Concept and classification of subjects of criminal proceedings

All bodies and persons vested with rights and responsibilities in criminal proceedings, called upon to perform functions specified by law in initiating, investigating and resolving specific cases, are called participants in criminal proceedings.

They are classified according to their legal significance and function into main and other subjects of the process. The first group includes: the court, the prosecution and defense. Witnesses, experts, specialists, translators and witnesses play an auxiliary role in the proceedings.

The concept of participants in criminal proceedings and their classification

Participants in the criminal process, designed to determine the degree of guilt of the subject, are all individuals and officials involved in it and endowed with rights, as well as responsibilities that manifest themselves within the framework of the meeting.

The classification of subjects of criminal proceedings is based on procedural functions. Thus, the following groups of subjects of criminal proceedings can be distinguished: prosecution, defense and court.

Despite this, when classifying subjects, four self-sufficient types of participants in the process are distinguished:

• The judiciary is an independent and impartial body that does not take into account any interests other than the rule of law. The instance acts as the process itself. In this regard, quite often the court is not considered as a subject of criminal proceedings;
• accusation. This group is represented by a large number of officials serving in the search, investigation and inquiry agencies. This group also includes individuals and legal entities that are the injured party;
• protection. The main subject of the criminal process on the part of the defense is the lawyer of the suspect, accused or defendant. Of course, there may be several of them. Without the presence of this group of subjects, the procedure itself does not have the signs of a fair, independent and impartial court;
• other subjects. For the most part, these are persons who can influence the assessment of evidence and characterize the personality of the defendant. Most often these are experts in different fields.

Subjects of criminal proceedings, regardless of belonging to one of the groups, have their own procedural powers that allow them to be identified. In simple words, the rights and obligations of a participant in the process are a classification feature that allows the subject to be included in one or another group.

Lift the veil of secrecy: how participants in criminal proceedings are classified

Protections are provided to those who assist in the investigation of crimes if they are threatened in doing so. The most popular technique is secrecy. In this case, the investigator (investigator, prosecutor, court) makes a decision to keep personal information (last name, first name, patronymic, place and date of birth) secret, which is packed in an envelope, sealed and in this form attached to the case file. The envelope can only be opened by the person who classified the participant in the process and the court - the data must be inaccessible to everyone else.

Reasons for classification

The use of protective measures is often driven by fear of retaliation. One of the most famous cases of secretization of witnesses was the case of the organized crime group Hadi Taktash. The accusation was based only on the testimony of the killer of this organized crime group, who later completely abandoned it. Since other witnesses, fearing reprisals from the remaining gang members, did not agree to testify, investigators were forced to ensure their complete confidentiality. “To achieve this, law enforcement officers pulled a sheet over the doorways of their offices, put knitted balaclavas on eyewitnesses of crimes and applied professional makeup to their faces. Despite unprecedented security measures, it was not possible to protect all the witnesses. Both during the investigation and during the trial, under unclear circumstances, several people died who testified against the leader of “Hadi Taktash,” said Valery Volokh, head of the Criminal Law Practice of AB “A-PRO”.

Convicts who assist in the investigation of crimes also need secrecy. “Since it is not customary for convicts to cooperate with law enforcement agencies and the court, such persons are persecuted according to the unwritten laws of prisons, using violence against them up to a real threat to life,” Volokh said. Another reason for maintaining confidentiality may be the position held by the person. “For example, disclosing information about the identity of an operational officer of the Ministry of Internal Affairs, the FSB or another body who is a witness in a criminal case will undoubtedly jeopardize his further participation in such operational investigative activities as test purchases, operational implementation and controlled delivery. In addition, an operational officer and an employee of the Foreign Intelligence Service may be threatened by representatives of the criminal world and foreign intelligence services,” Volokh added.

