Should be a tool that provides an objective and comprehensive study of the circumstances of the case. It serves to search for truth. With this approach, the participation of equal persons in legal proceedings presupposes the prevention of the unilateral nature of the revealed facts. At the same time, the activity of the judicial instance should ensure the issuance of a sentence corresponding to the real state of affairs. Meanwhile, with the development of criminal law, the approach to understanding the significance of the adversarial nature of the parties in the criminal process has changed. Consider further how this principle is implemented today. This article is intended primarily for students studying criminal law in universities. Information from the test can be used to compile a cheat sheet.
The principle of competitiveness of the parties in criminal proceedings: structure
It is advisable to start the study by highlighting the key elements of the principle under consideration. In criminal law science, three components of competitiveness and equality of parties in criminal proceedings are traditionally distinguished:
- Separation of key procedural functions: defense, prosecution, resolution of the case.
- Giving participants equal rights and responsibilities.
- Active and leadership role of the court.
In 2001, the Code of Criminal Procedure was adopted, which reveals the concept of the adversarial nature of the parties in criminal proceedings (CPC RF, Article 15). According to the norm, this principle includes:
- Department of the procedural functions of defense, prosecution and resolution of the case.
- The prohibition on the assignment to the same institution or official of more than one procedural function. In other words, the competitiveness of the parties in a criminal process means that the court, for example, cannot act on the side of the defense, and the prosecutor cannot be a judge.
- Prosecution and defense are equal before the court.
This list can be fully included in the cheat sheet on the competitiveness of the parties in the criminal process.
Explanations
Of course, the activities of initiating, investigating, resolving a criminal case will not be successful if procedural functions of different content are implemented in one body. If the participants in the proceedings carry out the prosecution and defense separately from each other, then there must be an institution independent of them that resolves the case - the court. Only in this case, the defense side has a real opportunity to defend its interests. With such a construction of legal proceedings, a full, comprehensive study of the circumstances of the case will be ensured, which, in turn, will lead to the issuance of a fair, lawful and reasonable verdict.
Every evidence presented, every fact is examined from the point of view of the prosecution and the defense. The court can establish and evaluate all the arguments given both in favor of the defendant and in favor of the victim. The combination of procedural functions exclusively in the hands of the judiciary would give its activities a purely one-sided character, which, in turn, would create obstacles to a comprehensive clarification of all the circumstances of the case.
Court activity
The implementation of the principle of competitiveness of the parties in the criminal process is ensured by vesting the court with a number of special procedural rights. So, her activity in claiming additional materials, the direction of the case for additional investigation is considered as a guarantee of finding the truth. The actual activity of the court presupposes an objective and comprehensive study of the case, without inclination towards the prosecution. It is in this case that the authorized instance, not being satisfied with the subjective claims of the parties, can fully resolve the case and pass a sentence in accordance with the general goals and interests of justice.
At the same time, the principle of competitiveness of the parties should be an instrument in achieving the truth. In the criminal process, there are few examples of the conviction of the innocent and the acquittal of the guilty. Nevertheless, they take place and are the result of insufficient activity of the court. The proceedings should not have an accusatory bias, since in the course of it facts mitigating responsibility may be revealed. They should be perceived as a means of protection, which the accused loses in the case of the passivity of the court.
Content and form of criminal proceedings
In criminal proceedings, the competitiveness of the parties is considered one of the fundamental elements. To study its essence, it is necessary to highlight the issue of the content of legal proceedings. AT general view it is defined as a way to implement criminal law and bring the perpetrator to justice for violating the Criminal Code. The form of the process in this case is the structure of criminal procedural activity.
In the course of improving the criminal procedure system, some types of process replaced others, depending on historical period, state structure and other factors. At present, the competitiveness of the parties in the criminal process has replaced the inquisitorial mechanism, which assumes the absolute sovereignty of the court. Modern legal proceedings are public, direct, oral. The inquisitorial process was always carried out secretly and mainly in writing.
Competitiveness of the parties in the criminal process makes it possible to accept the accused as a participant in the proceedings, and not only as an object of study. He becomes the bearer of subjective procedural rights and obligations.
Members
The most important condition for ensuring the competitiveness of the parties in the criminal process is the presence of persons involved in the proceedings on the part of the prosecution and defense. Participants substantiate and prove their claims before the court.
