Article 74 of the Code of Criminal Procedure of the Russian Federation. Proof

Article 74 of the Code of Criminal Procedure of the Russian Federation. Evidence (current edition)

1. The content of evidence is any information with the help of which circumstances that are subject to proof in criminal proceedings can be established (Article 73), as well as other circumstances relevant to the criminal case. It seems that the term “information” in the definition of evidence indicates that evidence is not initially considered as facts, i.e. definitely reliable information. They are subject to review by the court and the parties and may be assessed differently. In other words, the reliability of information is not a necessary feature of evidence - the information contained in the evidence may indicate the circumstances sought in the case and with probability. As a rule, a conclusion about the reliability of this information can be made only after a final assessment of a certain body of evidence. In addition, information is information received only from a person. This means that the source of evidence is always one person or another. This conclusion is especially important for the concept of physical evidence. See comment. to Art. 81 of this Code.

2. According to the definition of evidence given in Part 1 of the commented article, the circumstances to be proven are established through evidence not only by the court, but also by the prosecutor, investigator and investigator. In other words, information obtained during the preliminary investigation and in court proceedings is equally recognized as evidence in this article. However, one should not assume that all the evidence obtained by the prosecutor, investigator, interrogator, i.e. by the prosecution have equal procedural status with evidence obtained directly in court. So, according to Part 1 of Art. 276 and part 1 of Art. 281, the disclosure of the testimony of a victim and witness who did not appear at the court hearing, given, in particular, during the preliminary investigation, can, as a general rule, only take place at the request and with the consent of the parties. This means that the protocols of interrogations of these persons, obtained, in particular, during the preliminary investigation, usually cannot be disclosed and used in court proceedings on a par with the testimony of defendants, victims and witnesses given directly in court proceedings, if at least one of the parties (in including the defense) objects to this. In other words, the law provides for at least two types of evidence that have unequal legal force, namely evidence collected at the pre-trial stages of the process and judicial evidence itself. See also the comment about this. to Art. Art. 276, 281, 377 of this Code.

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Due to the fact that the prosecutor currently does not have the right to participate in investigative actions, his establishment of the circumstances of the case on the basis of evidence is apparently only possible if he returns the criminal case to the inquirer or investigator with his written instructions on conducting an additional investigation and changing the scope of the charges (p 15, part 2, article 37, clause 2, part 1, article 221, clause 2, part 1, article 226).

3. In part two comment. Articles mention as evidence only the testimony of the suspect, accused, testimony of the victim, witness; conclusion and testimony of an expert, conclusion and testimony of a specialist; material evidence, protocols of investigative and judicial actions and other documents. However, other norms of the Code also include testimony and explanations of the civil plaintiff (clauses 3, 5, part 4, article 44), testimony and explanations of the civil defendant (clauses 3, 5, part 2, article 54), testimony expert with an explanation and addition to the conclusion given by him (Articles 80, 282).

Comment source:

Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition

SMIRNOV A.V., KALINOVSKY K.B., 2009

Why is inadmissible evidence acceptable?

If laws could speak out loud, the first thing they would complain about was the lawyers. D. Halifax

Let's consider other positions of the adopted Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 19, 2017 No. 51 “On the practice of applying legislation when considering criminal cases in the court of first instance (general procedure of legal proceedings)” regarding the inadmissibility of evidence (the first part of the material can be found by clicking on the link ).

Paragraph 5 of the resolution states: “Motions received before the start of the consideration of the case or stated in the preparatory part of the court session for the calling of new witnesses, experts, specialists, for the demand of material evidence and documents or for the exclusion of evidence obtained in violation of the requirements of the criminal procedure law , as well as petitions related to determining the circle of participants in the trial and the progress of the case (on recognition as a victim, a civil plaintiff, on postponing or suspending the trial, termination of the case, etc.) are resolved immediately after their application and discussion.”

This position of the Plenum of the RF Armed Forces meets the requirements of Part 1 of Art. 121 of the Code of Criminal Procedure of the Russian Federation that the petition is subject to consideration and resolution immediately after its application.

This prevents the widely spread judicial-prosecutor's tricks that the petition was filed prematurely, the evidence has not yet been examined, etc., which is accompanied by the possibility of postponing the consideration of the petition until going to the deliberation room to announce the verdict. Thus, inadmissible evidence is unreasonably allowed to be examined during a judicial investigation, when it should be excluded at earlier stages.

However, further in the same paragraph it is stated: “In the absence of sufficient data necessary to resolve the petition in this part of the trial, the judge has the right to invite the parties to submit additional materials in support of the stated petition and assist them in obtaining such materials, as well as take other measures, allowing a lawful and justified decision to be made, provided for in Part 2 of Article 271 of the Code of Criminal Procedure of the Russian Federation.”

I believe that the clarification made could relate to the resolution of other requests (for example, to call a witness whose address is unknown), but not requests to exclude evidence, for which the request for additional data is not required. Controversial evidence is always found in the materials of the criminal case, and the task of the court is to immediately check it for admissibility.

The above position of the Plenum of the RF Armed Forces is bad in that if the judge wants to evade the resolution of the submitted petition to exclude evidence, he will be able to postpone its consideration under the far-fetched pretext of the need to provide additional data. And the construction “in the absence of sufficient data” leaves room for judicial subjectivity.

In such a situation, the task of the defense is to demand resolution of the petition directly, as prescribed in Part 1 of Art. 121 of the Code of Criminal Procedure of the Russian Federation, and at the same time prove that there is no need to request additional materials.

The arsenal of negative possibilities is contained in paragraph 6 of the resolution: “On those issues that are specified in part 2 of Article 256 of the Code of Criminal Procedure of the Russian Federation, the court issues a resolution or determination in the deliberation room in the form of a separate procedural document, which is signed by the entire composition of the court. Other issues may be resolved by the court, at its discretion, both in the deliberation room and in the courtroom with the entry of the adopted resolution or ruling into the minutes of the court session. In all cases, the court decision must be reasoned and announced at the court hearing.”

In accordance with Part 2 of Art. 256 of the Code of Criminal Procedure of the Russian Federation, petitions to exclude evidence are not included in those issues that are considered by the court in the deliberation room and which are presented in the form of a separate procedural document signed by the judge. In this regard, the Plenum of the Armed Forces of the Russian Federation invites judges to decide for themselves whether to consider such petitions in the deliberation room or in the courtroom with the entry of the adopted decision into the minutes of the court session. And this, in my opinion, is a serious problem.

In the courtroom, it is possible to resolve a request, for example, to question an expert, which does not require special intellectual effort. But petitions to exclude evidence, as a rule, are voluminous, may contain a list of procedural violations on dozens of sheets, require careful verification, taking into account not only the norms of the Code of Criminal Procedure of the Russian Federation and other laws, but also judicial practice, comparison of the positions of the defense and prosecution, etc. Resolving motions to exclude evidence based on time costs is sometimes no different from passing a verdict and is a very labor-intensive task.