Classification occurs only when a person has real fears for his life and health, as well as the life and health of loved ones - for example, when he receives threatening notes or messages. “However, there are often cases when an investigator classifies data on his own initiative. At the same time, he does not always want to protect the participant in criminal proceedings - sometimes the investigator simply abuses the restrictions that appear in connection with the impossibility of disclosing the data of the person being interrogated,” said lawyer, partner of ZKS Law Firm Sergei Malyukin. The existence of such a vicious practice was confirmed by the ex-investigator of the Main Investigative Directorate of the Investigative Committee of Russia in Moscow, lawyer of the Zabeida and Partners Law Firm Artyom Yudin: “In one of the criminal cases that was being processed by the Investigative Committee of the Main Investigative Directorate of the Main Directorate of the Ministry of Internal Affairs of Russia in Moscow, the witness was classified. The investigator conducted about 2-3 interrogations and identifications with him. The accused and the defense lawyer learned about this only during their review of the materials of the criminal case (Article 217 of the Code of Criminal Procedure). The investigator refused the request for a confrontation between the classified witness and the accused. At the same time, the main arguments of the prosecution were based only on the testimony of a classified witness - apart from this testimony, the guilt of the accused was not confirmed by anything. All subsequent actions of the investigator were structured in such a way as to at least somehow confirm these testimonies and in no case refute them. Taking into account the fact that no one saw the classified witness, it can be assumed with a high degree of probability that the investigation deliberately made such a move and, in fact, the classified witness could act as a dummy.”

Even if a participant in the process is truly in danger, classifying him as secret does not always make sense. “It is not possible to classify a person at the stage of initiating a criminal case, since the statement of crime is signed by the applicant (parts 2-3 of Article 141 of the Code of Criminal Procedure),” Yudin said. He also noted: problems arise when a participant in a criminal process was first interrogated using his real personal data, and after that threats began to be received against him. “As practice shows, classifying victims does not always lead to the final goal and is effective. It makes sense only when the defendant and the victim did not know each other before the incident. Classifying witnesses is more effective, since their circle can be unlimited, and information about each of them is not always known to the defendant,” said Sergei Borodin, managing partner of Borodin and Partners.

“Classification of a participant in the process is an important institution of criminal procedural law. Law enforcement agencies must be very responsible in maintaining the confidentiality regime in relation to such persons, because they often convey invaluable information about a crime being prepared or committed, risking their own lives and the lives of their loved ones.”

Valery Volokh, Head of Criminal Law Practice at A-PRO Law Firm

Classification procedure

Procedural actions with classified persons are carried out slightly differently:

• such persons are assigned a pseudonym, which is subsequently used in all procedural documents. “There are no restrictions on the use of pseudonyms, so in practice, people with the personal data of movie heroes, actors, musicians and politicians often become participants in criminal proceedings,” Malyukin said. In this case, only a judge can verify the identity of an anonymous person;
• persons whose original data have been changed sign all documents with a new signature sample;
• interrogation, confrontation and identification with the participation of classified persons take place in conditions that exclude visual observation and with the use of technical means that change the voice. For example, the mobile version of the system for anonymous interrogation of witnesses “Themis” consists of two laptops, a voice changing device and a webcam so that the anonymous person can see what is happening in the room, but he cannot;
• all decisions in which a classified person appears are disclosed only partially - so that the identity of the anonymous person cannot be determined from the contents of the document;
• questions, the answers to which could reveal information about a classified person, are not asked during interrogation (and if they are asked, they are removed by the court). Usually, such a person only finds out whether he knows the defendant and whether he has a hostile attitude towards him;
• information provided by an anonymous person who cannot indicate the source of his knowledge (or refers to rumors, guesses and assumptions) is recognized as unacceptable evidence (clause 2, part 2, article 75 of the Code of Criminal Procedure);
• a signature on criminal liability for knowingly false testimony or refusal to testify is taken from a classified person by the judge, and not by the secretary of the court session;
• information about classified witnesses can be disclosed only by court decision after the parties submit a substantiated petition (Part 6 of Article 278 of the Code of Criminal Procedure).

When secrecy is not enough, they can resort to relocation, replacement of documents, or change of appearance. “Legending is actively used - a person is given new documents about education, work experience, previous place of residence,” said Ilya Zhuravkov, lawyer at Yusland Law Firm. However, such security measures are carried out only in criminal cases of grave and especially grave crimes within the framework of the law “On State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings” (119-FZ).

