Criminal proceedings of foreign countries. The overall characteristics of the criminal process of some developed foreign countries

Criminal Process France. general characteristics criminal procedural law, its subjects. Basic features litigation. Preliminary investigation. Characteristics of judicial stages and production in a simplified manner.

The criminal process of Germany. Characteristic features of criminal procedural law and law enforcement system. German preliminary investigation model. Features of judicial stages and production in a simplified manner.

Criminal Process of England and USA. The overall characteristics of the criminal procedural law and its subjects. Features of evidence law. The main features of pretrial, judicial and simplified production.

Regulatory legal acts

1. The Constitution of the Russian Federation (taking into account the amendments made by the laws of the Russian Federation on amendments to the Constitution of the Russian Federation of December 30, 2008 No. 6-FKZ, dated December 30, 2008 No. 7-FKZ) // Wg dated 01.21.2009. №7.

2. The Criminal Procedure Code of the Russian Federation of November 18, 2001 No. 174-FZ (with all subsequent changes)

Main literature:

1. Smirnov A.V. Criminal Process: Textbook / A.V. Smirnov, K.B. Kalinovsky. - 5th ed., Pererab. and add. M.: Norm, 2012.

2. Criminal procedural law: actual problems Theories and practices. Tutorial for undergraduates. / Answer ed. V.A. Lazarev, head of auth. Col-Va A.A. Tarasov. Moscow: Yeraight Publisher, 2012.

3. FUNITSKY I. Ya. The course of criminal proceedings. St. Petersburg, 1996.

4. Cheltsov-Bebutov M. A. Course of criminal procedure law. St. Petersburg, 1995.

Additional literature:

1. Aparova T.V. Courts and trial of the UK. M., 1996.

2. Bobotov S.V. Justice in France. M., 1994.

3. Guzysenko K.F., Golovko L.V., Filimonov B.A. Criminal process of Western states. M., 2001.

4. Kalinovsky K.B. Criminal process of modern overseas states. Tutorial. Petrozavodsk. 2000.

5. Makhov V.N., Peshkov M.A. US criminal proceedings (pre-trial stages). M., 1998.

6. Criminal Procedure: Tutorial 3rd Ed. / Answer. Greenenko V., 2012.

7. Criminal procedural law: Actual problems of theory and practice. Tutorial for undergraduates. / Answer ed. V.A. Lazarev, head of auth. Col-Va A.A. Tarasov. Moscow: Yeraight Publisher, 2012.

8. Criminal process. Textbook for universities. Baranov A.M., Bulatov B.B. 3rd ed. per. and add., M.: Publishing House Yurait, 2012.

9. Criminal Procedure: a textbook for bachelor. Borev V.P., M.: Publishing House Yurait, 2012.

10. Filimonov B.A. Fundamentals of the criminal process of Germany. M., 1994:

Methodical instructions

Curriculum

1. The overall characteristics of the criminal process in modern foreign countries.

2. Criminal Process England.

3. US criminal process.

4. The criminal process of Germany.

5. Criminal Process France

In France, the main regulatory acts containing the norms of criminal procedural law are the Declaration of Human Rights and a citizen of 1789, the Constitution of 1958, the Criminal Procedure Code G. and other dependencies on the category of criminal act: crimes (the most serious ), offense, offense (the least hard) proceedings in the case has its own characteristics. In the most detailed, they are considered L.V. Head in the textbook "Criminal Process of Western countries".

The production in any criminal case begins with the inquiry, after which, if there is grounds, the prosecutor initiates criminal prosecution and on cases of misconduct and offenses transfers it to a court consideration into a correctional or police court, respectively. After initiating a criminal case about a crime, it is transmitted for production preliminary investigation Investigative judge. At the end of the preliminary investigation, the investigative judge sends the case to the prosecutor for familiarization, and then if there are grounds - to court. The trial of criminal cases of crimes is made by the court of assisions. For each category of business - about crimes, misconducts and offenses, there are opportunities for revising court decisions in appeal and cassation.

The main sources of the FRG criminal procedure law are the FRG Constitution of 1949, the FRG Criminal Procedure Code of 01.02.1877, as amended by 07.04.1987, with subsequent changes and additions, the Law on Judication of 1877 as amended by 09.05. 1975, the law on juvenile courts of 1974 and some others. The decisions of the Federal Constitutional Court and the Supreme Federal Court of Germany play an important role in regulating criminal procedural relations.

The stages of criminal proceedings in the German criminal process are: preliminary investigationproduced in the form of inquiry; The initiation of public accusation by the prosecutor by sending an accusatory act to the court; Tradition to the court; trial; verification of legality and validity of the court decisions that have not entered into legal force (in the order of appeal and auditing production); Renewal of cases for newly discovered circumstances.

The Criminal Procedure of England consists of the following stages: 1) police actions to collect information, which can be the basis of evidence, as well as on the application of coercion measures to a suspect in order to ensure it to attract it to criminal responsibility (police investigation), formal charges; 2) the transfer of indictments to the royal persecution service; 3) preliminary consideration of the case in the Magistrate Court; 4) the proceedings of the case on the merits in the Magistrate Court or Court of Crown; 5) appeal production.

In the Criminal Procedure of England, which has a contestable design, there are no stages of initiating a criminal case and a preliminary investigation in the understanding of Russian procedural science. This is primarily due to the fact that general rule In the process of pre-trial production, the evidence necessary to solve the case is not formed. Police only identifies and records information, which in the future when performing certain procedural actions can be the basis for the formation of evidence. Thus, the protocols of police interrogation of witnesses (under the concept of which accused and victim) do not have the force of evidence. The evidence is only the testimony of a witness, the data in court. From this rule there are a number of exceptions. For example, as certain conditions It is allowed to use the accusation of guilt by the accused, made in the pre-trial stages, if he does not recognize himself in court proceedings.

In the process of police investigation, the police must obtain a permit for the production of actions that limit the rights of the individual: arrest, searches, application of the deposit.

The main sources of US criminal procedure are the US Constitution 1787; Bill on Rights of 1791 - Ten amendments to the US Constitution; judicial precedents, among whom are of particular importance to solutions for specific cases of the US Supreme Court and Supreme Courts of the States; statutes; Guidelines for the courts published by the US Supreme Court and the Supreme Courts of the States, as well as the Federal Commission for the appointment (for example, sentence guidelines). The legal system of the United States is characterized by dualism. This is expressed in the parallel existence of the federal legal system and the state legal system. Accordingly, the judicial system is also built. At the head of the federal judicial system there is a US Supreme Court, further on the downward - appeal courts and district courts. In each state there is a Supreme Court of the State and District Courts, in some states, appellate courts as an intermediate link. The state of the state is the State Supreme Court, and not the US Supreme Court. Similar dualistic structures of criminal prosecution authorities are built: police and prosecutors.

Questions for self-control:

1. The overall characteristics of the France's criminal process.

2. The overall characteristics of the German criminal process.

3. The overall characteristics of the Criminal Procedure of England and the United States.

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Introduction

In the conditions of the current reform of Russian criminal procedure law, the study of criminal proceedings of developed foreign countries acquires particular relevance. At all times, England and France were in the field of criminal legislators for the majority of national legal systems. It is not an exception and development of the criminal process in Russia, who experienced the influence of foreign orders, ranging from the reform of 1864 (when the Napoleon Napoleon Code of 1808 was based on a domestic proceedings) and ending in today's projects of the Code of Criminal Code of Criminal Procedure ).

The study of this topic is also due to the fact that with all the increasing interaction of various states in the fight against crime, a specialist receiving higher legal educationCan not be a professional if his knowledge is limited exclusively by the framework of domestic proceedings. The reform of the criminal process and the needs of international cooperation determines the increasing role of the comparative method in criminal procedure science.

The purpose of our course work is to study and analyze the criminal process of foreign countries.

To achieve goal, we chosen the following tasks:

Consider the criminal process of foreign countries at the present stage

Analyze and compare the criminal process of foreign countries

Consider Criminal Process England

Consider the criminal process of the United States

Consider the criminal process of France

Chapter 1. Theoretical foundations of criminal proceedings in foreign countries

1.1 Criminal Process of Foreign Countries at the Contemporary Stage

Legal reform started in the 60s. Our century and continued to date, to some extent touched on almost all sectors of modern foreign law. However, a very special, and in some respects, the exceptional nature of the reform acquired in the field of criminal criminal procedure law. This is due to the fact that these branches of law are the most effective tool of the state in the execution of a law enforcement function, which is especially important in crime growth.

Reformed proposals and changes made to laws include those that provide for the application of the most operational and decisive measures, deeply affecting the rights and legitimate interests of citizens, among other things, the formal restriction of the right to silence, the imposition on the accused duty to prove their innocence.

