Adversarial Principle Research Articles

Получение показаний посредством видео-конференц-связи от засекреченных лиц при производстве по уголовному делу

Introduction. This article discusses the features of obtaining the testimony of classified witnesses using video conferencing in pre-trial and judicial proceedings in a criminal case. Materials and methods. Published works on research issues served the theoretical basis. The use of the formal legal method made it possible to identify the features of obtaining such testimony. Analysis. Attention is drawn to the inconsistency of legislative prescriptions regulating the procedure for questioning a classified witness at a preliminary investigation. It is noted that strict compliance with the requirements of the Criminal Procedure Law on mandatory video recording of the videoconferencing and the provision of all materials of the criminal case to the accused and his defender at the end of the preliminary investigation (inquiry) negate the efforts spent on the adoption and implementation of appropriate security measures. The author substantiates the impossibility and inadmissibility of obtaining testimony from a classified person using video conferencing during a confrontation, based on the essential features of this investigative action. The content of the concept of “personal data” is analyzed, including from the standpoint of correlation with the concept of “personal data” in relation to the procedural security measure provided for in Part 9 of Article 166 of the Code of Criminal Procedure of the Russian Federation. From the standpoint of fulfilling the requirements of the adversarial principle, ensuring the right to defense and maintaining the balance of interests of the parties, the current judicial practice of obtaining witness testimony in conditions that exclude their visual observation by participants in the trial is critically considered. Results. The author presents his own vision of solving the problem of obtaining testimony in the courtroom from a witness against whom security measures were applied during the preliminary investigation. Other proposals have also been formulated to improve the current legislation and law enforcement on the issues under consideration.

ПРОЦЕССУАЛЬНОЕ РАВЕНСТВО СТОРОН ОБВИНЕНИЯ И ЗАЩИТЫ В УГОЛОВНОМ СУДОПРОИЗВОДСТВЕ

Introduction: the article explores the national, historical, and international legal aspects of the concept and essence of equality of arms in criminal proceedings as a balance of procedural means and conditions providing each party with the opportunity to present and defend their position on the case before the court. Objectives: to study the concept of equality of the parties within the concept of adversarial criminal proceedings of the Russian theory of criminal procedure; to analyze the relationship of the adversarial principle and equality of the parties as well as the essence of procedural equality of arms in its doctrinal and legal meaning in Russia; to articulate the concept and essence of the international legal principle of equality of arms. Methods: general scientific dialectical method of cognition, systematic approach, general scientific methods (deduction and induction), specific scientific methods (logical and legal analysis and synthesis). Results: the study has shown that the concept ‘equality of arms’ used in the Russian theory of criminal procedure, criminal procedural legislation, and law enforcement practice does not fully reflect all aspects of a fair balance of procedural possibilities of the parties in criminal proceedings. There is an imbalance of legal means and conditions, with the defense being at a disadvantage compared to the prosecution. Conclusions: it is necessary to improve the legislation in order to ensure the balance of the parties’ legal possibilities through establishing elements of favorable treatment of the defense; to provide the defense with the real means necessary to protect their interests; to create conditions that would make it possible to really use these means, i.e., to create mechanisms balancing the parties not only at the level of the law but also in its implementation.

Implementation of the principle of competition in administrative proceedings when using information technologies

The article is devoted to the study of the application of information and communication technologies in the context of ensuring the principle of competitiveness in administrative proceedings. The normative legal acts of the current legislation analyzed from the point of view of the requirements of the European Court of Human Rights regarding the provision of the principle of competition in administrative proceedings. To reveal the role of information technologies, general philosophical and special research methods of legal phenomena are applied. The relevance of the study is determined by the need to use information technologies, which allows to increase the efficiency of administrative proceedings, since this form of exercise of judicial power is designed to actively influence public-legal relations and protect the rights and interests of individuals and legal entities in the field of public legal relations. The use of information and communication technologies at the stages of filing a subpoena, presenting evidence and other information on the essence of an administrative claim is considered. The possibility of using an electronic form gives rise to the dispositive nature of the choice of the form of appeal to the court. The choice of legal remedy depends on the behavior of the plaintiff and the goal of obtaining access to justice. It is noted that the stage of preparing the case for trial requires active interaction between the parties and the court. The universality of the stage is characteristic for administrative cases of all categories, and the functionality is in ensuring the adversarial basis of the formation of the evidence base for the trial, where the behavioral direction of the adversarial principle manifested. It indicated that in a judicial proceeding regarding adversariality, the procedural actions of the parties are aimed at proving the position, which is manifested in the collection and presentation of evidence, which is an important competition technique for the parties. The technical means of implementing the principle of competitiveness and technological solutions provide for the open activity of the court to create an environment of trust, conscientious activity of the parties in the use of information technologies and submission of reliable evidence in electronic form.

