Questioning or reading out the testimony of a minor in Russian criminal procedure

With the adoption of Federal Law No. 76-FZ dated 07.05.2013 "On Ratification of the Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse", Russia gave a starting point for a number of amendments to the Code of Criminal Procedure of the Russian Federation concerning the strengthening of guarantees of the rights of minors in the field of criminal proceedings. Even before the adoption of this law, issues of strengthening guarantees of the rights of minors were considered through the prism of the provisions of the Convention on the Rights of the Child of 11/20/1989. In 1995, for the first time in the framework of the IX UN Congress on Crime Prevention and Criminal Justice, attention was drawn to the expediency of not interrogating juvenile victims of crimes in courts, but reproducing video recordings of their testimony given in pre-trial proceedings, in order to exclude the secondary victimization of victims, their repeated emotional experience of the circumstances of the act committed against them when testifying in court ^[1].

In the development of these provisions, norms have appeared in the Criminal Procedure Code of the Russian Federation (Part 6 of Article 281 and Part 5 of Article 191 of the Criminal Procedure Code of the Russian Federation), according to which the court has the right not to summon a minor victim or witness to a court session for questioning and may, without his participation, announce the testimony that was previously given to them during the preliminary investigation, if during the interrogation there were technical means of fixing its production using video recording or filming were used. As follows from paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 19.12.2017 No. 51 "On the practice of applying legislation when considering criminal cases in the court of First instance (general procedure of legal proceedings)", within the meaning of Part 6 of Article 281 and Part 5 of Article 191 of the Code of Criminal Procedure of the Russian Federation, the court does not summon a minor victim, a witness for questioning in a court session and announces his testimony, previously given during the preliminary investigation, if they were obtained using video recordings or filming, the materials of which are stored in the criminal case. In cases where video recording or filming was not used during the interrogation, and the party objects to the announcement of such testimony and petitions to summon a minor victim, a witness for questioning at a court hearing, the court, based on the results of the discussion of the petition, makes a reasoned decision.

In doing so, the court should take into account the provisions of the Convention on the Rights of the Child of November 20, 1989 and the Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse of October 25, 2007, according to which the well-being and interests of children are fundamental values. Based on these requirements, the court has the right to refuse to satisfy the application, in particular, if there are grounds to fear for the mental health and psychological state of the minor. Referring to these grounds, the court must have the appropriate medical documents, the conclusion of an expert or specialist (doctor, psychologist). Recognizing that it is impossible to interrogate a minor, the court decides on the disclosure of his testimony given during the preliminary investigation without the use of video or filming.

Similar norms are contained in paragraph 8.1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 28 dated December 22, 2009 "On the application by courts of the norms of criminal procedure legislation regulating the preparation of a criminal case for trial", which states that, taking into account the provisions of Part 6 of Article 281 of the Code of Criminal Procedure of the Russian Federation, the judge does not summon a minor victim or witness to the court session, including in cases where the parties have included them in the lists of persons to be summoned. At the same time, the judge is obliged to provide the minor victim with the opportunity to exercise his right to participate in the court session by notifying him through a legal representative about the time and place of consideration of the case. The issue of the need to summon a minor victim or witness to a court hearing may be resolved during the trial in accordance with the requirements of Article 281 of the Code of Criminal Procedure of the Russian Federation.

However, these provisions should have been understood in connection with Part 2.1 of Article 281 of the Criminal Procedure Code of the Russian Federation, which establishes, in particular, that the decision to reproduce a video recording or filming of investigative actions performed with the participation of witnesses or victims may be taken by the court, provided that the accused (defendant) in the previous stages of the proceedings has the opportunity to challenge this evidence provided in other ways. This conclusion follows from the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 29.11.2016 No. 55 "On the court verdict, referring to paragraph "e" of paragraph 3 of Article 14 of the Covenant on Civil and Political Rights, according to which everyone accused of committing a criminal offense has the right to interrogate witnesses against him or the right to have these witnesses have been interrogated, and also has the right to summon and interrogate witnesses in his favor on the same conditions as for witnesses testifying against him. The above conclusion is also based on Part 2.1 of Article 281 of the Code of Criminal Procedure of the Russian Federation, according to which the court has no right to announce without the consent of the parties the testimony of the failed victim or witness, to reproduce at the court session the materials of video recordings or filming of investigative actions carried out with their participation, as well as to refer to this evidence in the verdict, if the defendant in the previous stages of production in the case, the opportunity was not given to challenge the testimony of these persons in the ways prescribed by law (for example, during confrontations with his participation, to ask questions to the victim or witness, with whose testimony the defendant does not agree, and to express his objections to them).

