2.1 Predity, admissibility, accuracy of testimony

The relevance of evidence is a rule, according to which the court takes only the evidence that is directly related to the case. Justice in the field of entrepreneurial and other economic activity is carried out by resolving economic and other disputes related to the competence of arbitration courts. As the primary and most important conditions for the implementation of justice tasks, the need for accurate establishment by the court of the actual circumstances of the controversial relationship. For proper and rational construction judicial trial It is important to identify the limits of the judicial research and the volume of the necessary evidential material for each specific case. These issues are resolved according to the rules of the relevance of evidence. According to Art. 67 APC RF " court of Arbitration It takes only those evidence that relate to the case under consideration. "

The relevantness of testimony as evidence depends on the correct definition of the subject of proof. Writing testimony, confirming or refuting the existence of the circumstances of the subject of proof, will be relaxing. Official evidence cannot be allowed. Part 2 Art. 67 of the APC RF contains a direct indication of 2 cases of inadmissibility of non-dietary evidence. In the first group included documents containing petitions in support of persons participating in the case or assess their activities in support of the Arbitration Court. We are talking about documents that do not relate to the subject of proof. Moreover, the petition in support of persons participating in the case containing their assessment of their activities can negatively affect the independent judicial consideration of the circumstances of the case. Documents assigned to the specified group do not matter to establish the circumstances of the case, therefore, are incomplete.

Another group includes other documents that are not related to the establishment of circumstances under the case under consideration. The consequences of submission of these documents are united: they are not allowed to consider the arbitration court, do not join the case file.

As can be seen, the foregoing refers to documentary evidence, but there are no obstacles to the application of these requirements for testimony. The content of testimony should include only information about the facts. Various estimates given by the witness to the facts, his considerations and guesses of the proof should not have.

The admissibility of evidence is the requirement established by the legislation, limiting the use of specific means of proving, or prescribing the obligatory use of specific means of proof when determined by certain actual circumstances of the case. The admissibility of evidence was determined by the APC RF: "The circumstances of the case, which according to the law should be confirmed by certain evidence, cannot be confirmed in the arbitration court of other evidence" (Article 68 of the APC RF).

Above the example in which the court of higher authorities on the results of consideration was given cassation appeal The plaintiff pointed out that the act of reconciliation signed by an unauthorized person, testimony is not appropriate evidence testifying for the time interruption of limitation. That is, in this example, the court regarded testimony as improper evidence. Let's analyze the reasons for this. In accordance with Art. 71 APC RF Arbitration Court assesses the relevance, admissibility, the accuracy of each evidence separately, as well as the sufficiency and mutual relationship of evidence in their aggregate. In this regard, it seems to be important to establish the circumstances under which information was received on the actions on the recognition of debt. Of course, the interest of the person who informed the information will be important. For example, a witness can be a debtor worker, creditor or third party. It is necessary to establish under what circumstances, in which actions were committed on recognition of debt, and such circumstances should be confirmed by written evidence, otherwise the court may not adopt testimony. For example, it can be letters, protocols, agendas, indicating that such a number took place, such as a person, including the debtor, participated. If this is confirmed by written evidence, the probability of a positive attitude of the court to the testimony of witnesses confirming the execution of the Debt Action Debtor is great. If you restrict ourselves to just what to refer to the call on the phone between the authorized representatives of the parties, in which the representative of the debtor acknowledged the presence of debt, then it is obvious that this will not be enough to apply the arbitration court of Art. 203 of the Civil Code of the Russian Federation.

The APC RF does not provide any specific list of facts and circumstances that could be confirmed by testimony, or vice versa could not be confirmed. Direct ban on the use of witness readings can be found in Art. 162 of the Civil Code of the Russian Federation, where it is indicated that non-compliance with the simple written form of the transaction deprives the parties to the right in the event of a dispute to refer to the confirmation of the transaction and its conditions for testimony, but does not deprive them of the right to lead written and other evidence. The use of testimony in the Civil Code of the Russian Federation is also affected by Art. 493, 812, 887. Some other special cases of use of testimony, in relation to the arbitration process, the law does not provide.

Proof obtained with violation of the law arbitrage practice Recognizes the "testimony of a witness," not a warned of criminal responsibility for the gift of obviously false testimony and refusal to testify; "Witness's testimony" without clarification of him Part 6 of Art. 56 of the APC RF (Art. 51 of the Constitution of the Russian Federation) with a simultaneous warning of criminal liability for the refusal of testimony and the relevant subscription; Evidence recognized in the order of Art. 161 APC RF counterfeit; and etc.

By general rule procedural sourceswhich contain actual data that do not meet the norms of truth or morality, should also not be recognized as evidence. An example of evidence that does not correspond to the norms of truth may be the readings of the extrase as a witness, if, from his words, information relating to the case, he learned with the help of magic. The level of development of our society and ideas about irrational phenomena does not allow the testimony of a witness containing such information, even correctly from the point of view of the law decorated, to recognize admissible evidence.

