Expansion of international cooperation in the field of criminal proceedings makes it necessary to study the criminal process of a number of developed civilized countries. This is also required in order to determine how the changes made to Russian legislation relate to the models of criminal proceedings in different states.

In this regard, it will be interesting to study the basic procedures that exist in the UK, USA, Germany and France. Firstly, these are states with very significant historical and legal traditions, which were widely used to create a domestic law enforcement model. And, secondly, these countries have very specific legal systems, and their study greatly expands the professional legal awareness of lawyers.

Features of the criminal procedure in Great Britain due to the fact that in this country there is a significant number of laws, by-laws, regulations governing this activity. In addition, Great Britain is a "classical" state with a precedent law system, within which a significant role in criminal procedural regulation is assigned not to laws, but to precedents.

Precedents are decisions in specific cases, which, being adopted at the judicial level, become binding on all subsequent similar cases.

Pre-trial proceedings in a given country are carried out not by a single body, but by a certain set of them. The powers of these bodies are divided among themselves. In addition, as in the Russian criminal process, some prosecuting authorities subsequently have the opportunity to support the prosecution in the courts.

TO bodies of pre-trial proceedings include the following government agencies.

1. Police. She carries out pre-trial preparation of materials in most cases of crime detection. The police have officers (detectives) who specialize in solving and investigating crimes.

When the police receive information about a crime, it is checked, and a formal act on the initiation of a criminal case is not issued. Criminal prosecution is considered to have begun from the moment when a specific person is detained on suspicion of committing a crime, when actions are taken that limit his rights (search in his home, control and recording of telephone conversations, etc.). From one of these moments, the state is responsible for the application of procedural coercion measures and other restrictions against a person.

  • 2. Royal Pursuit Service. This body exercises control over the activities of the police in the implementation of criminal prosecution. In addition, it is in this body that the accusation is formulated, on which the person is subsequently brought before the court. After the criminal case is brought to court, an official of the Royal Prosecution Service supports the prosecution as a public prosecutor.
  • 3. The Attorney General is the senior official who directs and oversees the Royal Prosecution Service, issues binding directives, and exercises other powers that extend to both pre-trial and trial proceedings.
  • 4. Coroner. He is an official who is appointed by the local government and whose powers extend to the relevant administrative entity. The powers of the coroner include establishing the circumstances under which the death of a person occurred, and, if signs of a crime are found, the conduct of an investigation. The coroner will use police assistance and resources as needed. At the end of the investigation, the coroner transfers the materials he has collected to the Royal Prosecution Service for further prosecution and referral of the criminal case to the court.

Litigation in criminal cases are carried out by the following bodies.

  • 1. Magistrate's Court. This judicial body is the lowest level of the judicial system in England. It is created and operates in every magistrate (district) of the country. The magistrate's court hears, as a court of first instance, criminal cases involving minor offenses. The process is simplified (summary). If the defendant admits his guilt, then the sentence is passed without examining the evidence. In the absence of a confession from the defendant, all evidence is examined in an adversarial manner, after which a verdict is passed (guilty or acquittal).
  • 2. Court of the crown. It is the judicial body that hears indictments in criminal cases. Crown courts are formed in each of the six districts into which the territory of Great Britain is divided. There is no simplified (summary) procedure in the Crown Court. In each district, the Crown Courts form permanent judicial presences that are closer to the population and thus have the ability to administer justice more effectively. It is in the Crown Court that the jury operates, consisting of one professional judge and 12 jurors. In addition, in a number of cases, the Crown Court carries out appeal proceedings in criminal cases before the magistrate's court.
  • 3. The High Court, in cases provided for by law, acts as a court of appeal in criminal matters whose sentences have been rendered by the Crown Courts or Magistrates' Courts. The High Court also assists the Crown Courts in organizing criminal trials.
  • 4. The Court of Appeal reviews criminal cases that have been sentenced by the Crown Courts. The appeal proceedings are carried out at the request of one of the parties and are carried out in general according to the same rules as in the court of first instance.
  • 5. The Court of Lords is the highest court of law. He carries out appeal proceedings in criminal cases considered by lower judicial authorities.

US Criminal Procedure has many similarities with the criminal procedure in England. This is due to the common historical past of these states, as well as the fact that the formation of the US justice system was based on the Anglo-Saxon (precedent) system of law.

Along with this, the US criminal process is characterized by a number of features, which are due to the specifics of the territorial-state structure of a given country.

As a result, each state in the United States has its own justice system. The competence of the bodies of pre-trial proceedings and courts, respectively, includes preliminary investigation and trial in criminal cases concerning crimes within their competence.

Crimes are divided into three troupes: 1) felony - a serious crime for which the death penalty or imprisonment for more than one year is provided as punishment; 2) misdemeanor - a punishment in the form of imprisonment for up to one year or a fine is applied; 3) minor offenses (offense) - imprisonment of up to six months or a fine of up to $ 500 is applied.

In addition to this classification, which is based on the severity of the crime committed and, accordingly, the type and amount of punishment, acts are divided depending on who will carry out the criminal proceedings - state law enforcement and judicial authorities or federal services and federal courts.

The United States has adopted a significant number of laws governing criminal justice. At the same time, there is no single codified act dedicated to the day procedure. At the state level, it is partially replaced by the Code of Evidence for a particular state, which contains rules for the collection, verification and subsequent use of evidence. At the federal level, there is a Federal Evidence Code that deals with federal crimes.

As a general rule, pre-trial proceedings in criminal cases concerning crimes committed in the territory of a state are carried out by the police of that state or other services. The collection and verification of evidence is carried out by a police officer, and there is no clear distinction between investigative actions and operational-search measures. If it is necessary to enter the home, or otherwise restrict the rights of the individual, a court decision is required.

If necessary, private detectives are involved in the investigation, who discover evidence and present it to the police.

According to the results of the investigation, the police officer compiles report (criminal report), which lists all the evidence confirming the involvement of a particular person in the commission of a crime. Subsequently, the police officer may be questioned by the court as a witness for the prosecution.

If a crime infringes on the interests of the state as a whole, then it is not the local police that are investigating it, but other bodies (the Federal Bureau of Investigation, the Drug Enforcement Administration, the Immigration and Naturalization Service, etc.). Pre-trial proceedings are generally carried out in the same manner as the local police, however, when collecting evidence, more forces and means are used, including international cooperation.

The results of the investigation are sent to the Attorney Service, which has three levels: 1) local attorneys; 2) the state attorney service, headed by the state attorney general; 3) The Federal Attorney Service, which is headed by the US Attorney General (who also runs the US Department of Justice). The main task of the attorney service is to formulate the charge, draw up the indictment and further support the charge of courts of various levels.

  • 1. Courts of magistrates consider criminal cases of minor crimes in the manner of simplified (summary) proceedings.
  • 2. The District Courts act as courts of first instance in criminal cases involving felonies, and also carry out appeal proceedings in criminal cases that were previously considered by magistrates. It is in the composition of the district court that a jury is formed, which considers a criminal case in the event that a person has not pleaded guilty and filed a corresponding petition.
  • 3. The courts of appeal shall re-try criminal cases previously heard by the district courts.
  • 4. The US Supreme Court is the highest court of law. He makes the final decisions on criminal cases that have previously passed all previous instances.

French Criminal Procedure characterized by the fact that it is regulated by a special codified act - the Criminal Procedure Code, adopted in 1958 (currently it is in force with significant changes).

