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Guarantees of the defendant’s rights at the special order of court proceeding and at the Plea Agreement

When project of Russian Criminal-Procedural Code was planned, the Judicial council of the Russian Federation planned introduction in the Russian criminally- procedural system a Plea Agreement, instead of nowadays existing special order of court proceeding. Therefore a lot of norms from the Plea Agreement correspond to a special order of court proceeding, but unfortunately, norms about the guarantee of the defendant’s rights in our country are not so protected, as in the USA.

Norms of article 314 СРС of RF stipulate that the special order can be used only in case of the consent of the sufferer. The given position is not present in the legislation of the USA, but the Plea Agreement often criticized for excessive condescension to criminal elements. That is the transaction protects and guarantees the rights accused, but has absolutely forgotten about sufferers. Therefore this condition in the Russian legislation should be carried more to the positive factor, instead of to the negative.

By the Russian legislation the court doesn't conduct the facts and circumstances collected on criminal case for the proof of participation of the person to commission of crime which is made. The only thing that is directly provided CPC of RF - there may be examined the circumstances characterizing the defendant's personality and the circumstances mitigating or aggravating his/her punishment. In the USA despite acceptance of the petition for guilt the court shouldn't take out the judgment on the basis of such petition without carrying out of such research which should satisfy it from the point of view of presence of the actual bases for such statement.

For the reason that in the Russian courts the facts aren't investigated, there is a high probability that the court can condemn not that person who has committed a crime. At what can take place both the random error, and perjury of the man of straw or the person, who decided to shroud the real criminal. By these reasons the judge advances in the USA that

«If the court intends to interrogate accused under the oath under the report and in the presence of the lawyer about a crime on which the accused has declared the petition answers of the accused can be used subsequently against accused of prosecution for perjury or false statement».

In the Russian Federation the defendant can grant any statement for realization of the right to protection, but false witness against itself isn't self-defense, therefore it would be more reasonable, if the legislator has provided norm about responsibility of the persons testifying against themselves.

Another difference between special orders of court proceeding and Plea Agreement is that the Plea Agreement can consists in the relation of persons of any age, and a special order - only in relation of persons of full age. In my opinion, it is conditioned by the fact that in Russia unlike the USA juveniles are not always subjects of a criminal liability.

And at last and the most important difference between special orders of court proceeding from the Plea Agreement is that in the special order the rights of the defendant aren't provided enough, because there are no accurate rules according to which the judge pursuant to the part 2 Article 314 can make sure that:1) the accused person realizes character and consequences of his/ her motion; the motion has been declared voluntary and after consultation of the lawyer.

In result, that, how each judge establishes given conditions - business of the judge. There is no uniform form for judges.

In the USA there are a lot of questions, which must be asked to the defendant by the judge to establish the truth, which are fixed in Rule 12 of the “The Judicial Code and Rules of Procedure in the Federal Courts”. There are near 30 questions addressed to the accused person, who accepted Plea Agreement. Here some examples of these questions:

    1. Whether you understand that neither your defender nor court can inform you today about exact limits of punishment ordered by the recommendation in your case.
    2. Whether you understand, what conditional early release is not using and what unique way to decrease any appointed punishment exceeding one year of imprisonment, makes a maximum of 15 % for good behavior in jails?
    3. Whether you taken any medicines or drugs of any sort in last 72 hours (stay in senses if the defender agrees is established)? 1
    4. Whether is your Plea Agreement result of any threats to you or members of your family, or promises, besides what contain in the Plea Agreement? and others...

Unfortunately, there is not so detailed form on which the judge could make sure in the all necessary conditions for satisfaction of the motion to a special order of criminal proceeding in the Russian legislation.

In result, considering all factors we can make decision that special order of proceeding doesn't provide in a due measure of a guarantee of the rights of the persons motioning about special order of court proceedings.

Сулейманова Р.А. МГЮА имени О.Е. Кутафина