Problems of implementation of the adversarial principle in the election of measures of restraint

The authors note that at present the vast majority of law-making scientists consider competition to be among the principles of the criminal process. However, this approach does not prevent them from finding that in pre-trial criminal cases the implementation of this principle is largely limited. The current Code of Criminal Procedure of the Russian Federation, in comparison with the pre-reform criminal procedure legislation, provides the defense party much more opportunities to defend its own interests, appeal actions and decisions of the pre-trial investigation bodies. Nevertheless, the existing pre-trial model does not imply full implementation of the principle of adversarial before a criminal case is brought to court. At present, preventive measures in the form of detention, house arrest, bail, as well as the prohibition of certain actions are elected against the suspect, the accused solely on a judicial decision. The procedure for their election is designed to ensure that the defense has the maximum power to bring to trial its arguments regarding the validity and appropriateness of applying to the suspect, accused custody, house arrest, bail or the prohibition of certain actions. Unfortunately, the criminal procedure legislation maintains separate provisions that negatively affect the implementation of the principle of competition when the court permits petitions of investigators and investigators for the election of a preventive measure. The analysis of statistical data shows that in the vast majority of cases the courts satisfy the requests of the investigation bodies for the election of a preventive measure, the extension of its application. But this does not necessarily reflect a lack of contestability in the making of the relevant court decisions. The article raises the problem of discrepancies between the positions of the investigator, the head of the investigative body and the prosecutor regarding the need to select a preventive measure and its specific type. Any disagreement between the parties to the criminal proceedings representing the prosecution would appear to be resolved before recourse to the court, and could not be subject to judicial review. The authors justify the opinion that it is not advisable to introduce a requirement for the mandatory participation of the victim in the resolution of the court on the election of a suspect, an accused person preventive measure. Such an order would have a negative effect on the time-frame for the court to consider the relevant applications. Nor is there any support for the permissibility of securing the participation of a suspect accused in a trial through video conferencing. In addition, the party of the defense should be given the opportunity to familiarize itself with the materials sent by the preliminary investigation bodies to the court in support of the application for the election of a preventive measure.

Keywords

Authors

References