Certain aspects of the international legal standard of the validity of the court decision about the detention of the accused (suspected)

The court and parties take a different part in deciding the issue about detention. The degree of participation varies on the different stages of criminal proceedings. The main difference is the initiation of the application of this preventive measure. The article characterizes a standard based on international legal standards standard that determines modern jurisprudence in this area. The components of this standard are: the inadmissibility of the defendants' detention without a judicial decision; judge's duty to check whether the set term expires and grounds for changing the preventive measure; the decision about the preventive measure should be taken as a result of a court hearing involving the parties and the investigation of evidence presented by the prosecution and by the defense. It is noted that effective application of this standard is possible if there is a mechanism of legal regulation of relations arising from the court's decision on the preventive measure in the form of detention. The author examines several elements of this mechanism. Firstly, it is the general position of the court and the legal model of its activities. The impartiality and independence of the court are fundamental principles of this element. The article analyzes the thesis of the court's activity, the court's initiative in deciding on detention and its activity in the proving. It is noted that the court has the right to initiate legal proceedings to use detention. This thesis is one of the actual national standards. It is not directly fixed in international legal standards. Secondly, the author focuses on the institute of the removal of judge. Any circumstance that questions the impartiality of the judge is a ground for the rejection of the judge's participation in the criminal proceedings. Art. 61 of the Criminal Procedure Code of the Russian Federation establishes common grounds for removal of participants in criminal proceedings. The judge should abstain from making any estimates and conclusions on the criminal case. The participation of judges in the proceedings is not valid, if it is associated with the previously estimated circumstances of the case. The position of the ECHR and the existing judicial practice confirm this position. Thus, objectivity and impartiality of the court has particular importance and are a guarantee against unwarranted restrictions of rights and freedoms of the accused.

Keywords

Authors

References