Criminal Trials througt the Ages

Immediately after the election, the State Duma Legislation Committee entrusted the preparation of the Code of Criminal Procedure for second reading to deputy EB Mizulina, who became the head of the former working group, whose powers were initially confirmed. However, due to the fact that the working group had fundamental ideological differences on the development of the Russian criminal process, November 20, 2000, on the initiative of E.B. Mizulina created a “small working group”, which included only supporters of the transition to a fully adversarial criminal process. At the same time, the activities of a large working group virtually ceased. At the same time, by the Decree of the President of the Russian Federation of November 28, 2000, a working group was created within the framework of the presidential administration to improve the legislation on the judicial system, headed by D.N. Kozak. Both working groups (parliamentary and presidential) worked in close coordination, enjoying support at the highest political level and having no fundamental disagreements among themselves.
One cannot but pay attention to the fact that the sharp change in the vector of preparation of the CPC coincided with the no less sharp increase in interest in the project on the part of American diplomatic and expert circles working in direct contact with the small group E.B. Mizulina and those who supported her in two directions: 1) logistical assistance in supporting the passage of the bill through the US Embassy Law Enforcement Section; 2) expert assistance in the preparation of the bill in the framework of the project “Central and East European Legal Initiative of the American Bar Association” (American Bar Association’s Central Eastern European Legal Initiative - ABA / CEELI). As for the logistical support, for example, it was precisely as a result of the round table held with the support of the American Bar Association in September 2000 that “a number of recommendations were addressed to the Legislation Committee, which greatly facilitated the organization of work on the new Code of Criminal Procedure” , in particular, the recommendation to create a small working group of like-minded people, which led to the actual cessation of the activities of the large working group, reflecting different points of view. Speaking of expert assistance, two US-funded comparative criminal process experts “became ex officio members of the working group,” E.B. Mizulina, directly participating in the writing of several new sections of the draft Code of Criminal Procedure. For example, as noted in the literature, chap. 40 of the Code of Criminal Procedure of the Russian Federation would not be included in the Code without their active work. In this case, of course, far from all of the proposals put forward by American experts were taken into account, by virtue of which “US advisers did not see in the final version of the law (Code of Criminal Procedure of the Russian Federation. - LG) all those reforms that they would like to see ".
Thus, the new and, as it turned out, the final version of the draft Code of Criminal Procedure was a conductor of a completely different criminal procedural ideology, oriented not so much on continental as on Anglo-Saxon values. It reflected the obvious attempts for the first time in history to create a fully adversarial criminal process in Russia, which, in particular, was expressed in the rejection of the principle of material truth, the proclamation of not only adversarial proceedings, but also a preliminary investigation, ranking the interrogator, investigator , the prosecutor to the participants in criminal proceedings by the prosecution and many other provisions.
Taking into account all the noted factors after the creation of the working groups, E.B. Mi-zulina and D.N. Kozak's further advancement of the radically modified draft CPC took place as soon as possible. Already on November 22, 2001 it was adopted by the State Duma in the third reading, on December 5, 2001 it was approved by the Federation Council, and on December 18, 2001 it was signed by the President of the Russian Federation. On July 1, 2002, the Code of Criminal Procedure entered into force.

Current trends in the development of the Russian criminal process
Numerous changes in the criminal procedure legislation in the last decade often provoke well-founded criticism from the scientific community and law enforcers due to inconsistency, haste, fragmentation and inability to solve the problems for which the relevant bills were being prepared. Rare unanimity evokes ideas about the need for a balanced, consistent, systematic, scientifically sound approach to the reform of the criminal process as a whole, as well as its individual norms and institutions. The need to develop a unified concept of criminal policy that defines the development strategy of the criminal, criminal procedure and related branches of legislation, as well as the main goals, objectives and directions of its reform, have been repeatedly indicated at various levels: legislative, law enforcement, on the pages legal press, scientific publications, discussion platforms, conferences, etc. [1; 2. S. 6; 3. S. 6-15; 4].
Moreover, in matters of determining the goals and objectives of reforming the criminal procedural legislation, not only is there no unity, but there are directly opposite positions. One of the widely broadcast by modern media is the position that the need to reform criminal proceedings is due to the existence of the so-called “accusatory bias” in the activities of the courts, an obscenely small number of acquittals, low quality of justice, public distrust of the court etc.
