Classification of evidence in criminal proceedings. Types of evidence

The concept and meaning of proof and evidence

Evidence and proof in criminal proceedings represent factual data on the basis of which the following must be established:

Guilt of the person.
The presence or absence of danger in the act.
Other circumstances that are integral to the case.

The importance of evidence is determined by the fact that with the help of it, all factual data can acquire high reliability, which will be sufficient for informed conclusions regarding the guilt of a person.

Connection of factual data with the circumstances of the criminal case

It is important to determine the presence or absence of an objective connection with the circumstances established in the case. The connection between factual data and the circumstances of a criminal case can be different: spatial, temporal and cause-and-effect, presuming the presence of the first two. The relevance of evidence does not depend on any, but only on the necessary, essential connection between it and the sought facts in the case. A random, insignificant connection deprives the factual data of evidential value. The nature of this connection must be determined in relation to the entire set of facts to be clarified in the case.

Thus, the Presidium of the Supreme Court of the RSFSR overturned the verdict and the cassation ruling and dismissed the case due to lack of proof of L.’s participation in the commission of the crime. In particular, as evidence of L.’s guilt in theft of property, the court referred to the biological examination report, according to which human blood was found in stains on the bars taken from the scene of the incident, the origin of which cannot be ruled out from L., as well as to the conclusion of the forensic examination. medical examination that L. had a superficial wound to the second finger of his left hand and hemorrhage under the skin of his left palm. According to the court, L. injured his finger and hand while cutting out the bars on the window. However, L. claimed during the investigation and at the trial that he injured his finger while repairing the fence. His explanations were confirmed by witnesses A. and O. At the same time, the court did not evaluate the fact that the report of the inspection of the scene of the incident did not contain information about traces of blood on any objects other than bars. The Presidium of the Supreme Court concluded that this indirect evidence is not relevant to the circumstances of the case.

A circumstance relevant to the case may be in the relationship of cause and effect with the subject of proof, or be the cause of the same consequences, or a consequence of the same cause. There may be a relationship between facts in which one circumstance proves that another could or could not exist, that it is probable or improbable. Also relevant is evidence that is important for verifying individual evidence of the subject of proof, establishing facts that directly or indirectly indicate their accuracy and completeness.

The spatial form of connection assumes that the evidence is directly related to the place where the circumstances to be proven in a criminal case occurred (the place where the crime was committed, the place where the weapons of the crime, stolen valuables and other items were hidden). To determine the relevance of evidence, the place where the suspect was detained, the location of traces of blood on his clothing, etc. may be important.

The temporary form of connection provides the basis for conclusions about when the circumstances included in the subject of proof occurred, whether this evidence, from the point of view of the temporal factor, is consistent with other evidence, and if it is not consistent, then why.

The presence of a spatial and temporal connection between evidence and the circumstances to be established in the case does not always unconditionally indicate the presence of a cause-and-effect relationship . The point is that the evidence and the sought-after fact must be in the same interdependence with each other as cause and effect, and the interdependence must be direct and immediate. If a consequence is identified, but there is no information about the cause, it is necessary to establish it. It is necessary to establish the reasons for the formation of traces of the detected crime.

Thus, evidence that meets the criterion of relevance confirms or refutes the circumstances that are important for the correct resolution of the criminal case, and correlates with the named circumstances in time, in space and as cause and effect.

Testimony of the suspect, accused

Evidence in a criminal trial includes the testimony of the accused person as well as the suspect. The interrogation of a suspect is carried out no later than 24 hours after the initiation of a criminal case (with the exception of cases where the whereabouts of the suspect have not been established).

If the case was initiated on the basis of a crime and during the inquiry process information was obtained that is sufficient to suspect a person of the committed act, the investigator draws up a notice of suspicion of a crime. A copy of the document is given to the suspect. After this, the investigator will be required to conduct a substantive interrogation within 3 days.

The testimony of the accused, in turn, is divided into the following types:

Admission of guilt - the evidentiary value in this case is to obtain information about the circumstances that will help subsequently solve the crime.
Denial of guilt - to confirm this testimony, employees must check the so-called alibi.
Giving evidence against other persons - such information is called slander.

Evidence in criminal proceedings (concept, types, properties, classification, meaning).

Evidence is any information on the basis of which the court, prosecutor, investigator, investigator, in the manner prescribed by law, establishes the presence or absence of circumstances to be proven in a criminal case, and other circumstances relevant to the case (Article 74 of the Code of Criminal Procedure).

Types of evidence: direct and indirect; primary and secondary; indictments and acquittals; material and personal. Sources of evidence: testimony of the suspect, accused; testimony of the victim, witness; expert opinion and testimony; evidence; protocols of investigative and judicial actions; other documents. Criteria for assessing evidence: admissibility; relevance; credibility.

Admissibility is the compliance of the process of discovery, recording, and inclusion of evidence (procedural form) with the requirements of the Code of Criminal Procedure.

Relevance - the presence or absence of a logical connection between the information obtained in the case and the circumstances to be proven in a criminal case, as well as other circumstances relevant to the case. Reliability is a qualitative characteristic of evidence, indicating that the evidence corresponds to objective reality and does not have a subjective touch.

Classification of evidence.

1. In relation to the subject of proof:

1) straight;

2) indirect.

Direct - evidence that directly and directly establishes the fact being proven - the fact that a crime was committed by a specific person.

