Private Procedural Classification in the Mechanism for Exercise of

the Rights of Participants of a Criminal Proceeding of Persons with

Disabilities

Svetlana M. Kurbatova

and Alexey G. Rusakov

Krasnoyarsk State Agrarian University, 660049, Mira Avenue 90, Krasnoyarsk, Russia

Keywords: legal technologies, criminal proceedings, participants, socially vulnerable persons, classification of

disabilities, the exercise of procedural rights.

Abstract: This article, for the first time, taking into account the compensatory approach, reveals the sequence of using

the classification of persons with disabilities as an element of legal technology, proposed to identify these

persons among the participants of criminal proceedings and resolve issues on the possibility of using a

compensatory mechanism in order to provide these participants of the criminal proceedings with equal

opportunities to exercise their procedural rights and obligations. The main elements of such a compensatory

mechanism have been created and exist in the framework of international criminal law and in the national

legislation of some states. The authors base their conclusions on social practices, indicating, that a certain

amount of the world's population (including Russia) has varying degrees of severity of cognitive disorders

and believe, that this is due to various reasons (age, medical, psychological, physiological, social, etc.). Since

these persons are periodically involved in the sphere of criminal proceedings as suspects, accused, victims,

witnesses, the article provides an analysis of the use of legal technology to resolve the issue of how to provide

them with the opportunity to participate in criminal proceedings on an equal basis with others, to defend their

interests, to receive equal access to justice, to exercise the right for defense and acquittance in case of

innocence, the right for a fair punishment for offense, etc. The authors note the absence of guarantees, secured

in legislation, that ensure the opportunity of full exercise of their rights and procedural technologies for

leveling the legal status of participants of criminal proceedings of persons with disabilities, which leads to a

violation of a number of rights and legal principles, secured in both Russian legislation and at international

legal level. In this article, the authors justify the thesis, that the legal technology under study is based on a

complex of definitions, classifications and the sequence of their practical implementation

1 INTRODUCTION

Human rights issues are relevant because of their

importance. Of particular relevance are the problems

of securing the rights of persons with disabilities, who

need for creation of additional conditions for the

opportunity to exercise their rights as a participant of

legal relations (Vasilieva, 2010). However, in

addition to the rights themselves, the mechanism for

the exercise of these rights is also important through

the provision of special guarantees. This highlights

legal technology in the context of enforcing the legal

status of persons with disabilities. The executor of

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law, when implementing a number of regulations of

the branches of Russian law, runs into certain

difficulties, associated with the legal confirmation of

such legal technologies. This is especially evident in

the sphere of the criminal procedural legislation.

1. Social practices indicate, that a certain amount

of the world's population (including Russia) has

varying degrees of severity of cognitive disorders.

This is due to various reasons (age, medical,

psychological, physiological, social, etc.). Since these

persons are periodically involved in the sphere of

criminal proceedings as suspects, accused, victims,

witnesses, the article provides an analysis of the use

Kurbatova, S. and Rusakov, A.

Private Procedural Classiﬁcation in the Mechanism for Exercise of the Rights of Participants of a Criminal Proceeding of Persons with Disabilities.

DOI: 10.5220/0010662100003224

In Proceedings of the 1st International Scientiﬁc Forum on Jurisprudence (WFLAW 2021), pages 72-76

ISBN: 978-989-758-598-2

of legal technology to resolve the issue of how to

provide them with the opportunity to participate in

criminal proceedings on an equal basis with others, to

defend their interests, to receive equal access to

justice, to their defence, exercise the right for

acquittance in case of innocence, the right for a fair

punishment for offense, etc. The absence of

guarantees, secured in legislation, should be noted,

that ensure the opportunity of full exercise of their

rights and procedural technologies for leveling the

legal status of participants of criminal proceedings of

persons with disabilities, which leads to a violation of

a number of rights and legal principles, secured in

both Russian legislation and at international legal

level.

2. At present, the current Russian criminal

procedural legislation does not distinguish this group

of participants of criminal proceedings as a special

category of persons. It lacks the institution of criminal

procedural capacity (Tkachenko, A.A., Morozova,

M.V., Savina, 2014). Also, the concept of limited

legal capacity is not secured in legislation, as a result,

the legislator does not provide cognitively vulnerable

persons with additional procedural guarantees, aimed

at leveling their procedural status in comparison with

other participants. In view of the fact, that Russia is

in the process of building a legal social state, this

situation is intolerable, since the constitutional rights

and freedoms of all participants of criminal

proceedings must be exercised equally and in full.

