Institute of bringing as an accused: on the “deprocessualization” and “dematerialization” of its essence and content in the criminal proceedings of Russia

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Arguments on the central role and fundamental importance of the institution of bringing in as an accused are well known in the doctrine of Russian criminal procedural law and national judicial and investigative practices. If the figures in the Great Judicial Reform of 1860–1864 somehow “did not notice” a priori the role of the act and institution in the course and results of pretrial proceedings as well as the presence of a significant procedural guarantee in the interests and rights of criminally prosecuted persons1 [1, p. 386; 2, p. 62], then the “Soviet” legal science exhaustively justifies the system-forming importance of the act in criminal proceedings in general and its material and legal bases for justice.

The procedural value of the latter is traditionally considered as the fact that the legal, justified, and timely issuance of an act (resolution) on the involvement of an accused completely and seriously guarantees the implementation of the specified subject’s following rights:

For qualified legal assistance from a lawyer, as it is from this moment that representatives of the legal community can be “admitted” to criminal proceedings and fully represent the interests and rights of their principal

For the timely acquaintance of the defense party with the legal and factual essence of the charge incriminated by the investigation (guilt allegations) and protection against the charge through the presentation of arguments and evidence regarding its essence and content and the full and comprehensive verification and consideration of the arguments of the defense by the investigative authorities

For the legal and justified application of the most significant procedural coercion measures, as several measures can be employed only for individuals officially brought in as an accused; the time frame for others’ application is suppressive and directly dependent on the existence of the act of bringing in as an accused.

For the proper implementation of the preliminary investigation and actual jurisdiction (hereinafter jurisdiction) for the criminal case, as the legal qualification of the act given in the involvement as an accused is decisive in procedural moments; it also determines the essence and content of the indictment in the case, the subject and limits of the consideration, and the resolution of the case in the first instance court.

The material (criminal and legal) value of the act of “bringing in as an accused” emphasizes the fact that via this procedural decision, a criminally prosecuted individual is brought to criminal responsibility and obliged to answer for the committed (alleged) offence and subject (further) to condemnation, punishment, and criminal conviction for the crime. In the case of citizen Ustinov, in 1973, the Supreme Court of the RSFSR pointed out that “The date of bringing a person to criminal responsibility is the date of the decision to bring him as an accused, and not the time of sentencing.”2

As a consequence, in the discourse of such components, the institution of indictment gradually crystallized as the central defining act of pretrial proceedings in the minds of most practitioners of the national criminal procedural doctrine and a peremptory setting for the actors in the field of criminal justice.

However, over time, the significance of the act’s sacred value was “lost.” Moreover, owing to the updating of regulatory innovations, the provision of qualified legal assistance by a lawyer to an accused was not associated with the act of indictment, which is dependent on other legal facts (Part 3 of Article 49 of the Criminal Procedure Code of the Russian Federation). In addition, based on (subjectively colored) “needs,” state bodies and officials involved in criminal proceedings increasingly modified the legal procedural form of implementing the act in accordance with their “interests,” such as subjectively defining it as a decisive imperative guarantee for the implementation of individual procedural decisions and actions or implementing the act formally, thereby transforming it from a fundamental norm guarantee into a non-burdensome procedural fiction.

For example, the first phenomenon was not based objectively on the law but on the mandatory requirement of the Office of the Prosecutor for the decision on the bringing in as an accused of individuals detained according to Articles 91–92 of the Criminal Procedure Code (Article 122 of the Criminal Procedure Code of RSFSR, 1960). Moreover, the requirement clearly accentuated the “threat” of recognizing illegal detention and the unqualified refusal of the investigating authorities to authorize a resolution on the application of a preventive measure for a detainee, such as detention3. The public “legality” of various investigative petitions to the court was similarly ensured (Part 2 of Article 29 of the Criminal Procedure Code of the Russian Federation) as well as conflict-free “interactions” between investigators and supervising prosecutors.

The second phenomenon appeared (and continues to appear) in the form of an extensive investigative practice developed and approved by various departments, the essence of which is described below.

