1. РЕАЛІЗАЦІЯ ПРИНЦИПУ ЗМАГАЛЬНОСТІ ПІД ЧАС СУДОВОГО РОЗГЛЯДУ
- Author
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О. В., Стрілецька and А. Ю., Габрелян
- Abstract
The article focuses on the peculiarities of implementing the adversarial principle in court proceedings. The adversarial principle is a general procedural principle of criminal procedure which today finds its main expression in court proceedings. Adversariality determines the image of the entire criminal process, as it provides for its construction in which the functions of prosecution, defense and case resolution are separated from each other. This, in turn, gives the court's verdict a special power of persuasion, increases its legal and social significance. The adversarial principle is characterized by the presence of four interdependent elements: the prosecution and defense; fixed means of activity of the prosecution and defense; separation of the functions of public prosecution, defense and trial; and an objective and impartial court. Removal of any of them would not only lead to incomplete content of the analyzed principle, but would also raise doubts about its actual existence. Only the presence of all these elements without any reservations, assumptions, exceptions, etc. allows to classify the process as compliant with the principle of adversariality. An important aspect of further development of legislation is to support and promote the process of competition, where the parties have equal opportunities to defend their interests. This contributes to the adoption of more reasonable and, accordingly, fair court decisions. In light of these objectives, it is necessary to actively work on amending the CPC of Ukraine to strengthen the principle of adversarialism and ensure a balance of interests of the parties at all stages of the criminal process. In this regard, it is proposed to: provide that when considering an appeal against a decision, action or inaction of an investigator or prosecutor, all interested parties should participate in the appeal process; supplement the CPC of Ukraine with the following provision: "the prosecution has the right during the trial to ask questions, submit its comments and objections regarding the procedure for conducting actions which are recorded in the protocol"; to extend the mandatory participation of a defense counsel to criminal proceedings concerning serious crimes. [ABSTRACT FROM AUTHOR]
- Published
- 2024
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