3. It should be noted, that the procedural status of

this group of persons (vulnerable) in the Russian

criminal procedure legislation is not fully reflected,

and in science it is not fully studied (Potapov, 2019).

Also, there are no guarantees, secured in legislation,

that ensure the opportunity of the full exercise of their

rights and the leveling of the legal status of

participants of criminal proceedings of persons with

disabilities, which leads to a violation of a number of

rights and legal principles, secured in both Russian

legislation and at international legal level (Bertovsky,

2017).

4. In the Russian criminal procedure, there are a

number of problems, related to the determination of

the legal status of participants of criminal proceedings

of persons with disabilities. First of all, this refers to

the categories of citizens who can be classified as

“cognitively vulnerable” according to medical or

social criteria due to the fact, that the level of work of

the cognitive functions of brain activity is

insufficient, as a result of which, their cognitive

abilities are more limited in comparison with

individuals, whose cognitive functions are fully

implement independently (Merkulov, 2005). Or if

some participant of criminal proceedings has physical

limitations, that do not allow him to take full personal

participation in criminal proceedings. At the same

time, persons of such a category as “vulnerable” or

“with disabilities” regularly take part in criminal

proceedings as suspects, accused, witnesses and

victims.

Therefore, the purpose of this research is to study

the algorithm of legal technologies to secure the

rights of participants of criminal proceedings of

persons with disabilities, to find ways to resolve them

and to formulate practical proposals for improving the

mechanism for their exercise. At the same time, the

authors initially deny the thesis, that this category of

persons of the suspects, accused in criminal cases

should receive priority opportunities to escape

criminal liability or be exempted from criminal

liability for the crimes committed. We believe that

physical, mental, psychological, physiological, and

other disabilities can only affect the mitigation of the

imposed criminal punishment or the possibility of

applying, in some cases, other measures of criminal

law enforcement provided for by the current Russian

legislation. The authors base their position on the

compensatory approach, which allows ensuring the

maximum equal opportunities for participation of the

specified group of persons, without diminishing

rights of other participants of criminal proceedings.

2 METHODOLOGY

The research was carried out using general scientific

and private methods. Theoretical methods were such

as: analysis, synthesis, deduction, induction,

classification, etc. As empirical methods, the authors

used the study of information sources, questionnaires,

interviews and polls.

3 RESULTS

As a result of studying literature sources, practice

materials, and taking polls, the authors form four

aspects of the problem they raise:

1. Russian criminal procedure legislation

currently lacks a detailed algorithm for identifying

participants of criminal proceedings of persons with

disabilities and providing persons of this category

with appropriate compensatory guarantees. There is

no detailed procedural mechanism, that allows

equalizing their abilities with those of other

participants and ensuring the ability to independently

Private Procedural Classiﬁcation in the Mechanism for Exercise of the Rights of Participants of a Criminal Proceeding of Persons with

Disabilities

exercise their rights and obligations in criminal

proceedings.

And although this mechanism is anyhow

implemented in practice in the case of involvement of

such participants in the criminal procedural sphere,

the executor of law takes actions in any case, makes

decisions, aimed at protecting their rights. However,

this is often carried out de facto (executors of law use

certain details of this technology), since de jure,

legally, there is no legal confirmation of procedural

technologies for identifying such persons,

determining the level of their disabilities, making

decisions about the possibility or impossibility of

their direct participation, etc.

2. There are shortcomings in the existing legal

terminology - often the terms that should contain the

definitions necessary for the executor of law are

absent. Or they exist, but their definitions are not

complete enough. Also, not always the same

concepts, used in different branches of law, are

defined in the same way (for example, “legal

representative”, “dwelling”, etc.).

There is a general understanding, that a number of

categories of citizens, due to their disabilities, in the

event of falling into competence of criminal

procedural regulations, need to be provided with

procedural remedies of a compensatory nature.