Indirect - evidence that establishes the fact that a crime was committed by a specific person not directly and directly, but through a secondary intermediate fact.

If, when using direct evidence, only its reliability is established, then when using indirect evidence, not only its reliability, but also its connection with the fact being proven is established.

2. In relation to the source of evidence:

1) initial;

2) derivatives.

Derived evidence:

a) may serve as a necessary means of discovering initial evidence;

b) can serve as a means of verifying initial evidence;

c) can replace the original evidence if the latter is lost and inaccessible to the investigation and the court.

Derivative evidence requires particularly careful verification.

3. In relation to the subject of the accusation:

1) accusatory;

2) exculpatory.

4. According to the mechanism of formation and the carrier of evidentiary information:

1) contained in documents (personal);

2) contained in objects (material).

It is difficult to distinguish evidence on this basis, since all evidence is documented in protocols and the content of the protocol is decisive.

Types: Testimony of the suspect

(Article 76 of the Code of Criminal Procedure of the Russian Federation) - information provided by him during interrogation conducted during pre-trial proceedings in accordance with the requirements of the Code of Criminal Procedure, i.e.
interrogation is carried out at the place where the case is being investigated or where the person being interrogated is located. In this case, a person is summoned for questioning by subpoena; the investigator is obliged to provide the interrogated person with the opportunity to exercise the right to defense. The results of the interrogation are entered into the interrogation protocol, which the suspect reads and, if desired, makes amendments and clarifications, after which he signs (187 - 190 of the Code of Criminal Procedure of the Russian Federation). Testimony of the accused
(Article 77 of the Code of Criminal Procedure of the Russian Federation) - information provided by him during interrogation conducted during pre-trial proceedings in a criminal case, or in court in accordance with the requirements of Articles 173 - 174, 187 - 190, 275 of the Code of Criminal Procedure of the Russian Federation.
Testimony of the victim
(Article 78 of the Code of Criminal Procedure of the Russian Federation) - information provided by him during interrogation conducted during pre-trial proceedings, or in court in accordance with the requirements of Art.
187 – 191, 277 Code of Criminal Procedure of the Russian Federation. The testimony of a witness
(Article 79 of the Code of Criminal Procedure of the Russian Federation) is information provided by him during interrogation conducted during pre-trial proceedings in a criminal case, or in court in accordance with the requirements of Articles 187 - 191, 278 of the Code of Criminal Procedure of the Russian Federation.
An expert's testimony
is information provided by him during an interrogation conducted after receiving his conclusion, in order to clarify or clarify this conclusion.

19. Use of the results of operational investigative activities at the stage of initiating a criminal case and during the preliminary investigation. Presentation of the results of the operational investigation to the investigator and to the court.

Operational investigative activity is a type of activity carried out publicly and secretly by operational units of state bodies authorized by this Federal Law (hereinafter referred to as the bodies carrying out operational investigative activities), within the limits of their powers, through the conduct of operational investigative activities in order to protect life, health, human and civil rights and freedoms, property, ensuring the security of society and the state from criminal attacks. The objectives of operational-search activities are: identifying, preventing, suppressing and solving crimes, as well as identifying and identifying the persons preparing, committing or committing them; carrying out the search for persons hiding from the bodies of inquiry, investigation and court, evading criminal punishment, as well as searching for missing persons; obtaining information about events or actions (inaction) that create a threat to the state, military, economic or environmental security of the Russian Federation;

Article 144. Procedure for considering a report of a crime1. The inquiry officer, the inquiry body, the investigator, the head of the investigative body are obliged to accept, verify a message about any crime committed or being prepared and, within the competence established by this Code, make a decision on it no later than 3 days from the date of receipt of the specified message. When checking a report of a crime, the inquiry officer, the inquiry body, the investigator, the head of the investigative body has the right to demand documentary checks, audits, studies of documents, objects, corpses and to involve specialists in these checks, audits, studies, and to give the inquiry body a binding written order. on carrying out operational-search activities.2. According to a report of a crime disseminated in the media, the inspection is carried out on behalf of the prosecutor by the inquiry body, as well as on behalf of the head of the investigative body by the investigator. The editorial office and the editor-in-chief of the relevant mass media are obliged to hand over, at the request of the prosecutor, investigator or body of inquiry, the documents and materials at the disposal of the relevant mass media confirming the report of a crime, as well as information about the person who provided the specified information, except in cases where this the person has set a condition to keep the source of information secret.3. The head of the investigative body, the head of the inquiry body has the right, at the motivated request of the investigator or interrogating officer, respectively, to extend the period established by part one of this article to 10 days. If it is necessary to carry out documentary checks, audits, studies of documents, objects, corpses, the head of the investigative body, at the request of the investigator, and the prosecutor, at the request of the inquirer, has the right to extend this period to 30 days with a mandatory indication of the specific factual circumstances that served as the basis for such an extension.4. The applicant is issued a document confirming the acceptance of a report of a crime, indicating information about the person who received it, as well as the date and time of its acceptance.5. A refusal to accept a report of a crime may be appealed to the prosecutor or to the court in the manner established by Articles 124 and 125 of this Code.6. The application of the victim or his legal representative in criminal cases of private prosecution, submitted to the court, is considered by the judge in accordance with Article 318 of this Code. In the cases provided for in part four of Article 147 of this Code, verification of a crime report is carried out in accordance with the rules established by this article.

Detention of a suspect in a crime (concept; characteristics of goals, grounds, motives, conditions of detention; relationship with other coercive measures). The practice of detaining suspects.