The peculiarity of the acts in the commission of which criminal prosecution is carried out is that, depending on the degree of public danger, they are divided into three types: crime, misconduct and offense. Accordingly, various forms of criminal proceedings are applied, primarily pre-trial.

As a general rule, when signs of a crime are detected, police inquiry, after which all materials are transferred to the prosecutor to initiate criminal prosecution. Although the timeframes for police inquiries are very long, it is with the decision of the prosecutor to initiate criminal proceedings that the prosecution begins on behalf of the state.

Prosecutor initiates criminal prosecution in one of three ways: 1) by drawing up a request for a preliminary investigation (if it is required to collect new evidence); 2) by direct summons to court; 3) by drawing up a call protocol or an immediate drive.

A feature of the preliminary investigation is that it is carried out by officials who are called investigating judges. At the same time, the investigating judge does not carry out criminal prosecution, since he does not represent the prosecution.

During the preliminary investigation, the investigating judge performs investigative actions, after which he transfers the criminal case to investigation chamber.

Investigative chamber is a collegial investigative body, which consists of three investigating judges (the chairman of the investigation chamber and two advisers). The investigation chamber checks the received criminal case, after which it decides the issue of sending the criminal case to court or its termination.

Within the framework of judicial proceedings, a criminal case may be referred to one of the judicial authorities.

  • 1. Tribunal Instance(police court) hears criminal cases of offenses as the first instance court, i.e. about minor crimes.
  • 2. Grand Tribunal(Correctional Court) hears criminal cases of misconduct, i.e. about more serious criminal offenses. Criminal cases are brought before this court if the defendant was in custody before the trial or if he can be sentenced to imprisonment for more than five years.
  • 3. The Assize Court, which is a temporarily acting judicial body. It meets four times a year to consider criminal cases on the most serious crimes, and also serves as an appellate instance. In the Assize Court, criminal cases are heard not only by professional judges, but also in cases prescribed by law by a jury. However, unlike Anglo-Saxon criminal proceedings, a professional judge and a panel of 12 jurors jointly decide questions of both fact and law.
  • 4. The cassation court has the powers of the highest court. A cassation proceeding is a review of criminal cases that have previously been considered on appeal.

A judgment that has entered into legal force may be revised by the Court of Cassation in a revision manner. However, an audit can be carried out only in favor of the convicted person on the proposal of the Minister of Justice, on a complaint of the convicted person or his representative, and in the event of the death of the convicted person, on the complaint of his relatives and other representatives.

German Criminal Procedure characterized by the fact that its legal basis is the Code of Criminal Procedure of February 1, 1877 (valid in subsequent editions). However, unlike the Code of Criminal Procedure of the Russian Federation, the German Criminal Procedure Code contains much fewer procedural issues per se. The provisions contained in the act fix the general rules of criminal proceedings and legal guarantees of the persons involved in the process. But specific rules regarding criminal prosecution, interaction of various law enforcement agencies are contained in acts of the subordinate level, as well as in instructions, manuals, etc.

The initial collection and verification of evidence is usually done by the police. All of its activities are carried out until the actual criminal prosecution and are preliminary in nature. At the same time, the police have the right to carry out investigative actions but collect evidence to the extent and which will prevent their disappearance. At the same time, there is no clear line between investigative actions and operational-search measures.

The materials collected by the police are transferred to the prosecutor's office, which initiates a formal inquiry. At the same time, the prosecutor's office is obliged to collect not only incriminating evidence, but also exculpatory evidence, i.e. act comprehensively. At the end of the inquiry, the prosecutor's office either terminates the proceedings, or initiates a public accusation and sends the criminal case to the court.

Germany's judicial system reflects its federal structure. Depending on the severity of the crime, the stage at which the criminal case is located, and a number of other circumstances the trial is carried out by one of the following bodies.

  • 1. District court. In it, the judge, acting alone, hears criminal cases of private prosecution, as well as cases of minor crimes, the maximum punishment for which does not exceed six months in prison. A judge and two Schaffen (assessors) hear criminal cases of crimes that have a more significant social danger, as well as cases of crimes, the maximum punishment for which does not exceed three years in prison.
  • 2. The Regional Court operates in two chambers. The Grand Chamber (three judges and two Schaffen) hears criminal cases of serious crimes, and is also an appellate instance in relation to cases, which were sentenced by the Schaffen court in the district court. The Small Chamber (a judge and two Schaffens) carries out appeal proceedings in criminal cases, the sentences of which were handed down by the judge of the district court alone.
  • 3. The Supreme Regional Court has a criminal Senate. The Senate, composed of five judges, hears criminal cases of the most serious crimes as the first instance court. The three-judge Senate, acting as a court of second instance, reviews appeals against appellate judgments of the Land Court by revision.
  • 4. Supreme Court FRG acts only as a court of second instance. The Senate for Criminal Cases, consisting of five judges, examines appeals against sentences by way of revision, if the Grand Criminal Chamber of the Land Court or the Supreme Land Court acted as the court of first instance.

D.E. Pankratov

INITIAL STAGES OF CRIMINAL PROCEEDINGS IN FOREIGN COUNTRIES

AND RUSSIAN CRIMINAL PROCESS

Analyzing the works related to the issues of criminal prosecution, criminal liability, the author comes to the conclusion about the ambiguous understanding of the issues of their functioning in practice in the Russian criminal process. With regard to the topic under consideration, the analysis of the legislation of a number of foreign states has shown, firstly, that, on the one hand, there is a certain unity of the complex of key institutions that regulate criminal prosecution at the pre-trial stages, on the other, there are significant differences; secondly, that in modern foreign criminal proceedings the principle of expediency is much more widespread than the principle of legality. In conclusion, an analogy is drawn between foreign pre-trial proceedings and Russian ones, and alternative solutions to the problems that currently exist in the RF Criminal Procedure Code are proposed.

Analysis of scientific works of such authors as Kh.D. Alikperova, A.S. Barabasha, L.M. Volodina, L.V. Golovko, A. Ya. Dubinsky, Z.Z. Zinatullina, S.G. Kelina, V.A. Kovalev, V.K. Kolomeyts, A.M. Larina, V.A. Mikhailova, S.I. Nikulina, A. A. Rzayeva, A. V. Sav-kina, V.V. Sverchkov, M. S. Strogovich, A. A. Chuvilev and others allows us to come to the conclusion about the ambiguous understanding and application in practice of the norms of criminal and criminal procedure law, about the controversial nature of the relationship between pre-trial termination of criminal cases and the principle of the presumption of innocence; on the set of conditions necessary for the termination of criminal prosecution in connection with active repentance; on the possibility of terminating the persecution in the presence of uncompensated harm to the victim; on the optimal procedural order of termination of criminal cases and criminal prosecution. The Criminal Procedure Code of the Russian Federation, along with the "traditional" institution of termination of criminal cases, provides for the termination of criminal prosecution. A number of other institutions, directly related to the analyzed norms, have also changed. Also, for a long time in the science of criminal procedural law, the question of the relationship between concepts such as "criminal prosecution" and "accusation", "termination of a criminal case" and "termination of criminal prosecution" has been discussed.

In addition, the choice of a strategy for modern transformations in Russia should largely take into account the trends in the development of the legislation of foreign states. On the one hand, foreign criminal procedural legislation, being well-established and stable, is not frozen, is subject to changes, it includes novels that reflect modern trends in crime aimed at reducing the cost and rationalization of pre-trial proceedings.

In many countries, criminal prosecution is based more on the principle of expediency ... The application of the principle of expediency leads to the application of so-called "alternative measures", or "measures of compromise in the fight against crime."

