An adversarial system in the Russian criminal procedure: desired and true things

At the beginning of the article, the author argues that criminal law and criminal procedure are public branches of law, where the interest of the state is higher than the interests of the individual. When considering the positions of different scientists, the author concludes that the real process is always a compromise between an ideal adversarial system and ideal publicity, between the possibilities and the desire of the individual to be active in defending their interests and the ability of the state to cede its powers to the individual. The author goes on to make arguments that support the contradiction between the ideal theoretical model of an adversarial system, the image of which exists in the ideas and scientific writings of individual authors and the practical embodiment of an adversarial system in criminal procedure of Russia. The author substantiates that there is no and cannot be equality between the parties in the criminal process, because from the same idea of an adversarial system - separation of functions, the parties have completely different purposes, and therefore, powers. The only thing they can be equal in is in the presentation/collection and evaluation of evidence, or rather the information that will then be recognized by the court as evidence. But to do this, it is necessary to "destroy" the existing "search" theory of evidence, which is expressed in the fact that the evidence appears as a result of the activities of the investigative bodies and the prosecutor. For an adversarial process, only such content of the theory of evidence is possible, in which evidence appears only as a result of the court's activities after the examination of the information provided by the parties. Analyzing the arguments of supporters and opponents of the idea of the active role of the court in criminal procedure, the author concludes that under the most adversarial model, criminal procedure does not cease to be a branch of public law, and the court - to be the body of state power, even an independent one from other authorities of the state. Given this essential circumstance, the answer to the question of the active role of the court in the criminal process becomes apparent. An adversarial process itself is possible where and when the court is independent in its decision-making. The safeguard of independence to the court enables us to implement the principle of an adversarial model because: first, the court is not under anyone's influence and pressure, and it is the parties competing in the trial that will determine the outcome of the case. The independence of judges can only be ensured by a system of safeguards established in the law that allow justice to be administered independently of anyone's influence. In conclusion, the author notes that the paradox of Russian law is that during the judicial reform of 1991 in the Russian Federation there was a refusal to form a judicial corps through elections. The procedure of appointing judges by the president of the country is proclaimed a democratic conquest. This is the essence of contradiction. On the contrary, electability is a sign of democracy and independence, and appointment is a characteristic of hierarchy and subordination.

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