Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 25/09/2021 Aceptado el 13/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
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Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 71 (2021), 531-542
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Russian court in adversarial
criminal procedures
DOI: https://doi.org/10.46398/cuestpol.3971.30
Erna Kaysynovna Batchaeva *
Daria Olegovna Chistilina **
Aleksandr Viktorovich Grinenko ***
Tatyana Kimovna Ryabinina ****
Vasiliy Jonovich Potapov *****
Abstract
This article discusses the role of the Russian court in accusatory
criminal proceedings. At the legislative and practical levels, there
is uncertainty about the degree of judicial activity in relation to
the question of evidence. The theoretical model of the accusatory
system assumes that there is minimal judicial intervention in
the investigative proceedings of the parties. The latter must
act and defend their position in the criminal case. The court is
supposed to have a passive stance. The methodological basis of this study
is composed of general scientic and legal methods such as dialectical,
historical, systematic, comparative legal, formal-logical methods, etc.
Most countries that practice an accusatory model of criminal justice grant
the court a certain level of action that allows it to participate fully in the
evidence during trials. By way of conclusion, it is suggested to improve the
capabilities of the Russian court to actively investigate the evidence, as well
as to oer new forms of defense to the parties.
Keywords: adversarial system; presiding judge; prosecution; defense;
judicial investigation.
* Moscow State Institute of International Relations (University) of the Ministry of Foreign Aairs of
the Russian Federation (MGIMO-University), Moscow, Russia. ORCID ID: https://orcid.org/0000-
0002-9728-7241
** Southwest State University, Kursk, Russia. ORCID ID: https://orcid.org/0000-0001-7902-3261
*** Moscow State Institute of International Relations (University) of the Ministry of Foreign Aairs of the
Russian Federation (MGIMO-University), Moscow, Russia. ORCID ID: https://orcid.org/0000-0002-
9996-2714
**** Southwest State University, Kursk, Russia. ORCID ID: https://orcid.org/0000-0002-0770-6802
***** Pitirim Sorokin Syktyvkar State University (SyktSU), Syktyvkar, Russia. ORCID ID: https://orcid.
org/0000-0002-3150-088X
532
Erna Kaysynovna Batchaeva, Daria Olegovna Chistilina, Aleksandr Viktorovich Grinenko,
Tatyana Kimovna Ryabinina y Vasiliy Jonovich Potapov
Russian court in adversarial criminal procedures
Tribunal ruso en procedimientos penales
contradictorios
Resumen
Este artículo analiza el papel del tribunal ruso en los procedimientos
penales acusatorios. En los planos legislativo y práctico, existe incertidumbre
sobre el grado de actividad judicial en relación con la cuestión de la prueba.
El modelo teórico del sistema acusatorio supone que existe una mínima
intervención judicial en las diligencias de investigación de las partes. Estos
últimos deben tomar medidas y defender su posición en el caso penal. Se
supone que el tribunal debe tener una postura pasiva. La base metodológica
de este estudio está compuesta por métodos cientícos y jurídicos
generales como los métodos dialécticos, históricos, sistemáticos, jurídicos
comparativos, formales-lógicos, etc. La mayoría de los países que practican
un modelo acusatorio de justicia penal otorgan al tribunal un cierto nivel
de acción que le permite participar plenamente en la prueba durante
los juicios. A modo de conclusión se sugiere mejorar las capacidades del
tribunal ruso para investigar activamente las pruebas, así como para ofrecer
nuevas formas de defensa a las partes.
Palabras clave: sistema adversarial; juez presidente; enjuiciamiento;
defensa; investigación judicial.
Introduction
In criminal procedure science, there are three main functions carried
out by particular participants. These functions are criminal prosecution,
defense, and resolution of the case based on its merits. Art. 15 of the Criminal
Procedure Code of the Russian Federation stipulates the adversarial
principle which assumes a strict division of procedural functions between
the parties and the court. It is against this principle for one body to perform
several functions. It can also lead to the revival of the inquisitorial process
which is incompatible with the principles of a democratic State of law. Thus,
the adversarial principle is a fundamental principle of the modern Russian
criminal procedure which is stipulated in Art. 15 of the Criminal Procedure
Code of the Russian Federation.