The implementation of the act of bringing in as an accused subjectively “delayed” investigating authorities as much as possible and consequently notification of the accused about the termination of the preliminary investigation and submission of case materials to the participants of the review process (Articles 215–219 of the Criminal Procedure Code of the Russian Federation). This practice resulted in massively objectified complaints from interested parties, the violation of the right of an accused to be protected against accusations, and the unjustified disregard and refusal of the investigating authorities to change, as a (stated) legal or actual fact, the arguments of the defense-related formula and wording of the charges.

Approval by the investigating authorities of the actual and legal sides of an offense set forth in the resolution on the bringing in of a defendant did not show a complete picture of the actual basis for the conclusions of the final investigation or motivations for the decision [3, p. 15–18]. For the latter, as a rule and in principle, in their decision, investigators do not consider citing the evidence as the basis for their final statements mandatory. Moreover, investigators argue that the current law does not contain this imperative duty, and based on the tactical situation, an investigator has the right to independently determine the time and volume of their submission to the defense. The persistent appeal of lawyers to the norms in Part 4 of Article 7 of the Criminal Procedure Code regarding the violation of a defendant’s right to protection against a (formal) charge is not accepted by investigators or the court. As a result, these points are objectified in the legal plane merely as topics for “scientific” discussion and do not change either established investigative practices or the final position of the court in such points.

Moreover, judges do not completely understand lawyers’ persistent attempts to bring under judicial control (Article 125 of the Criminal Procedure Code of the Russian Federation) investigating authorities’ resolution on the bringing in as an accused in the compliance properties of legality, validity, and motivation. The conclusion that the subject of such verification is inextricably linked with the (a priori inadmissible) indictment evidence assessment and as a consequence, the prejudged conclusions of the court on the issue of the proven guilt of the accused, finds unambiguous consolidation in the position of judges from the supreme body of constitutional justice4, the explanations of the Plenum of the Russian Federation Supreme Court, and the precedent acts of higher courts5. This levels the admissibility of such a check.

Attempts have been made by the Russian doctrine to substantiate the thesis that the current regulation does not prohibit verification by the court of the factual validity of a charge set out in a decision. However, the latter is more similar to exercises in fine literature than to options for resolving a dispute. For example, we recognize that in the courts’ position, confusion in logical concepts can be observed, that is, in “prejudging the guilt question” and “the court’s conclusion of guilt.” As a consequence, in the operational judicial review framework (Article 125 of the Criminal Procedure Code), considering the actual prosecution without prejudice and without presenting findings about the nature of the latter is possible [4]. This construction is interesting but not for the applicant party who applied for judicial protection. For such a party, the court’s conclusion on the legality and validity of the investigative statement of guilt (accusation), rather than the mental process of the judicial proceedings without practical value, is fundamental. Finally, the (declared) procedural and material value of the act of bringing in as an accused is leveled by the widespread practice of presenting a “duty” charge, which is often repeated (if not constantly repeated), and thus the performance of a purely formal procedural role that is not objectified in any way as the crucial material act of legally and justifiably bringing an individual to criminal responsibility or charging him/her with a specific crime (and its legally significant features) according to the law and based on verifiable evidence.

Refracted through a purely departmental understanding of legality and formally drawn up and presented, the act of bringing in as an accused ultimately creates only the appearance of due legal procedure and grounds and serves as a procedural fiction (screen) for the implementation of widely tested procedural coercion measures and sufficiently developed investigative practices outside an effective system of control over the actual legality and validity of their implementation. To obtain a proper understanding of the concept (not unfounded), we explain it using specific examples.

The fiction of “accusation” during an arrest. The investigative department of the OMVD of Russia for the academic district of Moscow detained citizen B as a suspect (Articles 91–92 of the Criminal Procedure Code of the Russian Federation). Next, after the creation of a report on the detention of citizen B from 16:15 to 17:30, he/she was questioned as a suspect. At 17: 45, citizen B was accused; however, he/she was questioned from 18:00 to 19:15 [5, p. 20–21].

