INFLUENCE OF CATEGORY «PROPER LEGAL PROCEDURE» AT DISCRETION OF INVESTIGATION JUDGE IN CRIMINAL REALIZATION

Abstract

In the article the considered questions, related to judicial discretion (by internal persuasion) of investigation judge and influence on this activity of category the «proper legal procedure». An attempt to probe the institute of investigation judge is done, legal categories the «proper legal procedure» and «judge discretion» in system intercommunication and to define the role of such symbiosis for a theory and practice of criminal process, considering that a penal judicial law regulates the concept of investigation judge only. The use of terms «procedure», «discretion», «persuasion», is analyzed a legislator; directions of activity of investigation judge are in the context of application of the proper legal procedure and judge discretion. After plenary powers, provided with a penal judicial law, an investigation judge is examined in the context of observance of principles of the criminal legal proceeding, realization of separate judicial actions, realization of function of judicial control. Discretion in activity of investigation judge is perceived an author as a lasting process, and persuasion is a result of judge judgements, judge discretion, in a rightness, justice of decision. In judge activity, in particular, and investigation judge, balance has an important value between the statutory rules of realization of criminal realization, independence of judge and his discretion. It is marked that requirement of estimation of belonging, admission, authenticity of every proof, separately, and also sufficientness and interconnection of proofs in their aggregate, the necessity of observance of the proper legal procedure an investigation judge certifies. Application of the proper legal procedure to every participant of criminal realization, in opinion of author, is the purpose of judicial activity. Inhibition of legal procedure in criminal realization, after the functional essence, appears activity of the authorized subjects which send motion of criminal realization, that having normatively legal fixing, directed on realization of rights and freedoms of persons, which are brought over to the criminal judicial sphere. Double aspects categories are established the «proper legal procedure» in activity of investigation judge. Verification of observance of the proper legal procedure is acknowledged the participants of criminal realization by a constituent and basic task the function of judicial control by an investigation judge, which, in same queue, is under an obligation also to adhere to the legal procedure set a law. Reasoning is expressed to concerning the limits of judge discretion and limitation of discretion of investigation judge is established by the set legal procedure in criminal realization. The author understanding of term system is expressed the «proper legal procedure in activity of investigation judge» and specifying changes are offered in the Criminal code of practice of Ukraine in relation to the tasks of criminal realization and determination of concept «investigation judge». Regulate, that judicial status and functions of investigation judge in criminal realization determine specific (excellent) connection of his activity with a category the «proper legal procedure». Such feature is predefined realization of judicial control of inhibition of statutory legal procedure an investigation judge during pre-trial investigation.