Is it possible to resolve such motions by conferring on the spot and without going to the deliberation room?

It seems that even the most brilliant judges, after hearing a voluminous petition, are not able to immediately figure out whether it is justified or not and impromptu announce a reasoned ruling.

It is no coincidence that the Constitutional Court of the Russian Federation in its Ruling of July 12, 2005 No. 323-O “On the refusal to accept for consideration the complaint of citizen Vladislav Igorevich Sheichenko about the violation of his constitutional rights by Articles 17, 88, 234 and 235 of the Criminal Procedure Code of the Russian Federation” emphasized: “There are no grounds for accepting V.I.’s complaint for consideration. Sheichenko and in the part concerning challenging the constitutionality of Articles 234 and 235 of the Code of Criminal Procedure of the Russian Federation as not providing for the need to make a separate decision on declaring evidence inadmissible, since the very presentation of the judge’s conclusions regarding the admissibility or inadmissibility of evidence is not in the form of a separate procedural decision, but as a component parts of the decision made as a result of the preliminary hearing (in particular, on the appointment of a court hearing) do not violate the constitutional rights of the applicant. The need for a judge to make a written decision on a party’s request to declare evidence inadmissible, as well as the procedural procedure for making such a decision, contrary to the opinion of the applicant, is established both by the contested and other norms of the criminal procedure law, including Article 236 of the Code of Criminal Procedure of the Russian Federation .”

It should be recalled that, in accordance with the requirements of Part 4 of Art. 236 of the Code of Criminal Procedure of the Russian Federation, “if the judge grants a petition to exclude evidence and at the same time schedules a court hearing, then the decision indicates what evidence is excluded and what materials of the criminal case that justify the exclusion of this evidence cannot be examined and announced at the court hearing and used in the process proof."

Although this procedural rule applies to the preliminary hearing, there is no reason to ignore it at later stages of the trial.

The Supreme Court of the Russian Federation actually allowed judges to independently decide when to retire to the deliberation room and when not. Using this clarification, judges will be able to make decisions on complex petitions to exclude evidence without going to the deliberation room, without giving answers to all the arguments of the petition, limiting themselves to general phrases, only formally giving their resolution a motivated appearance. Every practicing lawyer will be able to give a lot of examples when judges did this before the adoption of the decision of the Plenum under consideration.

It would seem that the current procedural rules do not relieve the judge from the obligation to make a lawful, reasoned and substantiated judgment on the stated petition to exclude evidence, for example, in a verdict. However, I have not yet encountered a single appeal ruling that overturned the verdict of the trial court due to improper consideration of these petitions.

The proposed free approach to the procedure for resolving requests to exclude evidence obtained in violation of the law will, in practice, aggravate the emerging crisis of this procedural institution.

It is necessary to evaluate positively paragraph 13 of the resolution, according to which “the courts should keep in mind that the rules established in part 4 of Article 235 of the Code of Criminal Procedure of the Russian Federation for a preliminary hearing, according to which, when considering the defense’s request to declare evidence inadmissible on the grounds that it was obtained in violation of the requirements of the criminal procedure law, the burden of refuting the defense’s arguments rests with the public prosecutor, and in other cases the burden of proof lies with the party filing the petition , and extends to the trial.”

If we simplify the complex construction of this sentence, it turns out that the burden of refuting the arguments of a motion to exclude evidence made by the defense falls on the public prosecutor, regardless of the moment of the statement.

The Plenum of the RF Armed Forces thereby drew the attention of prosecutors to the need to conscientiously fulfill their procedural duties, emphasizing the existence of a problem. However, mere confirmation in the ruling of the well-known and seemingly indisputable rule on the evidentiary presumption is not enough for its implementation in practice.

We have repeatedly witnessed how state prosecutors, in response to reasoned requests from the defense to exclude evidence, responded with lightning speed and simplicity: “The request cannot be granted, since all the evidence was obtained in accordance with the law, and there are no grounds to exclude it,” thereby shifting the responsibility of refuting the arguments of the petition to the court.

Those judges did the right thing who obliged prosecutors to prepare written objections to all arguments in the defense's motion, but such cases were rare.

Unfortunately, the Plenum of the RF Armed Forces did not take advantage of the opportunity to solve a long-standing problem. He could point out that the burden of refuting the arguments of the defense, which is placed on the public prosecutor, is understood as challenging all or the most significant arguments of the petition. In the event that the assigned part 4 of Art. 235 of the Code of Criminal Procedure of the Russian Federation, the procedural obligation has not been fulfilled; the court makes a decision in the interests of the party filing the petition.

This would be enough to revive the necessary, but so far only declarative procedural norm, to intensify the activities of public prosecutors, to facilitate the work of judges and thereby organize real competition between the parties when resolving such petitions.

If the Judicial Department of the Supreme Court of the Russian Federation had conducted statistical research and counted how many cases the defense had filed motions to exclude evidence and how many of them had been granted, then I’m sure we would have gotten a sad result.

Summing up, we have to state that the Plenum of the RF Armed Forces did not create conditions for the practical implementation of the requirements of Part 2 of Art. 50 of the Constitution of the Russian Federation stating that in the administration of justice the use of evidence obtained in violation of federal law is not allowed. Consequently, inadmissible evidence will continue to circulate unimpeded in indictments, corrupting the healthy legal fabric, encouraging law enforcement officers to further violate the rights of citizens and undermining their trust in justice.

Criminal law, civil law

The current state of the law of evidence is determined by the long-term process of development of law and the state. The history of procedural evidentiary law in Russia is of great legal importance, since it is a consequence of its previous development. The Russian legal system has its roots in the Romano-Germanic legal system. Rome had a fairly developed system of evidence. Certain provisions were adopted by Russian law, as evidenced most clearly by a number of similar legal concepts.

The beginning of the reception can be considered the signing of the first agreement between Prince Oleg and the Byzantine emperors Leo and Alexander (911), which brought to Rus' modified norms of the Roman process on judicial evidence. From this period, oath, search, oath, testimony of witnesses begin to appear in Russian legislation as judicial evidence [1].

The outstanding Russian theorist A. B. Vengerov, pointing to the existence in the Middle Ages of formal criteria of evidence - existing ordeals, etc., notes the impossibility of freely assessing evidence, pointing to the lack of mechanisms correcting “subjective errors of law enforcement officials, and therefore their responsibility” [2].

The form of Russian legal proceedings was accusatory in nature. The legislative source was " Russkaya Pravda ", some provisions of which acted as customs. Proof was carried out using an oath (rota), testimony, and testing with iron and water. This period is characterized by significant restrictions on rights. Judicial evidence was necessary in cases of denial by the defendant, denial of the claim, or objections to the claim. According to Russkaya Pravda , in cases of denial by the defendant, witnesses must be presented against him [3]. Procedural veche legislation contains regulations defining the types and relative strength of judicial evidence.

With the strengthening of the role of the state, a transition to other forms of confirmation, such as written evidence and general searches, is noticeable.

