Comparative Characteristics of Summarily
Рубрика: 1. Общие вопросы политических наук
Дата публикации: 27.06.2016
Статья просмотрена: 4 раза
Юсуфалиев О., Мисрбекова М. М. Comparative Characteristics of Summarily [Текст] // Вопросы политической науки: материалы II Междунар. науч. конф. (г. Санкт-Петербург, июль 2016 г.). — СПб.: Свое издательство, 2016. С. 8-9. URL https://moluch.ru/conf/polit/archive/200/10792/ (дата обращения: 19.03.2018).
In carrying out the state of judicial reform, greatly increased interest in the positive experience of the organization and regulation of legal justice, formed in foreign countries. In recent years, increased interest is the legal nature of a special procedure for decision-making when the defendant agrees with the accusation. This institution is a form of summary proceedings , although in many countries, the procedure for the implementation of this institution is different, but the goal is one, lies in the elimination process, delaying the trial of some criminal cases, which, of course, leads to more effective implementation of justice whole.
The trial with the consent of the accused as charged is a form of summary proceedings, as stated above, it is reflected in the legislation of countries such as Spain, France, Italy, Germany, the United States [2. S. 37–38] Russian Federation (since 2001) and other. Countries, however, the order of application of this form of justice is different. Let us consider each of them closely.
Institute for summary judgment, and there is in Spain [3. S. 37–39], it is virtually the only country, where you can completely avoid the examination of evidence at the court hearing, if the defendant agrees with the indictment. The accused may express their conformed (consent). Possibility of application of this agreement provides:
− At the end of the preliminary investigation (Article 655 of the CPC of Spain.);
− As part of the preparatory court hearing (Article 689.2 of the CCP Spain.);
− even after examining evidence in cases involving juries (Art. 50 of the juries).
Defendant Application for a verdict without trial may be made to them in the course of the preliminary investigation, as well as directly in the court (at the preliminary hearing). The US plea deal may be concluded only on the pre-trial stage of criminal proceedings. According to Art. 314 Code of Criminal Procedure the court may not consider the petition of the accused about the sentence judgment without trial of offenses falling within the law to very serious, whereas in the US plea bargain with the defendant can be struck. In accordance with the provisions of Chapter. 40 Code of Criminal Procedure the prosecutor is not involved in the formation of the decision on nomination of the accused before the court an application for a verdict without trial under the general procedure. Not is also any written or oral agreement between the prosecutor and the prosecution regarding the conditions of the consent of the accused to nominate them to such a request. The solution to this problem — the result of the good will of the accused. The deal is the plea is only possible on the basis of a written agreement between the prosecutor and the accused (the defense). It is difficult to agree with the above provisions, since the plea deal, indeed the first proposal comes from a public prosecutor, but the last word is always the accused. It can be concluded that the difference lies in the fact that the initiative to enter into a plea bargain in the United States belongs to the public prosecutor, and in the Russian legislation the request for a special procedure for the trial of the accused comes from the outset. In Chapter. 40 Code of Criminal Procedure of assignment to the accused, I agree with the accusation and filed a motion for judgment of sentence without trial in the general order, shall be allowed only within the boundaries of which are clearly laid down in hours. 7, Art. 316 of the Code . In the US, the base amount, types and limits of concessions guilty at the conclusion him a plea bargain is not legally defined, this question depends entirely on the discretion of the prosecutor and the court.
Institute a special order of the proceedings, as already mentioned, it guarantees the accused a decrease of punishment to 1/3 of the maximum term or scope of the most severe penalty under the Criminal Code for the crime (chg. 7, Art. 316 Code of Criminal Procedure). The conclusions of a plea bargain reduce the possibility of a fixed punishment the accused does not provide.