However, there are no corresponding definitions in

the Criminal procedure code. In procedural and other

legal literature, different terms are used in relation to

the research topic: “vulnerable”, “socially

vulnerable”, “persons with disabilities”, “persons

with cognitive disabilities”, “socially unprotected”,

“socially significant” etc. (Solso, 2006, Merkulov,

2005, Shestakov, Svintsov and Rocheva, 2015,

Trashkova, 2015). The lack of legislative

confirmation of terminology, firstly, disorientates the

executor of law, secondly, causes difficulties in

practice, and thirdly, creates a threat of violation of

the rights of such persons in view of their incorrect

attribution/non-attribution to this category of parties

to the criminal proceedings.

3. There is no scientifically developed and

practically tested classification of such participants,

which makes it difficult to use existing legal

technologies to identify such participants of criminal

proceedings and, as a consequence, provide them

with further procedural remedies of a compensatory

nature.

The authors believe, that for the successful

operation of the mechanism for the enforcment of the

legal status of participants of criminal proceedings of

persons with disabilities, it is necessary:

- to develop a classification of such persons,

taking into account the special features of their

criminal procedural status;

- to form the appropriate scientific and practical

terminology and legislatively confirm it;

- to procedurally confirm a number of procedural

technologies of a compensatory nature, aimed at

exerciseing the rights of participants of criminal

proceedings of persons with disabilities;

- to teach executors of law to use these

technologies in order to ensure maximum protection

of the procedural rights of participants of criminal

proceedings of persons with disabilities.

4 DISCUSSIONS

First of all, we believe it is necessary to detail the

subjects according to the severity of their limitations,

to study the characteristics of each group, to establish

a compensatory mechanism in order to develop the

appropriate technology and develop the necessary

legal terms.

The technology of legal work with these persons,

according to the authors, consists of three interrelated

stages:

1) identifying the subject's signs of limiting his

ability to exercise his rights as a participant of

criminal proceedings in full, determining the form,

type and severity of these limitations;

2) search, establishment and development of a

compensatory mechanism in relation to a specific

subject, taking into account the circumstances of the

case, including answers to questions:

- is a compensatory mechanism possible in this

case;

- if so, what procedural remedies of a

compensatory nature can “level” the limited abilities

in the exercise of their rights;

- if not, then decide, whether to replace this person

with another (legal representative) or to terminate the

criminal proceedings or to make another final

decision on the case.

3) the implementation of a compensatory

mechanism at each stage of the criminal process,

taking into account its characteristics (pre-trial,

judicial stages, special proceedings) to achieve the

goals of criminal proceedings.

The authors propose the technology in the form of

a consistent application of the following classification

criteria:

1) procedural, related to the determination of the

procedural status of a person with disabilities as a

participant of criminal proceedings (the authors draw

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attention to the need to take into account the

differences in the legal status of different participants

- suspect, accused, victim, witness, etc.);

2) time - when this limitation arose and is it

possible, that in the future the person will come out of

this condition (if so, how soon and whether it will be

during this proceedings) or is it permanent.

3) comprehensive - determining the type of

disabilities, for example:

- physical limitations (completely deprives of the

opportunity to personally participate in legal

proceedings or only limits):

* affecting the cognitive abilities of the person;

* not affecting the cognitive abilities of the

person;

- mental:

* affecting the cognitive abilities of the person;

* not affecting the cognitive abilities of the

person;

- physiological:

* affecting the cognitive abilities of the person;

* not affecting the cognitive abilities of the

person;

- mixed (to what extent it affects the possibility of

participation of the subject in criminal proceedings):

* affecting the cognitive abilities of the person;

* not affecting the cognitive capabilities of the

person.

4) by the severity (expression) and the possibility

of compensation: is it possible to “level” the limited

abilities of a given participant in the exercise of his

rights and, if so, with what procedural remedies of a

compensatory nature this can be done.

5) by possibility of the use of technical means of

a compensatory nature. It should be considered, what

technical means in the framework of criminal

proceedings should be used to level the abilities for

such persons to exercise their rights.

All these stages of the algorithm for the

application of legal technology in securing the rights

of participants of criminal proceedings of persons

with disabilities should be applied in this sequence.

In this regard, we draw attention to the need for an

executor of law to acquire the appropriate knowledge

and skills for its use, since this is a prerequisite for the

possibility of using this technology with the

achievement of the maximum effect from it.

