Conceptualization of legal terminology: the need for a transparent terminological approach

The issue of legal regulation of the specifics of criminal proceedings under martial law has been studied. When posing the problem, it was stated that Russia’s full-scale war against Ukraine significantly changed the functioning of state bodies and institutions, as a result of which appropriate changes and additions were made to a number of normative legal acts. This also affected the specifics of the procedure for conducting pre-trial investigation and court proceedings under martial law. A systematic analysis of the provisions of the CCP of Ukraine shows that certain innovations are quite debatable and controversial. In this perspective, the need to eliminate legislative conflicts in order to implement effective and unambiguous practical implementation of legislative norms is argued. The key aspects in ensuring the practical application of the norms of the criminal procedural legislation of Ukraine regarding the specifics of criminal proceedings under martial law should be the regulation of the specified issue in a single section. This statement has been made as a result of a systematic analysis of the Criminal Procedure Code of Ukraine, in particular, it was found that changes and additions were made not only to Section IX-1 “Special regime of pre-trial investigation, trial under martial law conditions”, but also to other general provisions of the Criminal Procedure Code of Ukraine. It is noted that in paragraph 2, part 1 of Art. 615 of the Criminal Procedure Code of Ukraine fixes the definition of “absence of an objective possibility”, the interpretation of which is not provided in the law, and no cases of such an objective possibility are given. In this perspective, the vision is expressed that it is more logical for the legislator to provide a provision according to which the decision made by the prosecutor is subject to further approval by the investigating judge at the first opportunity. During the study of the amendments related to the application of preventive measures to servicemen who are suspected or accused of committing crimes provided for by Articles 402–408, 410, 420–425, 427, 431–433 of the Criminal Code of Ukraine, a proposal has been made to make certain changes aimed at protecting rights and freedoms of such a person. In particular, it is advisable to provide that in the event of the end of martial law, a serviceman or his/her lawyer has the right to apply to the investigating judge, the court with a request to change the preventive measure or choose a more lenient one.

Legislative amendments regarding criminal proceedings under martial law

Ablamska

2022

Genesis of the structure of legal relations

Pohribnyi

2022

It is noted that the theory of legal relations appears in the form of a wide and diverse array of knowledge and ideas, of course, it can be accepted as the main source that feeds the very process of further development and improvement of their essence, definition and composition. It is emphasized that two categories of social relations were distinguished in the general theory of law and branch sciences: “organized” and “organizational” social relations. The first always arise to achieve certain goals, the second to normalize the processes “being organized”. Procedural legal relations take the place of the initial, determining element in the composition of procedural proceedings. In turn, procedural proceedings are defined as the main element of the legal process, which is a systemic formation, a complex of interrelated and mutually conditioned procedural actions. Procedural legal relations, which justify the dynamics of material legal relations, in turn, are derived from the latter, have a subordinate, official character in relation to them, perform the role of a kind of procedural “superstructure” over the material-legal “base”. The peculiarities of the subjects of procedural legal relations can be seen in the following. First of all, procedural legal relations are characterized by the diversity and multiplicity of the composition of subjects, which are divided into, on the one hand, a group directly interested in the results of the legal process, that is, those whose interests are protected, the realization of subjective rights or powers, the fulfillment of legal obligations the whole arsenal of procedural methods, means and techniques helps to avoid or endure legal responsibility, and on the other hand, a group of leading subjects who perform their functions in “other people’s” interests, for the purposes of the case under consideration. Procedural powers in their “pure” form cannot be classified as either procedural rights or procedural duties. According to its purpose, it is, in a certain sense, a product of the synthesis of rights and obligations. First of all, this is a component of the competence of the relevant state body or official. Possessing procedural powers, they are not only procedurally authorized, but also obliged to perform actions provided for by the procedural law. The legally binding nature of powers is expressed in certain limits of their rights in relation to other persons and bodies and at the same time entrusting them with the obligation to use the rights granted to them to achieve their goals. It is necessary to take into account the combination of procedural rights and obligations within the limits of procedural powers, their various compositions in specific legal relations, taking into account the dynamism and multi-subjectivity of the latter.

Changes in the legal regulation of criminal proceedings under martial law

Salmanov

2023

Russia’s full-scale war against Ukraine has caused changes in the everyday life of Ukrainians, as well as in the functioning of state bodies and institutions. This has led to relevant amendments and additions to a number of legal acts, including criminal procedure legislation. The rules governing pre-trial investigation and court proceedings under martial law have also been amended. However, the analysis of the Criminal Procedure Code of Ukraine shows that some of the innovations are generally positive, but certain aspects of legal regulation may raise doubts and concerns, and are quite controversial and controversial. Under the new rules of pre-trial investigation, investigators and prosecutors can reduce the role of defence counsel, and are allowed not to involve them in all stages of the process or to do so via audio and video conferencing. However, this practice may limit the ability of defence counsel to perform their duties, as they will not be able to be at the scene and will not be able to effectively defend their client at all stages of the investigation. Under the proposed amendments, the prosecutor will receive powers that previously belonged only to the investigating judge, if circumstances make it impossible for the latter to perform his or her duties. However, the law does not provide a clear list of such situations, so the prosecutor will decide whether the investigating judge can perform his or her functions. This leads to a lack of judicial control over the observance of human and civil rights and freedoms and puts the defence at a disadvantageIn addition, such amendments directly violate Article 124 of the Constitution of Ukraine, which prohibits the delegation of court functions and their appropriation by other bodies or officials. The investigator and prosecutor may obtain evidence of a person's guilt, which may contradict his or her rights and freedoms. Nevertheless, the court has no right to disregard such evidence, which may lead to possible abuse by the investigator and prosecutor, which may result in human rights violations and unfair sentences. The heads of the prosecutor's office and pre-trial investigation bodies are entitled to seize the property of suspects or accused persons without a trial. However, if the criminal proceedings are subsequently closed or the person is found not guilty, the law does not require the return of such property or compensation for its value. This can lead to mass deprivation of property without the possibility of return. In this context, there is a need to eliminate legislative conflicts for effective and unambiguous practical implementation of legislative provisions for the purpose of investigating criminal proceedings under martial law.