Abstract: In 2014 the Russian legal community celebrates the 150th anniversary from the day when the Charter of Criminal Judicial Proceedings of the Russian Empire was adopted. The provisions of the Charter changed the criminal process, and they were so radical and novel, that they are still the object of studies for the renown procedural scholars, including members of the Department of Criminal Procedural Law of the Kutafin Moscow State Law University. One of the first scientists, who has studied the Charter was M.A. Cheltsov. Later P.A. Lupinskaya also turned to the Charter in her work. Currently the scientist continue using the experience of the Charter of 1864. The studies of T.Y. Maksimova devoted to the stage of assigning the judicial hearings provide detailed analysis of the issue of the proceedings at this stage according to the Charter. The scientific works of S.A. Nasonov also provided a complex study of various aspects of jury trial according to the Charter of Criminal Judicial Proceedings of 1864, including specific features of judicial investigation, specific features of instructing speech to the jurors, and verdict of the jurors. The works of Nichiporenko (Vilkova) T.Y. included in depth studies of the issue of composition of the court in the proceedings on criminal cases, correlation of individual and collegiate elements in the court activities in the period after the reform. The associate professor of the Department of Criminal Procedural Law of the Kutafin Moscow State Law University A.I. Panicheva studied various aspects of introduction of the appeals for the courts of all levels into the criminal proceedings in Russia, including the experience of the Charter of Criminal Judicial Proceedings of 1864. It should also be noted that the Charter had a significant influence upon the development of the Russian law and the law of the foreign states. For example, A. M. Panokin noted the influence of the Charter of 1864 upon the Bulgarian legislation.

Keywords: the Charter of Criminal Judicial Proceedings, criminal process, criminal judicial proceedings, assigning a judicial hearing, jurors, composition of the court, evidence law, appeals, activities of prosecutors, Bulgarian law.

Abstract: The article concerns the activities of the justices of peace in Russia in 1864-1917. The author substantiates the position that proceedings of the justices of peace on criminal cases corresponded to the general principles of criminal judicial proceedings: directness, oral nature, and openness of judicial proceedings, freedom in evaluation of evidence. At the same time, there were specific features in criminal proceedings by justices of peace, due to the need for the fast resolution of cases “of little importance”, such as absence of distinction between pre-trial and trial investigation, broader competence of police on cases within the jurisdiction of justices of peace, fast “hearing examination” of a case, absence of obligatory representation of the institutional accuser, much independence of the parties, possibility for the sentence in absentia. The study is based upon the analysis of judicial charters of 1864 (The Charter of Criminal Judicial Proceedings, Establishment of Judicial Institutions, Charter on Punishments Assigned by Justices of Peace), the Law of July 12, 1889 on the reform of local peasants’ institutions and judicial department in the Empire and the relevant Rules of December 29, 1889, as well as the statistical data on justices of peace in the period after the reform. Based upon the said analysis the author shows genesis and evolution of the institution of justices of peace as a part of judicial system of pre-Revolution Russia, where their activities were based on the general principles of judicial proceedings and aimed at the guarantees of fast simplified and efficient proceedings on criminal cases which would closely correspond to the needs of the people.

Keywords: justice of peace, court of justices of peace, the Charter of Criminal Judicial Proceedings, Establishment of Judicial Institutions, judicial reform, principles, the Russian Empire, judicial competence, local court, the assembly of justices of peace.

Abstract: The article is devoted to the comparative legal analysis of the norms of the Charter of Criminal Judicial Proceedings of 1864 and the Criminal Procedural Code of the Russian Federation on the role of the chairperson in the formation of the inner conviction of the jury in a case and prevention of illegal influence on the jury. The article concerns the issue of formation of the inner conviction and what is “illegal influence” upon the jurors, because it is often one of the grounds for termination of the judgment of the court based upon the jury verdict by a higher court. The norms, which are aimed to limit illegal influence on jurors according to the Charter are divided into two aspects: organizational measures and the measures involving judicial hearings. The introductory claims of the parties, interrogation, oral arguments of the parties, instructing speech of a presiding judge are viewed from the standpoint of the formation of the inner conviction of the jurors in a comparative aspect between the Charter of Criminal Judicial Proceedings and the Criminal Procedural Code of the Russian Federation. The author uses the method of comparative legal analysis of the norms of the Charter of Criminal Judicial Proceedings of 1864 and the Criminal Procedural Code of the Russian Federation on the role of presiding judge in the formation of the inner conviction of jurors regarding their position on a case. The author makes a conclusion that the procedural mechanisms in the Charter of Criminal Judicial Proceedings of 1864 and the Criminal Procedural Code of the Russian Federation guaranteeing participation of the chairperson in the formation of the inner conviction of the jury in a case and prevention of illegal influence on the jury have both similar and dissimilar features, which is of much importance for the scientific development in the sphere of modern criminal process.

Keywords: introductory speech, inner conviction, illegal influence, trial by jury, chairperson, the Charter of Criminal Judicial Proceedings of 1864, evidence, interrogation, oral pleadings of the parties, instructing speech.