With regard to the topic under consideration, an analysis of the legislation of a number of states - Germany and France - as representatives of the continental legal system, the USA and Great Britain - as representatives of the Anglo-Saxon legal system, showed that, on the one hand, there is a certain unity of the complex of key institutions governing criminal law.

adherence to the pre-trial stages, on the other, there are significant differences. In modern foreign criminal proceedings, the principle of expediency is much more widespread than the principle of legality. Back in 1826, the French Court of Cassation, interpreting Art. 47 of the Napoleonic Code of Criminal Investigation of 1808, noted that a prosecutor who decides to initiate or not to initiate a public action has discretionary power to leave a criminal act without consequences (classer sans suite) on the basis of the inappropriateness of criminal prosecution alone. Since then, this approach has become an essential feature of French criminal justice.

At the beginning of the expediency of initiating criminal prosecution, the criminal proceedings of the Anglo-Saxon countries are also built: Belgium, the Netherlands, Luxembourg, Switzerland (in the Romanesque cantons), Iceland, Denmark, Norway, Japan and many other states. If we talk about legal and technical aspects, then the principle of the expediency of criminal prosecution in one form or another is directly formulated in the law (France, Japan, the Netherlands) or may follow from many years of law enforcement practice, so well-established and uncontested by anyone that making special amendments to the law it is not even required for a long time (this was the case in Belgium until recently. Now the Belgian Criminal Investigation Code directly states that the prosecutor has the right to assess the expediency of criminal prosecution. The only feature of the procedural application of the expediency principle is that under the new Law the prosecutor is obliged to give reasons on refusal to initiate criminal prosecution) or is associated with the very concept of pre-trial stages of the criminal process, which are traditionally alien to any kind of legalism (England, USA, etc.).

So, let's consider the most common alternatives that currently exist in foreign legal systems when solving the above issues.

England, as a rule, is considered to be one of those countries where the principle of expediency of criminal prosecution operates. Under this principle, the body empowered to initiate prosecution is left to decide on a case-by-case basis whether it finds it convenient, appropriate and appropriate.

who can initiate criminal prosecution or find it more convenient to refrain from it.

The French criminal procedure traditionally rejects any kind of legalism at the stage of initiating a public action, being a kind of symbol of the principle of "expediency" of criminal prosecution. The prosecutor, called upon to decide on the initiation of a public claim, has the right, at his own discretion, to assess the presence or absence of the expediency of criminal prosecution in each specific case. In France, either criminal prosecution of a person was recognized as the only possible reaction to a crime, or they generally refused any reaction to a crime in the absence of "public interest." In England and France, several options for ending the police prosecution are possible: refusal to prosecute, not accompanied by any conditions (we are talking about the traditional option for the English criminal process to end a police investigation), formal and official warning; and mediation - the concept of completing criminal proceedings in this form generally proceeds from the desire to reconcile, with the help of the public, the victim and the person subject to criminal prosecution, so that the latter will make amends for the harm caused to them.

In Germany, "in practice, it is not the principle of legality that operates, but the principle of expediency." The beginning of expediency is increasingly supplanting the beginning of legality, becoming the dominant model for deciding whether the prosecutorial power has the right to refrain from prosecution based on its discretionary discretion. The principle of expediency leads to the emergence of a "multivariate system", when, in the presence of certain circumstances, both the refusal to initiate criminal prosecution on the grounds of "inexpediency" and the initiation of criminal prosecution will be equally lawful (not mutually exclusive): court ", refuse to prosecute the accused, if the prosecution is not caused by" public interest ". The situation itself with compromises and deals in the field of German criminal law has long been a subject of discussion. The ambiguity of the situation, when de facto transactions before the court became a daily occurrence, and de jure not a word is said about such an instrument of justice, prompted the Minister of Justice, Brigitte Tsipris, to come up with an original proposal. The essence of the minister's initiative is to legislate the possibility of negotiations and transactions before the adoption of a court decision. The minister's logic is clear and understandable - such transactions are a very effective and efficient tool for the functioning of the German justice in the field of criminal law. After all, in the end, it is in the interests of society itself that the criminals are quickly convicted and receive the punishment they deserve, and the legal system functioned without failures and delays. In addition, negotiations before the court session have already become an integral part of practical justice.

Proceedings in a simplified manner are called “punishment orders”. It is carried out by

kovym judge for minor crimes (criminal offenses), the punishment for which does not exceed three months in prison. On the basis of the data of the inquiry, the prosecutor or the police apply to the district judge with a draft order on punishment. In the absence of the accused, the judge makes one of the following decisions in the absence of the accused: rejects the application for failure to confirm sufficient suspicion, orders a trial, or immediately issues a punishment order. Thus, the production in the order of "order on punishment" is approaching the imposition of an administrative penalty. However, giving the accused the right to agree or disagree with the order introduces an adversarial process into the process, equalizing the accuser and the accused.

When deciding whether to initiate criminal proceedings in the United States, the prosecutor is usually guided by two points: the presence or prospects of obtaining a sufficient evidence base to convict the accused; the expediency of criminal prosecution that meets the interests of the district represented by the prosecutor, taking into account the degree of public danger of the crime committed and the person who committed it. Refusal to initiate criminal prosecution may also be justified by reference to its inexpediency due to the incomparability of the harm caused to the public interest and the material costs required to carry out criminal prosecution.

The discretionary powers of the attorney are governed by procedural rules contained in such sources of American criminal procedure law as federal and state statutes (for example, in the state of Pennsylvania, they are provided for by the 106th Pennsylvania Criminal Procedure Rule), as well as in court precedents. The discretionary powers of the prosecutor also imply giving him a legal opportunity to terminate the initiated criminal prosecution at any stage of the criminal process.

It seems possible to draw some analogy between the discretionary powers of the US District Attorney and the procedural right to terminate a criminal case or consent to its termination by the investigator or the body of inquiry on non-rehabilitating grounds provided for in Art. 25-27, 427 of the Code of Criminal Procedure of the Russian Federation.

A natural consequence of comparing the public, private and discretionary principles of the Russian and American criminal process is the question: is it worth the domestic legislator to follow the path of further expanding the discretionary powers of the prosecutor and the head of the investigative body? It seems necessary to provide authorized officials with certain discretionary powers regarding the decision of the issue of initiating a criminal case. However, they should not be as broad as the discretionary powers of the US District Attorney. Discretionary powers of Russian officials with regard to resolving the issue of initiating

nii criminal case should be limited to a condition specifically defined in the law. This condition follows from the objective need to economize on the measures of criminal repression and is a deliberate evidence of the impossibility of obtaining a set of evidence sufficient to pass a guilty verdict. Thus, the Russian prosecutor should be granted discretionary powers regarding the decision to initiate a criminal case in the only case - if there is an internal conviction in the absence of the possibility of obtaining sufficient evidence to prosecute and convict the person guilty of the crime.

