ПРИНЦИП СПРАВЕДЛИВОСТИ В УГОЛОВНОМ ПРОЦЕССЕ АВСТРИИ, ЛИХТЕНШТЕЙНА И ШВЕЙЦАРИИ

Уголовная юстиция. 2022. № 20. С. 130–139.

Trefilov A.

The category of justice, increasingly used in various sources of criminal procedure law at the international and
national levels, reflects the gradual convergence of law and morality, their harmonization. Legal proceeding cannot be
fair if it does not comply with the basic categories of ethics. The philosophical basis of the principle of justice in the
criminal procedure in Austria, Liechtenstein, Switzerland, and other states of continental Europe is works of 18thcentury educators who studied the content of this category, its relationship with related concepts, the relationship of justice and equality of all before the law and the court – the most important modern principles of criminal procedure law. In German, the most common language in Austria, Switzerland, and Liechtenstein, there is no single concept for justice. There are such terms as die Gerechtigkeit, die Fairness, die Billigkeit. Only the last term of the three denotes justice, and it was used by developers of Austria’s, Switzerland’s, and Liechtenstein’s criminal procedure codes. In the legal doctrine of Austria and Switzerland, justice is regarded as a principle of legal proceeding, predetermining all its other elements. Justice also determines the system of rights and obligations of the accused, the victim, and other participants. Each of them has the right to fair treatment by law enforcement agencies. The 1975 Criminal Procedure Code of Austria and the 2007 Criminal Procedure Code of Switzerland enshrine the principle of justice directly as an independent element of the criminal procedure, which reflects the high theorization of these codes, the convergence of doctrine and legislation. The Liechtenstein legislator, on the contrary, considers it unnecessary. Particular attention is paid to compliance with the principle of fairness of the verdict – the final act of justice. If the verdict, even if it corresponds to the law, is unfair, then criminal proceedings as a whole will automatically be unfair, which should entail the cancellation of such a verdict.

Keywords: правосудие, criminal procedure, courts, досудебный уголовный процесс