The Fairness of Pre-trial Proceedings in a Criminal Case

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Introduction Taking into consideration the specific nature of the work of investigative units and bodies conducting preliminary investigations in criminal cases, the concept of justice appears to be highly relevant. When these individuals perform their duties solely based on current legislation, it becomes plausible to argue for the implementation of justice. In examining the theory and practice of fair pre-trial proceedings in the Russian Federation, a detailed exploration of the procedural status of individuals conducting criminal investigations is essential. Pre-trial proceedings are portrayed as a dynamic and constructive legal confrontation between the defense and the prosecution, each advocating their own positions with vigor. The existing criminal procedure laws establish that the adversarial system forms the foundation of criminal proceedings, encompassing pre-trial proceedings as well. This approach is clearly reflected in the regulatory framework. For instance, Article 5, paragraph 55 of the Criminal Procedure Code of the Russian Federation stipulates that individuals engaging in pre-trial proceedings are associated with the prosecution and are tasked with understanding the core of the incident to identify the perpetrator. A critical examination of the theory and practice of ensuring fairness in pre-trial proceedings through the adversarial roles of defense and the prosecution underscores the importance of the concept of justice, necessitating a nuanced analysis. Some legal theorists argue that the appointment of pre-trial proceedings does not align with the concept of justice (Derishev, 2005). This perspective arises from the philosophical nature of justice, which permits various interpretations. What one legal professional may view as just, another may perceive as entirely contradictory. The origin and development of the perception of justice The perception of the idea of justice had evolved as a multidisciplinary concept throughout the history of humanity, adapting to changes in society. People consistently pursue justice, seeking its triumph in their own circumstances. However, each individual’s perception of justice, as well as its realization, is subjective, akin to the concept of truth. Individual notions of justice often differ from the scholarly understanding in various fields such as law, economics, sociology, or psychology. Therefore, before delving into the discussion of justice in criminal proceedings, it is crucial to methodically examine the historical formation of the concept of justice. Scholars addressing this issue identify several stages in the transformation of the idea of justice. For example, in antiquity, the notion of justice did not necessarily require equality among individuals; rather proportional retribution for positive (such as labor) and negative acts (such as offenses) was considered just. Aristotle deliberated on different forms of justice, such as commutative justice, which involves an equal distribution of goods, and distributive justice, where the allocation of goods depends on social status, abilities, and talents (Maryukhnich, 2016). In the Middle Ages, discussions of justice often took on a theological dimension. According to Augustine, the severity of punishment increased depending on the danger and seriousness of the transgression, justified by the idea that the wrongdoer diminishes the presence of God on Earth. It was believed that through the severity of punishment, the wrongdoer could rectify their mistake and restore injustice (Bulgakov & Bulgakova, 2020). In the modern era, the writings of I. Kant provide an intriguing perspective on justice, categorizing it into punitive and distributive forms. This signifies a deeper and different approach compared to ancient times, focusing on the distribution of what is deserved by a specific individual. Retributive justice seeks to determine punishment in accordance with the harm caused, while distributive justice aims to determine a commensurate reward based on the merit. Kant regards justice as the normative basis for adopted laws and as a virtue of individuals empowered with authority (Kirsanova, 2011). In the modern period, it is challenging to pinpoint a dominant concept of understanding justice. However, it is intriguing to form a legal perspective of justice. As noted earlier, justice is a multidisciplinary concept with a philosophical foundation that revolves around anticipated or deserved retribution. From a socio-psychological approach, it is important to differentiate between justice in the process of interaction and the fairness of its outcome, addressing both the distributive and procedural functions of justice (Mikhel, 2023). Notably, there is a crucial distinction between jurisprudence and psychology: in resolving conflicts within the context of working with a psychologist, the focus is on the subjective perception of justice (inclusive of both the process and the outcome) in the “here and now”, involving the participants’ individual characteristics and circumstances. Conversely, in resolving a criminal conflict within the framework of legal proceedings, justice is perceived as the attainment of a well-deserved outcome through a fair and objective process (Tyler, 2000). The founders of the theory of “objective procedural justice” were psychologists J. Thibault and L. Walker, who formulated the idea of preferring conflict resolution in a way that allows the conflicting parties to control the process, with the final decision being made by an impartial third party (Thibaut & Walker, 1978). Building on this theory, the following concepts were distinguished: · Ideal Procedural Justice: This is understood as divine judgment, where the process is seen as flawless and the outcome inherently just. · Imperfect Procedural Justice: The criminal court serves as an example of this form, where the fairness of the outcome is a defined criterion, but there is no perfect procedure to achieve it. · Pure Procedural Fairness: Here, the outcome is deemed fair irrespective of its nature, as long as the procedure was properly followed. A notable example is blockchain, which is often positioned as a political institution that ensures the fairness of decisions through voting based on a transparent and clean procedure (Matveev, 2018). Of interest is the view of D. Lloyd, who, linking the ideas of justice and law, formulated the following theses: the necessity of rules to respond to specific situations involving specific participants; the universality of these rules, meaning that a specific participant must come under the jurisdiction of this rule; the impartiality of these rules (Lloyd, 1966). Today, three main approaches to determine the relationship between law and justice can be identified. Firstly, some scholars perceive justice as an independent category and argue that a certain provision cannot belong to both the “justice” and “law” categories simultaneously. Under this approach, justice normatively concludes law. The second approach posits that justice is a universal idea that extends to all areas of social life. While being an independent category, justice forms the foundation of law. Finally, the third approach perceives justice as the most crucial part of law - its fundamental principle (Bulgakov & Bulgakova, 2020). Fairness of criminal proceedings A very informative analysis was conducted by A.I. Shmarev in the article “Is the principle of justice necessary in the criminal process of Russia?” where the author organized the perspectives of modern scholars on justice as a principle of criminal proceedings. Various viewpoints are examined regarding the comprehension of justice specifically through the lens of criminal procedure, as well as its manifestation in procedural regulations and the importance of establishing a distinct principle (Shmarev, 2020). As per categorization of knowledge, there exist diverse scholarly opinions, which suggest that the legal principle: · should be codified by law and establish the fundamental principles (Makarova & Yanin, 2003; Grinenko, 2000); · could be enshrined in a separate statutory provision, but also serves as a general system of norms within the field (Dobrovolskaya, 1971); · can also be conceived as an implicit idea not formally codified, but implied in alignment with democratic and legal ideologies (Aleksandrov, 2003). Currently, the Criminal Procedure Code of the Russian Federation does not include a specific provision on the principle of justice, even though the principles of criminal procedure are extensively addressed in the Code, illustrating a particular attention of the legislator to formulating the fundamental rules of criminal procedure. When deliberating on the necessity of the principle of justice in criminal proceedings, it is crucial to assess it based on the criterion of the fundamentality of legal principles. Undeniably, the fundamentality of any principle, contrasted with more specific directives, lies in the fact that the principle forms the basis on which the legal system of norms as a whole is constructed. Given that the concept of justice underpins any decision-making, it is apt to regard justice as a foundational construct of law, without which the functionality of the legal system would be compromised. Nevertheless, as discovered through research, justice is subject to varying interpretations by participants, hence it is imperative to delve deeper into the formulation of the fundamental principle of criminal procedural law, especially considering that social dynamics and overall context, in our view, do not foster the legal entrenchment of the principle of justice in criminal procedural law. In science, there is an ongoing debate about the necessity of defining the principle of justice in criminal proceedings and its formalization. Various concepts have emerged regarding how this concept should be put into practice: · Justice involves actions in accordance with the law and conscience aimed at establishing the objective truth through reasoned decisions based on the established facts of the case (Nazhimov, 1989). · Fairness is perceived as the objective or purpose of the process (Alimov, Gromov & Zeynalova, 2002; Antonov, 2003); · Justice is defined through the lens of legality, seen as adherence to prescribe rules (Bozrov, 2005). · Justice as a principle should be codified, but a clearer definition is yet to be developed. The question arises: what constitutes justice in criminal proceedings and whether a separate principle is necessary? Turning to criminal law, an interesting