The article deals with the problem of the expediency of a criminal case’s returning to the prosecutor at the stage of appointment and preparation of a court session in Russian criminal proceedings. ...This problem is relevant to the science of criminal procedure.
The purpose of the study is to analyze critically the practice of returning of a criminal case back to the prosecutor in order to correct mistakes made at the pre-trial stages of the proceedings according to the new concept of justice independence and the absence of an accusatory bias in the court functioning.
The methodological basis of the study is a set of scientific techniques, focused mostly on the dialectical approach, which made it possible to determine the essential characteristics of the prohibition to turn the criminal proceedings in Russia for the worse. Both general scientific (analysis, synthesis, systematic method) and specific scientific methods (formal-legal, historical-legal, comparative-legal) of knowledge were also used. The analysis helped to formulate the position of understanding the turn for the worse as an independent principle of criminal procedural law, to study the procedural form of the turn for the worse. The synthesis method made it possible to determine the return of the criminal case to the prosecutor at the stage of appointment and preparation of the court session as a holistic institution of the criminal procedure. The systematic approach allowed to determine not only the mixed nature of the mechanism for changing the prosecution to a more serious one, but the investigative organi
zation of pre-trial proceedings and its place in the structure of criminal proceedings, the separation of the investigative and “accusatory powers” of the prosecutors as well as their balance. The historical method let us trace the evolution of the prohibition to turn the Soviet and Russian criminal procedural systems for the worse. The comparative-legal method made it possible to assess the potential of domestic legislators' reception of foreign experience of regulating the prohibition to turn for the worse and formulate proposals to improve the Russian criminal procedural legislation.
The main scientific results of this research consist of justification of the conclusion of the conversion expediency of the domestic judicial proceedings to the adversarial model of accusation which is carried out within the trial on the previously filed charge. The presentation of a new charge (criminal action) in court and the procedure of supplementing the charge change it for the worse. This model of re-indictment for the worse for the defendant appears to be fairer and more convenient both for the prosecuting authority and for the legal organization of combating crime. The changeover to the suggested form of implementation of the ban to turn for the worse in the institution of bringing and changing charges in court is possible only in a systematic link with the reform of the preliminary investigation. Conclusion. The institution of the criminal case returning by the court to the prosecutor in order to change the charge to a more serious one when implementing the adversarial model of bringing charges in the criminal procedure system of Russia will fully satisfy the concept of independence of justice administration and the absence of an accusatory bias in the activities of the court, while at the same time with fairly organized the prosecutorial power aimed at countering crime.
The section 1 was prepared by N.N. Lysov, section 2 by K.D. Vanyan (together with M.T. Tashilin), section 3 by A.S. Shuisky (together with I.R. Gilmanov), section 4 by V.V. Kosterin.
Many researches have brought progress in learning a good generative model by combing the advantages of GAN and VAE, where latent space learning is always important for generating high-quality images. ...But these existing works mainly seek to impose the latent space a given distribution in advance or to obey a Gaussian distribution with KL divergence penalty, which leads to the difficulties of deciding a suitable prior distribution corresponding to different datasets. Thus in this paper we develop a two-stage combining method of AE and GAN under unsupervised and supervised conditions respectively, each stage performed to improve the effect of modeling latent distribution. In the first stage, an adversarial procedure achieves to match the latent distribution with real data distribution determined by arbitrary dataset without having access to a pre-set prior distribution. In the second stage, besides one adversarial procedure trained for outputting images, the other adversarial procedure is designed to attain the goal of optimizing the latent distribution of the first stage via back-propagation. Therefore, loop optimization of the network parameters during training will at last allow the framework to map an input noise to a high quality image. Extensive experiments are conducted to verify the performance of representing latent space and generating images on different datasets including MNIST, fashion-MNIST, CIFAR-10, and CelebA. The code and tutorials already release at https://github.com/TwistedW/CAE-CGAN.
Dans une procédure accusatoire, il incombe aux parties de prouver les faits relatifs à leurs prétentions. La recherche de preuve étant coûteuse, chaque partie n’investit dans cette activité qu’en ...fonction des bénéfices qu’elle en attend. Nous analysons l’effet d’une amélioration de la qualité des preuves potentielles sur le risque d’erreur judiciaire. Ce risque diminue si la demande de preuve des parties n’est pas trop élastique et si celles-ci ont peu de marge de manœuvre dans le tri des éléments qu’elles décident de communiquer. Cependant, lorsque les parties peuvent trier ces éléments à des fins stratégiques, nous montrons que le scepticisme rationnel du juge, combiné aux effets sur la recherche de preuve, peut alors conduire à plus d’erreurs judiciaires.Classification JEL : D82, K41.
L’expertise médico-légale Ludes, B.
