The reasonableness of the duration of criminal proceedings - a special case of unjustified legal convergence that violates the historical order

Bormotova Ladmila Valer'evna ORCID: 0000-0002-6003-2675 PhD in Law Associate Professor; Department of Criminal Procedure Law; North-Western branch of the Russian State University of Justice 197046, Russia, Saint Petersburg, Alexandrovsky Park, 5 ogulada@rambler.ru Other publications by this author

Introduction

The importance of the principles of criminal justice lies in their systemic influence on the construction of criminal procedural relations from the moment of the beginning of criminal prosecution until the end of the execution of the sentence for all participants in the proceedings. These are the ideological guiding principles for the implementation of procedural and investigative actions, decision-making, the process of proof and the use of coercive measures. The system of principles of the criminal process should be a constant, an instrument of the steadfastness of the form, the order of production. However, since the adoption in 2001 of the Criminal Procedure Code of the Russian Federation (hereinafter - the CPC of the Russian Federation), a completely different story has been observed: massive changes and adjustments, contractual procedures, confidential investigative actions and participants, complex ways of appealing court decisions, alien principles of building procedural activities - changes for the sake of "resolving a specific incident" ^{[1, p. 475]}. This happened on April 30, 2010 in connection with the adoption of the Federal Law "On Compensation for Violation of the Right to Judicial Proceedings within a Reasonable Time or the Right to Execute a Judicial Act within a Reasonable time" (Federal Law No. 69-FZ of April 30, 2010) and with the advent of the superstructure principle over the entire system – "reasonableness of the terms of criminal proceedings judicial proceedings" (Article 6.1 of the Code of Criminal Procedure of the Russian Federation). It is necessary to agree with the opinion of scientists who point out that the absence in the norms of the Code of Criminal Procedure of the Russian Federation before 2010 and in previous Codes of regulation of the terms of criminal proceedings in a separate principle did not mean non-recognition of the need to comply with deadlines in the process of criminal proceedings ^{[2, 3, 4, 5, 6, 7]}. I.V. Stukonog notes, that during the reform of 1864, the task was already set to preserve the "reasonable speed" of criminal proceedings along with respect for the equality of rights of the parties ^{[5, p. 33]}. Therefore, it cannot be said that the implementation of the requirements for the reasonableness of the timing of criminal proceedings into domestic legislation was innovative, since similar rules had already historically developed by that time, were embedded in the very "fabric" of the codified source, and were covered by the content of other principles.

The purpose of this study is to identify the historically established model of legal regulation of the terms of criminal proceedings, its self-sufficiency in the form of regulatory techniques at certain stages and in certain investigative, judicial and procedural actions.

Research methods

The research is based on general scientific and private scientific methods of cognition. Thanks to the application of general logical rules for performing mental operations, it was possible to analyze a large volume of information and scientific sources on the chosen topic and synthesize knowledge about the evolution of criminal procedural relations developing regarding the determination of production deadlines. The method of comparative historical jurisprudence allowed us to formulate a conclusion about the adherence to the legislative tradition of separating principles-ideas and specific rules for the preliminary investigation and judicial review of criminal cases.

The results of the study

In the provisions of Article 36 of the Judicial Code of 1497, the term "non-red tape" was used, that is, without undue delay, regarding the time of judicial proceedings ^{[8, p. 39]}. The requirements for the speed of the trial were due to the inadmissibility of the persons involved in the case incurring additional procedural and material costs. A similar provision was fixed in the norm of Article 72 of the Code of Justice of 1550 ^{[8, p. 47]}. Already at this stage of historical development, the domestic legislator was aware of the negative consequences of the excessive duration of the process, and therefore introduced special separate rules.

In Articles 15, 22, 24 of Chapter 10 of the Council Code of 1649, the legal category of a reasonable period of criminal proceedings received more detailed legal regulation ^{[8, pp. 58-60]}. It was characterized by two main aspects. First, the judge was given a general duty to conduct the trial "without red tape." Secondly, if a judge, guided by personal or selfish motives, intentionally created a situation in which the consideration of the case was delayed or the participants in the process suffered additional losses, then he was held accountable in accordance with the procedure determined by the "sovereign" (tsar).

It is interesting to know what standard-setting and law enforcement techniques were used to speed up the trial in different historical periods. For example, by a personal decree dated February 21, 1697, confrontations in court cases were abolished ^{[8, p. 148]}. The preamble to the Decree contains an explanation that the methods of proof used in the framework of the adversarial process lead to unnecessary judicial red tape, losses and ruin, due to untruth and cunning, that is, the use by the parties of various tricks that unreasonably delayed the trial.