Classification problems

Experts noted: in practice, the protection of a classified person is often hampered by poor logistics for investigators and courts. “Not all courts have specially equipped premises and the ability to provide audio communication between it and the courtroom. In addition, it is quite difficult to deliver, escort and escort classified persons in isolation, especially when criminal cases are being considered in courts for a long time,” Zhuravkov is sure. “Some courtrooms (especially in the regions) do not have a voice changer or a separate room. In this regard, it is necessary to resort to various tricks in order to ensure anonymity and not conflict with the norms of the Code of Criminal Procedure. For example, sometimes witnesses are brought to court in tinted cars, wearing masks and robes, and then interrogated in the basement of the building. In this case, the judge collects questions in writing, goes down to the anonymous person and asks them. Then he returns to the hall, announces the answers and gives the parties the opportunity to ask additional questions,” Volokh said.

Sometimes the human factor becomes a problem. “When a voluminous criminal case is transferred from one investigator to another, the circle of people aware of the anonymous person significantly expands, and the likelihood of information leakage increases. It happens that the courts do not want to interrogate a classified person due to technical difficulties and the unusual nature of the interrogation and limit themselves to the disclosure of testimony given during the preliminary investigation,” Borodin said. “Sometimes judges simply remove the defendant and his defense attorney from the courtroom during the interrogation of a secret person. I believe this affects the fairness of the trial. The right of a defendant to question a witness who is testifying against him is an important element in achieving objective truth. Moreover, the defense can only learn about the testimony of such a witness from the protocol of the court session,” says Andrey Tuzov, senior lawyer at Egorov, Puginsky, Afanasyev and Partners.

According to experts, the measures used to work with classified persons do not always ensure their safety. “In my practice, there were several criminal cases of an economic nature in which the personal data of witnesses was classified. But law enforcement agencies did not get the desired effect from this: the witness statements contained information to which the company had limited access. Accordingly, it was obvious to everyone who these witnesses were,” shared lawyer Angela Glamazdina, lawyer at the Criminal Defense Business Practice of Bryan Cave Leighton Paisner (Russia) LLP. “In almost every criminal case considered with the participation of lawyers from our bureau, at the preliminary investigation stage there is a witness under a pseudonym. At the same time, during the interrogation of such a witness, the investigator mainly fulfills only formal requirements, and, based on the analysis of the testimony of this witness, a lot can be understood about him. There were also cases when an envelope with an investigator’s decision on the use of a pseudonym, along with other materials of the criminal case, was presented to the defense for review,” said Ruslan Koblev, managing partner of Koblev and Partners.

“The difficulty of investigating and considering criminal cases involving persons whose information is hidden lies in funding, professionalism of employees, as well as the large time costs of carrying out these activities.”

Ilya Zhuravkov, lawyer at Yusland Law Firm

Legal regulation

All protective measures are applied to participants in criminal proceedings either on the basis of the Criminal Procedure Code or on the basis of 119-FZ. According to the Code of Criminal Procedure, they last as long as the investigation and consideration of the case; at the same time, the investigator and interrogator apply such measures in relation to the victim, his representative, witness (part 9 of article 166, part 2 of article 186, part 8 of article 193, paragraph 4 of part 2 of article 241, part 5 Article 278 Code of Criminal Procedure).

According to 119-FZ, protective measures are in effect until the relevant grounds no longer exist (including after a verdict has been passed, compulsory medical measures have been applied, a decision has been issued on release from criminal liability or punishment). At the same time, they apply to a wider range of people:

• victim;
• witness;
• private prosecutor;
• suspect, accused, defendant, their defenders and legal representatives, convicted, acquitted, as well as persons against whom the criminal case or criminal prosecution was terminated;
• expert, specialist, translator, witness, as well as a teacher and psychologist participating in criminal proceedings;
• civil plaintiff, civil defendant;
• legal representatives, representatives of the victim, civil plaintiff, civil defendant and private prosecutor (Article 2 119-FZ).

According to Zhuravkov, along with other subjects of state protection, it is advisable to legislate for jurors. Currently, jurors are protected by bailiffs only in the courthouse.

Foreign experience

The ECtHR has repeatedly stated that the classification of witnesses is an exceptional measure and is applied only in cases where other measures cannot ensure the safety of the person to be protected (for example, the case of Doorson v. the Netherlands and the case of Van Mechelen et al. v. the Netherlands). This is due to the requirements of the European Convention on Human Rights - it enshrines the right of the accused to interrogate persons testifying against him (clause “d” of Part 3 of Article 6 of the Convention). The Council of Europe even adopted Recommendation No. R (2005) “On the protection of witnesses and collaborators of justice”, according to which the reasons for applying a security measure to a participant in criminal proceedings must be exceptional (i.e. a serious threat to life). According to Zhuravkov, in Belgium and Italy, protective measures are used when investigating specific crimes (drugs, mafia activities, premeditated murders), as well as crimes for which the punishment ranges from 5 to 20 years in prison. In Romania, classification is applied only for an exhaustive list of crimes, in Lithuania - for serious crimes, in Hungary - for organized crime, in Slovakia and Slovenia the crime committed does not play a role in the application of protective measures.

