Порівняльний аналіз кримінального провадження in absentia в законодавстві ФРН та України

Abstract

The purpose of the article is to compare the criminal procedure legislation of the Federal Republic of Germany and Ukraine on criminal proceedings in the absence of a suspect or accused both at the stage of pre-trial investigation and trial, with the study of compliance of these laws with international documents. and the case law of the European Court of Human Rights. Methodology. In view of the set aim, specificity of the object and subject of the research, the methodological tool has been chosen. During the research, a system of methods of scientific cognition has been applied: the formal logic (abstraction, analogy, deduction, induction, synthesis) – to study the content of the matter under consideration; the theoretical approach – in the process of study of scientific, educational and methodological literature. The scientific novelty consists in a comprehensive study of the trial against a suspect or an accused in absentia in the criminal procedure legislation of the Federal Republic of Germany and Ukraine, focusing on the criminal process of the Federal Republic of Germany in order to clarify all its peculiarities for determining further ways of development of criminal procedure legislation of Ukraine. Based on the results of the conducted study, the following conclusions have been drawn: 1) The criminal procedure legislation of both the FRG and Ukraine establishes a certain procedure for carrying out trial against a suspect or an accused in absentia; 2) The CPC of the FRG does not actually envisages the possibility of conducting a pre-trial investigation against a person in absentia, and this feature significantly distinguishes it from the CPC of Ukraine which establishes the procedure for conducting a special pre-trial investigation in absentia; 3) The criminal procedure legislation of the FRG, in contrast to the CPC of Ukraine, stipulates the so-called separate proceeding, which is targeted at inducing an accused to appear before a court; 4) According to the criminal procedure legislation of the FRG, in contrast to the corresponding legislation of Ukraine, holding full substantive hearing against an accused (defendant) in absentia is possible in certain cases, subject to proper notification in the cases, the outcome of which may result in imposition of a monetary penalty; 5) The CPC of the FRG mostly meets the standards of the European Court of Human Rights; 6) The criminal procedure legislation of Ukraine is at the stage of formation and does not fully meet international standards for holding trials against a suspect or an accused in absentia, and therefore the certain legal regulations of the CPC of the FRG may be borrowed for development of the criminal procedure legislation of Ukraine as regards trials in absentia. Keywords: special pre-trial investigation; special court proceeding, in absentia; suspect; accused; confiscation; CPC of the FRG.