Abstract: In the 2nd half of the XIX century the legislatively provided judiciary model in Russia was of combined (mixed) character. It combined the elements of Anglo-American and Continental models of judiciary. In its lengthy development one may single out three stages: the model of proceedings for trial by jury under the Charter of Criminal Judicial Proceedings of 1864; the model of criminal proceedings under the Criminal Procedural Code of the RSFSR (ed. Law of 16.07.1993); model of criminal judicial proceedings under the Criminal Procedural Code of the Russian Federation of 2001. Analysis of the proceedings in the court trials by jury under the Charter of Criminal Judicial Proceedings of 1864 shows, that it includes elements of the Anglo-American system (the adversary system, institution of the instructing speech, etc.) and the elements of the Continental model (the system of posing several questions, division of the judicial investigation and oral arguments of the parties, etc.). The comparative analysis of the models of trial by jury according to the Charter of Criminal Judicial Proceedings of 1864, the Criminal Procedural Code of the RSFSR and the Criminal Procedural Code of the Russian Federation allows to draw two conclusions. Firstly, the models of trial by jury in the Criminal Procedural Code of the RSFSR and the Criminal Procedural Code of the Russian Federation provide for reception of the model of judicial proceedings of the Charter. The similar features include the structure of judicial hearing (quantity, contents and sequence of stages), system of posing the questions to the jurors, requirements to the contents of the instruction speech of the chairman, qualities of the verdict of the jurors, etc. The differences are due to the new contents of some modern principles of criminal judicial proceedings (for example, the requirement for single situation of possible disagreement of a presiding judge with the verdict of jurors. Secondly, the problems appearing at all the three stages of evolution of the trial by jury in Russia are also the same. The study of the experience of their solution allows to optimize the current legislative regulation and the practice of the proceedings in the Russian court in trial by jury and to define the vector for its further development.

Keywords: trial by jury, jurors, presiding judge, instruction speech, verdict of jurors, Charter of Criminal Judicial Proceedings, adversarial nature, judicial investigation, posing questions for jurors, criminal defendant.

Abstract: The article provides for the differences between the Anglo-American and Continental systems of posing questions to the jurors. The author studies the causes for the introduction of the stage of posing question to the board of jurors into the Russian criminal process and evaluates positive and negative features of inclusion of this stage of judicial proceedings. The author analyzes the grounds for posing questions to the jurors, the rights of the court and the parties, procedure and cases, when the conclusions of an accusation may be changed, as well as the consequences of the failure to comply with the existing procedure for the changes in the charge brought against a criminal defendant. The author provides the position of the pre-Revolution lawyers on how the judicial investigation and final arguments of the parties may change or amend the conclusions of an accusation. The author refers to the decisions of the Cassation Senate, which provided guidelines for the courts on how the discrepancy between some elements of a criminal act according to the accusation and the criminal law may be resolved. The author defines and discusses the requirements to the contents and formulations of the questions, which were posed to the board of jurors, noting the cases, when it was prohibited to combine several questions into one. Finally, at the end of the article the author analyzes the right of parties and jurors to petition on amendments and changes into the list of questions, as well as the competence of the court regarding such petitions.

Keywords: the Charter of Criminal Judicial Proceedings, jurors, the list of questions, grounds for posing questions, changes in the accusation, liability mitigation, liability aggravation, the order of posing questions, changes in the list of questions, the Cassation Senate.

Abstract: The article provides the study of the system of appeals to the judicial decisions, which appeared in the pre-Revolution Russia due to the judicial reform of 1860s. The author studies the grounds for the appeals review of the judicial decisions of justices of peace and district courts, prior to their entry into force (non-final decisions). The grounds for appeal are divided into procedural and material legal ones. Special attention is paid to the types of decisions of the court of appeals. The author provides comparative legal characteristics of the grounds for the appeals and the causes (bases) for termination of final decisions via cassation. The article uses decisions of the Criminal Cassation Department of the Governing Senate, scientific works of the pre-Revolution scholars and legal practitioners (I.Y. Foynitskiy, S.Y. Viktorskiy, V.K. Sluchevskiy, L.Y. Tauber). The author draws a conclusion on the results of the reform of judicial appeals of 1864 and the possibility of use of its experience in the current reforms of the Russian criminal judicial procedure.

Keywords: judicial reform, the Charter of Criminal Judicial Proceedings of 1864, appeals, challenging the decision of a court on a criminal case, grounds for appeal, procedural grounds, material legal grounds, review of a judicial case, grounds for cassation review, court of appeals.

Abstract: The article concerns the criminal procedural specificities of the development of the Russian legislation regarding juveniles violating criminal prohibitions. The author regards this issue starting with the Charter of Criminal Judicial Proceedings of 1864 to the Criminal Procedural Code of the Russian Federation. The author substantiates the following periods in the legislation regarding the juveniles, which are due to the leading attitude to children in a state (punitive or protective). The author pays special attention to the Law of July 2, 1897, and its value for the formation of the Juvenile Courts. The pre-Revolution period is from 1864 to 1917, the Soviet period (first one lasting from 1918 to 1935, second one lasting from 1935 to 1957, the third one lasting from 1958 to 1991) and the current period (from 1991 to current time). The author makes a conclusion that the Criminal Procedural Code of the Russian Federation did not totally overcome a punitive tendency, while there are prerequisites for the implementation of a humanistic, restorative approach to a child, creation of friendly justice, based on respect to the rights of child and due regard to age of a child, his maturity and understanding of the circumstances of the case.

Keywords: legislative periods, procedural guarantees to children, differentiation of a procedural form, court, criminal judicial procedure, legislative genesis, juveniles, juvenile justice, friendly justice, international standards.