However simple and clear the idea may seem, it is quite complicated
to implement it. Firstly, the obstacles arise from the imperfections of the
legislation which does not allow the defense to unleash its potential in
proving. Secondly, the parties are passive while they should take action.
Finally, the court has an uncertain stance in the evidentiary activity.
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1. Materials and methods
The methodological base of this study is comprised of general scientic
and legal methods such as dialectic, historical, systematic, comparative-
legal, formal-logical methods, etc.
A systematic method helped reect the connection between theoretical
and practical approaches to the realization of the adversarial principle in
criminal proceedings as well as to dene the development of its nature
at dierent time periods. The systematic approach, as the main method
used by the authors, helped gain a comprehensive understanding and
full analysis of debatable issues on the role of the Russian court in the
adversarial criminal proceedings.
A comparative-legal method helped study the peculiarities of the legal
and regulatory framework of the court’s stance in criminal proceedings.
A formal-logical method helped interpret correctly the substance of
legal norms which regulate adversarial trial.
All of these methods helped reveal the current problems both at the
theoretical and practical levels and suggest ways to solve them.
2. Results analysis
In Russia, judicial proceedings are adversarial what prescribes a certain
level of activity to each party and the court.
The Russian criminal procedure legislation stipulates the standards
for the conduct of judicial proceedings which prescribes a strict division
of functions. The court does not only settle a criminal dispute but also
organizes the judicial process.
There are also specic standards of judicial proceedings established at
the international level. The Universal Declaration of Human Rights, the
Convention for the Protection of Human Rights and Fundamental Freedoms,
the International Covenant on Civil and Political Rights enshrined the main
provisions for judicial proceedings in order to ensure that the rights of the
parties are protected.
According to Art. 10 of the 1948 Universal Declaration of Human
Rights, “everyone is entitled in full equality to a fair and public hearing by
an independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him”. Art. 14, Para. 1
of the 1966 International Covenant on Civil and Political Rights contains
quite a similar provision. That is why the adversarial principle is followed
in the majority of countries since it can ensure the equality of parties’ legal
possibilities as well as the impartiality and independence of the court.
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Erna Kaysynovna Batchaeva, Daria Olegovna Chistilina, Aleksandr Viktorovich Grinenko,
Tatyana Kimovna Ryabinina y Vasiliy Jonovich Potapov
Russian court in adversarial criminal procedures
Meanwhile, the international legal standards do not forbid the court to
take active actions. On the contrary, according to the European Court of
Human Rights, it is not against the adversarial principle for the court to
request the gathering of evidence. It is only necessary for the hearing to be
public and for the accused to be present at it (Baranova, 2013).
Apart from its main function of solving criminal case, the court has
other important roles. They are as follows: control over the preliminary
investigation bodies; handling complaints on actions (or inaction) of
ocials responsible for criminal proceedings; managing the violations of
rights, freedoms, and lawful interests of citizens, the principle of lawfulness,
etc (Andreeva, Zaitsev, Emelyanov, 2017).
Moreover, the presiding judge is responsible for the strict adherence
to the procedures of judicial trials. They must be respectful to all the
participants, including the accused and the jurors. Inappropriate
behavior towards the participants may take the form of asking incorrect
questions, ignoring the parties, and accusing the innocent person. Such
behavior is inappropriate and can inuence the objectivity of the verdict.
On the contrary, the presiding judge must prevent the participants from
humiliating one another, prevent and manage conict situations what is of
utmost importance in jury trials. In addition, the presiding judge should be
highly professional and avoid taking responsibilities of other participants
which will allow more objectivity of the verdict (Khaldeev, 2000, p. 121-
122).
It should be noted that the responsibilities of the judge are exclusive
since they cannot be delegated to other participants of criminal proceedings.
The judge has no interest in the outcome of the case which guarantees the
independence and autonomy of the court (Lutsenko, 2019).
