ANTI-PATTERNS IN CRIMINAL PROCEEDING: DOES JUDICIAL PROCEEDING IN CRIMINAL PROCEEDINGS NEED A STAGE «PREPARATORY PROCEEDING»
УДК 343.1
ORCID: 0000-0002-4815-2164
ORCID: 0000-0003-3789-7408
DOI 10.37566/2707-6849-2022-1-2(38-39)-22
Oleksandr HARSKYI,
Judge, the Malinovsky District сourt of Odesa
Svitlana DIDYK,
managing partner of the lawyer association «Vi.Ai.Gee.Legal»
ANTI-PATTERNS IN CRIMINAL PROCEEDING: DOES JUDICIAL PROCEEDING IN CRIMINAL PROCEEDINGS NEED A STAGE «PREPARATORY PROCEEDING»
«Preparatory proceeding» as a stage of judicial proceeding, must reflect their role, which cannot be an imposition on the overall judicial proceeding. Each stage of the process has its own tasks and goals. It is impossible to identify the stages of the process, as their semantic load is different and aimed at achieving a different goal. Obviously, all of the court’s preparatory actions must be aimed at organizing future trial. The rights of the parties and participants of criminal proceedings must be taken into account, who could file their petitions and statements before the beginning of the trial, regarding the measures to ensure the criminal process, provision of evidence and notification of the line of defense and prosecution in the trial. Such actions can obviously be accomplished without any separate stages of proceeding, since most court cases do not need the separate attention of the court to achieve the purposes of organizing the trial. In its current legislative meaning, «Preparatory proceeding» accordingly is an obvious anti-pattern of the criminal process, because it has lost all its necessary elements and procedures, which should have contributed to the proceeding. The mechanical administration of justice at this stage of the process merely fulfills a procedural rite of passage. In fact, this stage of the process has become a rudiment that delays criminal proceedings. In the article the author proposes eliminating such stage of the trial as «Preparatory proceeding» or transforming it into an optional stage (at the discretion of the court) to provide judicial proceedings with more effective means. Additionally European legislation, in which even if the stage of proceedings such as «Preparatory proceeding» is inherent, is also being analyzed, it is effective and necessary only where it is seen by the judge as reasonable. It is common sense and reasonable independence in decision-making that Ukrainian criminal procedure lacks. The implementation of such innovations is bound to affect both the efficiency of the court proceedings and to improve the procedure of the court proceedings itself. In addition, such changes will not affect the scope of rights of the parties to criminal proceedings; on the contrary, the parties to criminal proceedings and its participants may exercise their rights regarding the organization of the process and its course either in a free form before or at the first court hearing, by filing petitions, applications and relevant evidence or at the first court session. It is possible to create normative mechanisms based on the example of the European legislation, which would allow the presiding judge at his discretion, depending on the circumstances of criminal proceedings, to conduct preparatory proceedings or immediately move to the stage of trial.
Key words: criminal procedure, criminal proceeding, preparatory proceeding, judicial proceeding, effective judicial proceeding, anti-pattern.
References
Laws on the Judiciary for Crimes and Misdemeanors, Code of Laws of the Russian Empire Edition, Moscow, 1857, Volume 15. [russ.].
Judicial Statutes 20.11.1864, Part 2 Statute of Criminal Procedure. Moscow, 1867. [russ.].
Foinitsky I. J. Course of Criminal Procedure, Senate Printing House, St. Petersburg 1910, Vol. II. [russ.].
Legal system of Ukraine, History, State and Perspectives in 5 Volumes, Volume 1. [russ.].
The Criminal Procedure Code of the Ukrainian SSR of 13.09.1922, Legal Publishing House of the People’s Commissariat of Justice of the USSR, Kharkiv 1925. [russ.].
Judgment of the European Court of Human Rights in the case «Nechiporuk and Yonkalo v. Ukraine» of 21.04.2011, Application No. 42310/04, p. 175. Electronic link: https://zakon.rada.gov.ua/laws/show/974_683#Text [ukr.].
Criminal and Procedural Code of the Ukrainian SSR, 28.12.1960, Political Literature Publishing House of Ukraine, Kyiv, 1972.
Rudolf von Jhering (German legal scholar, Professor Ordinarius) «On the essence of legal formalism in general (from Jhering). Translation from the German by K. Tzarevsky. Journal of the Ministry of Justice, 1860, vol. V, part I. [russ.].
Volosova N. Y., Volosova M. V. Criminal Procedural Legislation of Japan, Yurlitinform Publishing House, Moscow 2016. Monograph. [russ.].
Swiss Criminal Procedure Code of 05.10.2007, translation by A. A. Trefilov, Moscow 2011. [russ.].