   In paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 19.12.2017 No. 51 "On the practice of applying legislation when considering criminal cases in the court of First instance (general procedure of legal proceedings)" it is noted that based on the provisions of Parts 2.1, 6 of Article 281 of the Code of Criminal Procedure of the Russian Federation and paragraph "d" of paragraph 3 of Article 6 of the Convention on the Protection of Rights human rights and fundamental freedoms of 04.11.1950 in their relationship, the disclosure without the consent of one of the parties of the testimony of a failed victim or witness who has reached the age of eighteen years, and the reproduction of materials recording his testimony, as well as the disclosure without such consent of the testimony of a minor victim or witness is allowed, provided that the accused (defendant) in the pre-trial stages of the proceedings on the case was given the opportunity to challenge the testimony of the person testifying against him in the ways provided for by law.

In addition, the question arises what should be understood by the defendant's ability to challenge the testimony of the person testifying against him in the ways provided for by law. Does this mean that the prosecution, that is, the investigator, is obliged to conduct a confrontation? Or should we agree with the position of the Constitutional Court of the Russian Federation, expressed in numerous definitions, according to which the exercise by the party of the protection of its rights concerning the verification and refutation of testimony, significant, in its opinion, for the resolution of the criminal case, involves an active form of behavior and inaction of the accused (defendant) or his defender regarding the exercise of these rights cannot be regarded as a failure to provide him with the opportunity to challenge the relevant testimony in the ways provided for by law (see, for example, the Ruling of the Constitutional Court of the Russian Federation No. 2273-O of 27.09.2019, the Ruling of the Constitutional Court of the Russian Federation No. 2252-O of 10.10.2017, No. 2827-O of 19.12.2017, No. 196-O of 25.01.2018, No. 799 of 27.03.2018-O and No. 802-O, etc.). 

Despite the fact that the position of the legislator and the Supreme Court of the Russian Federation on the issue of the disclosure of the testimony of a minor at a court hearing is quite unambiguous (you can not call a minor and announce his testimony given at the preliminary investigation), in judicial practice, when considering criminal cases on the merits in the first instance, as well as appeals, cassation and supervisory complaints, courts pay attention to additional circumstances related to the disclosure of testimony that affect the assessment of the legality and validity of such disclosure.

Thus, in a number of decisions of courts of general jurisdiction, it is indicated that the interrogation of a minor at the stage of preliminary investigation took place with the participation of legal representatives and a teacher, who certified the correctness of the information set out in the interrogation protocol, and gave similar explanations at the session of the court of first instance. The interrogation itself was carried out in accordance with Articles 189-191 of the Criminal Procedure Code of the Russian Federation, no facts of influence in any form on minors were established. The circumstances testifying to the need to interrogate minors in court have not been established in the case. Therefore, the announcement of testimony at a court hearing without re-questioning of a minor victim was recognized as conducted in accordance with the requirements of the Criminal Procedure Code of the Russian Federation (Definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 01.12.2021 No. 81-UD21-23SP-A5).

In other decisions, the courts pay attention to the positions of legal representatives and a psychologist who worked with a minor regarding the need to interrogate the latter in court. The refusal of the defense party to summon a minor to a court hearing is recognized as legitimate if, for example, legal representatives object to the interrogation of minors in court, when such interrogation may harm the health of minors. Or if the court is provided with the recommendations of psychiatric experts who conducted an examination of minors, as well as psychological certificates, from which it follows that the presence of minors in court may adversely affect their mental health, repeated interrogation is inappropriate, may cause stress in the child (Definition of the First Court of Cassation of General Jurisdiction of 04.06.2020 No. 77-821/2020; Cassation Ruling of the Seventh Cassation Court of General Jurisdiction dated 12/28/2021 No. 77-6193/2021; Ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 12/01/2021 No. 81-UD21-23SP-A5). The state of the minor's health at the time of the court session is also taken into account, as well as the possibility of his participation in court and the negative psychological impact that the interrogation may have on the minor (Ruling of the Sixth Cassation Court of General Jurisdiction No. 77-3312/2021 of 20.07.2021; Cassation Ruling of the Ninth Cassation Court of General Jurisdiction of 26.01.2023 in case No. 77-165/2023, 77-2697/2022).

