On the procedural form of the modern criminal process

The article substantiates the thesis that the current state of Anglo-American and continental criminal proceedings in certain states-trial media is conditioned not only by the predominant influence of either the principle of publicity, or the adversarial principle, or the target of the process and the attitude of the society to the individual rights. The primary determinant of the procedural form and type of criminal proceedings nowadays is the approach to proving that formed historically in certain countries. It is this approach that determines the evidence law structure, the criminal justice construction in general (stepwise process construction), and also has a decisive significance for the use of a mechanism for its balance. Each country has gone its own way in history, making and correcting errors, introducing and and modifying certain procedural institutions. Each society developed its values and beliefs about what was fair and proper, designing their hierarchy and determining the path of social development. As a result, the criminal proceedings of both Anglo-American and Romance-Germanic types are a kind of social contract about how the proof of evidence should be carried, how priorities should be attached to achieve certain goals of proceedings, how certain interests should be balanced in the process. Figuratively speaking, each society and the state has "pained" its process and law of evidence. In modern developed countries due to the leveled living conditions, ideas of cosmopolitanism, migration and trans-nationalization of capital there is a tendency to average living conditions. The society and criminal justice system are changing with the development historical conditions. For example, the charge in common law countries, previously defined as a penal action, is currently predominantly public. The main feature that presently determines the procedural form and type of the criminal process is the approach to proof of evidence historically formed in certain countries. This approach determines the evidence law structure, the criminal justice construction in general (stepwise process construction), and also has a decisive significance for the use of a mechanism for its balance. During the debate about the development of the Russian criminal justice system the researchers set forth and substantiated the opinion about the convergence of Romance-Germanic and Anglo-American types of criminal proceedings that gave birth to the new process described as "non-combative" and "discursively adversarial".

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