Written evidence is the last to appear and acquires paramount evidentiary value. These include: charters, bonds, bills of sale, fortresses and others.

According to the Dvina and Belozersk charters of the princes, only a code, red-handed, and judicial duel existed as evidence [4]. Significant differences between the trial of veche charters and the trial of Russian Pravda are: the replacement of the public trial (at the prince's court) with a clerical trial, closed to the public; replacement of verbal paperwork with written, with a predominance of written acts of judicial evidentiary law; the establishment of an appellate court, under the name of the court of reporters, consisting of elected boyars and living people, transformed in the Code of Laws of the Moscow State into the central order court of boyars and clerks [5].

From the foregoing, we can conclude that the position of the subject of proof has existed since the advent evidentiary activity . So, even in the duel, the parties defended their position in the dispute with physical superiority. The use of other evidence, the enduring of physical pain is also the position of the subject of proof in those ancient times. With the replacement of physical defense of one's position with intellectual one, the essence of this concept has not changed.

The first experience of codification is the Code of Laws of Ivan III in 1497. The main content of the Code of Laws are procedural decisions borrowed from the statutory charters. There is no division into substantive law and procedural law. There are no courts, the process is accusatory in nature, and the proof is simplified: the defendant’s failure to appear in court means he admits his guilt; The failure of the accuser to appear in court terminated the case.

In 1566, a decree was issued detailing the conditions under which a search was permitted in the sense of judicial evidence. The same decree allowed the replacement of a duel with a kiss on the cross, subject to certain rules.

By the period of the Council Code of 1649, judicial evidence was divided into personal confessions and oaths (testimonies of the parties) and confessions of witnesses and written evidence.

During the reform of Peter I, the search form became the main state form of justice. The adversarial nature is replaced by interrogation by the court. The process has become written, and therefore the role of written evidence is increasing. A system of formal proofs is being developed. The essence of this system was that the law determined in advance the strength of each type of judicial evidence. When assessing them, the court had to be guided by the formal rules defined by the legislator [6]. There is a classification of evidence into complete and incomplete, i.e. evidence is divided into perfect and imperfect. The most perfect were personal recognition and personal examination of the thing by the court.

According to the code of laws of 1857, original written acts were full evidence, and merchant books were half proof.

The period of judicial reform of 1864 in the field of evidence law is also characterized by the reception of Roman law. As E.V. Salogubova notes, “the institution of evidence has undergone the greatest borrowing. The statute of civil proceedings adopted the Roman system of evidence, in particular, the principle of distribution of gravity, types of evidence”[7]. Witness “immunity” is added, and the Roman classification of evidence into public and private is adopted. Trade books are admitted as written evidence. The main principles of this theory were: adversarialism , publicity, orality, spontaneity, free assessment of evidence by the court according to internal conviction, etc.

The principle of free assessment of evidence followed from decisions on the issue of assessment of individual evidence by the court [8]. The court decision should have contained an explanation of why the court gave priority to this evidence over another, i.e. an objectively expressed justification for the judge’s conviction appears in the considered and resolved case.

The implementation of the adversarial principle consisted in the complete non-interference of the court in the discussion of facts not stated by the parties and the evidentiary sphere of the parties’ activities (for example, in the collection of evidence). The parties could fully dispose of the factual material - the “evidence base” in the case. Thus, the role of the court in the process is completely passive. The main driving force of the judicial process is the parties [9].

After the October Revolution of 1917, reformative changes took place in the law of evidence in Russia, which is associated with changes in the class political leadership of the country.

Decree “On the Court” No. 1 of November 22, 1917 indicates that district courts, the prosecutor’s office, the bar, and the institute of judicial investigators are abolished. “After the October Revolution of 1917, the legislative acts on courts did not contain regulation of issues of the law of evidence” [10].

With the adoption of the Constitution of 1918, a new type of state was formed. A natural consequence is the process of formation of Soviet law, including evidentiary industry law. “... since the Judicial Statutes of 1864 were quite progressive, some of their ideas were preserved in Soviet procedural legislation” [11]. Soviet law of evidence arose as a result of the reform of the Russian law of evidence of the pre-revolutionary period and was based on it.

On June 23, 1918, the instruction of the People's Commissariat of Justice of the RSFSR “On the organization and operation of local district courts” was published, according to Art. 34 of which the People's Court is not constrained by any formal considerations and depends on it, according to the circumstances of the case, to admit certain evidence and to demand it from the persons in whose possession it is. Evidence includes: expert opinions, witness testimony, material evidence, explanations of the plaintiff and defendant. The instructions do not mention written evidence, the procedure for checking evidence, or the evaluation of evidence by the court. The principle of independence of the court in obtaining evidence, the independence of the court from the will of the parties on this issue, the principle of not being bound by the court by formal considerations when admitting certain evidence in the case is firmly established [12]. The People's Court had to apply the Decrees of the Workers' and Peasants' Government, and in cases of incompleteness, be guided by socialist legal consciousness. The court assessed the evidence based on legal consciousness.

On May 25, 1922, the Code of Criminal Procedure of the RSFSR was adopted, which “proclaimed the principle of free assessment of evidence based on internal conviction, based on consideration of all the circumstances of the case in their totality, included the requirement to substantiate the verdict with evidence verified in court, listed the types of evidence, and resolved other issues of proof according to criminal cases (Articles 57, 58, 319, etc.)”[13]. The Code of Criminal Procedure was updated on February 15, 1923. As before, the law established that the court is not limited to any formal evidence; it depends on it to admit or reject certain evidence.

The formation of the USSR led to the adoption of the Fundamentals of Criminal Procedure, which did not significantly change the situation in the law of evidence in Russia. Along with the development of republican law, all-Union legislation is gradually expanding. It was at this time that a unified doctrine was formed in the field of evidence law and the theory of evidence in the Soviet republics.

The Constitution of the USSR of 1936 and the Law on the Judicial System of 1938 proclaim the democratic principles of judicial proceedings, the independence of judges and their subordination only to the law. At the same time, a repressive state system is developing, which has a direct impact on the evidentiary law of Russia. This is clearly seen when analyzing the Resolution of the USSR Central Executive Committee dated September 14, 1937, which amended the Code of Criminal Procedure, limiting the accused’s right to evidence : in cases of sabotage and sabotage, the indictment was handed to the accused one day before the trial was considered by the court; cassation appeal (and, accordingly, subsequent evidence) was not allowed; death sentences were carried out immediately after a petition for clemency was rejected. There is a simplified procedure for legal proceedings in cases of state crimes.

In 1958, the Fundamentals of Criminal Procedure of the USSR and Union Republics were adopted. Before the adoption of the Fundamentals of Legal Proceedings, laws allowing simplified legal proceedings . “The Fundamentals of Criminal Proceedings of the USSR and Union Republics of 1958, the Code of Criminal Procedure of the RSFSR of 1960, with subsequent additions, preserved the previously existing principles of the law of evidence and regulated the subject and process of proof in more detail, defined the concept of evidence, characterized the types of evidence, etc.”[14].