However, this approach does not hold water. Since the early 1990s without conducting any serious analysis, the idea was introduced into the public mind that the main criterion for the justice of justice is the number of acquittals, while the most important criteria, such as the number of appealed sentences and the number of canceled or amended court decisions, are not even were considered. In itself, the number of acquittals in the current Russian criminal process is not a significant indicator or indicator of the adversarial and fairness of justice1. Accounting for such indicators outside the systematic analysis of the number and type of final judgments made can not give any objective picture. Given that most of the criminal cases in the country are considered in a special abridged order with the full consent of the person with the charges against him in accordance with Sec. 40 of the Code of Criminal Procedure of the Russian Federation2, which usually involves the conviction (however, it does not exclude the adoption of other decisions, including those that stop criminal prosecution), and about 1/5 of the criminal cases are terminated by the courts, the number of acquittals the sentences imposed in a criminal case by a court within the framework of a full adversarial procedure will be significantly higher [2. S. 5-9].
The quality of criminal justice in general is often judged by the so-called resonant cases, often presented to the media in a distorted light. Society reacts to a judicial mistake much more violently than to another, for example, technical, which caused losses of billions of rubles, or management. And this is quite normal. However, it is unacceptable to assess the quality of justice in general in isolated cases. Unconditionally, judicial errors do exist and will exist, no one is safe from them, but their number is not as great as sometimes appears in public consciousness. The widely disseminated myth of public distrust of the court is also a kind of cliche, often imposed by the media on public consciousness. Meanwhile, no competent professional assessment of this phenomenon has yet been given. The formation of common cliches, the cultivation of ideas about the low quality of justice, which are based on data taken out of context on the number of acquittals, resonance cases and individual court errors, does not contribute to an objective understanding of the problem.
At the same time, one of the most objective indicators, very clearly demonstrating the degree of public satisfaction with the activity of the courts in criminal proceedings and the level of trust in the court, is the number of appealed final court decisions that resolve the criminal legal conflict on the merits. According to court statistics, an average of no more than 13-14% of court decisions are appealed per year. This means that the vast majority of persons who have committed crimes, as well as victims - i.e. persons directly involved in the field of criminal proceedings and defending their interests in the courts are satisfied with the decisions taken, which means they are satisfied with the rule of law and trust the courts. Who better than to judge the effectiveness and quality of justice for those who are involved in the field of criminal proceedings and have experienced the pros and cons of the domestic criminal process?
What, in fact, can the number of acquittals handed down by the courts actually testify? Given the specifics of the Russian model of criminal proceedings - only that the preliminary investigation of the crime was carried out poorly, the prosecution could not collect enough relevant, admissible and reliable evidence that conclusively and convincingly prove the defendant's guilt. It’s not a secret for anyone that the system of the Russian criminal process is structured in such a way that, in the absence of any reason, a criminal case will not be instituted, in the absence of the necessary totality of all the signs of the crime, the criminal prosecution will be terminated, and in case of an incomplete and biased investigation, the criminal case will be returned by the prosecutor for further investigation and simply will not go to court. This means that every acquittal is not “rare glimpses of fair justice”, but an objective court decision based on specific errors of the preliminary investigation bodies and the public prosecutor.
The aforementioned confirms that criminal process reforms are needed from nowhere not to increase the number of acquittals, but to increase the level of procedural guarantees of persons involved in the field of criminal proceedings, balancing the possibilities of the parties and improving the quality of criminal justice in general. It is along this path that the modern criminal procedure legislation has been developing over the past decades. Of course, it cannot be called consistent, as mentioned earlier, however, despite this, a number of positive trends can be traced quite clearly. We note the most important, in our opinion, of them.
A serious step towards the formation of an appropriate procedural toolkit to ensure the rights and freedoms of participants in criminal judicial proceedings, as well as public interests, was the introduction of an appeal in all criminal cases from January 1, 2013. The development of the appeal as the main judicial test instance has since begun to be carried out progressively. The implementation of the rules governing the procedural order of appeal proceedings revealed a number of problems of law enforcement practice and put on the agenda questions about the need to amend the law. For the five years of the existence of this institute, Ch. 45.1 of the Code of Criminal Procedure, which regulates appeal proceedings, was nine times adjusted1. The main changes concerned the introduction of rules for the study of new evidence, the possibility of an independent appeal against a decision on the seizure of property and the application of a preventive measure in the form of a ban on certain actions, the content of descriptive, motivational and resolute parts of decisions made by the court of appeal, etc. .