The detention of a suspect is closely related to such coercive measures as detention and administrative detention. What they have in common is that each of these measures represents a deprivation of a citizen’s freedom, which significantly affects his constitutional right to personal integrity. At the same time, there are significant differences between them, which make it possible to distinguish them into independent legal institutions. The detention of a person suspected of committing a crime differs from the application of a preventive measure in the form of detention. Detention is carried out at the stage of preliminary investigation, as a rule, by the investigating agency and the investigator. It precedes detention, but does not replace it. Detention is also used in subsequent stages. This preventive measure can also be applied by the prosecutor and the court. Detention is applied only to the suspect, while detention is applied to the accused and only in exceptional cases (Article 90 of the Code of Criminal Procedure) to the suspect. Detention is urgent and cannot be planned in advance. may, therefore, unlike detention, it does not require the sanction of the prosecutor. The period of detention of a suspect is no more than 72 hours, it cannot be extended (Article 122 of the Code of Criminal Procedure) The period of detention of the accused during the investigation of a case is set to two months, which may be extended (Article 97 of the Code of Criminal Procedure). Detention of a suspect, as an investigative action, differs from administrative detention. Detention in the procedural sense is applied only to persons suspected of committing a crime, and only by specially authorized officials with the right to investigate criminal cases. Administrative detention is applied to persons who have committed administrative offenses, the range of which is much wider than the range of types of crimes established by the Criminal Code. The detention of a suspect must be reported in writing to the prosecutor, who will verify its legality and validity. In case of administrative detention, the prosecutor is not notified. With the issuance of a protocol on detention, a person suspected of committing a crime acquires the procedural status of a suspect and the corresponding rights and obligations of a participant in criminal proceedings. An administratively detained person does not acquire such a position. Criminal procedural and administrative detention differ in terms of duration: 72 hours—if detained in accordance with Art. 122 of the Code of Criminal Procedure and 3 hours - in case of administrative detention, unless other terms are established by the legislator. Detention in the criminal procedural sense must be distinguished from such a concept as the actual (physical) detention of a citizen and delivery of him to the police. According to the law, the right to apply detention of a person suspected of committing a crime belongs only to the inquiry authorities or the investigator. The prosecutor can also make a decision to detain a person suspected of committing a crime.

The detention of a person suspected of committing a crime will be legal and justified if the following conditions are met.

1. Detention can be carried out only after the initiation of a criminal case.

2. The body of inquiry or the investigator has the right to detain only a person suspected of committing a crime for which a sentence of imprisonment may be imposed (Article 122 of the Code of Criminal Procedure). If this type of punishment is not provided for a crime, then the suspect cannot be detained.

3. Detention cannot be applied on the basis of an unfounded assumption that a particular person is involved in the commission of a crime. The decision to detain must be supported by the necessary factual data. Even in the case when a person is caught at the scene of a crime, detained “hot on the trail,” the body of inquiry or the investigator, before applying procedural detention to him, must carry out urgent additional investigative actions: interrogation of eyewitnesses, inspection of the scene of the incident, personal search of the person brought in and etc.

Sources of information not provided for by law and not verified (obtained from anonymous sources, as a result of operational search activities, the use of a sniffer dog, etc.) cannot be used as the basis for a decision to detain a person as a suspect.

4. In accordance with Part 1 of Art. 122 of the Code of Criminal Procedure, a person suspected of committing a crime can be detained only if there is one of the following grounds:

a) when a person is caught committing a crime or immediately after its commission;

b) when eyewitnesses, including victims, directly point to this person as having committed a crime;

c) when obvious traces of a crime are found on the suspect or on his clothes, on him or in his home.

According to Part 2 of Art. 122 of the Code of Criminal Procedure, other data may be the basis for the detention of a suspect. They may, to one degree or another, indicate his involvement in the crime. If there is other information giving grounds to suspect a specific person of committing a crime, he can be detained only if at least one of three additional conditions is met:

a) the person attempted to escape; b) it does not have a permanent place of residence; c) when the identity of the suspect has not been established.

another procedural condition for the legality of detention. This is his motivation. This condition of detention is not disclosed in the law. In its general meaning in procedural literature, motives for detention are understood as specific data justifying the need for detention in a given case, the desire for the immediate purpose of detention, the validity, and reasoning of the decision made. Such arguments (or motives) can be, for example, real fears that the suspect, while remaining at large, may escape or interfere with establishing the truth in the case, or will continue criminal activity. In any case of detention of a person suspected of committing a crime, the inquiry agency or investigator is required to draw up a protocol indicating the grounds, motives, day and hour, year and month, place of detention, explanations of the detainee and the time of drawing up the protocol. It is signed by the person who compiled it and by the detainee. In practice, detention is usually accompanied by a personal search of the detainee, which must be carried out in accordance with the rules established by Articles 167-171 of the Code of Criminal Procedure, with the mandatory participation of witnesses. True, a personal search is carried out without issuing a separate resolution and without the sanction of the prosecutor (Part 2 of Article 172 of the Code of Criminal Procedure). The protocol in this case is called “Protocol of detention and personal search.”

