Ekaterina Trifonova, Political Correspondent, Nezavisimaya Gazeta
In Russia’s criminal justice system, the principle of adversarial proceedings is formally proclaimed but remains far from reality: the defence is placed in an inherently unequal position relative to the prosecution. Legal professionals are discussing various ways to achieve procedural equality. One proposal involves introducing the concept of a ‘defence opinion’ submitted by defence lawyers, which courts would be required to examine alongside the prosecution’s indictment materials. This is one attempt to compensate for what critics describe as the narrative character of Russia’s ‘accusatory justice’ system. However, the limited prospects for such initiatives are illustrated by another example: even a presidential proposal to strengthen adversarial principles in forensic examinations has yet to be implemented.
As Nezavisimaya Gazeta has learned, lawyer Oleg Sychev has proposed introducing a ‘defence opinion’ into criminal proceedings. Under the idea, courts would be obliged to analyse this official defence document in detail alongside the indictment prepared by investigators. According to the proposal, every argument presented by the defence would receive the same level of detailed consideration as the prosecution’s case. Sychev is currently writing a doctoral dissertation in which the proposed institution forms one of the key ideas
However, Alena Grishkova, partner at the Pen & Paper legal practice, told Nezavisimaya Gazeta that the current procedural code already contains an analogue to such an ‘defence opinion’. It exists in the form of closing arguments, which are submitted in writing and attached to the case file. It is during these arguments, she said, that ‘the defence presents its position and evaluates the evidence examined during the trial’. Moreover, Article 292 of Russia’s Criminal Procedure Code explicitly grants participants in closing arguments the right to submit proposed formulations for judicial decisions concerning the existence of a crime and the guilt of the defendant. From that perspective, she argued, the new proposal would simply duplicate an existing mechanism.
The real issue, however, is that courts often ignore the adversarial nature of closing arguments in practice, frequently copying indictments directly into verdicts. According to Grishkova, this ‘illegal and harmful practice’ has become entrenched despite the Criminal Procedure Code and the Supreme Court of Russia requiring courts to rely solely on evidence examined during trial proceedings, including witness testimony heard in court and physical evidence formally reviewed there.
Retired federal judge Sergei Pashin said Russia’s judicial system is not yet prepared for genuine adversarial proceedings. Therefore, he argued, the idea of a ‘defence opinion’, despite its superficial appeal, would inevitably encounter serious implementation problems. More importantly, if the defence were required to submit such a document before trial, prosecutors would gain advance access to the defence’s strategy and evidence. Currently, lawyers are not obliged to reveal their arguments before court proceedings begin and may, for example, unexpectedly produce an important witness. ‘Pre-trial disclosure of defence arguments works against the privileges of the defence side,’ Pashin said. At the same time, he acknowledged that mutual disclosure procedures do exist in both Anglo-Saxon and continental legal systems, including in Italy.
But such systems function properly only where parallel investigations exist, which is something Russia effectively lacks. Without that foundation, Pashin argued, requiring the defence to disclose evidence in advance would only worsen its position. Abroad, he explained, defence lawyers can hire private investigators who are not obliged to report their findings to prosecutors. Such investigations are expensive and therefore mainly accessible to wealthier defendants. However, some US states offset this imbalance through special public funds that reimburse investigative expenses, significantly lowering the financial barrier for effective defence work. American lawyers are also professionally obligated to actively interview witnesses even if clients are unable to pay. Failure to do so can result in accusations of incompetence or betrayal of a client’s interests.
Russia operates differently. Lawyers are under no obligation to independently contact witnesses. Even when the defence hires a private investigator, that investigator must report their involvement to investigators, making genuine parallel investigations ‘virtually impossible under strict compliance with the law’, Pashin said. On top of that, such expenses are not reimbursed as legal costs. According to Pashin, the academic proposal merely reflects a deeper structural problem: the absence of genuine equality between prosecution and defence. A separate but related issue concerns adversarial forensic examinations. Pashin recalled that Russian President Vladimir Putin raised the issue in 2020 as part of efforts to strengthen adversarial principles in criminal proceedings. He instructed the Supreme Court to prepare draft legislation, and a preliminary version was eventually produced. Since then, however, no progress has been made. The proposal’s core idea was to allow the defence, at state expense, to appoint independent experts capable of challenging prosecution forensic reports.
Such adversarial expert examination procedures already exist in many countries. Describing his observations of British court practice, Pashin said forensic evidence there is genuinely scrutinised rather than simply read aloud and accepted automatically. ‘It is not just rapid reading of reports,’ he said. ‘The methodologies themselves are examined and analysed from both sides. Experts discuss whether their conclusions are scientifically supported, whether the methods are outdated and whether alternative viewpoints exist.’ According to Pashin, such a procedure would also benefit Russia, provided that expert expenses could be reimbursed through court costs.
ORIGINAL: NG/Narrative Justice Prevails Despite the Constitution