Abstract: The object of studies in this article includes theoretical sources, reflecting the nature of interpretation of criminal procedural norms, specifying the procedure and results of interpretation, as well as the legislative acts regulating criminal procedural relations, causing complications in legal practice, ambiguous and unclear situations requiring interpretation. Currently in spite of detailed regulation of criminal law relations, the Criminal Procedural Code of the Russian Federation is not a fully comprehensive act, which could be characterized by logical completeness covering all of the spheres of activities in criminal law proceedings. The Criminal Procedural Code of the Russian Federation includes both internal and inter-systemic contradictions and gaps, which are being dealt with by various means, forms and methods. Interpretation of criminal procedural law in order to clarify its contents and establishing the will of the legislator plays a primary role among such means. In the process of studies the author used general scientific dialectic provisions on general, particular and specific elements, as well as methods of cognition, such as analysis and synthesis, formal logical and historical legal method. The scientific novelty of the article is due to uncovering an important problem in the sphere of criminal judicial proceedings and use of novel approaches to its resolution. The experience of the pre-Revolution procedural law scholars was successfully used in the drafting of the Charter of Criminal Judicial Proceedings of 1864, the Criminal Procedural Code of the RSFSR of 1922, 1923 and 1960, as well as the Criminal Procedural Code of the Russian Federation keeps serving Russia in the matter of improvement of criminal procedural legislation, and its interpretation may only be successful, when it corresponds to its purpose.

Keywords: interpretation problem, normative legal acts, historical periods, the Charter of Criminal Judicial Proceedings, the law-enforcement activity, inter-systemic contradictions, gaps, regulation of legal relations, criminal procedural legislation, judicial interpretation.

Abstract: In the article based upon the analysis of the norms of the Charter of Criminal Judicial Proceedings of 1864 and the current criminal procedural legislation of Russia the author studies the issues of legal regulation of correlation of competences of the parties, balance of legal guarantees of their procedural interests in implementation of the criminal procedural activities. It is stated that on one hand the adversarial element forms the possibility for the main participants of the process (the parties) to actively influence the process and results of criminal procedural activities, but on the other hand it forms the conflict of interests of these participants from the standpoint of their procedural guarantees. From this standpoint the author views the lately adopted provisions and legal positions of the Constitutional Court of the Russian Federation regarding the improvement of legal regulation of the return of the criminal cases to the prosecutor for additional investigation. The author uses dialectic legal method with the use of analytic, historical and comparative legal methods of studies. The author provides statistical data, interview data and the information sources. The article demonstrates a novel approach towards characteristics of the conflicts of legislative regulation of competences of parties in the criminal proceedings, and the legal guarantees of balance of their procedural interests. The author makes a conclusion that de facto the institution of additional investigation on criminal cases was returned to the Criminal Procedural Code of the Russian Federation, and this type of activity can hardly be called special procedure of criminal proceedings, which is supposed not to be identical to its return for additional investigation (Decision of the Constitutional Court of the Russian Federation of July 2, 2013). It is stated that the search for the balance in the guarantees of procedural interests of the parties should not be implemented via taking turns in non-proportionate changes in the procedural capabilities of the participants of criminal judicial proceedings and the order for their use, causing limitation of rights and lawful interests of these legal subjects, while in many cases mistakes and violations of law by the preliminary investigation bodies (including those due to the lack of professional training of its staff) lay at the root of many conflict situations. It is recommended to abolish or minimize the primary factors for such conflicts, and then regulate the mechanism for the interaction between the parties and the court in the process of criminal procedural activities. The article concerns some topical issues regarding the stage of initiation of a criminal case.

Keywords: the Charter of Criminal Judicial Proceedings, adversarial and conflict nature, regulation of competence, conflict of interests of the parties, initiation of a criminal case, institution of additional investigation, balance of procedural interests, causes of conflicts of interests, ways to avoid conflicts, professional training of an investigator.

Abstract: Due to the introduction into the State Duma of the draft Federal Law “On amendments to the Criminal Procedural Code of the Russian Federation due to introduction of the institution of establishing the objective truth in a criminal case” and the statement in its explanatory note that the requirement on finding objective truth in a criminal process is traditional for Russia and provided for by the Charter of Criminal Judicial Proceedings of 1864, the author provides analysis of the text of the Charter of Criminal Judicial Proceedings, explanatory note and commentary to it, as well as scientific works of the renowned lawyers of the time in order to find out the attitude of the drafters of the Charter towards establishment of objective truth, adversarial character and active role of court in the process. In the process of writing the article the author employed the standard methods for the legal studies: analytic, historical legal and comparative legal methods. Based upon the studies of the above-mentioned sources the author makes a conclusion that at that time a number of leading lawyers supported the position, according to which legal cognition is probabilistic, and there was a concept of criminal judicial authenticity. The Charter of Criminal Judicial Proceedings referred to the need to achieve material truth as opposed to the pre-existing principle of achieving a formal truth, that is the need to prove guilt of a criminal defendant at any cost. The drafters of the Charters required that judges provide scrupulous analysis of evidence presented by the parties in adversarial process in accordance with their inner conviction. At the same time, there was a negative attitude towards overly active role of the presiding judge in the Criminal Procedural Code of France.

Keywords: the Charter of Criminal Judicial Proceedings, objective truth, adversarial process, equal rights of parties, presumption of innocence, criminal process, formal evaluation of evidence, inner conviction of a judge, active role of a court, judicial investigator.