Both in Western and Russian science it has long been customary to single out “two principles on which official criminal prosecution can be built. The first is called the principle of legality. Its expression is the duty of the prosecutor to initiate criminal prosecution for each committed and punishable crime, regardless of considerations of certain difficulties or inconveniences that may result from the initiation of prosecution. Another principle of the prosecutor's office may be the so-called “principle of expediency”. Under this principle, the body empowered to initiate prosecution is left to decide on a case-by-case basis whether it finds it convenient, appropriate and appropriate to initiate criminal prosecution or whether it considers it more convenient to abstain from it. The principle of expediency is no less "legitimate" than the principle of legality, since under the appropriateness system, the competent person simply has the discretion to assess the presence or absence of

the presence of a public interest in initiating criminal prosecution, while acting within the framework of the powers granted to him by law (i.e., by no means arbitrary). In addition, the principle of the legality of criminal prosecution as a private principle of constructing one of the stages of criminal proceedings has in this context little in common with the general legal principle of legality, which is understood as “unswerving observance and implementation of the provisions of the Constitution of the Russian Federation, laws and other corresponding normative acts by all state and non-state institutions and organizations, officials, citizens ". The general legal principle of legality should, of course, be applied in criminal proceedings, being of fundamental importance for it (Article 7 of the Code of Criminal Procedure of the Russian Federation). But this is a different aspect of the problem. There is only terminological similarity between these principles, but by their legal nature they are completely different. Thus, the French prosecutor, who decides not to initiate criminal prosecution in the presence of proven signs of a crime on the grounds of the simple inexpediency of such a prosecution, is just as unswervingly complying with the law (Article 40 of the French Criminal Procedure Code) as the Russian prosecutor, who is obliged in this situation to initiate a criminal case by virtue of the requirements Art. 21 of the Criminal Procedure Code of the Russian Federation. The only difference is that these prosecutors are guided by different laws, in which the problem of the relationship between legality and expediency is solved in the opposite way. That is, in one case, the competent authority, upon detecting signs of a crime, has the right to choose to initiate criminal prosecution or refuse it, subject to the established criteria of "public interest", while in the other there is no such right, there is only the obligation to initiate criminal prosecution.

LITERATURE

1. Bulatov BB, Nikolyuk V.V. Criminal procedure of foreign countries. Omsk, 1999.

2. Volodina L.M. The mechanism for protecting the rights of the individual in criminal proceedings. Tyumen, 1999.

3. Golovko L.V. Alternatives to criminal prosecution in modern English law // Jurisprudence. 1998. No. 3.

4. Cheltsov-Bebutov M.A. Course in criminal procedure law. SPb., 1995.

5. Filimonov B.A. Fundamentals of Criminal Procedure in Germany. M. 1994.

6. Code of Criminal Procedure of the Federal Republic of Germany / Per. B.A. Filimonova. M., 1994.

7. Pennsylvania Rules on £ Criminal Procedure. Chp. 100. Pt 2. Rule 106. Access mode: http: /members.aol.com/Rules PA / Crim.100.html

8. Shestakova S.D. Public, private principles in the criminal process of Russia // Russian investigator. 2006. No. 6.

9. Cheltsov-Babutov M.A. Course in criminal procedure law. SPb., 1995.

10. Gutsenko K.F. Criminal process. M., 1997.

11. Boykov A.D. Third power in Russia. Book two is a continuation of reforms. M., 2002.

12. Alexandrov A.S. Subsidiary criminal claim // State and law. 2000. No. 3.

Analysis of international legislation and foreign legal regulation of criminal prosecution will require the need to understand the general rules for the correlation of these legal phenomena and establish an objective assessment of the experience available in other countries, with a view to the subsequent possible borrowing of their individual provisions by Russian national criminal proceedings.

As rightly noted by K.F. Gutsenko, "thoughtless copying of provisions that have already been abandoned somewhere because of their unacceptability, or which have discredited themselves there, is obviously fraught with the creation of conditions for repetition in Russian conditions of what has been" burned "in other countries." This allows us to draw a conclusion about the exclusion of mechanical borrowing of legislative material from foreign countries on the organization and procedural support of criminal prosecution in our country.

At the same time, we proceed from the non-identity for our country of the status of international law regulating the sphere of criminal proceedings and the status of the legislation of foreign countries, which also provide protective activity in their countries through the implementation of criminal prosecution.

In the first case, when it becomes necessary to clarify the correct relationship between the norms of international law and the norms of the criminal procedure legislation of the Russian Federation, one should be guided by the requirement of the norms of Part 1 of Art. 17 of the Constitution of the Russian Federation, which in the Russian Federation recognizes and guarantees the rights and freedoms of man and citizen in accordance with the generally recognized principles and norms of international law. In accordance with Part 4 of Art. 15 of the Constitution of the Russian Federation, generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system.

In connection with the above argumentation, we share the position outlined in modern literature that the generally recognized principles and norms of international law are an independent source of Russian law, including both for criminal procedural law in general and for its fundamental institution - criminal prosecution. At the same time, in our opinion, international law is not only the source of the Russian legal system, but also manifests itself as a priority legal form for law enforcement, which has indisputable supremacy in its legal force. As for the legal material that forms the status of a prosecutor, in its structure the principles and norms of international law occupy a priority position, and their application must be unconditional and uniform.

In the legal regulation of human rights, the implementation of which takes place in the context of a criminal prosecution in accordance with the norms of Russian criminal proceedings, all participants in criminal proceedings are obliged to be guided by the Universal Declaration of Human Rights of December 10, 1948, the International Covenant on Guarantees and Political Rights of December 16, 1966, the European the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, as well as other international treaties ratified by the Russian Federation.

The Russian Federation, being a party to the Convention for the Protection of Human Rights and Fundamental Freedoms, recognizes the jurisdiction of the European Court of Human Rights as binding in matters of interpretation and application of the Convention and the Protocols thereto. In this regard, the court and the parties to criminal proceedings, understanding the provisions of the European Convention in a specific case of law enforcement in the implementation of criminal prosecution, protection from it and the resolution of a criminal case on the merits, are obliged to perform procedural actions and take procedural decisions taking into account the practice of the European Court of Human Rights.

For the law enforcement process of criminal prosecution in the Russian Federation, it is important to correctly understand the constitutional provision that international norms on human rights in criminal proceedings, being an integral source of Russia's criminal procedural law, are mandatory for their implementation. Their violation, in the event that the complaint is satisfied by the European Court of Human Rights, puts the Russian Federation as a state in the position of a subject of law - the defendant who committed this violation. In this case, the Russian Federation must compensate the citizen for the damage awarded by the court, caused by the violation of his rights and freedoms, and take measures to prevent such violations in the future in law enforcement practice.

A somewhat different aspect has the issue of studying foreign experience and procedural activities in organizing criminal prosecution in foreign countries. The experience of Western foreign countries in the subject of our study will allow the Russian legislator to use it in the implementation of structural reforms of the Russian national criminal justice.

First of all, in our opinion, the current procedural legislation governing the institution of criminal prosecution in the United States of America, Great Britain and other countries of the Anglo-Saxon legal family is of interest.

In the United States, the basis for criminal procedure legislation is the provisions of the United States Constitution, as amended. The primary federal prosecution laws are sections 18 and 28 of the United States Code. So, section 18 of the US Code is called "Crimes and Criminal Procedure". In addition to the US federal criminal justice system, there is a corresponding criminal justice system in each state. In special studies on US criminal procedure law, it is noted that the norms of the criminal process in a number of states are combined with the criminal code in one regulation, and the FBI and various other federal services, as well as independent from each other, are prosecuting federal crimes. friend by numerous police agencies: state, county, or municipal police.

The US Attorney's Office is not a single, centralized system. There is a federal attorney's office (federal attorney service) and variously named prosecutors (attorney's office) states and cities, which are independent from each other. Prosecutors (attorneys) decide on the initiation of criminal prosecution, they can independently investigate the crimes committed, including investigating cases initiated by the police.

