Topical issues of proving in criminal cases with a pre-trial cooperation agreement

Abstract

The article deals with problematic issues of criminal proceedings against persons with whom a pre-trial cooperation agreement is concluded. The implementation of the norms of the institute of a pre-trial cooperation agreement provided for in Chapter 40.1 of the Code of Criminal Procedure of the Russian Federation, in practice leads to the consideration by the court of criminal cases with a pre-trial agreement without examining the evidence of the prosecution, which gives rise to reasonable doubts about their legality, validity and fairness. Judges are limited in their ability to form a proper idea of the proof of the guilt of the accused person on the basis of their own inner conviction and are forced to rely on the conclusions of the preliminary investigation, which does not always turn out to be performed at a sufficiently satisfactory level due to the lack of incentive for investigators to create a sound and reliable evidence base for the prosecution in connection with the accused’s stated consent to the charge and the obligations assumed to assist the preliminary investigation authorities in uncovering crimes and exposing their accomplices. As a result, there is a real risk of conviction of innocent people, which is confirmed by examples from judicial practice. Provided for by part 7 of Article 316 of the Code of Criminal Procedure of the Russian Federation, the condition of the decision in a criminal case with a pre–trial cooperation agreement is «only if the judge comes to the conclusion that the accusation with which the defendant agreed is justified, confirmed by the evidence collected in the criminal case» exists only nominally, since appropriate means, due to the lack of the court’s ability to carry out a full-fledged judicial investigation, for this clearly not enough. As a result, the question arises about the expediency of existence of the institution of a pre-trial agreement, at least in the legal regulation that is currently provided for by the criminal procedure law.