Сибирский федеральный университет

Тип публикации: статья из журнала

Год издания: 2015

Идентификатор DOI: 10.17150/1996-7756.2015.9(3).560-570

Ключевые слова: Criminal liability, Detention, Evidence, Investigating magistrate, Investigation mistakes, Judicial supervision, Presumption of innocence, Prevention, Public prosecutor’s supervision

Аннотация: The paper presents the authors’ view on three types of judicial supervision in Russian judicial procedure that are based on the Constitution of the Russian Federation and Procedural Law: «arrest», «procedural» and «control by complaints». The goal of this supervision is to prevent crimes and other offenses during the preliminary investigation and court trial of criminal cases. They present a comparative legal analysis of some elements of the institute of judicial supervision in Russia and Germany and pay special attention to the details of court’s work at the pre-trial stages in German criminal process that could be used in Russian criminal court procedure. The German concept of «judge for inquiry» presents the idea of introducing in Russia the procedural figure of investigating magistrate who would not be organizationally linked to the courts of general jurisdiction. The authors also examine some rights of Russian and German prosecutors. They stress such rights of German prosecutors as the initiation of criminal prosecution, procedural supervision of police inquiry, indictment. The authors present a comparative analysis of the key idea of pre-trial agreement on cooperation between the accused and justice in Russia (the prosecutor makes an agreement with the accused) and Germany (the court makes an agreement with the accused). A complex overview of the institute of judicial control in Russia and Germany allows to discuss its prevention significance for both the restriction of crime and the identification, elimination and prevention of investigation mistakes in criminal cases. The authors show the link between the «arrest» type of court control in pre-trial stages with the realization of criminal liability after the court decision comes into force. A classical view of this criminal law situation allowed the authors to speak in favor of a well-balanced approach to placement in detention and extending detention before the court’s judgment, which presupposes the use of a sophisticated criminal procedure for the court to decide on the detention of a suspect, accused or defendant person. At the same time, the authors do not preclude that the accused could be arrested before criminal liability is realized, if it is necessary to counteract criminal offenses, prevent crimes or other violations of law by the accused, even though the presumption of innocence is in force. © 2015, Baikal National University of Economics and Law. All rights reserved.

Журнал: Criminology Journal of Baikal National University of Economics and Law

Выпуск журнала: Vol. 9, Is. 3

Номера страниц: 560-570

• Тарбагаев Алексей Николаевич (Сибирский федеральный университет)
• Назаров Александр Дмитриевич (Сибирский федеральный университет)

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