INTERNATIONAL LEGAL EXPERIENCE IN THE APPLICATION OF THE INSTITUTE OF SPECIAL CRIMINAL PROCEEDINGS (IN ABSENTIA)

Abstract

The article analyzes the norms of international law, which indicate that the conduct of special court proceedings in the absence of the accused is permissible subject to a number of guarantees to protect his rights and freedoms. For example, Article 11 of the Universal Declaration of Human Rights states that everyone charged with a criminal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. At the same time, the procedure for convicting a person in his absence is available in many legal systems of foreign countries. Thus, criminal proceedings in the absence of a suspect or accused are used in the legislation of the Netherlands, Spain, Italy, France, Switzerland, Denmark, Estonia, Russia, Moldova, Kazakhstan, Belarus and other countries. However, in practice there are many cases of appealing to the European Court of Human Rights regarding the procedure for conducting a conviction in absentia. As a result, there are often questions about the fairness of the trial in absentia, as in such cases the accused is absent from court, which in practice makes it difficult to respect his rights and freedoms. Despite the fact that the Recommendations of the Committee of Ministers of the Council of Europe actually summarize the main criteria that countries must meet when conducting criminal proceedings without the participation of the accused “in absentia”, each foreign state has its own approaches to legislative regulation of this issue. traditions and legal system. In addition, the article examines the approaches of different countries to the trial without a defendant. After all, Recommendation № 6 R (87) 18 of the Committee of Ministers of the Council of Europe to the member states “On the simplification of criminal justice” of 17.09.1987 states that member states should consider and allow courts of first instance to hear cases and decide in the absence of the accused, at least minor offenses, subject to the punishment that may be imposed, and provided that the accused has been duly informed of the date of the hearing and of his right to legal or other representation. We also drew attention to the positive achievements of these states in their legal systems, as well as proposed proposals for improving the criminal procedure legislation of Ukraine by making appropriate legislative changes. It is noted that the separation of a separate trial without an accused (if there are several defendants in one criminal proceeding) is an effective way to speed up the process, provide evidence in the case, and avoid the workload of the court. This article is relevant because for Ukraine litigation in the “absentia” is a relatively new practice, and therefore it is necessary to explore the problematic issues that arise in practice in the legal systems of other countries and improve the legal regulation of such litigation.