Pretrial cooperation agreement: problems and solutions

Currently, the Russian Federation has two fundamentally different types of "guilty" verdicts of the criminal court: sentences according to the standard procedure and judicial acts by the court according to Chapters 40 and 40.1 of the Criminal Procedure Code of the Russian Federation (RF CPC). The study of the norms of Chapter 40.1 of the RF CPC gives the impression that the court, in view of the legislator, is not intended to administer justice when hearing cases according to these norms. Article 90 of the RF CPC states that circumstances established by a final and binding court verdict according to Chapters 40 and 40.1 of the RF CPC do not have a prejudicial nature. The provisions of Art. 317 on the inadmissibility of the appeal of the court verdict, delivered according to the special procedure, based on the non-compliance of court findings with the factual circumstances of the case are also enshrined in the RF CPC; thus, the legislator consciously allows the imposition of an act non-complying with the reality. However, the sentence non-complying with the objective reality, contrary to the circumstances of the offense, is not an act of justice. Since the behavior of the prosecuted person is discretionary, it is impossible to forbid him to cooperate with the preliminary investigation bodies. However, the mechanism for such cooperation as enshrined in Chapter 40.1 of the RF CPC, is inefficient and bears the risk of unfounded judgment of both the "cooperating" person and, in particular, persons he testifies about. A disadvantage of a cooperation agreement is a result of the requirement of Part 4 Paragraph 1 Art. 154 of the RF CPC to separate criminal cases that involve cooperating persons into separate proceedings. The preliminary investigation and trial in a single investigation and one-stage consideration of the case, when the totality of the evidence in the case is examined in the same process, allow establishing the role of each of the accomplices more precisely and fully than in the separation of cases. In order to deliver a legal, justified verdict it would be logical to exclude the provision of Part 4 Paragraph 1 Art. 154 of the RF CPC on separating criminal cases that involve cooperating persons into separate proceedings. Persons wishing to cooperate with the investigation and testify against accomplices must do so within the framework of the general, standard procedure of the criminal trial, without separating cases against them into a separate proceeding. To encourage such persons, the RF Criminal Code and the RF Criminal Procedure Code should preserve the preferences on punishment currently in force in respect of persons cooperating with the investigation. In addition, it is necessary to exclude the provision on the inadmissibility of the appeal of the court verdict based on the non-compliance of court findings with the factual circumstances of the case from the RF CPC as it discredits the idea of justice.

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