Abstract: The article concerns the problems of return of the institution of additional investigation into the current Criminal Procedural Code of the Russian Federation. The published articles of the authors speaking against the institution of return of cases by the court for the additional investigation provide only the arguments against preservation of this institution. This article offers a more objective analysis of positive and negative features of this institution. The author provides detailed analysis of the positions of such authors, as B.Y. Gavrilov, V.A. Lazarev, etc., providing counter-arguments in support of the need to provide for the institution of return of cases by the court for the additional investigation in the criminal procedural legislation. The author expresses some ideas after studying the existing grounds for return of cases by the court for the additional investigation, offering to formulate other grounds, allowing for the correction of mistakes and violations by the investigative bodies within the reasonable period of time. The comparative analysis of the Charter of Criminal Judicial Proceedings of 1864 and the current criminal procedural legislation involves the methods of historic analysis and comparative legal studies. The article formulates additional arguments in favor for the return of the institution of the additional investigation into the Criminal Procedural Code of the Russian Federation. Based upon the analysis of the arguments of the authors calling for the abolition of this institution in the Russian procedural law, the author provides theoretical and logical arguments proving the possibility and need for reanimation of this institution in the Russian criminal procedural law. These conclusions are supported by the statistics on return of criminal cases by the courts, when in the course of additional investigation the violations were eliminated and the rights and interests of participants of the process were restores, so the case was resolved by a court within the reasonable period of time. The conclusion is that there is need for an in depth study of this institution and clarification of the grounds for the of return of cases by the court for the additional investigation in the Russian criminal process.

Keywords: criminal process, institution of return of cases, grounds for the return of cases, arguments against, reasonable period, rights and freedoms, arguments in favor, comparative analysis, formulation of the grounds, causes of return.

Abstract: The article concerns the functions of the prosecutor in the criminal process as an important and necessary element of the guarantees of human rights. These functions are defined as an obligation of a prosecutor official to perform certain types of procedural activities reflecting the public law purpose of the prosecution in the sphere of guarantees of lawfulness in investigation of crimes and criminal judicial proceedings in court. The author provides comparative legal analysis of the competence of a prosecutor in current Russian legislation and the Charter of Criminal Judicial Proceedings of 1864, Establishment of Judicial Institutions of the Russian Empire. The author analyzes the results of the Judicial Reform of 1864, which provided for the formation of the Russian school of public prosecutors. The methodology of the comparative historical legal studies was formed by the dialectic method and the general and special cognition methods, which were based upon it. The scientific novelty of the article is due to the original view of the author of the existing problems in the sphere of guarantees of lawfulness in the Russian criminal judicial proceedings and role of prosecutor in such guarantees. He provides an analysis substantiated with the studies of criminal procedural legislation of the Russian Empire and the modern Russia, stating that there is need to use the existing positive experience in the sphere of prosecutor activities, he also provides additional arguments regarding mistaken character of the novelties in the Federal Law of June 5, 2007 N. 87-FZ “On Amendments into the Criminal Procedural Code of the Russian Federation” and the Federal Law “On the Prosecution of the Russian Federation” which considerably abridged the competence of the prosecutor.

Keywords: competence of a prosecutor, criminal process, Establishment of Judicial Institutions of the Russian Empire, the Charter of Criminal Judicial Proceedings of 1864, Judicial Reform, criminal prosecution, public prosecutor, the Criminal Procedural Code, Prosecutor-General, preliminary investigation body.

Abstract: The object of studies concerns the modern condition of the system of principles of criminal judicial proceedings and the directions for its improvement, which are due to the changes in the social and political life of the state, as reflected by the criminal procedural law. The correction of this system as a whole and certain principles of criminal judicial proceedings in particular requires a balanced approach, which is base upon substantial theoretical studies. It is doubtful that the provisions lacking conceptual character for the criminal judicial proceedings should be included into the list of principles. The basic constitutional principle of judicial proceedings – the presumption of innocence should apply to any person, whose innocence is being challenged, rather than only to an accused and a suspect. The methodological basis for the study was formed by the materialistic methods of scientific cognitions of objective reality (deduction, induction, analysis, synthesis, logical, historical legal method, comparative legal method, structural functional method, etc.). The scientific novelty is due to the theoretical evaluation of the process of correction of legal regulation of the principles of criminal judicial proceedings, development of the propositions for the improvement of the system of principles and some specific principles. Due to the lack of clarity in the legal definition of the term “suspect” in criminal judicial proceedings, the authors offer to apply the presumption of innocence to any person, whose innocence is being challenged, rather than only to an accused and a suspect.

Keywords: principles of judicial proceedings, reasonable period of time, independency of judges, presumption of innocence, accused, suspect, the Charter of Criminal Judicial Proceedings of 1864, criminal procedural law, participants of an examination, reduced inquiry.

Abstract: The object of studies concerns the contents of the constitutional principle of criminal judicial proceedings. The order of criminal judicial proceedings have been and is defined only by the law: by the Charter of Criminal Judicial Proceedings in the pre-Revolution Russia and by the Criminal Procedural Code of the Russian Federation, which is based upon the Constitution of the Russian Federation in the modern Russia. The necessary prerequisite for the correct application of the norms of criminal procedural law is their correct interpretation, that is why the article concerns the methods of interpretation of criminal procedural law in the theory of law of the pre-Revolution Russia and modern Russia. The article includes comparative legal study of the contents of the principle of lawfulness of criminal proceedings in the Criminal Procedural Codes of the Russian Federation and Ukraine, the Republic of Belarus and the Republic of Kazakhstan. The methodological basis for the studies is formed with the dialectic cognition method, as well as special legal methods, methods of historical, comparative, legal logical, and logical structural analysis. For the first time in this article the contents of the principles of lawfulness of the Russian criminal judicial proceedings are studied in relation with the contents of lawfulness according to the Charter of Criminal Judicial Proceedings, the Criminal Procedural Codes of the Russian Federation and Ukraine, the Republic of Belarus and the Republic of Kazakhstan. The author substantiates the need to introduce into the Criminal Procedural Code of the Russian Federation the independent principles of comprehensive character, fullness and objective character of examination of all of the circumstances of a criminal case, as well as the justice in proceedings and resolution on a criminal case.

