Realization of the adversarial principle at the stage of preliminary investigation

According to Item 3, Article 123 of the Constitution of the Russian Federation court procedure is exercised on the basis of adversarial principle and equality of rights of the parties to a trial. The realization of this principle creates extremely favorable conditions for the search for truth and fair sentencing. The basis for adversarial legal proceedings proclaimed in our Constitution shall be laid down in the course of pretrial stages when the bulk of evidence is being gathered. The parties to a trial should be equal, each having its own set of either accusatory or acquitting evidence. Being set forth in the Criminal Procedural Code of the Russian Federation as a principle of criminal law, the adversarial principle is realized at a pretrial stage insufficiently. Thus, the principle implies the existence of three subjects: prosecution, defence and court (an impartial body). But the stage of preliminary investigation involves the parties to contend but does not involve any arbiter that is necessary for the realization of the adversarial principle. There is no procedural equality at a pretrial stage. Gathering of evidence is a prerogative of the officials involved in the proceedings but the possibility to use it by a lawyer depends on the discretion of an investigator - a party of prosecution. A lawyer addresses his motions on taking acquitting evidence to his procedural opponent. No doubt, in practice there are cases of unreasonable denials of motions. Therefore, lawyers prefer to offer their own evidence in the course of a trial but not at the stage of preliminary investigation. Although, there is a danger to have some important information lost before the trial. All this violates the adversarial principle in court. A prosecutor supports his charges on the investigator's materials; a lawyer in a best case scenario, seeks to find faults in the work of an investigator or at the worst, prefers to be a passive observer in the proceedings. One of the possible ways of reforming a preliminary investigation on the adversarial basis in Russia is to create the institute of investigative judges. This issue is being widely discussed in legal writings. The author of the present article believes that it is impossible to realize the requirements of Part 3, Article 123 of the Constitution of the Russian Federation without broadening the powers of judges. It is the investigator who forms evidence at a pretrial stage; there is no current control over proving at this stage and the possibilities for a lawyer to appeal the investigator's decisions in court are rather limited. The creation of the institute of investigative judges in criminal procedure in Russia will enable us to equalize the possibilities for the parties to a trial in proving, to realize the idea of the lawyers' parallel investigation and encourage the defence to cognitive activity aimed at obtaining acquitting evidence.

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