However, in cases where the materials of the criminal case contain the necessary medical documents, the conclusion of an expert or specialist (doctor, psychologist) on the existence of grounds to fear for the mental health and psychological state of minors are absent, the announcement of their testimony by the courts of higher instances is recognized as inconsistent with Part 6 of Article 281 of the Criminal Procedure Code of the Russian Federation, not based on the materials of the criminal case and explanations The Supreme Court of the Russian Federation. At the same time, the decisions note that taking measures to conduct research or request medical documents that could confirm or refute the existence of grounds to fear for the mental health and psychological state of a minor is entrusted to the court that considered the criminal case on the merits. It also has the obligation to ensure the participation of minors in the court session, having found out their opinion about the intention to exercise the rights provided for in Article 42 of the Code of Criminal Procedure of the Russian Federation, including to participate in the trial and to testify (Ruling of the Sixth Cassation Court of General Jurisdiction No. 77-2817/2021 of 08.06.2021). Failure to fulfill these obligations by the court is considered as a significant violation of the criminal procedure law, which entails the cancellation of the decisions taken in the case.

As a circumstance testifying to the legality of the disclosure of the testimony of a minor victim, the similarity of his testimony with the testimony of other participants in the process questioned at the court session is also taken into account. In one of the cases, the court of appeal did not find violations of Part 6 of Article 281 of the Criminal Procedure Code of the Russian Federation, since one of the two victims was interrogated directly in the courtroom, all the questions that the defense considered necessary were asked to her, testimony that differed in content from the testimony of the non-appearing victim (which were announced), she did not gave. In such circumstances, the judicial board considered the decision of the court of first instance on the announcement of the testimony of the failed victim to be correct (Appeal Ruling of the First Court of Appeal of General Jurisdiction No. 55-799/2021 of 17.06.2021).

The assessment of the legality of the announcement of testimony is also influenced by the court's viewing of the video of the interrogation made at the stage of the preliminary investigation. If the court, after viewing such a video, comes to the conclusion that the testimony of a minor in the interrogation protocol, set out in writing, fully corresponds to what the victim actually told, the minor in a free story, independently, without any leading questions, pressure and prompts from adult participants in the investigative action tells about the circumstances of what happened, clearly answers to clarifying questions, clarifies, by virtue of its capabilities, details incomprehensible to the investigator, then the announcement of his testimony at a court hearing is recognized as corresponding to Part 6 of Article 281 of the Code of Criminal Procedure of the Russian Federation (Appellate ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 10.07.2019 No. 72-APU19-5; Appellate ruling of the Second Appellate Court of General Jurisdiction dated 17.11.2020 No. 55-639/2020).

At the same time, the courts point out that the non-use of video recordings (including at the request of minor witnesses or their legal representatives) does not make their testimony inadmissible evidence and is not a reason for refusing to examine the initial testimony of these victims without questioning them in the court of first instance. According to the higher courts, this does not contradict Parts 2.1 and 6 of Article 281 of the Criminal Procedure Code of the Russian Federation (Definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 01.12.2021 No. 81-UD21-23SP-A5; Definition of the Sixth Cassation Court of General Jurisdiction dated 20.07.2021 No. 77-3312/2021; Cassation definition of the Seventh Cassation Court of General Jurisdiction dated 11.05.2021, No. 77-1550/2021).

Despite the fact that the provisions of Part 2.1. of Article 281 of the Criminal Procedure Code of the Russian Federation do not apply to the disclosure of the testimony of minors at a court hearing, nevertheless, the courts note that the defendant is given the opportunity at the previous stages of the process to ask the minor questions at a confrontation or in court to challenge the testimony by other legal means as one of the components of the legality of the disclosure of testimony (the definition of the Judicial Collegium on Criminal Cases of the Supreme Court of the Russian Federation No. 81-UD21-23SP-A5 dated 01.12.2021; Cassation Ruling of the Seventh Cassation Court of General Jurisdiction dated 11.05.2021 No. 77-1550/2021; Cassation Ruling of the Ninth Cassation Court of General Jurisdiction dated 26.01.2023 on the case № 77-165/2023, 77-2697/2022).

Refusing to satisfy the request for questioning in a court session of a minor participant, the courts must make sure that there are really no grounds in the case to make a reasoned decision on the need for his re-interrogation, which is possible only in exceptional cases (Appellate ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation No. 88 dated 11.08.2015-APU15-12; Cassation ruling of the Second Cassation Court of General Jurisdiction dated 03/15/2022 No. 77-1001/2022). In the decision to announce the testimony, the court must give the reasons and motives for which it did not see grounds for re-questioning the minor (Ruling of the Sixth Cassation Court of General Jurisdiction No. 77-2817/2021 of 08.06.2021).

