In short, the principle of adversarial process in criminal proceedings should be a tool that provides an objective and comprehensive study of the circumstances of the case. It serves to search for truth. With this approach, the participation of equal persons in legal proceedings involves the prevention of the unilateral nature of the facts revealed. At the same time, the activity of the court should ensure the adoption of a sentence corresponding to the real situation. Meanwhile, with the development of criminal law, the approach to understanding the importance of the adversarial process of the parties in the criminal process has changed. Let us further consider how this principle is implemented today. This article is intended primarily for students studying criminal law at universities. Information from the dough can be used to make a cheat sheet.
The principle of adversarial process in the criminal process: structure
It is advisable to start the study by highlighting the key elements of the principle under consideration. In criminal law science, three components of the adversarial and equal rights of the parties in the criminal process are traditionally distinguished:
- Separation of key procedural functions: defense, prosecution, resolution of the case.
- Empowerment of participants with equal rights and obligations.
- Active and leadership role of the court.
In 2001, the Code of Criminal Procedure was adopted, which discloses the notion of adversarial process in criminal proceedings (Code of Criminal Procedure, Article 15). In accordance with the norm, this principle includes:
- Department of the procedural functions of defense, prosecution and resolution of the case.
- The prohibition on assigning to the same institution or official more than one procedural function. In other words, the adversarial process of the parties in criminal proceedings means that the court, for example, cannot act on the defense side, and the prosecutor cannot be a judge.
- The prosecution and the defense are equal before the court.
This list can be completely included in the cheat sheet on the competitiveness of the parties in the criminal process.
Explanations
Of course, the activities to initiate, investigate, and resolve a criminal case will not be successful if the various procedural functions are implemented in one body. If the participants in the proceedings separate from each other carry out the prosecution and defense, then there must be an independent institution that resolves the case - a court. Only in this case does the defense side have a real opportunity to defend their interests. With such a structure of legal proceedings, a full, comprehensive study of the circumstances of the case will be ensured, which, in turn, will lead to a fair, lawful and justified sentence.
Each evidence presented, each fact is examined in terms of prosecution and defense. The court can establish and evaluate all the arguments given in favor of the defendant, and in favor of the victim. The combination of procedural functions solely in the hands of the court would give its activity a purely one-sided character, which, in turn, would create obstacles to a comprehensive clarification of all the circumstances of the case.
Court activity
The implementation of the principle of the adversarial process of the parties in the criminal process is ensured by vesting the court with a number of special procedural rights. So, its activity in demanding additional materials, referring the case to an additional investigation is considered as a guarantee of the search for truth. The actual activity of the court implies an objective and comprehensive study of the case, without incline towards the prosecution. It is in this case that the authorized instance, not being satisfied with the subjective claims of the parties, can fully resolve the case and pronounce the verdict in accordance with the general goals and interests of justice.
At the same time, the principle of the adversarial process of the parties should be an instrument in achieving the truth. In the criminal process, there are few examples of conviction of the innocent and acquittal of the guilty. Nevertheless, they do occur and are the result of insufficient court activity. The trial should not have an accusatory bias, since during it facts can be revealed that mitigate liability. They should be taken as a remedy, which the accused loses in case of passivity of the court.
The content and form of criminal proceedings
In the criminal process, the adversarial process of the parties is considered one of the fundamental elements. To study its essence, it is necessary to highlight the issue of the content of legal proceedings. In general, it is defined as a way to implement criminal law and bring the perpetrator to justice for violation of the Criminal Code. The form of the process in this case represents the structure of the criminal procedure.
In the course of improving the criminal procedure system, some types of process replaced others, depending on the historical period, state structure and other factors. Currently, the adversarial process of the parties in the criminal process has replaced the inquisition mechanism, which presupposes the absolute sovereignty of the court. Modern legal proceedings are vowel, direct, oral. The Inquisition process was always carried out secretly and mainly in writing.
The adversarial nature of the parties to the criminal process allows the accused to be accepted as a participant in the proceedings, and not exclusively as an object of investigation. He becomes the bearer of subjective procedural rights and obligations.