It is quite legitimate to recognize invalid proof of the testimony of a witness, the content of which is set forth in obscene expressions, despite the fact that during the production of interrogation did not violate the requirements of the APC RF.

Legal signs of the inadmissibility of testimony established CC. 5, 5.1 tbsp. 56 of the APC of the Russian Federation, according to which the judge and other persons participating in the implementation of justice, about the circumstances that became known to them in connection with the participation in the consideration of the case, representatives of civil and other things - about the circumstances that became Known in connection with the execution of the duties of representatives, as well as persons who are not able to correctly understand the facts and give indications about them correctly. Also are not subject to interrogation as witnesses the mediators who assist the parties in the settlement of the dispute, including mediators, about the circumstances that they have become known in connection with the fulfillment of the relevant duties. Thus, the circle of persons not allowed to participate in the case as witnesses is much already a circle of persons who can be known circumstances of the case.

In h. 6 tbsp. 56 APC RF has been enshrined constitutional allowance - "No one is obliged to testify against himself, his spouse and close relatives, the circle of which is determined by the federal law." The witness may refuse to return such indications. But the witness has the right to inform the court relevant information, but voluntarily. Moreover, after the proper constitutional right to him is explained and he will make the fact of clarification of this right to clarify its signature.

In addition to the relevantness and admissibility, testimony must respond with signs of reliability. The reliability of evidence is the correspondence of the content of the evidence of reality, the true situation of things. In order to determine the accuracy of the evidence, the court must first check the benignness of the source, from which information is obtained, as well as the process of forming evidence. The concept of evidence is fixed in part 3 of Art. 71 APC RF: "The proof is recognized as an arbitration court with reliable, if as a result of its verification and research it turns out that the information contained in it corresponds to reality."

With regard to testimony, the arbitration court must check whether a witness could perceive the facts described by their mental and physical condition. Is it not a witness in related links, whether it is not in service, material or other dependence on one of the parties.

A very important state of the APC RF is found in part 4 of Art. 88: "Not evidence information reported witnessed if he does not specify a source of his awareness." This rule is blocking the possibility of evidence of rumors (in English and American regulatory acts About evidence, for example, the rules on the inadmissibility of readings with other words), therefore, contributes to the study of only reliable evidence.

So, testimony, as well as any other means of proving, should have signs of relativeness, admissibility and reliability. If the law does not provide than those or other circumstances should be confirmed, then from a formal point of view, testimony can be considered as permissible and sufficient evidence confirming these circumstances. At the same time, the legal force of testimony in arbitration process It often depends on the indirect, but written evidence, as well as on the situation in which testimony was obtained, the subject - the carrier of such information and the circumstances that they must be confirmed.

Proof of

The parties at the court session represent various evidence as having importance and not having any value in the case. Evidence that is important for consideration and permission of the case ...

Proof in civil procedure

Proof and proving in criminal proceedings

The concepts of admissibility and relevant are fundamental to solving the issue of suitability or unsuitability of actual data for use as evidence in a criminal case ...

Prince in criminal proceedings

The evidence can correctly reflect the facts of objective reality, and they can distort them, that is, they can be reliable and unreliable. Therefore, in part 1 of Art. 104 Code of Code Points ...

Proving and evidence in the arbitration process

The relevance of evidence is of great importance to ensure the correct permission of a specific dispute in the arbitration process. In accordance with Art. 67 APC RF Arbitration Court takes only those evidence ...

Necessary evidence

The subject of evidence, i.e., the circle of facts to be established in the case, the court determines, based on the requirements and objections declared by the parties, and guided by the norms of financial law, which should be applied in this case ...

Features of the process of proof in the criminal process

The question of the concept and content of evidence is in the legal literature discussion. Some authors argue that under evidence, only information about the facts or actual data should be understood, facts ...

Requirements and admissibility of evidence and content judicial decision

In accordance with Art. 55 GPC proofs in the case are those information about the facts on the basis of which the court establishes the presence or absence of circumstances justifying the requirements and objections of the Parties, other circumstances ...

The concept of evidence in civil procedure

In accordance with Art. 55 GPC proofs in the case are those information about the facts on the basis of which the court establishes the presence or absence of circumstances justifying the requirements and objections of the Parties, other circumstances ...

The witness is a legally uninterested party. civil processwho knows information about the facts of the case under consideration, which is obliged to give truthful testimony at the court session. Therefore, in Art. 69 Code Code of the Russian Federation directly established ...

Legal evaluation of testimony

In legal literature, testimony, depending on their content, is divided into three groups: -s-information; - conducting judgments; -Open witnesses. Information-information usually give witnesses ...

Legal evaluation of testimony

Procedure of testimony of witnesses in detail settled Code of Civil Procedure of the Russian Federation ...

Subject of evidence

In accordance with Art. 55 GPC proofs in the case are those information about the facts on the basis of which the court establishes the presence or absence of circumstances justifying the requirements and objections of the Parties, other circumstances ...

Testimony in the arbitration process

witness Arbitration Indication Interrogation Information on facts can be obtained by the court only from provided by law means of proof - written and material evidence, explanations of persons involved in the case, expert opinions ...

