Significant problems of the criminal process are associated with the fact that at the legislative level, pre-trial proceedings and the court in criminal cases are regulated in the same way. The predetermination of the “accusatory bias” arises from the similarity of the structure of the current law to its Soviet predecessor. The extension of the uniform principles of legal proceedings to its various heterogeneous elements leads to the emasculation of their meaning. It is proposed to divide the criminal procedure law into “Investigation Code” and “Judicial Code”.
An attempt has been made to assess the content and implementation of the adversarial principle in the criminal process from the standpoint of comparing specific norms and institutions with their sectoral counterparts in other procedural sectors. It is proposed to replace the ideologically saturated discussion about the benefits and harms of competitiveness for the criminal process with an assessment of the state of its specific institutions. It was revealed that a number of institutions of the criminal process have a non-competitive nature, among them are preventive measures, the return of the criminal case by the court to the prosecutor, monetary recovery, forensic examination, termination of the criminal case in connection with the reconciliation of the parties, appeal and cassation appeal, review of the case on newly opened and new circumstances, etc. Separate borrowings of norms from arbitration, civil and administrative proceedings, which are of a pronounced adversarial nature, are proposed to correct the identified problems of the criminal process.
Based on statistics and survey results the author highlights that there is a markedly lower quality of criminal justice as compared with arbitrazh (commercial) disputes. The comparison is based on six indicators: the distribution of cases among judges, the capabilities of the information system, the policy of the use of telecommunications technologies, the observance of procedural deadlines, adherence of the court to timelines and the use of mediation procedures. The selected parameters have been developed by the European Commission for the Efficiency of Justice and reflect not only the organizational but also the procedural features of each of the types of proceedings under consideration.The author supports the concept of judicial law, and, therefore, the study is devoted to finding unreasonable differences in the quality of justice in some types of justice. These include: automated distribution of cases in courts of general jurisdiction which is affected by the will of operators to the extent in which it is implemented in arbitrazh courts; lack of necessary “e-justice” tools in "Pravosudie" Stat Automated System (GAS "Pravosudie"); insufficient use of video-conferencing by the courts of general jurisdiction, unwillingness to conduct an electronic case and remote formalization with cases; continous consideration of criminal cases in comparison with arbitrazh and other cases; disrespect of the courts of general jurisdiction for the time of the proceedings’ participants; refusal of the court to promote amicable settlement of criminal disputes. Fully aware of all the differences between criminal and arbitrazh proceedings on many grounds: both the existence (or absence) of formalized pretrial proceedings and qualitative characteristics of the parties and their representatives and the specific weight of the cases dealt with by the courts in the total scope of all legal cases in the country, the author nevertheless considers that according to the indicators applied by the European Commission for the Efficiency of Justice all types of domestic proceedings are still comparable, and the apparent differences in accessibility and quality of justice are not unavoidable.
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