Keywords: the Constitution of the Russian Federation, application of the norms of law, interpretation of law, the Charter of Criminal Judicial Proceedings, lawfulness, the Criminal Procedural Code of the Russian Federation, the procedure of criminal judicial proceedings, justice, analogy of law, principles of criminal judicial proceedings.

Abstract: The study concerns historical, social, and political grounds, which served as prerequisites for the need for judicial, legal and criminal procedural reforms in Russia in the middle of XIX century and the end of XX century within the complex of other social changes, and their substantiation in the scientific sources. The author studies the procedure for the implementation of judicial reforms, their main stages, normative sources (Judicial Charters of 1864 and the Criminal Procedural Code of the Russian Federation, organic criminal procedural law), their characteristics in the scientific sources and judicial practice, and their main results, analyzes counter-reforms and their implementation in criminal procedural legislation and their characteristics in scientific sources and judicial practice. The author applies dialectic, comparative legal, historical, formal dogmatic methods of scientific analysis, general scientific methods of analysis and synthesis, the author also uses the modern achievements of the science of the criminal procedural law. The author singles out and characterizes the general social backgrounds, content-related, social and psychological causes, goals and directions of the reforms of 1864 and 1990s, legal technology of these reforms, specific features of development of the reform provisions in the criminal process, causes and effects of their gradual rejection by the legal practice, causing the counter-reform. The author substantiates the unique similarities of these moments in spite of the obvious differences in the historical stages in the development of Russian statehood, justice and criminal judicial procedure. The author supports recognition of the greater efficiency and incomparable structural logic of the Judicial Charters of 1864 in comparison with the criminal procedural law of the modern Russia. The author makes conclusions on the identity of the fate of judicial reforms in Russia, which is failure to implement their social potential, which may serve as grounds for the development of the concept of the new judicial legal reform.

Keywords: criminal judicial proceedings, criminal procedural legislation, judicial legal reform, the Judicial Charters, separation of procedural functions, independence of court, judicial investigator, judicial counterreform, additional investigation, objective truth.

Abstract: 150 years have passed since the time when the Charter of Criminal Judicial Proceedings of 1864 was adopted and entered into force. Gradual planned spread of the norms of new legislative acts throughout the territory of Russia and their partial application in the territory of the pre-Revolution Tajikistan became one of the historic judicial legal reforms, which shall forever remain in history. The stage-by-stage application of the Judicial Charters, formation of the Turkestan general-governorate in the territory of Tajikistan became one of the main influences defining the further destiny of the Tajik people. The mixed criminal procedural law did not correspond to the political regime, judicial system and judicial procedure in general, but with much effort it found its way through. A number of reasons, including application of Muslim law and its correlation with the legislation of the Russian Empire, contradictions, appearance and formation of the new models for resolution of a number of procedural conflicts became a specific features of the development of the legal system of Tajikistan in the analyzed sphere. The criminal procedural legislation of Tajikistan, which formed and was enriched by various sources through different historic periods, still reflects the nature and shows an inalienable connection with some provisions of the Judicial Charters, which have laid the basis for the current criminal procedural legislation of Tajikistan. The comparative legal analysis allows to fill the gaps in the scientific studies.

Keywords: Judicial Charters, the Turkestan general-governorate, pre-Revolution Tajikistan, the Middle East, the Muslim law, the legislation of the Russian Empire, judicial system, mixed model, criminal procedural law, criminal judicial proceedings.

Abstract: The object of studies concerns regulation of procedural periods and their calculation according to the Charter of Criminal Judicial Proceedings of 1864. The article provides a brief description of the history of drafting of the Charter of Criminal Judicial Proceedings of 1864, the length of drafting, difficulties in its formation, naming the drafters of the Charter. The author provides a detailed analysis of the technique for the regulation of procedural periods at the stage of preliminary investigation and in court trial from the standpoint of establishing the terms for the state bodies and officials implementing judicial proceedings, and the procedural periods for the parties. The author uses analysis of the norms of the Charter of Criminal Judicial Proceedings of 1864 regulating the procedural periods for procedural acts and decisions, and he provides conclusions based upon descriptions and generalization of these norms. He makes a conclusion that regulation of procedural terms in the Charter of Criminal Judicial Proceedings of 1864 was aimed to speed up criminal judicial proceedings, so for decision making and acts of state bodies and officials there were terms like “immediately”, “in a timely fashion”, “without delay”, and if a certain period of time was established, it could not be lengthened. The periods for the parties were regulated differently. Usually, when the party missed the limitation periods due to reasonable excuse, the limitation period was reinstated, and an appeal could be filed on a refusal to reinstate such a period.

Keywords: procedural periods, procedural acts, criminal judicial proceedings, regulation, officials, parties, stage of preliminary investigation, justice of peace, judicial provisions.

Abstract: The termination of the formal theory of evidence and provision for the principle of freedom of the inner conviction of a judge was among the outstanding reforms in Russia in 1864. However, the quantity criterion typical of the system of legal evidence was not fully abolished from the new system of evidence. The pre-Revolution lawyers recognized the presence of “dominating evidence” in the criminal process. The issue of dominating evidence remains the manifestation of an artificial theory of evidence and it is related to the definition of sufficient and necessary limitations of proof. The issue of sufficient limitations of proof is not resolved unequivocally. The author uses comparative historical method of studies, works of the Russian scientists on the issues of the reform of criminal judicial proceedings of the 1860s. The criminal legal cognition has its limitations. Its retrospective character and its purpose to uncover the truth of the existing information on the facts presuppose the limitations for the cognitive process. If these limitations to the examination of a crime are expressed in the procedural form established by the law, they are usually called limitations of proof. The limitation of proof is quantity of evidence necessary to be deemed sufficient. The author attempts to define necessary and substantiated quantity of evidence, allowing the subjects of proof to substantiate their positions in a case.