Realization of the Right to Defense at the Stage of Initiation of a Criminal Case

The initiation of a criminal case is an independent initial stage of the criminal process, which activates the procedural mechanism of criminal prosecution. The participation of an Аdvocate is a necessary component of the proper enforcement of the right and legitimate interests of the person in respect of whom the report of a crime is being verified and the implementation of the adversarial principle at the initial stage of the criminal process. The lack of legal regulation of the appointment of an Аdvocate to a person who does not have the status of a suspect or accused forms a gap in the current legislation. The article deals with the issues of the realization of the right to protection by a person against whom procedural actions are carried out when checking a report of a crime and on this basis, proposals are made to improve the criminal procedure legislation in terms of ensuring a real opportunity to use the services of a lawyer at the stage of initiation of a criminal case.

TARAQQIYOT STRATEGIYASINING ASOSIY MAQSADI – INSON QADRINI E’ZOZLASH

The role of a lawyer is very important in protecting the rights and interests of a person. One of the main tasks today is a radical increase in the efficiency of the advocacy. The Development Strategy for 2022-2026 provides for 100 goals in 7 areas, and this article is devoted to the institution of advocacy, which is one of the most pressing issues. In addition, this article emphasizes that one of the main directions is to increase human dignity and further develop a free civil society, and most importantly, the transformation of the principles of justice and the rule of law into a fundamental and necessary condition for the development of the country. Thus, proposals are presented on creating conditions for the implementation and expansion of the rights of a lawyer to protect the rights and legitimate interests of a person, equalizing the procedural possibilities of prosecution and defense based on the principle of disputability at all stages of criminal proceedings. Therefore, the issue of expanding the rights of a lawyer in determining whether the adversarial principle also applies to pre-trial proceedings. To improve the criminal procedure legislation on some problems of this institution, scientific, theoretical, and practical recommendations are given on the mechanism for implementing the priority tasks set in the development strategy.

Preinačujuća presuda i presuda iznenađenja

Not every decision of the appellate court varying the first instance judgement which comes as an unpleasant surprise to either party necessarily constitutes what is known as a surprise judgment (German: Überraschungsurteil). On the contrary, a surprise judgment should only be a rare, undesired exception. A varying judgment may be considered a surprised judgment only if the appellate court changed the legal classification of the case from that in the original case into one that a diligent party could not reasonably have foreseen. Also, a surprise judgment would also refer to cases in which the appellate court based its ruling on facts and evidence on which the parties had not been given a reasonable opportunity to comment. Surprise judgments are prohibited as they are in conflict with the postulates of fair trial. According to the case of law of the European Court of Human Rights, each party must be given a reasonable opportunity to comment on all relevant aspects of the case, not only in respect of evidence, but also in respect of the legal issues, i.e. an opportunity to participate effectively in the proceedings. It is to be emphasised that this also refers to legal arguments raised ex officio by the court. The principle iura novit curia cannot be an excuse for not allowing the parties to participate in a debate concerning the legal issues. However, this is not to say that the court should necessarily declare its legal positions to the parties. This duty exists only as an exception; for instance, in order to inform the parties of its intention to deviate from the case law or legal positions announced expressly or implicitly, or in legally intricate cases or cases involving issues with no relevant case law. The point is that the legal reasoning of the court must be reasonably foreseeable in view of the arguments which had been raised during the course of the proceedings by the opposing parties or by the court itself. Certainly, a party to civil proceedings is expected to display due diligence him/herself in that regard. If the legal classification of the case could not have been foreseen by the party as a diligent party, it constitutes a surprise judgment. If legal arguments which had been pursued by the court could not be regarded as substantially different from the observations submitted by the parties during the course of the proceedings, there is no breach of the adversarial principle. These postulates of fair trial refer to all courts, not only appellate ones, but the prohibition of surprise judgments bears special significance in the context of varying judgments of appellate courts considering their immediate effect of rendering the matter res iudicata. The Supreme Court should by all means allow a second appeal against a varying judgment of an appellate court which constitutes a surprise judgment, and if it should fail to provide a remedy to the surprised party, a remedy should invariably be provided by the Constitutional Court or the European Court of Human Rights.