Defense and prosecution implement fundamentally opposite functions. The accuser - accuses, and the defender, respectively, defends. Meanwhile, the functions of the parties should not be interpreted so simplistically. The prosecution involves the implementation of a set of actions by the authorized state body to investigate the case, to expose the perpetrators before the court. At the same time, this procedural activity is not limited solely to the speech of the public prosecutor in the courtroom. The participation of this person in the proceedings should be considered the final stage of the accusatory activity.
With regard to protection, it can be viewed as a set of procedural rights and means provided by law to the accused. With their help, a citizen defends himself from the charges brought in court. The speech of a lawyer in the courtroom is one side of a complex set of procedural measures through which the law guarantees the right to defense.
Distinctive features of competitiveness
Regardless of the state legal system, the adversarial process involves the opposition of the parties collected evidence. They are presented by opposing participants before a neutral authority. The main task of the court in this case is to resolve the case.
The parties independently collect and present evidence, and the judge or jury is passively present and listens to the arguments of the participants. Subjects collect, study and provide evidence for their own benefit. The judge may intervene in the course of the process to prevent inequality in the presentation of information on the case under consideration.
Participants are very careful in collecting evidence and conducting investigations, since they are most interested in making a decision in their favor. Each side, however, solves only half of the task, since it collects materials to argue exclusively for its position, bases arguments only on its own point of view.
Important point
It is believed that within the framework of adversarial the only way to prevent the adoption of a premature decision is to assign responsibility for the preliminary investigation and presentation of evidence to the direct participants in the process. This approach allows you to remove responsibility for the course of the investigation from the subject that makes the final decision on the case. In this case, the court can objectively hear the arguments of the participants. He does not need to think about when to stop collecting evidence, because the resolution of this issue is the task of the parties.
Specificity of criminal procedure activity
The level of development of legal theory determines the quality of the rule-making process, as a result of which a clear form and structure of criminal proceedings is fixed in the legislation. There is an inextricable link between the form and content of any phenomenon. The content of the criminal process is criminal procedural activity. Its specificity lies in the fact that its implementation always involves the subject who is charged with a crime. He is interested in the observance of the criminal procedure rules.
Procedural statuses
To realize its interest, the subject must have a certain set of rights. At the same time, the victim, the investigating authorities and the court are vested with certain rights. As a result, all participants in the proceedings acquire the appropriate procedural status.
The status of the victim and the investigating authorities, on the one hand, and the accused, on the other, can be both unequal and equal. In the latter case, authorized state structures, the victim of the crime and the subject who is charged are the parties to the process.
Implementation of the state interest in criminal proceedings
The state within the framework of the criminal process implements interrelated, but relatively separate functions. Through the investigating authorities, it carries out an investigation, through the prosecutor - supports the prosecution, through the court - resolves the case.
The interest of the state is not to win the process at any cost, to initiate proceedings against a person whose guilt is doubtful or to convict him. The key challenge is to ensure the rule of law at all stages of the case so that the innocent are not convicted and the guilty are justly punished. Achieving the set goals is impossible without establishing the truth, a comprehensive, objective and complete study of the collected evidence.
Qualitative and quantitative parameters of competitiveness
An external parameter of competitiveness is a quantitative indicator indicating the number of procedural actions. Compliance with the order of their implementation is achieved primarily by giving the accuser and the accused equal status. Assessing the amount of competition, it is possible to compare criminal trials with the same historical form. With the expansion of competitive beginnings, the number will increase. However, this will not entail a change in the specific historical form of the criminal process.
The essential parameter is a qualitative indicator of competitiveness. It testifies to the equality of the procedural statuses of the accuser and the accused, either only at the stage of the trial, or both during the trial and during the investigation.
Conclusion
Competitiveness is thus considered as a property that characterizes criminal proceedings in general, its specific stages or certain procedural actions. It is expressed in the equality of the status of the investigating authorities and the person who is suspected of involvement in the crime, as participants in the criminal case.
Adversarial is the model of production against which proceedings are formulated.
A principle is a fundamental guiding principle underlying a certain phenomenon, process, activity. Criminal proceedings act, on the one hand, as a result of the activities of the subjects of the criminal process, and on the other, as a process of transition from the initial part of the proceedings to the next, it has its fundamental principles - principles - general legal categories, enshrined in the criminal procedure law, the observance of which is guaranteed by the state.