With the adoption of the Constitution of the Russian Federation in 1993, the adversarial law of evidence . At the same time, the sectoral approach to proof continues to dominate; there are no unified general theoretical guidelines characteristic of the newly introduced adversarial proof [15].

Summing up the analysis of the historical development of the law of evidence in Russia, we consider it necessary to note that evidence and the process of proof in the form in which they exist today are the result of many years of work by entire generations of jurists [16].

Examining the history of the development of Russian evidentiary law , we can draw conclusions that from the archaic approach to understanding evidence as a means of private legal struggle for its interests, the Russian state has come to public evidentiary law in an investigative format.

[1] Salogubova, E. V. Roman civil process / E. V. Salogubova. – M.: Gorodets, 2002. – P. 18.

[2] Vengerov, A. B. Theory of State and Law: textbook / A. B. Vengerov. – M.: New Lawyer, 1998. – P. 515-516.

[3] Russian Truth: Commentary / ed. B. D. Grekova. – M. – L., 1947. – T. 2. – P.47.

[4] Samokvasov, D. Ya. Course on the history of Russian law and Additions to the course of lectures on the history of Russian law / D. Ya. Samokvasov. – 3rd ed., rev. and additional – M.: Synod. typ., typ. Moscow University, 1908. – P. 392.

[5] Samokvasov, D. Ya. Ibid. – P. 397.

[6] Vyshinsky, A. Ya.. Theory of judicial evidence in Soviet law / A. Ya. Vyshinsky. – 2nd ed., revised. and additional – M.: Legal. NKYU Publishing House, 1946. – P. 56; Vaskovsky, E.V. Textbook of civil procedure / E.V. Vaskovsky. – M.: Publishing house. Br. Bashmakovs, 1917. – P. 108.

[7] Salogubova, E. V. Roman civil process / E. V. Salogubova. – M.: Gorodets, 2002. – P. 31.

[8] Charter of civil proceedings // Judicial statutes November 20, 1864. – ed. 10th, add. – St. Petersburg: [b.i.], 1875. – P. 102, 411, 437, 711, etc.

[9] Vaskovsky, E.V. Textbook of civil procedure / E.V. Vaskovsky. – M.: Publishing house. Br. Bashmakovs, 1917. – P. 95.

[10] Yakupov, R.Kh. Criminal procedure: textbook. for universities / ed. V.N. Galuzo. – 2nd ed., rev. – M.: Mirror, 1999. – P. 131.

[11] History of the Russian state and law. Part 2: textbook / ed. O. I. Chistyakova. – M.: Publishing house. Beck, 1999. – P. 78.

[12] Collection of laws and orders of the Workers’ and Peasants’ Government. – M., 1918. – No. 53. – P. 597.

[13] Yakupov, R.Kh. Criminal procedure: textbook. for universities / ed. V.N. Galuzo. – 2nd ed., rev. – M.: Mirror, 1999. – P. 131.

[14] History of the Russian state and law. Part 2: textbook / ed. O. I. Chistyakova. – M.: Publishing house. Beck, 1999. – P. 131.

[15] Ibid. – P. 26.

[16] Novitsky, V. A. Theory of Russian procedural proof and law enforcement: monograph / V. A. Novitsky. – Stavropol: SSU Publishing House, 2002. – P. 25.

See: Thesis : Proof as the basis of procedural activity .

Participation of a lawyer in the assessment of evidence: myth or reality?

Law, as provided in Sec. 6–7 of the Code of Criminal Procedure of the Russian Federation, divides those carrying out criminal prosecution and defense into two procedural parties. Their functions are directly opposite: all efforts of the defense are aimed at refuting the charges brought against the person brought to criminal responsibility through a correctly chosen position; challenging the prosecution evidence and presenting evidence of the defendant’s innocence and non-involvement in committing the incriminated acts, as well as other defensive actions. A significant role in this belongs to the lawyer, who is required not only to determine the goals and current tasks of the defense, but also to demonstrate the ability to develop defense strategies and tactics.

The activity of a defense lawyer in court is complex and multifaceted: he does not simply oppose the charges brought against his client, but defends the position of the defendant, supports it with evidence, and then summarizes and analyzes all the material collected during the trial. When discussing a position, analyzing the case materials and the defense’s conclusions, its goal is to actually present to the court ready-made analytical information about the defendant’s innocence, which, if the court agrees with them, can be used as the basis for an acquittal.

When participating in criminal proceedings, a lawyer cannot do without assessing the evidence collected by the prosecution.

By virtue of Art. 88 of the Code of Criminal Procedure of the Russian Federation, each evidence is subject to assessment from the point of view of relevance, admissibility, reliability, and all collected evidence in the aggregate - sufficiency for resolving a criminal case. At the same time Art. 17 of the Code defines the subjects vested with the right to freely evaluate evidence: judge, jurors, prosecutor, investigator, inquirer.

As you can see, the lawyer as a participant in criminal proceedings on the part of the defense as a subject of evidence assessment is not named. Knowing this, many judges, ignoring the position of the defense on the assessment of the evidence presented by the prosecution, cite the following conclusions in their verdicts: “The assessment of the examined evidence was given by the court in the verdict in accordance with the requirements of Art. 17, 87, 88 Code of Criminal Procedure of the Russian Federation. The lawyer's assessment of the evidence presented by the prosecution does not indicate bias in the court's conclusions. The lawyer's arguments relating to the assessment of the prosecution evidence cannot be taken into account by the court for the reason that these arguments relate to the lawyer's re-evaluation of the prosecution evidence, which is not a basis for recognizing the prosecution evidence as irrelevant, inadmissible and unreliable, but in general insufficient to resolve criminal case on the merits"

In court decisions, one can also observe the following conclusions of judges, which clearly demonstrate the non-acceptance of the defense’s assessment of the prosecution’s evidence: “The defense’s assessment of the prosecution’s evidence in its meaning boils down to a re-evaluation of the evidence presented by the prosecution, which was assessed by the court in a verdict based on internal conviction, based on the totality of available evidence, as provided for
in Art. 17 Code of Criminal Procedure of the Russian Federation.
The fact that the assessment of the prosecution evidence given by the prosecutor in the judicial debate does not coincide with the assessment of the evidence given by the defense does not indicate a violation by the prosecutor of the requirements of the criminal procedure law and is not a basis for the assessment of the evidence given by the prosecutor to be questioned by the court ."

Thus, the lawyer, being a professional defender of the defendant, is at the same time deprived of legislative powers to influence the process of both proving and the use of prosecution evidence by the court, since only the prosecutor and the judge are vested with such rights in the judicial process.

This is where the reason lies that judges, when passing guilty verdicts, ignore the arguments of the defense, which contain criticism of the prosecution's evidence, and perceive the defense lawyer in the trial as a means of formally ensuring the defendant the right to defense! It is the law, defining the monopoly of evidence assessment for the prosecutor and the judge, that does not prevent a conviction, since the prosecutor presents the prosecution evidence to the court, and he also gives it an appropriate assessment in terms of relevance, admissibility and reliability, and in total - sufficiency for resolving the criminal case, without meeting, in accordance with the legally established procedure for assessing evidence from the defense, mandatory assessments and justifications to the contrary.