concept emerges regarding proportional retribution for one’s actions, meaning that punishment is commensurate with the nature and degree of social risk posed by the crime. It embodies the idea of justice, where everything is deserved. Importantly, consideration is given to the differentiation of punishments based on the characteristics of the committed crime and the offender’s personality, reflecting another aspect of justice in the criminal law (Brilev, 2017). Another significant aspect of justice lies in the ability to consider the presence or absence of mitigating or aggravating circumstances, thereby refining the decision to suit a specific situation, bolstering the fairness of its adoption (Tagizade, 2011). Nevertheless, it is often posited that a decision may be justified and lawful, yet not deemed fair from the perspective of public opinion. This notion is echoed in the writings of Professor Kh. I. Gadjiev: “the guarantee of a fair trial falls into the procedural category, intended to ensure procedural justice rather than outcome-based justice, and to render a decision based on true facts and the correct application of the law” (Gadjiev, 2022). It appears that Professor Kh.I. Gadjiev’s viewpoint aligns with concept of imperfect procedural justice. It is important to recall that the main premise of procedural justice theory is to resolve conflicts in such a manner that allows the conflicting parties to have control over the process, with the final decision being made by an unbiased third party. At the same time, within this framework, the criterion of the fairness of the outcome is delineated, but there is no ideal procedure for achieving it. On the other hand, Professor Y.I. Lyakhov strongly disagrees with Professor Kh.I. Gadjiev stance, emphasizing in his works the emphasis on justice, which ensures the rationality of the verdict and the entire legal proceedings. Professor Y.I. Lyakhov believes that “the essence of the fair trial principle lies in the alignment of a procedural decision or action to the essence of the criminal process, namely, its focus on establishing the true culprit of the crime, and in the fair determination of the consequences of this act.” From an axiological standpoint, this can only be achieved with divine judgment (Lyakhov, 2022). The phrase “...not result-oriented justice...” seems to allude to public opinion, wherein the outcome is perceived as not aligning with the concept of justice. Observing procedural justice rigorously will inevitably lead to the fairest decision wherever it is rendered. The national Criminal Procedure Code, with its comprehensive analysis of the correlation of norms, their logic, and relevance, allows for a clear understanding that this legal act regulates the entire process of criminal proceedings and the procedural status of its subjects fairly and comprehensively. It seems that at present the Criminal Procedure Code provides for the most honest “rules of the game” that are generally possible within the framework of investigating and adjudicating the committed crime, as it includes: · Clear provisions affecting the rights and obligations of subjects. · Strictly defined powers of individuals conducting pre-trial proceedings for the purpose of a comprehensive and fair trial. · Clear separation of the parties. · A multi-stage system for reviewing the final decision. · Proclamation of the presumption of innocence. · Provision of free legal assistance and interpreters. One can argue about non-compliance with the prescribed rules, but that indicates the dishonesty and injustice of specific individuals, not of the law itself. In this regard, it appears that the process is imbued with the idea of justice. The Code serves as a specific guide “on how to fairly investigate crimes”, and it is accessible to everyone, not representing some kind of secret knowledge. In light of the above, we have concluded that there is no need for a separate legislative consolidation of the principle of justice in criminal proceedings. On fairness in pre-trial criminal proceedings A common argument regarding the unfairness of pre-trial criminal proceedings often centers on the theory that individuals are knowingly at disadvantage when entering into confrontation with the state (viewed from the perspective of the pre-trial process). When examining the issue of justice implementation in pre-trial proceedings, it is essential to focus on the provisions of the Criminal Procedure Code of the Russian Federation, which delineate the rights and obligations of suspects and accused individuals. Articles 16 and 50 of the Criminal Procedure Code provide a clear description of the rights and obligations of individuals with procedural status. Vigilant supervision of the correct application of the legal provisions mentioned above also serves to affirm the significance of the concept of justice. Notably, it facilitates the conduct of a fair trial and mandates the participation of a lawyer. The imperative nature of the lawyer’s presence is regulated by Article 51 of the Criminal Procedure Code of the Russian Federation. However, it is important to consider the unique perspective of individuals who are not involved in criminal procedural activities. Often, this circumstance does not hinder these individuals from considering themselves as experts, including in criminal proceedings. Hence, once again, we are confronted with the concept that injustice is manifested primarily in public perception. This sentiment is echoed by a member of the legal professional community, who states: “Forty years ago, when I engaged in advocacy, I was told in my first lecture that there would be no satisfied clients in this line of work. If you defend someone for ten years and then they are acquitted, the client will think: “What were you doing for ten years when it is obvious that I am innocent? This acquittal should have happened ten years ago.” If the client receives a lesser sentence or similar outcome, they will say: “Why wasn’t I acquitted?” Even if the outcome is a deferred sentence, they still won’t be satisfied, do not expect it. As the President of the Federal Chamber of Lawyers of the Russian Federation emphasized, each client finds themselves in a situation where they internally believe that they must prevail in their case. This mindset reflects the psychology of those who find themselves in such circumstances. Svetlana Volodina (FCL President) also shared insights from surveys conducted in temporary detention centers and prisons, revealing that clients provided with legal assistance by appointment, despite common perceptions of dissatisfaction, express contentment with the lawyers’ services. Interestingly, when they pay for legal representation, they ponder whether an appointed lawyer could achieve the same outcomes for them. This creates a disconnect between their expectations and reality. Surveys conducted across 14 countries through attorneys and their clients indicated that no other country has such a high level of client satisfaction, pacing Russia in the top position. Addressing the perception of lawyers as counterparts to investigators, with similar capabilities that they choose not to employ due to their appointed role, the President highlighted that some laypeople may fail to grasp the lawyer’s primary role in the pre-trial process - to monitor the protection of the client's rights, rather than conduct a “parallel investigation”[138]. Expanding on the comprehensive possibility to ensure justice, it is pertinent to note the possibility for subjects of pre-trial proceedings to legitimately challenge the investigator or interrogator, as stipulated in Articles 61-67 of the Criminal Procedure Code of the Russian Federation. These provisions afford individuals the opportunity to uphold their right to a fair trial. Furthermore, an analysis of the aforementioned legal provisions leads to the conclusion that if the investigator’s interests significantly impede the proceeding, he may be subject to challenge (Borisov, 2010). Regarding the official duties of the investigator, it is important to note that their responsibilities are regulated by the legislator. Part 2 of Article 38 of the Criminal Procedure Code of the Russian Federation grants the investigator the authority to initiate and accept criminal cases, conduct investigative actions, and independently, as a distinct procedural unit, carry out the course of the investigation. Additionally, paragraph 6 of Part 2 of Article 38 of the Criminal Procedure Code also asserts the investigator’s right to exercise other powers provided for by the current criminal procedure legislation. Many legal theorists argue that when implementing the provisions of the Criminal Procedure Code, the investigator often focuses primarily on exposing an individual for the commission of a crime, with less thorough consideration of mitigating circumstances. However, opposition to this perspective is permissible by referencing Article 73 of the Criminal Procedure Code of the Russian Federation. According to the provisions of this legal rule, the burden of proof is clearly delineated, encompassing the collection of material that provides information about the personality of the accused. This includes provisions in the indictment reflecting the potential for mitigating punishment, such as the presence of children, restitution for damages, cooperation with the investigation, expression of remorse, and so on. Further, addressing the issue of administering justice, an individual who holds the procedural status of an investigator and interrogator, when conducting a preliminary investigation in a criminal case, can utilize the norm outlined in Article 88 of the Criminal Procedure Code. This article allows for the declaration of evidence as inadmissible. The decision to declare evidence inadmissible may stem from the investigator’s or interrogator’s judgment, and at the request of an individual with procedural status. Inadmissible evidence will not be included in the indictment. This directly indicates the application of fair trial principles in practice. The purpose of pre-trial proceedings is to conduct a comprehensive and impartial examination to establish an exhaustive truth, which is supported by the collection of criminally relevant information[139] reflected in the protocols of investigative actions and other evidence. Given that criminal proceedings are conducted by investigators and interrogators (in certain cases as part of an investigative team for particular complex criminal cases), it is the investigator and interrogator, as individuals with a special procedural status, who are tasked not only with