For a comprehensive and objective assessment of the evidence collected for this case and the adoption of a legal and reasonable decision to bring citizen B to criminal responsibility as an accused as well as for the preparation of a legal and reasonable decision on this matter, the investigator took 15 minutes. Another 15 minutes was needed to implement the proper legal procedure for presenting the guilt allegation. Meanwhile, the actual interrogation of the “proven” charge was 1 hour and 15 minutes (similarly, interrogation as a suspect). For experts, we believe that the comments are superfluous, because discussing the actual proof for this accusation and the objectification of this decision as an act of bringing the accused to criminal responsibility or a weighty procedural guarantee (of a person and justice) only in a state of insanity is possible.

The fiction of “accusation” as an act of bringing an accused to criminal responsibility. According to the Resolution of the Ust. District Court of the Udmurt Republic, the criminal case concerning O and V accused of committing crimes under Part 1 of Article 195 and Part 4 of Article 159 of the Criminal Code was returned to the prosecutor owing to a breach of the requirements of the Criminal Procedure Code during the drafting of the indictment (Article 237 of the Criminal Procedure Code of the Russian Federation).

According to the indictment, O and V were charged with theft as part of the persons’ group by prior agreement. Meanwhile, the accomplices in the criminal activity were not specified. Moreover, their role in the theft was not reflected in the content of the charge, the conditions of the preliminary collusion were not given, and the total amount of the jointly stolen property resulting from a single criminal intent was not specified. Thus, this charge contradicted the criminal procedural limit trial established in Article 252 of the Criminal Procedure Code, worsened the situation of the accused, and made the implementation of their right to protection in connection with the inability to check the prosecution arguments to oppose prosecution and defend their position difficult.

However, we emphasize that O and V were charged more than six times during the 2-year preliminary investigation, the formula and wording of the latter were not changed, and the period of the investigation was more than 29 months6.

In the first and second cases, the act of indictment plays a purely “procedural” role, providing the momentary “interests” of the investigating authorities or Office of the Prosecutor or court implementing prompt judicial control according to the norms of Articles 108 and 165 of the Criminal Procedure Code. We believe that discussing the determining role of this act in the course and results of case proceedings or its objectification as a fundamental guarantee of legal and justified criminal prosecution is unnecessary. What matters is the appearance of due process. At the same time, these facts are not unique. Such a practice was developed and approved through conventional consent by the participants of legal relations. Roles, reprises, and acts were initially established; thus, for justice administration and “reconciliation” of the subject and limits of a charge brought to court, only the latest “version” of the decision on bringing in as an accused is considered. Owing to the legal and actual fact of the latter, the prosecutor (Article 221of the Criminal Procedure Code of the Russian Federation) and court (Chapters 33–34 of the Criminal Procedure Code of the Russian Federation) verifies the indictment as a public criminal claim or a claim for the court’s permission by the prosecuting authority. The remaining acts of permanent “criminal prosecution” have “played out” their typical role.

As a result, in general, it is symptomatic that in scientific and legal circulations, the characteristics of the act of bringing in as an accused as an “initial” accusation are increasingly objectified and cannot be compared with the “final” accusation formed in the indictment7, the “intermediate” accusation8, the accusation of the “final investigation,” and an accusation that is “completely legal” [4].

These “innovations” are widely accepted, and Russia’s judicial system sees nothing wrong with this part of the proceedings for a statement of guilt and the fact that the most important substantive act of holding a person criminally liable may be permanent, that is, “intermediate,” “initial,” and “final investigations” as “completely legal”9. If literal, then according to the established practice, the “intermediate” and “initial” “duty” of bringing an accused to criminal responsibility is a legal “trifle.” Thus, dwelling on such points, especially responding seriously to complaints from the defense about the “liberties” of an investigation in the implementation of the proper procedural form for this most important material act, is unnecessary.

