The principle of competition and equality of parties - the essence and meaning of legal norms

The legislative framework

The principle of competition and equality is similar to the rule of administering justice on the basis of equality of all citizens before the court and the law. But it is important to understand that these norms are not identical. The main difference is that adversarialism and equality apply only to participants in the consideration of the case in court. In civil proceedings these are the plaintiff and defendant, in criminal proceedings they are the defendant and the prosecutor.

The norms are provided by legislative acts. The principles are enshrined in the main document of the state, in Article 123 of the Constitution of the Russian Federation. In addition, the rule is briefly stated in all procedural codes:

1. Civil (Civil Procedure Code of the Russian Federation) - Art. 12.
2. Criminal (Code of Criminal Procedure of the Russian Federation) - Art. 15.
3. Arbitration (Arbitration Procedure Code of the Russian Federation) - Art. 8.
4. Administrative (CAS RF) - art. 14.

In this case, the court plays the role of a body searching for the truth, so it cannot give advantages to any party. Violation of the principles of justice is unacceptable. If the judicial authorities neglect the established norms, the final decision loses its legal force and is declared invalid.

Adversarialism and equality of parties as a principle of criminal proceedings

 This article examines the general procedural principle of adversarialism and equality of parties in criminal proceedings. The concept and content of the principle of adversarialism and equality of parties in criminal proceedings, as well as its meaning, are revealed.

Key words : competition, equality, criminal process, court, parties.

Legal regulation in the field of human and civil rights is based on principles that are enshrined in acts of the international and constitutional level.

A principle is a kind of guiding idea that generalizes and extends its provisions to all phenomena in the area in which this principle is specified.

The system of principles of criminal proceedings is based on the Constitution of the Russian Federation and represents a coherent system of requirements that determines the entire nature of the criminal process [4, p. 50].

In accordance with Article 123 of the Constitution of the Russian Federation, legal proceedings are carried out on the basis of adversarial and equal rights of the parties.

The Criminal Procedure Code of the Russian Federation of 2001 (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), duplicating the provisions of the Constitution of the Russian Federation, established that criminal proceedings are carried out on the basis of adversarial proceedings, the prosecution and defense have equal rights before the court.

M. S. Strogovich was one of the first supporters of adversarial criminal proceedings. He viewed adversarial law as the democratic principle of criminal proceedings. According to him, adversarial law is a structure of judicial proceedings in which the prosecution is separated from the court deciding the case, and in which the prosecution and defense are parties with equal rights to defend their assertions and challenge the assertions of the other party. The court has the responsibility to manage the process, actively investigate the circumstances of the case and resolve the dispute itself [7, p.91].

In the legal literature one can find many definitions of the concept of “adversarial”, formulated by various authors.

Thus, the Big Legal Dictionary gives the following definition of adversarial law. Adversarialism is a democratic principle of legal proceedings, according to which the trial of a case takes place in the form of a dispute between the parties in a court hearing [1, p.623].

V.P. Smirnov believes that “the principle of adversarialism lies in such a construction of the procedural order of the trial and the examination of evidence in it, in which the parties are provided with the opportunity to actively defend their or protected (represented) rights and interests” [6, p.61].

L. F. Shumilova defines adversarialism as “competition of persons participating in a case, when the independent actions of some persons participating in the case effectively limit the ability of others to unilaterally influence the outcome of the trial in the presence of an active role of the court, endowed with the functions of justice to guide and manage the process.” I. L. Petrukhin points out that “adversarialism is a form of organization of legal proceedings, which is characterized by: a strict division of the functions of prosecution, defense and resolution of the case, respectively, between the prosecutor (private prosecutor, victim), the accused (defender) and the court; procedural equality of the prosecution and defense parties; trial of a case through a dispute between the parties before an independent and impartial court” [3, p.143].

According to A. A. Chebyshev-Dmitriev, “the law, under adversarial forms of legal proceedings, everywhere carries out a public principle, which expresses whenever either a private interest is protected, or a public interest, requiring that the court pronounce the material truth in its verdict” [5, p.132].

In criminal proceedings, the adversarial principle means a strict separation of the functions of the court in resolving a case from the functions of the prosecution and defense, each of which is assigned to certain participants in the process who enjoy equal procedural rights.

So, the principle of adversarialism and equality of parties in criminal proceedings can be considered as the interconnection of three elements:

1) differentiation of the functions of prosecution, defense and resolution of a criminal case;

2) giving the parties equal procedural rights to defend their interests;

3) the leading role of the court in criminal proceedings.

Thus, the function of prosecution in a criminal trial is performed by the prosecutor, the investigator, the head of the investigative body, the head of the inquiry unit, the head of the inquiry body, the inquiry body, the private prosecutor, the victim, his legal representative and representative, the civil plaintiff and his representative, the defense function is the accused, his legal representative, defender, civil defendant, his legal representative and representative, and the function of resolving a criminal case belongs to the court. The court must be an impartial arbiter in the dispute between the parties when resolving a specific legal conflict.

