The place and role of a defense lawyer in the process of proof in the investigative type of criminal proceedings

Charikov Aleksandr Viktorovich Lawyer 620130, Russia, Sverdlovsk region, Yekaterinburg, Lukinykh str., 5, office 516 ekb@advokat66.su

New trends in the public life of the country after 1991 made the issue of equality of the rights of defense and prosecution in evidence relevant, and also raised the issue of reforming criminal proceedings as a means of solving it. In the literature, this problem is also found in the terminology of "the problem of competitiveness" or "the participation of a lawyer in proving".

The forerunner of the reform of the criminal process in Russia and the procedural status of the lawyer was the Concept of Judicial reform in 1991, approved by Resolution of the Supreme Council of the RSFSR dated 10/24/1991 No. 1801-1. It proclaimed: "Soviet legislation was characterized by concern for the interests of the state to the detriment of other subjects of legal relations, the substitution of public and private principles by state ones." As also noted in the literature, "the concept of judicial reform in the Russian Federation, among other areas of reform of criminal procedure legislation, provides for the expansion of the private principle in criminal proceedings" (Sedash E.A. Private principle in Russian criminal proceedings: Abstract. dis. ... cand. Jurid. Sciences, Saratov, 2000. p. 3). In particular, the Concept was supposed to implement the idea of the following content: "The defender and the representative of the victim are provided with the opportunity to independently collect evidence in the case, the admissibility of which is established by law. There can be no restriction on the right of a lawyer to meet with eyewitnesses of the event and other persons with any information about the case, to demand their summons and interrogation."

Perhaps the creators of the new Criminal Procedure Code of the Russian Federation tried to make changes that would direct the development of criminal proceedings to the path of the Anglo-American criminal process.

Under the "flag" of competitiveness and understanding of a lawyer as an equal party to a dispute, two new concepts have emerged in modern criminal procedure science - parallel lawyer investigation [1. pp. 21-29] and an investigating judge [2. S. 5].

After 1991 and before the adoption of the Criminal Procedure Code of the Russian Federation, there were proposals in the literature to radically change the domestic criminal process. For example, I.L. Trunov proposed to introduce into the new Code of Criminal Procedure a norm on granting protection the right and obligation to draw up a "protective opinion" and submit it to the court with mandatory delivery to interested parties and public announcement at the beginning of the judicial investigation on an equal basis and in the manner prescribed for the indictment [3. pp. 4-7]. After the adoption of the CPC of the Russian Federation, arguments continued to be heard in the literature about the lawyer's collection of evidence [4. pp. 147-148], it was also proposed to oblige the investigator to attach any evidence collected by the lawyer to the case materials [5. P. 7].

It seems that these concepts in their pure form have no prospects for development. To determine the place and role of a lawyer in proving in the domestic form of criminal proceedings, it is necessary to turn to the history of the criminal process, using the historical research method, as well as to the texts of the criminal procedure codes of our country (the formal logical method).

There has long been an opinion in the literature that criminal proceedings can exist in two guises – adversarial, where three subjects participate, and inquisitorial, where all power is in the hands of one subject [6. P. 10] [7. P. 5]. The inquisition process in Russian science is also sometimes referred to as investigative, investigative or continental. The purpose of such a process (in theory) is to discover the truth, since (again, in theory) only one person with maximum authority is able to establish such a truth. It is also noted that in the search process, the public dominates over the private [8. p. 8]

A way to separate the two types of process from each other was proposed in the XIX century by N. Hartung [9. Pp. 5-6]. He identified three functions in criminal proceedings: prosecution, defense and resolution of the case. If one subject combines three functions, this is the investigative process (Inquisition), if the functions are divided between the prosecutor, the defense and the court, then this is adversarial.

The history of the formation of the domestic investigative process, where all power and the entire process of proof are in the hands of one person, can be traced through the provisions of the Statute of Criminal Procedure (hereinafter referred to as the Criminal Procedure Code), as well as the Soviet CPC.

As stated in Article 406 of the Criminal Code, the investigator "seeks legitimate means to discover the truth." The investigator conducted inspections and examinations (Articles 315, 332 of the Criminal Code), searches (Article 357 of the Criminal Code), interrogated witnesses (Article 433 of the Criminal Code) and drew up protocols on this, appointed expert examinations to knowledgeable people and received their conclusions. The criminally prosecuted person could point to evidence of his innocence, but by virtue of Article 449 of the Criminal Code, "the circumstances cited by the accused to refute the testimony of a witness must be investigated if they are of significant importance in the case."

