Modern legal positions of the RF Constitutional Court on the correlation of the adversarial principle and activity of the court in a criminal procedure

The decision of the RF Constitutional Court No.16-P of July 2, 2013 has sharpened the debate about the necessity of an institute of return of the criminal case to the prosecutor at the court's initiative for retreatment of the act, which worsens the position of the accused, in domestic criminal procedure. This problem must be discussed with considering the possible and permissible degree of activity of the court in the criminal process, taking into account the adversarial principle. The modern content of the adversarial principle includes the following elements: separation of the functions of the prosecution, defense and resolution of the criminal case; inadmissibility of giving more than one function to one and the same agency or official; creation of conditions for the performance by the parties of their procedural rights and responsibilities; equality of the parties before the court, which means the parties have equal rights and opportunities to defend their interests. A conclusion is made that to ensure the full, comprehensive and objective resolution of the criminal case, the court must be able to compensate for the lack of activity of both parties. The opinion is given that the adversarial principle does not preclude the collection of additional evidence by the court, which is possible under certain conditions. The analysis of the decision of the RF Constitutional Court No.16-P of July 2, 2013 shows that the highest judicial body actually directs lawmakers to return the institute of further investigation, since if the criminal case is returned for the modification of criminal charges, which worsens the position of the accused, the investigator must hold a series of investigatory actions. The analysis of the content of the adversarial system and its relation to the activity of the court in the criminal process, suggestions on the available extent of such an activity are made. Thus, when returning the criminal case to change the charges, which worsen the situation of the accused, a number of conditions must be fulfilled: the court is not entitled to give instructions to correct the violations found; return of the criminal case to the pre-trial proceedings is possible only at the request of a party; the court in the same composition may not consider the criminal case again. These conditions together form the available extent of the activity of the court when returning the criminal case to the prosecutor. Thus, this decision of the Constitutional Court is not completely flawless, as court activity limits are not defined, which may lead to a breach of the adversarial principle.

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