If the detention of a suspect is accompanied by other investigative actions, for example, his examination, inspection of his clothing, then the rules that govern the relevant investigative actions must be observed. In this case, protocols of investigative actions are drawn up separately. With the preparation of a protocol of arrest, a person suspected of committing a crime is placed in the procedural position of a suspect. Thus, it acquires the rights of a participant in the process (Part 2 of Article 52 of the Code of Criminal Procedure). The investigative body and the investigator are required to notify the prosecutor about the arrest made within 24 hours. Within 48 hours from the moment of receiving notification of the detention, the prosecutor is obliged to authorize the detention or release the detainee. The inquiry agency or investigator notifies his family about the detention of a person suspected of committing a crime, if her place of residence is known. When detained on suspicion of committing a serious crime, the family is notified if this does not interfere with establishing the truth in the criminal case. The parents or persons replacing them are notified of the detention of a minor in all cases, regardless of the severity of the crime of which the detainee is suspected. Form notification is not established by law. This can be done by telephone, telegraph, courier, etc. A note is made about the notification, as a rule, on the arrest report, indicating the degree of relationship of the notified family member, his last name, first name, patronymic, time and method of notification.

Those detained on suspicion of committing a crime are released if:

a) the suspicion of committing a crime has not been confirmed; b) there is no need to apply a preventive measure in the form of detention to the detainee; c) the period of detention established by law has expired.

The release of the detainee is carried out by the head of the place of detention by order of the person conducting the inquiry, the investigator or the prosecutor, and immediately. If within the period established by law (within 72 hours) the issue of the detainee is not resolved - there is no decision to release the detainee or to apply a preventive measure in the form of detention - then the head of the place of detention himself releases this person. This decision is documented in a protocol, and at the same time a written notification is sent to the prosecutor, as well as to the person conducting the inquiry or the investigator.

Testimony of the victim, witness

Evidence in a criminal trial in the form of testimony from the victim implies information about any of his relationships with the accused. The subject of the testimony is the circumstances that will subsequently be subject to proof. Data that is not supported by specific sources of its receipt is not considered evidence.

Differences between the testimony of a witness and a victim include the following features:

A person who was affected by the consequences of the crime is interrogated as a victim, and any person can act as a witness.
The witness has no interest in the case, while the victim pursues his own interests.
Giving testimony of a witness is his direct responsibility, and for the victim it is also a right.
The victim is present throughout the trial.
The victim can participate in court arguments regarding private prosecution cases.

Approaches to proving negative facts in civil proceedings

I am adding a link to the full text of the work. Here I would like to briefly and concisely outline the main thoughts and observations:

1.1 Legal history has long been aware of the problem of proving negative facts. Suffice it to recall: a) Paul’s saying ei incumbit probatio, qui dicit, non qui negat (he who affirms and not denies must prove), which is sometimes interpreted in favor of the approach about the inadmissibility of proving negative facts (which seems erroneous); b) Roman maxims factum negantis NULLa probatio (denial of facts does not require proof) and NULLius NULLa sunt praedicata (there are no signs of what does not exist). Gradually, approaches to the possibility of proving them underwent changes.

1.2 The conviction in the possibility of proving negative facts reached its greatest strength at the turn of the 19th-20th centuries, and the French scientist Bonnier (who, as a rule, was referred to by most pre-revolutionary proceduralists) became a pioneer in this area [1].

2.1 In the APC and the Civil Procedure Code there is no definition (and indeed the concept itself) of a negative fact, although they are universally included in the subject of proof, and for certain categories of claims (claims to the court) their presence in the subject of proof is even immanent.

2.2 The most common doctrinal definition of a negative fact is: “the absence of something, the failure to commit some acts, the failure to fulfill obligations” [2]. This definition does not take into account future negative facts, the occurrence of which the law associates with certain legal consequences, for example: the impossibility (lack of possibility) of executing a future judicial act when requesting interim measures (Part 2 of Article 90 of the APC); impossibility (lack of possibility) of restoring the debtor's solvency as a result of foreclosure by the pledgee on the collateral (paragraph 5, clause 2, article 18.1 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”).

2.3 How courts sometimes define a negative fact: a failed event or an act that leaves no traces [3]. This is also not always true: the “trace” of the sought-after negative fact may be an evidentiary fact associated with it (positive or negative).

2.4 A negative fact should be defined as an action, event or phenomenon that did not take place in the past, does not exist in the present or will not exist in the future.

3.1 In judicial practice, there are positions that negative facts are not subject to proof (cannot be proven) [4], which runs counter to the norms of substantive and procedural law.

3.2 A number of civil legal relations in the event of claims arising from them, as well as some procedural requirements, objectively lead to the need to prove negative facts: unjust enrichment; certain grounds for invalidity of transactions; failure to fulfill obligations by the counterparty; loss of a writ of execution and much more.

3.3 Prescriptions Art. 56 Code of Civil Procedure and Art. 65 of the APC on the burden of proof are fully applicable to negative facts; there are no special legislative rules in this regard.

4.1 The first (most obvious and widespread in judicial practice) approach to proving negative facts is redistribution of the burden of proof.

4.2 Ideology of the approach (position of the courts): the use of general rules on the burden of proof (whoever demands/objects is the one who proves) when it is necessary to prove negative facts creates an encroachment on the balance of procedural possibilities [5], since it is impossible to objectively prove a negative fact [6].

4.3 As a result of the redistribution of the burden of proof, a negative fact for the applicant/objector turns into a positive one for the opposite party [7]. It is up to this latter to prove it.

4.4 To ensure that such “pirouettes” with the burden of proof do not raise questions, the courts are accustomed (in relation to arbitration cases) to make references to Art. 9 and art. 65 of the Arbitration Procedure Code of the Russian Federation in their systematic interpretation [8], although their content, in the author’s opinion, does not provide for provisions justifying the use of this mechanism.

4.5 Senate practice also knew cases of redistribution of onus probadi to prove negative facts, however, in general, this was an exception to the general rule, and the most prominent pre-revolutionary proceduralists had a negative attitude towards such a mechanism [9].

4.6 In itself, redistribution of the burden of proof, as a rule, is not a negative phenomenon, however, in the absence of legislative provisions for its application and due to excessive radicalism, such a mechanism should not be used unless absolutely necessary.

4.7 This approach has obvious disadvantages: 1) the need to prove a negative fact may arise in other types of proceedings than a claim, where there is simply no opposite party (recognizing a citizen as missing); 2) it can directly follow from the law which of the parties is called upon to prove a negative fact (a person who has applied to the court with a demand to recognize the involvement of a specialist to support the activities of an arbitration manager as unfounded is obliged to prove such groundlessness (clause 5 of Article 20.7 of the Federal Law of 26.10 .2002 No. 127-FZ “On insolvency (bankruptcy)”).

5.1 Another approach: proving positive facts (evidential facts) associated with a negative fact (the sought fact).

As a rule, when proving negative facts, the main emphasis is on indirect evidence and on establishing specific evidentiary positive facts. However, sometimes an evidentiary fact established by indirect evidence can be another negative fact, and the sought-after negative fact itself can sometimes be proven by direct evidence (examples below).

5.2 For conceptual clarity, let us denote that further the approach of S.V. is used. Kurylev to direct and indirect evidence: direct evidence is considered to be evidence that makes it possible to establish an evidentiary fact that has an unambiguous connection with the desired fact, and indirect evidence is considered to be a fact that has a multivalued connection [10].

5.3 An example of using direct evidence to prove a negative fact: we lose a writ of execution as a result of an accident with a car of a postal organization, the services of which we used to send a writ of execution to the FSSP of the Russian Federation. To prove the loss of the writ of execution (i.e. a negative fact – we do not have it) and to obtain a duplicate of it, we can provide the court with a notification to the postal organization about the incident. This is direct evidence, since the established evidentiary fact of the destruction of the car allows us to come to the only possible conclusion - that we do not have a writ of execution. It would not be superfluous to contact the Department of the Federal Bailiff Service of the Russian Federation, where the execution was supposed to be carried out, for the issuance of a certificate confirming the absence of initiated enforcement proceedings on this sheet (indirect evidence).

An example of indirect evidence to establish a positive evidentiary fact: failure to fulfill a contractual obligation (negative fact) can be proven by establishing the presence of a gaping crack on the facade of the building (positive evidentiary fact), the elimination of which was the purpose of the obligation. The indirect nature of the evidence is manifested in the fact that such a crack could have appeared for other reasons, even if we assume that the contractor fulfilled the obligation properly.

An example of indirect evidence to establish a negative evidentiary fact: the already mentioned certificate from the FSSP of the Russian Federation.

5.4 Disadvantage of the approach: the case may contain only indirect evidence (for example, the mentioned certificate from the Federal Bailiff Service of the Russian Federation), which is traditionally considered “second-class”, which will not allow the court to establish the sought-after negative fact.

6.1 Given this, it may be possible to accept a reduced standard of proof – prima facie. The Supreme Court of the Russian Federation has repeatedly expressed its position on the need to lower the standard of proof from “general civil” to prima facie in relation to certain categories of isolated disputes in bankruptcy cases: “in proving the illegitimacy of the decision of the arbitration court, the bankruptcy creditor only needs to provide the court with evidence “prima facie” , confirming the materiality of the doubts in the presence of a debt , since otherwise the burden of proving negative facts would be imposed , which is unacceptable from the point of view of maintaining a balance of procedural rights and guarantees for their provision ” [11].

6.2 The rationale and advantages of applying a lower standard of proof before redistributing the burden of proof: 1) the applicant is not exempt from proof, which fits into the rules on the burden of proof; 2) the lowering of the standard is justified by the fact that the applicant is not a participant in material legal relations, and therefore is objectively deprived of the opportunity to provide evidence in the usually required volume.

6.3 Disadvantage: the lack of general regulatory and legal grounds for ranking standards of evidence, since they are formed by judicial practice for certain categories of cases (disputes), mainly bankrupt ones.

6.4 In itself, lowering the standard of proof does not eliminate the problem of proving a negative fact, therefore, for these purposes, the above approach and indirect evidence should be used together. For example, the Subordination Review states that “in a situation where a creditor not associated with the debtor has presented indirect evidence that casts doubt on the existence of the debt, the affiliated creditor cannot limit itself to presenting a minimum set of documents (for example, the text of the loan agreement and payment orders to it, separate documents, with reference to which funds were transferred within the group) to confirm the reality of the loan relationship” [12].

Sources:

[1] See, for example: Textbook of Russian civil proceedings / E.A. Nefedieva. – Krasnodar: Council. Kuban, 2005. - 472 p.

[2] I. Zaitsev, M. Fokina Negative facts in civil cases // “Russian Justice”, No. 3, March 2000)

[3] Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated October 29, 2018 No. 308-ES18-9470 in case No. A32-42517/2015 // ATP “ConsultantPlus”

[4] The author of this work generally shows the attitude of Russian courts to negative facts, see: T. Goroshko. Negative facts are not proven: what is it - theory or practice? // Housing law. 2021. No. 1. P. 33 - 43.