Another problem that has been successfully resolved in recent years is the problem of unreasonable (and often illegal) disclosure of testimonies of missing witnesses. Legislative approaches to the issue of publicizing testimonies of absent witnesses at the hearing were substantially changed. Until 2013, Russian criminal procedural legislation in this part did not meet the standards for the protection of human rights and freedoms provided for by the European Convention [5], since it did not guarantee the possibility of implementing the guarantees provided for in paragraph d of part 3 of article 6 of the Convention (the right of the accused to interrogate witnesses against him or to have the right to have these witnesses interrogated, and to have the right to call and interrogate witnesses in his favor under the same conditions as for witnesses pointing against him ) Establishment of strict standards at which the testimony of absent witnesses is possible by amending Art. 281 of the Code of Criminal Procedure of the Russian Federation2 uprooted the existing negative practice. Positive changes in this issue have become obvious to everyone. In the judgment in the Zadumov v Russia case, the ECHR indicated that the system for using the testimony of a witness who is absent from the court, as well as the guiding explanations of the Supreme Court of the Russian Federation, contain strict procedural guarantees securing the rights of the accused to interrogate the witness showing against him and confirming that Announcement of testimony of an absent witness is possible only in exceptional circumstances [6].
In recent years, the attitude of society towards preventive measures has changed significantly. The gradual realization by the majority of the real significance and value of the rights and freedoms of the individual, the inadmissibility of their unjustified and arbitrary restrictions began to have a significant impact on the approaches to the application in criminal cases of the most stringent preventive measures restricting the most important rights and freedoms of citizens. The decisions of the European Court of Human Rights, which began to receive a large number of complaints from Russia about the excessively long and unreasonable use of preventive measures in the form of detention, became an important factor in influencing the position of the legislator, the knowledge of law enforcement and existing practice. . One of the first such decisions was the ECtHR judgment of July 15, 2002, Kalashnikov v. Russia [7]. An understanding of the urgent need to resolve the problem of applying a justified, confirmed by a combination of factual circumstances case of detention on the basis of a court decision has begun to mature.
Awareness of the systemic nature of the problem at the state level has led to the creation of a mechanism to ensure the right to liberty and security of person when applying arrest. The formation of this mechanism took place gradually. The criminal procedural law has been amended several times to guide the court in resolving the issue of the possibility of applying this preventive measure to investigate specific evidence to enable an informed decision. These changes prohibit the use of detention on the basis of information not verified during the trial, the results of operational search activities. Among the most important changes in legislation in this area should also include the introduction of a rule establishing a prohibition on the application of detention in cases of economic crime, the obligation to take into account the state of health when permitting the possibility of a person being detained and changing the arrest to a milder a measure for identifying a serious illness that impedes his detention 1. In 2011, the Government approved the List of serious illnesses that impede the detention of suspected or accused of committing crimes, and the Rules for the medical examination of suspects or accused of committing crimes.
The realization that detention is possible only in exceptional cases when it is impossible to apply a different, milder preventive measure has led to a change in approaches to preventive measures in general. Domestic arrest (Article 107 of the Code of Criminal Procedure of the Russian Federation) ceased to be considered solely as an alternative to detention and began to be widely used as an independent measure of restraint. In April 2018, a new preventive measure appeared in the Code of Criminal Procedure - the prohibition of certain actions (Article 105.1 of the Code of Criminal Procedure). It allows you to apply restrictions that could previously be achieved only with the use of house arrest and detention, with minimal restriction of freedom or without it. The restrictions that can be applied to the accused (suspect), to which the court has applied a ban on certain actions, include the prohibitions on leaving certain premises for a certain period of time, where he lives as an owner, tenant or other legally located in certain places, as well as closer than the established distance to certain objects, attend and participate in certain events, communicate with certain people, send and receive mail and telegraphic items, use communication tools and an information and telecommunication network Internet, drive a car or other vehicle if the crime committed is associated with a violation of the rules of the road and the operation of vehicles.