It is necessary to analyze the content of the very term "competitiveness" as a principle of criminal proceedings. The Russian criminal process has always been based on the continental type. This largely influenced the specifics of the content of the competition Busygin A.Yu. The principle of competitiveness in Russian criminal proceedings / A.Yu. Busygin, I.V. Smolkova // "Black holes" in Russian legislation. - 2009. - No. 4. - p. 113. P.112-114.
Traditionally, the science of the Russian criminal process has identified three main components in the structure of competition:
1) division of three main criminal procedural functions: prosecution, defense and resolution of a criminal case;
2) procedural equality of the parties;
3) the leading and active role of the court in the process Alekseev N.S. Essay on the development of the science of the Soviet criminal process / N.S. Alekseev, V.G. Daev, L.D. Kokorev. - Voronezh: Publishing House of the Voronezh University, 1980. S. 40;.
It was assumed that competition is a tool for an objective and comprehensive study of the circumstances of the case, the search for truth. With such a construction of competition, the participation of equal parties was intended to prevent the one-sided nature of the circumstances being revealed, and the activity of the court was to allow them to be fully and comprehensively examined in order to pass a sentence corresponding to the actual events. References are often made to the historical experience of Russia, in which the administration of justice has always been associated with justice, the search for truth. Competitiveness was presented, first of all, as a method of finding the truth, which consists in the competition of the parties, replenished and controlled by the active participation of the court in the trial of the case Polyansky N.N. Questions of the theory of the Soviet criminal process / N.N. Polyansky. - M .: Publishing House of Moscow University, 1956. S. 100 ..
Later, in the criminal procedural doctrine, a different approach to understanding adversarialism became more and more dominant. According to the new Code of Criminal Procedure of the Russian Federation, adopted in 2001, criminal proceedings are carried out on the basis of the adversarial nature of the parties, the concept of which includes:
Separation from each other of the functions of prosecution, defense and resolution of a criminal case;
· the inadmissibility of imposing on the same body or the same official the performance of more than one function;
The court performs the function of resolving a criminal case and creates conditions for the parties to fulfill their procedural obligations and exercise the rights granted to them;
· the prosecution and defense are equal before the court Criminal procedure: a textbook for universities / ed. B. B. Bulatova, A. M. Baranova. - 2nd ed., revised and additional. - M.: Publishing house Yurayt; ID Yurayt, 2010. - P.73.
It can be noted that the activities of initiating and investigating, considering and resolving criminal cases cannot be successful if the heterogeneous functions that are objectively necessary for its implementation are concentrated in the same body of the state, endowed with power over all other subjects of legal relations, arising in the course of criminal proceedings. If the parties independently perform the functions of accusation and defense, then there must be a court independent of them, objectively resolving the accusation. Only under this condition does protection acquire real opportunity defend their rights and interests. It is this construction of the trial that provides a complete and comprehensive study of the criminal case and its correct, fair resolution.
Each proof is checked and each circumstance is examined from the point of view of both the prosecution and the defense; the court has the opportunity to find out and weigh all the arguments and data both in favor of the prosecution and in favor of the accused (defendant). On the contrary, the merging of all functions in the hands of the court would inevitably give the court a one-sided character and would prevent the objective and complete clarification of all the circumstances of the case, which was typical of the inquisitorial form of the process.
Activity of the court in recovery additional evidence or sending the case for additional investigation - a guarantee of the search for objective truth. In their opinion, the true activity of the court implies an examination of the circumstances of the case on the basis of objectivity and comprehensiveness, without falling into the accusatory bias Boykov A.D. The danger of negative lawmaking / A.D. Boikov // Criminal law. - 2000. - No. 3. - S. 91-95; No. 4. - P.93-98. Their main argument is the search for truth and a just verdict. It is the active position that allows the court, not being satisfied with the subjective requirements of the parties, to fully explain the case and pass a verdict that corresponds to the general interests of justice, i.e. make a decision containing the actual, material truth.
Constantly emphasizing the importance of maintaining the activity of the court, the supporters of this position also referred to the fact that adversarialism should be a tool for achieving the truth, which excludes the condemnation of the innocent and the acquittal of the guilty, and the court is called upon to establish this truth. At the same time, the activity of the court should in no case be interpreted as an accusatory bias, since in the course of such proceedings circumstances extenuating guilt can be established, which should be taken as protection that the accused is deprived of when the court is passive.
