohibition of interrogation as a witness by a lawyer. Based on the study of judicial practice, including the legal positions of the Constitutional Court of the Russian Federation, the author notes a gradual transition from an absolute ban on questioning a lawyer to giving courts the opportunity to interrogate a lawyer as a witness without his consent and the consent of the client. The article gives a critical assessment of the approach to solving this issue, which has developed in practice, which changes the position of a lawyer in criminal proceedings: from the position of a representative, a defender to the position of an eyewitness to certain events. It is noted that this approach is obviously incorrect, and this position is justified. The author comes to the conclusion that lawyers are involved in criminal proceedings in order to combat procedural violations of the rights of their principals as lawyers (persons with the necessary professional knowledge and skills), and not in order to subsequently testify about the violations seen as a witness. It is unacceptable to constantly consider a lawyer as an eyewitness of illegal actions, and not as a defender of his clients from these illegal actions, otherwise lawyers will not be able to provide qualified legal assistance. The authors of the article consider the position of the courts to be correct, in which the courts recognize the interrogation of a lawyer as a witness as illegal with the recognition of the testimony received from the lawyer as inadmissible evidence.

DOI: 10.7256/2454-0706.2023.6.40913

Abstract: The author discusses the transformation of legal skills in the field of criminal justice in connection with the development and introduction of digital technologies. This issue is examined in the context of three groups of lawyer skills, such as communication skills, the possibility of using digital technologies in case analysis and position development, as well as the possibilities of document management in the context of digitalization and the use of digital technologies in the preparation of procedural documents. The subject of the research is both the skills themselves and the new opportunities that have appeared with the development of digitalization: remote communication capabilities, web forms for interviewing, chatbots, automated information search engines and artificial intelligence capabilities for case analysis, technical capabilities that help to find and present evidence in court, document designers, thanks to which one can create various forms of documents, submission of procedural documents to the court in the form of an electronic document. The article concludes that the introduction of digital technologies into the activities of both preliminary investigation and court bodies is becoming a natural stage in the development of the entire criminal proceedings and for the first time new digital opportunities are being considered in relation to the skills of a lawyer in criminal proceedings. In the article, in relation to each group of skills, those technical capabilities that can and should be used in practice are indicated, and, accordingly, those professional skills that a lawyer working in the field of criminal proceedings should possess. It is concluded that some of the considered digital technologies have already become firmly established in the practice of lawyers working in criminal cases, some are just being introduced and are being distributed.

DOI: 10.7256/2454-0706.2023.4.40531

Abstract: The article examines the right of the court not to summon a minor victim or witness to a court session for questioning and the possibility of announcing his testimony, which was previously given during the preliminary investigation, if technical means of recording his production were used during the interrogation with the help of video recording or filming. This problem is investigated in the context of the relationship between the immediacy of the trial, the right of the accused to defense, and above all the right of the accused to personally interrogate witnesses against him, as well as the need to protect minor victims and witnesses, providing them with additional guarantees. The subject of the study is not only the norms of the Criminal Procedure Code of the Russian Federation, but also international legal acts. The article for the first time examines the legal positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, which establish additional criteria for assessing the legality and validity of the disclosure of the testimony of minor victims and witnesses, including the conduct of a confrontation between these persons and the accused; the presence of legal representatives and a psychologist during the interrogation of minors; video recording of the interrogation at the preliminary investigation. The article formulates proposals for improving the norms of criminal procedure legislation, taking into account the balance of interests of the parties and the rights of minor participants in the process. In particular, it is proposed to conduct an interrogation of a minor in court in the absence of the defendant by his defender.