The active position of the court is the basis for the successful application of alternative measures in criminal proceedings

Resumo

The institution of encouragement in criminal proceedings is an alternative form of making a final decision on a criminal case. The resolution of a criminal case through the use of incentive forms entailing the release from criminal liability of the defendant involves active actions of participants in procedural relations: the will and desire of the parties to terminate the criminal case in one of the
alternative ways to the court verdict; negotiating to determine the main mutually beneficial conditions and their coordination; the fulfillment of these conditions and the final confirmation of such agreements by a single «conventional» petition for the termination of the criminal case on the appropriate grounds. The parties exercise active procedural powers within the framework of the principles of disposability and adversarial criminal proceedings. This indicates the universality of the incentive norm. It is possible
to effectively apply alternative measures in criminal proceedings with the mandatory explanation by the court to the persons participating in the case of the procedural possibilities of these measures. The conducted analysis indicates the need for legislative consolidation of the procedural obligation of the court when considering criminal cases against persons brought to criminal responsibility for the first time on charges of committing a crime of small or medium gravity, to explain to the participants of the
process the non-rehabilitating grounds for termination of criminal prosecution provided by the current legislation. The author believes that this duty of the court will allow to resolve the issue of initiating the procedure for the application of incentive norms by the parties, as well as the court to understand the procedural perspective of this procedure for resolving a criminal case.