It should be noted that this historical period was characterized by the preservation of some ancient Russian traditions of adversarial criminal proceedings related to the independent presentation by the parties to the court of evidence in favor of their position. The legislator, considering such a model of judicial proceedings as ineffective, was confirmed in the conclusion that it was necessary to replace the adversarial process with an inquisitorial one.

During the reign of Emperor Peter I, a number of other legal measures were taken to speed up the trial. These should include:

- setting deadlines for legal proceedings;

- establishing the responsibility of witnesses for evading court appearances;

- establishment of the legal foundations of the institution of absentee judicial proceedings ^{[9, p. 19]}.

Subsequently, other attempts were made to legislatively combat the excessive length of trials. However, one should agree with the position of D. G. Rozhkov, who says that until the Judicial Reform of 1864, criminal proceedings remained extremely slow ^{[10, p. 273]}.

With the adoption of the Statute of Criminal Proceedings ^[11] (hereinafter referred to as the Statute), the rule on the time limit for the duration of criminal proceedings was abolished. But, meanwhile, a systematic analysis of individual provisions of this legal document indicates that the legislator sought to achieve the fastest, but at the same time effective investigation, consideration and resolution of criminal cases:

- the financial responsibility of a witness who did not appear in court at the appointed time in the absence of valid reasons has been established (Article 69 of the Charter);

- the absence of a valid reason for the party's failure to appear before the justice of the peace after postponing the consideration of the case to provide additional evidence implied the imposition of legal costs incurred by the bona fide party on her (Articles 73-75 of the Charter);

- the failure of the accused of misconduct to appear before the justice of the peace was the basis for the realization by the justice of the peace of the right to pronounce a sentence in absentia (Article 133 of the Statute).

Special attention should be paid to the issue of the admissibility of filing private complaints separately from reviews of sentences in case of slowness of proceedings (Part 1 of Article 152 of the Charter). In such circumstances, the justice of the peace, who considered the criminal case, gave an explanation before the congress of magistrates no later than three days after receiving the complaint.

Separate norms of the Establishment of judicial institutions of 1864 (hereinafter referred to as the Institution) are also devoted to the issues of the reasonableness of the term of criminal proceedings ^{[12, p. 128]}. In accordance with Chapter 3, Institutions, judicial institutions and persons of prosecutorial supervision annually sent reports on the judicial department to the Ministry of Justice. In accordance with Article 181 of the Institution, such reports should have indicated the reasons for slowing down the consideration of cases. In addition, in accordance with Article 255 of the Institution, the powers of the Minister of Justice included the right to stop the slowness of the processes. If such a thing was found in any judicial establishment, the Minister of Justice obliged the Chairman to provide him with appropriate explanations. If the reasons for the slowness of the movement of cases were violations committed by the judicial institution itself, then in accordance with Article 258 of the Institution, the Minister of Justice had the right to initiate disciplinary proceedings. Regarding the beginning of each investigation, the prosecutor reported within three days to the Minister of Justice in the prescribed form (Article 296.1 of the Charter as amended in 1909) ^{[7, p. 90]}.

This indicates that the norms of pre-revolutionary legislation already show the formation of a legal understanding of the need to comply with the reasonableness of the terms of criminal proceedings. Due to the specifics of the legal technique used by the legislator in this historical period, it is certainly not necessary to talk about the formation of the legal category under study.

During the reign of the Soviet government, there was no fundamental change in the model of legal regulation of a reasonable period of criminal proceedings. It is possible to identify its content only in a semantic context, through the analysis of legal norms that consolidate mechanisms to prevent the delay of procedural procedures. Thus, Articles 87-92 of the Criminal Procedure Code of the RSFSR of 1922 (resolution of the Central Executive Committee of 05/25/1922, hereinafter referred to as the Code of Criminal Procedure of the RSFSR of 1922) for the first time established general provisions on the calculation and procedure for restoring procedural deadlines.

In relation to the vast majority of stages of criminal proceedings and individual procedural actions, deadlines were set for their implementation. For example, the maximum period for conducting an inquiry was one month (Article 107 of the Code of Criminal Procedure of the RSFSR of 1922), and the maximum period for conducting a preliminary investigation was two months from the date the suspect announced the decision to bring him as an accused (Article 119 of the Code of Criminal Procedure of the RSFSR of 1922).

In accordance with the provisions of the Criminal Procedure Code of the RSFSR as amended in 1923 (resolution of the Central Executive Committee of 02/15/1923, hereinafter referred to as the Code of Criminal Procedure of the RSFSR of 1923), if it was impossible to complete the preliminary investigation within two months, the investigator was obliged to justify to the prosecutor the reasons for such a delay (Article 116 of the Code of Criminal Procedure of the RSFSR of 1923). As before, the implementation of the proceedings in the criminal case in the people's court, the deadline was not limited.

