НІМЕЦЬКА МОДЕЛЬ ДОСУДОВОГО РОЗСЛІДУВАННЯ ТА ВИКОРИСТАННЯ ЇЇ ЕЛЕМЕНТІВ В ОПТИМІЗАЦІЇ ПІДГОТОВЧОГО ПРОВАДЖЕННЯ У КРИМІНАЛЬНОМУ ПРОЦЕСІ УКРАЇНИ

Abstract

In the article, on the basis of a comparative legal analysis of the German model of prosecutor inquiry and pre-trial investigation under the Criminal Code of Ukraine of 2012, outdated and unjustified provisions in criminal procedural legislation are rethought, which will more effectively contribute to legal improvement and optimization of preparatory proceedings in criminal proceedings of Ukraine. The functional structure of the pre-trial investigation gave reasons for specialists to consider the criminal process of the Federal Republic of Germany to be of the “accusative-investigative” type. “Blameability” is determined by the fact that a criminal case cannot be tried without a public accusation initiated by the prosecutor. Only the court is authorized to investigate all the circumstances of the criminal case. When proving the circumstances and establishing the truth in a criminal case, the court is not burdened by the motions of the participants in the process. The structure of the German model of pre-trial investigation makes it possible to keep the balance of procedural functions by various legal and technical techniques. Thus, the activity of the police is limited by the powers of the prosecutor and the prohibition of contact with the court. Restraint of activity the prosecutor’s office is ensured by its control by the court and its responsibility for the execution of court decisions. On the other hand, the judge is obliged to take into account the conclusions of the prosecutor when deciding the issues of the pre-trial investigation. The normative analysis of the pre-trial investigation of Germany provides an opportunity through its prism to critically assess the institution of pre-trial investigation in the Criminal Code of Ukraine of 2012 and to use the experience of German colleagues in developing ways to improve it. The article is aimed at substantiating the practical and normative expediency of the main constructive provisions of the prosecutor’s inquiry in the Criminal Procedure Code of the Federal Republic of Germany for the possible use of their elements in the optimization of the institution of pre-trial investigation in the Criminal Procedure Code of Ukraine.