Great preparatory work on the scientific support of the reform showed that law enforcement Criminal justice requires significant material costs that from year to year increase. According to English lawyers, the cost of production in one complex criminal case often reaches 50,000 f. Art., And for individual cases approaching 250,000 f. Art. Under these conditions, the reform of the criminal procedure law, hopes for such an organization of the criminal proceedings, which, due to the simplification of production, even by substantial limitation of procedural guarantees would give a certain economic effect 2. Guzenko K.F. Criminal process of the main capitalist states (England, USA). Issue 1. University of Friendship Nar. M., 1969 ..

The reform of law cannot be considered as a regional phenomenon characteristic only for some individual states. Reformed trends are clearly traced within the continental legal system in France, Germany, Italy, Spain and other states. In the states of the Anglo-Saxon system of law - England, the USA, etc. - the reform is of particular complexity and contradictory due to the peculiarities of the rule-making function of the court, it is determined by the relationship with their legislation. Here, the need for reform is caused by its not only social motifs and considerations, but also very significant factors of a purely legal nature.

The uncontrolled accumulation of judicial precedents, inconsistency and contradictions of their content led to the emergency uncertainty of criminal procedural law. However, the further uncontrolled growth of non-systematic and internal contradictory regulatory material could lead to the deformation of the principal principal principle of the Anglo-Saxon criminal procedure. This gave rise to a natural desire to put on more rigid centralized control. Further development of the norm's rules.

In the 80s. The rate of development of legal reform increased significantly, which manifested itself, in particular in England, the publication of such major laws such as the law on criminal justice of 1982, a law on charge of 1985, the Law on Criminal Justice of 1988, which to a certain extent consolidated the criminal The country's process.

In theoretical plan of the dominant in modern Western jurisprudence, especially Anglo-Saxon, is the doctrine of control over crime. This concept provides for the limitation of criminal procedure guarantees of rights and legitimate interests Personality, justifies the admissibility of violating the legitimacy by law enforcement agencies in the name of strengthening the fight against crime, gives the evidence of the testimony of anonymous witnesses, the results of psychophysiological testing on a polygraph, the data of the unchalance electronic observation. This doctrine is characteristic of this doctrine, the shift of emphasis with relatively strictly resolved judicial procedure norms to predominantly outproduced police activities. And this entails an increase in the role of the police in the criminal process.

It is necessary to pay attention to the fact that many provisions of the doctrine of control over crime have recently obtained their regulatory consolidation within the framework of criminal procedure legislation. In October 1984, US President signed a law on crime control; In the same year, the Law on Police and Evidence in Criminal Affairs was adopted in England. Similar laws that implement the ideas of the doctrine of crime control are adopted in other European countries. 6. Mikhenko M., Shibiko V. Criminal Procedure Law of Great Britain, USA, and France. Kiev. 1988.

At the same time, it should be noted that the current development of the criminal proceedings in these countries indicates that the realization of universal values \u200b\u200bis paid much attention. Thus, within the framework of the US reform, the so-called poverty right is developing, thanks to which financially insolvent defendants get the opportunity to use the services of a lawyer for free; In England, property values \u200b\u200bwere eliminated for jury; In France, improved criminal liability for illegal detention; In Germany, measures were taken to the fencing of justice from the influence of the press, pressure groups.

criminal wanted police judicial

1.2 Comparative characteristics of the criminal process of foreign countries

In the countries of Europe, the stage of initiating a criminal case does not attach much importance, more precisely, such a stage is not provided at all. For example, the English lawyers involved in criminal proceedings are unknowns such specially isolated and having their specific tasks of stage, as the stage of initiating a criminal case and a preliminary investigation stage "Guzenko K.F., Golovko L.V., Filimonov B.A. . Criminal process of Western states. M., 2001. P. 45 ..

In the countries of the Anglo-Saxon Group "The police produces initial investigative actions, detention and interrogation of suspects, victims, witnesses, searches, collecting evidence of guilt" Bulatov B.B., Nikolauk V.V. Criminal Procedure of Foreign Countries. Omsk, 1999. P. 6. At the same time, the police in England is an organ executive powerauthorized to independently make procedural decisions in connection with the investigation of the crime, in contrast to the Russian criminal procedure, where independent procedural decisions can take only the investigator (the investigator), which the law is authorized to endure decisions during the investigation on the detention of the suspect, the manufacture of the search for the process participants etc. Police officers (as an analogue of the police) do not have such powers, they are in some cases only by performers on behalf of a person who produces an investigation.

The history of the Criminal Procedure of England shows that "the pre-trial actions of the police or other bodies engaged in the preparation of materials of criminal cases to the court proceedings for mostly were regulated by laws from the field of administrative and legal (police) legal relations, and more often - various kinds of subtitle acts issued by departmental Lines.

In the Russian criminal procedure legislation, law enforcement officers are regulated mainly by the norms of the Criminal Procedure Code of the Russian Federation, but also now, as before, there are a large number of departmental acts that regulate the actions in detail authorized persons At various stages of the process.

The history of the English police is relatively short, it leads its own countdown from the first third of the nineteenth century. "The laws of England is not regulated by the police on the collection of crime materials." Sergeev AB Preliminary investigation in European countries and the United States. Chelyabinsk, 1998. P. 34. Thus, the detective in writing and officially does not officially request the various bodies of the necessary information, as the police officers do in Russia and by the time of the initiation of the criminal case often transmit a huge number of different documents to the investigator. In England, the principle of competitiveness of the process, according to which "evidence is provided by interested parties directly to court." This greatly facilitates the work of a policeman; Of course, he can request any information if it considers it necessary, but it is not obliged to express this report or in another document and apply to the material.

"Police, having established the fact of the crime, in non-compudal forms collects actual data that could convince the court in the need to take measures for procedural coercion to attract a specific person to criminal responsibility" Guzenko K.F. The criminal process of the main capitalist states. M., 1969. P. 72 ..

It is respect for the nature of the actions of police officers, their activities are concrete: efforts are aimed at proving that it was the detainee who made this or that act. If the court is convinced of the guilt of the person, the measures of procedural coercion apply to the latter, otherwise the prosecutor sends the material to refine. No one initiates a criminal case on the fact of the perfect crime, and "the police are only one of the possible subjects of the charges" Sergeev AB Decree. op ..

According to the law "On Criminal Justice and public order"The powers of the police are somewhat expanded in comparison with previously existing legislation. For example, a policeman has the opportunity to consider a suspect or accused of guilty if the latter refuses to submit evidence, respond to questions and otherwise not contribute to the investigation. This is the exact opposite of the norms of Russian legislation, in particular Art. 51 of the Constitution of the Russian Federation, according to which the person has the right not to testify against itself, its loved ones, etc. Moreover, according to the norms of the Criminal Procedure Code of the Russian Federation, the content of Art is suspected and accused during the criminal procedure. 306 (307) of the Criminal Code, therefore, the suspect (accused) is not warned of criminal responsibility for false testimony that it can give in its protection. And even with this situation, some citizens believe that in Russia there is not enough democratic and humane legislation, and the legislators go along the way to expand the rights of suspects (accused) without thinking that it seems that all this can turn into subsequently. And law enforcement officers consider (and harmoniously) that such a situation may lead to chaos, since the mentality of the Russian people is such that the usual ordinary citizen is unable to distinguish democratic principles from anarchy.

Police arrest is a short arrest from 24 to 96 hours (the deadline for arrest). Usually, the police arrest without a court sanction lasts 36 hours, after which the detainee is delivered to the judge, which may decide on the extension of arrest or the release of the detainee in the absence of grounds for detention.

There is some similarity with russian practice In that, "issuing permits for arrests, searches, making a decision on the tradition of the Court, the judges of the Magistrates take part of the responsibility for the criminal prosecution" Smirnov A.V. Competitive process. St. Petersburg, 2001. P. 147 ..

Refusal to criminal prosecution as one of the decisions made at the end of the police investigation, the police do not make any procedural document. Moreover, this decision "does not lie down any procedural control on the court, nor from the Royal Prosecution Service" Guzenko K.F., Golovko L.V., Filimonov B.A. Decree. cit. P. 108 ..

As for the termination of the criminal case (criminal prosecution) in Russia, then, according to the norms of Art. 212-214 Code of Criminal Procedure, both of these decisions are made by a person who produces an investigation into the relevant decision, and, according to Art. 214 Code of Criminal Procedure, the prosecutor has the right to cancel the decision to terminate the criminal case (criminal prosecution), if he believes that the decision is made illegally or unreasonable. In turn, interested parties can file a complaint and the prosecutor's office, and to the court for decisions taken by the investigator, the investigator or the prosecutor.