One of the sections of the science of criminal procedural law, in which the term "competitiveness" occurs, is the doctrine of the historical forms of the criminal process. Therefore, to study the concept and essence of competitiveness, it is necessary to cover the question of the historical forms of the criminal process. The criminal process, like any other phenomenon of objective reality, has its own content and form. In the most general form, the content of the criminal process can be defined as a way to implement the norms of criminal law and bring the guilty person to responsibility for violating criminal law prohibitions, and its form can be defined as the structure of criminal procedure activity, the mechanism of its organization, which reflects the source of movement, development of legal proceedings and the procedural status of its participants.
The doctrine of the forms of the criminal process is based on the concepts of investigative and adversarial models of legal proceedings in criminal cases. In the science of the criminal process, this doctrine occupies a section called “historical forms of the criminal process.
In history, various types of criminal proceedings have replaced each other, depending on the era, state structure and many other factors. At present, the adversarial form of the process has replaced the inquisitorial process, the absolutist state, which was built on the basis of the sovereignty of the court, which completely conducted the proceedings and absorbed the functions of the parties.
The competitive process is characterized by publicity, orality, immediacy of the trial. The inquisitorial process is a secret and largely written process.
The adversarial form of the process is constructed in such a way that the accused in the process is considered not as an object of study (at least not only as an object), but as a participant in the process, as a party to the process, as a subject of procedural rights.
A necessary condition characterizing the adversarial form of criminal proceedings is the presence of parties. These parties - the prosecution and the defense - prove and substantiate their positions and demands before the court.
The accusation and defense represent procedural functions of an opposite nature: the accuser accuses, the defender defends, but in reality the accusation and defense cannot be understood in such a simplistic way. An accusation is a set of actions of an official government agency aimed at investigating a criminal case and exposing in court the persons guilty of a crime; the accusation as a function is not covered only by the accuser's speech in court, it only completes the prosecutor's accusatory activity.
Protection in the material sense means the totality of procedural means and rights that the law provides to the accused and with the help of which the accused defends himself before the court from the accusation brought against him. The speech of the defense counsel in court is only one side of this complex system of procedural measures, with the help of which the law provides the accused with the right to defense and guarantees the rights of citizens brought to trial. criminal liability.
Regardless of the current legal system in the state characteristic features adversarial process is that there is a confrontation of evidence, evidence presented by opposing parties and views expressed by opponents in person in the face of a passive and neutral decision-maker, whose only task is to do the job of deciding this case. The parties themselves collect and present evidence and arguments. The person or body making the decision, be it a judge or a jury, is passively present and only listens to what is presented by both parties.
The parties collect, examine and present evidence in court for their own benefit. The judge intervenes in the course of the trial only in those cases when he considers it necessary to prevent inequality in the presentation of information on the case under consideration.
It is generally accepted that under an adversarial system, the only way to avoid the negative tendency of making a premature decision is to assign responsibility for the investigation and presentation of evidence in the case to the parties involved in the process. As a result of the fact that the decision maker is relieved of responsibility for the course of the investigation, he can calmly and objectively listen to the arguments of both sides. He does not need to decide when to stop the collection and presentation of evidence, since this will be the task of the parties. - M.: Yurlitinform, 2008. - S. 176 ..
The parties will more carefully collect evidence and conduct investigations, since they are more than anyone else interested in collecting evidence in their favor. Each of the parties solves only half of the problem, since it collects evidence and bases the arguments presented to the court solely on its own point of view.
The level of development of legal science largely determines the quality of the law-making process, the result of which is ultimately the specific form of criminal justice enshrined in legal acts.
The form of any phenomenon is inextricably linked with its content. The content of the criminal process is criminal procedural activity. The specificity of criminal procedural activity lies in the fact that a person inevitably takes part in it, in relation to whom there is an assumption of his guilt in committing a crime. It is interested in the fact that criminal procedural activity is carried out according to certain rules. At the same time, in order to realize his interest, this person must have a certain set of rights and procedural means of their implementation. It is obvious that in order to fulfill their claims, the bodies of criminal prosecution and the victim must also be endowed with a certain set of rights and means of their implementation. The specified sets of rights and procedural means of their implementation represent the procedural statuses of the relevant participants in the criminal process.