I note that although the defense in judicial debates still presents to the court its own analysis and assessment of the prosecution’s evidence (which, as a rule, judges do not prevent it from doing), this is not a legally prescribed procedure, and therefore the lawyer’s analysis and assessment of the evidence is easily ignored by the judiciary for the simple reason that defense arguments, expressed not in favor of the prosecution’s evidence, compete with the legal assessment of the prosecutor, and such competition is not permitted by law.

Consequently, the judge cannot be the arbiter of the choice of the position of the defense or the prosecution, since the law provides for the right to evaluate evidence only for the prosecution. In this regard, the judge will take into account the legally established right of one of the parties to evaluate the evidence and will ignore the assessment of evidence given by the other party, since it is legally deprived of such a right.

In general, it should be noted that a paradoxical situation is emerging in Russian justice. The legislator in Art. 15, 244 of the Code of Criminal Procedure provided that criminal proceedings are carried out on the basis of adversarial and equal rights of the parties, but in fact gave the above-mentioned norms of the law a declarative character in relation to the defense side. There is no real provision for the implementation of the right to prove and evaluate evidence for the defense - such rights at the legislative level were only received by the prosecution in the person of the prosecutor, to whom the judges listen, thereby creating an “accusatory bias”.

I believe that this state of affairs will last until the right of a lawyer to evaluate evidence in a criminal case is ensured at the legislative level.

Currently, the defense side represented by a lawyer, when refuting the accusation brought against the client, is forced to come up with ways to convict the prosecution of presenting poor-quality evidence to the court and influence its assessment by the court in order to not accept the factual circumstances of the case when proving the factual circumstances of the case.

For example, arguing that the prosecutor’s conclusions about the defendant’s involvement in the commission of a crime and his guilt are not confirmed by the evidence considered at the court hearing, the defense must conduct a comparative study of the prosecutor’s conclusions on the factual circumstances of the case and the evidence he identified as confirming these conclusions, and then compare between this data. If they do not coincide, the defense’s arguments that the prosecutor’s conclusions are not supported by the evidence considered at the trial will be obvious.

Meanwhile, the court does not have the right to refer in its verdict to the independent analysis of evidence presented by the defense and its assessment in the same way as is done when presenting the position of the prosecutor in the verdict, since the defense is not defined by law as the subject of the criminal procedural assessment of evidence. The court may agree with the defense position, but in the verdict it must “pass off” it as its own. Only in this case, the justification for the analysis and assessment of the prosecution evidence presented by the defense will have a legally established form of presenting the court’s arguments in the verdict.

The verdict of the court of first instance is made on the basis of the examined evidence, which must be assessed. If the verdict is guilty, the assessment is usually laconic and expressed in one sentence: “Having analyzed and assessed the evidence presented by the prosecution in accordance with Art. 17, 87–88 of the Code of Criminal Procedure of the Russian Federation, the court came to the conclusion that the examined evidence is relevant, admissible and reliable, in the aggregate sufficient to resolve the criminal case on the merits, it fully confirms the guilt of the defendant in committing the crime.”

Evaluation of evidence is not only a right, but also the duty of the court when passing a verdict; it cannot be formal. However, established by Art. 17 of the Code of Criminal Procedure, the rules for the free assessment of evidence do not mean that the court is free to draw conclusions regarding the proof of guilt and the defendant’s involvement in the crime, which would allow resorting to a formal assessment of the totality of evidence presented by the prosecution, similar to the one presented in the verdict. In its verdict, the court is obliged to conduct a comprehensive analysis of the examined evidence and give it not a formal, but a comprehensive assessment, describing the important element taken from each evidence that confirms the guilt and involvement of the defendant in the crime. If there is no such thing in the verdict, it cannot be recognized as just.

Control must be established over the assessment of evidence in the verdict. The power to carry out an appropriate review of the conviction, as well as a re-evaluation of the evidence presented in it, in my opinion, should first of all be vested in the legislation on the defense side.

Meanwhile, it should be noted that in the criminal procedural law there is no concept of “revaluation of evidence by the defense”; the term “revaluation” is not used at all in any of its norms. At the same time, judicial practice shows that without re-evaluating the evidence presented by the prosecution, the court is not able to make an acquittal in the case.

Evaluation of evidence is always a subjective opinion, reflecting certain qualities of individual evidence or a group of evidence as a whole. The prosecutor, presenting to the court evidence that, in his opinion, confirms the defendant’s involvement in the crime and his guilt, himself evaluates it during the trial for its relevance, admissibility and reliability. An assessment of the same evidence by a lawyer, which does not coincide with the position of the prosecutor, constitutes a new assessment of the evidence and, in its meaning, means its reassessment. In this case, if the defense does not agree with the evidence presented by the prosecution, not only the evidence itself will be subject to re-evaluation, but also the factual circumstances of the case, which were built by the prosecution on the basis of the evidence collected and presented to the court.

Thus, the analysis, assessment and reassessment of the prosecution evidence brought by the defense must be closely intertwined and associated with challenging the actual circumstances of the case, since without assessment and reassessment of the legal facts it is impossible to come to the conclusion that the conclusions set out in the charge brought against the defendant are not confirmed evidence considered by the court.

Analysis of the content of each evidence allows the court to understand whether the information from this evidence is reliable or doubtful, concrete or abstract, whether it indicates completeness or incompleteness of information about the circumstance being studied, and whether it has a logical connection. The study of evidence through logical analysis is precisely aimed at checking by the court the correctness of factual data and their correspondence to real events. Verification should be carried out not only by analyzing evidence, but also by using synthesis, i.e. comparison of the evidence being verified with others; neither the prosecution, nor the defense, nor the court can do without this. The requirement to compare the evidence being verified with others is directly enshrined in Art. 87 of the Code of Criminal Procedure and constitutes an element of the process of proof in a criminal case.

On the one hand, the process of proof is impossible without evaluating the evidence, which is one of its mandatory elements, and verifying it by comparing it with other evidence available in the case, as well as identifying their sources, obtaining other evidence confirming or refuting what is being verified; on the other hand, a lawyer According to legislatively established standards, he is not able not only to evaluate, but also to verify evidence. This deprives him of any opportunity to participate in the trial on an equal basis with the prosecutor and challenge the charges brought against the defendant.

Evaluation of evidence is a mental activity consisting of analysis and synthesis of the content and form of evidence and culminating in a conclusion, as provided for in Part 1 of Art. 88 Code of Criminal Procedure. Thus, the need to use analysis, synthesis and evaluation of evidence to reach a verdict is obvious. Only in the synergy of these three components of the process of proof will the verdict meet the tasks and goals of justice and indicate its validity and motivation.

The activity of verifying evidence, carried out through its analysis and synthesis, ending with an assessment of the entire body of evidence, should lead the court to final conclusions and answers to those raised in Art. 299 and 302 of the Code of Criminal Procedure issues. It is the assessment of the entire body of evidence that is the most crucial moment in the court’s activities when passing a verdict.

Concept and elements of the process of proof

The concept of proof and its elements (stages). In accordance with Art. 85 Code of Criminal Procedure under proof

refers to the collection, verification and evaluation of evidence in order to establish the circumstances listed in Art. 73 Code of Criminal Procedure. The legislative formulation of the process of proof indicates that criminal procedural proof is a specific form of knowledge of the circumstances of the crime committed that are relevant to the criminal case. The features of such knowledge in the process of proof are as follows:

1) the subject of research is information that took place in the past, which was displayed in various information media (ideal and material). Therefore, the subject of proof (investigator, judge, etc.) is not able to directly perceive the main thing in the event under study - the event of the crime itself and the circumstances of its commission. Because of this, even the investigator’s direct perception of the situation at the scene of the crime and its traces (for example, when examining the scene of an incident) is indirect in relation to the event that occurred;

2) proof is carried out only by subjects provided for by law - participants in criminal proceedings, vested with such powers. As V.L. Budnikov rightly notes, “... the duty of proof can be included in the legal status of only those participants in criminal proceedings who are endowed with the normative ability to independently generate (collect), verify and evaluate evidence”[17]. Thus, according to the principle of publicity, the burden of proof rests on the persons carrying out criminal prosecution (prosecutor, investigator, inquiry agency, interrogator). In cases of private and private-public prosecution, in accordance with the principle of discretion, a similar function is provided to the victim and his legal representative.

In accordance with constitutional and criminal procedural provisions, as well as professional duties, an active role in the application of the remedies provided for by law is assigned to the defender - a lawyer, who, in accordance with Part 7 of Art. 49 of the Code of Criminal Procedure, does not have the right to refuse to undertake the defense of the suspect or accused.

The court, as a representative of public authority, when administering justice in criminal cases and performing other procedural functions, is one of the main subjects of evidence, which plays a decisive role in making the final decision in a criminal case.

3) criminal procedural evidence gives rise to corresponding legal relations between its participants;

4) the process of proof proceeds in strict accordance with the regulatory requirements of criminal procedure legislation;

5) proof is a specific system and consists of several interrelated and relatively independent stages (elements) - collection, verification, evaluation and use of evidence;

6) in the course of proof, not only the circumstances listed in Art. 73 of the Code of Criminal Procedure as indicated in the definition, but also others that are indicated by the law and which are caused by the circumstances of the criminal case (Part 1 of Article 74, Articles 421 and 434 of the Code of Criminal Procedure).

Taking into account the above, it seems that the legislative formulation of the concept of evidence needs appropriate adjustment in order to clarify its essence.

Thus, criminal procedural evidence is the activity of authorized subjects of criminal proceedings provided for by law to collect, verify and evaluate evidence in order to establish the legally significant circumstances of the crime committed (the subject of evidence), as well as their use for making procedural decisions during the preliminary investigation and trial criminal proceedings.

The foregoing allows us to conclude that the elements of the proof process are:

1) collecting evidence;

2) verification of evidence;

3) evaluation of evidence;

4) use of evidence.

Subjects of proof. Criminal procedural legislation, when designating the powers of participants in criminal proceedings to collect, verify and evaluate evidence, does not use the term “subjects of evidence”. However, in the theory of criminal proceedings, its participants, endowed with such powers, are traditionally called subjects of evidence. At the same time, there is no unity of views among proceduralists regarding the concept of subjects of proof, their classification, procedural powers, features of certification of legally significant circumstances of a criminal case, etc.

Meanwhile, in the practice of preliminary investigation and trial, these problems cause significant difficulties, which often contribute to the incorrect application of the norms of the Code of Criminal Procedure of the Russian Federation and other legislation in specific situations, which leads to the adoption of illegal and unfounded procedural decisions, the production of procedural actions and the violation of rights, freedoms and legal interests of persons involved in the relevant legal relations.

When establishing the concept of subjects of proof, as a starting point, we refer to the position of the authors of a fundamental study of the theory of evidence in criminal proceedings, according to which subjects of procedural rights and obligations can play an auxiliary or episodic role in proof, without having their own procedural interest[18]. The above thesis means that the definition of the concept of subjects of proof is based on the procedural powers of various participants in the criminal process in this area of legal proceedings.

Without going into a detailed discussion on this subject, we note that many authors consider the issue of subjects of evidence depending on the degree of their participation in the collection, verification and evaluation of evidence.

Today, the criminal procedure law normatively establishes the main functions of participants in criminal proceedings - prosecution, defense

and
resolution of the criminal case
(Part 2 of Article 15 of the Code of Criminal Procedure). At the same time, this norm prohibits assigning these functions to the same body or the same official. However, this does not mean at all that, within the specified functions, specific areas of activity of participants in criminal proceedings can be detailed in accordance with their tasks (purpose) and divided into basic and supporting[19].

In relation to the function of proof, Part 1 of Art. 86 of the Code of Criminal Procedure stipulates that the collection of evidence is carried out during criminal proceedings by the inquirer, investigator, prosecutor

and
by the court
through
investigative
and other
procedural actions
provided for by law.

The same article of the law provides powers to other participants in criminal proceedings to participate in the collection of evidence. So, according to Part 2 of Art. 86 of the Code of Criminal Procedure, the suspect, the accused, as well as the victim, civil plaintiff, civil defendant and their representatives have the right to collect and present written documents and objects for inclusion in the criminal case as evidence.

Wider powers are provided by Part 3 of Art. 86 of the Code of Criminal Procedure for the defender, according to which he has the right to collect evidence by: 1) obtaining objects, documents and other information; 2) interviewing persons with their consent; 3) requesting certificates, characteristics, and other documents from state authorities, local governments, public associations and organizations that are obliged to provide the requested documents or copies thereof.

In this regard, a number of questions arise. For example, does this mean equality of powers of these participants in criminal proceedings with officials of state bodies in evidence? Can the actions specified in Parts 2 and 3 of Art. 86 of the Code of Criminal Procedure of persons, and the results obtained are evidence? Obviously, none of these questions can be answered positively.

Let us consider this provision using the example of the powers granted by Part 3 of Art. 86 Code of Criminal Procedure for the defender. In this regard, S. A. Shafer is quite reasonable [20].

Thus, taking into account the considered opinions of various authors regarding the concept of a subject of proof based on their classification, as well as an analysis of the norms of the Code of Criminal Procedure of the Russian Federation that vest participants in criminal proceedings with the powers of proof, we can conclude that the subjects of proof should be understood the participants in criminal proceedings provided for by law, who, within the limits of their powers: a) collect, verify and evaluate evidence, use it to make appropriate procedural decisions; b) defend their rights and legitimate interests, as well as the rights and legitimate interests of represented persons and organizations; c) assist the court and the parties in evidence during criminal proceedings.