"Having established a person who committed a crime and concludes that there are sufficient data in order to substantiate the need to attract this person to criminal liability, the police appeals to the Court of Magistrate with the so-called information." Guzenko K.F. Decree. cit. Pp. 74. In this case, it is traced that the policeman, only by collecting the necessary information, allowing him to consider a specific person responsible for the commission of a crime, refers to the judge with the materials.

The English criminal process, unlike the Russian, is not divided into two parts - a preliminary (pre-trial) investigation and proceedings in court. At the same time, another feature is that "English pre-trial production is permissible to compare only with continental inquiry, but not with a preliminary investigation" Guzenko K.F., Golovko L.V., Filimonov B.A. Decree. cit. Pp. 99 .. A police investigation in England is a "stage of pre-trial production, during which the police, having received information about the crime, is undertaking actions aimed at establishing a person who has committed, collecting against of this person accusatory evidence, as well as the application in relation to it if necessary measures of procedural coercion "there.

Thus, all the activities of the police are aimed at identifying the person who committed a crime and collect against him the evidence base. In Russia, all crimes are investigated on a pattern: when collecting materials, it is important not to be mistaken in the preparation of protocols and acts, to ensure the participation of understandable, as if fixed on paper facts are more important than the identity of the criminal. Anyway, the English police are less inclined, if you can put it, to formalization, and all of their work is directed home: they see their goal, therefore, their activities are more effective from a practical point of view.

The law for the English policeman is concise, the policeman, "Radiously considered Rather, rather than an official hosting independently responsible procedural decisions in the investigation of the criminal case, is guided in its daily activities not by law, but in the main crop of practical rules, i.e. departmental acts that are subjected to constant adjustments by directly entering them by the leadership of the Ministry of Internal Affairs of Changes and Additions or by publishing instructions, circulars, etc. " Ibid. P. 100 .. This seems to be more practical and effective, given, in which rhythm employs police. The norms of legislation require the approval of senior officials, and departmental acts most fully and accurately reflect the rules of activity, i.e. More specifically regulate the actions of police officers in one way or another.

In France, the prior investigation production is engaged in the judicial police, which is the main body of the police inquiry. It initiates the criminal prosecution of the Prosecutor of the Republic on the basis of the materials of a police or gendarme investigation, in connection with the preparation of the protocols of administrative bodies, on the complaint of the victim or on the basis of the materials collected by the prosecutor. In addition, the victim can initiate criminal prosecution by presenting a civil action.

The basis of criminal procedure legislation is the Criminal Procedure Code of France, adopted in 1958.

In addition to the judicial police, investigative courts and prosecutors are engaged in the investigation of crimes and the prosecutor's office, it all depends on the severity of the crime. The police have the authority to conduct an inquiry, and the investigative judge conducts a consequence after the police inquiry. At the same time, the investigation is carried out only on cases of grave crimes. Thus, the investigative workers are not overwhelmed by cases of minor crimes.

"According to the current Criminal Procedure Code of France, the obligation to establish the circumstances of the crime is assigned to the court, the prosecutor's office, the judicial police." Sergeev AB Decree. cit. P. 13.

The Minister of Justice of France may instruct the prosecutor to bring to criminal responsibility, but does not have the right to demand not to initiate criminal prosecution. Currently, a draft reform is considered in relation to the legislative consolidation of the principle of non-interference of the Minister of Justice into specific cases while maintaining only the right to issue a common circulators.

The procedural persons of the judicial police are officers and ranks of gendarmerie, commissioners and police officers of the state security bodies, whose duties include the establishment of a violation of the criminal law, collecting evidence, the search for persons who have committed a crime until the consequence has begun (Art. 14 of the Code of Criminal Procedure ) There is also ..

The judicial police consisting of police and gendarmes operates under the leadership of the prosecutor of the republic, the police supervision also produces the General Prosecutor, and the Investigation Chamber of the Appeal Court may impose on police officers disciplinary recovery. Thus, the district police of the appellate court is under the supervision of the prosecutor, and in a disciplinary attitude controlled by an indictment chamber "there.

According to the laws of France, the Prosecutor of the Republic follows the principle of feasibility of initiating criminal prosecution, and not the principle of legality. If the subject of the offenses is not identified or collected evidence, the prosecutor refuses to initiate criminal prosecution. This is advisable and effectively, in contrast to the Russian legislation, where cases initiated on the fact of a perfect crime are investigated, and not in connection with the establishment of a person who committed it.

Thus, the police in France, collecting the material, directs it to the prosecutor, who, having studied it, or decides on the initiation of criminal prosecution against a particular person, or sends material to refinement. Thus, police officers collect evidence confirming the guilt of the person who committed a crime until the prosecutor is confident that the fault of the criminal will be proved in court completely.

Considering the foregoing, "judicial police officials can only carry out inquiry." However, the judicial police officers can conduct such investigative actions as detention and searches.

The prosecutor can transfer the case directly to the police non-trial court if it is ready for the proceedings. If we are talking about a crime or about a difficult case requiring additional investigationIt can be entrusted with the investigative judge, which, completing investigative actions, or will decide on the termination of the case, or will return it to the judicial instance.

For a rare exception, it is allowed to prove in any way, and the judges decide on internal conviction. At the same time, except for the jury, the judges must motivate their decisions or decrees. The presence of facts and guilty is established by investigation, testimony, interrogations, full-time rates, trips to the place of crime, technical or psychiatric examination. Experts are selected not by the parties, but by magistrates, mainly on the lists compiled by appellate courts and the cassation court. The latter speaks of the desire to conduct an investigation independent of the parties, the parties cannot affect the results of one or another expertise.

The question of the powers of the judicial police of capitalist countries was considered in detail by the Soviet proceduralist A.I. Lubensky who revealed negative consequences Proceeding police officers. So, A.I. Lubensky pointed out that the ruling circles were given police officers, including French, powers to achieve their goals, for example: "Create numerous formations under the full control of the executive authority ... Relieve the police with the most broad powers ... What makes it a very effective gun of ruling circles when protecting Their interests ... Create the appearance of legality when investigating criminal cases by making the procedural form to the preliminary investigation ... "Lubensky A.I. Preliminary investigation on the legislation of capitalist states. M., 1977. S. 12.

In France, the judicial investigator is a second link (tribunal of great institution), appointed by the President of the Republic to the position of investigative judge for a period of three years. The judicial investigator must perform the function of justice, which in the opposite process should be separated from the functions of the charge and protection. The procedural position of the judicial investigator creates real guarantees of its independence from the prosecutor. Nevertheless, the prosecutor has significant powers in the production of preliminary investigation. The result is the following provisions: 1) a preliminary investigation can be started only if the requirement of the prosecutor (criminal claim); 2) The judicial investigator is not entitled to the exeficio personally to begin production, it acts within the limits of the prosecutor's claim. The prosecutor has the right to submit such applications to conduct procedural actions in which he cannot be refused. Meanwhile, the most important thing is that the judicial investigator independent in the investigation is not related to the conclusions of the prosecutor's office and is not limited to the evidence collected. He is entitled to collect evidence by the production of investigative actions. The investigator, taking into account the arguments of the parties, adopts the most important procedural decisions, for example, on the direction of the case, on the use of preventing measures to the accused.

A police officer after committing a crime immediately reports about the reproach of the republic, and then arrives at the crime scene and produces all the necessary actions. The prosecutor controls the production of the police inquiry and implements the function of the charge.

In order to identify the shortcomings in the activities of the employees of the Russian inquiry authority, both with theoretical and practical point of view, we will carry out a small comparative analysis: the initial stage of the Russian criminal process and the inquiry of the US criminal procedure.

On the activities of law enforcement officers who produce the collection of material as part of the inspection, much is said. Let's touch the activities of the Russian criminal investigation officers and the United States Police.

In the United States "Police to obtain the necessary intelligence information, using their capabilities, helping citizens and technical means, exercises with their help operational search activities "Smirnov M.P. Operational search activities for police foreign countries. M., 2001. S. 177 ..

In the United States of America, "Legal acts provide critical executions during operational search activities, rather extensive legal opportunities are sufficiently liable and are used in conjunction with such developed forms of control, as a parliamentary, government, judicial, prosecutorial. P. 179 ..

In Russia, no operational worker has a real opportunity to implement any search event or an investigative action, without waking up the resolution of the higher, supervisory body - the prosecutor's office or the court. In the practice of the author, there is a case when criminal investigation officers made an urgent search at night, as a result of which a huge number of stolen property was seized. The next day, the Interdistrict Prosecutor sanctioned a search, but at the same time she persistently asked not to hold such events in the future.

For comparison: in the United States, "a special agent may independently (without the authorization of the FBI leadership), approve the conduct (continued or renewal) of all new secret operations carried out under the control of the subordinate to the local FBI branch" there. P. 184 ..