The “deprocessualization” and “dematerialization” of the act of bringing in as an accused did not go unnoticed in the doctrine of Russian criminal procedural law. In the field of law, increasingly objectified judgments on the act, process, and optimal and sufficient generation of a formal procedural status of a criminal regard the act of suspicion notification, especially considering that according to the norms of the Criminal Procedure Code, the procedural status of a suspect and an accused is practically identical. Accordingly, the act of making and presenting “standby” charges in the regulatory revision (Articles 171 to 175 of the Criminal Procedure Code) has become redundant and should be “abolished” to optimize investigation activities [2, p. 63; 6, p. 38–40; 7, p. 51–54].

However, as the trial/settlement of a case is solely against an accused (defendant) and the charges against him/her (allegations of guilt) an act of indictment, the corresponding physical act of bringing an accused to criminal liability (to be obliged to respond [8, p. 123–137]) must be transformed radically, including ensuring constitutional rights, for the following reasons:

For the timely familiarization of the accused with the essence and content of the charge incriminated by him/her and an exhaustive presentation and analysis of the presented act of the actual side of the incriminated allegations and their final legal assessment in the form of the final investigative and accusatory qualification of the crime under specific articles, parts, and qualifying signs of the current substantive law

For the full and comprehensive familiarization of the defense with the entire system of the formed indictment evidence for the case and unity of the factual data (information about the act) and the direct legal source of the “origin” of the relevant information

To ensure at least minimal opportunities for further proceedings as well as the central element of proof, that is, the rules of the adversarial model of “two folders,” with one folder systematizing the materials of the criminal case and the another “folder” systematizing the materials of the defense, including copies of the most important investigative documents (submitted for review) “important” to the interpretation of the defense

For the formation of a procedure for bringing persons to criminal liability, in which allegations of guilt, the factual side of alleged acts, and their legal qualification according to the norms of the Criminal Code should reflect the final and agreed position of the prosecution regarding the nature and content of the criminal complaint filed in court; as a consequence, any “competition” in the investigative and prosecutorial allegations of guilt by the time of the implementation of the act must be a priori exhausted (Paragraph 2 of Part 1 of Article 221 and Part 4 of Article 221 of the Criminal Procedure Code). Moreover, the object and vectors of the possible “dispute” between the investigation and prosecution must be beyond the “interest” of protection.

The current design of the institution of bringing in as an accused (bringing to criminal responsibility; Articles 171–175 of the Criminal Procedure Code of the Russian Federation) is practically unable to ensure the implementation of such guarantees, thereby resulting in its nearly complete discreditation. We must realize and admit that the act of bringing an accused to criminal liability (obligation to answer for the act committed in the form of condemnation, punishment, and a criminal record) is an act of approving the indictment by the prosecutor (indictment/prosecution order). Arguments in favor of the rationality of the above notion are discussed below.

In current criminal proceedings, the act of bringing in as an accused plays an official procedural role. Hence, as a rule, this act is not justified and contains only a predictive qualification of the deed. Thus, it is not perceived as an authoritative act either by the investigation or parties involved. Evidence for this fact is the repeated (“regular”) changes/additions to a charge, the exclusion of significant investigative statements in part or in full, and the permanent redeclaration of a charge (“rebringing” to criminal responsibility).

A real, legitimate, and well-founded accusation is objectified only in the form of an indictment (act of indictment). This final administrative act (as a whole) of pretrial proceedings for a case systematically and fully includes the scrupulous presentation of the prosecution, including the presentation and analysis of the formed evidence for each criminal act episode and circumstance in the subject of proof. This final act also indicates the defense arguments to refute the allegations of the investigative authorities and the results of their verification by the investigation (hereinafter and the prosecutor). Only on this objective basis is the legal qualification of what was carried out and the final statements of the accusation formed or the claim addressed by the prosecution for consideration by and permission from the court10.

In addition, in this situation, the legality and validity of the final indictment claims can be verified easily by the defense by appealing to the primary sources of evidence embedded in the materials of the (studied) criminal case. Hence, in an operational context, the defense could appeal to the copies of investigative materials stored in a bar “file.” As a result, ensuring the constitutional right to be protected against (the most specific) accusations is not illusory but a real guarantee.