All written case materials (protocols of examinations, examinations, interrogations of witnesses) obtained by the preliminary investigation bodies could be announced at a court hearing and considered evidence (Articles 627, 687 of the Criminal Code). The UUS was silent about a similar procedure regarding the testimony of the accused given at the stage of the preliminary investigation. As a general rule, the court "directed the course of the case to the order that most contributes to the disclosure of the truth" (Article 613 of the Criminal Code). The word "truth" is periodically found in the text of the Criminal Code as the purpose of the activity of a powerful subject. L.E. Vladimirov, for example, justified the possibility of searching for the so-called "material truth" - establishing what was actually through a free evaluation of evidence by a jury and a court [10. C. 45].

Thus, the UUS reflected the basics of domestic investigative criminal proceedings, in which the proof process began with the collection of evidence by an official at a pre-trial stage specially designed for this purpose, and the court considered the case based on written evidence obtained by the investigative body. At the pre-trial stage, the lawyer (sworn attorney) was not present, since they obviously did not see the need for this procedural figure.

In the history of the Russian criminal procedure, it is customary to consider among the first Codes of the Criminal Procedure Code of the RSFSR of 1922 and 1923. The provisions of the 1923 Code are not fundamentally different from the 1922 version, so we will not make special references to it.

Article 114 of the Code of Criminal Procedure of 1922 provided that "the investigator directs the preliminary investigation, guided by the circumstances of the case, towards the most complete and comprehensive consideration of the case. The investigator has no right to refuse the accused or the victim to interrogate witnesses and experts and to collect other evidence if the circumstances they are requesting may be relevant to the case." As M.S. Strogovich noted at the same time, "at the preliminary investigation, the functions of protection are partly performed by the accused himself, partly by the investigative body, which is obliged to investigate and collect evidence not only against the accused, but also in his favor" [11. C. 24].

In the Code of Criminal Procedure of the RSFSR of 1922, the presiding judge was obliged to direct the judicial investigation "in the direction most conducive to the discovery of the truth" (Article 261 of the Code of Criminal Procedure of the RSFSR of 1922), including he could change the charge towards deterioration (Article 244 of the Code of Criminal Procedure of the RSFSR of 1922), independently destroy any evidence or return the case for additional investigation (Article 306 of the Code of Criminal Procedure of the RSFSR 1922). The prosecutor's refusal to charge was optional for the court (Article 310 of the Code of Criminal Procedure of the RSFSR 1922). It was noted in the literature of that time that "the court itself seeks out evidence, takes measures to reveal the truth itself, and the parties are not its leaders ... but only its assistants in the search for the truth" [12. P. 43].

The logic of the first Soviet Codes was continued by the Code of Criminal Procedure of the RSFSR in 1960. The idea of the predominance of public interest over private interest has been developed. The purpose of the proceedings was the rapid and complete disclosure of crimes (Article 2 of the Code of Criminal Procedure of the RSFSR of 1960). This goal was supported by regulations on a comprehensive, complete and objective investigation of the circumstances of the case (Article 20 of the Code of Criminal Procedure of the RSFSR). The Code of Criminal Procedure of the RSFSR in 1960 completely abandoned the concept of parties and separate "functions of prosecution and defense". These norms have turned into providing the suspect and the accused with the right to defense (Article 19 of the Code of Criminal Procedure of the RSFSR).

In the Code of Criminal Procedure of the RSFSR in 1960, the accused had the right to file petitions, including those concerning the collection of evidence in the case (Article 46 of the Code of Criminal Procedure of the RSFSR). The victim (he is also a private prosecutor), a civil plaintiff, and a civil defendant also have similar powers on the right to file petitions. However, by virtue of Article 131 of the Code of Criminal Procedure of the RSFSR, the investigator could refuse if the circumstances requested by these persons, in the opinion of the investigator, could not be relevant to the case. The lawyer did not have independent powers to participate in the evidence, however, it is obvious that he could exercise them through the powers of his principals.