In the Russian Federation, private detective activities are currently developed, while in the United States "private detectives and their associations, designed for their contracts, continue to play in criminal proceedings, designed for their contracts to provide the necessary assistance to defenders in a collection of evidence that excuses them. customers or softening responsibility "Guzenko K.F. Fundamentals of the US criminal procedure. M., 1993. P. 27, 28 ..

However, the beginning of the US criminal procedure is not determined by a specific action. K.F. Guzenko, rightly indicates that there are various opinions in legal literature: "... In some authors, the process begins with the creation of an order of arrest (E. Pucumbommer), from the other - from the first actions to collect actual data and the study of the circumstances of the case ( E. Barett), thirdly - with the arrest of the suspect, his interrogation, survey of witnesses and the commission of other operational-search actions (R. Maenend) "ibid. P. 5 ..

Unlike Russian legislation, the United States police activities, which is the main body of the investigation of crimes, on the detection and seizure of evidence for the most part is regulated by departmental acts and precedents.

In the US, it is not a criminal case, but criminal prosecution, i.e. With regard to a specific person, not by fact. Moreover, the initiation of criminal prosecution is almost the monopoly law of the state prosecutor. Apparently, it happened because in the US a criminal case is initiated only if the prosecutor is confident that the conviction of the accused will follow the end of the investigation.

A distinctive feature of the German criminal proceedings is that in Germany, "the obligation to complete the inquiry is entrusted to the law on the prosecutor" Sergeev A.B. Decree. cit. P. 35 ..

Unlike Russian criminal proceedings, in Germany, the initiation of criminal case as a stage "in the criminal process of Germany is absent, the production of the first procedural actions during the inquiry and means the beginning of the criminal proceedings" Peshkov M.A. US criminal proceedings with elements of comparative law. M., 2007. P. 22 ..

The similarity with the Russian process is that "the police can independently act only in situations that are not tolerant when the delay can lead to the wrestling of evidence, their damage, falsification" Sergeev A.B. Decree. cit. P. 35 ..

So, by holding a brief comparative analysis of the Russian criminal process and the process of England, France, the USA and Germany, one can observe both shortcomings and dignity domestic legislationwhich with the adoption of recent changes becomes more perfect, and most importantly - successfully applied in practical activity.

Chapter 2. Criminal Procedure of Foreign countries on the example of England, USA and France

2.1 Criminal Process in England

British sources are divided into general (precedents) and statutory law. There is no constitution written in England. There is no regulation of the criminal process at the level of principles. The tendency is a constant increase in the role of the Statutes (laws of parliament). Statutes are a very large amount (more than 300). For example: the law on the courts of 1971, the Law "On Police and judicial evidence"1984 and at the same time operates" Act about treason "in 1795

The problem of codification is very acute for, for example, criminal procedural norms can be found in the laws dedicated to the most unexpected issues. They can be found, for example, in the laws on authorized elections, about civil aviation, on the reserve of air force, about animal diseases, child and youth, and even dentists. The first attempt to adopt the criminal code was in the 70s. XIX century In 1968, a commission was established, which presented the draft criminal code in 1989. It consists of approximately 220 articles and is divided into 2 parts: 1) general provisions; 2) a special part. Due to the fact that in England there is no clear division into criminal and criminal law law, this code in the total part contains key criminal procedure provisions.

A number of English lawyers notify a great influence of the legal doctrine on judicial activity. Although formally, scientific research and textbooks of English lawyers do not have a mandatory force, some of them are accepted for the leadership of the courts when considering concrete criminal cases due to their large authority. Such works include the works of such lawyers as Foster, Blackstone, Rosella, Stone, etc. All of these works were repeatedly reprinted and the judges rely on everyday practice.

The criminal process is what is happening in court. But today in England an regulated pre-trial stage of the process arose. Now the proof process is also regulated.

Stages of the criminal process in England:

1) Pre-production (police investigation), but a court can also play a certain role. Can be compared with continental inquiry;

2) Tradition to the court;

3) legal proceedings (things on the merits);

4) Appeal - any kind of appeal, regardless of the type (right or fact).

The symbol of the English process is: Competition. This contest exists at pre-trial stages. The prosecution is clearly expressed - a private person or a police that acts in this case as a special kind of private person. English Criminal Procedure does not allow the United Considering of Criminal and Civic issues. Civil suit must be submitted to civilian court. This allows you to get rid of the emergency strengthening of the accusation side. Thus, the English criminal process as a whole does not allow the United Considering of the issues of criminal and civil law 11. Chaadaev S. G. Control over crime in bourgeois states. M., jurid. lit., 1990.

Division of crimes:

1) crimes that are prosecuted on the indictment (in the main case crimes);

2) crimes that can be considered in the total (simplified) order (are provided for only by the Statutes). Trend towards an increase in the number of such crimes;

3) Mixed (hybrid) crimes.

If the crime does not require an indictment, the Magistrate Courts consider these types of crimes at first instance.

If the crime requires an indictment, then these types of crime consider the Court of Crown with the participation of jurors 1 instance.

The appeal on the issues of ruling magistrate courts can be filed:

1) in the appeal presence of a high court (only on issues of law);

2) to court crown.

At the decision of the court, the Crown Appeal may be filed with the Court of Law on the Law.

Arrest and unaistant crimes. Arrest - 1) may be sentenced over 5 years in prison; 2) for a crime for which the punishment is strictly defined. The rest are gentle.

2.2 Criminal Procedure in the United States

Exploring the American criminal proceedings system have to deal with some difficulties, since in the United States there are 50 independent, independent country judicial systems (dualism of criminal procedural law: the Federation and States) (similar systems also exist in the County of Columbia and the Commonwealth of Puerto Rico. There are also territorial courts in the Virginian Islands, Guam, American Samoa and in the northern zone of the Mariana Islands) and a federal judicial system. The latter does not include judicial system states, but functions in parallel with them. All of them connects only one thing - this is the powers of the US Supreme Court to revise affairs on appeal.

The US criminal proceedings system was formed under the influence of English rights. Before the adoption of the Constitution of 1787 and Bill on the Rights of 1791, the Americans defended their rights and freedoms primarily appealing to legislative acts And the "common law" of England, as well as by applying to colonial charters, in which there were norms on the guarantees of the rights of British subjects. The continuity of English legal institutions flowed out of certain circumstances related to the formation of the United States. The further independent development of the American legal system led to a number of significant changes, new legal institutions appeared, distinguishing American criminal procedure law from English. Today, the features of criminal proceedings in the United States are determined by the country's federal device, the presence of the United States Constitution and the State Constitution and other features of the Political and Socio-Economic Development of the US Guzenko K.F. Fundamentals of the US criminal procedure. M., 1993. P. 27, 28 ..

Thus, the US Criminal Procedure Law is based on the British system of general (precedent) law, i.e. the rights generated by the courts, which is combined with the norms of statutory law.

US Congress and state legislative bodies take various criminal procedure regulations. These legal normsestablished by the legislative bodies form a statutory right, which is a very important component of American criminal procedure law. Nevertheless, the interpretation of the laws and their rules is determined by the courts.

In the Constitution of the United States of 1787 and in the amendments to it - "Bill on Rights" of 1791, a number of general provisions were recorded directly related to criminal proceedings in federal courts Namely: 1) General principles of the division of the criminal procedure competence of the courts of states and federations - . III; 2) Features of evidence on treason cases - art. III section 3; 3) the conditions for the legality of the production of arrests and searches - amendment IV; 4) the right to the Jury Court - amendment V; 5) the prohibition of reasons to give the testimony against itself a correction V; 6) the right to fast judgment of VI; 7) the right of the accused to know what he is accused - amendment VI; 8) The right to have a defender - amendment VI and others. Many of the listed provisions formally have legal force Not only for federal law enforcement bodies, but under certain conditions for the relevant authorities in the States.

The laws of criminal proceedings implemented by the federal bodies at different times by the US Congress are mainly incorporated into Section 18 "Crimes and Criminal Procedure", partially in Section 28 "Judicial and Judicial Procedure" of the US Code (as amended 1948, with subsequent changes and additions). As an example, you can call "Act about sultious Court"1974, regulating the procedural term of the detention of the detention, the Federal Law on Crime Control and Security on the streets of 1968, the Law on Control of Organized Crime Crime 1970, an act of reform of the order of liberation on bail or guarantee 1984 , The act of privacy of use electronic means Communication 1986, Act on the pre-trial services of 1982, the act on crime control 1990, the act on the control of violent crimes and law enforcement activities of 1994 and many other Peshkov M.A. US criminal proceedings with elements of comparative law. M., 2007. P. 22.

However, these norms do not fully regulate criminal proceedings carried out by federal bodies.

