The adversarial nature of the parties in criminal proceedings is the main idea on the basis of which both the investigation and the legal proceedings should be carried out.
Chapter 2 of the Criminal Procedure Code of the Russian Federation defines a list of principles on which to rely. However, the principle in question is considered key, since it determines the essence of the investigation of the case at the preliminary and judicial stages. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00
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Essence
Russian legislation presupposes the presence of adversarial law as a procedural basis. It is allowed for use not only in the criminal sphere, but also in any other controversial situation. The parties must defend their position by any legal means; they cannot be limited.
Solving crimes and considering these cases in the future requires the participation of several parties:
- prosecution (investigator, prosecutor, victim);
- defense (suspect or accused, lawyer);
- independent court.
It is these subjects who must argue, thereby determining the truth of the matter. The presiding officer remains on the sidelines, not having the right to interfere or limit the participants, except in cases of violation of the law.
In this case, it is necessary to separate the functions of each party. One person cannot represent both positions. That is why the prosecution and the defense are given equal procedural rights, as evidenced by Part 2, Art. 15 Code of Criminal Procedure of the Russian Federation. Accordingly, here we can identify an intersection with the idea of equality of the parties, since a participant cannot have greater powers compared to his opponent.
Since the court is only an entity that ensures the rights of the participants, the dispute acquires special significance for the case. If it does not exist, then there will be no opportunity to establish the truth, to come to a conclusion already at the trial stage. Often this is precisely the problem, since in practice the parties do not fully implement the principle in question.
Also, for criminal prosecution, it is decisive that adversarialism does not simply mean conducting a dispute in a case, but proving a person’s guilt or innocence. The case must be considered on its merits, without going beyond certain limits, which narrows the concept of a principle when defining it.
Competitiveness manifests itself differently at each stage of the investigation. If the parties must speak in court to prove their position, then the pre-trial stage rather implies an expansion of the powers of the suspect, which is caused by the large number of possibilities of the investigator, but a narrow range of means for protection of the potential criminal. That is why it is supposed to involve a lawyer, file a petition, and so on.
The law determines the obligation to comply with the principle in question in Article 15 of the Code of Criminal Procedure of the Russian Federation.
Procedural statuses
To realize its interest, the subject must have a certain set of rights. At the same time, certain rights are vested in the victim, investigative bodies and the court. As a result, all participants in the proceedings acquire the appropriate procedural status.
The statuses of the victim and the investigative authorities on the one hand and the accused on the other can be either unequal or equal. In the latter case, authorized government agencies, the victim of the crime and the person being charged are parties to the process.
Content
If the essence of the principle under consideration reflects how it manifests itself at the stage of investigation, then the content demonstrates how such a manifestation occurs at all. It depends on many criteria to determine whether it has been observed in practice or not.
Defines three elements, in the presence of which the principle can be considered fully realized:
- Separation of powers. The essence is the following: each party to the dispute determines a number of functions that are performed when considering the case. In this case, it is necessary to separate them between different entities.
- Equality. Despite the difference in the functions performed, the scope of opportunities should be the same; preference is not given to anyone.
- Impartiality on the part of the court. If the court takes part in the proof, then this cannot be considered full compliance. This third party is independent; it only provides opportunities to comply with the principle, but does not implement them.
In addition, the court always acts as a controlling party. Supervision of the work of participants is especially important, otherwise not only this one, but also many other mandatory principles may be violated.
To fully implement competitiveness, three elements must be present at once. The absence of at least one criterion entails a violation of the administration of justice, and therefore the impossibility of completing the case.
The first problem with the content of the principle is the difficulty in establishing all three elements at once. If each party has certain procedural rights, then someone must monitor their compliance and the absence of abuse. This is always done by the court; it is not allowed to shift this function to the remaining participants. However, it is difficult to ensure the impartiality of a third party, since its boundaries are blurred in theory.
Another problem is of a formal nature. Its meaning is that the legislator is not able to correctly distribute all the powers of criminal prosecution, taking into account the peculiarities of adversarial law. When considering a case, there are three subjects, one of them is the court, which is a specific participant due to its independence, which complicates the normative consolidation of the proceedings.