[5] Ruling of the Supreme Court of the Russian Federation dated February 28, 2018 in case No. 308-ES17-12100, A32-1593/2016 // ATP “ConsultantPlus”

[6] Resolution of the Arbitration Court of the Volga-Vyatka District dated January 31, 2018 No. F01-6369/2017 in case No. A43-6387/2017 // ATP “ConsultantPlus”

[7] Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 29, 2013 in case No. A51-15943/2011 of the Arbitration Court of the Primorsky Territory // ATP “ConsultantPlus”

[8] See, for example: Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated July 10, 2017 No. 305-ES17-4211 in case No. A40-11314/2015 // ATP “ConsultantPlus”

[9] Experience of commentary on the statute of civil proceedings / [Op.] K. Annenkova. T. 1-6. — St. Petersburg: type. M. Stasyulevich, 1878-1887. – T. 2

[10] Bonner A.T. Indirect evidence in civil and arbitration proceedings: problems of theory and practice // Law. 2021. No. 4. P. 39 - 55.

[11] “Review of the judicial practice of the Supreme Court of the Russian Federation No. 1 (2016)” // “Bulletin of the Supreme Court of the Russian Federation”, No. 12, December 2016

[12] P. 1 “Review of judicial practice in resolving disputes related to the establishment in bankruptcy procedures of the claims of the controlling debtor and persons affiliated with him” (approved by the Presidium of the Supreme Court of the Russian Federation on January 29, 2020) // ATP “ConsultantPlus”

Evidence

In general terms, they represent the consequences of a criminal act. Physical evidence can be in the form of things in the material world that were subject to change as a result of a criminal act. Their evidentiary value is considered to be their location (for example, a stolen item found), the fact of their creation (a fake document), or their actual properties (configuration, as well as the size of the criminal’s footprints).

Classification and types of evidence obtained as a result of investigative activities:

Items that served as a crime weapon (weapons, sharp objects).
Items that have retained traces of a criminal act (items damaged by firearms, clothing with blood stains).
Money and valuables acquired illegally.
Items that have been the target of attacks (stolen items or valuables).

Protocols of investigative and judicial actions - classification of evidence

The criminal process considers the records of judicial actions and investigations as independent sources of evidence.

Protocols that certify facts and circumstances are usually established:

During an investigative experiment, when giving testimony at the scene of a crime.
During examination, examination, seizure, identification.
The protocol is the main source of information on the case, on the basis of which the issue of the validity and legality of the court decision is decided.

Thus, it should be noted that a protocol is a written act in which officials, based on direct observation, recorded general information about the facts to be proven.

Personal evidence

Explanations of the parties and third parties about the circumstances of the case are studied by the court along with other evidence. If a party obligated to prove its claims or objections, while having evidence in the case, withholds and does not present them to the court, then the court has the right to draw a conclusion only on the basis of the explanations of the opposite party (Article 68 of the Code of Civil Procedure). Confirmation of the facts in the explanation of the party on which the claim of the other party is based leads to the absence of the need to prove them in the future.

Written explanations must be read aloud during the hearing. The written form of explanations does not make them written evidence. If the court finds that the explanations are untrue and are made:

under the influence of someone else's will (threats, violence, deception);
in order to hide the truth;
as a result of an honest mistake;

then he does not accept them and makes a determination about this.

A witness is a citizen who presumably knows some information about the circumstances of the case being examined by the court. Information provided by a witness, if its source is not disclosed, is not accepted by the court as evidence. Some citizens cannot be witnesses in court (for example, representatives in the process, but only in relation to information that has become known to them in this capacity). The witness is obliged to give truthful testimony under penalty of criminal liability. A number of persons may not testify (this includes close relatives, for example, spouses against each other, as well as some government officials).

Means of proof

This classification of evidence divides all means of proof into 2 groups:

personal;
real (in the broad sense of the word).

In turn, personal means of proof are divided into:

explanations of the parties and third parties;
witness statements.

And material (in the broad sense of the word) means of proof are divided into:

written evidence;
material (in the narrow sense of the word) evidence;
audio and video recordings;
expert opinions.

All of the above means of proof are enshrined in both the Civil Procedure Code (Article 55) and the Arbitration Procedure Code (Article 64). Let us note that in the Civil Procedure Code this list is exhaustive and other means of proof in the process are unacceptable, and in the Arbitration Procedure Code “other materials and documents” are added to the list.

Personal and material evidence

Physical evidence is a material object that reflects the circumstances of a criminal act in the form of any traces of influence. This type can include audio, photo or video recording.

Physical evidence to a lesser extent expresses the traces of a legally significant event that appear in the process of influence.

Personal evidence is the testimony of witnesses, the accused or the victim. This also includes protocols of judicial and investigative actions, expert opinions.

A distinctive feature of this type of evidence is the mental perception of events, as well as the written or oral transmission of information significant in the case.

Written evidence

Written evidence includes:

contracts;
acts;
certificates;
business correspondence;
documents of legal proceedings (decisions, sentences, court rulings, minutes of meetings, etc.);
electronic documents, as well as those received by fax, but they must be certified (for example, by an electronic signature);
other documents.