This gap is filled with the rules that may be published by the courts themselves. A number of US Congress Legislative Acts (Laws 1933, 1941, 1942) The US Supreme Court is granted the right to issue rules governing the issues of criminal proceedings. For example, the main legislative act of the United States of the criminal process on federal level - « Federal Rules criminal process in the district courts of the United States. " These courts are considered by the I instance of cases based on federal criminal legislation, except those related to the competence of special federal courts. In addition, the jurisdiction of the courts of states and federal courts sometimes coincides.

Although federal Courts Significantly inferior to the entire set of states of states, from the point of view of the number of cases and judicial staff, these figures do not reflect the importance of federal courts. Their activities greatly affect the activities of the government throughout the country and the lives of many people, and not only on the parties participating in the process. The federal rules of the criminal process in the district courts of the United States entered into force on March 21, 1946. They consist of 60 rules (articles), broken into 10 chapters (sections): Chapter 1. Scope of action, purpose and interpretation; Chapter 2. Preliminary procedural action; Chapter 3. Indictance and information; Chapter 4. Presentation and preparation for the court; Chapter 5. Place of consideration of the case (jurisdiction); Chapter 6. Judicial hearing; Chapter 7. Court decision (sentence); Chapter 8. Appeal; Chapter 9. Additional and special procedural actions; Chapter 10. General provisions. During its existence, these rules have repeatedly been subjected to various additions, changes and refinements. The most significant changes occurred in 1966, when the US Supreme Court clarified and supplemented more than half of all the articles contained in the rules. The latest changes to the rules of the US Supreme Court carried out on January 6, 1997. As in other countries where the legal system is based on a common law (Common Law), the US legal system is complicated by a large number of court decisions that have the power of the precedent. Its fundamental principle is the principle of following a judicial precedent - in the proceedings of the case, the court should follow previously established court decisions on similar cases. However, in the United States, the principle of following precedent is not considered by the courts by absolute and judicial practice goes along the path of flexible application of this principle, adapting at each historical stage of the country's political and socio-economic needs of the United States. Nevertheless, today in the US, many precedents have more fundamental importance than legal norms established by the legislative bodies. In particular, various provisions relating to the protection of individuals, dwellings, documents and property of citizens, the inviolability of their personal life, the peculiarities of the production of arrest and search, the rules for the use of electronic listening and observation and many others are reflected. For example, in the decision in the Escobedo case against the state of Illinois (Escobedo v. Illinois, 378 U.S. 478 1964) enshrined the right of any person to have a defender after arrest; In the decision on the MEPP case against the state of Ohio (1961), a ban on the use of evidence obtained during the illicit searches in the judicial process; In the decision in the case of Katz against the United States (1967), the US Supreme Court developed the concept of the privacy of the priests' citizens; The "false friends" doctrine was developed in solving the US Supreme Court in the Wit case (1971), many issues related to the conduct of search were settled by the US Supreme Court solutions for Welnes (1990), Hebi (1987), Smith (1979), Plais (1983), Carni (1985), Greenwood (1988) and finally a revolutionary decision on the case of Miranda against Arizona (Miranda V. Arizona, 384 US 436 1966), in which the new judicial doctrine affecting legal status Arrested. Its compliance is mandatory not only for federal courts but also for state courts. Recently, the administrative rules of the executive authorities have increased significantly - these are all sorts of executive orders of the President, instructions, leadership, orders of the Department of Justice, the Ministry of Defense (for cases considered by the authorities of the military justice, etc.).

A significant role in the development of the US Criminal Procedure System was played by the custom, which had the greatest impact on the judicial branch of the government. Many customs are created and operate not on the basis of the norms of the general or statutory law, but by virtue of the established judicial practice.

American norms common law Also outlined in a systematic form in the publication of the American Institute of Law called Restatement Of Law. It should be emphasized that this private edition even remotely does not resemble continental codes. This is a kind of reference book, where you can find decisions of judicial practice on this or that matter. Thus, the applicable sources of modern US criminal procedure law are: the Constitution of 1787 and Bill on Rights of 1791, legislation, judicial precedent, as well as administrative norms and custom.

However, despite the community of sources of law, as noted above, there is no uniform legal system in the United States: there is a federal legal system and 50 state legal systems.

Each staff has a number of legislation aimed at regulating specific issues of criminal proceedings. In some states, this legislation is codified in the state of Pennsylvania there are rules for criminal proceedings of Pennsylvania. In California, for example, in 1872, the so-called Standard Criminal Code (The Standard Penal Code) was adopted, which consists of administration and four parts. Part The second is a state criminal procedure code, which regulates many issues arising in connection with criminal proceedings.

A number of provisions of the United States Constitution make it possible to somewhat unify legislation and judicial practice of states. For example, Article IV indicates that in each state should provide "full confidence and respect" by regulatory acts and judicial decisions of any other state. Thus, the principle of reciprocity is enshrined in the application of regulatory acts of one state government agencies Other. Moreover, this principle operates and "vertical": federal courts are also required to provide confidence and respect for regulatory acts and judicial decisions adopted in the States.

According to American lawyers, the US Congress has the wide opportunities of the unification of state legal systems. Other organizations operate in the direction of unification of law - for example, the American Institute of Law, the Institute of Justice Organization, the American Association of Lawyers. However, many proposed reforms in the development of uniform rules for all states are encountered to resist local and regional political groups trying to protect their political and economic interests.

2.3 France's criminal right

Stages of the criminal process of France: 1) inquiry; 2) the initiation of criminal prosecution; 3) preliminary investigation - pre-trial stages; 4) Judicial proceedings and 4) Revision or appeal to the court decision. Criminally legal classification of criminal acts and differentiation of the criminal process.

The crime

Discharge (Delit)

Violation

The concept of public and civil lawsuits in the criminal process of France. In French law, both types of lawsuits are clearly delimited. The criminal lawsuit (public) is imposed by the prosecutor's office on behalf of the state and does not depend on the will of the parties.

A civil lawsuit in a criminal case provides private interests, and the plaintiff has the right to refuse him at any stage of the process, which, however, may neither delay nor stop the initiation of the criminal claim (Article 2 of the Code of Criminal Procedure. Civil suit can be initiated separately from the criminal claim. However, the decision of the decision in the judicial authority on civil cases is postponed until the final decision has been made in a criminal law, if it was initiated (Article 4 of the Code of Criminal Procedure).

Parties (participants) in criminal proceedings. It is necessary to pay attention to the fact that the prosecutor's office, fulfilling the state function of criminal prosecution, has the right to initiate a criminal lawsuit on its initiative or on the basis of the protocols received for it, complaints and denos. The prosecutor's office is obliged to arouse a lawsuit on the complaint of the victim, regardless of whether it is accompanied by the presentation of a civil claim or not. Arching a criminal case, the prosecutor's office is usually based on the results of the activities of the judicial police, which must collect evidence, consolidate the evidence, as well as to organize the search for persons guilty of violating the law.

Other participants in the process: Investigative judge, indictment, court, accused, defender, witness, expert, translator, etc. And their possible classifications.

The proof right of France is a feature of the French theory of evidence is that the increasing role is allocated to scientific and technical means of proof, such as expertise, and not testimony of a witness who may refuse to give true testimony from the fears of revenge the criminal.

In general, when studying the French theory of evidence, it is necessary to pay attention to the fact that the evidence system is based on the theory of free evaluation of the evidence and the inner conviction of the judge.

The object of evidence in the French legal doctrine is two circumstances: on the one hand, the fact of violation of the law and causing material damage, and on the other - the fact of the physical or moral participation of a particular person in committing a crime, i.e. The presence of guilt in all its forms.

The main types of evidence in the Criminal Procedure of France. Direct and indirect evidence. Direct: personal familiarization of the judge, examination, testimony, recognition of guilt by accused, written or literal evidence. Indirect: various presumptions, evidence, signs that form the conviction of the judge indirectly. The proofs are collected and fixed in accordance with the established rules.

For example, the judge basses its decision only on the evidence that were presented during the trial and are considered in compliance with the contene procedure.

Stage of inquiry in the criminal process of France.

The first section, part 2 of the Criminal Procedure is called "Inquiry and Check Personality". Inquiry is the first stage of the criminal process that proceeds before the initiation of criminal prosecution (a public claim) and during which the judicial police establishes the facts of violation of the law, collects evidence about them and is looking for persons who have committed these violations.

According to the Criminal Procedure of Russia:

With the concept of inquiry, one key for the criminal procedure of France is closely connected - the judicial police.

Conclusion

In the states of the Anglo-Saxon system, criminal procedural and evidence is considered as independent legal sectors. Accordingly, this in Western criminal procedure literature began to appear the generalizing term "Anglo-American evidence system".