In neighboring countries, the institution of secret participants in criminal proceedings is more in demand. “In Kazakhstan, one of the security measures for a person participating in criminal proceedings is to limit access to information about him. This restriction is very similar to what exists in Russia: only there the personal data of the anonymous person is stored separately from the main production,” Yudin said. Art. 172 of the Code of Criminal Procedure of the Republic of Tajikistan provides: if there are grounds to believe that it is necessary to ensure the safety of the victim, his representative, witness and members of their families, the investigator has the right not to provide information about their identity in the protocol.

In the United States, the Organized Crime Control Act witness protection program has been in effect for more than 40 years and is used during complex trials. According to Volokh, a classified witness in the United States can be brought to court by helicopter, mail truck or fishing boat. “On one occasion, as a distraction, the marshals created an image that a witness was being transported to court in an armored car with a full escort, while the real witness arrived in a modest taxi and entered the courthouse through a side door. Such measures pay off greatly. Since the inception of the program (1970), in 89% of cases, witnesses have been protected and provided the required testimony in court. As a result of their evidence, more than 10,000 particularly dangerous criminals were convicted. Once a witness is accepted into the program, the Marshals Service creates a new identity for him and selects a new place of residence,” Volokh said.

“When participating in cases with such special witnesses, the defense attorney needs to be as careful as possible when examining the grounds for classification and the testimony of these individuals. The use of a classified person may hide not only the incompleteness and unprovenness of the accusation, but also the falsification of evidence in the case.”

Sergey Borodin, managing partner of Borodin and Partners JSC

• Alina Mikhailova

Court - body of justice

The subjects of criminal proceedings, their classification and their concept are important not only from a theoretical point of view. Division into groups allows you to achieve the main thing - the implementation of fair justice. This can be proven in detail by studying the groups listed above, and first of all the court itself, which is essentially the curator of the legality of the application of rights.

The Code of Criminal Procedure of the Russian Federation clearly spells out the issues related to the organization of the trial process and the actions of judges. If the latter go beyond the law, then their decision can be appealed and canceled. Thus, despite its self-sufficiency, the court is still subject to the norms and rules established by the legislator.

Russian courts have a clear hierarchy. Thanks to this, the judiciary not only makes sentences, but also monitors their correctness. We are talking about supervision and cassation. If the rights of a participant in criminal proceedings have been violated, he has the right to appeal to the head of a higher authority, who will make a decision on this issue.

The judicial power of the Russian Federation has equal power with the legislative and executive, but the procedure for its formation has significant differences. Law enforcement practice, present in the work of judges, determines a special set of criteria for selecting candidates for the judiciary. This may include both age and experience in the field of law.

The special selection criteria are determined not least by the fact that the court, considering cases of various compositions, must be able to competently apply the law, correlating it with the materials and factual circumstances. Thus, in order to obtain a position as a judge, a person is required to pass an exam, which is preceded by practical training as a secretary or assistant judge.

Concept and classification of participants in criminal proceedings in court

Legislators and the state as a whole are interested in ensuring that justice is administered fairly and honestly. In this regard, conditions of increased comfort have been created for employees of the judicial system. The main subject of the criminal process is divided by jurisdiction into a number of categories. Currently there are 5 of them. Each category has its own procedural framework.

The competence of the court is delimited. This is due to the fact that it is assumed that representative offices will be divided into certain territorial zones and structural units, for example, when it comes to considering cases in which employees of the RF Armed Forces are accused. The division is also made into certain areas that serve population groups ranging from 15 to 30 thousand people. Such a division helps reduce the burden on judges and provides an opportunity for every person to realize the right to justice.

Another guarantee of the impartiality of the court is the provision that states that a criminal case can be considered either by a single judge or by a certain panel. This approach gives legitimacy to the process itself and the verdict.