The procedural status of the criminal prosecution bodies and the victim, on the one hand, and the procedural status of the person in respect of whom the issue of bringing him to justice, on the other hand, can be both equal and unequal. In the presence of equal procedural statuses, the bodies of criminal prosecution and the person held accountable represent what is denoted in the legal literature by the concept of parties.
The formulation of the concept of a party on the basis of opposing one procedural interest to another unreasonably narrows the content of this term. The interest of the individual (the interest of the defense) is a constant value: regardless of his procedural status (suspected, accused, defendant) and the actual circumstances of the case (involvement or non-involvement in a crime), a person, as a rule, seeks (often by hook or by crook) to avoid criminal responsibility. In criminal proceedings, the state acts in several guises, realizing interrelated, but at the same time relatively independent functions: the investigation of a criminal case (assigned to the bodies of inquiry and preliminary investigation); maintaining charges in court (assigned to the prosecution authorities); administration of justice (carried out by courts of general jurisdiction). Despite the fact that various functions are carried out by different bodies, the true interest of the state in the criminal process is ultimately also a constant value. But it does not consist in winning the “competition” at any cost, putting the defense side “on the shoulder blades”: not in initiating a criminal prosecution procedure or maintaining a charge against a person whose guilt in committing a crime looks doubtful, but especially to condemn him for this crime. The main interest of the state (which proclaims itself legal) is to ensure the rule of law at all stages of the criminal case, so that not a single innocent person is brought to justice and not a single criminal escapes legal and just punishment. The realization of this state interest is impossible if the truth is not established, completeness, comprehensiveness and objectivity in the study of the circumstances of the case are not ensured.
The external parameter of competitiveness is its quantitative indicator, indicating the number of procedural actions, the element of the order of production of which is the equality of the procedural statuses of the accused and the accuser. Depending on the amount of competition, it is possible to compare criminal trials that have the same historical form. The expansion of adversarial principles is an increase in the number of actions built on the basis of competition, which does not entail a change in the historical form of the process, for example, the establishment of a judicial procedure for resolving the issue of arrest while retaining the bodies of preliminary investigation at the pre-trial stage, not only the functions of criminal prosecution, but also the functions of justice, as well as advantages over the accused in collecting evidence.
The essential parameter of competitiveness is its qualitative indicator, indicating the equality of the procedural statuses of the accused and the accuser either at the stage of the trial, or at the stages of both the trial and the preliminary investigation. Comparison of criminal trials of various historical forms is a comparison of them from the point of view of the "depth" of competition. The deepening of competitive principles is always a change in the historical form of the process, its qualitative change.
So, competitiveness is a property that characterizes criminal proceedings as a whole, its individual stages or specific procedural actions and is expressed in the equality of the procedural statuses of the criminal prosecution authorities and the accused (suspect, other person in respect of whom there is evidence) as participants, respectively, of the entire criminal proceedings as a whole, its separate stage or specific ones.
Thus, competitiveness is a model (or type) of criminal proceedings, taking into account which a system of its principles is formed, i.e. the type of adversarial proceedings is the source of the adversarial principle.
Socio-political changes in our country and the reform of the legal system have affected the principle of competitiveness of the parties and their equality.
This fact can be explained by the close connection of judicial reform with these provisions. Today, there is an active discussion by proceduralists of the meanings of the main principles of legal proceedings in the Russian Federation in 2020.
In this article we will talk about the essence of the concept of "competitiveness in criminal proceedings".
In criminal proceedings, adversarial means a dispute that has arisen between the parties. This principle regulated by Article 15 of the Code of Criminal Procedure and Part 3 of Article 123 of the Constitution of the Russian Federation.
These legal norms indicate the necessary structure of the criminal process, in which the functions of defense and prosecution are separated from each other, as well as separated from the activities of the court.
At the same time, both parties must perform their functions. They have the same procedural rights to be able to defend their opinion.
"Parties" are participants in a criminal case who perform an adversarial role of prosecution or defense.
The prosecution can be:
- prosecutor;
- interrogator;
- investigator;
- private prosecutor;
- the civil plaintiff or his authorized representative;
- the victim or his representative appointed to this role by law.
And the side of the defense may be the accused or his representative, civil defendant or defense counsel.
- equality of the parties;
- delineation of procedural duties;
- impartiality of the court in its decision.
In the modern criminal process, the problem of competitiveness should be considered from the formal and substantive sides.