When deciding on the initiation of criminal prosecution in the United States, the prosecutor has the right to refuse to initiate criminal prosecution with reference to its inexpediency due to the incomparability of harm caused to the public interest and the material costs required to carry out criminal prosecution. Such decisions of the prosecutor can be appealed to the court.

The practice of the US judicial authorities has developed a rule that if the prosecutor does not have excessive abuse, then, according to the norms of case law, the court should not interfere with the district attorney's criminal procedural policy, so as not to violate the principle of separation of powers, which is constitutionally established in the United States. Thus, the principle of legality (if there is enough evidence, the case should be sent to the court) is limited in practice by the principle of expediency (the discretion of the prosecutor to refuse to initiate criminal prosecution if the subject of the crime is proven).

In accordance with the United States Code, prosecutors (attorneys) support the prosecution in court. At the same time, lawyers acting under contract, for example, on the state side, can also act as prosecutors. It should be noted that researchers, including American lawyers, do not consider the US criminal justice system to be ideal, while its main shortcomings are indicated by insufficient attention paid to the factor of truth and the formality of the mechanism of criminal justice itself. According to W. Burnham, the adversarial nature of the American system often leads to the slowness and inefficiency of the process, which is partly recognized by the US Supreme Court. According to Professor R. Perkins, “the US criminal procedure is a formal mechanism that is established to implement substantive criminal law. In a broad sense, it includes: 1) accusation of a crime; 2) establishment of guilt or innocence, and 3) determination the fate of the convicted ".

In our opinion, the US criminal process should be considered only from the point of view of the strong and effective powers of prosecutors (attorneys) to organize criminal prosecution, as well as the differentiated implementation of this procedural activity by federal and regional law enforcement structures.

From a scientific and practical point of view, the experience of organizing and procedural support of criminal prosecution in Great Britain is interesting. This country has never had a single codified regulation containing the rules of the criminal procedure (with the exception of Scotland, for which the British Parliament issued the Criminal Procedure Act in 1975).

Researchers of the criminal procedure law of England point out that by the beginning of the 21st century in England the total number of laws regulating criminal proceedings amounted to “many tens, and possibly more than one hundred”. Due to the fact that in England a single criminal procedural code has not been adopted, and the style of presentation of English laws is such that it leaves ample room for judicial discretion, the role of case law remains very significant. With the help of judicial precedents, the provisions set out in the legislation in a general form are interpreted and gaps in the legislation are filled.

The basic model of English criminal prosecution, as reasonably emphasized in the literature, is that there is only a choice between two traditional options for the state's response to a crime, based on its danger to society: the first option is the official prosecution of a person, the result of which, from the point of view of the prosecution, become a punishment as a legal consequence of the commission of a crime; the second option is to refuse criminal prosecution.

In Scotland, the public prosecution system is more advanced. It is headed by the Lord Advocate (the legal representative of the Crown in this part of the United Kingdom), and his deputy is the Solicitor General of Scotland. Scotland has historically had a system of official public prosecutors in criminal matters, carried out in the public interest by the service of so-called "procurators - fiscal". The latter have exclusive competence to decide on the initiation of criminal prosecution, they can take the most complex criminal cases for their proceedings. Other cases are investigated by the police.

Of particular interest to the doctrine of criminal procedure is the new method of exemption from criminal prosecution, which has appeared in the law enforcement practice of Scotland, which has received the name "fiscal fine". The essence of the above-mentioned special procedure for exemption from criminal prosecution is that the fiscal procurator, having received information about the commission of a crime falling within the competence of the district court, has the right (but is not obliged) to make his decision dependent on the payment by the accused of a sum of money to the state treasury ... In this case, he makes an official proposal to the specified person, explains the conditions for exemption from criminal prosecution and gives 28 days to think it over. If the accused agrees and hands over the money to the district court clerk, then no criminal prosecution will take place. If there is no payment, then the procurator-fiscal, having learned about this after the expiration of the established period from the clerk of the court, decides to initiate proceedings on the case on a general basis. However, his right to opt out of criminal prosecution by virtue of discretionary powers remains in effect in the event of non-payment of the fiscal fine.

In the countries of the British Commonwealth, to a certain extent, the English system of bodies carrying out criminal prosecution has been inherited. In Australia, prosecutions for non-grave offenses are carried out by the police, and for grave crimes by the attorney general, acting on behalf of the Crown.

In Canada, the attorney general's office can uphold prosecution in courts higher than magistrates. They can be either full-time employees of this department, or lawyers who, under a contract (like the system existing in the United States), are entrusted with speaking on a specific case. The investigation of crimes is carried out by the police. The Attorney General of Canada is at the head of the Department of Justice and can appoint his representatives to serve as prosecutors in any courts.

Of particular interest for Russia is the analysis of the procedural institution of criminal prosecution in the countries of the Romano-Germanic legal family. First of all, the experience of the Federal Republic of Germany is interesting. In Germany, the preliminary investigation is carried out by prosecutors, but they resort to the help of the police. The prosecutor's office is organized as a hierarchical system with general courts at all levels. At the Supreme Federal Court, criminal prosecution is carried out by the Federal Prosecutor General and federal prosecutors subordinate to him, accountable to the Minister of Justice of the Federal Republic of Germany.

The Länder Prosecutor's Office, subordinate to the Minister of Justice of the Länder, has a similar structure. After a criminal case has been initiated by the prosecutor, most criminal cases are investigated by the police. At the same time, the prosecutor functionally decides the further fate of the case: referral for further investigation, termination of criminal prosecution or transfer to court. In the most important and complex cases, the prosecutor himself carries out the investigation, and the police are obliged to follow his instructions for the production of procedural and other actions.

Statements and reports about the commission of crimes can be left without consequences on legal and factual grounds. If the complaint is rejected, the applicant has the right to apply for a court decision in the course of proceedings on compulsory initiation of charges within a month. The decision on the applicant's complaint about the compulsory initiation of a criminal case is made by the regional court. At the request of the court, the prosecutor's office is obliged to provide him with all the materials of the inquiry, and in order to prepare a decision, the court may order certain judicial investigative actions to be carried out.

In Germany, there are no judicial investigators as such. A judge of a district court, at the request of the prosecutor's office (or defense), may conduct investigative actions.

At the same time, he does not accept the case for his production. Such investigative actions are carried out in an adversarial manner - with the participation of representatives of the parties in the court session.

To choose a preventive measure in the form of detention, a prosecutor or a police officer appeals to a judge of a district court. The latter issues (or refuses to issue) a written arrest warrant, depending on the existence of “serious suspicion”. German criminal procedure law distinguishes between three types of suspicion: simple (necessary to initiate a criminal case), sufficient (leading to the initiation of a public charge in court) and serious (justifying the arrest of the accused).

At the end of the preliminary investigation, if there is "sufficient suspicion", the prosecutor will refer the case to the court. In German criminal proceedings, in a number of cases, the prosecutor's refusal to refer the case to court is allowed, for example, when the accused or his relatives themselves have seriously suffered from a crime. The appearance in the FRG criminal proceedings of alternatives to criminal prosecution stricto sensu is connected with the Law of February 02, 1974, which is officially called the "Introductory Law to the Criminal Code of the FRG". We are talking about the creation of a new procedural institution, which gives the prosecutor the right to refuse, under certain conditions, to initiate a public prosecution, even in cases where there are sufficient factual data and legal grounds for criminal prosecution.

In the FRG, the prosecutor's office has the right to refuse criminal prosecution of a person who has been convicted of committing another crime, if the punishment for him is sufficient to correct the culprit (Article 154 of the Criminal Procedure Code of the FRG). Criminal legislation provides for the exclusion of punishment after the expiration of the statute of limitations for criminal prosecution (Section 5, Chapter 1 of the Criminal Code of the Federal Republic of Germany).

