Уголовный процесс: принципы и особенности

Adjudication process in criminal law

Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.

Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that they are innocent, and any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, is required, for example, in the 46 countries that are members of the Council of Europe, under Article 6 of the European Convention on Human Rights, and it is included in other human rights documents. However, in practice, it operates somewhat differently in different countries. Such basic rights also include the right for the defendant to know what offence he or she has been arrested for or is being charged with, and the right to appear before a judicial official within a certain time of being arrested. Many jurisdictions also allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense.

Countries using the common law tend to make a clear distinction between civil and criminal procedures. For example, an English criminal court may force a convicted accused to pay a fine to the Crown as punishment for the crime, and sometimes to pay the legal costs of the prosecution, but does not normally order the convicted accused to pay any compensation to the victim of the crime. The victim must pursue their claim for compensation in a civil, not a criminal, action.

The majority of civil law jurisdictions ('civil law' as a type of law system, not as opposed to criminal law) follow an inquisitorial system of adjudication, in which judges undertake an active investigation of the claims by examining the evidence at the trial (while other judges contribute likewise by preparing reports). In common law systems, the trial judge presides over proceedings grounded in the adversarial system of dispute resolution, where both the prosecution and the defence prepare arguments to be presented before the court. Some civil law systems have adopted adversarial procedures. Proponents of either system tend to consider that their system defends best the rights of the innocent. There is a tendency in common law countries to believe that civil law / inquisitorial systems do not have the so called "presumption of innocence", and do not provide the defence with adequate rights. Conversely, there is a tendency in countries with an inquisitorial system to believe that accusatorial proceedings unduly favour rich defendants who can afford large legal teams, and therefore disfavour poorer defendants.