Standards of implementation of the right to appeal and review of interlocutory decisions rendered at the pre-trial stage of criminal proceedings
Authors:   Tomsk State University (Tomsk, Russian Federation), Gertsen Polina O. , Trubnikova Tatyana V. ,   National Research Tomsk State University
Published: February 2023

Under Article 46 of the Russian Constitution, everyone is guaranteed judicial protection of his or her rights and freedoms. This right must also be realised in criminal proceedings, including during the pre-trial stage of the proceedings. At the same time, the Constitutional Court of the Russian Federation has not formulated in sufficient detail how the right to judicial protection should be realised in the course of the court's interlocutory ruling and its review. In searching for standards for the implementation of the right to appeal and review of interlocutory decisions rendered at the pre-trial stage of criminal proceedings, the authors refer to the provisions of the European Convention as interpreted by the ECHR as legal provisions correlating with the human rights enshrined in the Russian Constitution. For this purpose, more than 50 ECHR judgments and the positions of contemporary domestic and foreign legal scholars have been studied. The authors identified a list of standards of the Convention applicable in case of violation of the right to appeal and interlocutory review, which include the standards guaranteeing protection of fundamental individual rights: Article 5 (right to liberty and security of person), Article 8 (right to respect for private and family life, home and correspondence), Art. 1 Protocol No. 1 (right to protection of and respect for property) as well as the rules laying down the minimum requirements for appeal or review procedures: Article 5(4), Article 6 (right to a fair trial), Article 13 (right to an effective remedy). An analysis of the ECHR legal positions laid down the requirements for an appeal or review procedure against a court decision on "deprivation of liberty" (remand in custody, house arrest, prohibition of certain actions, placing a person in a hospital for forensic medical or forensic psychiatric examination). Such a procedure must meet minimum fair trial standards and be urgent and effective. The authors also substantiate the identification of general and specific standards of effective remedy in relation to the procedure of appeal and review of interlocutory decisions rendered at the pre-trial stage of criminal proceedings. Thus, the procedure will be effective if it is accessible, sufficient and expeditious and if the appeal and review of the interlocutory decision can result in the reversal of the appealed decision and the "rectification of the disputed situation". Private standards apply to cases of appeal and review of specific interlocutory decisions that are made in secret, e.g. an order to monitor and record telephone conversations, obtain information on connections between subscribers and subscriber devices, etc. In such cases, the moment the right to an effective remedy arises is linked to the moment when the person becomes aware (is notified) of the procedural actions taken. On the basis of the analysis of the ECHR legal positions, proposals for improving the criminal procedure legislation were formulated. The authors declare no conflicts of interests.