Implementation problems in criminal procedure the principles of equality and adversarial (for example, the possibility of filing by the defense of expert's opinion)

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Introduction the European criminal law system declares the principles of competition and equality of parties as fundamental to ensuring respect for human rights and fundamental freedoms. At the same time, the principle of equality is an absolute right to a reasonable opportunity to present their arguments, and the principle of competition is a relative right to know (get acquainted, ask questions, clarify) and comment on the arguments and evidence of the other party [1, 9]. The domestic legal system also contains these concepts, however, only the principle of competition, which includes equality, is declared as a fundamental principle (article 15 of the code of criminal procedure of the Russian Federation "Competition of the parties»): competition is ensured by an independent court ("the court is not a criminal prosecution body, does not act on the side of the prosecution or the defense") and equality of the parties ("the parties to the prosecution and defense are equal before the court"). And the right to get acquainted with the materials of the case or verification is an independent right and is not directly related to equality or competition [8].In General, domestic criminal law, being a part of European (continental) law, is less differentiated and less developed [1, 8]. Many of the most important legal institutions (independent expert examination, jury trial, court of appeal, etc.) are still poorly established (only declared or created, but are still in development). In this regard, it is continuously modified – undergo adjustments, additions and exclusions as separate items and parts of articles or entire articles of the code of criminal procedure, the criminal code, the Basic law of the Russian Federation (the Constitution). At the same time, contradictions between the former (Soviet) and the new (post-Soviet) criminal law systems naturally arise and exist for some time, the resolution of which is often situational in nature, and therefore there are different (up to the opposite), although quite legitimate legal decisions in similar cases [3-7, 14].The contradictions in the implementation of the principles of equality and competition in criminal proceedings are particularly evident in the example of the use of one of the parties (mainly, defense party) special knowledge in the form of conclusion and interrogation of a specialist [2, 4, 13]. The purpose of this publication is to analyze the problematic issues that arise. Object of research: domestic criminal procedure legislation. Subject of research: expert and law enforcement practice in criminal cases. Research methods: system analysis, dialectical, concrete-historical, formal-legal, comparative-legal.The results of the STUDY 1) First of all, pay attention to the fact that the preliminary investigation pre-trial investigation is conducted by the representatives of the state (investigator), and not a person (the defender in the face of counsel), members of law enforcement agencies, the main function of which is restrictive, coercive and, to a lesser extent, helpful and educational. The functions of personal protection are also assigned to the inquirer and investigator, but to a lesser extent, and such functions are implemented mainly in relation to the victim. The possibilities of the accused and his lawyer in the means and methods of defense at the stage of preliminary investigation are significantly limited. Meanwhile, it is at this stage that the factual (evidentiary) base is formed, which the parties subsequently operate on.It is no coincidence that a fair criticism of the domestic legal system is accusatory (only 0.2-0.4% of acquittals compared to 3-8% in the EU[1]), for which the conditions are rooted in the conflict of interests of the state and the individual, the incomplete transition from the old to the new criminal justice system [8, 10, 11] as well as in the subjective character of overcoming of contradictions, though, that the prevailing stereotypes and psychology of professional participants in the criminal process, including those who, by virtue of their status, are called to maintain independence or be an arbitrator in the confrontation of the parties, are accusatory [7, 12].2) the Low percentage of acquittals is often explained, as it may not seem paradoxical, among other things, by the good quality of the pre-trial investigation [10]. But can it be so if it is clearly focused on finding the criminal and proving his guilt and as a result is initially one-sided – the defense side for the first time declares equal rights with the prosecution and it becomes possible to implement the principle of competition only at the stage of judicial investigation. Many defendants do not have the opportunity to enter into an agreement with a qualified lawyer, and the function of their defense is performed either by "other persons" or by appointed