From this definition it follows that the main subjects of proof

are exclusively officials of state bodies authorized by the Code of Criminal Procedure of the Russian Federation to initiate criminal cases, carry out preliminary investigations and resolve them on the merits.
That is why Part 1 of Art. 86 of the Code of Criminal Procedure stipulates that the collection of evidence is carried out during criminal proceedings by the inquirer, investigator, prosecutor
and
the court
through
investigative
and other
procedural actions
provided for by law. This norm gives the authority to collect evidence exclusively to officials of state bodies using procedural means and methods, including the use of coercive measures. They also check and evaluate the collected evidence in accordance with the Code of Criminal Procedure of the Russian Federation, recognize it as inadmissible in cases provided for by law, and also make appropriate procedural decisions in a criminal case on their basis (Articles 17, 75, 86-90, 171, 215 Code of Criminal Procedure, etc.). These provisions mean that, taking into account the principle of publicity, the burden (obligation) of proof lies precisely on these and other officials of state bodies in order to perform private tasks and order criminal proceedings.

Among the subjects of proof who defend their rights and legitimate interests, as well as the rights and legitimate interests of represented persons and organizations

by submitting petitions (including on investigative actions), submitting written and other documents, objects, as well as participating in their research, the following should be included:

a) the victim and his legal representative, who, based on the principle of discretion, carry out criminal prosecution in criminal cases of private and private-public prosecution (except for cases provided for in Part 4 of Article 20 of the Code of Criminal Procedure);

b) the suspect, the accused, as well as the victim, civil plaintiff, civil defendant and their legal representatives;

c) a defender of the suspect, accused (defendant), lawyer - representing the interests of participants in criminal proceedings under a contract.

To the subjects of evidence, assisting the court and parties in proving

in criminal proceedings, include those participants in the criminal process who are involved in it in accordance with the regulatory requirements of the law and (or) the decision of the preliminary investigation body, prosecutor, court, or at the request of persons having a criminal or civil interest in resolution (outcome) of a criminal case. These include an expert and specialist, teacher and psychologist, witness, translator, witnesses and other participants in investigative actions, who, in turn, can also be classified according to the degree of their participation in evidence.

Characteristics of individual elements of the proof process. The first of the elements (stages) of the proof process is the collection (formation) of evidence. Collection (formation) of evidence is the making of decisions and the performance by subjects of evidence, within the limits of their powers, of procedural actions aimed at discovering and securing evidence in the manner prescribed by law.

Collecting evidence involves discovery (obtaining)

information relevant to the criminal case, and their consolidation by means and methods provided for by law
(procedural consolidation).
The Criminal Procedure Code of the Russian Federation of December 18, 2001 traditionally contains a special article providing for the collection of evidence. This article establishes general rules containing the basic means and methods of collecting evidence, and the procedural powers of individual subjects of proof.

In accordance with Part 1 of Art. 86 of the Code of Criminal Procedure during criminal proceedings, the collection of evidence is carried out by the inquirer, investigator, prosecutor and the court through investigative

and
other procedural actions
provided for by the Code of Criminal Procedure of the Russian Federation. It follows that the main means of collecting evidence are investigative and other procedural actions provided for by the Code of Criminal Procedure of the Russian Federation, since the law in the relevant chapters regulates in detail the name and procedural procedure for carrying out investigative actions[21].

The article in question of the Code of Criminal Procedure of the Russian Federation also provides other participants in the criminal process with the authority to collect evidence. So, according to Part 2 of Art. 86 of the Code of Criminal Procedure, the suspect, the accused, as well as the victim, civil plaintiff, civil defendant and their representatives have the right to collect and present written documents and objects

to include them in a criminal case as evidence.

Part 3 of this article of the Code of Criminal Procedure gives the defense lawyer the right to collect evidence by:

— obtaining items, documents and other information;

— interviewing persons with their consent;

— requesting certificates, characteristics, and other documents from state authorities, local governments, public associations and organizations that are required to provide the requested documents or copies thereof.

However, despite the presence in the Criminal Procedure Code of the Russian Federation of a special article on the collection of evidence, an analysis of other provisions of the law indicates that Art. 86 of the Code of Criminal Procedure does not set out all the subjects, means and methods of collecting evidence. So, first of all,

state bodies and officials, in cases where investigative and other procedural actions are not required, have the right to demand from institutions, organizations, officials and citizens objects and documents with the help of which the circumstances necessary in a criminal case are established, as was previously provided for in Part 1 tbsp.
70 Code of Criminal Procedure of the RSFSR. Currently, these powers of officials of criminal justice bodies stem from Part 4 of Art. 21 of the Code of Criminal Procedure, as well as from legislative and other normative legal acts regulating their legal status (see, for example, Articles 12 and 13 of the Federal Law “On the Police”); secondly,
according to Part 1 of Art.
144 of the Code of Criminal Procedure, when checking a report of a crime, the inquiry officer, the inquiry body, the investigator, the head of the investigative body, in addition to carrying out certain investigative actions before the initiation of a criminal case, has the right to receive explanations, demand documents and objects, demand documentary checks, audits, studies of documents, objects, corpses, involve specialists in these actions, give the body of inquiry a binding written order to carry out operational investigative activities; thirdly,
in accordance with Art. 455 of the Code of Criminal Procedure, evidence obtained on the territory of a foreign state in order to provide legal assistance has the same legal force as if it were received on the territory of Russia in full compliance with the requirements of the Code of Criminal Procedure of the Russian Federation.

Information received by investigative and judicial authorities or provided by other persons must be procedurally documented (fixed) in the protocols of the relevant investigative actions (the main method of recording), and, if necessary, also with the help of scientific and technical means (an additional method of recording) in accordance with the requirements of the criminal justice system. -procedural legislation (Articles 166, 167, 170 of the Code of Criminal Procedure, etc.).

Verification of evidence consists of ascertaining the correctness of the information contained in the sources of information and their procedural properties.

In its content, it has elements of an evaluative nature. At the same time, at this stage of proof, final conclusions have not yet been made regarding all the properties of the collected evidence that are inherent in the stage of evaluating the evidence.

In accordance with Art. 87 of the Code of Criminal Procedure, verification of evidence includes the following actions:

— analysis of the information received regarding their procedural properties, comparison of the facts reported by the source, identifying the presence of contradictions between them;

— comparison of the verified information with other evidence available in the criminal case, in order to identify the presence of contradictions between previously collected and new evidence;

— taking measures to clarify such contradictions, for example, by searching for additional evidence that can confirm or refute the evidence available in the criminal case.

Evaluation of evidence is a logical activity aimed at determining the relevance, admissibility, reliability of each evidence and the sufficiency of their totality to establish the circumstances included in the subject of proof.