Criminal justice authority

course work on this topic

Criminal law.
The general part is more detailed, only the court has the right to consider criminal cases and make sentences on the basis of which guilty persons can be subject to criminal punishment. And this power is granted only to courts of general jurisdiction. Are you an expert in this subject area?
We offer to become the author of the Directory Working Conditions Along with the responsibilities directly related to the administration of justice, these authorities must also monitor the legality and validity of the actions and decisions of law enforcement agencies.

The allocation of judges to an independent group of participants in criminal proceedings is due to the procedural function they perform in resolving the case.

When analyzing the specifics of the powers of the court, it is important to take into account that it also plays an important role at the stage of execution of sentences. This authority, for example, has the right to toughen the punishment in case of malicious evasion from serving it or to release the convicted person from prison due to illness.

Another type of control powers of the court concerns the consideration of complaints caused by the disagreement of interested parties with the investigative actions taken or the verdict passed.

At the pre-trial stages of the criminal process, the court has a real opportunity to actively eliminate the negative consequences of illegal and unreasonable actions and decisions of law enforcement agencies. Thus, the constitutional rights and freedoms of citizens are protected.

Finished works on a similar topic

Course work Participants in criminal proceedings 470 ₽ Abstract Participants in criminal proceedings 240 ₽ Test work Participants in criminal proceedings 210 ₽

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In connection with the general characteristics of the status of the court in criminal proceedings, it should be noted that the law recognizes the high authority of its decisions (rulings, orders or sentences). After entering into legal force, they are subject to strict execution on the territory of the Russian Federation. We have already completed an abstract

Statehood of Russia. in more detail by all participants in legal proceedings, state authorities and local governments, public associations and officials. That is, court decisions are generally binding.

Figure 1. Participants in criminal proceedings. Author24 - online exchange of student work

Prosecution

When considering the subjects of criminal procedural evidence, the prosecutor should be highlighted first. The Code of Criminal Procedure does not indicate subordinate persons within the prosecutor's office. However, deputy prosecutors and the prosecutor general chosen by the Presidium have the same procedural rights.

In addition to acting as a public prosecutor, this subject is responsible for monitoring the legality of the actions of persons conducting events preceding the trial. We are talking about investigative and inquiry bodies. Thus, the prosecutor, as a subject of criminal procedural evidence, participates in the preliminary investigation and court hearing.

The Prosecutor's Office is vested with the powers of the main supervisory authority and defender of the rights and guarantees enshrined in the Constitution of the Russian Federation. A representative of this body builds an accusation against the person who has violated the law. But at the same time, he makes sure that his rights are not violated, both during the preliminary investigation and in court.

The RF Investigative Committee may also be the prosecution party. It functions in tandem with the prosecutor's office, since it is she who gives instructions to initiate criminal cases. It should be taken into account that the investigator is an independent subject.

Investigators have almost equal opportunities with the investigative committee. They have the right to work only on those cases in which the offender has already been identified. The investigation department cannot participate in preliminary search activities. At the same time, the investigator has a functional basis for organizing office work. This is required when traces of an illegal act have not been established or there is a need to secure them. Investigators report to the prosecutor's office and the investigative department. In fact, the investigation department is not independent.

As was said earlier, the described group of subjects also includes victims. Their position can be judged from the fact that they were harmed. In addition, half of the evidence base is provided by the victims. The injured party can be either an individual or a legal entity. We must not forget about such a participant in legal proceedings as the private prosecutor, who is also the victim.

Citizens outside the proceedings

In addition to the persons presented above, there may also be other participants in criminal proceedings who can be appointed, but their presence may not be required. Usually these are people directly related to the case in question:

• Participants in the trial, who may be invited from each side, often appear as witnesses.
• The expert carries out actions based on his professional skills. Engaged by the court to draw up a report on the necessary materials that require professional consideration.
• Translators can also be included on the defense and prosecution sides. This category of citizens is provided if one of the parties does not speak Russian.

Important! The rights and obligations of participants in criminal proceedings must be respected regardless of the status or category of cases. The court and each of the representatives of the parties can invite only those persons who are directly indicated in the procedural documents.

All persons participating in the trial must be registered before the hearing of the case itself . The court must receive lists of persons to invite to consider all evidence and, if necessary, call them as citizens with certain statuses in court.