All investigative actions carried out by the investigator were recorded using protocols, which subsequently remained evidence at the judicial stage. For the first time, this was legally attributed to the confession of the accused. The testimony of the accused, given during the preliminary investigation, could be announced in court and be evidence (Articles 77, 281 of the Code of Criminal Procedure of the RSFSR 1960). The testimony of witnesses was also announced, including even if the witnesses did not appear at the court session (Articles 281, 286, 287 of the Code of Criminal Procedure of the RSFSR 1960). Their validity and reliability were guaranteed by strict written form. In the judicial investigation, the court also "eliminated everything unrelated to the case from the trial" and could remove any questions from the parties to the victim, witnesses and the accused (Articles 243, 283, 287 of the Code of Criminal Procedure of the RSFSR).

These norms have permanently and firmly linked the pre-trial and judicial stages, ensuring that the written evidence collected by the investigator is valid in the judicial stage. The fate of the defendant was decided by a professional court.

In these legislative norms, we see the investigative idea of the prevalence of public interest over private, the purposefulness of knowledge to achieve the "truth", which was first legislated during the Soviet period. One powerful entity combines three functions: prosecution, defense and case resolution.

Here it is necessary to explain how the evidentiary process should look like in adversarial proceedings.

In the UK, proving in court involves two important points. The first is cross-examination, which consists of the main interrogation (chief examination), the interrogation of the person by the opposite side (cross-examination) and re-examination (re-examination) [6. P. 79]. Cross–examination is a classic implementation of the principle of adversarial evidence, when only those information that is reported by the interrogated person before the court becomes evidence.

The second point characterizing the evidence in court may be referred to as an "alternative examination". For example, Chapter 19 of Criminal Procedure Rules and Practice Directions 2020 in the UK provides that "each party has the right to select an expert and initiate its own research. The prosecution is obliged to provide the defense with materials and access to the objects on the basis of which the study was conducted. To verify the conclusion of the other party, the expert may be questioned in court. In case of disputed conclusions from both sides, the court appoints an expert examination on its own initiative and determines experts from the list proposed by the parties."

The three-personality nature of the adversarial process obliges the court, the defense and the prosecutor to participate in the proof, and the evidence "appears" only in court. The parties are free to search for information before the trial and have the right to submit to the court any information that can be recognized by the court as evidence, however, this happens through cross-examination or the use of the institute of "alternative expertise". Evidence does not arise outside the adversarial formalization. For example, an object or document (if it is disputed by a party) is recognized as evidence only after cross-examination of the person who discovered the object or compiled the document.

Nevertheless, we believe that today in Russia, criminal proceedings in most cases (in our opinion, with the exception of cases of private prosecution and cases under the jurisdiction of a jury) remain wanted. Although the creators of the new Code of Criminal Procedure of the Russian Federation tried to make changes to the criminal process that would shake the foundations of the search, in fact, as some authors correctly state [13. pp. 22-24], this did not happen. Let's analyze the current Code of Criminal Procedure of the Russian Federation for its compliance with the ideas of the investigative criminal process and the place and role of a lawyer in it.

In the general part of the Code of Criminal Procedure of the Russian Federation, criminal procedural activity (not only judicial, but also pre-trial proceedings) is focused on competition (Article 15 of the Code of Criminal Procedure of the Russian Federation). As a result, the investigator, the investigator, the lawyer, the representative of the victim, the private prosecutor and the civil plaintiff turned out to be on the side of the prosecution, and the defense lawyer and the lawyer representative of the civil defendant appeared on the defense side.

The norms of the special part of the Code of Criminal Procedure of the Russian Federation have retained the investigative character. The investigator and the inquirer both were and remain the absolute "masters" of the case. The lawyer "did not become an equal participant in the process with them, and most importantly, a permanent court - arbitrator in their dispute did not appear over the confrontation between the prosecution and the defense" [14. C. 58-60]. The court in the pre-trial stage is engaged only in the exercise of judicial control. At the same time, this activity is conducted quite formally.

Today, as well as one hundred and fifty years ago, a preliminary investigation is understood as the authoritative procedural activity of officials collecting evidence at this stage. The investigator independently directs the course of the investigation and decides on the conduct of investigative and other procedural actions (paragraph 3 of part 1 of Article 38 of the Code of Criminal Procedure of the Russian Federation). The general rules for conducting investigative actions do not oblige the investigator to notify the lawyer in advance about their conduct, as well as to allow the lawyer to photograph the protocol (Article 164 of the Code of Criminal Procedure of the Russian Federation). Among other things, the investigator can take away the questions of the defense lawyer during the investigative action (Part 2 of Article 53 of the Code of Criminal Procedure of the Russian Federation).