According to the 1st aspect, the legislator must resolve the case involving 3 subjects. And according to the 2nd aspect of this process, all participants are endowed with the same powers and procedural functions. The court must be impartial.
It must be understood that adversarial in a trial is not just a dispute between several parties before the court, but a trial by this organization of the case on the merits, which involves making a decision on the guilt or innocence of the accused.
This clarification is important because Russian court not only considers cases on the merits, but also assumes the duties of judicial control in pre-trial proceedings by considering all complaints and making a decision on the restriction of individual freedom and constitutional rights.
The court, with impartiality and objectivity, must create all the conditions for the parties to fulfill their procedural obligations and exercise the rights that are granted to them, and then allow the commencement of a criminal case.
The competitiveness of the parties in criminal proceedings means that the trial of a criminal case in court can only begin if there is a final charge approved by the prosecutor.
Instead of this act, it is also possible to use the claim of a private prosecutor who insists in court on the fulfillment of the requirements presented to them.
The dispute of the parties is the beginning of the adversarial process in court. In addition, if the initiator of the dispute waives the accusation or the opposite party admits the claim, accusation or complaint, then the case is dismissed.
The refusal of a private or public prosecutor from the charges brought by him in criminal proceedings is necessarily required for the court, and leads to the full or partial termination of the case.
Even if the defendant pleads guilty, this does not mean a quick sentence for him, since there is still a presumption of innocence that requires proof of guilt in the manner prescribed by applicable law.
However, if the defendant pleaded guilty to a crime punishable by no more than 5 years in prison, the court has the right to make its own decision on the case without trial. This provision is regulated by articles 314-316 of the Code of Criminal Procedure.
The competitiveness of the parties is also characterized by the delimitation of the procedural functions of both sides of the case, as well as their separation from the duties of the court to consider the case.
According to Resolution No. 19-P of 28.11.1996, the Constitutional Court proposed a structure of legal proceedings in which the resolution of a criminal case, carried out exclusively by the court, is separated from the activities of the parties.
The duty of the court is to make an impartial and fair decision, and to provide all parties with an equal chance to defend their position, i.e. he is prohibited from entrusting himself with the performance of the procedural duties of the participants in the process.
Video: Competitiveness in criminal proceedings
The Constitution of the Russian Federation establishes: "Judicial proceedings are carried out on the basis of competitiveness and equality of the parties" (part 2 of article 123).
Having provided for the named fundamental principle, the Constitution of the Russian Federation did not define, did not disclose its specific content. This is the task of sectoral legislation, the Code of Criminal Procedure of the Russian Federation. It should be decided taking into account other constitutional decisions related to justice, as well as taking into account the fact that the interpretation of adversarial nature both in criminal procedural theory and in legislation and practice of various states is not uniform. The latter set the legislator the task of taking into account these differences, taking into account the historical experience of the Russian criminal procedural legislation and determining what competitiveness is.
Anticipating the adoption of the Charter of Criminal Procedure (UUS), Emperor Alexander II ordered the United Departments of the State Council to determine the "basic principles" of judicial reform, including criminal justice. The main provisions of the "beginning" were approved by Alexander II. They predetermined the development of the UUS: its focus, the concept of competitiveness, all the specific provisions of this act. It remains to be regretted that this historical Russian experience of legislative work was not in demand. Deputies State Duma before the adoption of the Code of Criminal Procedure of the Russian Federation (consisting of 473 articles with many parts and paragraphs, references) was not given the opportunity to discuss and adopt a compact document, which could be the concept of the Code of Criminal Procedure of the Russian Federation (which is not identical to the concept of judicial reform), which would enable deputies to delve into into the essence of those fundamental provisions that would program the content of the Code of Criminal Procedure of the Russian Federation, binding them to the developers of the draft of the named act.
We also note the following. Even before this problem(the concept of competitiveness) was decided by the legislator, the Constitutional Court of the Russian Federation adopted a number of resolutions in which, when resolving a number of specific criminal procedural issues, it proceeded from its idea of competitiveness. At the same time, it should be noted that the Constitutional Court of the Russian Federation did not exercise the right granted to it by part 4 of article 3 of the Law "On the Constitutional Court Russian Federation"; they were not given an interpretation of part 3 of article 123 of the Constitution of the Russian Federation. Thus, the position of the legislature was predetermined (in relation to the beginning of the competition) only by those specific decisions that are contained in the decisions of the Constitutional Court of the Russian Federation. Beyond these limits, the legislature was free in the definition, in the interpretation of the beginning of competition.
