Incentive Forms of Court Proceedings as an Element of the Transformation of the Criminal Process
International Journal of Law in Changing World - IJLCW
Incentive Forms of Court Proceedings as an Element of the Transformation of the Criminal Process
Autor Correspondente: Galina Rusman | [email protected]
Palavras-chave: CRIMINAL PROCEDURE INCENTIVES; RESTORATIVE JUSTICE; DIFFERENTIATION OF CRIMINAL PROCEDURE; SIMPLIFIED CRIMINAL PROCEDURE; EXEMPTION FROM CRIMINAL LIABILITY
Resumos Cadastrados
Resumo Inglês:
Criminal procedure is a complex type of legal relationship that is coercive in nature. At the same time, the trend of liberalisation and humanisation of criminal and criminal procedure law leads to a differentiation of the criminal procedure form, including through the expansion of incentive procedures.
At present, the law of criminal procedure in most States provides for certain types of proceedings which have the effect of encouraging a person accused of an offence by exempting him or her from criminal responsibility or by minimizing the amount of the criminal penalty. As a means of legal regulation, the rules on incentives impose legally binding obligations.
Being strictly regulated by its form the procedure of procedural actions of the court and other professional participants of the process, involves the implementation of incentive rules, provided by the legislation in force, in the framework of the incentive form of criminal proceedings. The study has shown that the incentive form of proceedings can be implemented in criminal proceedings under the general procedure of court proceedings (implementation of restorative justice, reconciliation of the parties, termination of the criminal case on other non-rehabilitative grounds). The incentive form of legal proceedings is implemented directly in the context of simplified or accelerated court proceedings (when considering a criminal case under a special procedure, when entering into a pre-trial cooperation agreement, etc.).
The analysis shows that encouragement in criminal proceedings is provided by the state in the form of relevant substantive rules providing grounds for exemption from punishment or grounds for preferential calculation of punishment. However, the state does not guarantee the implementation of such encouragement due to the discretionary powers of the authorised subjects and the plurality of persons involved in the incentive criminal procedure relations and their interests.
The author concludes that the current state of the institution of incentives in criminal proceedings indicates its dynamism and transformation into a more complex procedural form, which is widely spread and implemented in the criminal process of many states.
At the same time, we believe that the incentive form of legal proceedings in view of its mutual benefit acquires the features of universality, since the simplified and accelerated procedures for resolving criminal cases in most cases allow to take into account the interests of all parties involved in the case. Therefore, the incentive form of criminal proceedings is characterized by such features as universality, mutual benefit, efficiency.
Under the current criminal procedural law, the incentive form of proceedings can include a special procedure for taking a judicial decision when the accused agrees to the charges, a special procedure for taking a judicial decision when the accused signs a pre-trial agreement on cooperation, the institution of release from criminal responsibility on assessable grounds (including restorative justice).
