On the activity of the court in adversarial criminal proceedings

One of the most debatable problems is the problem of the correlation between the adversarial nature of the criminal procedure and the limits of the permissible activity of the court in the examination and resolution of criminal cases. A great contribution to the comprehension of this issue was made by M.K. Sviridov. Consistently defending the position on the decisive role of the court in criminal proceedings and the detrimental consequences of its connection with the opinions of the parties, the scholar determines the limits of the permissible activity of the court and notes that the efforts of the court should not be aimed at collecting the missing evidence alone, but at influencing the parties so that they in full provide the court with all the necessary evidence. The ability to collect evidence independently by the court is primarily connected with the need to verify the evidence provided by the parties. During the consideration of the criminal case on the merits, there may be situations where, in order to make a reasonable and just sentence, the efforts of the parties may not be enough, and the court must take certain cognising actions, including collection of evidence. One of such situations is claims made by the defendant during the court session on exerting pressure on them, on using unlawful methods of investigation. As a consequence, the defendant refuses from their testimony given during the pre-trial proceedings, including in the presence of the defender. The lack of efforts by the parties to present evidence in this situation may be due, inter alia, to the lack of an effective mechanism for investigating claims of the accused about unlawful methods of investigation. The authors come to a conclusion that it is necessary to refrain from understanding the role of the court in the adversarial procedure as being exclusively passive. The right of the court to carry out active actions, including collection of evidence that either confirms or refutes the evidence submitted by the parties, if the interests of justice so require, must be recognised not only at the level of law enforcement practice but also at the doctrinal level.

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