Keywords: limitations of proof, necessary evidence, necessary limitations, sufficient limitations, sufficiency, dominating evidence, sources of evidence, information approach, the Charter of Criminal Judicial Proceedings, the process of proof.

Abstract: The article concerns the key problems of implementation of judicial control and prosecutor supervision at the pre-trial stages of criminal process within the framework of comparison between the modern model and the model of activities of court and prosecutor according to the Charter of Criminal Judicial Proceedings of 1864. The author analyzes the roles of court, prosecutor and investigator in taking an accused into custody, presenting him with the accusation and formation of the written accusation, then transferring an accused to a court. The author pays special attention to the figures of judicial investigator and prosecutor and their interactions with the court. By holding historical studies, the author gained conclusions on the model of activities of judicial investigator, prosecutor and court in the Russian Federation. Having generalized the positive historical experience and the modern situation in the Russian criminal process, the author analyzes the possible options for overcoming the existing problems in criminal judicial proceedings in order to improve its efficiency. Finally, the author substantiates the need to introduce the position of an investigating judge into the Russian criminal process in order to guarantee judicial control at the pre-trial stages. Additionally, the author considers that it is a prosecutor who should form written accusation, act and resolution at the end of the preliminary investigation and to present them to the investigation judge when an accused is committed to trial.

Keywords: criminal process, judicial control, prosecutor supervision, investigating judge, committing to trial, accusation, judicial investigator, the Charter of Criminal Judicial Proceedings of 1864, prosecutor, taking into custody.

Abstract: The article provides analysis of some provisions of the draft Criminal Procedural Code of the Republic of Kazakhstan, which concern the forming institution of an investigating judge at the pre-trial stage of proceedings. The experience of the European states and the CIS states used in the process of drafting shows the importance of widening the scope of the judicial controlling competence at the stage of investigation of a criminal case in order to guarantee judicial protection of rights and freedoms of persons involved in a criminal process. The draft of the new Criminal Procedural Code of the Republic of Kazakhstan is being discussed at the Parliament of Kazakhstan, and it has been approved in the first reading. It is planned that the new Code should enter into force on July 1, 2014. The article uses historical legal and comparative legal methods based upon the studies of positive experience of the foreign states of Roman-German legal system. The institution of an investigating judge has a long history and it has been efficiently functioning in a number of civilized states. Introduction of this position is novel for the Republic of Kazakhstan, that is why, the author discusses some specific features of activities of an investigating judge and also provides opinions of lawyers regarding the draft law. The author makes proposals on the improvement of the legal status and immediate broadening of a competence of an investigating judge.

Keywords: draft Criminal Procedural Code of the Republic of Kazakhstan, investigating judge, court, judicial control, sanction, criminal judicial proceedings, criminal procedural reform, secret investigative activities, competence, prosecutor.

Abstract: The article analyzes the system of investigative activities according to the Charter of Criminal Judicial Proceedings of 1864, reflecting the typical procedures of preliminary investigation in a criminal case of that time. It is pointed out that examination and certification were regarded as two types of the same activity (one simple, one complicated), while it was possible to implement them separately, while the procedures of search and seizure also showed dual understanding of their nature: as a single investigative activity, and as two independent activities. There were provisions for two types of interrogation: of an accused and of a witness, and the face-to-face interrogation was only possible with two witnesses, who previously interrogated separately. In addition to the types of investigative activities the Charter mentioned the groups, having their own titles: primary, secondary, immediate. Based upon the studies of the system of investigative activities according to the Charter of Criminal Judicial Proceedings the author used the methods of analysis, synthesis, as well as historical, logical and comparative methods. The article substantiates that solution of the modern problems in the sphere of regulation of investigative activities is possible with the use of progressive achievements of science and fundamental developments of the merited pre-Revolution scholars specializing in procedural law. It is noted that according to the Charter of Criminal Judicial Proceedings of 1864 in the course of preliminary investigation the following investigative activities took place: examination, certification, search, seizure, interrogation of an accused, a witness, some rules may still be relevant nowadays. It is noted that the term “expertise” is absent in the text of the Charter, since this type of activity was regarded as a type of examination or certification. The author offers to regard judicial expertise as an investigative activity, as opposed to the positions of some authors providing that expertise is a procedural activity, rather than an investigative one.

Keywords: the Charter, investigative, examination, certification, interrogation, search, seizure, expertise, evidence, secondary.

Abstract: The object of studies concerns the works of renowned Russian, Soviet and post-Soviet procedural law scholars on the issues of the guarantees of lawful interests and rights of a victim in a criminal judicial proceedings. The author notes the need to implement guarantees in several directions: regarding lawful interests and rights of a citizen and rights of a participant of a criminal judicial proceedings. Limitations of rights in criminal judicial proceedings may be both lawful and unlawful. At the same time, the limitations of the rights of a participant of the criminal judicial proceedings may be solely illegal. The study is based upon the methods of analysis, synthesis, generalization, as well as historical, formal legal, logical and comparative method. It is stressed in the article that incorrect scientific attitude towards normative regulation in part of guarantees of proprietary rights of a victim in the Russian pre-Revolution criminal judicial proceedings has its influence on the current attitude towards this procedural institution. The guarantees of rights of a victim, including the right of proprietary claims, requires more detailed studies of historical heritage, which should be carefully preserved as the basis for the system of legal guarantees in criminal judicial proceedings in the Russian Federation.