For presentation in proceedings, the following rules apply to written evidence:

they are presented either in the original or in the form of a duly certified copy (only in the original if different copies are contradictory or if this is expressly established by law);
they can be presented at the meeting via video conferencing (if there are appropriate technical means) (clause 23 of the resolution of the plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 12);
a foreign document must be legalized (for some official documents, legalization is not required if this is directly established by an international treaty, but according to Article 255 of the APC, a translation certified by a notary is required).

Direct and indirect evidence

This classification of evidence and its practical significance are also subject to detailed consideration. It is customary to call direct evidence that serves to establish specific circumstances that are subject to further proof. These include the events of the crime, the guilt of the person, and the fact that the crime was committed. Direct evidence may indicate a person’s involvement or non-involvement in a given crime.

Indirect evidence establishes intermediate facts from which a conclusion is drawn about the existence of circumstances to be proven. With their help, it is not the circumstances of the crime themselves that are determined, but only the facts associated with it, the analysis of which makes it possible to find out the availability of the necessary information on the case.

Types of evidence

In legal doctrine, there are 3 classifications of evidence:

by the type of connection between the evidence and the circumstances of the dispute;
on the formation process;
by the source of information about facts (means of proof).

The first classification of evidence divides them into:

straight;
indirect.

Direct evidence has a direct connection with the circumstance it defines, while indirect evidence has an indirect connection. But it has a direct connection with the fact related to the circumstance being proven. Such facts are called incidental.

Based on indirect evidence, only a conjectural conclusion about the sought-after circumstance is possible. Therefore, it is believed that with the help of one individual indirect evidence it is impossible to establish the existence of a proven fact (for example, the resolution of the Federal Antimonopoly Service dated 02/03/2012 in case No. A12-11102/07).

In practice, the following rules apply regarding circumstantial evidence:

they confirm direct ones that lack reliability;

in the absence of direct evidence, they are used in aggregate (for example, the resolution of the Federal Antimonopoly Service of the Moscow Region dated October 15, 2013 in case No. A40-5132/13);
such a set must have the property of being systematic; the only possible conclusion about the circumstance being established must follow from it;
the facts included in the totality must be reliable.

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Primary and derivative evidence

The classification of evidence in criminal proceedings determines its types, such as initial and derivative.

Primary information includes information obtained from a primary source (a witness’s report of the events of a crime that he himself saw and can confirm).

Derivative evidence is information that indirectly reflects the circumstances of the case. In this case, the data obtained will be considered indirect (the witness stated that a crime was committed, which he himself did not see, but was informed about it through a third party).

Evidence is classified according to various criteria or grounds. The classification of evidence is of great importance, both theoretical and practical. The division of evidence indicates the amount of means and methods of proof available to the court, reveals the characteristics of certain types of evidence, which are important to take into account in the process of collecting, researching and evaluating it, and helps to avoid errors in judicial proceedings.

The first group of classification of evidence is their division according to the method of formation into primary and derivative.

Primary – refers to evidence obtained from a primary source. Derivatives, in turn, are proofs that reproduce the content of another proof. They are received “second-hand”.

The initial evidence will be the testimony of a witness who learned about the fact from another person and will be derivative. The original document (for example, a driver's license) is the initial evidence; and a copy from it is a derivative. Traces left on the ground or objects are original, casts from traces are derivative.[1]

Initial proofs have an undeniable advantage over derivatives. The initial proof always comes from the original source. Derivative evidence arises on the basis of the initial one; it can also be reliable, but the court must approach its assessment with caution. When analyzing initial and derivative evidence, the main attention in the legal literature is paid to derivative evidence, i.e. They are the ones that conceal the possibility of making mistakes in the process of their formation.

According to the principle of immediacy, the court should primarily examine the facts of the case from primary sources, and derivative evidence should be used primarily as a means of discovering primary sources.

The practical significance of this classification lies in the importance of the process of forming this and other evidence, it allows you to correctly conduct the process of examining evidence during the trial, correctly pose the question to the party, witness, expert and find out the information necessary in the case.

The court cannot refuse to include evidence in the case because it is not the primary source. The reliability of both initial and derivative evidence is assessed by the court as a result of comparing both with all the materials of the case.

Based on the nature of the conclusion, forensic evidence is divided into direct and indirect.

Direct evidence is evidence that, even taken separately, makes it possible to draw only one definite conclusion about the fact being sought.

Indirect evidence, taken separately, provides the basis not for a definite, but for several conjectural conclusions, several versions regarding the sought-after fact. Therefore, indirect evidence alone is not enough to draw a conclusion about the sought-after fact. Indirect evidence, taken not separately, but in connection with the rest of the evidence in the case, then, when comparing them, it is possible to discard unfounded versions and come to one definite conclusion.

Indirect evidence can be used not only as an independent means, but also in conjunction with direct evidence, reinforcing it, or, conversely, weakening it. [2]

Direct evidence does not always play a greater role than indirect evidence. In judicial practice, indirect evidence is used widely in civil cases in cases where there is no direct evidence in the case or there is insufficient evidence. However, the use of indirect evidence is more difficult than direct evidence. The task of the court in relation to direct evidence is to establish and test the reliability of such evidence. Having checked and established their reliability, the use of direct evidence does not present any obstacles, since the sought fact is directly confirmed or refuted.

The practical significance of dividing evidence into direct and indirect is that the differences between this evidence are taken into account by the judge when collecting evidence. Circumstantial evidence must be in such a volume that it is possible to exclude all assumptions arising from it, except one.