The most important criminal procedural problem, which was solved even not at the legislative, but at the law enforcement level, was the unreasonable use of confession as evidence of a person’s guilt, which often led to the use of illegal methods of obtaining it and the violation of the rights of suspects and the accused. The explanations given in the Decree of the Plenum of the Supreme Court of the Russian Federation No. 55 “On Judicial Sentence” regarding the possibility of using a confession as proof of guilt (only upon receipt of a confession when explaining the rights not to incriminate oneself, use the services a lawyer, to file complaints about actions (inaction) and the decisions of the preliminary investigation bodies and really ensuring the possibility of exercising these rights (Section 10), have practically changed the situation: the confession has been used primarily as evidence confirming the presence of mitigating punishment of circumstance.
Among the fundamentally significant positive changes in criminal proceedings should be attributed to the expansion of the possibilities of considering criminal cases involving jurors: the number of jurors was reduced, the jurisdiction of criminal cases to a court with jurors was expanded, the jury began to operate at the level of district courts, which, of course, makes this form of exercise of justice more accessible for citizens, brings justice closer to the people, makes it more competitive and fair. To evaluate the effectiveness of the updated institute of jury trials is to be done over time.
One of the promising areas for reforming the modern criminal procedure legislation should be recognized as a change in the procedural order of resolving issues of parole. This idea was actively discussed at the IX All-Russian Congress of Judges in December 2016. Decree of the IX All-Russian Congress of Judges of December 8, 2016 No. 1 indicated the need for a complete transfer of questions about parole and release from punishment due to illness to the supervisory commissions that are formed in the regions [8]. Proposals for the creation of such models have already appeared in the science of criminal procedure law [9. S. 282-309].
Improving the pre-trial procedure in order to balance the capabilities of the defense with the prosecution, strengthen the elements of competition, increase the degree of judicial protection of persons involved in criminal proceedings, puts on the agenda the more active role of the court in the pre-trial stages of criminal proceedings and the introduction of the institution of investigative judges. Discussions about investigative judges have not subsided in Russian legal science for more than ten years [10; 11. S. 41-45; 12; 13. S. 373-378; fourteen].
This institute has successfully established itself in foreign countries, similar to Russia by the peculiarities of the legal and judicial system, in particular in the Republic of Kazakhstan. We believe that, taking into account the analysis of our experience, it is possible to gradually introduce this institution into the Russian criminal process, reinforcing the legislatively outlined specialization of judges.
Thus, modern criminal procedural legislation over the past decades has been developing towards increasing the level of procedural guarantees of persons involved in the field of criminal justice, balancing the possibilities of the parties and improving the quality of criminal justice in general. Among the most important positive trends in the development of criminal proceedings include the introduction of appeal proceedings, the development of a system of preventive measures and restrictions on the use of detention, the limitation of the possibility of the testimony of an absent witness being announced at trial, the development of a jury trial, as well as the prospective introduction of the institution of investigative judges and changes procedures for resolving issues of parole and exemption from punishment in connection with the disease with the participation of members of the public.
Conclusion

Thus, the following conclusions can be made.
A clear “division of labor” between the preliminary investigation bodies and the court during the proof will only strengthen the guarantees of establishing the truth in the criminal case. The investigator and the inquirer must collect (at the same time checking and evaluating) admissible, reliable and sufficient evidence establishing the circumstances of the really committed crime. And the court, both on its own initiative and at the request of the parties in an adversarial process, is obliged to conduct a comprehensive and objective verification of them (without any restrictions), and give an impartial assessment.
Thorough and objective verification by the court to the same extent of both the evidence of evidence and the evidence of the defense, the strict observance of the requirements of the Code of Criminal Procedure of the Russian Federation will help to increase the level of professionalism and the quality of the results of the preliminary investigation. It is necessary to ensure that the growth of crime detection in our country is mainly due to this.
At the final stage of proving (establishing the truth), the courts should steadfastly comply with such as enshrined in part 4 of Art. 7 of the Code of Criminal Procedure of the Russian Federation a requirement as a motivation for conclusions reached in a sentence. Clarification and explanation of how and why the court made just such conclusions, and not others, giving clear and logical arguments and arguments for their reliability is, at times, a key point in understanding by the parties and the public whether the truth has been established in the given criminal case or not. .
It seems that only with this approach to organizing the evidence process between the preliminary investigation bodies and the court, it will be possible to count on the issuance of legal, reasonable and fair sentences and the implementation of justice by the courts, which will contribute to the further successful development of citizens, society and the state.
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