Procedural analogy: independent principle of criminal proceedings or the element of legality

Abstract

The article is devoted to the study of procedural analogy place in the system of criminal proceedings principles in connection with the statutory provisions of Part 6 of Art. 9 of the Criminal Procedure Code of Ukraine. The historical aspect of the analogy institution normative consolidation in the domestic criminal process is given, which indicates that the institution of analogy in the norms of the Criminal Procedure Code has not been directly enshrined since the 1920s. At the same time, the science justified its necessity and admissibility in the criminal process; scientific results in this area are also given in the article. The existence of two types of analogy is stated: “analogies of right” and “analogies of law”, in connection with which the doctrinal provisions on the applicability of any of them in the modern criminal process are analyzed. The article also provides examples to use the institution of analogy in the judicial practice of the court of cassation. It has been established that despite the legislative technique, the doctrinal provisions and judicial practice state the admissibility of two types of analogy in the domestic criminal process. In this regard, the use of the term “procedural analogy” is justified as the most correct and such, which in its content covers the notion “analogy of the right” and the "analogy of the law". Since the legal norms on procedural analogy are placed within the framework of CPC article on the principle of legality, its relationship with the procedural analogy is determined. To this end, doctrinal statements about the concept of principles of criminal proceedings, author's positions on their classification as well as the criteria for their separate definition are given. Based on the above material, it was concluded that the procedural analogy is not an independent principle of criminal proceedings. The fact that the provisions of Part 6 of Art. 9 of the Criminal Procedure Code placed in the content of the principle of legality, suggests that the procedural analogy is one of the ways to achieve and implement this principle. Key words: analogy of law, analogy of right, procedural analogy, general principles of criminal proceedings.