When studying the issues of legislative regulation of the institution of criminal prosecution of Western countries, one should pay attention to the experience of France. Criminal prosecution in this country is carried out in accordance with the French Code of Criminal Procedure of 1958. According to this law, pre-trial proceedings in France consist of three stages: inquiry, initiation of criminal prosecution and preliminary investigation (bringing to trial is included in the preliminary investigation stage).

The bodies of inquiry in France (primarily the police) are at the disposal of prosecutors and perform the function of criminal prosecution under the procedural control of the court. But cases of grave crimes (with a sentence of more than 10 years in prison) are investigated by investigating judges. However, in these cases, prosecutors perform the function of criminal prosecution (they bring forward and support charges, demand investigative actions necessary to substantiate the charges).

A police inquiry in France can also be carried out after the completion of the preliminary investigation, if the prosecutor gives an order to collect additional evidence in order to present it directly to the court. Experts in the field of criminal procedure in France provide evidence that the vast majority of cases in France are investigated in full precisely in the form of a police inquiry, they go to the investigating judge in almost complete form. According to the French Code of Criminal Procedure, consideration of the issue of the expediency of sending a criminal case for trial or releasing a person who committed a crime from criminal liability is the competence of the prosecutor's office. The prosecutor has a monopoly on the right to initiate criminal proceedings or terminate the proceedings. If the prosecutor decides to initiate criminal proceedings, he "files a criminal claim." The prosecution in court is carried out mainly by the prosecutor's office. The police maintain indictments in police tribunals for misdemeanors, for which up to 10 days of arrest can be imposed.

The prosecutor's office in France is a centralized system, headed by the Minister of Justice. Its main task is to carry out criminal prosecution at all stages of the criminal process. At the courts of appeal, there are attorneys general with their assistants, the chief of the assistants is called the attorney general.

Studying the experience of organizing and procedural support for the implementation of criminal prosecution in Italy, we come to the conclusion that in this country, too, with one or another option, the scheme of continental, mixed criminal process prevails and the related scheme of the judicial system and organization of the prosecutor's office is similar to the French one. Thus, the Constitution of the Italian Republic of 1947, in section IV, called "Magistracy", establishes provisions regarding the judicial system, judicial proceedings and the participation of the prosecutor's office in it (Articles 101-112). As in France, judges are appointed by the President of the Republic, with the Supreme Council of the Magistracy, chaired by the President, playing the main role in their appointment. It also includes the Prosecutor General of the Court of Cassation.

In Italy, the investigation is carried out by the judicial police, investigating judges, but, unlike in France, the investigation is also carried out by the republican prosecutors. The praetor is a special figure among persons entitled to prosecute in Italy. He, in cases referred to his jurisdiction, has the right not only to conduct an investigation, but also to consider the case investigated by him as a judge. In the republic, prosecutions in the courts are supported by prosecutors, and in cases considered by praetors, by officials appointed by them (including police officers).

The Italian Prosecutor's Office is a centralized system under the authority of the Minister of Justice and includes the Prosecutors General at the Courts of Cassation and Appeals and the Republican Prosecutors at the Tribunals.

Analysis of the implementation of the institution of criminal prosecution in Finland shows that in this state the main body investigating crimes, as in other European countries, is the police. In the court of first instance, the function of criminal prosecution is carried out in cities - by the city prosecutor, in rural areas - by the chief of the district police or his deputy. The prosecutor at this court participates in the court sessions of the court of appeal. The head of the entire system of bodies carrying out criminal prosecution is the Chancellor of Justice, appointed for life by the President of Finland, who is also the legal adviser to the President.

The experience of organizing criminal prosecution in the Netherlands is unique and interesting. As in most Western European countries, the principle of the expediency of criminal prosecution in this country is enshrined in Art. 167 of the Criminal Procedure Code of the Netherlands. This legal directive reads: "The prosecutor decides whether to prosecute when it appears necessary on the basis of an investigation. Prosecutions may be terminated due to public interest."

In practice in the Netherlands, the prosecutor stops prosecution in the following cases: other types of punishment or measures (for example, disciplinary, administrative or civil) are preferable and more effective; the prosecution would be disproportionate, unfair or ineffective given the nature of the offense (for example, the offense caused no harm and there is no need for punishment); the prosecution would be disproportionate, unfair or ineffective given the personality of the offender (eg advanced age, significant likelihood of remediation); prosecution would be contrary to the interests of the state (state security, peace, order, etc.).

The broad powers of the prosecutor in this area are also determined by the fact that the court does not control the content of the charge and the prosecutor has the right, for example, in the case of a proven serious crime, to bring charges for a less serious crime. Moreover, the prosecutor, if he does not consider it possible and expedient to carry out traditional criminal prosecution and considers it permissible to leave the crime “without reaction”, has the right, in accordance with Article 167 of the Netherlands CPC, to impose “one or more conditions” on the accused, under which the effect of the state's right to prosecute stops.

The analysis of the implementation of criminal prosecution in the Netherlands is conditioned by the demonstration of grounds for termination of criminal prosecution for the possible reasonable adoption of "alternative forms" into Russian legislation.

The study of the place and role of the prosecutor's office in the mechanism of the state and the performance of its function of criminal prosecution in the countries of Eastern Europe - the former socialist states, indicates that the prosecutor's office in these countries, as a rule, has broad powers in the implementation of criminal prosecution. For example, in Hungary, the prosecutor's office investigates cases that are attributed to its jurisdiction, enjoys the right to bring charges and present charges in court.

The main body carrying out criminal prosecution in Hungary is the police, supervision over the legality of police activities is entrusted to the prosecutor's office, and a complaint about illegal actions of the police can only be brought to the prosecutor, but not to the court.

It should be noted that the analysis of the criminal procedural legislation of the states of Eastern Europe shows that in them the main body of criminal prosecution is the police; the prosecutor's office investigates cases within its competence, supervises the legality of police actions and, at the discretion of the prosecutor, also has the right to accept for its proceedings any criminal cases investigated by the police; in addition, in these countries, prosecutors support the prosecution in court.

The experience of the implementation of the institution of criminal prosecution in the CIS countries and the Baltic states, the former republics of the USSR, is of particular interest to the Russian Federation. In most countries of this region, two trends can be noted in the development of criminal prosecution bodies after the collapse of the USSR.

The first tendency is that the bodies of inquiry and preliminary investigation (Kazakhstan, Belarus, Ukraine, etc.) continue to be the main bodies that initiate and carry out criminal prosecution at the pre-trial stages in a number of former republics of the USSR.

Another tendency is observed in the Baltic countries, where the prosecutor's office is legally assigned the duties of the main body of criminal prosecution, depriving it, in essence, of its supervisory functions. This tendency is most typical for Estonia, where the prosecutor's office is included in the Ministry of Justice as an independent unit and does not exercise supervision over the implementation of laws, with the exception of supervision over the legality of pre-trial proceedings and supervision over the execution of criminal sentences.

At the same time, Art. 2 of the Law of the Republic of Estonia on the Prosecutor's Office stipulates that prosecutors in courts of all instances represent the state prosecution, and Art. 23 of the Regulations on the Prosecutor's Office of the Republic of Estonia, approved by the Minister of Justice of Estonia on 8 April 1993, stipulates that the prosecutor has the right to submit protests against unlawful and unjustified court decisions only "within the framework of public prosecution".