Influence of the Positions of the Constitutional Court of the Russian Federation and the European Court of Human Rights on the Сontent of the Adversarial Principle in Criminal Procedure Law

In the context of the constant development of the practice of the Constitutional Court of the Russian Federation and the European Court of Human Rights, the relevance of the issue of its place and role in the legal system inevitably increases. The principle of competitiveness of the parties was introduced in Russian criminal proceedings more than 150 years ago, but its implementation was directly related to the existing legal system of a particular period. Despite the significant contribution of law enforcement practice to the development of theoretical provisions on the content of the adversarial principle, many positions characterizing this principle remain controversial. Until now, there is no consensus on the limits of its manifestation and the relationship with other principles, as well as the appointment of criminal proceedings. The purpose of the work is to develop a practical understanding of the content of the adversarial nature of a criminal case in court from the standpoint of the highest judicial instances. This goal predetermined the need to identify the existing provisions formulated in the decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights regarding the determination of the adversarial nature of the parties in the course of criminal proceedings. As a methodological basis, the work used formal-logical methods (induction, deduction, analysis, synthesis, hypothesis, analogy), ascent from the abstract to the concrete, as well as some special scientific methods: historical, comparative-legal, technical-legal. The theoretical significance of the work lies in the formulated proposals that can be used in improving the current criminal procedure legislation and in further theoretical developments of the adversarial principle in criminal proceedings, as well as in the law enforcement activities of the courts.

Депонирование показаний потерпевшего и свидетеля в уголовном процессе Кыргызской Республики

The deposition of victim and witness testimony is a new institution for the criminal procedure of the Kyrgyz Repub lic, introduced only in 2021. The authors analyze the conceptual foundations of this institution and its significance for a trial. They compare its legal model under Kyrgyz legislation with the legislation of the Federal Republic of Germany and a number of former Soviet republics: Kazakhstan, Moldova, Estonia, Ukraine, Lithuania, and the draft of the new Criminal Procedure Code of Armenia. The authors suggest that the importance of deposition lies in the proactive preservation and legalization of the victim and witness testimony obtained during the pre-trial proceedings of the court session («minitrial») as an evidence. One of the main advantages of deposition of testimony according to the authors is giving the defense team a right to apply to the court with a petition for deposition and participate in that procedure independently from the prosecution. Deposition warrants the possibility of testimony disclosure in court proceedings and its use as an evidence providing ground for a court verdict. The introduction of this institution is aimed at strengthening the adversarial principle and the principle of equality of parties, as well as benefits the speedy delivery of justice.

Specialist Participation in the Arbitration Procedure from the Point of View of Adversarial Principle Implementation

The presence of two opposite specialist’s participation models used by the domestic legislator in three existing civil procedural codes demonstrates the competition of the adversarial principle implementation approaches in the civil procedure. The doctrinal assessment of each model of the specialist’s involving to the litigation is also ambiguous. This resulted, notably with the Plenum of the Supreme Arbitration Court «blessing», in the development of the practice of applying in the arbitration process the model enshrined in the Code of Civil Procedure of the Russian Federation, which gives rise to some kind of curiosity: the court calls the specialist not on its own initiative, in accordance with art. 87.1 of the Arbitration Procedure Code of the Russian Federation, at the request or with the consent of the parties, that, in particular, seems unacceptable in the specialized arbitration court, where an adviser from the apparatus of the same court can be called as a specialist. The question of the balance between public and private law elements of the adversarial principle has traditionally been the subject of doctrinal discussions. The article concludes that the implementation of the adversarial principle in the arbitration process is achievable only in combination with judicial guidance of the process, and the call of a specialist is possible only on the initiative of the arbitration court, taking into account the opinions of the persons participating in the case.

Reasons and Conditions for the Abuse of the Right in the Legal Process of Russia in the Light of the Costs of Implementing an Adversarial Principle

Effective counteraction to the abuse of the right in the legal process is impossible without understanding the causes and conditions of the forms of abuse of the right encountered in practice, which are the ways of its external expression. Consideration of the doctrine and judicial practice of civil, arbitration, administrative, criminal procedure through the prism of the adversarial principle, characteristic of all the types of legal process presented, contributed to the identification of general patterns that cause the abuse of procedural right. In the course of the study, the author examined the forms of abuse of the right (discretionary powers) associated with the implementation of evidentiary activities of the parties to the proceedings, excessive appeals against the actions of the parties, numerous filings of applications, motions, and challenges. The author concludes that the cause of this negative phenomenon is the desire of a person to satisfy his interests, aspirations, emotions in an illegal way. Conditions for the abuse of procedural law arising from the costs of the adversarial principle include a vulgar interpretation of the adversarial principle, a conflict of interests of the parties to the process, subjectivism of a law enforcement officer, his condoning attitude to the presence of abuse of the right. An opponent’s unintentional provocation can cause the abuse of the right in some situations.