In the light of the adoption of the Criminal Procedure Code of the RSFSR on October 27, 1960 (hereinafter referred to as the Code of Criminal Procedure of the RSFSR), one of the main tasks of criminal proceedings was to accelerate it through the speed of crime detection, which was normatively fixed in the provisions of Article three of the legislation of the RSFSR in force at that time. The formulation of this task led to the use by the legislator of corresponding legal structures characterizing the duration of the criminal process. Thus, in Article 44 of the Code of Criminal Procedure of the RSFSR, the wording "for the fastest, most complete and objective consideration of the case" is used, and in Article 132 of the Code of Criminal Procedure of the RSFSR "in order to ensure the greatest speed of investigation". Among other legal provisions that allow contextually revealing the semantic content of the considered element of the procedural form, it is necessary to highlight:

- the decision on statements and reports of a crime was made by an authorized official within a period not exceeding three days, and in exceptional cases – ten days (Article 109 of the Code of Criminal Procedure of the RSFSR);

- optimal terms of inquiry (no more than ten days with further mandatory preliminary investigation) and investigation (no more than one month in accordance with Article 121 of the Code of Criminal Procedure of the RSFSR);

- the deadline for the preliminary investigation, as a general rule, was two months (Article 133 of the Code of Criminal Procedure of the RSFSR);

- the grounds and terms for suspending the preliminary investigation were established (Article 195 of the Code of Criminal Procedure of the RSFSR);

- the obligation to issue a court order to bring the accused to trial within 14 days from the date of receipt of the materials of the criminal case to the court (Article 239 of the Code of Criminal Procedure of the RSFSR).

Setting the task of criminal proceedings as a quick and complete disclosure of crimes mediated, according to M. S. Strogovich, the achievement of the main goal – the establishment of the factual circumstances of the case, that is, the objective truth. At the same time, the requirement of the effectiveness of procedural means in achieving this goal can sometimes lead to excessive procedural savings, simplification of the procedural form, and limitation of legal guarantees of participants in criminal proceedings. And, therefore, the "head of the corner" of the development of criminal procedure law should be the correspondence of procedural means to the main goal ^{[13, p. 137]}.

By the time of this invention of the great procedural scientist of Soviet science, the norms of international human rights instruments, including in the field of criminal jurisdiction, had already become widespread in global practice. Therefore, it seems that the theory of criminal procedure has become "saturated" with global trends in the application of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ETS No. 005 in Rome on November 4, 1950 (hereinafter referred to as the Convention) and Article 9 of the International Covenant on Civil and Political Rights, adopted on December 16, 1966. Resolution 2200 (XXI) at the 1496th plenary session of the UN General Assembly, and ratified by Decree of the Presidium of the USSR Armed Forces dated September 18, 1973 No. 4812-VIII with a statement (hereinafter – the Pact). At the same time, Russian science was more progressive and far-sighted. After all, a direct interpretation of these international sources gives us an understanding that the category of reasonableness is applicable to judicial procedures, but does not cover and is not able to cover in absolute terms all criminal procedural relations.

In the modern period of the formation of criminal procedure law, which came after the collapse of the Soviet Union and the recognition of the independence of the Russian Federation, the legislative recognition of a reasonable period of criminal proceedings is revealed through the constitutional prescriptions of that time period (Part 4 of Article 15 of the Constitution of the Russian Federation) and the official ratification of the Convention in 1998. Accordingly, until the introduction of Federal Law No. 69-FZ of April 30, 2010 in the Criminal Procedure Code of the Russian Federation, Article 6.1, a reasonable period of criminal proceedings was considered as an integral element of the fundamental principle of justice – the right to a fair trial, implemented in the Russian legal system ^{[14, 15]}, or as an independent principle of procedural economy ^[16], or as a means of regulating criminal procedural activities, ensuring the rights of participants in criminal proceedings ^[17]. It should be noted that it was in this light that the legal category under study was studied in the provisions of the criminal procedure doctrine until 2010.

