The doctrinal problems of the criminal proceedings on the basis of the agreement
Journal Title: Правова позиція - Year 2016, Vol 2, Issue
Abstract
In the article are analyzed the problems of formation and development of the new institute of criminal production – production on the basis of a juridical compromise in the form of the agreement about reconciliation and acknowledgement of fault, and also active repentance. Deficiencies in the procession form of this production and method of its improvement are revealed. Criminal proceedings on the basis of agreements – Institute of criminal process, which foresees simplification of criminal proceedings on the basis of a compromise between representatives of the various parties regard the condition of fault of the defendant and reciprocal concessions, ensuring the restoration of infringed penal rights and legitimate interests of individuals and legal entities. In the century 349 of the Criminal Procedural Code of Ukraine defined: the Court has the right, if this does not deprive the members of judicial proceedings, to recognize inappropriate research evidence about those circumstances that are not contested. If the Court ascertains whether understand these individuals the content of these circumstances or no doubt the voluntariness of their position, and explains to them that in this case, they will be denied the right to challenge these circumstances to appeal the order. For a given model, the principle of providing the truth replaced by on the principle of consent of the guilty, and the legislator, not to create it inconvenience possible mistake makes appeal this verdict. This old attempt to resuscitate the well-known in the narrowminded times concept in which the recognition of the defendants fault was considered the Queen of evidence. The agreement on the recognition of fault does not exclude, but on the contrary, increase the risk of judicial error and does not accord with the principles of law. According to art. 62 of the Constitution of Ukraine “a person is considered to be presumed innocent of committing a crime and could not be subjected to criminal punishment until her guilt is proven in a lawful manner and found a verdict of the Court”. These provisions developed and even more clearly legally defined in art. 17 the criminal procedural code of Ukraine, where in addition to the foregoing, in particular attributed: “nobody is obliged to prove its innocence in the Commission of a criminal offence and must be justified, if the side of the prosecution does not prove the guilt of the person beyond a reasonable doubt”. For its content, the Institute agreements on the recognition of guilt contrary to the principle of the presumption of innocence, enshrined in art. 62 of the Constitution of Ukraine and with the provisions of art. 95 the CPC of Ukraine, according to which “the Court may reasons its findings only on the radio, which he directly accepting and h. 3 art. 370 CPC of Ukraine – “justified is a decision taken by the Court on the basis of objectively case circumstances that confirmed evidence, studied during the trial...”. The Institute agreement on recognition of fault and the simplified proceedings on the basis of the recognition of fault, have not applied in criminal proceedings and to be rejected as norms that contravene the principles of the criminal procedure law-the principle of the presumption of innocence and the principles of a comprehensive complete and direct research evidence. More widespread implementation of the investigatory and judicial practice Institute exemption from criminal punishment in connection with the reconciliation of the accused with the victims or the efficient man will increase social-useful activity of the defendants regarding mitigation of the consequences of the crime committed and the restoration of infringed rights, promotes procedural economy and the functioning of the judiciary.
Authors and Affiliations
В. М. Тертишник
Keywords
Related Articles
- EP ID EP445953
- DOI -
- Views 54
- Downloads 0
Standard of proof “probable cause”: interpretation of the supreme court of the USА and national practice of applying
The article is devoted to defining the nature of “probable cause” as a standard of proof in the criminal proceedings. Based on the analysis of case law of the USA Supreme Court, the main features of a “probable cause” as...
Notions of the legal responsibility of European public servants: topical issues of law enforcement
The author analyzes whether there is a balanced system of the legal principles of the liability of the public officials in the domestic legislation of Ukraine which can be used as the basis for further statute regulation...
Objective truth and legal reality in criminal procedural knowledge
The article analyzes legal, as well as other - life obstacles in the way of legal cognition, which determine the nature of the truth that is known in the criminal proceeding. It is alleged that as a result of the proving...
Gnoseological and legal nature of digital evidence in criminal process
Scientific and technological progresses since the middle of the last century have made the means of electronic computing equipment an integral part of our existence. The rapid development of telecommunication technologie...
Customs disputes and credentials in relation to adjustment of custom costs of goods
The article is devoted to the study of the use of discretionary powers by the fiscal authorities as one of the main reasons for the emergence of customs disputes and before all disputes related to the definition and adju...