Burmagin, S.V. Separation between prosecution and judiciary in the criminal judicial proceedings in Russia: from the judicial reform of 1864 to the current situation

Abstract: The article concerns the history of solutions of the conceptual issue of separating prosecution and judiciary, distinguishing the competences of the criminal investigation bodies and the court starting from the judicial reform of 1864. Special attention is paid to the functional formation of judicial proceedings under the current Criminal Procedural Code of the Russian Federation. Special attention is paid to the functional separation of the criminal court from prosecution as a party based on dispositive judicial proceedings according to the current Criminal Procedural Code of the Russian Federation. The author notes the causes for the practical deviance of the courts from the dispositive matters, making the court part of accusatory activity. The author provides critical evaluation of the Decision of the Constitutional Court of the Russian Federation of July 2, 2013 and legislative initiatives for restoration of the institution for the return of the case for additional investigation, and obliging the court to establish the “objective truth” and fill the gaps in the preliminary investigation. The study is based upon the dialectic, historical, comparative legal and formal legal cognition methods, allowing to uncover the patterns in the transformation of the correlation of competences of the prosecutor and the court in the criminal process. The conclusion is drawn that the separation of prosecutor and judiciary is the reflection of separation of powers in the criminal judicial proceedings. Initiative of the court to return the case to the prosecutor for strengthening the accusation and making the court fill the gaps of preliminary investigation during the trial violate the separation of procedural functions between judiciary and prosecution, causing their competences to mix. The proposed amendments into the Criminal Procedural Law of the Russian Federation contradict to the competitive elements in the criminal judicial proceedings and return it into the framework of the prosecutorial criminal process.

Keywords: