Legal certainty and formalization in the improvement of the criminal procedure form

Kripinevich Svetlana Sergeevna PhD in Law Deputy Head of the Department of Criminal Procedure Law named after N.V. Radutnaya, Russian State University of Justice 69 Novocheremushkinskaya str., Moscow, 117418, Russia s.kripinevich@yandex.ru Other publications by this author

The criminal procedure law of the Russian Federation is in a state of permanent improvement. This process is objective in its essence, necessary and requires close attention not only to the content, but also to the ideas that provide its objectives and methods of implementation.

In legal science, there is a well-founded and well-established opinion that "only by focusing on clear and pre-established legal prescriptions can legal entities be provided with the opportunity to plan their own behavior, and therefore the ability to organize their activities at their own discretion" ^[21]. This position is objectively confirmed in the decisions of the Constitutional Court of the Russian Federation: the ambiguity of the provisions of the legislation is negatively assessed by it and interpreted as a failure by the legislator to fulfill his duty to protect and protect the constitutional rights of citizens (Resolution of the Constitutional Court of the Russian Federation dated July 16, 2015 No. 23-P). Continuing this thought, it can be concluded that only legal certainty is the key and the main condition for the proper protection of the rights and legitimate interests of participants in legal relations. Legal certainty in the context of the imperative nature of criminal procedure regulation is possible only if there are legally established rules. In other words, the formalization of criminal procedural activities is an objective need to protect the rights and legitimate interests of participants in criminal procedural legal relations.

Well-known scientists agree with this thesis, rightly arguing that formalization directly provides criminal procedural relations with "effective legal guarantees of the effectiveness and soundness of intermediate and final results in a criminal case" ^{[18, p. 74]}.

We can generally support this idea and share it, but only in a certain part. The critical attitude is caused not so much by the very idea of legal certainty (which, again, is really sound and necessary), as by the trend that has been developed, including in the science of criminal procedure, in revealing its meaning, especially in relation to criminal procedure legislation.

In Russian legal science, there is a belief that legal certainty is a general legal principle ^{[4, 22]}, the meaning of which is expressed in the maximum certainty of the norms of law (legal regulation) ^[13], the certainty of relevant law enforcement practice (legal relations) ^{[20, 8,]}; the certainty of the result of law enforcement activities (including judicial solutions) ^{[14, 9]}.

It should be noted that the modern understanding of legal certainty and the assessment of its positive significance and impact on legal relations is mainly expressed in the need for exceptionally detailed legislative regulation of these relations, including criminal procedural ones. Numerous proposals are being made to supplement, specify and detail the criminal procedure law in order to develop this idea and strengthen its positive role in regulating criminal procedure relations.

An interesting statement in the light of the problem under discussion is: "The collection of information about facts and their consolidation in the sources provided for by law plays a crucial role. This circumstance should have been taken into account and properly regulated by the legislator, developing and legislating the institution of the admissibility (inadmissibility) of evidence. Which, unfortunately, did not happen. As a result, the law enforcement officer faced problems in assessing the admissibility of evidence" ^[2]. The author of the above position is completely absorbed in the idea of detailed and maximally specific legislative regulation of the criminal procedural activities of the court in terms of assessing the admissibility of evidence. While agreeing in this particular case that permissibility has formal grounds, we cannot but express doubts about the need for such detailed formal regulation of this area of criminal proceedings.

In this regard, most of the scientific results of legal research are indicative, when almost every one of them ends with proposals to improve the criminal procedure form, usually detailing its individual elements.

Here are just some examples for illustrative purposes.:

– it is proposed to regulate the procedure for calculating time when choosing other preventive measures for the duration of punishment (Article 109 of the Code of Criminal Procedure of the Russian Federation) ^{[11, p. 24]};

– the introduction of additions necessary to take into account the specifics and determine the conditions for replacing an improper civil defendant is justified, and clear instructions are required in the Code of Criminal Procedure for courts to decide whether to dismiss a civil claim without consideration ^{[19, p. 9, 11]};

– it is necessary to establish an imperative price framework for judicial discretion, but also a list of circumstances that are mandatory for judicial assessment when calculating the amount of compensation for moral damage ^[23];

– amendments are required to Clause 3.2 of Article 196 of the Code of Criminal Procedure of the Russian Federation regarding the appointment and conduct of psychiatric forensic examinations ^{[1, p. 14]}.

