BALANCE OF PROCEDURAL FUNCTIONS AND FORM OF PRELIMINARY INVESTIGATION

Abstract

Currently, in the theory of criminal procedure there are disputes and intensive searches for models of criminal procedure adequate to modern social conditions. The form of preliminary investigation is of particular importance in this regard, including ensuring the objectivity and impartiality of the investigation through the proper allocation of procedural functions. Purpose: to conduct a comparative analysis of the leading national models of preliminary investigation to identify the main directions of their development, their strengths and weaknesses, in order to develop proposals for the optimal choice of the required form, taking into account various social conditions. Methods: structural-functional analysis, comparative legal method, formal-legal method, method of legal hermeneutics. Results: the separation of procedural functions makes it possible to divide opposing interests in criminal procedure, without linking them to the activities of the same participants, which primarily guarantees the independence of the court and observance of the rights of the defense party. The concept of procedural functions is rooted in the adversarial type of criminal proceedings (accusation – defense – justice). However, due to the factual inequality of opportunities, it is dangerous to impose a purely accusatory task on the state authorities in charge of preliminary investigation. A restraining factor may be the separation of the functions of public prosecution, carried out by services such as prosecutors, and investigation, usually carried out by police inquiries or investigating judges. The forms of their combination can be very different in French, German, and even Anglo-American types of proceedings; however, the investigating body should always, in one way or another, be distanced from the procedural function of prosecution, engaging as far as possible in an objective and unbiased investigation, which requires a sufficiently high level of legal culture. In its scarcity, a competing adversarial model may be an investigation conducted by the public prosecution and defense in full equality under the auspices of an independent judge supervising the investigation.

Keywords

• procedural functions
• procedure models
• adversarial proceedings
• inquisitorial procedure
• forms of investigation
• impartiality
• objectivity
• investigating judge
• judge supervising the investigation
• prosecutor
• prosecutor-police inquiry