It is known that the draft Code of Criminal Procedure of the Russian Federation, which became a federal law, deviates from the concept of competitiveness, which was traditionally adhered to by the majority of procedural scientists before 1917, also adopted in European countries (France, Germany, etc.).
In Russia, historically (and until recently existed) the so-called mixed type of criminal process, bringing the criminal justice of Russia closer to the criminal justice of European countries. With such a construction of the process, the competitiveness and equality of the parties do not exclude the activity of the court (and, above all, in proving). At Vl. Sluchevsky we read: “The beginning of a judicial contest between the parties,” the drafters of the statutes reasoned, “does not exclude the court’s independent activity ... and does not oblige it to decide the case only according to the data presented by the parties, but only requires that, according to all the information related to the case, The task of the criminal court is to discover the unconditional truth in every case.In striving for this goal, the criminal court cannot accept in respect of the wishes of the parties, neither the fact that the defendant himself does not want to justify his innocence, nor that that the accuser himself indulges the guilty..."
Competitiveness is not an end in itself. It is justified, necessary, important because the competitiveness of equal parties, without dooming the court to passivity, is the most reliable legal instrument that ensures that a citizen is found guilty of a crime, if this is true, that ensures the establishment of the truth. It is contrary to the interests of the citizen, the public interest, to fill the beginning of the competition with such content, such specific, allegedly arising from the competition, criminal procedural decisions, rules that contradict the above.
It is significant that the Code of Criminal Procedure of the Russian Federation does not exclude the participation of the court in proving (Chapter 37 (Judicial Investigation)). At the same time, the procedure for the participation of the court in the interrogation of the defendant, victim, witnesses, corresponding to the beginning of the competition (part 3 of article 375, part 3 of article 278 of the Code of Criminal Procedure of the Russian Federation), was established. At the same time, in the field of evidence, the Code of Criminal Procedure of the Russian Federation, in the name of competition, also provides for such rules that put the court in a position dependent on the parties, which may negatively affect the establishment of the truth. Thus, the judge satisfies the petition of the parties to exclude evidence, if the other party does not object to it, without even delving into whether there are grounds for this, provided for by law (part 5 of article 234); disclosure in the trial of the testimony of the defendant, which was given by him during the investigation, is permissible only at the request of the party (Article 276), and the testimony of the witness, the victim - with the consent of the party (Article 281). It has not been determined whether the court, on its own initiative, has the right to inspect the area, premises, investigative experiment, present for identification, testify (Article 287-290) during the judicial investigation.
It was noted that in relation to the competition, the participants in the criminal process are divided in the Code of Criminal Procedure of the Russian Federation into the side of the prosecution and the side of the defense (chapters 6, 7). If this is the case, then the side of the prosecution (investigator, interrogating officer) and the side of the defense (accused, suspect, defender) should enjoy equal rights in proving. This is directly prescribed by part 3 of article 123 of the Constitution of the Russian Federation, but this is not implemented in the Code of Criminal Procedure of the Russian Federation.
It is impossible to deviate from the requirements of the Constitution of the Russian Federation. This dictates, it seems, the need for a choice: either to abandon the construction of criminal process inherent in the mixed type of criminal process. preliminary investigation(existing in Russia since 1864), or admit that the investigating authorities are not among the participants in the process on the side of the prosecution.
Naturally, the breaking of historical traditions, the rejection of the procedure for preliminary investigation that has developed in Russia since 1864 is possible only if such a need is conclusively confirmed by the advantages of pre-trial proceedings in the criminal process of the Anglo-Saxon type. This possibility is highly doubtful. It is also impossible not to take into account (borrowing foreign experience) those specific conditions that exist in Russia and are characteristic of it.
The opinion has become quite widespread that if the court, by its actions, on its own initiative, contributes to the establishment of the circumstances of the case in accordance with reality, it will inevitably perform either the function of the prosecution or the function of the defense, it will be bifurcated. So, it is argued that (if the prosecutor is not able to carry out his work with sufficient quality, the court should not come to his aid, since thereby it assumes the function of the prosecution. Hence, a certain passivity of the court in examining evidence as an indispensable attribute of competitiveness in criminal proceedings).