investigating a crime but also do so objectively, impartially and comprehensively. Their role involves addressing the issues within the framework of criminal case investigation. Individuals authorized to conduct preliminary investigations frequently receive petitions under Chapter 15 of Articles 119-122 of the Criminal Procedure Code of the Russian Federation from defense representatives. These motions aim to conduct additional procedures to delve deeper into the criminal case and establish crucial information essential for a thorough investigation. For instance, defense often requests the interrogation of persons with information on the crime or material characterizing the client, and they may also seek expert examinations. To illustrate the practical application of the abovementioned principles, consider a scenario where an investigator possesses material evidence in the form of CCTV footage capturing the suspect. However, the defense files a petition under Article 159 of the Criminal Procedure Code to conduct a portrait examination to confirm the presence of the specific individual in the video. Through this collaboration between the investigation and the defense, the principle of justice is upheld as the criminal case is approached without bias and aims to achieve a comprehensive understanding of the circumstances. Analyzing justice through the lens of law, it is worth noting the Resolution of the Constitutional Court of the Russian Federation No. 13-P of 29.06.2004 “On the verification of the constitutionality of certain provisions of Articles 7, 15, 107, 234 and 450 of the Criminal Procedure Code of the Russian Federation in connection with the request of a group of State Duma deputies”. In this resolution, the Constitutional Court elucidates Article 15 of the Criminal Procedure Code concerning the obligation of preliminary investigation authorities to establish all circumstances of a committed crime, while respecting the rights of subjects of pre-trial proceedings in accordance with the Constitution of the Russian Federation and federal legislation. This resolution underscores the principles of legality and fairness in the conduct of pre-trial proceedings by upholding the rights and freedoms of individuals and safeguarding them from unjust accusations. Under the provisions of Chapter 6, Article 38 and Article 41 of the Criminal Procedure Code, the person conducting the initial inquiry and the investigator initiate and investigate criminal cases, functioning as an independent entity aligned with the prosecution. This position is partly disclosed in the analysis of the Decision of the Constitutional Court of the Russian Federation No. 1-P of 14.01.2000 “On the verification of the constitutionality of certain provisions of the Criminal Procedure Code of the RSFSR governing the court’s authority to initiate a criminal case, following the appeal of citizen I.P. Smirnova and the request of the Supreme Court of the Russian Federation”. This decision also indicates that the initiation of a criminal case and representation of the prosecution fall under the jurisdiction of the preliminary investigative authorities. It is crucial to emphasize that although the investigator and the individual leading the initial inquiry align with the prosecution, their primary duty is to thoroughly establish the sequence of events in order to identify individuals involved in the commission of the crime. In this context, the terms “adversariality” and “justice” seem to be complementary since they ensure the protection of human rights and freedoms through the lens of fair confrontation. The practical aspect of implementing the principle of justice by the subjects of pre-trial proceedings during the preliminary investigation stage can be illustrated by the following examples. In the course of an investigation by the investigative department, a criminal case was initiated against a specific individual for an offence under Part 2 of Article 288 of the Criminal Code of the Russian Federation. As part of the investigation, the defense filed a motion, as prescribed by Article 120 of the Criminal Procedure Code, requesting to include additional, characterizing material about the suspect’s high moral qualities and social significance for society to the case files. The investigator, following the provisions of pp. 121-122 of the Criminal Procedure Code, intended to grant the petition and incorporate it into the case materials. Subsequently, this information was included into the indictment materials and taken into account during the court proceedings, ultimately influencing the decision-making process in a just manner. A second example illustrating the manifestation of justice in the context of pre-trial proceedings involves a criminal case initiated for the commission of an offense under Part 2 of Article 159 of the Criminal Code against a group of individuals. After the compensation for damage, the defense petitioned for the inclusion of the victim's receipt for compensation for material and moral damage in the case files. In this receipt, the victim expressed a desire for the court to fairly assess the repentance of the accused and voluntary compensation for the damage, which was duly considered and evaluated by the court during sentencing. The concept of fairness in the investigator's actions is