Keywords: Charter, criminal, judicial proceedings, lawfulness, victim, rights, interests, limitations, citizen, participant.

Abstract: The article reflects the position of the author towards the norms of criminal procedural law based upon the example of the right to defense in the criminal process, which is the foremost important principle of criminal process. The legal basis for the analysis of the legislation in this article is formed by the legislation of the Republic of Belarus (it should be noted that a significant part of the territory of the modern Republic of Belarus was a constituent part of the Russian empire, and currently the legislation is being unified based upon the Union State of Russia and Belarus). The author draws historical and legal parallels between the criminal procedural form typical for the Charter of Criminal Judicial Proceedings of 1864 and the modern legislation. The author attempts to study the norms regulating the guarantees of the right to defense from the standpoint of in-depth structural analysis of criminal procedural norm as a social regulator, its inner structure, moral components and the interrelation between norm-making and legal practice, rather than just construction of the new forms. The methodology is based upon the systemic and structural-functional approaches based upon the modern attitude towards dialectic scientific cognition of objective reality. The author used general scientific methods of cognition, such as induction and deduction, abstraction and modeling, The author offers his interpretation of the verdict of the jury in the case of Vera Zasulich, this case being a vivid example of interaction between a novel form of justice (trial by jury) and the institution of jurors (novel features of the Charter of Criminal Judicial Proceedings of 1864), having formed a dramatically different format for the guarantees of protection of rights of persons brought to criminal responsibility outside the scope of exclusively formal approach. The author substantiates the conclusion on the impossibility of real guarantees of right to defense in the criminal process via improvement of legal technique alone.

Keywords: right to defense, advocacy, trial by jury, jurors, norms of law, criminal procedural form, the Charter of Criminal Judicial Proceedings, principles of judicial process, moral fundamentals, criminal process.

Abstract: The article is devoted to the legislative regulation of the procedural status of a witness, the cases when he may be freed from the obligation to give testimony, specific features and conditions of the interrogation at the time of investigation and during the trial according to the Charter of Criminal Judicial Proceedings. Due to the absence of definition of a witness in the Charter of Criminal Judicial Proceedings, the author provides characteristics of various definitions of witness, as provided for in the works of the pre-Revolution procedural law scholars. The author analyzes the norms of Charter of Criminal Judicial Proceedings, which freed the witnesses from the obligation to give testimony, and the grounds for it. In addition, the author provides and comments the provisions of the draft Charter of Criminal Judicial Proceedings of 1900. The author studies the provisions of the Charter of Criminal Judicial Proceedings regarding the testimony of witnesses under oath during investigation and trial, providing the characteristics of importance of an oath in the works of the Russian pre-Revolution procedural law scholars. The author uses the method of historical analysis of the provisions of the Charter of Criminal Judicial Proceedings, as well as comparative legal method allowing to establish the legislative approach towards regulation of the legal position of a witness, as well as scientific opinions on various aspects of procedural status of a witness. The article for the first time provides specific analysis of the norms of the Charter of Criminal Judicial Proceedings on procedural status of a witness, rules for witness interrogation during preliminary investigation and during trial, as well as the role of the oath of the witness in the guarantees of authentic testimony. Based on the analysis of the norms of the Charter of Criminal Judicial Proceedings the author formulates a conclusion that it was the Charter of Criminal Judicial Proceedings, which laid the foundation for the modern institution of witness in the criminal judicial proceedings, and many of its provisions are taken by the Criminal Procedural Code of the Russian Federation.

Keywords: the Charter of Criminal Judicial Proceedings, Judicial reform, witness, free from witness testimony, witness immunity, witness interrogation, oath of a witness, free from oath, witness statement, advocate.

Abstract: The article concerns the issues of legal regulation of the institution of knowing persons in the legislation of XIX century, namely in the Charter of Criminal Judicial Proceedings and the Charter of Civil Judicial Proceedings of 1864. The analysis concerns the forms of participation of knowledgeable persons in criminal and civil judicial proceedings, legal status (rights, obligations and responsibility) of knowledgeable persons, grounds for their involvement in the judicial proceedings, as well as the opinion of knowledgeable persons, its place and value in the Charters of Judicial Proceedings. Additionally, the attention is paid to the process of development and adoption of the Charters of Judicial Proceedings. The study employed the historic and comparative legal methods, allowing for the analysis of the legal institution of knowledgeable persons in comparison of the provisions from the Charters of Judicial Proceedings of 1864 and the provisions of the modern legislation. The scientific novelty is due to the formulation of the conclusions regarding the value of the provisions of the Charters of Judicial Proceedings of 1864 for the formation and improvement of the legal regulation of the institution of knowledgeable persons in criminal and civil judicial procedures. The author draws a conclusion on the differences in the status of knowledgeable person and of a witness and forms of their participation in the judicial proceedings in XIX and early XX centuries as well as on the unification tendency in the regulation of the institution of knowledgeable persons in civil and criminal judicial proceedings.

Keywords: knowledgeable person, the Charter of Criminal Judicial Proceedings, the Charter of Civil Judicial Proceedings, legal status, judicial expertise, specialist, forms of participation, institution of knowledgeable persons, examination, certification, knowledgeable person – interpreter.