Under the proof right is a system of evidence rules. The Anglo-American evidence system occupies an intermediate place between the other two systems of evidence - formal and free evaluation. From the meaningful side, the proof right includes the following main institutions: the relevance and admissibility of evidence, ways to establish the desired facts, the burden of proof, legal and actual presumption. Considerable attention is paid to the problem of the admissibility of some sources of evidence.

In many countries, the practice of use in the process of proving on criminal cases of data of operational-search, and in particular information, the source of which is an unbalanced police informant is a significant distribution.

In the US Criminal Procedure, the use of information of police agents as grounds for the use of arrest, searches and other measures of procedural coercion does not even require the disclosure of the agent's personality, publishing it. Such a rule is enshrined in many legislation, and in particular in § 1042 of the evidence California State Code.

List of used literature

Golovko L. V. Reform of criminal proceedings in England // State-V. and Law, 1996, №8.

Guzenko K.F. Criminal process of the main capitalist states (England, USA). Issue 1. University of Friendship Nar. M., 1969.

David R. Basic legal systems of modernity. Per. With Fr. and entry Art. V. A. Tumanova. M., Progress. 1988.

Kovalev V. A., Chayadaev S. G. Investigation Bodies and the UK judicial system. -M., 1985

Mikhailovskaya I. B. On the position of the individual in the Anglo-American criminal process. M. Gogurizdat. 1961.

Mikhenko M., Shibiko V. Criminal Procedure Law of Great Britain, USA, and France. Kiev. 1988.

Polyansky N.N. "Criminal law and Criminal Court of England." 2nd ed. -M., 1969

R. Cross "Precedent in English Law" 1985

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A large preparatory work on the scientific support of the reform showed that law enforcement of criminal justice requires significant material costs that are increasingly increasing in the year. According to English lawyers, the cost of production in one complex criminal case often reaches 50,000 f. Art., And for individual cases approaching 250,000 f. Art. Under these conditions, the reform of the criminal procedure law, hopes for such an organization of the criminal proceedings, which, due to the simplification of production, even by substantial limitation of procedural guarantees would give a certain economic effect 2. Guzenko K.F. Criminal process of the main capitalist states (England, USA). Issue 1. University of Friendship Nar. M., 1969 ..

In theoretical plan of the dominant in modern Western jurisprudence, especially Anglo-Saxon, is the doctrine of control over crime. This concept provides for the limitation of criminal and procedural guarantees of the rights and legitimate interests of the individual, justifies the permissibility of the violation of the legitimacy by law enforcement agencies in the name of enhancing the fight against crime, gives the evidence of the testimony of anonymous witnesses, the results of psychophysiological testing on a polygraph, the data of the tight electronic surveillance. This doctrine is characteristic of this doctrine, the shift of emphasis with relatively strictly resolved judicial procedure norms to predominantly outproduced police activities. And this entails an increase in the role of the police in the criminal process.

criminal wanted police judicial

D.E. Pankratov

Initial stages of criminal proceedings of foreign countries

And Russian criminal process

Analyzing work related to criminal prosecution issues, criminal responsibility, the author comes to the conclusion about the ambiguous understanding of their functioning issues in practice in the Russian criminal process. In relation to the topic under consideration, the analysis of the legislation of a number of foreign countries showed, firstly, that, on the one hand, there is a certain unity of the complex of key institutions governing criminal prosecution at the pre-trial stages, with the other - significant differences; Secondly, in a modern foreign criminal process, the principle of feasibility is significantly more common than the principle of legality. In conclusion, an analogy of foreign pre-trial production with Russian and offers alternative solutions to the problems currently existing in the Code of Criminal Procedure.

Analysis of scientific works of such authors as H. D. Alikperova, A.S. Barabash, L.M. Volodyina, L.V. Golovko, A.Ya. Dubinsky, Z.Z. Zinatullina, S.G. Kelina, V.A. Kovaleva, V.K. Kolomaitsa, A.M. Larina, V. A. Mikhailova, S.I. Nikulina, A. A. Rzaeva, A.V. Sav-Kina, V.V. Svechkova, M. S. Strying, A. A. Chuvieva et al. Allows you to conclude an ambiguous understanding and application of the norms of criminal and criminal law, on the discussion of issues of the ratio of pre-trial termination of criminal cases and the principle of the presumption of innocence; about the complex of the conditions necessary to terminate the criminal prosecution due to active repentance; about the possibility of stopping persecution in the presence of uncompressed injured harm; Optimal procedural order Termination of criminal cases and criminal prosecution. In the Criminal Procedure, along with the "traditional" institution of termination of criminal cases, the termination of criminal prosecution is also provided. A number of other institutions directly related to the analyzed standards have changed. Also for a long time in science of criminal procedure law, the issue of the relationship of such concepts as "criminal prosecution" and "accusation", "termination of a criminal case" and "termination of criminal prosecution" is discussed.

In addition, the choice of strategy of modern transformations in Russia must largely take into account the trends in the development of foreign countries. On the one hand, foreign criminalized legislation, being established and stable, is not frozen, it is subject to change, novels are included, reflecting modern crime trends aimed at raising and rationalization of pre-trial production.

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

In relation to the topic under consideration, the analysis of the legislation of a number of states - Germany and France - as representatives of the continental legal system, the United States and the United Kingdom - 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 regulating the criminal

following pre-trial stages, on the other - significant differences. In a modern foreign criminal process, the principle of appropriateness is significantly more common than the principle of legality. Back in 1826, the French Cassation Court, interpreting Art. 47 of the Napoleonic Code of Criminal Corimulating 1808, noted that the prosecutor makes a decision to initiate or initiate a public lawsuit, it has discretionary powers to leave a criminal act without consequences (CLASSER SANS SUITE) on the basis of one of the inexpediency of criminal prosecution. Since then, this approach has been among the inalienable characteristic features of French criminal proceedings.

At the beginning of the feasibility of initiating criminal prosecution, criminal proceedings of the Anglo-Saxon countries were also built: Belgium, the Netherlands, Luxembourg, Switzerland (in Romanesque Cantons), Iceland, Denmark, Norway, Japan and many other states. If we talk about legal and technical aspects, the principle of the feasibility of criminal prosecution in one form or another is directly formulated in law (France, Japan, the Netherlands) or can flow out of many years of law enforcement practices, so established and not disputed by anyone that the introduction of special changes to the law For a long time, it is not even required (so until recently it was the case in Belgium. Now the Code of Criminal Corollary of Belgium directly indicates that the prosecutor has the right to evaluate the feasibility of criminal prosecution. The only feature procedural application The principle of feasibility is that according to the new law, the prosecutor is obliged to motivate his decision to refuse to initiate criminal prosecution) is either associated with the most concept of pre-trial stages of the criminal process, which traditionally alien to any legalism (England, USA, etc.).

So, consider the most common alternatives currently existing in foreign legal systems in solving the above issues.

England, as a rule, is customary to refer to those countries where the principle of feasibility of criminal prosecution is valid. Under the action of this principle, the authority authorized to excite the persecution is provided in each individual case to decide whether it is convenient, appropriate and appropriate

to initiate criminal prosecution or believes to refrain more convenient.

The French criminal process traditionally rejects any legalism at the stage of initiating a public claim being a kind of symbol of the principle of "feasibility" of criminal prosecution. The prosecutor designed to decide on the initiation of a public claim, has the right to assess the presence or absence of the feasibility of criminal prosecution in each particular case at its own discretion. In France, it was either the only possible reaction to the crime criminal prosecution of the face, or they generally refused any reaction to a crime in the absence of "public interest." In England and France, several options for the end of police persecution are possible: the rejection of criminal prosecution, which is not accompanied by any conditions (we are talking about the traditional Russian criminal process of the end of a police investigation), formal and official warning; And mediation - the concept of completion of production in a criminal case in this form generally proceeds from the desire to reconcile with the help of the public of the victim and the person to be criminal prosecution so that the latter should be harmful to them.

In Germany, "there is practically no principle of legality, but the principle of feasibility." The beginning of appropriateness increasingly displaces the beginning of legality, becoming a dominant model of solving the issue of whether the indictment has the right to refrain from criminal prosecution based on its discretionary discretion. The principle of feasibility leads to the emergence of a "multivariate system" when, in the presence of certain circumstances, as a refusal to initiate criminal prosecution on the motives of "inexpediency" and the initiation of criminal prosecution will be equally legal (not mutually exclusive): "With the consent of the court, competent to solve the issue of legend Court ", refuse to prosecute the accused, if the persecution is not caused by" public interest. " The situation with compromises and transactions in the sphere of German criminal law has long been the subject of discussion. The ambiguity of the situation, when the de facto transaction to the court became everyday phenomenon, and the de-Yura about such an instrument of justice does not say a word, fought the Minister of Justice Brigitte Cipris to speak with the original proposal. The essence of the minister's initiative is to legally consolidate the possibility of negotiations and transactions before accepting a court decision. The logic of the Minister is understandable and explain - such transactions are a very effective and effective tool for the functioning of German justice in the field of criminal law. After all, in the end, in the interests of society itself, so that the criminals be faster convicted and suffered a deserved penalty, and the legal system operated without failures and wires. In addition, negotiations in front court session And so already became an integral part of the practical justice.

Production in simplified procedure is called the "order of punishment". It is carried out by

according to insignificant crimes (criminal offenses), the punishment for which does not exceed three months of imprisonment. Based on the inquiry data, the prosecutor or the police appeals to the district judge with the order of punishment. The judge in writing in the absence of the accused takes one of the following decisions: rejects the petition due to non-confidenceing suspicious suspicion, prescribes a trial or immediately gives an order for punishment. Thus, production in the order of the "order of punishment" approaches the imposition of administrative recovery. However, the provision of the accused the right to agree or disagree with the order contributes to the competent principle, equalizing the prosecutor and the accused.

When solving the question of initiating criminal prosecution in the United States, the prosecutor is usually guided by two moments: the presence or prospects for obtaining a proof base sufficient to condemn the accused; The interests of the criminal prosecution submitted by the prosecutor of the district with the interests of the district, taking into account the degree of public danger of a perfect crime and the person who committed it. Failure to initiate criminal prosecution can also be justified by reference to its inexpediency in connection with the incomparableness of harm caused by public interests, and material costs required for criminal prosecution.

The discretionary powers of the prosecutor are regulated by the procedural regulations contained in such sources of American criminal procedure law as federal statutes and state statutes (for example, in relation to the state of Pennsylvania, they are provided for by the 106th Rule of Pennsylvania's criminal proceedings), as well as in judicial precedents. The discretionary powers of the prosecutor also assume the provision of a legal possibility for the termination of the initiated criminal prosecution at any stage of the criminal process.

It seems possible to carry out some an analogy between the discretionary powers of the United States of the United States and procedural law to terminate the criminal case or agree to its termination by the investigator either by the body of an inquiry on non-conventional grounds provided for in Art. 25-27, 427 Code of Criminal Procedure.

The natural consequence of the comparison of the public, private and discretionary principles of the Russian and American criminal procedure is the emergence of a question: is it worth the domestic legislant to follow the path of further expansion of the discretionary powers of the prosecutor and the head of the investigative body? It seems necessary to provide certain discretionary authority to authorized officials regarding the decision to initiate a criminal case. However, the same wide as the discretionary powers of the American district attorney, they should not. Discretionary powers of Russian officials regarding the decision of the institution

the criminal relations should be limited specifically defined in the law. This condition implies from the objective need to save criminal repression measures and represents the obvious evidence of the impossibility of obtaining an aggregate of evidence sufficient for the decree of the accusatory sentence. Thus, discretionary powers regarding the decision to initiate criminal proceedings to the Russian prosecutor should be submitted in the only case - in the presence of an internal belief in the absence of the possibility of obtaining sufficient to bring to criminal responsibility and convicted of the guilty of committing a crime of the evidence.

As in Western and Russian science, it has long been decided to allocate "Two principles on which official criminal prosecution can be built. The first is called the principle of legality. His expression is the duty of the prosecutor to initiate criminal prosecution for each crime committed and to be punished regardless of considerations about certain difficulties or inconveniences that may be the result of the initiation of persecution. Another principle of the prosecutor's office may be the so-called "principle of expediency". Under the action of this principle, the body authorized to initiate persecution is provided in each individual case to decide whether it is convenient, relevant and appropriate to initiate criminal prosecution or believes to refrain from it. The principle of feasibility is not less "legitimate" than the principle of legality, because under the system of expediency, the competent person simply has the right to evaluate the presence or absence of

for public interest in the initiation of criminal prosecution, acting in the framework of the authority provided to him by law (i.e., not arbitrarily). In addition, the principle of the legality of criminal prosecution as a private principle of constructing one of the stages of criminal proceedings has little generally in this context with the overall principle of legality, which is understood as "steady compliance and execution of the prescriptions of the Constitution of the Russian Federation, laws and other regulatory acts by all state and non-state institutions and organizations, officials, citizens. The overall principle of legality should, of course, applied in criminal proceedings, being fundamentally important for him (Art. 7 of the Code of Criminal Procedure). But this is another incision of the problem. There are only terminological similarities between these principles, but in their legal nature they are completely different. Thus, the French prosecutor, deciding not to initiate criminal prosecution in the presence of proven signs of a crime based on the simple inappropriateness of such persecution, the law is equally steadily complied with the law (art. 40 of the Code of France) as the Russian prosecutor, obliged in this situation to initiate a criminal case due to the requirements Art. 21 Code of Criminal Procedure. The only difference is that these prosecutors are guided by different laws in which the problem of the ratio of legality and appropriateness is solved in the opposite key. That is, in one case, a competent authority, when found signs of a crime, there is the right to choose to initiate criminal prosecution or refuse it, subordinate to the established criteria of "public interest", and in another there is no such right, there is only a duty to initiate criminal prosecution.

LITERATURE

1. Bulatov B.B., Nikoliuk V.V. Criminal Procedure of Foreign Countries. Omsk, 1999.

2. Volodina L.M. The mechanism for the protection of personal rights in the criminal process. Tyumen, 1999.

3. Golovko L.V. Alternatives to criminal prosecution in modern English law // Laws. 1998. number 3.

4. Chelts-Bebutov.A. Course of criminal procedural law. St. Petersburg, 1995.

5. Filimonov B.A. Fundamentals of the criminal process of Germany. M. 1994.

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

7. Pennsylvania rules o £ 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 Procedure of Russia // Russian investigator. 2006. No. 6.

9. Chelts-Babutov M.A. Course of criminal procedural law. St. Petersburg, 1995.

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

11. Boykov A.D. Third power in Russia. Book Second - continued reform. M., 2002.

12. Alexandrov A.S. Subsidiary criminal lawsuit // State and Law. 2000. № 3.

The expansion of international cooperation in the field of criminal proceedings determine the need to study the criminal process of a number of developed civilized countries. It is also required in order to determine how the changes made in russian legislation, correlated with the models of criminal proceedings in various states.

In this regard, the study of the main procedures existing in the UK, USA, Germany and France will be interesting. First, it is a state with very significant historical and legal traditions that were widely used in creating a domestic law enforcement model. And, secondly, in these countries there are very specific legal systems, and their study is very significantly expanding the professional legal consciousness of lawyers.

Features of the UK criminal process defended by the fact that in this country there is a significant number of laws, subtitle regulatory legal acts regulating this activity. In addition, the United Kingdom is a "classic" state with a precedent system of law, as part of which a significant role in criminal procedure is allocated not to the laws, but precedents.

Precedents are decisions on specific cases that, being accepted at the court, become mandatory for use in all subsequent similar cases.

Pre-trial production in this country does not carry out a single body, but a certain combination of their. The powers of these organs are divided among themselves. In addition, as in the Russian criminal process, some criminal prosecution bodies are subsequently have the opportunity to maintain the accusation of courts.

TO pre-trial organs the following state structures include.

1. Police. It carries out pre-trial preparation of materials in most cases of detection of crimes. The police have officials (detectives) who specialize in disclosure and investigating crimes.

When entering the police, information about the crime takes place its inspection, and the formal act on the initiation of a criminal case is not taken out. Criminal prosecution is considered to be launched from the moment when a specific person was detained on suspicion of committing a crime when actions that limit his rights are made (search in housing, control and recording of telephone conversations, etc.). From one of these moments, the state is responsible for the application of proceeding measures and other restrictions regarding the person.

2. Royal persecution service. This body is monitored by the police on criminal prosecution. In addition, it is in this authority that a charge is formulated, according to which the person subsequently appears before the court. After the criminal case arrives in the court, the official of the Royal Pursuit Service supports the accusation, performing the functions of the state prosecutor.
3. The general attorney is a higher official who leads guidance and monitoring the royal prosecution service, issues mandatory to fulfill the instructions, and also performs other powers that are distributed to both the pre-trial and judicial proceedings.
4. Coroner. He is a job officer who is appointed by the authority local governments and whose authority apply to the appropriate administrative education. The powers of the coroner include the establishment of the circumstances under which the death of the person came, and when the crime is found, the investigation. If necessary, the coroner uses the help and resources of the police. At the end of the investigation, the coroner transmits materials collected by him in the royal persecution service to further nominate the charges and directions of the criminal case.

Judicial proceedings but criminal cases exercise the following organs.