So, the identification at the first stage of the signs

of cognitive limitation in a participant of criminal

proceedings, his ability to exercise his rights entails

the emergence of different options for using the

compensatory mechanism, for the optimal choice of

which it is necessary to rely on special knowledge.

This will allow selecting the most optimal

compensatory mechanism, for example:

- appoint a legal representative;

- provide technical means (magnifier or other

magnifying device, deaf aid, video conferencing,

etc.);

- engage a competent specialist: sign language

interpreter, gerontologist, psychologist, etc.

(Kurbatova, 2020).

Therefore, it is necessary to conduct special

training of executors of law exercising state and

authoritative powers in the field of criminal

proceedings (as well as other persons, involved in it

on a professional basis, in particular, lawyers,

translators, etc.), in order to acquire the necessary

knowledge for the initial identification of such

persons among the participants of criminal

proceedings, determining the form, type and degree

of cognitive limitations. In the future, this will make

it possible to decide, whether these persons should be

sent to specialized medical and other institutions for

examination. That is why inspectors, interrogators,

procurators, judges are subject to special retraining to

acquire skills to identify signs of cognitive limitations

for the use of compensatory mechanisms. Other

participants of criminal proceedings, experts,

specialists, defense lawyers, translators, legal

representatives should have a set of necessary

knowledge to secure the rights of participants of

criminal proceedings of the category under

consideration.

5 CONCLUSIONS

Based on the research, the following can be noted.

1. The studied legal technology is based on a

complex of definitions, classifications and the

sequence of their practical implementation.

2. The sequence of using the classification of

persons with disabilities, proposed by the authors, is

an element of the legal technology, proposed to

identify these persons among the participants of

criminal proceedings and resolve issues on the

possibility of using a compensatory mechanism in

order to provide these participants of the criminal

proceedings with equal opportunities to exercise their

procedural rights and obligations.

3. The sequence of using the criteria for the

classification of persons with disabilities, proposed

by the authors, is an element of legal technology to

identify these persons among the participants of

criminal proceedings to resolve issues on the use of a

compensatory mechanism in order to secure their

rights.

Private Procedural Classiﬁcation in the Mechanism for Exercise of the Rights of Participants of a Criminal Proceeding of Persons with

Disabilities

To implement this technology, the authors

propose the use of the following sequential chain of

classification criteria for the category of persons

under consideration: procedural, time,

comprehensive, by the severity (expression) of

limitations and possibility of compensation,

possibility of use of technical means of a

compensatory nature.

4. The authors believe, that it is necessary to

expand the possibilities for the procedural

participation of specialists of various fields

(psychologists, gerontologists, teachers, etc.). At the

same time, these persons should have knowledge for

identifying signs of cognitive limitations of the

abilities of participants in criminal proceedings and

establishing interaction with certain categories of

cognitively vulnerable persons.

6. The research and practice study of this topic is

important for the purpose of doctrinal filling of the

content of the special criminal procedural status of

persons with disabilities, its approbation in practice

and legislative consolidation in order to ensure equal

opportunities for them to exercise and protect their

rights and legitimate interests in criminal proceedings

(compensatory approach). It should be noted, that

issues, related to the imposition of punishment to

cognitively vulnerable persons, who have committed

crimes, are of practical interest; which persons from

this category are entitled to rely to a greater extent, in

comparison with fully capable persons, on mitigation

of their punishment or to impose other criminal law

penalties (educational, medical, restrictive, etc.) to

them (Safronova, 2016).

7. It is necessary to differentiate the terms:

"criminal procedural capacity", "incapacity" and

"cognitive vulnerability" ("limited cognitive

abilities") as entailing different consequences in

terms of legal evaluation of these conditions.

8. The status of cognitively vulnerable

participants should correlate with the responsibilities

of persons, exercising state and power functions in

this sphere. This requires the latter to have special

additional knowledge.

Therefore, according to the authors, an additional

guarantee for such a category of participants of

criminal proceedings should be the introduction of

special professional training (and retraining) of the

following subjects: inspectors, interrogators,

procurators, judges.

This approach, according to the authors, should be

diffused to the side of professional defense and legal

representation: the involvement of victims as defense

lawyers and representatives should also be considered

from the point of view of most-favored treatment for

their clients of persons with disabilities.

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