lawyers engaged at the expense of the Federal budget, so-called "free" lawyers (about 90% of all trials) [8, 10]. At the same time, the former are not qualified enough, and the latter have little interest in a positive outcome for the client. Indirectly, but more than convincingly, this is evidenced by the fact that among officials and businessmen, as a rule, people of influence or wealth (who have the opportunity to seek highly qualified legal assistance), the share of acquittals is much higher (about 3-4 %) [8, 10].3) Often, in the absence of qualified legal assistance, instead of fighting for their rights, the accused is forced to enter into a dubious "possibility" or enter into a pre-trial agreement with the condition of cooperation with the prosecution and the prospect of mitigation of punishment, or consideration of the case (especially for serious crimes before 31.07.2020) in a special order with a lesser penalty, but subject to admission of guilt in both cases, that is, with a known guilty verdict. Courts called to act as arbitrators in a dispute between the parties, in such cases, on quite legitimate grounds, examine the case materials only from a formal point of view, without expressing their subjective attitude to what happened on the basis of forming an internal conviction of the defendant's guilt and an idea of justice in the case. Meanwhile, the majority of such cases – about 65 % [8]. Moreover, according to a survey of judges, more than 54% of them have made such decisions at least once in their practice, despite their inner conviction [7].Another option – the accused is given hope for a positive decision in the court of second (appeal) instance, thereby offering a compromise, provided that the prosecution does not oppose the party in the court of first instance. However, the consideration of cases in the court of appeal, as a rule, in essence, does not differ much from the court of first instance, except for the speed of decision-making. Sessions of such courts are often held even without the invitation of the applicant (not to mention the possibility of attracting a specialist), which, in the figurative expression of A. I. Kovler, is a "mark of Russian justice" [9].4) in fact, almost all controversial, ambiguous, contradictory provisions of the law are interpreted not in favor of the defense. Examples include not only the ability of the court in the proceedings in a special manner to explore all the materials (mentioned above), but also ambiguous position on detention and interrogation specialist (often evaluated as evidence only in unity and in strict order of "closing – cross", which is beneficial for the prosecution based their argument on the expert's conclusion, but not for protection, as to ensure the attendance of the expert, especially non-resident, is difficult physically and financially, given the need to undertake all arising in this case, the cost); on summoning an expert and a specialist to court for questioning (both are not required, but the evidentiary value of the expert's conclusion does not decrease, and the expert's conclusion becomes null and void, or it becomes inadmissible evidence at all, especially if it contradicts the expert's conclusions); on the volume of the materials studied (often the requirement of completeness, rather than relevance or sufficiency, comes into force, which is much more difficult to ensure for the defense party when requesting a specialist's opinion); in this case, the accused (and with it the specialist) often have limited access to new materials of the case appeared, for example, after the judgement of the court of first instance (the result of the wrong – narrow – interpretation of article 47 UPK the Russian Federation that the right of the accused to get acquainted with the materials of the case only appears after a preliminary inquiry, it persists in subsequent); the special status of a state expert (in the absence of a legal distinction between experts at their place of work, an expert representing a state expert institution often has an a priori advantage over a non-state expert, the rationale for which usually consists in "his greater qualifications", since he is an expert at his main place of work).An important point in this aspect is the obstacles created for the consideration of cases by a court with the participation of jurors (it is noteworthy that these may be cases, considered with the participation of forensic experts - murder (part 1 and part 2 of article 105 of the criminal code), intentional infliction of serious harm to health (part 4 of article 111 of the criminal code), a number of others). According to statistics, the share of acquittals issued by such courts is the highest and comparable to the European level (about 20 %) [13, 14]. Meanwhile, the frequent failures and the reasons for the refusal varied: the application is already in the process of a preliminary hearing (although one of the grounds hearing is just the same, is the solution of a question on criminal case by court with participation of jurors, and if a preliminary hearing