The main reason for the legal registration was not only the desire of our state to meet high international standards. After all, as noted above, these standards – namely, reasonableness, speed, completeness and fairness, as important markers of the restorative rather than punitive type of development of criminal proceedings – were actually characteristic of most of the Soviet and pre-Soviet periods. The reason for the rule–making superstructure over the system of principles of criminal procedure in Chapter Two of the CPC of the Russian Federation in the form of an indication of some special "reasonableness" was the case law of the European Court of Human Rights (hereinafter - the ECHR), which revealed "the lack of effective domestic remedies for persons." A striking example of this is the case of Burdov v. Russia (ECHR Ruling of January 15, 2009 on complaint No. 33509/04). The purpose of this article does not cover the need for a detailed study of the content of this resolution or other similar ones. We can only state the fact that a critical analysis of European judicial practice in relation to the Russian Federation shows a clear and excessively politicized anti-Russian position regarding the quality of domestic criminal law procedures. It is noteworthy that there is an internal judicial body capable not only of providing legal certainty on the issue under consideration, but also testifies to an earlier voiced position. For example, we are talking about the decision of the Constitutional Court of the Russian Federation dated January 25, 2001 No. 1-P "In the case of checking the constitutionality of the provision of paragraph 2 of Article 1070 of the Civil Code of the Russian Federation in connection with complaints from citizens I.V. Bogdanov, A.B. Zernov, S.I. Kalyanov and N.V. Trukhanov", which was The necessity of institutionalizing compensation for damage caused by the actions or inaction of public authorities in the course of any type of domestic legal proceedings is noted. Nevertheless, it should be noted that it was the obligation expressed in the ruling of the European Court of Human Rights in the case of Burdova v. the Russian Federation that put an end to the issue of legalizing mechanisms for compensation for harm caused to citizens by the length of consideration of criminal cases by courts and unjustified delay in deadlines. Thus, there has been a fairly successful convergence of international case law instruments into the domestic criminal process.

In 2016, the Supreme Court of the Russian Federation clarified to the lower courts the inalienable right to compensation for violation of the terms of the criminal process (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 dated 03/29/2016 "On some issues arising in the consideration of cases on the award of compensation for violation of the right to judicial proceedings within a reasonable time or the right to execute a judicial act within a reasonable time"). The envisaged compensation procedure is administrative and civil in nature. The issue of speeding up the consideration of a criminal case in court is resolved by the chairman of the court using criminal procedural methods, no matter how the opposite is stated in the resolution itself (paragraph 23), as well as in separate studies ^{[18, p. 44]}. However, the legislator did not define the criteria and limits of such control by the chairman of the court of the terms of judicial review and left it to the discretion of an unnamed subject of procedural law, which in itself is a violation of a number of principles: legality (Article 7 of the CPC of the Russian Federation), the administration of justice only by the court (Article 8 of the CPC of the Russian Federation), the independence of judges (Article 8.1 of the CPC of the Russian Federation).

If we assume that the expected effective result of the convergence of international norms on compliance with reasonable deadlines was a mixture of criminal, administrative and non-procedural procedures of production, then this program to "entangle the tangle" of legal norms has been successfully implemented. It is quite difficult for a citizen whose rights have been violated by unjustifiably delaying the terms of the proceedings to figure out the procedure for compensation, free legal support has not been organized, the chairman of the court "automatically" at the stages of the trial, the prosecutor and the head of the investigative body at the stage of pre-trial proceedings are not endowed with appropriate powers. Egregious cases requiring the "inclusion" of an international mechanism converged into domestic criminal procedure practice are isolated in nature. Thus, the Report of the Commissioner for Human Rights in the Russian Federation provides an example of a 15-year investigation and judicial review of a criminal case against Ms. M. In 2021, a guilty verdict was handed down against the accused with a sentence of imprisonment for a period of 5 years, which she actually served in isolation from society during the criminal persecution ^{[19, p. 226]}.

Conclusion

Summing up this study, we note that the actual recognition of the inadmissibility of judicial red tape and excessive duration of criminal prosecution have been the subject of appeal and strict control in all historical periods of the development of criminal procedural activity. The main domestic preventive tool for influencing the law enforcement officer was the establishment of deadlines for the production of investigative procedural actions and decision-making. Administrative tools of an organizational and administrative nature also took place both during the reign of Peter the Great and during the period of validity of the Statutes of Criminal Proceedings in 1864, however, as correctly noted in the legal literature ^{[20, p. 33]}, their effectiveness is weak and contradicts the procedural independence of the subject of evidence. It is not necessary to ignore historical lessons and burden the already complex procedural activity with additional mechanisms, the content of which is already implied in the established system of principles. In our opinion, the solution to the problem of delaying the timing of pre-trial proceedings may be to reduce the workload of investigators investigating moderate crimes, focusing their efforts on the most dangerous crimes. In this part, we fully agree with the forms of acceleration of pre-trial proceedings proposed by some scientists ^{[21, p. 120]}.

In terms of speeding up the judicial review, it is necessary to take the following procedural measures:

- to update and shorten the time for the receipt of a criminal case in court;

- set deadlines for the consideration of cases of minor and moderate crimes;

- to abandon the widespread practice of returning criminal cases to eliminate obstacles in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation;

- to review the possibility of the accused's refusal to impose a sentence without a trial in connection with his consent to the charge during the preliminary hearing.

Such and other measures, together with the existing requirements in the current criminal procedure legislation, are quite capable of ensuring the reasonableness of observing deadlines, as well as the implementation of the system of principles of Russian judicial proceedings without any clarifications of the estimated category of "reasonableness" in Russian legislation.