Shigurov, A.V. Closed form of preliminary hearings on criminal cases: a critical evaluation

Abstract: The article is devoted to the studies of the norm on preliminary hearings at the stage of preparation of a criminal case for the judicial hearing in a form of a closed judicial hearing. In the opinion of the author prohibition for the persons not being parties to the case to be present in the judicial hearing cannot be substantiated with the secrecy of issues being discussed. Analysis of the requirements of the European Convention on publicity of judicial hearings and the category of “justice” in the Russian legislation allowed the author to draw a conclusion that the justice is being implemented in a preliminary hearing when the decision is made that the criminal case or criminal prosecution are terminated, or the evidence is excluded. Such as position is substantiated with the following. First of all, in the opinion of the author termination of the criminal case or criminal prosecution involves legal evaluation regarding guilt (lack of guilt) of a criminal defendant. Secondly, evaluation of admissibility of evidence and lack of guilt of a criminal defendant are elements of judicial activity on implementation of justice. The position of the court on admissibility of evidence is expressed in a separate decision, made in writing at the preliminary hearing, and it also should be included in the judicial sentence. Accordingly, resolution of a petition of a party on exclusion of an inadmissible evidence by the court at the preliminary hearing is also one of the stages of implementing justice. The author draws a conclusion that the legislator should use the same approach for both preliminary hearings and other types of hearings: they should generally be open for the public, but may be closed based upon the conditions provided by law.

Keywords: