CRIMINAL PROSECUTION THROUGH THE PRISM OF ADVERSARIAL THEORY

Abstract

The article is devoted to the peculiarities of criminal prosecution in relation to the adversarial theory. It is substantiated that the commencement of criminal prosecution leads to the emergence of the defense function. The procedural conflict between the prosecution and the defense is manifested in the adversarial form of criminal procedure. It is determined that the adversarial procedure in pre-trial proceedings requires a balance between the procedural capabilities of the prosecution and defense parties, which is practically realized only if effective judicial control is exercised. The author emphasizes the importance of the “favor defensionis” rule as a compensatory mechanism for ensuring procedural equality of the parties in the context of unequal distribution of power. It is noted that although adversariality at the trial stage is unconditional, its manifestations at the pre-trial stage are no less important, in particular when deciding on the choice of measures to ensure criminal proceedings, appealing against decisions, actions or inactions of the prosecution, initiating investigative (search) actions, etc. It is stated that the participation of an investigating judge as an independent arbitrator in criminal prosecution is a manifestation of the adversarial principle, which consists in the ability of both parties to defend their legal positions and prove them before the court. The author proves that adversariality is a necessary tool for fair consideration of a criminal conflict at the early stages of proceedings when the rights of the person being prosecuted are interfered with. It is emphasized that, in accordance with the provisions of the criminal procedure law, the burden of proof of the circumstances confirming the guilt of a person in committing a criminal offense is placed on the prosecution It is found that at the pre-trial stage, the prosecution has a more dominant position in terms of influence on establishing the circumstances of a criminal offense due to the authority to exercise procedural coercion. The author argues that proper ensuring of the adversarial principle at the pre-trial stage of criminal proceedings is a guarantee of the rights, freedoms and legitimate interests of the person being prosecuted.