has already taken place, even if it was for any other reason, then the meaning of article article 229 of the criminal procedure code of the Russian Federation "Grounds for holding a preliminary hearing" the relevant application must be considered). As you know, a criminal case involving several defendants, shall be examined by court with participation of jurymen concerning all defendants if at least one of them declares the petition for consideration of criminal case by the court in the composition in the absence of objection from the remaining defendants – in this case unclear the obligation of the relevant application form on their part, that is, a presumption of consent or the presumption of disagreement.5) the predominance of a formal, rather than substantive, approach in the introduction and evaluation of evidence. So, often the expert's conclusion is excluded from the evidence for the reasons that the specialist was not provided with all the case materials or the submitted materials were not properly certified; when preparing the conclusion, research was used, which allegedly goes beyond the specialist's authority, despite the fact that the research was carried out without the use of special techniques and methods, and consisted only in familiarizing with the content of documents; the expert's judgments do not correspond to, or even contradict, other materials of the case, including expert opinions (without expressing any doubt about them), although this is partly the purpose of the expert's judgments opposing the expert[2]. in the conclusion, the specialist assessed the expert's conclusion, which is presented by the other party and supported by the court as going beyond the competence; in the court of first instance, the expert's opinion was provided late, although even a formal restriction of this kind does not exist (unless, of course, this is the stage of sentencing); the expert's opinion presented in the court of appeal contains new evidence that has no connection with the old ones ("why did the defense keep silent about them earlier?» - the court uses the rule of part 6.1 of article 389.12 of the criminal procedure code of the Russian Federation on valid reasons, which is interpreted by it at its discretion); in the activities of an LLC or sole proprietor, which is represented by a specialist, there are certain violations (contractual, economic), which in fact requires independent consideration, since it is not directly related to a specific case. Grounds of the latter kind especially eloquently Express the attitude of the court (a priori impartial) to the participation of a specialist in the process in cases where the hearing takes place with the participation of a jury, because in the eyes of the jury, this becomes evidence of "an unfair attempt by the defense to present dubious evidence "(from a "dubious source").In case of the opposite opinion of the expert during his direct interrogation, the prosecution (and usually the judge explicitly or implicitly supports this side) tries to exclude this interrogation from the evidence in all possible ways, formulating questions that go beyond the competence (and subsequently interpreting the lack of reflections on them as incompetence of the specialist), or asking provocative questions, which can lead a person to confusion, distracting from the main topic of the proceedings (for example, " in which record book of your institution's records is registered a record of calling You to this trial, what is the date and number of this record?"). Sometimes there is blatant pressure from the prosecutors, when they are not only trying to cast doubt on the competence of the specialist (clarifying academic performance, etc.), but openly threatened him that I'll announce at work that it is their actions interfere with the justice, promotes the harboring of a dangerous criminal, etc. This path taken by the Prosecutor indicates either a poor knowledge of the law, or its open disregard, but it also indicates an understanding of the fatality of questioning a specialist in a particular case, which can completely change the picture of what happened.6) various subterfuges are Used to disqualify a specialist or not interrogate him, even if he appears in court, which distort the very idea of competition and equality. For example, a specialist has not previously appeared in court for questioning (without finding out the reasons for his absence for the first time, and it could be objective); previously, he was not a specialist in the case, but as a witness (he was interrogated as a witness), although he actually performed the functions of a specialist (in this case, further interrogation becomes possible only with the consent of the opposite party, which is difficult to achieve in conditions of multidirectional tasks and disputes); under the conditions of sanitary and anti-epidemic measures in connection with a new coronavirus infection, the specialist appeared in court without a mask and gloves, with a temperature (modern findings of especially "creative" prosecutors and judges) – despite