The decision of the Constitutional Court of Russia – back to the inquisition from competition

Advocate Igor Pastukhov of the Law Firm "YUST"

On July 2 of 2013, the Constitutional Court of Russia decided that the court that has discovered an incorrect criminal law evaluation of the crime by the investigation may return the criminal case to the prosecutor for qualification the deed as a more heinous one.

This decision is more than crucial. It restores the provisions of the Soviet criminal procedural law, the discarding of which the creators of the modern-day CPCRF saw as a material condition guaranteeing the competitiveness of the parties in criminal proceedings. I believe that such decision by the Constitutional Court of Russia is a logical continuation of its legal positions, which it previously expressed in its resolutions regarding the matters of possibility to hold new investigative actions, when the criminal case is returned to the prosecutor; the review of court acts by the supervision instance under complaints by the victim; the consequences of dropping of the case by the prosecutor, when the victim does not agree with him; and a number of others.

Claiming the need to protect the rights of the victim, that is – of the person acting on the side of the prosecution, the Constitutional Court of Russia actually brings the criminal process closer and closer to the inquisition model, farther and farther away from the competition principle.

I am deeply convinced that when the Court took the decision to charge the accused with a harsher crime and to return the case to the prosecutor for that purpose, it violated the principle of equal rights of the parties. It actually supports the accusation instead of objectively evaluating the results of the accusation’s work and deciding on whether the accused has been charged correctly.

As a result of the decision taken by the Constitutional Court of Russia, the accusation receives new opportunities to correct the drawbacks of its work. One may say that the worse it functions, the more opportunities it gets. Such tendency can hardly stimulate the improvement of the law enforcers’ work.

See the source of the publication here.