The article is devoted to integrated research of key milestones of criminological and criminal procedure aspects of knowing the personality of the defendant and to the identification of the existing problem of harmonizing these types of cognitive activities in the administration of justice. The authors stress the differences between the criminological and the criminal procedure interpretations of the personality of the defendant, which are also manifested in the interpretation of its structure. It is shown that the factor integrating the knowledge of the personality of the defendant during judicial proceedings is the inseparable unity of this knowledge with the process of proving. The limits of knowing the personality of the defendant in criminal proceedings are directly dependent on forms of knowing and vary under the influence of their differentiation. The article presents three levels of knowing the personality of the defendant in justice in the criminological and criminal procedure aspects: extended (proceedings in cases of minors and cases on using compulsory medical measures); ordinary (cases prosecuted in general and special procedures); differentiated (cases tried by juries). It is pointed out that the personality of the criminal is most thoroughly examined at the extended and ordinary levels of knowing, which is caused by the contents of the general and the special objects of proof, as well as the absence of any legislative limitations on the objects and means of proving the above-mentioned circumstances. Most problems connected with the limits of knowing the personality of the criminal arise when a case is tried by a jury, which is caused by the bifurcation of the object of this study on the conducted inquiry with or without the participation of the jury. Having chosen the substantive approach to solving this problem, the legislators identified the limits of knowing the personality of the defendant with the limits of the sphere (object) of the cognitive competence of jurors, and other information on the personality of the defendant is studied after the verdict. The authors analyze the problems of correlation between the criminological and criminal procedure aspects of knowing the personality of the defendant in trials by jury: the effectiveness of a substantive limitation of studying personal characteristics of the defendant by jurors and the opportunity to examine the facts pointing at the insanity of the defendant with the participation of jurors. The authors also describe the specific features of examining the personality of the defendant in the USA and in Austria. They conclude that it is necessary to widen the scope of examining the personality of the defendant in trials by jury.
The paper discusses individual advantages and benefits that the digitalization of criminal procedures can provide. The forms of positive use of digital technologies in practice and the possibility of expanding their use are shown. It is proposed to do this by experimental implementation: a) to introduce them in parallel, along with the traditional ones, or b) to use them completely for different stages of the procedure that are most suitable for formalization and programming. There are three groups of criteria that need to be taken into account: objective characteristics of the nature of criminal procedural relations; the possibility/impossibility of formalization of requirements and procedures; the ability to strengthen, rather than reduce the guarantees of human rights, the reliability of the results of knowledge and justice of law enforcement acts. For a systematic transition to these technologies, it is impossible not to take into account that «human abilities» in criminal procedure can not always be formalized to the extent of their replacement by digital technologies.
The article examines the processes of digitalization of law, their causes, sources, driving forces, real and foreseeable consequences from a social constructivist perspective. Local experiences in the design and implementation of digitalization of criminal proceedings are described in detail, and expert assessments of the early successes and difficulties of digitalization in the sphere of rulemaking, law enforcement and law implementation in general are given. A counterpoint to the analysis of the processes of change in the legal reality, which takes place under the impact of its digitalization, is the hypothesis expressed in the literature about possible transformation of law into another social regulator or the birth of some hybrid form, which would include only certain elements of legal regulation. The article comments on the debate about the significance of digitalization for the essence of law as a social regulator. It considers the arguments of those who believe that the changes will lead to a radical transformation and the arguments of those who see these changes as merely technical details of law enforcement, not affecting its essence. Separate consideration is given to practical cases such as the project aimed at digitalization of criminal proceedings in the UK as well as experiments in digital, virtual and augmented reality in the US (digital environment “META,” “virtual reality,” “reality+,” etc.). The philosophical and legal theoretical concepts of digitalization of law in the context of projects of total virtualization of reality and digitalization of social practices are critically analyzed.
Different approaches to digitalization of criminal procedure are considered; the conclusion about the need for a functional approach based on a system analysis of procedural activity is substantiated; the internal purposes and functions of this activity subject to accounting for the aims of its system digitalization are highlighted; the functional sequence of purposes and stages of digitalization of procedural activity, which could ensure the transition to electronic justice in criminal cases, is highlighted.
The monograph was prepared by a team of authors based on the results of a study conducted in 2019-2022 on the topic "Transformation of the foundations of criminal proceedings in the context of the development of digital technologies: concepts of social technology, evidence and ensuring the rights of participants in the process" within the framework of the RFBR grant on the basis of the contract dated 04.10.2018 No. 18-29-16041.MK. The research is based on modern philosophical approaches to the development of science, the theory of cognition and epistemology, the understanding of social technologies that affect the development of criminal procedure science. An innovative analysis of a number of theoretical provisions, norms of law and practice of modern Russian criminal proceedings from the standpoint of social technology, compatibility of procedural and legal regulation and technological approach with the process of digitalization of procedural activity is carried out. The institutional-legal and socio-technological determinants of the transformation of ideas about the foundations of criminal proceedings, its modern goals and values, the subjects of the process and their role in the conditions of digitalization, about the types of procedural activities subject to digitalization, about certain aspects and possibilities of digitalization of evidence, record keeping, international cooperation in criminal proceedings are considered. For researchers and practicing lawyers.
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