the fact that all this can be easily eliminated, or explained by other reasons. In addition, under our belt "sophisticated" ways of disrupting the interrogation specialist was "unexpected" disable video conferencing and the impossibility of participation of the defendant in the course of the hearing, despite the fact that a lot of effort to provide full-time attendance of non-resident specialist; "non-urgent" need to inspect the vehicle or interrogate a witness before questioning a specialist, despite the fact that the weather conditions obviously did not allow such an inspection, and the witness did not appear in court; the judge's lack of any "important" information, for example, about where the University that the specialist graduated from is located; " misunderstanding» the Prosecutor of the essence of the documents submitted by the specialist (diploma of higher Education, diploma of advanced training, certificate of specialist, etc.); establishing some kind of "connection" between the specialist and one of the participants in the process (this usually happens in "medical cases", when it turns out that the specialist and the accused may have met at a conference or Congress).Occasionally, however, there are cases of refusal to interrogate a specialist who appeared in court without explaining the reasons and in the absence of any of the above, which is a violation of part 4 of art. 271 of the criminal procedure code of the Russian Federation "Application and resolution of petitions" and requires immediate response of the defender.7) in cases of a specialist's interrogation, its superficial, accelerated and (or) formal nature (usually due to the lack of time for the court, the need to interrogate several more witnesses and / or move on to the next stage of the judicial investigation, or even a more plausible pretext – due to the" obvious clarity " of what is stated in the conclusion, or, on the contrary, the large volume and importance of information, which requires a separate painstaking study in the break between regular sessions), as well as without the proper participation of the accused (for example, he is not given the right to communicate with a lawyer to agree on clarifying or new questions addressed to a specialist, or communication occurs without confidentiality – during a court session in videoconference mode). However, without being fully voiced directly in the courtroom, the expert's conclusion is not perceived in its entirety and unity, but fragmentary, without proper explanation of the content and elimination, if there are internal or external (with other evidence in the case) contradictions, without achieving the intended goal, or even "turning" into an unacceptable proof.Conclusion an analysis of domestic criminal procedure legislation and law enforcement practice in criminal cases reveals a number of contradictions and ambiguous (dubious) ways to resolve them, violating the basic principles of equality and competition, without which it is impossible to fully ensure respect for human rights and fundamental freedoms guaranteed by the Basic law of the country. The difficulties in implementing these principles in the educational process are particularly evident in the example of using special knowledge in the form of a conclusion and interrogation of a specialist – those few tools that the defense can use to provide qualified opposition to the prosecution, which builds its system of evidence on the expert's conclusion.The practical development and giving greater legal significance to the institution of participation of a specialist in criminal proceedings, both directly and separately through a written opinion, meets not only the principles of modern improvement of the implementation of constitutional guarantees for justice, access to court and professional legal assistance, but also the provisions on the right to a fair trial provided for in article 6 of the Convention for the protection of human rights and fundamental freedoms ETS N 005 (Rome, November 4, 1950), ratified by the Russian Federation on 30.03.1998.

About the authors

Alexander P. Bozhchenko

Military medical academy of S.M. Kirov; Bureau of forensic medical examination

Email: bozhchenko@mail.ru
ORCID iD: 0000-0001-7841-0913
SPIN-code: 1110-0515

Dr. Sci. (Med.), Assoc. Prof.

Russian Federation, Saint Petersburg

Sergei L. Semenov

Military medical academy of S.M. Kirov

Email: sem5263@yandex.ru
ORCID iD: 0000-0003-0938-8454
SPIN-code: 4631-7343

Cand. Sci (Med.), Assoc. Prof.

Russian Federation, Saint Petersburg

Igor M. Nikitin

Saint Petersburg city bar Association

Email: nikitin@apspb.ru
ORCID iD: 0000-0002-7012-2172
SPIN-code: 1456-9588

Cand. Sci (Jur.)

Russian Federation, Saint Petersburg

Yuri V. Nazarov

Bureau of forensic medical examination; North-Western State Medical University named aft er I.I. Mechnikov

Author for correspondence.
Email: naz532@yandex.ru
ORCID iD: 0000-0002-4629-4521
SPIN-code: 2390-8227

Dr. Sci. (Med.)

Russian Federation, Saint Petersburg

References

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