The study of foreign experience in the implementation of criminal prosecution shows that in each state, in addition to the national characteristics of the implementation of criminal prosecution, there is international agreement on the procedure for interaction of courts, prosecutors, investigators and inquiry bodies with the relevant competent authorities and officials of foreign states and international organizations.

With regard to the Russian Federation, the procedure for the extradition of a person for criminal prosecution or the execution of a sentence is determined by Chapter 54 of the Code of Criminal Procedure of the Russian Federation, which regulates: the rules for sending a request for the extradition of a person who is on the territory of a foreign state; the limits of the extradited person's criminal liability; execution of relevant requests and the procedure for appealing against decisions made. It should be noted that, in essence, this chapter was a reflection of the provisions of the Conventions, Treaties and agreements on the provision of legal assistance in criminal cases concluded by the USSR and the Russian Federation.

In Russia, the institution of extradition began to form in the ancient Russian state and subsequently received a fairly perfect development. At the same time, the history of development and implementation of international cooperation in the course of criminal proceedings are not the subject of this study, therefore the named aspects are left outside the scope of their consideration.

The material presented in this section of the study, in terms of the analysis of international and foreign experience in the implementation of criminal prosecution, allows us to conclude that Russian criminal procedural law in general and its fundamental institution of criminal prosecution have their own historical and cultural origins and are the legal branch of a sovereign state. ... At the same time, the criminal procedural legislation of the Russian Federation should take into account the best experience of organizing and procedural support for the implementation of criminal prosecution of foreign Western states of the world community. In our opinion, when borrowing the experience of foreign states that legislate the procedure and conditions for carrying out criminal prosecution in their countries, it is important for subjects that have the right to initiate legislation to improve the criminal procedural legislation of the Russian Federation to observe the following algorithm of actions:

The laws of foreign states that are the object of borrowing should not contradict the norms of the Constitution of the Russian Federation, which regulate the state's obligation to really protect the rights and legitimate interests of all individuals and organizations from crimes, and provide guarantees of the individual from illegal and unjustified accusations, convictions, restrictions on their rights and freedoms, free access to justice;

Bills of foreign states, the provisions of which are borrowed into Russian criminal procedural legislation, must create legal conditions for the observance of human and civil rights and freedoms in criminal proceedings on the basis of equality of all before the law, the existence of equal conditions for conducting criminal prosecution and protection against it;

The introduced draft laws aimed at amending and supplementing the Criminal Procedure Code of the Russian Federation and borrowed from the legislation of foreign states should ensure the inevitability of fair punishment for persons who have committed crimes and the rehabilitation of all those who have been unlawfully and unreasonably subjected to criminal prosecution.

QUESTIONS TO CREDIT

1. The concept of criminal proceedings (criminal procedure). Criminal procedure is a type of state activity. Correlation of the criminal process with the administrative and operational-search activities of the internal affairs bodies.

2. Criminal Procedure Law. Criminal procedural legislation.

3. Action of the criminal procedure law in space, in relation to persons and in time.

4. Criminal procedural science, its relationship with lawmaking, practice and tasks in modern conditions.

5. The concept and system of principles of criminal justice

6. Presumption of innocence.

7. Providing the suspect and the accused with the right to defense.

Competitiveness of the parties.

9. Protection of human and civil rights and freedoms, ensuring other constitutional rights of citizens in criminal proceedings.

10. Appeal against procedural actions and decisions.

11. Types of criminal prosecution.

12. The concept of participants in criminal proceedings and their classification.

13. Court. The judicial system of Russia.

14. Participants in criminal proceedings on the part of the prosecution.

15. Participants in criminal proceedings on the part of the defense.

16. Other participants in criminal proceedings.

17. Circumstances precluding participation in criminal proceedings.

18. Criminal procedural proof as a kind of knowledge.

19. Subject and limits of proof.

20. The concept of evidence. Reliability, admissibility, reliability of evidence.

21. Classification of evidence.

22. Evidence process.

23. Use in proving the results of operational-search activities.

24. Testimony of a witness and a victim.

25. Testimony of the suspect and the accused.

26. Conclusion and expert testimony.

27. Physical evidence.

28. Protocols of investigative and judicial actions.

29. Other documents.

30. Measures of procedural compulsion.

31. Detention of the suspect.

32. Seizure of property. Grounds and procedure. Cancellation of the seizure of property.

33. Concept, types and significance of preventive measures.

34. Grounds for the application of preventive measures. Circumstances taken into account when choosing preventive measures.

35. Measures of restraint not related to detention.

36. Detention. Guarantees of the legality and validity of detention.

37. Grounds and procedure for canceling or changing a measure of restraint.

38. Procedural terms: concept, meaning, types, calculation and extension.

39. The concept and structure of procedural costs.

40. Rehabilitation.

QUESTIONS TO THE EXAM

1. The stage of initiation of a criminal case (concept, tasks, subjects, terms, basic solutions, means, meaning).

2. The reasons and grounds for initiating a criminal case (the concept of the reason, the characteristics of the reasons, the concept of the basis). Using the data of the OSA when deciding whether to initiate a criminal case.

3. The procedure for registration and registration in the internal affairs bodies of statements and reports of crimes.

4. Verification of statements and reports of crimes.

5. The procedure for initiating a criminal case. The legality and validity of the initiation of criminal cases.

6. Grounds and procedure for refusal to initiate a criminal case.

7. Transfer of statements or messages according to the jurisdiction.

8. Departmental control and supervision of the prosecutor over the implementation of the law at the stage of initiation of a criminal case.

9. Stage of preliminary investigation (concept, objectives). Preliminary investigation. Inquiry.

10. The concept and meaning of the general conditions for the production of preliminary investigation and inquiry.

11. Investigation (concept, types, meaning).

12. The beginning, place and terms of the preliminary investigation.

13. Combining and separating criminal cases (grounds, procedural order, difference between separating cases from separating materials, calculating the terms of preliminary investigation when joining and separating criminal cases).

14. Preventive activities of the bodies of inquiry and preliminary investigation.

Essence, significance, tasks and principles of interaction of the investigating apparatus with the bodies of inquiry (police). Forms of interaction.

16. The concept of investigative actions, their system. Correlation of investigative actions with procedural decisions, other procedural and search actions, operational search measures. General conditions (rules) for the production of investigative actions.

17. Inspection, its types. Grounds and procedure.

18. Certification. Basis and procedure for conducting. The limits of compulsion during the examination.

19. Investigative experiment. Grounds and procedure.

20. Search: concept, grounds. The difference between a search and a seizure. Procedural registration of the decision to conduct a search. Searching a home. Conditions for conducting a search in a home without a court's permission. Production procedure. Personal search.

21. Notch. Grounds and procedure. Seizure of postal and telegraph correspondence.

22. Seizure of postal and telegraphic items.

23. Control and recording of negotiations. Grounds and procedure for production.

24. Interrogation of the witness and the victim. Foundations. The order of summons and interrogations. Features of calling and interrogating a minor.

25. Face-to-face confrontation. Grounds and procedure.

26. Presentation for identification, its types. Grounds and procedure.

27. Verification of testimony on the spot.

28. Obtaining samples for comparative research. Foundations and order.

29. Production of expertise. Grounds and procedure for appointment. Additional, repeated, commission and complex expertise. Expertise production in the expert institution and outside it. The rights of the suspect, the accused during the examination. Interrogation of an expert.