The opinion is expressed that "... the meaning of the procedural branches of law is precisely to formalize the application of substantive law, and in terms of criminal procedure, it is also to formalize criminal liability. The more complexly structured the criminal procedure form is, the more perfect it is, since formalities are exactly what ultimately protects each of us" ^[24].

What is the significance of these and other suggestions and opinions? In our opinion, each of them demonstrates the author's position on the regulation and procedure for the implementation of very specific criminal procedural actions or the adoption of appropriate procedural decisions. However, the main thing in which they coincide is the introduction of new or additional mandatory rules into the formal (legislative) framework. Moreover, in some cases, scientists do not think about the fact that the problems they have formulated can be solved in other ways (besides correcting the law).

From our point of view, the adoption of the above and other proposals expressed in science has a very high probability that the desire expressed in them for legal certainty, and, consequently, for increased formalization of regulation, will not lead to an increase in the level of ensuring rights and legitimate interests, but to its complete opposite – violation and unlawful restriction. due to the inability to comply with all the numerous rules established by the legislator. We believe this is a path to a dead end: when the formalization of one area systematically entails a similar formalization of interrelated areas and all together leads to a detailed, fragmented rules of procedure. What is the outcome of this approach? The result is a weak systematization of detailed rules, which will lead to contradictions in the regulation of several procedural institutions, and, as a result, to legal uncertainty, requiring continued detailing of the criminal procedure form.

A similar point of view is shared by I. I. Guseva, who notes that "excessive formalism in criminal procedure requires energy, time, and material costs, artificially complicates the process, absorbs its content and slows down legal proceedings, and generates soulless formalism" ^{[5, p. 19]}.

Important in the context of the critical assessment of formalization is the point of view that "not all scientific problems should be solved in a judicial and authoritative manner (this also applies to the question of the nature of the court decision), but their very awareness, "pronouncing" will ensure the unity of judicial practice at a completely different level" ^{[27, p.. 150]}.

The idea of "weakening" the formalization of criminal proceedings is still not widely discussed, although prominent scientists speak in favor of it. S. V. Romanov notes in his work that excessive formalization of the terms of the criminal process, especially in its judicial stages, is also unacceptable ^{[17, p. 304]}. According to A. I. Tsyretorov, "excessive formal certainty of criminal proceedings is one of the factors reducing the effectiveness of law enforcement activities" ^[25].

Lebedev M. Y. notes that the formalization of criminal proceedings does not always contribute to the proper provision of the rights and legitimate interests of participants in criminal proceedings ^[10]. M. P. Polyakov is no less categorical about formalization ^{[15, p. 16]}. P. S. Pastukhov, as a negative, notes the tendency towards excessive formalization of criminal proceedings ^{[12, p. 153]}.

"The widespread formalization of the rights and duties of individual subjects of procedural activity (especially the creation of new participants) should not lead to a deformation of classical procedural statuses–" concludes A. Y. Chekotkov ^[26].

"... in Russia (however, and in the CIS as a whole, according to the translator's experience), this 'solemn' formalism has reached its peak," one of the works notes ^[16].

Examples of similar statements by scientists can be continued. However, we think that these cases are enough to illustrate the severity of the discussion and its scale. It is noteworthy that the opponents do not deny the benefits of formalization in general. However, analyzing in detail the problems arising in connection with the formalization of criminal proceedings, scientists note the undesirability of excessive or excessive degree of it. And in this part, we believe the weakness of the scientific position lies in the fact that the criteria for formalization, the framework beyond which formalization becomes redundant, are practically not offered. Accordingly, it is not possible to judge where to put a "plus" sign in the assessment of formalization, and where to put a "minus" sign.