The average person, when faced with criminal trials in one way or another, is guided by a common vague formulation, the essence of which boils down to what the prosecutor will add. Implying at the same time that the state prosecutor, in whose role the employee of the prosecutor’s office acts, aims to imprison a suspect in committing a crime, like the Count of Monte Cristo, somewhere in a distant colony, closer to polar bears, until the end of time. And although, as people say, there is no smoke without fire, we decided to give the floor to Assistant City Prosecutor Postnikova in order to find out for sure all the intricacies of the complex work of the prosecutor.

— If we look at the process in a simplified way, it looks like this. In the dock is the accused. At the big table are the judges. If the process is open, everyone who wants to attend sits in the hall. There are two more polar forces: the prosecution represented by the prosecutor and the defense represented by the lawyer. There is a dispute between us regarding the guilt of the one who is now in the dock. The prosecutor builds his line of evidence, the defense builds theirs. The judges, forgive the tautology, must judge us and make the only correct decision, in their opinion. Everything seems to be extremely simple and clear. But in reality... A lot really depends on the state prosecutor. He is a kind of engine of the criminal process. Even higher authorities (and this is no secret to anyone!), if they happen to study a case, first of all look at whether the state prosecutor guided the court correctly or incorrectly.

Although, to be honest, the prosecution has a more difficult time than the defense, and here’s why. The lawyer begins to work with the arrested person almost from the moment of his arrest. The prosecutor supporting the prosecution essentially takes up the baton from the security forces who detained the criminal and the investigator who led the case. Behind us is the hardest, months-long work of a large number of people, the results of which directly depend on how the state prosecutor presents the case in court. There we act strictly according to the law and inner conviction. For those who see in the prosecutor only the “enemy of all living things,” who strives with all his might to ensure that the convicted person receives as long a sentence as possible, I want to say that in addition to the right to support the prosecution, we have the right to refuse the prosecution. And we use it because we have never been and never will be thoughtless continuers of what the investigative authorities do. We need to prove that the crime was committed by a specific person, thereby defending the interests of the victims and restoring social justice. Or drop the accusation if sufficient evidence has not been collected. Since the trials are mostly open, they are attended by citizens who judge the prosecutor’s office as a whole based on the work of the state prosecutor. Everything comes into account here - from appearance to speaking ability and erudition. And also - the ability to explain the essence of the case so clearly that the prosecutor’s point of view is understood and accepted not only by judges, but also by the so-called spectators, people on the street. The work of a prosecutor is difficult both physically and psychologically. The number of criminal cases is growing, the number of people supporting the prosecution remains at the same level. Therefore, almost every day, employees of the prosecutor’s office, as we say, “get involved in trials.” It happens that during the day you have to work on two processes. But you can’t come to them unprepared. It is necessary to thoroughly study the case, develop behavioral tactics, and build a line of evidence. When do we do this? Mainly in the evenings, when there is time for thoughtful work with documents on the next case. By the way, the Prosecutor General's Office requires that state prosecutors be present in absolutely all cases considered in the courts. States, meanwhile, are not increasing. So the volume of work will increase even more, mainly in the district prosecutor's offices. We are currently at a turning point. A judicial reform is coming, as a result of which the court will only have the right to conduct legal proceedings. Many functions (but not the state prosecution) are being taken away from the prosecutor's office. We are waiting for the adoption of the criminal procedure code, which will spell out in detail the provisions on the defense, state prosecution, and judicial authorities. But in general, of course, it’s difficult. For the simple reason that current legislation often lags behind the socio-economic metamorphoses occurring in society. To be honest, in the old days we knew (and this was taught in universities) that the court is always on the side of the prosecution. Not so now.

In recent years, the defense and prosecution have moved towards adversarial proceedings, which, by the way, is especially noticeable in the example of the Sovetsky District Court. That is, the defense and prosecution present their arguments, proving and convincing that they are right, and the judge, purely outwardly being an outside observer of this process, draws conclusions that will then be used as the basis for the decision made. It seems that with this approach it will be more objective.

Source: https://hron.ru/news/read/1883

Based on the book: Demidov I.F. On the issue of the categories of science of the Soviet criminal process // Questions of theory and practice of criminal proceedings. M., 1984. S. 24 - 27.:

Counteraction to the accusation by the defense, if at the same time it chooses the means and methods permitted by law, as well as other not prohibited by it, to fight for the interests of the accused (defendant), is not only legal, but also objectively natural.