30. Other procedural methods of collecting evidence.

31. The essence and significance of bringing in as an accused.

32. Grounds for bringing a person as an accused.

33. The procedural order of bringing as an accused. The form and content of the decision to prosecute as an accused.

34. Interrogation of the accused.

35. Grounds and procedure for changing and supplementing charges.

36. The concept and meaning of the suspension of the preliminary investigation.

37. Grounds and conditions for the suspension of the preliminary investigation. The procedural procedure for the suspension of the preliminary investigation.

38. Search for the accused. The procedure for declaring the accused on the wanted list. Deciding on the choice of a preventive measure and the transfer of the accused when he is put on the wanted list. Actions of the investigator, body of inquiry upon detection of the wanted accused.

39. Grounds and procedural order of renewal of preliminary investigation.

40. Sending a criminal case to court with an indictment. Foundations. Actions of the investigator and prosecutor in connection with the referral of the case to the court with the indictment.

41. Indictment. Concept and meaning. Form and content of the indictment. The order of presentation of evidence in the indictment.

42. Indictment. Concept, essence and meaning. The procedural form of the indictment.

43. Termination of a criminal case. Concept, grounds, their classification, prevalence of application, procedural order.

44. The essence, meaning and objectives of the stage of appointment and preparation for the trial. Questions to be clarified in a criminal case submitted to the court. Basis for making decisions. Form, content and binding nature of the judge's ruling.

45. Preliminary hearing, grounds and general procedure for its conduct. Types of decisions made by the judge at the preliminary hearing.

46. ​​The essence, meaning and objectives of the stage of the trial. General conditions of legal proceedings.

47. Limits of the trial. Grounds and procedure for postponement of proceedings and suspension of a criminal case. Immediacy, orality of the trial.

48. The structure of the trial - The preparatory part - The trial - The trial - The last word of the defendant - The decision of the verdict.

49. The concept of a sentence and its meaning. The order of sentencing. Content and form of the sentence.

50. Types of sentences. Grounds for a conviction or acquittal.

51. Features of the trial before the magistrate. Abbreviated judicial investigation, its consequences. Sentence of the magistrate.

52. Features of the trial by jury.

53. The concept, objectives and significance of the proceedings in the court of second instance. General conditions of appeal and cassation appeal of court decisions that have not entered into legal force.

54. The concept, objectives and significance of the stage of appeal proceedings as an independent stage of verification of the legality and validity of sentences and decisions of the magistrate. Features of the appeal.

55. The concept, objectives and significance of the stage of cassation proceedings. The main features of the appeal.

56. The procedure and terms of cassation appeal, protest and consideration of cases in the court of the cassation instance.

57. Grounds for canceling or changing the sentence.

58. The concept, tasks and meaning of the stage of execution of the sentence.

59. Entry of the judgment into legal force and its execution.

60. Issues resolved by the court at the stage of execution of the sentence. The procedural procedure for the court to resolve issues related to the execution of the sentence.

61. The concept of the task and the meaning of the stage of supervisory proceedings.

62. Procedure for supervisory proceedings.

63. The concept and meaning of the stage of reopening cases in view of new or newly discovered circumstances.

64. Reasons, grounds, procedure for initiating proceedings and investigating new or newly discovered circumstances.

65. Reopening by the court of cases due to new or newly discovered circumstances.

66. The essence and significance of the procedural features of juvenile proceedings.

67. Features of consideration and resolution of applications and reports on crimes of minors and the production of preliminary investigation.

68. Features of juvenile proceedings in the court of first instance.

69. The essence and significance of the proceedings on the application of compulsory medical measures.

70. Features of the production of preliminary investigation in cases of socially dangerous acts of the insane and persons who fell ill with mental illness after committing a crime.

71. Proceedings in court on the application of compulsory medical measures.

72. International cooperation in the field of criminal proceedings

The study of the criminal procedure in Russia is hardly possible to imagine without referring to the relevant criminal procedure institutions of the most developed foreign countries. Russian legislation on criminal proceedings has historically been influenced by continental criminal proceedings, in particular the criminal procedure codes of France and Germany. In turn, it also influenced European criminal procedure legislation.

Russia's accession to the Council of Europe in February 1996 made it necessary to bring national legislation in line with the principles and standards of the Council of Europe. This is especially important for criminal procedural legislation, which, due to its specificity, most significantly interferes with the sphere of fundamental constitutional rights and freedoms of man and citizen. Western European systems of democracy and law, polished over many decades, are of significant interest for the analysis and use of experience in the legislative and law enforcement practice of Russia in the field of combating crime, ensuring public safety and protecting human rights.

Historically, in a number of developed foreign countries, two types (forms) of criminal proceedings have developed: adversarial and mixed.

Adversarial type of criminal procedure

The adversarial rot of the criminal process is typical for the countries of the Anglo-Saxon group: Great Britain, USA, Canada and some others. Let's list the main features of this type of criminal procedure.

  • 1. Legal proceedings are a dispute between the accused and the prosecutor (victim) before an impartial judge deciding the question of guilt and punishment.
  • 2. The parties before the court are procedurally equal in rights and obligations, have sufficient initiative to collect evidence in their favor.
  • 3. At the stage of initiation of the case, in the collection of evidence of guilt, in maintaining the prosecution in court, the leading role belongs to the state prosecuting authorities (department of the Director of Public Prosecutions of Great Britain, American attorneys). The Attorney Service in the United States is a system of law enforcement agencies operating at various levels (federal, state and local) that provide legal advice to the government, represent it in the courts and act as a prosecution, prosecution and investigation service by prosecuting individuals, maintaining charges in the courts.
  • 4. Criminal procedural activity begins with the arrest of the suspect without a court order (warrant) or the submission of materials about the crime to the magistrate. The magistrates' courts are conventionally called lower courts, or courts of the first level. They have many names: magistrates, police, district, municipal, district courts, county courts, courts of limited jurisdiction. The Magistrates' Court decides on the merits of a minor public hazard case.
  • 5. The criminal procedure is divided into four stages:
    • a) the decision in court of issues related to the application of measures of procedural coercion;
    • b) preliminary proceedings in court;
    • c) consideration of the case by the court on the merits;
    • d) appeal proceedings.

Mixed type of criminal procedure

Let's consider the fundamental differences between the mixed, or continental, criminal procedure from the adversarial, Anglo-Saxon one.

  • 1. The dominant role in pre-trial proceedings is played by the overbearing and covert activities of the preliminary investigation bodies. The rights of the defense attorney during the inquiry and investigation are limited. Pre-trial proceedings, therefore, are considered the most important part of the criminal process. In the states of the Anglo-Saxon system of law, it is assumed that the criminal process begins from the moment the criminal case is submitted to the court.
  • 2. The driving force behind the initiation of the criminal process is the "public interest". The personal discretion of officials in the criminal proceedings of continental countries is minimized, while in the Anglo-Saxon model of criminal proceedings, the private initiative of the parties has always been decisive. Public prosecution (criminal prosecution) is entrusted to a special body of the prosecutor's office, whose representatives are obliged to take part in the trial.
  • 3. The main source of continental criminal procedural law is laws, as a rule, criminal procedural codes, which achieve normative certainty, the regulation of criminal procedural relations at the legislative level. The value of the judicial precedent is limited, reduced mainly to the interpretation of existing legal norms.

Since the proceedings are subject to the principles of publicity, orality, directness and adversarial nature, there is an appeal review of court judgments.

Since the criminal proceedings in Austria, Germany, Italy, Spain and other countries are, on the one hand, investigative, inquisitorial, and, on the other hand, adversarial in court proceedings, it is called mixed.