The judiciary controls the lawfulness of actions (or inaction) and
decisions of public authorities and individuals. It is possible due to the
principle of the independence of the judges which allows them to solve
conicts according to their belief in the lawfulness and justication of their
decision. We believe it is possible to extend the rule of the independence of
judges on the court as well since it makes decisions as a unied position of
a whole panel of judges. This approach does not equate the court as a body
that administers justice and a judge as an individual. In its turn, it enhances
the objectivity and impartiality of justice (Grinenko, 2016).
The principle of the independence of judges is stipulated in Art. 120 of
the Constitution and Art. 8.1 of the Criminal Procedure Code of the Russian
Federation. It implies that judges are subject only to the Constitution and
federal legislation. No one can interfere in decision-making and all out-of-
court communications with judges are prohibited by law. The judge shall not
“adapt” to anyone’s opinion. The judge must make a lawful, justied, and
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fair decision in order to restore law and order in society (Sharafutdinova,
2014, p. 378).
However, it is important to remember that the judge is a human being
whose behavior during the trial may be inuenced by a number of factors
(state of mood, education, beliefs, surroundings, etc.). It is impossible to
insulate the judges from external factors and pressures. The independence
of judges should be ensured by a procedure for administering justice which
should contain rules for criminal proceedings in order to ensure justice
(Kozyavin, Chistilina, 2016). The judges should ignore external factors
and aim for more objective decisions based on laws. Undoubtedly, the
independence of judges and court is a crucial basis for fair decision-making
and the correct functioning of the judicial system (Azarov, 2019).
Undoubtedly, great responsibility implies certain guarantees such as
irremovability and inviolability of judges. It means that it is impossible
to prosecute or impose sanctions on judges for their decisions in criminal
proceedings if those decisions were based on law and moral beliefs.
The law stipulates that the court should settle the disputes based on
their moral beliefs guided by the law and conscience. So, it is important
to dene these notions. A belief is a strong view on something based on
a certain idea or a worldview. In criminal proceedings, it is based on the
legal conscience of the court which guides the procedural decisions. In
the legislation, the notion of “moral beliefs” is mentioned in terms of the
evaluation of evidence when the court has to decide whether there was a
crime; whether it was committed by a person in question; etc., i.e., when the
court has to solve the main issues.
In the decision-making process, there are contributing factors such
as relevance, clarity of circumstances of the criminal case, the presence
of certain provisions in the law, the legal conscience of the judge, the
exhaustiveness statement of the law, the existing enforcement practices,
etc (Azarova, 2019). Meanwhile, the court is not bound by the opinions of
other participants; the decisions should be based on the studied evidence.
In this case, according to M.S. Strogovich (1957), the objectivity of the belief
is based on facts that predetermine the objective nature of the belief. Thus,
a moral belief is an intellectual process based on evidence studied during
the trial and it is always motivated to some extent (Sharafutdinova, 2014).
Another prominent issue is the level of activity of the court in criminal
proceedings. According to the Code of Judicial Ethics, judges should fulll
their duties with due diligence and take measures to ensure a timely and
comprehensive examination of case les.
We suppose that the judge cannot be a passive arbitrator but should
possess functions that will enable them to act in the evidentiary procedure
with other parties. It should be noted that the Russian legislation declared
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Erna Kaysynovna Batchaeva, Daria Olegovna Chistilina, Aleksandr Viktorovich Grinenko,
Tatyana Kimovna Ryabinina y Vasiliy Jonovich Potapov
Russian court in adversarial criminal procedures
the court to be the subject of evidence with investigatory functions. It is
against the adversarial principle for the presiding judge to investigate
the circumstances of the case since such actions aim to create conditions
for the parties to perform their procedural functions and to ensure their
rights as well as to determine what really happened (Yakimovich, 2015, p.
32). In addition, the presiding judge justies his actions by the presence
of evidence which is necessary to take a lawful, justied, and fair decision
what is impossible if the judge sticks to a passive stance (KARJAKIN, 2016).
What is more, the court’s participation in proving is aimed at ensuring
the balance between public and private interests in order to ensure the
legitimacy of legal and public authorities; however, the court’s actions
should be justied by their appropriateness for justice (Senkina, 2013). The
judge should be able to take all necessary measures to eliminate doubts
which impede judgement. However, we do not support the highest levels of
activity of the presiding judge. We believe that such actions should seek to
clarify certain facts but not to reveal new circumstances.