I would like to get an answer to the question: why is such an (an indispensable attribute of competitiveness) needed if it contributes to the fact that the offender will not be exposed, and the interests of the victim will not be protected? It should not be forgotten that Article 6 of the Code of Criminal Procedure of the Russian Federation, defining the purpose of criminal proceedings, sees it in the defense of the victim ... comes to the aid of the prosecutor. Thus, the very idea that, by helping to establish the truth by its actions, the court does not come to the aid of the prosecutor, in another case, the defense counsel, the defendant (carrying out the function of criminal prosecution, then the function of defense) is excluded: it comes to the aid of the truth, acting (in accordance with Article 118 of the Constitution of the Russian Federation) as a body of justice.
The foregoing indicates the need to define in the Code of Criminal Procedure of the Russian Federation not only the function of prosecution (criminal prosecution) and the function of defense, what has been done. In the Code of Criminal Procedure of the Russian Federation, it is necessary to determine what is the function of the court, specifically revealing it. Article 8 of the Code of Criminal Procedure (Administration of justice only by the court) does not solve these problems.
It seems that the Code of Criminal Procedure of the Russian Federation needs to be amended so that the procedure for criminal proceedings established by it reliably serves to establish the truth (while maintaining a balance of personal and public interests), which does not exclude the need for competitiveness and equality of the parties.
Criminal procedural legislation includes the adversarial nature of the parties in the system of basic principles of criminal proceedings.
The Constitution of the Russian Federation recognizes the competitiveness and equality of the parties as one of the leading principles of the organization of criminal proceedings (part 3 of article 123). The implementation of the adversarial principle means such a construction of criminal proceedings, when the functions of the prosecution and defense are separated from each other, separated from judicial activity and performed by parties using equal procedural rights to defend their interests.
The parties in the criminal process are understood as participants in criminal proceedings who have opposing procedural interests and are endowed by law with the necessary rights to defend them. The law determines the bearers of the main procedural functions.
The prosecution function is carried out by one side (the prosecutor, the victim, the private prosecutor, the civil plaintiff are involved in it), and the defense function is carried out by the other side, represented by the accused, defendant, his defense counsel, representative, civil defendant.
The function of resolving the case belongs exclusively to the court. It is separated from the functions of prosecution and defense. The court is not a body of criminal prosecution, it does not act on the side of the prosecution or the defense. The court is obliged to create organizational and procedural conditions for the parties to fulfill their procedural obligations and exercise the rights granted to them. This principle of the Code of Criminal Procedure of the Russian Federation establishes legal status persons representing the parties to the prosecution and defense in the criminal process, based on the essence of the procedural functions assigned to each of these parties, thereby ensuring their real separation. The Code of Criminal Procedure of the Russian Federation confirms that the functions of accusation, defense and resolution of a case cannot be assigned to the same body or the same official (part 2 of article 15 of the Code of Criminal Procedure of the Russian Federation).
At present, the universality of the action of the adversarial principle finds its expression in the powers that the law gives to the subjects of criminal procedure, in those proceedings at the pre-trial stages of the process, when the parties turn to the court to resolve the contradictions that have arisen.
The principle of competitiveness finds the most complete procedural expression in the regulation of the procedure for a preliminary hearing in preparation for a court session, general conditions litigation, various stages of litigation. The guarantee of the implementation of this principle is the establishment of the obligatory participation of the prosecutor in the trial and the defense counsel.
The equality of the parties to the prosecution and defense before the court means such a construction of criminal proceedings, when, when considering criminal cases, equal opportunities are provided for the parties to defend their rights and legitimate interests. Procedural equality extends not only to the analysis of the actual circumstances of the case, but also to the discussion of all legal issues arising in the trial.
With the consistent implementation of the adversarial principle, the court is prohibited from participating in the exposure of the defendant, t.to. the court is not a body of criminal prosecution and cannot act on the side of the prosecution or defense.
Occupying a leading position in the process, while maintaining objectivity and impartiality, the court must manage the trial, eliminate any information that is not directly related to the circumstances of the case under investigation, and stop attempts to disturb order in the court session.
the principle of competitiveness and equality of the parties - competitiveness as a principle of justice means such a construction of the procedure for the implementation of this type of state. activities that ensure, when considering civil or criminal cases in court sessions, equal opportunities for persons participating in such consideration to defend the rights and legitimate interests they protect.