Members
The most important condition for ensuring the competitiveness of the parties in the criminal process is the presence of persons involved in the proceedings by the prosecution and the defense. Participants substantiate and prove their claims before the court.
Defense and prosecution carry out fundamentally opposite functions. The prosecutor accuses, and the defender, respectively, protects. Meanwhile, the functions of the parties should not be interpreted so simplistically. The prosecution involves the implementation of a set of actions by an authorized state body to investigate a case, to expose the perpetrators before the court. Moreover, this procedural activity is not limited solely to the speech of the state prosecutor in the courtroom. The participation of this person in the proceedings should be considered the final stage of the indictment.
As for the defense, it can be considered as a set of procedural rights and means provided by law to the accused. With their help, a citizen defends himself against a charge in court. A lawyer speaking in the courtroom is one side of a complex set of procedural measures through which legislation guarantees the right to defense.
Competition Features
Regardless of the legal system adopted by the state, the adversarial process involves the opposition of the parties collected evidence. They are cited by opposing participants in front of a neutral authority. The main task of the court is to resolve the case.
The parties independently collect and present evidence, and the judge or jury passively present and listen to the arguments of the participants. Subjects collect, study, and provide evidence to their advantage. A judge may intervene in the process to prevent disparities in reporting on the case.
Participants carefully gather evidence and carry out an investigation because they are most interested in making a decision in their favor. Each side, however, solves only half of the task, because it collects materials to argue exclusively for its position, bases its arguments only on its own point of view.
Important point
It is believed that, in the framework of competition, the only way to prevent the adoption of a premature decision is to lay the responsibility for a preliminary investigation and present evidence to direct participants in the process. This approach allows you to relieve the responsibility for the investigation from the subject making the final decision on the case. In this case, the court may objectively hear the arguments of the participants. He does not need to think about when to stop collecting evidence, because resolving this issue is the task of the parties.
The specifics of the criminal procedure
The level of development of legal theory determines the quality of the rule-making process, as a result of which a clear form and structure of criminal proceedings is enshrined in the legislation. There is an inextricable link between the form and content of any phenomenon. The content of the criminal process is criminal procedural activity. Its specificity lies in the fact that in its implementation the subject is always involved, who is charged with a crime. He is interested in observing the criminal procedure rules.
Procedural Statuses
To realize his interest, the subject must have a certain set of rights. However, certain rights are granted to the victim, the investigating authorities and the court. As a result, all participants in the production acquire the corresponding procedural status.
The status of the victim and the investigating authorities on the one hand and the accused on the other can be unequal and equal. In the latter case, the authorized state agencies, the victim of the crime and the indicted person are parties to the process.
Realization of state interest in criminal proceedings
The state in the framework of the criminal process implements interconnected, but relatively separate functions. It investigates through the investigating authorities, supports the prosecution through the prosecutor, and resolves the case through the court.
The state’s interest is not to win the trial at any cost, to institute proceedings against a person whose guilt is doubtful or to condemn him. The key task is to ensure the rule of law at all stages of the case so that the innocent are not convicted and the perpetrators are justly punished. Achieving goals is impossible without establishing the truth, a comprehensive, objective and complete study of the evidence collected.
Qualitative and quantitative parameters of competition
An external parameter of competition is a quantitative indicator that indicates the number of procedural actions. Compliance with the procedure for their implementation is achieved primarily through the allocation of equal status to the prosecutor and the accused. Having estimated the volume of competition, one can compare criminal processes with the same historical form. With the expansion of adversarial principles, the number of procedural actions will increase. However, this will not entail a change in the specific historical form of the criminal process.
The essential parameter is a qualitative indicator of competitiveness. It testifies to the equality of the procedural statuses of the prosecutor and the accused, either only at the stage of legal proceedings, or both during the trial and during the investigation.
Conclusion
Adversarialism is considered, therefore, as a property that characterizes the criminal proceedings as a whole, its specific stages or certain procedural actions. It is expressed in the equality of the status of the investigating authorities and the person who is suspected of involvement in the crime, as participants in a criminal case.
Competitiveness is a production model that takes into account the principles of litigation .