At the same time, it should be taken into account whether the testimony of a minor is not the only evidence of the defendant's guilt (Cassation Ruling of the Second Cassation Court of General Jurisdiction No. 77-1001/2022 of 03/15/2022). As well as the relationship in which the interrogated minor is with other participants in the trial, for example, whether they are his parents or a cohabitant of one of the parents (Cassation Ruling of the Seventh Cassation Court of General Jurisdiction No. 77-1453/2021 of 20.04.2021; Resolution of the Ninth Cassation Court of General Jurisdiction of 21.02.2023 3 77-368/2023). 

In accordance with Part 1 of Article 240 of the Code of Criminal Procedure of the Russian Federation in court proceedings, all evidence in a criminal case is subject to direct investigation, except in cases provided for by Section X of the Code of Criminal Procedure of the Russian Federation. The court hears the testimony of the defendant, the victim, witnesses, the expert's opinion, examines the material evidence, announces protocols and other documents, performs other judicial actions on the examination of evidence. The disclosure of testimony given during the preliminary investigation is allowed only in cases provided for in Articles 276 and 281 of the Code of Criminal Procedure of the Russian Federation (Part 2 of Article 240 of the Code of Criminal Procedure of the Russian Federation).

The immediacy of the trial is considered by the legislator as a general and preferential rule for the examination of evidence by the court. It is the immediacy that ensures a complete and objective examination of the evidence and becomes the key to making a fair judicial decision, which is based on the personal perception by the court of all the evidence presented by the parties. The direct interaction of the court with the interrogated person in the court session allows the court not only to listen to the testimony given by the interrogated person, but also to observe him, his behavior, his reactions to the questions of the parties and the court itself. Such observation can become the basis for the formulation of new, additional, clarifying questions that will allow to correctly assess the reliability of the testimony of the victim or witness, to establish all the circumstances relevant to the resolution of the criminal case.

The announcement of the testimony of participants in criminal proceedings is an exception to the general rule of direct examination of evidence, which is allowed only in exceptional cases that are directly provided for by the criminal procedure legislation and the list of which is formulated by the legislator in an exhaustive manner. Both the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation have repeatedly stressed in their decisions that the study of the previously given evidence during the preliminary investigation or in court of the testimony of the defendant, victim, witnesses, including those given by them during the confrontation, by announcing these testimony at a court session is possible only if there are circumstances specified respectively in art. 276 and 281 of the Code of Criminal Procedure of the Russian Federation, the list of which is exhaustive (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 51 dated 19.12.2017 "On the practice of applying legislation when considering criminal cases in the court of First instance (general procedure of legal proceedings)"). At the same time, Article 281 of the Code of Criminal Procedure of the Russian Federation does not provide for the possibility of an extended interpretation of the list of cases when it is allowed to announce in court the testimony previously given by victims and witnesses absent from the court session (Ruling of the Constitutional Court of the Russian Federation dated 10.10.2017 No. 2252-O "On the complaint of citizen Khasenov Ibrahim Nasrudinovich on violation of his constitutional rights by Part two.1 of Article 281 of the Criminal Procedure Code of the Russian Federation").

It should be noted that the appearance of the institution of the announcement of testimony given during the preliminary investigation is due to two main reasons. Firstly, the need to eliminate the inequality in the procedural possibilities for examining evidence between the defense and the prosecution, who interrogated victims and witnesses during pre-trial proceedings and drew up appropriate protocols. And secondly, the desire to create conditions for the court under which it is provided with perception and evaluation of the testimony of participants in criminal proceedings free from outside influence (Definition of the Constitutional Court of the Russian Federation No. 477-O-O of 02.04.2009 "On refusal to accept for consideration the complaint of citizen Dmitry Anatolyevich Semenov on violation of his constitutional rights by part of the fourth Article 281 of the Criminal Procedure Code of the Russian Federation"; Ruling of the Constitutional Court of the Russian Federation dated 21.11.2013 No. 1880-O "On refusal to accept for consideration the complaint of citizen Vladimir Vladimirovich Kislov for violation of his constitutional rights by Part two of Article 281 of the Criminal Procedure Code of the Russian Federation"). However, the disclosure of testimony should not become something ordinary, thoughtlessly and universally applied, since it can become an obstacle to the implementation of other provisions of the Criminal Procedure Code of the Russian Federation, including the right of the defendant to an effective defense against the charge.