Natural connections between the prosecution and the defense manifest themselves in different ways depending on the type of criminal process. In a mixed process, built on the principle of separation of powers, where pre-trial proceedings are carried out by executive authorities, whose main function is criminal prosecution, the relationship between the prosecution and the defense is built vertically and has the nature of subordination (power and subordination). In such a system of relations, the defense turns out to be “dosed” on the part of the prosecution and is essentially derivative of it.

The criminal prosecution authorities, realizing their significant superiority over the defense, constantly stray onto the path of unjustified restrictions on its already meager capabilities to resist their actions and decisions.

In its opposition to the prosecution with its broad powers and powerful resource of power, the defense does not have sufficient capabilities to influence the prosecution in order to deter attempts to use the so-called accusatory bias as the only and accentuated method of investigation.

To obtain incriminating evidence, the criminal prosecution body The requirements, instructions and requests of the investigator as a representative of state power are mandatory for execution by all institutions, enterprises, organizations, officials and citizens. The investigator's use of the results of non-procedural operational investigative activities expands the possibilities of criminal prosecution. The investigator's requests to carry out investigative and other procedural actions involving restrictions on the constitutional rights and freedoms of the accused and other persons are subject to mandatory and prompt consideration by a judge. Analysis of Part 2 of Art. 29 of the Code of Criminal Procedure of the Russian Federation shows that the resource of the judicial power is used only for the purposes of criminal prosecution and collection of incriminating evidence (exculpatory evidence, as a rule, is not hidden, but is presented to the investigator voluntarily). The selection by the investigator of a preventive measure in order to prevent the accused from the possibility of escaping from the investigation or court, continuing criminal activity, illegally opposing the proceedings in a criminal case, achieved by limiting his right to freedom and personal integrity, significantly reduces the ability of the accused to defend himself against the charge, especially in cases of prolonged isolation from society. At the same time, the law is silent about exactly what materials and evidence the judge must study in order to make a decision on the submitted petition to select a preventive measure in the form of detention. This gap was forced to be filled by the Supreme Court of the Russian Federation, which outlined an almost exhaustive list of procedural documents and other evidence to be included in the decision to initiate a petition to elect the accused (suspect) into custody as a preventive measure. He explained to the courts that, in accordance with Art. 45 of the Constitution of the Russian Federation, they cannot refuse these participants in the process, as well as their defenders, to satisfy the request to familiarize themselves with the named materials of the case.

According to the book: paragraphs 4 and 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 No. 1 “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation.” We believe that in such cases the courts should also be guided by Part 2 of Art. 24 of the Constitution of the Russian Federation.

It should be added to the above that the actions of the investigator are not always adequate from the point of view of the need for serious interference in human rights or their immediate implementation. A significant part of the potential for state coercion in criminal cases is excessive coercion. This is how it appears, for example, in the case of a search of a home at night and in the absence of a court decision under the pretext of the urgency of this investigative action, when it could well have been carried out during the day in compliance with all human rights guarantees provided for by law. Excessive coercion includes the choice of detention as a preventive measure, when the circumstances of the case and the personality of the accused made it possible to leave him free, for example, on bail. This also includes the conduct of so-called over-tiring interrogations lasting eight hours or a little less. The use of excessive coercion may be the result of investigative errors, deliberate violation of the law, etc. Excessive coercion as a result of violation of the law, sometimes being a way of suppressing the will of the accused with the unseemly goal of achieving his specified behavior, obtaining a confession of his guilt, poses the greatest danger both to a person, his rights and freedoms, and to justice. The possibility of such coercion is inherent in the criminal procedure law itself, as a result of the lack of appropriate prohibitions in it. Thus, the Code of Criminal Procedure of the Russian Federation does not contain an answer to the question of how many times one person can be interrogated about the same thing and whether such multiple interrogations are in principle permissible.

At the end of the investigation, the investigator draws up an indictment, which not only determines the scope of the trial (Article 252 of the Code of Criminal Procedure of the Russian Federation), but, in addition, is the basis for a sentence or other court decision. If the indictment was drawn up in violation of the requirements of the Code of Criminal Procedure of the Russian Federation, which excludes the possibility for the court to pass a verdict (other court decision) on its basis, the judge returns the criminal case to the prosecutor (clause 1, part 1, article 237). An indictment issued by non-judicial authorities has become an act predetermining the court's decision of a guilty verdict. Criminal prosecution bodies have received additional opportunities to implement through the courts the programs assigned to them to “fight crime,” including with individuals accused of extraordinary socially dangerous acts.