Adversarialism requires that opposing parties be given equal procedural rights to defend their interests. However, equality of rights does not mean equality of procedural actions. Equality of the parties in criminal proceedings does not imply an equal number of actions, mental operations and research performed by the parties, but the realization of the opportunity to achieve their goals on equal terms. As A.V. Smirnov correctly noted, equality of procedural functions “does not mean their substantive coincidence... it lies in their equal “power”, the ability of the parties to equally effectively achieve their goals” [2, p.93].

The court is not a preliminary investigation body; it acts neither on the side of the defense nor on the side of the prosecution, but occupies a leading position in the process. The court is obliged to ensure an impartial and fair resolution of the dispute, to provide the parties with equal opportunities to defend their interests, and therefore cannot assume the performance of their procedural functions [2, p.94].

The principle of competition and equality of parties, enshrined in the Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, has important practical significance. It promotes the establishment of the rule of law and ensures human and civil rights, opposes bureaucracy, omnipotence in the sphere of justice, and overcomes the accusatory bias in the preliminary investigation and administration of justice.

The principle of competition is one of the aspects of equality of all before the law and the court. A criminal process is recognized as adversarial only when the parties can actively argue, prove their case on equal terms, challenge any evidence, any statement, give it their interpretation, collect and present evidence, thereby contributing to the search for the truth and making an informed decision in a criminal case. Adversarialism as a principle of criminal proceedings seeks to provide the parties with not just formal equal, but actually sufficient opportunities to actively protect their legitimate interests.

The functioning and organization of criminal proceedings on the basis of adversarialism and equality of parties in modern Russia is of great importance for resolving the issue of the direction of development of this principle at all stages of the criminal process.

Literature:

1. Dodonov V.N., Ermakov V.D., Krylova M.A. and others. Large legal dictionary. - M.: Infra-M, 2001. - 790 p.
2. Kornakova S.V. Adversarialism is a condition for equality of parties in criminal proceedings // Legal science and law enforcement practice. - 2009. - No. 1(7). — pp. 92–97.
3. Kronov E.V. On the implementation of the principles of competition and equality of parties in the criminal process of Russia // Journal of Russian Law. - 2008. - No. 2 (134). — pp. 141–149.
4. Nesterova A. M. Competitiveness of the parties as a principle of criminal proceedings in the Russian Federation // Current problems of the humanities and natural sciences. — 2022. — No. 7–2. — P. 50–52.
5. Sardaryan N. T. Implementation of the adversarial principle in criminal proceedings // Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia. - 2008. - No. 6. - P. 132–133.
6. Smirnov V.P. Confrontation of the parties as the essence of the principle of adversarial criminal proceedings // State and law. - 1998. - No. 3. - P.58–63.
7. Khamidova M.M., Avezova Z., Khalikov Sh. Adversarialism in the system of principles of administering justice in criminal cases // Proceedings of the Academy of the Ministry of Internal Affairs of the Republic of Tajikistan. - 2013. - No. 2 (20). — P. 88–96.

The essence of legal norms

The principle of competition and equality of parties is the basis of a democratic judicial system. However, depending on the procedural branch, this rule may be applied differently.

Competitiveness of the parties

The principle of adversarial rights means that each participant in the trial has the right to defend their own interests in the dispute that has arisen. The proceedings take place in the form of a sanctioned dispute. It is the procedural activity of the parties that can determine the outcome of the case. The possibilities for meeting participants are as follows:

• in justifying your position;
• in criticizing the opponent’s arguments;
• in providing evidence;
• in participating in the examination of evidence.

The adversarial principle is applied at all stages of judicial proceedings, but this rule is most clearly manifested during the meeting, in the presence of all participants. A trial in absentia often deprives the plaintiff and defendant of the opportunity to apply the principle.

Despite the fact that this legal norm is addressed to the parties, the principles apply to absolutely all participants in the process. That is, witnesses, with the permission of the judge, can also present evidence and challenge the position of other persons.

Procedural equality

The principle of equality of parties is closely related to the rule of competition. In accordance with the content of regulatory legal acts, it means that during the resolution of a dispute, persons have equal rights and obligations. Neither side can have an advantage. For example, the plaintiff may abandon the claim or change the basis of this document. The defendant has the right to admit the plaintiff’s claims or change the basis of his objections. That is, what is allowed to one participant in the proceedings must be allowed to the other party.

Violation of the principle of equality leads to the cancellation of court decisions. But when applying this important rule, one feature should be taken into account. The fact is that absolute equality between the parties to the dispute cannot exist . For example, the defendant cannot reduce the claims, and public authorities have greater potential for defense.

Features of the application of standards

Legal principles are applied differently in different types of legal proceedings. For example, when considering a criminal case, there is a distinction between the functions of resolving the case and the prosecution. That is, the judge cannot:

• initiate a case;
• formulate an accusation;
• initiate further investigation due to insufficient evidence.

These functions are performed by the prosecutor. Because of this, there is an unequal position of the parties. Constitutional proceedings presuppose the absence of a procedural opponent. But this does not relieve the applicant from the obligation to present arguments. Thus, the functions of the initiator of the case are differentiated.

An active role of the court is allowed in administrative proceedings. If one of the parties to the dispute is a representative of public authority, the judge can assist the “weak” participant, from the point of view of the law. In civil proceedings, on the contrary, the court plays a more passive role. Legal principles are of utmost importance in creating the conditions for a comprehensive and impartial examination of all the circumstances of the case.