No 4 (2020)

The paper considers the possibilities of psychological expertise in court when proving the fact of guilty of a person holding the highest position within the crime hierarchy. The study understands the criminal hierarchy as a definite social crime unit controlled by authoritarianism principles. A crime unit boss obtains a leading position as a result of natural selection according to the psychological parameters of a person. The structure of a crime lord personality includes the specific appearance and behavior attributes. The author generalized personal traits of a crime lord of various tendencies and identified that the common personality trait of criminal units’ leaders is the love for power. The study showed that to achieve personal life attitude, the leader proves the status by the attributes of appearance and behavior. The acquisition of a leading position is associated with carrying out the initiation ceremony. The attitude of a person to the ritual of award of the highest status within the criminal hierarchy as well as to the attributes of a crime lord is considered as a fact to be determined in the process of investigation of such crimes. The paper specifies the parameters of a psychological model of a crime leader, proves the applicability of the court psychological expertise of emotional states and individual psychological constitution to identify the personal attitude of a suspect to various attributes of the highest status within the criminal hierarchy. The author defines general and particular objects of psychological expertise in court on the cases over the acquisition of a leading position within the criminal hierarchy. They can be a suspect personality, as well as the episodes of his/her behavior in the underworld and within the experiment conditions recorded using technical facilities. The study showed the rationale of the forensic examination of a group of people being members of one criminal unit. The author proposes the definition of issues placed for the resolution of the court psychological expertise of the crime leadership. The subject matter of the issues put before an expert is the identification of the importance of various crime leadership attributes for an examinee. 

The paper discusses general regularities affecting the discretion in law enforcement and law-making practice in the countries of the Romano-Germanic legal family. Factor analysis provides a detailed description of the most important laws related to the exercise of discretion in the law enforcement and law-making practice of the states of the specified legal family. In particular, the author draws attention to the dual nature of judicial rulemaking, the pronounced codified nature of legislation, the leading role of a normative legal act in the system of law sources, the presence of explicit conceptuality and doctrinality, and other essential factors. In comparison with the system of common law, the continental legal family is characterized by the significant influence of the works of legal scholars and the expressed and intense perception of legal doctrines and theories.  The author notes that the array of acts of interpretation significantly influences the uniformity of judicial practice in the continental legal system since this is a way to give flexibility to the legal regulation of public relations. Besides, the codifiers use a large number of scientifically based general provisions to formulate prescriptions, which are the main focus. The paper considers the fact that in the Romano-Germanic legal family, the lawyers regard as unacceptable the situation when the will of the judicial authorities determines the decisions made by the legislator since a traditionary one is a situation when the judicial authorities implement the will of the legislator. The author concludes that the rule of law is a consistent principle of the continental legal system. The paper states that scientific development should pay particular emphasis to the problems of law enforcement discretion. Thus, judicial discretion in law is most typical for the legal systems of the Anglo-Saxon legal family, and administrative discretion (the discretion of administrative jurisdiction) – for the Romano-Germanic legal family. The legal system developed in a particular state determines the general and specific regularities of exercising discretion in law practice.

The paper considers the factors significantly influencing the implementation of the principle of access to justice and develops the definition of these factors and their classification. The principle of access to justice is one of the essential procedural principles that guarantee the fulfillment of the goals and objectives set for justice, which necessitates a clear and comprehensive understanding of both the inner content of this principle and the phenomena closely related to it. The factors of access to justice as one of the scientific categories are practically not studied in the literature - many authors use this term (some of them offer their classification) but the factors are poorly researched, only as a necessary addition to the research subject-matter without giving them due attention for implementing this procedural principle. This study has practical significance: the consolidation of the principle of access to justice in the branch procedural codes (which, undoubtedly, should happen) should be supported with the detailed description of how this principle should be implemented in practice and what must be considered to assess the performance of the judicial system in the context of compliance with this principle. A simple statement that justice should be accessible is nothing more than a declarative norm (which already exists in the country’s fundamental law). For this purpose, it is necessary to create a normative description of facts and circumstances, the presence or absence of which should indicate whether justice is accessible at the moment.

The nature of a subjective right causes the possibility of a criminal proceedings participant willingly, based on own interests and wishes, both to exercise the right exactly and waive it and not to use the provided procedural possibilities. Within the criminal proceedings, the waiver of the right institute is new, underdeveloped. There is practically no understanding of its subject matter and the extent of its exercise at the level of doctrine and jurisprudence as opposed to the foreign experience and civil legal regulation, which causes definite scientific interest in this topic. The paper carries out the look-back analysis of the definition of the nature of the waiver of the subjective right in Russian legal doctrine. This institute is relatively new and little researched in the Russian doctrine, which determines a particular scientific interest in the study of this issue. The paper provides the authors’ description of the waiver of the subjective right. In respect to the Russian criminal procedural legislation, the authors highlight the necessity to distinguish between the refusal of a right and the refusal to exercise a right by the participants in the criminal procedural activity; analyze the differentiated approach of the legislator on this issue. Based on the theoretical and legal analysis, the authors define that the waiver of the subjective right has definite essential features, forms, and ways of implementation, as well as specify the criteria for its admissibility. The paper proves the conclusion that the waiver of the right within the criminal process is possible under such conditions, as the direct willingness of a subject of criminal law relations to waive a right; the awareness of the existence of a particular procedural right and the consequences of such refusal; the form of a waiver showing its voluntary nature by implementing the intended freedom of choice. The authors expressed the proposals aimed at the improvement of norms of current criminal procedural legislation.

The paper deals with the problem of determining the legal status of the head of an inquiry department and its legislative regulation. The authors note that the head of an inquiry department is an official of an agency of inquiry authorized to exercise criminal procedural powers as prescribed by law. The study shows that the structure of legal status of the inquiry department head includes the procedural powers of three types: administrative powers towards an investigator; powers for initiation of proceedings, committal for trial, and investigation of a criminal case, as well as the imposition of obligations on management of an investigators’ group; subjective rights exercised by an inquiry department head in the process of exercising the abovementioned authorities. The paper compares separate elements of the legal status of the inquiry department head with those of the legal status of other criminal process members: head of an agency of inquiry, head of an investigating authority, and a prosecutor. In particular, the paper states that the head of an investigating authority is more an individual procedural figure than the head of an inquiry department. The analysis of legislative provisions specified in the RF Criminal Code shows that the head of an investigating authority has rather more powers influencing the preliminary investigation course than the head of an inquiry department. As for the powers of the head of an inquiry agency, they partially repeat those of the inquiry department head. The paper states that such a state of matters negatively influences the implementation of activities on the criminal cases preliminary investigation in the form of an inquiry. The authors suggest two ways of solving the problem of duplicating the elements of the legal status of the head of an inquiry agency and the inquiry department head. The top choice of them is to exclude from the legal status of the head of an inquiry agency those procedural powers through which the control for the activity of the subjects carrying out the preliminary investigation in the form of inquiry is performed.