Some Aspects of Improving the Proof in the Court’s Consideration of Materials Under Article 165 of the Criminal Procedure Code of the Russian Federation
Authors:   Sovetsky District Court of Bryansk (Bryansk, Russian Federation), Ustinov Artem A. 
Published: February 2021

The court’s consideration of petitions under Article 165 of the Criminal Procedure Code of the Russian Federation is the most popular and common form of judicial control at the pre-trial stage of a criminal procedure. Decisions on these petitions provide for the observance of public interests to ensure the investigation of a criminal case and the establishment of all legal circumstances and private interests of citizens to protect their constitutional rights and freedoms. This relationship between public and private interests determines special attention to the proof of facts when considering this category of materials since the proof is the basis for making a court decision. This type of judicial control aims at establishing facts that confirm the existence of procedural grounds for the investigative action indicated in the petition and – given the focus of the investigative action on restricting constitutional rights and freedoms – the involvement of the person, the object of this investigative action, in the crime on the fact of which a criminal case has been initiated. In proving, an actual link is to be established between the person concerned and the legal grounds for the requested investigative action. Otherwise, in the absence of facts related to the circumstance in proof, there are no grounds for conducting investigative actions. For the correct proof of facts, the judge must correctly determine all specific facts confirming procedurally sufficient grounds for conducting a specific investigative action and the parties involved, and, based on the results of the verification of the compliance with the requirements of the criminal procedure law when filing a petition and with the grounds for conducting the investigative action indicated in it, make a procedural decision in accordance with the “sufficient reason” evidentiary standard. In order to increase the efficiency of going to court and court’s considering these materials, it is advisable to fix in law the possibility of sending such petitions, supporting materials and the prosecutor’s decision on their validity to the court in electronic form, and of their resolving by the judge without the parties’ participation outside the adversarial procedure. In addition, in order to optimize the specified procedure for considering the petitions of the preliminary investigation body, the judge must have the technical opportunity to promptly receive electronic information regarding the special status of persons that are objects of the petition, ownership of property, cadastral value of real estate, information on declaring persons bankrupt, which excludes executive actions against them. Taking into account the lack of adversariality and the requirement of complying with private and public interests, in order to verify the validity of the investigative action declared in the petition, the judge, if there is this technical opportunity, can establish compliance with the procedure for initiating a criminal case, approval on the petition in relation to certain categories of persons listed in Article 447 of the Criminal Procedure Code of the Russian Federation, the proportionality of the value of the property subject to seizure, the amount of possible property penalties, the correct determination of the composition of the participants in the petition under consideration, and other issues of compliance with the requirements of the criminal procedure law on the petition. In order to prevent arbitrary use of information databases, a special program (including AI-based) should be developed forautomatic control over the correspondence of the requested information to the date of consideration and the circle of persons (property) indicated in the petition. In modern conditions, the introduction of the proposed electronic opportunities for resolving petitions will contribute to the improvement of the criminal procedural proof when the court considers materials in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation and to the greater effectiveness of this type of judicial control in order to ensure citizens’ constitutional rights to judicial protection.