Ethics, medicine, and public health,
January-March 2016, 2016-01-00, Letnik:
2, Številka:
1
Journal Article
Recenzirano
Cet article ne traite que des procédures d’expertise en France. En effet, l’expertise médicale est un moyen pour un magistrat saisi d’une affaire contentieuse en matière médicale d’obtenir ...l’éclairage technique indispensable au fondement de son jugement. L’expert désigné en la matière, le plus souvent sur une liste dressée auprès d’une cour d’appel ou de la Cour de cassation, doit répondre précisément aux questions de la mission, uniquement au plan technique. Il doit faire preuve d’indépendance, d’objectivité, d’impartialité et respecter le caractère contradictoire de la procédure civile ou administrative. Il doit scrupuleusement observer les délais fixés pour rendre son rapport. Ce dernier sera clair et exposera le raisonnement médical après avoir rappelé les antécédents médicaux, les commémoratifs, l’examen médical et la discussion des faits litigieux ainsi que les réponses aux questions posées par le magistrat. La responsabilité de l’expert peut être recherchée en cas de manquement aux principes de l’expertise et à sa mission. Une contre-expertise peut alors être ordonnée par le magistrat. Des sanctions peuvent également être prononcées à l’encontre de l’expert négligent. Le magistrat n’est pas lié à l’avis de l’expert et reste maître de la conduite de la procédure.
Medical expertise is a way for a judge to obtain the necessary medical informations in a medical trial in order to ground his judgment. The appointed expert in the field, usually taken on a list given by a Court of Appeal or the Court of Cassation, must accurately answer, only technically, the questions of the mission. He must demonstrate independence, objectivity, impartiality and respect the adversarial nature of civil or administrative proceedings. He must scrupulously observe the deadlines to depose the report. It will be clear and expose the medical reasoning after recalling medical history, commemorative, medical examination and discussion of the facts and give the precise responses to questions asked by the judge. Expert's liability may be sought in case of non-observance of the procedure and of the principles of expertise. A counter-expertise can then be ordered by the judge. Sanctions can also be imposed on the expert if he failed. The judge is not bound to the opinion of the expert and remains master of the way to conduct the procedure.
The Italian criminal trial experienced remarkable reform in 1988, attempting to establish an adversarial-based process to replace its deficient inquisitorial system. This presents a unique example of ...large-scale convergence of these two approaches that are often deemed to be diametrically opposed. This article presents the findings of empirical research that explored the nature and extent of adversarial procedures operating in Italy. The role of the trial judge was closely examined since it is significantly different in these two systems. Observation of criminal trial procedures was completed in Italy and Australia (Australia case juxtaposed as a more traditional adversarial system), and semi-structured interviews were carried out with Italian trial judges. It was found that while adversarial elements are observable in Italian courtrooms, continued adversity exists. This is argued to be the result of some key areas of inattention by reformers in the initial process of policy change and legal transplantation.
This article discusses whether a rule that requires the defence to give prior notice of its strategy and arguments to the prosecution has any bearing on the role of the prosecutor being inquisitorial ...or adversarial. The rule of special defences in Scottish criminal procedure, which combines inquisitorial and adversarial characteristics, is analysed. On the basis of the historical background of this rule and of Scottish criminal procedure in general, it is submitted that the rule exemplifies inquisitorial ideology, while Scottish procedure is by and large adversarial. The prosecutor may well be expected to use the information gained from an advance notice in an impartial manner, requiring him to investigate exculpatory evidence for the defence. Even though no clear legal duty to that effect exists, the Scottish prosecutor has considerable discretion to engage in informal cooperation with the defence. It is argued that a duty to act impartially may exist within this context of informal cooperation. The Scottish example shows that a rule on special defences need not imply an inquisitorial role for the prosecutor, but it can do so. As prosecutorial discretion and informal cooperation are pivotal for this inquisitorial role, the coherence of the criminal process may change if this discretion is limited by prosecution directives. The resulting loss of the magisterial role of the prosecutor may have to be compensated by a stronger position for the defence, as it may be dependent on the prosecutor’s impartiality for a fair trial.
Introduction Spellman, Barbara A; Saks, Michael J
The Psychological Foundations of Evidence Law,
01/2016
Book Chapter
Rules of evidence are designed to facilitate trials by controlling what evidence may be presented at trial. Those rules came into being, and evolved over time, due to changes in trial process and ...structure – especially following the rise of adversarial procedure, whereby control over the marshaling and presentation of facts shifted from judges to lawyers. Refinements and reforms continue to be undertaken to try to improve the scope and clarity of the rules. Trial judges must not only apply the rules, they also have the discretion to make rulings in light of their expectations of the impact they think the evidence will have on jurors. This task involves metacognition: one human trying to estimate the thought processes of others. Thus, evidence rulemakers have been and are, effectively, applied psychologists. The rules of evidence reflect their understanding of the psychological processes affecting, and capabilities and limitations of witnesses, lawyers and jurors. Psychological research and methods provide an additional source of insight and assistance in that endeavor. Better psychological understanding should lead to more effective rules. Psychologists typically employ the scientific method: empirically testing hypotheses in an effort to discover which are valid understandings of how people perceive, store, and retrieve information. To evaluate evidence rules, one could conduct experiments directly on a rule, or borrow from existing knowledge developed in basic research and see whether those understandings support existing or proposed evidence rules.
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