The admissibility and reliability of evidence are ensured by the investigator by observing the strict procedural form of pre-trial proceedings. The Prosecutor's office is responsible for overseeing this activity, and since 2012, for the most part, the investigative body itself. The attempts of the legislator to change the balance of power at the stage of the preliminary investigation, in particular, the changes in Article 159 of the Criminal Procedure Code of the Russian Federation on the involvement of a specialist by the defense party, are incomplete and cannot fundamentally cancel the basic axiom "matters for the case" [15. pp. 45-48].

The investigator (inquirer) is endowed with discretionary, that is, in fact judicial, authority to determine the guilt of a person and still actually combines the functions of prosecution, defense and case resolution. For example, this is implemented through the institution of termination of a criminal case at the stage of preliminary investigation on various grounds, including rehabilitating ones (Article 213 of the Code of Criminal Procedure of the Russian Federation).

The evidence collected by the investigating authorities before the trial acquires the force of legal evidence. In the future, the same evidence is used by the court and on them it builds its conclusions about the guilt or innocence of the person (Article 74 of the Code of Criminal Procedure of the Russian Federation). The testimony of a suspect or accused, given at the stage of preliminary investigation in the presence of a defender, can be used as evidence in court even if they are further rejected (Part 2 of Article 75, Article 276 of the Code of Criminal Procedure of the Russian Federation). The sufficiency of evidence to make a decision is also determined by the court.

To date, the institution of returning the criminal case to the prosecutor for additional investigation (establishing the truth) continues its progressive return. At the time of the adoption of the CPC of the Russian Federation, the return of the case was legally allowed only on formal grounds – otherwise an acquittal should have followed. Since 2013, the legislator has restored one of the grounds for the return of the criminal case – the need to bring a more serious charge (Part 1.2 of Article 237 of the Criminal Procedure Code of the Russian Federation). It is also no secret that the institution of returning a criminal case to the prosecutor serves as a veiled way of justifying a criminally prosecuted person. In 2021, the percentage of acquittals officially did not exceed 1% again, which indicates the unwillingness of the system to resolve issues of a person's guilt in an adversarial procedure.

The competence of the jury is limited to the maximum, and most cases are considered by a single professional judge (Article 30 of the Code of Criminal Procedure of the Russian Federation). At the same time, it remains possible to overturn the acquittal of the court, rendered on the basis of the verdict of the jury, in the appellate instance on formal grounds (Article 389.25 of the Code of Criminal Procedure of the Russian Federation). As noted in the research of the Institute of Law Enforcement Problems (for more information on their website enforce.spb.ru ), the proportion of acquittals involving a jury is about 30%, while about 90% of such verdicts are overturned by the court of appeal. No information is provided on the statistics of repeated review of cases by jurors.

The question of the orientation of the activities of state bodies to achieve objective truth remains debatable [16. C. 224-237] [17. C. 44-46] [18. C. 12-13], since formally it is not provided for in the CPC of the Russian Federation, but in fact it remains in the activities of the court and law enforcement agencies. In this regard, the Investigative Committee of the Russian Federation came up with a legislative initiative to introduce the concept of objective truth into the Criminal Procedure Code of the Russian Federation.

Thus, criminal proceedings retain the investigative type of the process, and there is no tendency to switch to an adversarial model. The same circumstances determine the legal position of the lawyer. At the same time, the Russian lawyer, in comparison with the Soviet one, has been given broader powers.

Since 2013, a lawyer can enter into a criminal case from the moment of checking the report of a crime (Article 144 of the Code of Criminal Procedure of the Russian Federation). The lawyer has the right to freely meet with his client alone and confidentially, as well as copy any materials to which he is allowed at this stage of the case.

The defender received the right to "collect evidence": to involve a specialist, interview persons with their consent, send lawyer requests to any organization and receive answers to them within the time limit prescribed by law (Part 3 of Article 86 of the Code of Criminal Procedure of the Russian Federation), however, the procedure for such actions, as well as their evidentiary value, is not legally defined.

At the same time, the lawyer has the right to declare non-mandatory petitions (Article 159 of the Code of Criminal Procedure of the Russian Federation) on the performance of certain actions by the investigator. Arguing his decision on the petition filed by the lawyer, the investigator may refer to the provisions of Part 2 of Article 159 of the Criminal Procedure Code of the Russian Federation, according to which certain circumstances are established only if "they are relevant to this criminal case." The right to determine such significance belongs entirely to the investigator.