enshrined in Article 38 of the Criminal Procedure Code of the Russian Federation. In light of the petitions in the aforementioned examples, it is essential to recognize that the investigator had the authority to reject the stated claims, as per the law, the investigator independently determines the course of the investigation and, in exercising the powers conferred by law, has the right to make various procedural decisions within the framework of the investigation, including the refusal to grant petitions. Within the framework of judicial practice, attention should also be drawn to the provisions of Resolution No. 58 of December 22, 2015, “On the practice of imposing criminal punishment by the courts of the Russian Federation” by the Plenum of the Supreme Court of the Russian Federation. For example, the Supreme Court emphasizes the importance of fairness in the context of justice, stating that courts should individually address the resolution of each criminal case and all necessary measures to ensure the fairness of the punishment. The fairness observed in pre-trial proceedings directly impacts the decision of the court, as the process of collecting all information for the court’s review and analysis plays a pivotal role in the adjudication process. In the practical administration of justice, it is also pertinent and permissible to acknowledge the primary role of the subjects involved in pre-trial proceedings who directly carry out the criminal proceedings. When exercising their powers, the investigator and the interrogator are obliged to establish the truth in the case and comprehensively analyze all the facts established in the criminal case, following the algorithms for the comprehensive and thorough examination of all aspects, which, in an ideal combination, forms the fundamental basis of the principle of fairness in pre-trial proceedings. When gathering evidence in accordance with the procedure 74-74 of the Criminal Procedure Code of the Russian Federation, the focus should be on establishing mitigating circumstances for the commission of a crime rather than adopting a biased accusatory approach. The concept of justice is a recurring theme in the work of individuals authorized to conduct pre-trial proceedings in criminal cases. Their activities aim to identify the perpetrator of the crime by adhering to the provisions of the law and job descriptions while ensuring the exclusion of the possibility of wrongly accusing an innocent person. If the investigators and interrogators solely pursue an accusatory bias during criminal proceedings, it poses a significant challenge to society as a whole. It undermines the purpose of law enforcement agencies as a one-sided approach can lead to a stagnation in investigative tactics and raise questions regarding the essence of the law enforcement system itself due to the disregard for modern methods of work within the framework of a fair trial. The global disregard for the principle of justice has shifted its role from safeguarding human rights to being predominantly punitive. This narrow interpretation focuses on exposing individuals by any means, including illegal methods, which is neither legal nor humane. A constructive confrontation between the defense and the prosecution during pre-trial proceedings acts as a catalyst for the manifestation of justice, as it is through such disputes that the truth emerges (Avdeeva & Tsarebulev, 2020). Conclusion Considering the theoretical and practical theses discussed, and after analyzing the opinions of scientists and philosophers, the authors conclude that while the concept of justice is not explicitly stated in the current Criminal Procedure Code of the Russian Federation, it is nonetheless a pervasive theme, evident in each specific rule of law and principle within the Code. A fair trial in a criminal case is achievable only when all the requirements are strictly adhered to. The authors do not view the absence of an explicit principle of justice in the Criminal Procedure Code as a primary issue, as legal hermeneutics allows for varied interpretations of justice. The foundation for administering justice should be the actual implementation of legality and the appropriate application of legal rules during pre-trial proceedings, rather than the formal codification of the principle. Currently, the fairness of pre-trial proceedings in the Russian Federation’s criminal process does not necessitate formal codification, as the truth can be both procedural and objective. However, ethical and legal terminology requires further scientific exploration to clarify all aspects affecting justice and its perception in pre-trial proceedings, specifically by its participants.

About the authors

Alexandra S. Kholoimova

RUDN University

Author for correspondence.
Email: vasilenko-as@rudn.ru
ORCID iD: 0000-0003-4029-8502
SPIN-code: 9897-7556

Candidate of Legal Sciences, Associate Professor of the Criminal Law, Criminal Procedure and Criminalistics Department, Law Institute

6 Miklukho-Maklaya str., Moscow, 117198, Russian Federation

Roman V. Grebenev

RUDN University

Email: grebenev_rv@pfur.ru
ORCID iD: 0009-0003-4626-6250
SPIN-code: 4632-6993

Assistant of the Criminal Law, Criminal Procedure and Criminalistics Department, Law Institute

6 Miklukho-Maklaya str., Moscow, 117198, Russian Federation

References