For example, we believe it is hardly possible to deny the existence of a need to clarify certain procedural rules. As an example, there is a lack of uniformity in the courts' resolution of the issue of the grounds for collecting attorney's fees in favor of a rehabilitated person in private prosecution cases, as well as the circumstances to be determined by the court. The reason for this situation is the legal uncertainty generated by the lack of sufficient regulation.

One can also cite an example often used in science of giving a defender the authority to collect evidence (Part 3 of Article 86 of the Code of Criminal Procedure of the Russian Federation), but at the same time the legislator ignored the mechanism of its implementation, which led to a legal fiction. Or, by introducing additional advantages for entrepreneurs accused of economic crimes, regulating in detail the procedure for choosing preventive measures in relation to them, the legislator did not provide for the possibility of imputing a set of compounds, which allowed law enforcement officers to choose detention for entrepreneurs, ignoring the established prohibition of such election, motivating their decisions by the fact that the legislator established the appropriate The ban is only for the accused under exclusively economic articles of the criminal law.

On the other hand, one of the works quite appropriately raises the question of respecting the right to use one's native language and ways to overcome the abuse of this right. It is noted that pre-investigation authorities should assess the situation when a request for an interpreter is made individually, rather than providing an interpreter automatically after the request is made ^{[3, p. 23]}. It turns out that the satisfaction of an application for the provision of an interpreter is assessed as a rigidly formalized obligation, while the level of formalization is considered excessive. In our opinion, such criticism is not fully justified and needs additional justification.

From the point of view of criteria for assessing the level of formalization, the legal position is of interest, in which the Constitutional Court of the Russian Federation notes legal uncertainty, which gives rise to "the possibility of unlimited discretion of law enforcement agencies in determining the procedural rights and obligations of participants in criminal proceedings, which, in turn, means a violation of the principle of legal equality arising from the Constitution of the Russian Federation, which, ..., may It can be ensured only under the condition of uniform application of legal norms, which is possible only if they are formally defined, accurate, clear, unambiguous and consistent in the system of current legal regulation" (Resolution of the Constitutional Court of the Russian Federation dated July 16, 2015 No. 23-P).

In the above excerpt, we will pay attention to several points::

– The Constitutional Court of the Russian Federation does not accept unlimited discretion, which, in its opinion, violates the principle of legal equality;

– unlimited discretion is negative only in relation to the definition of the procedural rights and obligations of participants in criminal proceedings;

– the condition of legal equality can only be the uniformity of the application of legal norms;

– uniformity is possible only if there is formal certainty of legal norms (This statement has been repeatedly repeated in other decisions of the Constitutional Court of the Russian Federation: Rulings No. 301–O dated February 17, 2015, No. 1267-O dated June 23, 2016, No. 970-O dated May 25, 2017, and December 20, 2018 No. 3366-O, dated June 25, 2019 No. 1792-O, dated May 28, 2020 No. 1291-O, dated May 27, 2021 No. 911-O, dated September 29, 2022 No. 2155-O, etc.).

By simple logical operations based on the stated theses, we obtain a logical conclusion: unlimited discretion is considered as a negative factor, which can be eliminated solely through the formalization of legal norms. And further, formal certainty determines the task for the legislator to deepen the detail of the content of criminal procedure norms, i.e. saturation of their content with an increasing number of individually defined provisions.

The consequence of this kind of legal position is the expansion of legislative regulation. We emphasize that this method of improving the legislative framework of criminal proceedings is the main one and continues to develop actively.

In the light of these considerations, we consider it possible to express our own position on the issue raised. Any mechanism becomes obsolete over time, and there is an urgent need to update it, which can take place either by reconstructing existing elements, or by replacing old ones or supplementing the mechanism with new elements. The same applies to the rather monotonous trend of improving the criminal procedure form solely by the way it is formalized.

One of the alternative directions as a way to improve criminal procedure legislation is the so-called framework regulation in science. Its meaning is as follows: the establishment of a general model of behavior by expanding the subject of legal regulation ^[6]. At the same time, according to the author, the limits of discretion of the law enforcement officer in the framework of legal regulation are "of a different nature: they can be strictly established by the rule-maker or assume consideration of certain features (for example, historical, economic, geographical, etc.)" ^[7].