The presence of direct evidence does not exclude the possibility of refuting its content. Direct and indirect evidence influence the content of judicial evidence: the use of indirect evidence lengthens the path of proof and introduces additional steps for the court on the path to resolving the main issues of the case.

The differences between direct and indirect evidence require corresponding consideration of their characteristics when assessing the evidence. Direct, like indirect, evidence does not have a predetermined force for the court and must be assessed in conjunction with other evidence.

There is another type of classification of evidence: dividing it by source.

The source is understood as a certain object or subject on which or in whose consciousness various facts that are important for the matter are reflected.

Based on the source of evidence, evidence is divided into personal and material.

Personal evidence includes explanations of the parties and third parties, testimony of witnesses, and expert opinions. Physical evidence may include objects of the material world.[3]

The classification of evidence allows us to conclude that none of the classifying features gives the advantage of one piece of evidence over another when examining and evaluating it. The classification reveals the features of various means of proof and the information about the facts that is collected using these means and contributes to the correct assessment of evidence.

[1] Zaitsev I.M. Vikut M.A. Civil process in Russia. – M., 1999. – p.167

[2] Shakaryan M.S. Civil procedural law. – M.: 2004. – p. 180

[3] Musina V.A. Chechina M.A. Chechota D.M. Civil process M., 1998. – p. 181

Accusatory and exculpatory evidence

Incriminating evidence refers to facts that establish a person’s guilt in an act committed. This type of data includes the testimony of the accused who admitted his guilt, the testimony of the victim or witness. A characteristic feature of incriminating evidence is the aggravation of the criminal’s guilt.

Exculpatory evidence is information that disproves a person’s guilt. Such circumstances include the testimony of persons participating in the case regarding the innocence or non-involvement of the subject in the crime committed. A characteristic feature of this type is considered to be mitigating circumstances.

Criminal law, civil law

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The division of evidence into direct and indirect is based on their relationship to the circumstances being established. Direct evidence indicates the fact being proven directly, directly, in one step. The content of direct evidence is the fact being proven. For example, an eyewitness talks about the circumstances of a crime he observed. His testimony directly points to the events he describes. Direct evidence is a direct observation of a fact (or, as they used to say, a direct observation of the truth). Indirect evidence indicates the fact being proven not directly, not directly, but indirectly. It points to some other fact, which in itself has no legal significance, but through a certain series of conclusions arising from it, indirect evidence allows us to confirm the sought fact. If a witness describes not the crime itself, but its consequences, for example, he saw the suspect leaving (or running away) from the scene of the crime, from this a conclusion can be drawn about the possibility of him committing a crime.

At the same time, this witness directly indicates the fact that the suspect was removed from the scene of the crime, therefore, in relation to this fact, his testimony is direct evidence. Thus, any evidence is both direct and indirect at the same time. Directly pointing to some intermediate fact, the proof is at the same time indirect in relation to the main fact, which can be established with the help of this intermediate fact through a series of consistent conclusions.

For example, testimony establishes a quarrel based on jealousy between spouses. The testimony of a witness is direct evidence of a quarrel, from which a conclusion can be drawn about the presence of a motive to commit murder. The presence of a quarrel is indirect evidence of jealousy, jealousy is indirect evidence that the jealous person has committed murder.

The classification of criminal procedural evidence into direct and indirect, thus, depends on what we take as the starting point, i.e. for the basis of classification. However, no consensus has been developed on the basis of this classification in the theory of criminal proceedings. Some scientists believe that the basis of classification is the relation of evidence to the subject of proof, while others believe that it is to the main fact. Based on the concept of the burden of proof formulated in Art. 14 of the Code of Criminal Procedure, it can be considered that the subject of proof in a criminal case is the guilt of a person in committing a crime. A person’s guilt can be established in different ways depending on the content of the evidence supporting it. Direct evidence links a specific person to the commission of a crime. Indirect evidence connects a person not with the fact of committing a crime, but with some other (intermediate) fact from which it can be concluded that the accused committed a crime [1]. If we take the main fact as the basis for classification, understood only as the fact that a person has committed a crime, it should be recognized that a significant part of the evidence is indirect in nature or does not lend itself to such classification at all, and is beyond the division of evidence into direct and indirect [2].

It is unlikely that such an approach to classifying evidence can be considered justified. Since the main fact is not the entire set of circumstances subject to proof, but only a part of them, the classification basis under consideration does not correspond to one of the conditions of any scientific classification, since it does not cover all classified phenomena.

On the other hand, the main fact does not consist of any one fact; it includes, as we have seen, many facts that in their totality form the corpus delicti. How to consider evidence that directly establishes the place or time of a crime? [3] Can there be such evidence that can directly and directly establish the entire corpus delicti? Reflection on these questions leads to the conclusion that neither the subject of proof nor its main fact can be taken as the basis for dividing evidence into direct and indirect. Such a basis is the relation of the evidence to each specific, individual fact that can be proven or, in the language of logic, to the thesis being proven.

The division of evidence into direct and indirect is due to the existence of different ways to establish certain circumstances. In general, it can be argued that the path of direct evidence is simpler and shorter than the path of indirect evidence. The connection between direct evidence and the subject of proof is obvious, it is simple and does not require additional justification. “The objective connection of such facts with the subject of proof is a connection between the part and the whole... Here the task comes down only to establishing the reliability of information about this fact,” writes one of the main researchers of indirect evidence, A. A. Khmyrov [4]. The content of direct evidence is information about the circumstance to be proven [5].