The provisions on which the assessment of evidence is based are formulated in Art. Art. 17 and 88 Code of Criminal Procedure. The fundamental position of assessing evidence according to the internal conviction of the persons conducting the trial, as well as jurors, is that the law, as a rule, does not prescribe to them what evidence should be used to establish certain circumstances, does not indicate the predominant importance of certain types of evidence, does not names quantitative indicators of the sufficiency of evidence to make a particular decision in a case.

At the same time, the assessment of evidence should not be arbitrary: it should be based on a comprehensive, complete and objective consideration of all the circumstances of the criminal case in their entirety.

When assessing evidence, one should be guided by the law, the regulatory role of which in relation to evidence is to determine the circumstances to be proven in a criminal case; understanding the concepts of admissibility and relevance of evidence, their reliability and sufficiency for making decisions in a criminal case; compliance with the procedure for collecting them and fulfilling the verification requirement, establishing a provision for assessing evidence based on inner conviction.

The leadership of the person assessing the evidence, with conscience, ensures compliance with moral and ethical standards during their assessment; understanding the meaning and significance of the rules of evidence; helps prevent attempts to contrast requirements with legality and expediency, and also helps to apply the law in accordance with its true meaning.

The criterion for the truth of judgments when assessing evidence is practice, both in the form of direct verification of the conclusions of the investigation and judicial consideration of the case (investigative experiment, other investigative actions during which data are revealed confirming the correctness of the assessment of evidence), and in indirect form (the use of special knowledge of experts for verification of evidence, the use of practical experience accumulated by investigative and judicial authorities in evidence, as well as certain provisions of the law and relevant decisions of the Plenum of the Supreme Court of the Russian Federation).

The use of evidence is a natural result of the mental activity of the subject of proof in assessing evidence, consisting in their further use when making procedural decisions in a criminal case.

Based on the collected, verified and evaluated evidence, the subject of evidence (the criminal justice body) may make the following decisions:

1) private decisions within the framework of the relevant stage of the criminal process (on recognition as a victim, on bringing a person as an accused, etc.);

2) at the stage of completion of one of the stages of the criminal process - on the completion of the preliminary investigation with the drawing up of an indictment, on the appointment of a court hearing, etc.;

3) when resolving a criminal case on the merits - passing a sentence, terminating the criminal case, etc.

Thus, consideration of the general provisions of evidence and evidence in criminal proceedings allows us to draw the following main conclusion: evidence in a criminal case can only be information obtained, verified and assessed by the appropriate criminal procedural subject in the manner prescribed by criminal procedural legislation. Other information (information), for example, obtained as a result of operational-search activities, can have evidentiary value only if they are confirmed by one of the types of evidence listed in Part 2 of Art. 74 of the Code of Criminal Procedure, in compliance with the procedural order of their production.

Conclusion

Methodological basis of the theory of evidence

, the theory of criminal procedural knowledge is dialectical-materialist epistemology with its theory of reflection and the postulate about the fundamental knowability of phenomena of objective reality (reality).

Crime, being an event in the real world, leaves traces in the minds of various individuals and on material objects. The detection and examination of these traces of interaction provide knowledge of the factual and other circumstances of the commission of a crime necessary for the correct application of the norms of various branches of legislation and the legal, reasonable and fair resolution of a criminal case.

Proof

in criminal proceedings, as well as
the process of cognition
in any sphere of human activity, is aimed at achieving
objective truth
, because truth is not constructed according to the will and desire of people, but is determined by the content of the reflected object, which determines its objectivity.

Objective (material) truth in criminal proceedings means the correspondence of the conclusions of the preliminary investigation authorities, the prosecutor, the court and some other participants in the criminal process about the actual and other circumstances of the commission of a crime to the circumstances that existed in reality, which are the factual basis for the application of the norms of various legislation in criminal proceedings.

In accordance with Part 1 of Art. 74 Code of Criminal Procedure for evidence

in a criminal case are any information on the basis of which the court, prosecutor, investigator, inquirer, in the manner prescribed by law (Code of Criminal Procedure of the Russian Federation), establishes the presence or absence of circumstances to be proven in criminal proceedings, as well as other circumstances relevant to the criminal case affairs.

However, “any information” specified in the above norm of the Code of Criminal Procedure of the Russian Federation will have the force of evidence only if it possesses a set of legal characteristics (properties) of evidence - relevance, admissibility, reliability,

and in the aggregate
– their sufficiency
to establish both individual circumstances to be proven and the entire subject of proof in a criminal case.

The current criminal procedure legislation does not provide a normative classification of evidence

, except for indicating their types in Part 2 of Art. 74 Code of Criminal Procedure. Meanwhile, the classification of evidence in criminal proceedings has important scientific, theoretical and practical significance both for the development of the theory of criminal procedural law, as well as legislation and law enforcement practice.

Subject of proof in a criminal case

With the help of evidence, the circumstances of the generic and individual items of proof in a criminal case are established.
The subject of proof (a generic concept) is understood as a set of factual circumstances that must be established in a criminal case and have legal significance, i.e. ensuring the correct application of the norms of various branches of law.

The responsibility to establish the subject of evidence in a specific criminal case lies with the inquirer, investigator, prosecutor and court.

The subject of criminal procedural evidence in each criminal case is individual, and therefore problems arise

incompleteness of establishing the actual circumstances of the crime,
lack of comprehensiveness and objectivity in the examination of evidence in a specific criminal case, etc.

The generic subject of proof (circumstances to be proven) is established by the legislator in Art. 73 Code of Criminal Procedure of the Russian Federation. In criminal proceedings the following must be proven:

crime event (time, place, method and other circumstances of the crime);

the guilt of a person in committing a crime, the form of his guilt and motives;

circumstances characterizing the personality of the accused;
the nature and extent of the harm caused by the crime;
circumstances excluding criminality and punishability of the act;
circumstances mitigating and aggravating punishment;
circumstances that may lead to release from criminal liability and punishment;
circumstances confirming that the property subject to confiscation in accordance with Article 104.1 of the Criminal Code of the Russian Federation was obtained as a result of the commission of a crime or is proceeds from this property or was used or intended for use as an instrument of crime or for the financing of terrorism, an organized group, illegal armed formation of a criminal community (criminal organization).

The circumstances that contributed to the commission of the crime must also be identified.

When studying the subject of evidence in criminal proceedings, you need to keep in mind the following points:

in Art. 73 of the Code of Criminal Procedure of the Russian Federation formulates the subject of proof, which in the theory of criminal proceedings is called generic, since the establishment of the circumstances listed in it is mandatory in all criminal cases;
the subject of proof is based on all elements of the crime, adapted to solve the problems of criminal proceedings in a transformed form (for example, the criminal legal concept of “guilt” was transformed into the criminal procedural concept of “guilt”, i.e. guilt established by the evidence available in a criminal case accused, etc.).

In the subject of proof in a criminal case, some experts in the field of criminal procedure highlight the main fact.

The main fact in the subject of proof is the totality of circumstances in the subject of proof that establish or refute:

guilt of the accused;
nature and degree of responsibility.

The subject of proof in criminal proceedings is inextricably linked with the limits of proof.