Отношения следователя и защитника в процессе собирания доказательств

One of the manifestations of the adversarial principle is the legal definition of the investigator as the body of criminal prosecution. The investigator should be exempted from even the partial “two-facedness”, i.e. the investigator should collect only accusatory evidence and carry out other accusatory actions. In addition, it is necessary to determine the mechanism for collecting evidence by the defense attorney in the absence of the voluntary consent of the person (or organization) with evidentiary information to cooperate with the defense lawyer. If there is no such consent, then the defense attorney, as a subject of the defense function, must use the rights granted to him/her to collect independently the evidence necessary for the subsequent contest with the prosecutor in court. In the case when it is not possible to collect evidence due to the lack of consent of the persons in their presentation, the defense attorney should be given the right to seek assistance from the investigator.

DEPOSITION OF VICTIM / WITNESS TESTIMONY - A NEW INSTITUTION IN CRIMINAL PROCEDURE OF THE KYRGYZ REPUBLIC

The paper examines the issue of victim / witness testimony, an investigative procedure introduced in the Kyrgyz Republic Criminal Procedure Code in 2019. It can be argued that this institution enables the development of the adversarial principle and the principle of equality of parties in pre-trial proceedings. The author points out that for the Criminal Procedure code of some former Soviet states, this institution is new, though it was first reflected in English law of the 19th century. The author notes the debatable nature of re-examining a victim / witness when the merits of the case are considered. In this regard, improvement in Art. 208 of the existing Kyrgyz Republic Criminal Procedure Code is suggested. Additionally, the article examines the issue of what a deposition is - an investigative procedure or an institution. The author states that deposition of testimony is an investigative procedure.

The content and implementation of the principles of civil procedural law on the example of the adversarial principle

The content and implementation of the principles of civil procedural law on the example of the adversarial principle

On the Question of the Possibility of Applying the Adversarial Principle in the Practice of the Modern Ecclesiastical Court of the Russian Orthodox Church

On the Question of the Possibility of Applying the Adversarial Principle in the Practice of the Modern Ecclesiastical Court of the Russian Orthodox Church

ИШНИ СУДГА ҚАДАР ЮРИТИШДА ҲИМОЯЧИ ФАОЛИЯТИДА ТОРТИШУВ ПРИНЦИПИНИНГ ТАЪМИНЛАНИШИ АҲАМИЯТИ

This article reveals the content of adversarial principle, which is one of the criminal procedural principles, the essence of its validity in the criminal process at the stages of proceedings in court, as well as its importance in the activities of defense counsel. During the study of pre-trial proceedings, the scientific-theoretical views of domestic and foreign legal scholars on the essence and significance of the defense lawyers activities, and the legislation of foreign countries in this area were discussed and analyzed in detail. Since in our criminal procedural legislation the scope of the adversarial principle is limited, one of the main purposes of this article is to expand its scope, in particular, the application of the adversarial principle in pre-trial proceedings. As a result of the analysis, scientifically substantiated proposals were made to amend our legislation with regard to the title of Article 25 and to strengthen norms of Part One of the CPC in a new edition. In order to ensure the principle of equality and adversarial proceedings in pre-trial procedures, the successful implementation of impartial judicial control over the prosecution and the defense, as well as expanding the rights of defense counsel, Articles 28 and 29 of the CPC of the Republic of Uzbekistan were revised. When writing the article, the methods of comprehensive research of comparative legal, logical (analysis and synthesis) scientific sources of knowledge were widely used.

Принцип состязательности сторон в российском и армянском праве (сравнительный анализ)

The article provides a comparative analysis of the adversarial principle of the parties in the procedural legislation of the Russian Federation and the Republic of Armenia. The author comes to the conclusion that this principle in Russia and Armenia is normatively fixed at different levels and occupies a different place in the system of principles of national law. From the standpoint of dividing the principles of law into sectoral, inter-sectoral and general legal in the Russian Federation, the adversarial principle is inter-sectoral, and in the Republic of Armenia it is a principle of criminal procedural law. From the position of division the principles of law according to the source of consolidation in Russia, the adversarial principle is one of the constitutional principles duplicated in sectoral legislation, and in Armenia this principle is simply sectoral.