In court, a lawyer, as a general rule, cannot be denied a request to interrogate a witness or a specialist (Part 4 of Article 271 of the Code of Criminal Procedure of the Russian Federation). The disclosure of documents previously attached to the criminal case may be refused to a lawyer if it is not relevant to the case (Article 285 of the Code of Criminal Procedure of the Russian Federation). Documents from the defense are not required to be attached to the materials of the criminal case in the judicial investigation (Article 286 of the Code of Criminal Procedure of the Russian Federation). The lawyer's questions to the persons participating in the case may also be withdrawn by the presiding judge if the court believes that such questions and answers to them are not relevant to the case (such a right is provided only in relation to the interrogation of the defendant, but is interpreted broadly by judges for all persons questioned in court). The evidence of the defense, strictly speaking, is not mandatory for research in the descriptive and motivational part of the verdict (Article 307 of the Code of Criminal Procedure of the Russian Federation). The Supreme Court of the Russian Federation in paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11/29/2016 No. 55 "On the court verdict" directly indicates the need to evaluate all the evidence examined at the court session, both incriminating and justifying the defendant, but its recommendations are not always implemented by lower courts.

When the vast majority of evidence is collected at the pre-trial stage, the situation is quite natural for the search process. The courts are not busy establishing the circumstances of the committed act, but solely determining the amount of punishment. This state of affairs is called "accusatory bias" in the legal environment.

Over the centuries, the Russian criminal process has developed along the lines of the continental legal family, where there were two stages of production: preliminary investigation and judicial investigation; public interest prevailed over private; objective truth was the purpose of knowledge of the case; the process was built on the investigative type. These circumstances have determined the legal status of a lawyer in our country.

At the present stage of the development of criminal proceedings, along with the expansion of the lawyer's powers in proving, an increase in the number of procedural statuses of a lawyer in a criminal case, there is a search for an optimal normative model defining the place and role of a lawyer in a democratic state, historically established in the continental right-wing family, taking into account the pre-revolutionary and Soviet experience.

This simple logic also applies when we are talking about the evidentiary process in each of the types of process and determining the role of the investigator or lawyer in it. In a criminal trial, where all three functions are combined by one person, a lawyer cannot become a "party" to the process, since there is simply no place for him in the investigative type of process. A lawyer cannot collect evidence either, since he can never replace the basis of the investigative process – the investigator. Taking into account all the above, the procedural procedure for the participation of a defense lawyer in evidentiary activities needs the following adjustments:

- in the Code of Criminal Procedure of the Russian Federation, it should not be about collecting evidence by a lawyer, but about collecting information that can be recognized by a law enforcement officer as evidence in a criminal case;

- it is necessary to clarify and consolidate three ways for a lawyer to collect evidentiary information: a) requesting certificates, characteristics and other documents at the lawyer's request; b) interviewing a person with his consent; c) attracting a specialist;

- specify in the Code of Criminal Procedure of the Russian Federation that all materials collected by the lawyer act in the evidence system as "other documents";

- oblige the investigator to attach to the materials of the criminal case a person's interview and a specialist's opinion submitted by a lawyer, while retaining the investigator's right to carry out investigative actions related to the attached documents at his discretion;

Considering the above, we believe that Part 3 of Article 86 of the Code of Criminal Procedure of the Russian Federation is subject to exclusion. It is proposed to formulate Article 86.1 of the Code of Criminal Procedure of the Russian Federation "The use of materials of advocacy in proving" as follows:

"1. The lawyer has the right to collect information in the interests of the principal in the following ways:

a) to demand certificates, specifications and other documents from legal entities at the lawyer's request;

b) interview, with their consent, persons with information that can be used in the interests of the principal;

c) involve a specialist to clarify issues within his professional competence.

2. The procedural procedure for collecting the information specified in Part 1 of this Article shall be determined by the Council of the Federal Chamber of Lawyers."

It is proposed to add part 5 to Article 84 of the Code of Criminal Procedure of the Russian Federation as follows: "Information collected by a lawyer in accordance with Article 86.1 of the Code of Criminal Procedure of the Russian Federation is allowed in the case as other documents."

Part 2.2 of Article 159 of the CPC of the Russian Federation should be stated as follows: "A lawyer may not be refused to attach to the materials of a criminal case the information provided for in clause b, Part 1 of Article 86.1 of the CPC of the Russian Federation."