In this approach, it is impossible for judges to substitute one of the parties
that is why their activity should focus on the main aspects which are as
follows: the resolution of motions led by the parties to obtain new evidence;
enhancing the evidence-gathering activities; ensuring organizational and
procedural conditions and providing procedural assistance for the parties to
ensure the adversarial principle; gathering evidence only to check evidence
already gathered (Plashevskaya, 2006).
The presiding judge should enhance the parties to be proactive in the
investigation of evidence to ensure equality (e.g., to clarify whether the
victim or the accused has questions or additional information) (Ivanov,
Fadeev, Alimamedov, Dung, 2020; Ivanov et al., 2020; Pushkarev et al.,
2021), to check whether the evidence is relevant, acceptable, credible, and
sucient. To complete these goals, the judge has to study all the case les
in advance and devise a plan for the trial (Golovko, 2016).
It is especially relevant in the Russian criminal proceedings under the
low level of activity of the defense especially during pre-trial proceedings
(Kozyavin, Chebotareva, 2015). A nominal adversarial approach which is
present at the pre-trial stage is substituted by a real adversarial approach
during court proceedings at which the defense les a motion to investigate
additional evidence over the judge who does not have any procedural
interest.
It should be mentioned that the activity of the presiding judge should
aim to check and evaluate the gathered evidence and not to gather new
evidence. This possibility to request evidence ensures that the criminal case
will be resolved, and the sentence will be justied. However, though being
active, the presiding judge does not substitute one of the parties because
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he does not know what evidence (conviction or acquittal) will be gathered.
Moreover, the court is allowed to act under the indictment. Thus, it proves
again that the court acts only to check and evaluate the evidence which
has already been gathered. In addition, only the presiding judge can make
authoritative decisions that will inuence the process of proving (subpoena
witnesses, assign forensic expertise, etc.).
Undoubtedly, a professional judge knows legal norms and understands
how to apply them. The possibility to request any evidence, which is
necessary to clarify certain facts and circumstances, is granted by law.
These two aspects fully condition the activity of the judge. According to
L.V. Golovko (2016), these aspects can help the judge to dispense justice
properly in criminal cases.
In the Soviet period, it was almost impossible to provide qualied legal
assistance for everyone, so it was the only option to form an initiative court.
It was the court that was in charge of studying the case les, subpoenaing
witnesses, assigning forensic expertise, reviewing compliance with time
limits, and addressing time extensions if necessary. According to the Statute
of the People’s Court of the RSFSR on October 21, 1920, the court is a body
that monitors, manages, and guides the process, i.e., it was not bound by
the evidence presented by the parties (Regulations on the People’s Court of
the RSFSR, 1920).
Art. 20 of the Criminal Procedure Code of the RSFSR stated that the
court, the prosecutor, the investigator, and the interrogator must take
measures as prescribed by the law to conduct a comprehensive, complete,
and objective study of the case, to reveal incriminating and exculpating
circumstances. However, on the approval of the new Criminal Procedure
Code of the Russian Federation, this provision was no longer in force but
there were several responsibilities in the process of proving that remained
(Piyuk, 2017).
Undoubtedly, in order to fulll the duty of solving the case, the judge
has to be impartial, i.e., according to the European Court of Human Rights,
there must not be any bias or predisposition. That is why the judge must
possess a psychological competency which implies a possibility to assess
one’s bias, to evaluate with concern arguments of both parties, and to be
able to relieve psychological tensions during the investigation of evidence
(Kudryavtseva, Syskov, 2007, p. 83). Impartiality is a basis of a fair trial. If
the judge acts as the principle of impartiality requires, it may increase the
level of trust in the judiciary among citizens.