An indictment (indictment act) serves as the direct subject of the court’s verification and evaluation in the stage of preparing a case for trial and when considering the case based on its merits. This act is objectified as a final statement of guilt, which, determining the subject and limits of the trial, is placed on the state (state prosecution) for resolution by an independent and impartial court resolving the main issues of criminal cases based on their merits. The existing (burdensome) duty of the court in the modern normative version is to check imperatively whether the essence and content of this act corresponding to the “last” version of the decision on the bringing in as an accused are meaningless. The reason for this verification is that the bringing in as an accused, and accordingly, the bringing of an accused to criminal responsibility, are simultaneously objectified as a single, central, and defining act without far-fetched simulacra of “duty” or “initial,” “intermediate,” and “final” roles. The law also focuses on the fairness of this, as errors (gaps) in the indictment prevent the trial and decision of a verdict, which are objectified as legal bases for returning a criminal case to the prosecution in accordance with Article 237 of the Criminal Procedure Code of the Russian Federation [9, p. 475].

Finally, the establishment of a procedure for bringing charges is entirely justified from the standpoint of substantive law, as the subject of considering a case based on its merits is a claim for punishment, which a priori belongs exclusively to the state. The investigative body cannot be and is not subject to the independent formation and submission of this claim to the court, and the act must come exclusively from the state. The Office of the Prosecutor is obliged to establish (approve) the final public action, statement of guilt, and the state’s right to punish based on this statement to realize the physical act of holding an accused criminally responsible (to his/her duty to be responsible)11. Therefore, initially, the law rules are correct in requiring the prosecution to give the defendant a copy of the approved indictment (Part 2 of Article 222 of the Criminal Procedure Code of the Russian Federation) as an act of bringing him/her to criminal responsibility and the indictment claim, which defines the subject and limits of the criminal law rights of the state to punish12.

These concepts are the bases for the act of bringing an accused to criminal responsibility in most modern criminal procedural systems. The same rational essence can be found in the act of indictment in the form of an inquiry, which is implemented by the rules of Chapters 32 and 32.1 of the Criminal Procedure Code, in which the appearance and involvement of an accused in criminal responsibility are implemented through the issuance of an indictment/prosecution order13 [2, p. 63].

Similar reformed criminal procedural law patterns can be found in the Republic of Ukraine, where the accused is absent in the preliminary investigation stage, the process is conducted in principle against the suspect, and the essence of and grounds for criminal prosecution and its legal qualification are set out in the notice of suspicion, which is presented mandatorily to the punishable individual. Only through an indictment can an individual acquire the status of accused, which is a function exclusively of the prosecutorial power, as only the prosecution can formulate a criminal claim and take responsibility for maintaining it directly in the criminal court.

Meanwhile, reforming pretrial criminal proceedings in Russia, which have become increasingly bureaucratic in essence, content, and results, is necessary. At the same time, neither special material costs nor a radical breakdown of the fundamental institutions and norms of the Criminal Procedure Code of the Russian Federation is required. The main problem involves the prosecution’s willingness to take responsibility for the lawful and reasonable bringing in of an accused to criminal responsibility (on behalf of the state) and methodical decisions on the time and form of indictment (the accused and defense form their beliefs about the nature and content of the claim’s investigation according to the materials of the investigated criminal case).

Notes:

1 The Statute of Criminal Proceedings of 1864 does not contain norms regarding the essence and content of this institution. Thus, its content elements were formalized “normatively” only through a special order from the St. Petersburg District Court in 1887 and the definition of the Supreme Disciplinary Presence of the Senate in March 23, 1898.

2 Criminal procedure of Russia. Textbook / A.C. Alexandrov, N.N. Kovtun, M.P. Polyakov, S.P. Serebrova; scientific editor V.T. Tomin, Moscow: Yurayt-Izdat, 2003. P. 431.

3 According to the norms of the Criminal Procedure Code of the Russian Federation (2001), deprived of the right to sanction this measure, the prosecution, similarly and from the same “good” intentions, flatly refused, in the absence of a decision on the bringing in as an accused, to support in court (as legal) the request of investigating authorities to apply to a detainee the measure of restraint indicated by the court’s decision (Article 108).