Although a copy of the indictment is handed over to the accused, as well as to his defense attorney, if they request this (Part 2 of Article 222 of the Code of Criminal Procedure of the Russian Federation), however, neither one nor the other is given the right to file objections to this conclusion, which would state otherwise, opposite to the concept of prosecution, a vision of the problem of the defendant’s involvement in the incriminated act. At the same time, the Code of Criminal Procedure of the Russian Federation gives, in particular, the convicted, acquitted, and their defenders the right to bring a cassation appeal or submit their objections in writing (Part 1 of Article 358). The accused and his defense attorney should also have the right to file objections to the court as an alternative to the indictment (act). The most appropriate moment for hearing objections to the indictment seems to be the beginning of the judicial investigation, after the state prosecutor has presented the charges against the defendant and the presiding officer asks the defendant whether he or his defense attorney wishes to express their attitude to the merits of the charge (Article 273 of the Code of Criminal Procedure of the Russian Federation).

The investigator’s awareness of the fact that the defense can present objections to the indictment, which are subject to public disclosure at the very beginning of the judicial investigation, should objectively contribute to the fact that the investigator will be more attentive and responsible when summing up the results of the investigation and drawing up the indictment. As for the defense, it can become more organized, act according to the program (in accordance with the objections) and not be bound by the remarks and value judgments of the accuser, made impromptu and under the influence of emotions.

The court still appears to be one of the links in the system of so-called criminal justice, which also includes criminal prosecution bodies, prosecutors, and structures carrying out operational investigative activities. In this system, the ability of the court to disavow, in necessary cases, the conclusion of the investigative bodies and the prosecutor's office in a criminal case, in particular, due to the abolition of the institution of returning the case for additional investigation.

Considering this decision of the legislator to be fair, at the same time we believe it is necessary to give the court additional powers to terminate a criminal case due to violations of the constitutional rights and freedoms of the defendant, non-compliance with the preliminary investigation procedure (for example, in the case of investigative actions without the participation of a defense lawyer, when his participation is mandatory, and also when substantiating the accusation with evidence declared inadmissible by the court, etc.).

The inclusion of these and some other grounds in the list of those that entail the termination of a criminal case should help improve the quality of the preliminary investigation, respect for individual rights and freedoms in criminal proceedings, and ensure the legality of criminal proceedings. These proposals comply with the provisions of the Constitution of the Russian Federation that a person, his rights and freedoms are the highest value (Article 2), as well as the inadmissibility of using evidence obtained in violation of federal law (Part 2 of Article 50), etc. .

Having received the methodologically correct provision of the Code of Criminal Procedure of the RSFSR (Part 2 of Article 301), the Code of Criminal Procedure of the Russian Federation accordingly established that “a court verdict can be based only on the evidence that was examined at the trial” (Part 3 of Article 240), and therefore, on the evidence presented by the defense (Part 2 of Article 274). However, this rule completely contradicts the provision that the court makes a verdict on the basis of an indictment, that is, on incriminating evidence. The legislator’s desire is visible to prevent the court from being “arbitrary” in relation to the position of the security forces expressed in the indictment.

Source: https://www.lawmix.ru/comm/1797

Defense side

System of principles of legal proceedings and criminal procedure

Speaking about this group of subjects of criminal proceedings, first you need to pay attention to the fact that the suspect, accused and defendant have different procedural status. This affects the list of powers. A person under suspicion is an individual against whom there are indications that a crime has been committed. The accused person has a different procedural status. Certain evidence has already been collected regarding him, which, in principle, does not always indicate his guilt. In a number of cases, an indictment is issued against such an entity.

The person's status must have documentary evidence. This is not least due to the set of rights. For example, the accused has the right:

• defend yourself by any lawful means;
• submit a petition;
• receive rehabilitation measures.

The next person on the defense team is the lawyer. You need to understand that this subject gets access to criminal procedural cases only after passing accreditation for knowledge of the basics of this branch of legislation. There is an exception to this rule. A close relative may take over the defense of the accused.