Соотношение своевременности и обоснованности обвинения и условий правомерности избрания меры пресечения

Abstract

A critical analysis has been made of one of the conditions for the legality of the use of preventive measures in criminal proceedings, which presupposes the priority of their election only in relation to the accused. Attention is drawn to the established understanding of this condition as an immutable postulate that does not cause critical assessments, to its indisputable obviousness for scientists and practitioners. At the same time, it speaks of a significant legal conflict, expressed by its inconsistency with the grounds for pre-trial criminal prosecution and leading to the vicious practice of bringing forward premature and not properly substantiated charges. It is argued that a two-stage applied technology for formulating criminal legal claims has become widespread in law enforcement practice, which boils down to bringing forward two different charges in time, volume, degree of proof and content: “pilot” and final. In order to properly understand the analyzed problems, the reasons for their occurrence are diagnosed, which are seen in the ill-considered transfer of a number of provisions of pre-revolutionary criminal procedural law into Soviet and modern legislation without their adaptation to the corresponding mechanisms of criminal procedural activity. As a result, a legal condition is called that links the possibility of using preventive measures with bringing charges against a person and is assessed as a normative anachronism subject to abolition. At the same time, it is proposed to choose a preventive measure on a general basis in relation to the suspect.