4 See for example the decision of the Russian Federation Constitutional Court of March 23, 1999, No. 5-P “On checking the constitutionality of provisions of Article 133, Part 1 of Article 218, and Article 220 of the Criminal Procedure Code of the RSFSR in connection with complaints from V.K. Borisov, B.A. Kekhman, V.I. Monastyrsky, D.I. Pavlygin, and limited liability company ‘Monokom’” and the decision of the Russian Federation Constitutional Court of December 14, 2004, No. 452 “On the complaint of citizen L.A. Sheveleva for the violation of her constitutional rights, Paragraph 4 of Article 448 of the Criminal Procedure Code of the Russian Federation // SPS ‘Consultant’” (reference date: April 20, 2020).

5 See for example, the Cassation ruling of the Krasnodar Regional Court of April 13, 2011, in case No. 22–2070 / 11. URL: http://old.судебныерешения.RF/bsr/case/126102 and the appeal decision of the Bryansk Regional Court of May 30, 2014, in case No. 22K-759/2014. URL: https://sudact.ru/regular/doc/eE45DRA8a2br/ (reference date 17.04.2020).

6 Appeal decision of the Supreme Court of the Udmurt Republic No. 22-1032/2016 of May 19, 2016, in case No. 22-1032/2016 // SPS “ConsultantPlus.”

7 See for example the determination of the Constitutional Court of the Russian Federation No. 857-O-O of November 20, 2008, “On refusal to accept for consideration the complaint of citizen Sukharev A. A. in violation of his Constitutional rights by Articles 171, 172, and 215 of the Criminal Procedure Code of the Russian Federation // SPS ConsultantPlus’.”

8 See for example Pravoved.ru. URL: https://pravoved.ru/question/1560529-postanovlenie-o-privlechenii-v-kachestve-obvinyaemogo/ (reference date 20.04.2020).

9 See for example the definition of the Constitutional Court of the Russian Federation dated May 15, 2012, No. 881-O “About refusal in acceptance to consider the complaint of citizen A. V. Krushinsky about the violation of his constitutional rights by Articles 164, 172, 195, and 215 of the Criminal Procedure Code of the Russian Federation” and the appeal determination of the Judicial Board on Criminal Cases of the Supreme Court of December 5, 2018, No. 58-АPU18-14 // ATP “Consultant.”

10 “One of the main requirements for the act of bringing as an accused is its concreteness. Each of the incriminated episodes of criminal activity should be described in the resolution in the most concise form. Non-compliance with this requirement is one of the significant violations of the criminal procedure law that violate the right of the accused to defense” / / Bulletin of the Supreme Court of the Russian Federation. 1997. No. 10. p. 9.

11 “The final charge, which is subject to consideration by the court, is formulated at the final stage of the preliminary investigation — at its end and the preparation of the indictment” / / Determination of the Constitutional Court of the Russian Federation of November 20, 2008, No. 857-O-O “On refusal to consider the complaint of a citizen Sukharev A.A. on violation of his constitutional rights by Articles 171, 172, and 215 of the Criminal Procedure Code of the Russian Federation.”

12 The indictment, rather than the decision on bringing in as an accused, determines the subject and limits of the court review and resolution of the case (Article 252 of the Criminal Procedure Code), thereby clearly indicating the legal position of the supreme body of constitutional justice. See for example the decision of the Constitutional Court of the Russian Federation dated May 16, 2007, No. 6-P “On checking the constitutionality of provisions of Articles 237, 413, and 418 of the Criminal Procedure Code of the Russian Federation in connection with inquiry made by the Presidium of Kurgan Regional Court” // ATP ConsultantPlus.

13 As rightly emphasized by B.Yu Gavrilov, in the 16-year implementation of this form of indictment and more than 5 million cases closed by the investigating authorities through inquiries, no convict complained of “wrong” bringing in as a defendant either in the constitutional court or ECHR.

About the authors

Nikolay N. Kovtun

Author for correspondence.
Email: kovtunnnov@mail.ru

Doctor of law, professor, professor of the department of criminal procedure

References

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