The Procedural Laboratory for Studying the Historical Types of Criminal Proceedings

The article is devoted to the study of historical types of criminal proceedings in a vertical direction. The foremost archetypes of criminal procedure, which laid the technological and methodological foundations for formation of the investigative, adversarial, and mixed types of criminal proceedings, were analyzed. Arguments are given in favor of the fact that the initial reference point for criminal proceedings is the accusatory-adversarial type. The appropriate legal examples from the legislation of Athens and Ancient Rome are referenced in the article. An attempt is made to prove three hypotheses about the modern types of criminal procedure, the sequential system about the models of criminal procedure. Consideration is given to the archetype. The debatable issue regarding the active and passive positions of judges in the resolution of criminal cases on their merits was considered. The author's position in favor of the role of a judge as a non-initiative arbitrator between the parties was appropriate and justified only in the times of the rise of Athens and Ancient Rome. The judicial compositions of each case consisted of several hundred judges, which made it possible to make the right decision. The judges themselves were from the people. In particular, this is why, before our era, there were no dubious statistics in court proceedings from the point of view of the adversarial principle. It further explains why there were both convictions and acquittals in sufficient numbers for a democratic state. The modern procedural role of a judge is often reduced to the personal neutral, but at the same time active investigation of the evidence is presented by the parties. Much attention is given to the modern type of criminal process, which is called mixed. This content is considered in two ways as a symbiosis of investigative and adversarial types and also as a procedural duet of accusatory-adversarial and techno-centric models.

ON THE REDUCTION OF LEGAL EXPENSES FOR PROFESSIONAL LEGAL ASSISTANCE IN ECONOMIC PROCEEDINGS

In this article, the author highlights the problems of improper application by national courts of the European Court of Human Rights practices. The author notes that the current Code of Commercial Procedure of Ukraine does not provide for an independent reduction by the court of expenses for professional legal assistance, unless the other party has filed a corresponding petition and proved their incommensurability, which fully reflects consolidation of the adversarial principle of parties in economic proceedings. At the same time, having reviewed the judicial practice of the Supreme Court, there is a discrepancy in judicial practice regarding the reimbursement to the party in favor of which the court has founded of the legal expenses for professional legal assistance. In certain court decisions, there is incorrect implementation of the European Court of Human Rights judicial practices to reduce the reimbursement to the party in favor of which the court has founded of the legal expenses for professional legal assistance. For the most part, this is the case of “East / West Alliance Limited vs. Ukraine”. Considering the above, the author conducted a study of the sources of law that regulate the procedure for legal proceedings in the European Court of Human Rights. Based on the results of this study, the author found that the European Court of Human Rights is entitled to reduce the amount of legal expenses, including those for legal assistance, to be reimbursed to the party in favor of which the court has founded, if the court considers this amount unfair. However, the provisions of the Code of Commercial Procedure of Ukraine, the Code of Civil Procedure of Ukraine and the Code of Administrative Procedure of Ukraine do not mention that the courts are empowered to independently reduce the amount of legal expenses for professional legal assistance to the party in favor of which the court has founded. The author notes that this practice leads to violation of the following principles of economic legal proceedings: the rule of law, adversarial principle of the parties and reimbursement to the party in favor of which the court has founded of the legal expenses. Moreover, the author notes that in this case, Part 2 of Article 19 of the Law of Ukraine “On International Treaties” cannot be applied, since the right of the European Court of Human Rights to reduce the amount of reimbursement for legal expenses is established not by an international treaty, but by sources of “soft law” that regulate the procedure for legal proceedings in the European Court of Human Rights and, accordingly, is not a Ukrainian source of law.

Establishment and Development of the Adversarial Principle in the Criminal Process

The article is devoted to studying the history of the origin and development of adversarial principles in criminal proceedings. The evolution of the adversarial principle in the criminal process is studied in chronological order, in historical retrospective. Based on the development of legal regulations and the level of public administration, specific historical periods related to the development of the adversarial principle in criminal proceedings are distinguished. A retrospective suggests that adversarial proceedings should be taken as the basis for the organization of the entire criminal process. Only in this case, it is possible to clearly separate the functions of prosecution, defence, and resolution of criminal proceedings at all its stages and give the parties equal opportunities to provide evidence and defend their positions.

Истребование судом сведений о стоимости и количестве контрафакта в контексте принципа состязательности

The article analyzes the current practice of state arbitration courts to issue disclosure orders for evidence confirming the volume of production and the cost of counterfeit goods. In some cases, rightholders interpret their right to demand evidence from an opponent extremely broadly and, by demanding information as such, but not evidence, actually transferring the burden of proof to the defendant, which conflicts with the adversarial principle of civil proceedings.