On the development of the procedure for judicial investigation in criminal proceedings

Changes in the social and political systems and criminal proceeding legislation have not lead to changes in the mentality of Russian scientists, who presume possibility of gathering evidence during pretrial investigation. In this situation, the court should use evidence received during pretrial investigation or received even at the stage of initiation of a criminal case. Pretrial evidence subjects court evidence so that the latter becomes only a formal fact. It can be concluded that these are "steps of investigative framework". Meanwhile, only an adversarial system of a criminal proceeding corresponds to fair trial. Adversary techniques of proof are different from investigative techniques, that is why it is necessary to change not only notions, but their content too. It is essential to distinguish evidence which is used by both parties while preparing to trial and court evidence. Only court evidence, evidence taken before the judge, is criminal proceeding proof. Pretrial activity of both parties should be excluded from criminal proceedings. It cannot make legally valid consequences for the court until its results are presented in court and examined by those interested in the outcome of a case. Analysis of the draft Federal Law No. 272128-6 "On making amendments to the Criminal Procedure Code of the Russian Federation" and comments of the Committee of the State Duma on Civil, Criminal, Arbitration, Civil and Criminal Procedure showed that if deputies try to improve this draft law considering all comments of the Committee, the draft law will change or even lose its main idea. Nothing will change in judicial investigation and criminal proceeding evidence. In this situation, the author suggests paying attention to the Criminal Procedure Code of Georgia. It provides that evidence should not be presented in court, if both parties did not have an equal opportunity to examine it with exceptions provided by the law. Parties are entitled to demand the witness testimony itself or present their own evidence. In such a case the criminal procedure law of Georgia provides an opportunity to move a motion to court to use a compulsory process for a witness who did not come to court. There is an institute of consignation in the criminal procedure law of Georgia. With the help of consignation, several problems of pretrial investigation are solved by the investigative judge. This step of the trial is unknown for the Russian theory of criminal procedure. Creation of the criminal proceeding order, which is relevant to European standards of fair trial, is possible only following the reform of pretrial investigation. Without this reform all attempts to improve the criminal proceeding order are futile.

Keywords

Authors

References