Role in criminal proceedings
Article 123 of the Constitution of the Russian Federation states that adversarial law affects precisely legal proceedings, that is, the consideration of cases by courts. Moreover, regardless of what authority and what direction.
There are only three sides - a kind of triangle that resolves the dispute. However, the criminal industry involves not only the judicial stage, it also implies a procedure for solving the case by investigators, which means that the participation of other entities is assumed.
The Constitution of the Russian Federation does not oblige the extension of the principle in question to stages not related to judicial proceedings, which complicates the use of adversarialism at the pre-trial stage of the investigation.
If the parties to a trial and their rights are clearly defined by law, then during the investigation only two participants can be identified:
- investigators, interrogators, victim;
- suspect, his lawyer.
It is inappropriate to talk about the court here; only in exceptional cases can it exercise its powers at the pre-trial stage, allowing one or another investigative measure to be carried out.
Since the investigation does not initially involve a trial, the investigation is vested with greater powers compared to the suspect or accused. This is a problem. However, these difficulties are not eliminated.
Accordingly, for a criminal process that involves only the work of pre-trial investigators, adversarialism does not exist, since the rule of equality is not observed.
Important point
It is believed that within the framework of adversarial law, the only way to prevent 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 us to remove responsibility for the progress of the investigation from the subject making the final decision on the case. In this case, the court can objectively listen to the arguments of the participants. He does not need to think about when to stop collecting evidence, since resolving this issue is the task of the parties.
Adversarial nature of the pre-trial stage
The general provisions of the Code of Criminal Procedure of the Russian Federation extend their effect to all stages of the investigation and further legal proceedings. Despite the fact that the Constitution speaks of adversarial law only for judicial proceedings, in the criminal sphere it must be implemented at any stage. However, the pre-trial stage has many problems in complying with the principle in question.
The indicated stage of the investigation involves stages that proceed sequentially and are completely dependent on the investigator:
- Initiation of a case. The first stage, which is controlled by the investigation. A person who will be considered a suspect cannot show himself in any way to participate in the process. All he is supposed to do is familiarize himself with the decisions being made.
- Preliminary investigation. At this stage, basic investigative measures are carried out to establish the facts, making it possible to prove a person’s guilt or refute it. Here it is allowed to attract a lawyer for the suspect, which only partially makes him the same participant in the process as the investigator. However, there is still no talk of equality.
- Arraignment. The last stage before sending the case materials to the court. The investigator also decides whether to make a decision or not. Of course, he must rely on the facts that were obtained during the investigation, but the role of the suspect and his defense attorney is also insignificant.
Only sometimes can a court take part in a case, but there can still be no talk of a triangular system of dispute, since the appeal to this body is carried out by the investigator, without listening to the position of the opponent.
At the investigation stage, the investigator performs both an accusatory function and makes procedural decisions, which means that he is replacing the court, and this is unacceptable due to the lack of separation of powers.
Pre-trial proceedings also involve limiting the rights of the accused. This reflects the contradictions of the legislator himself. It establishes the necessity of conducting a dispute, that is, equality, but at the same time allows restrictions for one of the participants in the case. On the one hand, this is done in order to ensure law and order, since the person is suspected of committing a crime. On the other hand, it gives the right to active evidentiary activity only to the investigation, which is not considered fair.
It cannot be said that the accused party has any procedural rights at all. The suspect can involve a lawyer, get acquainted with the case materials, and file petitions. The defense attorney may even demand investigative actions. In general, everything will depend on the decision of the investigator. This state of affairs does not demonstrate the equality that is so necessary, but only ensures respect for the right to defense, which is not enough for competition.
Based on the given example of going through the entire pre-trial stage, it can be noted that the principle is not implemented. The legislator only formally provides for its necessity and mandatory compliance, but at the same time concentrates more privileges in the hands of the investigator, interrogator and prosecutor, uniting them under a public authority.
Explanations
Of course, the activities of initiating, investigating, and 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 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 does the defense have a real opportunity to defend its interests. With such a structure of legal proceedings, a complete, comprehensive study of the circumstances of the case will be ensured, which, in turn, will lead to a fair, legal and reasonable verdict.
Every evidence presented, every fact is studied from the point of view of the prosecution and 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 court 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.
