Меры принуждения в уголовном процессе Германии, Австрии, Швейцарии и Лихтенштейна: историческое развитие

Abstract

Based on normative and doctrinal sources, the author examines the historical development of procedural coercion measures in the criminal proceedings of the German-speaking states on the example of classical legal monuments and modern codes of the 19th-20th centuries. Initially, the system of coercive measures in these legal orders looked rather primitive and archaic (for example, during the period of the Saxon Mirror of 1230), but over time it began to become more complicated, a general part and a special part separated in it. In the states under consideration, there is a tendency to expand the list of measures of procedural coercion, to establish additional guarantees of the rights and freedoms of the person to whom they apply. An analysis of the Carolina of 1532 shows that the legislator sought to clearly regulate the grounds and conditions for choosing a measure of coercion in the form of detention for the accused, since this form most seriously interferes with the sphere of their personal rights. The Theresiana of 1769 for the first time provided for house arrest, which was used along with imprisonment in a fortress and in prison. In the transition from an inquisitorial criminal procedure to a mixed one, coercive measures become the object of judicial control. The legislator seeks to find a balance between the interests of the accused and the interests of justice in criminal cases. This article may be useful to anyone interested in criminal proceedings and in the history of the state and law of foreign countries.