Investigating judge as a guarantor of the principle of adversarialism at the stage of pre-trial investigation: analysis of international experience

The article examines the problems associated with a possible change in the institution of judicial control in criminal pre-trial proceedings. It is stated that judicial control can be more effective if its efforts are focused on decisions which are consistent with the role of the court in adversarial criminal proceedings. The focus of judicial control is not just to ensure the legality of actions of the inquiry and investigative bodies, but also to guarantee the equality of the prosecution and defence parties during pre-trial proceedings. The author conducts a comparative legal study of foreign criminal procedure legislation, where in recent decades there have been significant changes in the court’s control function due to the introduction of a new participant to the criminal process - an investigating judge. The article analyses the approaches of foreign legislators to the essence and role of the institute of investigating judge in criminal proceedings, disclosure of powers and functions of an investigating judge, and also the procedure for acquiring the status of an investigating judge. It is determined that in France, an investigating judge performs investigative and judicial functions, and a judge for the control of liberties and detention performs judicial control functions. Currently, in Belgium, investigating judges are essentially pre-trial investigation bodies, but attached to courts of first instance. In Spain, the investigating judge exercises judicial control over measures of procedural coercion, considers complaints against decisions and actions of pre-trial proceedings. In Germany, the so-called ‘district judge’ actually exercises the powers of an investigating judge as an ‘inquiring judge’. They are directly involved in proving, introducing an element of competition into the process and strengthening the reliability of judicial evidence. The author concludes that this activity differs from the national model by more detailed regulation, including in the interests of the defence, with a general focus on the protection of individual rights, exclusion of accusatory bias and availability of effective guarantees for this.