Types of directness in the criminal process

The article dwells on the different nature of directness in the Anglo-American and continental types of the criminal process due to the difference in the criminal process underlying these types of adversarial and investigative methods of establishing the circumstances of the criminal case. Taking into account the criminal procedural theory and legislation of the countries of continental Europe (Germany, the Netherlands, and Switzerland), the author justifies the necessity of developing directness in the theory of the Russian criminal process. The structure of the principle of directness by content consists in formal and material directness. Formal directness is functionally designed to answer the questions of who and what for (the subject-target side of directness), and how (the technological side of directness) carries out the study of evidence. The function of material directness consists in answering the question what is being investigated (the objective side of immediacy). By the mode of functioning, the author distinguishes ordinary, facultative and extraordinary directness. The directness is ordinary if the general rule is the direct investigation by the court of evidence in the judicial proceedings, with exceptions objectively conditioned and clearly defined by law. With optional immediacy, the direct investigation of evidence in the course of a trial can be made both with regard to individual initial evidence and, theoretically, even to the same extent as in the framework of ordinary immediacy, if such a decision is taken by the court for the purpose of rendering a verdict, and, conversely, in the absence of statutory cases of compulsory examination of evidence, the court may confine itself only to the examination of case materials collected during the course of the trial proceedings. In case of facultative directness, the direct investigation of evidence in the course of trial can be made both with regard to individual initial evidence and, theoretically, even to the same extent as within the framework of ordinary directness, if such a decision is taken by the court for the purpose of rendering a verdict. Conversely, in the absence of statutory cases of compulsory examination of evidence, the court may confine itself only to the examination of case materials collected during the course of the trial. Extraordinary directness presupposes the mode of investigation of evidence by the court when the general rule in accordance with the law is the investigation of the written materials of the criminal case. The law may establish a list of cases that provide for the right and (or) the duty of the court to directly investigate the initial evidence. Unlike facultative directness, extraordinary directness cannot provide direct investigation of the entire body of evidence by the court, including by the court's decision, due to legislative limitations. The author supports the idea of reforming the special procedures of the trial in the Russian criminal process through the mode of facultative directness.

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