Abstract: The article concerns normative rules for the formulation and use of questions by the parties in the process of interrogation within the framework of criminal judicial proceedings. Special attention is paid to the procedures of formulation and use of questions by the parties (public accuser, defense lawyer) to the criminal defendant, knowledgeable persons and witnesses. The article includes the following descriptions: a) procedures, establishing the order of posing questions to the criminal defendant, knowledgeable persons, witnesses; b) procedure of use of narration of a witness as the basis for posing questions; c) classification of types of questions, as distinguished by the legislator in the Charter of Criminal Judicial Proceedings of 1864. The main method for the studies was comparing the norms of the Charter of Criminal Judicial Proceedings of 1864 and the Criminal Procedural Code of the Russian Federation of 2001. The scientific novelty of the article is due to revealing of the topical norms of the Charter of Criminal Judicial Proceedings of 1864, which may be used for the improvement of the norms of current criminal procedural law in respect to formulation and use of questions by the parties in the process of adversarial interrogation.

Keywords: criminal process, judicial investigation, interrogation, question, party, criminal defendant, victim, witness, expert, specialist.

Abstract: The author analyzes the development of the stage of initiation of a case in the Russian criminal process from the time of adoption of the Charter of Criminal Judicial Proceedings of 1864 to the current time, when the Criminal Procedural Code (in its latest version) is in force. The term “initiation of a criminal case” was used in the Charter of Criminal Judicial Proceedings only to establish the reason for the start of preliminary investigation, while in fact in the period after such a reason police or a judicial investigator could take a number of measures quite similar to those provided for in the current criminal procedural legislation. Later in the Soviet Criminal Procedural Codes of 1923 and 1960 the stage of initiation of a criminal case was finally formed and it was similarly provided for in the Criminal Procedural Code of the Russian Federation. Currently this stage is being reformed, and it is reasonable to use the experience in the sphere of issues of pre-trial proceedings at the time when the Charter of Criminal Judicial Proceedings of 1864 was adopted and applied. When writing this article the author mostly used a historic method in addition to the general scientific methods of analysis and synthesis, as well as logical and formal legal methods. The scientific novelty is due to the approach of the author towards topical issues of formation and reforming of the stage of initiation of a criminal case in the Russian criminal process and analysis of the said stage with the due regard to its legal regulation by the Federal Law of March 4, 2013 N 23-FZ. As a result of the study the author makes a conclusion that it is possible and desirable to resolve some topical issues in the sphere of initiation of the criminal case in the modern science of Russian criminal process and law making in the process of further correction of legal regulation of the stage of initiation of a criminal case.

Keywords: legislation improvement, past and present, history of criminal judicial proceedings, initiation of a criminal case, procedural coercion, stage of a criminal process, causes of initiation, information of a crime, investigative activities, rights of the parties to the process.

Abstract: The object of studies in this article concerns the combination of criminal procedural norms regulating the issues regarding the proceedings on a criminal case at the stage of assigning a trial, judicial and investigative practice as well as scientific studies, concepts and views regarding this issue. Based upon the analysis of the past and present legal regulation of the said procedural institution, the author substantiates the meaning, specific goals and specific features of the decisions, as well as additional guarantees of the protection of rights and lawful interests of the participants of the criminal procedural activities. The article involves the following methods: general scientific method, dialectic method of cognition, comparative legal method, comparative historic method, systemic method, analysis and synthesis, observation and description. The scientific novelty of this article is due to its goal, immediate goals and specific features of the approach towards the issues defining the nature and proceedings at the stage of assigning a judicial hearing. The article includes results of the historical study of a theoretical model of aforementioned stage. The author reveals new patterns and perspectives of further development of the procedural institution in question, substantiating the need to recognize this stage as an efficient mean of judicial control over the lawfulness of the pre-trial proceedings.

Keywords: judicial, reform, commit for trial, Charter, criminal, judicial proceedings, stage, assigning, judicial, hearing.

Abstract: The degree of reception of the elements of complete appeal according to the Charter of Criminal Judicial Proceedings of 1864 in the Criminal Procedural Code of the Russian Federation became the subject of this article, as well as the correlation of normative regulation of appeal under the Charter of Criminal Judicial Proceedings of 1864 and the legal regulation of appeals in accordance with the Criminal Procedural Code of the Russian Federation, revealing similar and dissimilar provisions in the regulation of complete appeal, and conditions for its implementation under the Charter of Criminal Judicial Proceedings of 1864 and Chapter 45.1 of the Criminal Procedural Code of the Russian Federation. The author evaluates the meaning of the provision of the Charter of Criminal Judicial Proceedings of 1864 on the right of the party to insist on interrogation of witnesses and specialist, who have arrived into the court of appeals at the initiative of the appellant. The general dialectic method of scientific cognition formed the basis for the use of various general scientific and specific methods of legal studies: historical, comparative legal, formal logical and structural – functional methods. Establishment and substantiation of the possibility for the full appeal in the modern criminal process should be based upon the balance of judicial discretion of the court of appeals and activities of the parties. The author makes a conclusion that the issue of complete and incomplete appeal is important from the standpoint of defining the nature of the appeals proceedings. It is stated that the modern appeal contains elements of judicial supervision and justice – resolution of the criminal court. The proposition is formulated to apply to the appeal the provisions of p. 4 of Art. 271 of the Criminal Procedural Code of the Russian Federation, since they are meant for the court of the first instance.

Keywords: appeals, immediate examination, new evidence, activities of the parties, discretion of a court, judicial control, judicial supervision, sentence, district court, justice of peace.