Criminal procedural guarantees of ensuring the rights of the suspect and the accused in the conduct of investigative actions at the pre-trial stages of criminal proceedings

Abstract

The pre-trial stages of criminal proceedings concentrate the prevailing part of investigative actions, in the course of which the evidentiary basis of the accusation is formed, whereas full adversariality does not yet operate and authority powers are concentrated with the investigating bodies. The resulting imbalance between the procedural capabilities of the prosecution and the defence raises the question of the sufficiency and systemic nature of the guarantee mechanism fixed by articles 46 and 47 of the Criminal Procedure Code of the Russian Federation. The aim of the work is to establish the composition and internal organisation of the criminal procedural guarantees of the rights of the suspect and the accused in the conduct of investigative actions and to reveal the conflicts and gaps in their normative consolidation. The formal-legal method, systemic and teleological interpretation, comparison of the editions of norms and generalisation of judicial practice were applied; legal modelling was used in formulating proposals for improving legislation. It has been established that the guarantees are distributed among six functional groups – informational, those securing the right to defence, guarantees of participation and initiative, recording-certifying, controlling, and guarantees of admissibility of evidence – with the group of participation and initiative guarantees remaining the least formalised. The expansion of the range of bearers of the right to defence and the admission of meetings with counsel through video-conferencing are traced. Comparison of typical violations with procedural consequences shows that the institution of inadmissibility of evidence acts as the central protective mechanism. The non-self-sufficiency of the procedure for resolving a petition for participation in an investigative action and the uncertainty of the limits of judicial control at the pre-trial stage form the main directions in which the guarantee mechanism requires normative clarification.