1. The Magistrate Court. This judicial body is the lower link of the England judicial system. It is created and operates in every magistrate (district) of the country. The magistrate court considers criminal cases about minor crimes as a court of first instance. The process is simplified (total). If the defendant recognizes his guilt, then the verdict is made without research evidence. In the absence of recognition of the defendant, all evidence is investigated under competition conditions, after which the sentence (accusatory or justification) is made.
2. Court crown. He is a judicial authority, which is considering criminal cases with an indictment. The courts of the crown are formed in each of the six districts to which the territory of Great Britain is divided. In court, the crown is not provided for simplified (total) production procedure. In each district, the courts of the crown form permanent forensic presences that are close to the population and, accordingly, have the ability to verify justice more effectively. It was in court that the crown applies the court of jury, consisting of one professional judge and 12 jurors. In addition, in some cases, the Court of Crown carries out the appeal proceedings in criminal cases considered by the Court of Magistrate.
3. High Court in provided by law Cases acts as a court of appeal in criminal cases, sentences, but which were transferred by the courts of the crown or the courts of magistrates. Also, the High Court assists the courts of the crown in organizing a trial of criminal cases.
4. The Court of Appeal carries out the revision of criminal cases, the verdicts on which the crowns were made by the courts. Appeal proceedings are carried out at the request of one of the parties and is carried out in general on the same rules as in the court of first instance.
5. The court of the House of Lords is the highest judicial authority. He carries out appeal criminal proceedings discussed by lower judicial authorities.

US Criminal Process it has many similar features with the Criminal Procedure of England. This is due to the general historical past of these states, and also in the fact that, in the US, the Anglo-Saxon (case) system of law was adopted in the formation of the Justice system as a basis.

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

In this regard, each United States has its own justice system. The competence of pre-trial production bodies and courts includes a preliminary investigation and trial of criminal cases of crimes related to their competence.

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

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

In the United States, a significant number of laws governing criminal proceedings are adopted. At the same time, a single codified act dedicated to the dinion procedure is absent. At the state level, it partially replaces the arch of the proof rules of that or other state, which contains the rules for collecting, checking and subsequent use of evidence. At the federal level, there is a federal draft of evidentiary rules, which concerns crimes initiated by federal bodies.

Pre-trial proceedings in criminal cases of crimes committed on the territory of the other state, as a general rule carries out the police of this state or other services. Collecting and verifying evidence produces a police officer, and a clear distinction between investigative actions And the operational-search activities do not exist. If it is necessary to penetrate the dwelling, other restrictions on the rights of the individual requires a court decision.

If necessary, private detectives are involved in the investigation, which detect evidence and pose them to the police.

According to the results of the investigation, the police officer is report (CRIMINAL REPORT) which lists all evidence confirming the involvement of a particular person to commit a crime. Subsequently, the police officer may be interrogated by the court as a witness by the accusation.

If the crime is encroaching on the interests of the state as a whole, it is not a local police, and other bodies (federal bureau of investigations, administration for the fight against drugs, immigration and naturalization service, etc.). Pre-trial production is carried out overall in the same manner as the local police, however, when collecting evidence, more significant forces and funds are used, including international cooperation.

The results of the investigation are sent to the service of Attorneys, which has three levels: 1) Local attories; 2) the service of the state of the state, led by the general attoring of the state; 3) federal Service Attorneys, which is headed by the US General Attorneys (he also leads the US Department of Justice). The main task of the Attorneev service is the formulation of the prosecution, drawing up an indictment and further maintaining accusations in courts of various levels.

1. The courts of magistrates are considering criminal cases of insignificant crimes in the order of simplified (total) production.
2. District courts act as courts of first instance in the consideration of criminal criminal cases, and the appeals proceedings in criminal cases, which were previously considered by magistrates. It is part of the district court that the jury is formed, which considers a criminal case if the person did not recognize himself guilty and declared the appropriate application.
3. Appeals courts are re-trial in criminal cases, which were previously considered by the district courts.
4. The US Supreme Court is the highest judicial authority. He takes final criminal decisions that all previous instances have previously passed.

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

The peculiarity of acts, when committing criminal prosecution, is that, depending on the degree of public danger, they are divided into three types: a crime, misconduct and an offense. Accordingly, various forms of criminal proceedings are also used, primarily pre-trial.

As a general rule, when detecting signs of a crime is carried out police Inquiry,after that, all materials are transferred to the prosecutor to initiate criminal prosecution. Although the deadlines of the police inquiry are very long, it is precisely with the adoption of a decision on the initiation of criminal prosecution begins indictment on behalf of the state.

The prosecutor initiates criminal prosecution one of three ways: 1) by drawing up a preliminary investigation requirement (if new evidence is required); 2) by direct calling to court; 3) by drawing up a call or immediate drive protocol.

The peculiarity of the preliminary investigation is that it is made by officials who are referred to investigative judges. At the same time, the investigative judge does not criminal prosecution. Here, since it does not represent the direction of the charge.

In the course of the preliminary investigation, the investigative judge produces investigative actions, after which it conveys a criminal case in investigative chamber.

Investigative camera- This is a collegial investigative body, which consists of three investigative judges (Chairman of the Investigative Camera and two advisers). The investigative chamber checks the incoming criminal case, after which it permits the issue of the direction of a criminal case into court or its termination.

In court proceedings, a criminal case can be sent to one of judicial authorities.

1. Tribunal Instance(police court) considers criminal cases of offenses as a court of first instance, i.e. On insignificant crimes.
2. Tribunal of great instance(correctional court) considers criminal cases about misconduct, i.e. About more serious criminal acts. Criminal cases enter this court, if the defendant before the court was in custody or if he could be appointed a sentence in the form of imprisonment for more than five years.
3. Assizi court, which is a temporarily valid judicial body. It convenes four times a year to consider criminal cases about the most serious crimes, and also performs the functions of the appellate instance. In the court of Assis, criminal cases are considered not only by professional judges, but also in the courts established by law by the court. However, unlike the Anglo-Saxon criminal procedure, a professional judge and a board of 12 jury meetings will jointly solve issues of both fact and rights.
4. The Court of Cassation has the authority of the highest judicial instance. Cassation production It is a revision of criminal cases that have previously been reviewed in the order of appeal.

The verdict entered into force may be revised by the cassation court in the audit order. However, the revision can be carried out only in favor of the convict on the submission of the Minister of Justice, the complaint of the convicted person or its representative, and in the event of the death of the convicted person - on the complaint of his relatives and other representatives.

Criminal Process Germany characterized by the fact that it legal basis It is the Criminal Procedure Code of February 1, 1877 (acts in subsequent editions). However, in contrast to the Code of Criminal Procedure, in the German Criminal Procedure Code, much less procedural issues are enshrined. The provisions contained in the state enshrine general rules for criminal proceedings and legal guarantees involved in the process of persons. But specific rules relating to the criminal prosecution, the interaction of various law enforcement agencies are contained in the acts of a submission level, as well as in the instructions, benefits, etc.

Initial collecting and verification of evidence is usually a police. All its activities are carried out until the actual criminal prosecution and is preliminary. At the same time, the police have the right to produce investigative actions but collecting evidence to the extent that it will allow preventing their disappearance. In this case, a clear line between the investigative actions and operational-search activities is absent.

The materials collected by the police are transferred to the prosecutor's office, which excites formal inquiry. At the same time, the prosecutor's office is obliged to collect not only increasing, but also justifying the face of evidence, i.e. act comprehensively. At the end of the inquiry, the prosecutor's office either ceases production, or initiates public prosecution and sends a criminal case to court.

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

1. Plot Court. In it, the judge acting solely considers the criminal cases of private accusations, as well as cases of minor crimes, the maximum punishment for the commission of which does not exceed six months of imprisonment. The judge and two Shaffen (assessor) are considering criminal cases of crimes with a more significant public danger, as well as cases of crimes, the maximum punishment for which the commitment does not exceed three years in prison.
2. The land court acts as part of two chambers. The Big Chamber (Three Judges and two Shaffen) considers criminal cases about grave crimes, and is also an appealing authority in relation to cases, the sentences for which were transferred by Chaffen's court in the plot of court. The Small Chamber (judge and two Shaffen) carries out the appeal proceedings in criminal matters, the sentences for which the judge of the district court was submitted solely.
3. The Supreme Land Court has in its composition the Senate for Criminal Affairs. The Senate, consisting of five judges, is considering criminal cases about the most grave crimes as a court of first instance. The Senate consists of three judges acting as a court of a second instance, considers complaints about the appeals of the land court in the audit procedure.
4. Supreme Court FRG Acts only as a court of second instance. The Senate for Criminal Affairs, consisting of five judges, is considering in order of revision of the Complaints on the sentences, if a large chamber of the land court or the highest land court was advocated as a court of first instance.