In verifying the impartiality, The European Court distinguishes between
the subjective approach and the objective approach. The former reects the
personal beliefs of a judge regarding a particular case, the latter denes
whether there was enough guarantee to eliminate doubt. It is crucial to
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Erna Kaysynovna Batchaeva, Daria Olegovna Chistilina, Aleksandr Viktorovich Grinenko,
Tatyana Kimovna Ryabinina y Vasiliy Jonovich Potapov
Russian court in adversarial criminal procedures
highlight that personal impartiality shall be presumed whereas objective
grounds may be not. However, the Constitutional Court of the Russian
Federation demands some proof that the judge is impartial no matter how
dicult it is to obtain such proof. Thus, a judge should behave in such a way
so that neither the participants nor the attendees have doubts about the
impartiality of the court (Trubnikova, 2013).
Therefore, the main aim of the court is the resolution of a case based on its
merits and making a lawful, justied, and fair verdict which is impossible if
the court does not possess an active function. The court cannot be a passive
observer but shall identify all the circumstances in order to seek justice.
In addition, there certain requirements that should be met such as the
representation and investigation of all pieces of evidence; the gathering is
performed by legally stipulated means. A court which is passive and is not
engaged in seeking the truth cannot fully protect the rights of a person,
public and social interests, and, consequently, cannot uphold a fair sentence
(Baranova, 2013).
Moreover, according to the decision adopted on 23 December 2008
of the plenary session of the Supreme Court of the Russian Federation
“On the norms of the Criminal Procedure Code of the Russian Federation
regulating appeal courts and cassation courts”, a violation of the criminal
procedure law aects imposing a lawful, justied, and fair sentence by
deprivation or restriction of legal rights of the accused, the defendant, and
other participants or by any other means. Thus, it is not always a violation
of rules for the court to be active. Every case should be studied individually
with consideration of all the circumstances.
It should be noted that in continental Europe, judges play a more active
role in proceedings than in those countries which practice the Anglo-
American system where the activity of the judge is quite restricted.
For instance, in the USA, the Federal Rules of Evidence stipulate that
the court controls the method and procedure of questioning of witnesses
and presentation of evidence, the judge has a right to intervene in the
presentation of evidence by the parties in order to establish true facts, and
the judge can also subpoena a person as a witness (The Criminal Procedure
Code of the Republic of Kazakhstan No. 231-V, 2014).
According to Art. 310, the judge has such an authority “by which he
may, upon his honor and his conscience, take any measure he believes
useful for the discovery of the truth” (Federal Rules of Evidence, 2014). In
Germany, the court can also seek truth in spite of the presented evidence
and led motions (Bundesrecht konsolidiert: Gesamte Rechtsvorschrift für
Strafproze ßordnung, 1975).
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In CIS member States, the court also plays an active role. In this way,
according to the Criminal Procedure Code of the Republic of Uzbekistan,
the court can conduct expertise and investigation during the trial.
Moreover, according to Art. 442 of the Criminal Procedure Code of the
Republic of Uzbekistan, the presiding judge begins the questioning of
the accused (Criminal Procedure Code of the Republic of Uzbekistan No.
2013 – XII, 1994). According to Art. 309 of the Criminal Procedure Code
of the Republic of Tajikistan, the presiding judge denes the procedure of
evidence examination as agreed with the parties and authorizes the order
(The Criminal Procedure Code of the Republic of Tajikistan, 2009).
Conclusions
The authors believe that the main problem is that there is still no well-
functioning model of the adversarial criminal procedure elaborated under
the Russian legislation. The court is often accused of excessive activity
and substitution of one of the parties which happen when the party is not
willing to act. In this case, the forced court activity can be explained by
its responsibility for the legitimacy, validity, and justice of the sentence.
Meanwhile, the proactive stance of the court is often viewed negatively in
practice. It can lead to the annulment of the verdict despite the fact that
there is no strict prohibition of court activity in criminal proceedings.
All things considered; the court is a unique public body that has a right
to resolve a case based on its merits. The legislation provides a judge with a
set of guarantees against negative inuence from other ocials and public
bodies. A judge’s authority shall be aimed at a fair resolution of criminal
cases through establishing the facts and circumstances in order to obtain
a holistic picture. The unjustied restriction of a judge’s power to request
evidence is a signicant obstacle to a fair and objective resolution of a case.
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Esta revista fue editada en formato digital y publicada
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