The International Covenant on Civil and Political Rights, adopted on 12/16/1966 by Resolution 2200 (XXI) at the 1496th plenary session of the UN General Assembly, stipulates that everyone has the right to a fair trial when considering any criminal charge brought against him (part 1 of Article 14). At the same time, as one of the guarantees of such proceedings, he points to the right of the accused to interrogate witnesses testifying against him or to have the right to have these witnesses questioned, and to have the right to summon and interrogate his witnesses under the same conditions as exist for witnesses testifying against him (paragraph "e" of Part 3 of art. 14).

The right to interrogate witnesses of the prosecution is considered as one of the possible, and quite often the most effective, ways for the defense to challenge the testimony of the interrogated person. Such an interrogation can reveal the incompleteness, inconsistency, unreliability of the testimony of the victim or witness, show his interest in the outcome of the case or establish the reasons for the defendant's reservation. Depriving a defendant of the right to interrogate a participant showing against him is depriving him of the opportunity to demonstrate to the court the inconsistency of the testimony given by the victim or witness, which can become key evidence that forms the basis of the court's conviction against the defendant. "Without the full realization of the right of the accused to interrogate witnesses against him, no state can position itself as a legal one, especially with an attitude according to which a person, his rights and freedoms are the highest value, and recognition, observance and protection of human and civil rights and freedoms is the duty of the state, as it is enshrined in Article 2 The Constitution of the Russian Federation" ^[2].

It is for this reason that Part 2.1 was included in Article 281 of the Code of Criminal Procedure of the Russian Federation, which allows to make a decision on the disclosure of the testimony of the victim or witness and on the reproduction of video recordings or filming of investigative actions performed with their participation, only if the accused (defendant) in the previous stages of the proceedings is given the opportunity to challenge this evidence in the ways provided by law. As the main method of contesting, judicial practice considers the possibility of personal interrogation by the accused of the victim or witness, primarily at the confrontation.

Unfortunately, having included Part 2.1 in Article 281 of the Code of Criminal Procedure of the Russian Federation, the legislator did not extend its effect to the announcement of the testimony of minor participants in the process in accordance with Part 6 of Article 281 of the Code of Criminal Procedure of the Russian Federation. Of course, the reasons for this decision are clear: minor participants, due to their age immaturity and mental instability, need special protection and special treatment, additional guarantees of their rights and freedoms, especially when it comes to a minor victim, for example, in cases of crimes against sexual integrity (Preamble of the Declaration of the Rights of the Child, adopted on 11/20/1959 Resolution 1386 (XIV) at the 841st plenary meeting of the UN General Assembly). However, additional protection and guarantees should be reasonable and not violate a fair balance between the interests of the two opposing parties. It is unacceptable, while protecting one side, to deprive the other side of the opportunity to defend itself effectively. Especially in criminal procedural relations, in which initially the parties of the prosecution and the defense are not equal and in which the accused, who opposes the state, also needs protection.

Therefore, it is very difficult to agree with the position of some authors who believe that in the situation under consideration, "primacy is given to more significant values than the actual right of the defendant to interrogate witnesses against him" ^[3]. And the legislator's approach, which was enshrined in Part 6 of Article 281 of the Criminal Procedure Code of the Russian Federation, "is the only correct one, since the law must protect children and adolescents who have become victims of crimes" ^[4]. The violation of balance and equality between the parties, which may cause an unfair court decision, cannot be considered as the right approach to solving the problem.

As noted earlier, the provisions of Part 6 of Article 281 of the Criminal Procedure Code of the Russian Federation are based, among other things, on the provisions of various international acts. However, the analysis of these acts allows us to conclude that the interrogation of minor participants in the trial at the court session is not prohibited and is not considered as something dangerous for the child and therefore absolutely unacceptable.

For example, the Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse" (CETS N 201), concluded in Lanzarote on 25.10.2007, stipulates that the parties to the Convention should adhere to a protective approach to victims, ensuring that the investigation and criminal proceedings do not aggravate the injury inflicted on the child (part 2 of Article 30). But at the same time, the measures taken by States to protect children should not prejudice the rights of protection and the requirements of a fair and impartial court (part 4 of Article 30). The Convention imposes on its participants the obligation to ensure, during criminal proceedings, the minimum possible number of interviews of minor victims, which is necessary to achieve the goals of criminal proceedings, but does not contain provisions prohibiting interviewing children more than once, including during court proceedings (paragraph "e" of part 1 of Article 35).

