ОСОБЫЙ ПОРЯДОК КАК ИНСТИТУТ, НЕ ИМЕЮЩИЙ АНАЛОГОВ В ИСТОРИИ РОССИЙСКОГО УГОЛОВНОГО ПРОЦЕССА

Abstract

The article is devoted to an up-to-date problem of special procedure regulated by Chapter 40 of the Criminal Procedure Code of the Russian Federation. The relevance of this problem is caused by the fact that nowadays up to 70 % of criminal cases are settled by means of special procedure, according to court statistics. Moreover, legislators continue to develop new institutions of criminal procedure which lead to the special procedure of hearing regulated by Chapter 40 of the Criminal Procedure Code of the Russian Federation (simplified inquiry, pre-trial agreement on cooperation). The main aim of this research is to investigate whether the institution of special procedure is adequate to Russian criminal procedure and its historical roots. The author analyses a well-spread opinion that special procedure has deep roots in many historical law documents such as Russkaya pravda, the Statute of Criminal Procedure of 1864, etc. As a result, it is stated that there are no sufficient foundations for such a point of view as, according to the Criminal Procedure Code of the Russian Federation, special procedure, regulated by Chapter 40, is based on the formal confession of guilt made by the accused. Nowadays this plea is not regarded as evidence. On the other hand, Russian criminal procedure legislation up to the RSFSR Criminal Procedure Code of 1960 considered confession of guilt made by the accused as perfect evidence. Such an approach was mainly based on the theory of formal evidence. Then the author comes to a conclusion that special procedure is similar to plea bargaining well-spread in the US. This conclusion is based on the same nature of these two institutions where each considers confession of guilt made by the accused as a sufficient foundation for conviction; there is no need for investigation in court; and there are some benefits for the accused who confessed guilt. Thus, the author concludes that special procedure is a new institution in Russian criminal procedure which has no historical background, and that special procedure is similar to plea bargaining. This conclusion can be used in order to reform Russian criminal procedure legislation.