Принуждение в уголовном процессе Германии, Швейцарии и Австрии: общие положения

Уголовная юстиция . 2023. № 22. С. 125–137.

Trefilov A.

The author examines the philosophical foundations of the category of coercion in the works of German, Swiss,
and Austrian thinkers. The reasoning of Leibniz, Fichte, Schelling, Kant, Hegel, Ihering, Engels, Calvin, Rousseau, Kelsen on this issue is analyzed. The author shows that they consider coercion, on the one hand, as the opposite of freedom and, on the other hand, as the most important feature of the rule of law, distinguishing it from morality. After this, the words “coercion” (Zwang) and “coercive measures” (Zwangsmassnahmen), which are used by both legislators and proceduralists in German-speaking countries, are analyzed. Next, the content of the concept of coercive measures in the modern scientific doctrine of Germany, Switzerland, and Austria is considered. The organic relationship of this institution with investigative actions, with criminal penalties, as well as with interim measures in civil proceedings is studied. This article may be useful to anyone interested in the legal systems of German-speaking countries, comparative aspects in criminal proceedings, as well as in the theory and practice of using the institution of coercive measures in Russian and foreign criminal procedure.

Keywords: арест, задержание, досудебный уголовный процесс, Criminal, arrest in criminal procedure