In the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crimes adopted on 22.07.2005 By resolution 2005/20 at the 36th plenary meeting of the UN Economic and Social Council, measures for the protection of minors are indicated:

- ensuring certainty about the process, including by forming a clear idea of what awaits them during the process among child victims and witnesses;

- advance planning of the child's participation in hearings and court proceedings;

- ensuring the earliest practicable terms of the trial;

- the establishment of breaks in the process of the child's testimony, the establishment of the dates of hearings at a time of day that corresponds to the age and maturity of the child, as well as the creation of an appropriate notification system that ensures that the child is summoned to court only if necessary, and the adoption of other measures to facilitate the process of the child's testimony (paragraph 30).

The guidelines also recommend:

- limit the number of interviews of children, but allow them when applying a special procedure for obtaining testimony;

- to ensure the protection of a minor from cross-examination conducted by the alleged offender, but at the same time oblige to respect the rights of the defense party (to conduct an interrogation in court, but in the absence of the defendant);

- ensure that child victims and witnesses are interrogated taking into account the interests of the child, as well as creating opportunities for supervision by judges, facilitating the process of giving testimony and reducing the likelihood of intimidation, for example, by using auxiliary means for giving testimony or appointing psychological experts (paragraph 31).

It follows from the above provisions that international acts just seek to maintain the very balance of interests of the two parties, which ensures the adversarial nature of the process, equality of the parties in the presentation and examination of evidence, as well as the fairness of the trial and the verdict of the court. Which, unfortunately, cannot be said about the Russian legislator, who created an obvious advantage in favor of one of the participants in the process (a minor).

The identified problem requires legislative regulation. Many authors associate its decision with the possibility of granting the accused the right to ask questions to a minor in pre-trial proceedings, for example, through an investigator. The defense party is invited to formulate in the request for additional interrogation of the victim (witness) their questions to him, and the answers to them should be recorded by the investigator in the interrogation protocol, which (protocol) is presented to the specified party ^[5].

A proposal is made to amend Article 191 of the Criminal Procedure Code of the Russian Federation, adding provisions that would allow the investigator to ask leading questions so that the victim answers them in one word: "yes", "no", without fixing on the details and details of the sexual violence applied to him ^[6].

There is an opinion that the right of the accused to interrogate witnesses against him for his real use in Russian criminal proceedings should be enshrined both in the Constitution of the Russian Federation in the form of a separate independent right of a citizen, and in the Criminal Procedure Code of the Russian Federation in the form of a new kind of interrogation. And this constitutional right will arise for a citizen who is in the status of an accused, if there is a witness's testimony exposing him in a criminal case ^[7].

However, such measures will not restore the balance of rights of the two sides. Thus, asking questions through an investigator will allow the defense side to ask only part of the questions, since quite often investigators remove questions (as is now happening during a confrontation), although the defense side believes that they can help in the implementation of its function. In addition, the need to raise many questions arises already during the interrogation, depending on the answers of the interrogated or his reactions to the questions posed, however, during the interrogation by the investigator, the defense side will be deprived of the opportunity to observe the interrogated and correct their questions.

Posing leading questions to a minor can distort his testimony, have an illegal effect on the interrogated (therefore, the current Code of Criminal Procedure prohibits such questions). And the inability to clarify the details and details of the violence applied to a minor will lead to the fact that his testimony cannot be verified from the point of view of their reliability (after all, knowledge of the details of what happened is often an indicator of the truth (thoughtlessness) of the testimony received from the victim or witness).

Securing at the legislative level (including in the Constitution of the Russian Federation) the right of the accused to interrogate witnesses against him will not guarantee the real realization of this right in practice. The provision enshrined in the rule of law may remain a fiction if effective mechanisms are not established to ensure its practical application.

As a possible way to solve the problem that has arisen, the interrogation of minor victims and witnesses at a court hearing in the absence of the defendant may become. The interrogation will be carried out by a defender who, due to his professional knowledge and skills, as well as work experience in criminal proceedings, will be able to do this, on the one hand, in order to protect the defendant, and on the other – correctly in relation to a minor participant in the process. At the same time, the entire interrogation process will be under the control of the court, which has the right to remove irrelevant, suggestive, incorrect questions, as well as to make comments to the defender, declare a break in the court session (if this is required in the interests of a minor) and call the specialists necessary for questioning (for example, psychologists in the field of child psychology). Such an interrogation procedure will allow to observe the interests of both parties, will help to correctly clarify all the circumstances of the case and make a fair decision based on the evidence obtained.