Ivan Kuptsov 

Institutional Obstacles for Initiating a Criminal Case

2021. No. 1. P. 107–129 [issue contents]
The nature of institutional obstacles to initiating a criminal case is analyzed in the article.By virtue of Part 8 of Art. 448 of the Code of Criminal Procedure of the Russian Federationinitiation of a criminal case under Art. 305 of the Criminal Code is possible only after apreliminary reasoned judgment of a higher court (in relation to the court that adopted theunjust judicial act) on the circumstances that indicate the commission of this crime. Thegiven example reveals in detail the problems of such legal regulation, and also analyzesother elements of a crime, which, as a basis for criminal liability, presuppose the presenceof a preliminary motivated judgment about the circumstances that subsequently becomethe subject of proof in a criminal case (Articles 157, 197 of the Criminal Code). The presenceof institutional obstacles to the initiation of a criminal case, in particular, prejudgment,raises the question of the legal nature of this institution, since in case of prejudgment, criminal prosecution is possible only subject to a preliminary motivated judgment of oneor another state body. Based on the example of the historical comprehension of similarprovisions (part 1.1 of Article 140 of the Criminal Procedure Code), the conclusion isdrawn about the dual material-procedural nature of this institution, as well as the factthat when such provisions are included in the Criminal Procedure Code of Russia, it isnecessary to change the criminal law. Consistent, predictable legal regulation can beensured only if the introduction of institutional obstacles to the initiation of a criminal caseis simultaneously accompanied by a change in the norm of the criminal law by fixing thecondition of punishment in its hypothesis. Ignoring the material and legal component willlead to a violation of the constitutional principles of action in time of the law that worsensthe punishment, namely Part 2 of Art. 54 of the Constitution of the Russian Federation inthe interpretation given by the Constitutional Court, as well as in violation of paragraph 1of Art. 7 of the European Convention for the Protection of Human Rights and FundamentalFreedoms as interpreted by the European Court of Human Rights.
Citation: Kuptsov I. (2021) Institutsional'nye prepyatstviya k vozbuzhdeniyu ugolovnogo dela [Institutional Obstacles for Initiating a Criminal Case]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 107-129 (in Russian)
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