With regard to the definition of alternative ways to improve criminal proceedings, we once again refer to the legal position of the Constitutional Court of the Russian Federation, which believes that, for example, clarifying the rehabilitation procedure is possible in two ways: by the federal legislator by amending the current legislation or by the Supreme Court of the Russian Federation by issuing clarifications on judicial practice (Definition of the Constitutional Court of the Russian Federation of 2 July 2013, No. 1057-O).

Comparing the available approaches to the regulation of criminal procedural legal relations, we note the presence of positive and negative sides for each.

Thus, the positive aspects of formalization are justified by the main argument – only a formalized procedure can ensure the achievement (fulfillment) of the main function for which, in fact, the criminal procedure form is created - ensuring the rights and legitimate interests of subjects of criminal procedural relations. In furtherance of this thesis, we note that ensuring rights and legitimate interests is only part of the function of the criminal procedure form. We believe that another part of it, no less significant, is ensuring public interests. Accordingly, the criminal procedure form should equally ensure the protection of both private (personal) and public (public) interests. This function cannot be fully performed without formalization. We generally agree with this argument.

However, we believe that it is impossible not to notice the growing problematic nature of strengthening the formalization of the criminal procedure form. Therefore, in terms of its negative assessment, we note the increasing volume and lack of consistency of the elements of the criminal procedure form. In other words, increased formalization leads to an increase in the number of contradictory rules that do not correspond to other criminal procedural provisions and are not related to them. Unsystematic legal regulations in the field of criminal procedure create legal uncertainty or lead to unlimited discretion, which is actively opposed by the Constitutional Court of the Russian Federation.

Taking into account the above facts and circumstances, it can be confidently stated that the increased formalization of the criminal procedure form leads to a result that is directly opposite to what is expected and negatively affects criminal proceedings in general.

Accordingly, we tend to attribute the increasing formalization of the criminal procedure form as a whole to destructive factors, and overcoming it is possible, in our opinion, in two ways.:

1) reducing the level of formalization of the criminal procedure form;

2) while maintaining the level of formalization, increasing the requirements for the systematization of elements of the criminal procedure form that are integrated into the criminal procedure legislation (and already provided for in it).

The second of these methods can and should be implemented regardless of the legislator's further steps to strengthen or reduce the pace of formalization. It seems that systematization is a prerequisite for the further progressive development of the criminal procedure form in any case. At the same time, while maintaining the trend towards increasing the level of formalization of the procedure, one must be prepared for the fact that criminal procedure regulation will continue to expand, increasing both quantitatively and deepening in quality (meaningfully). In other words, there will be more and more new rules detailing the procedure, covering all new relationships that either exist now outside the legal field or will arise in the foreseeable future. Accordingly, the problem of non-systemic regulation of the criminal procedure form will persist, and according to our forecast, the difficulties in the intersectoral interaction of criminal proceedings will deepen. And we cannot consider these processes in the development of domestic criminal justice as positive.

Priority in the development of the criminal procedure form is given by us to the first of the mentioned methods, namely, reducing the regulatory pressure on the procedure. What is the possible way to implement it?

It seems to us that, paradoxically, individualization should play a positive role in the implementation of this method of further improving the criminal procedure form, which, in fact, "triggers" the process of formalization. However, considering individualization as a way of introducing into the legal field individually defined conditions, signs, grounds and other elements of the criminal procedure form that require a legal response, it should be noted that its potential may be in demand with this approach, while reducing the level of formalization of the criminal procedure form.

Our idea in this approach is to take into account to a certain extent the scientific concept of the so-called framework of procedural regulation. The main condition in this approach is the recognition by the legislator and the normative consolidation of the powers of officials and state bodies to independently take into account emerging circumstances or conditions in specific procedural situations and apply alternative procedures to individualize proceedings.

Such a decision by the legislator, in our opinion, will allow us to promptly take into account individually determined circumstances that develop situationally and act within the framework of a procedure that, although it does not have a detailed formal regulatory definition, meets the basic requirements defined by the regulations.