On activeness limits of court participation in adversarial investigation under the Criminal Procedure Code of the Russian Federation
The article highlights the views of scientists expressed in the literature since the Criminal Procedure Code of the Russian Federation entered into force. The scientists assess the adversarial provisions of the judicial investigation enshrined in the Criminal Procedure Code with regard to their effect on the court activeness limits. The author does not consider justified the view that the concept of "pure" (or "full") competition in the national criminal procedural law, as this concept implies maximum court activity limitation and refusal from establishing the unimpeachable circumstances of the criminal case, which, according to the author, corresponds both to the interests of society and the state and to the rights and interests of the individual provided that the court and prosecutorial officials comply with the Criminal Procedure Act requirements. However, the author disagrees with the inadmissibility of any restrictions of the court activity, when such restrictions are realized through the adversarial principle in the form it is implemented in the current Criminal Procedure Code of the Russian Federation. Based on the analysis of the norms of this Code, the author concludes that its controversial provisions, particularly those governing judicial investigation, provide each of the parties interested in the outcome of the criminal case with real opportunities to express and defend their interests by the application and substantiation the respective positions in the criminal case. Thus, the participants in the process on the part of the prosecution and defense are encouraged to actively collect and present evidence in support of their positions. This also ensures the subsidiary activity of the court in studying the circumstances of the criminal case. It also enables the court to be pro-active in collecting evidence within certain limits. Finally, the adversarial provisions of the judicial investigation make up conditions to prevent unilateral, biased and incomplete examination of the criminal case by the court, which means that the court can reach valid conclusions about these circumstances.