The adversarial nature of of the parties in special proceedings (Article 40 of the Russian Federation Code of Criminal Procedure) and its derivatives

The article studies the implementation of the adversarial principle in the simplified proceedings of the criminal process in Russia. The author concludes that, striving for the absolute adversarial nature, simplified procedures at the extreme also demonstrate the principle of publicity. The prosecution shows internal contradictions suggesting that the interests of the victim and in some cases of the society as a whole be not fully considered. Showing the extreme adversarial nature, special proceedings and procedures related to it also demonstrate the principle of publicity, because they are too strictly focused on the goal of procedural economy and the interests of the state, while the interests of the and even of the society become subordinate. Each of the procedures discussed implies the recognition by the defense of the criminal action; however, it has a different effect on the structure of proof carried out within them. In the first two cases, the process of simplification of proof is rather local and covers only one trial cycle of evidentiary activity. The abbreviated inquiry also involves the recognition of the criminal action by the defense; however, the desire of the legislator to extend the procedure simplification to cover both the pre-trial and trial stages simply reduces the requirements for the reasons of such a claim. The legal structure of simplified court procedures currently involves too many contradictions that are visible both when viewed in terms of differentiation of criminal proceedings and when the legal structure of the criminal action is used to create a special procedure and its derivatives. Theoretically, the system of simplified procedures must be based on common grounds that presuppose that the principle of publicity and adversarial principle are in balance, with none of them dominating. It allows taking into account the interests of all parties to the social conflict associated with the committed crime. To achieve this goal it is necessary that the simplified procedures use a common standard of protecting the rights of the victim as of the subject performing additional accusation function as well as the authority of the court as of the subject resolving the criminal case on the merits. Besides, the related simplified legal procedures should ensure full implementation of clearly defined and unambiguously interpreted positive forms of post-criminal promoted by the mitigation of the punishment under the criminal law.

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