The principal difference of the institution expressed in which one of the officials of the criminal justice agencies authorized to implement the Institute verdict without trial under the general procedure and plea bargaining. In Russia, the question of the application of this institute is located in the exclusive competence of the court. As can be seen from the contents of Art. Art. 314–316, Code of Criminal Procedure, the investigator and the investigator may only take from the defendant an application for a verdict without trial, the same consideration and satisfaction (deviation) of the petition of the accused is the prerogative of the court. In the US, plea bargain is, as already mentioned, the pre-trial stages of the criminal process, and without the participation of judge. V. N. Makhov, Peshkov [5. P. 208] indicate that the court at the conclusion of a plea bargain has two responsibilities: first, the court may participate in the process of negotiations in order to ensure a fair result, and secondly, the court must establish that the accused consciously agrees to the deal on plea if he voluntarily goes to this step.
Institute a special order of the court decision does not allow narrowing of the charges, his requalification with more serious to less serious, because the accusation does not exclude individual counts, and so on. Whereas the plea bargain allows a wide margin of discretion of the prosecutor, who can arbitrarily change as the qualification of the crime, and the amount of the charges. The above may lead to the following conclusion: It is used in many countries of simplified procedures in criminal cases, although they differ in the process of implementation, but they have in common. For example:
− The purpose of the application is to simplify the proceedings, by reducing the loading of ships, as well as increasing the disposition beginning of the criminal process, giving the accused the right to act on their own and express their will;
− Application of simplified production mainly in the resolution of cases of petty crime . (Do not pose a great danger to society, less serious);
− A prerequisite the recognition of guilt by the accused — or «transaction» would not make sense.
Foreign experience shows that discretionary principles in criminal proceedings are possible. This practice is considered to be established overseas.
It should be noted that the criminal procedure legislation of the Republic of Uzbekistan does not contain provisions on the institution of the plea agreement, however, the criminal legislation of the Republic of Uzbekistan provides a kind of «agreement» of the accused with the state on the pre-trial stage, so we give an example of one of these cases, according to article 66 of the Criminal Code of the Republic of Uzbekistan may release a person from liability in connection with active repentance guilty, if the person has committed a crime, not representing big public danger or less serious crime if it is after the crime was completed to make amends for the harm, pled guilty and actively It helped solve the crime. This article also 66–1 UK the Republic of Uzbekistan provides for a person in the commission of these crimes in this article, can be exempted from criminal liability if he has committed a crime, not representing big public danger or less serious crime, pleaded guilty, and reconciled with the victim to make amends the harm caused. The similarity of the provisions discussed with the plea agreement is as follows:
− Recognition of the defendant's guilt;
− Application possible for minor crimes;
− solaria victim.
The main difference between the plea agreement in court proceedings and the above agreements, the accused and the state is first and foremost the fact that in the latter case, the termination of the criminal case, and the application of «plea agreement» accused (and in the court of the defendant) shall be punished on the basis of sentence. This suggests that the institution of reconciliation is a kind of one of the «types of the plea agreement».
If this kind of «agreement» is possible in the pre-trial stage, we cannot exclude the possibility of applying the simplified procedure during the trial stage and possibly drawing on foreign experience of the existing fix in my mind the so-called «gap» of the criminal procedure legislation.
- These abbreviated forms of criminal proceedings of material fixed legislators in many countries, eliminating the jurisprudence of the increasing flow of cases through formal recognition of the transactions.
- See pp.: Temin plea bargain or reduced forms of justice: what scenario will Russia? // Rossiyskaya justice. – 1998. – № 10. S. 37–38.
- See pp.: Teiman plea bargain or reduced forms of justice: what scenario will Russia? // F. Russian justice. – 1998. – № 10. – S. 37–39.
- If the judge concludes that the charge to which the defendant has agreed, rightly, supported by evidence collected in the criminal case, he decides the conviction and the defendant shall appoint a punishment that cannot exceed two-thirds of the maximum term or size of the most severe penalty provided for the crime.
- See V. N. Makhov, Peshkov. US M. A. Ugolovny process (pre-trial stage) textbook: «Business school Intel-synthesis»: 1998. – S. 208.
- With the exception of «plea bargaining» in the United States, as an agreement is possible with the person accused of Grave Crimes.