Examination as a means of proof in criminal proceedings

Judge Maykopsky district

suda.g.Brazhnikov

? XML: Namespace\u003e

? XML: Namespace\u003e

Indicator's testimony as guilt evidence

XML: Namespace\u003e

One of the most common sources of evidence, both under the preliminary investigation, and at the court session are the testimony of witnesses. However, in the Code of Criminal Procedure of the Russian Federation, the possibility of using the testimony of witnesses from among the operational and investigative workers, investigators, investigators, prosecutors to recognize their guilt, while, such testimony is quite often used in the forensic investigative practice.

The need for such a kind of testimony is usually caused by the lack of any direct evidence of the guilt of the accused, or the refusal of the accused of its, the data of previously configured testimony, the obedic appeal, etc.

In practice, two situations are most often found. The first, this is when the witness gives testimony of oral (including with the use of audio, video recordings) or written recognition by the accused of its guilt during operational search events or conversation. The second - when the accused was given written confessions in the presence of a defender, however, the proof obtained in the form of a protocol of the investigative action is disputed by the accused as an unacceptable (for example, a protocol for testing testimony in place conducted in the absence of witnesses).

Are such indications of admissible evidence?

At first glance, the interrogation of witnesses from the number of law enforcement officers does not contradict the requirements of the Code of Criminal Procedure of the Russian Federation.

Thus, Article 56 of the Code of Criminal Procedure of the Russian Federation defines a witness as a person who can be known any circumstances that are important to investigate and permit a criminal case, and which is caused to testify. Thus, the law does not contain the requirements for the witness that he was a "disinterested person", as does not contain a list of persons from among the participants in criminal proceedings, their close relatives who cannot be witnesses. Also, the Code of Criminal Procedure also does not provide for the possibility of draining witnesses on the above grounds. This means that operational-search employees, investigators, investigators, prosecutors in principle can be questioned as witnesses, including criminal cases in their production, despite the fact that they are usually interested in those who are interested in The results of the consideration of the case.

Article 79 of the Code of Criminal Procedure provides that the witness may be interrogated on any circumstances relating to the criminal case. Since we are talking about "any circumstances", the literal interpretation of the specified norm does not prohibit the use of testimony of operational and investigators, investigators, investigators, prosecutors to declare their guilt.

Do not apply to the indicated readings and norms provided for in Part 2 of Art. 75 Code of Criminal Procedure: Interrogation was conducted with compliance with the requirements of the Code of Criminal Procedure, a source of awareness is known, the testimony is not based on guessed, assumption, hearing.

In connection with the foregoing, the point of view is common that the court on the principle of free evaluation of evidence may give such evidence (which is most often happening), and may reject it as an inacpure.

And yet, despite the fact that the question of the inadmissibility of such indications directly in the law is not specified, the testimony of law enforcement officers on the recognition of their guilt in all cases should be recognized as invalid evidence, since their use entails a violation of the human rights and freedoms guaranteed by the Constitution of the Russian Federation and A citizen and established in the Code of Criminal Procedure, the procedure for collecting and consolidating evidence - indications of the accused. Based on illegally mined evidence, it is impossible to obtain evidence that could be used in proof (rule "on the fruits of poisoned wood").

For example, recognizing invalid evidence of the testimony of witnesses - police officers who reported the court on the recognition made by him the detainee, the Supreme Court of the Russian Federation stressed that the so-called conversations with the detainees were nothing more than an illegal interrogation, which was made in the absence of a lawyer, without clarification The detainees of Art. 51 of the Constitution of the Russian Federation (see: Determination of the Supreme Court of the Russian Federation of 07/14/1999 // Bulletin of the Supreme Court of the Russian Federation. 2000. N 5).

A similar legal position was expressed by the Constitutional Court of the Russian Federation in determining on February 6, 2004 N 44-O "on a complaint of a citizen Demyanenko Vladimir Nikolayevich for violation of his constitutional law provisions of articles 56, 246, 278 and 355 of the Criminal Procedure Code Russian Federation". At the same time, the court pointed out, reading part 5 of Article 266 and part 3 of Art. 278 of the Code of Criminal Procedure of the Russian Federation, providing the right to apply for witnesses and interrogate them, and Part 3 of Art. 56 of this Code, which defines the circle of persons, which cannot be interrogated as witnesses, do not exclude the possibility of interrogation of the investigator and investigator held preliminary investigation in a criminal case, as witnesses, but according to the circumstances of the production of individual investigative and other procedural actions.

At the same time, these provisions to be applied in system communication with other norms of criminal procedure legislation do not give grounds to consider them as allowing the court to interrogate the investigator and investigator on the content of the testimony, during the pre-trial production by a suspect or accused, and as allowing the possibility of restoring the content These testimony, contrary to the Code of Criminal Code of the Russian Federation, are contrary to paragraph 1 of part 1, according to which the testimony of the suspect, the accused, data during the pre-trial production in the criminal case in the absence of a defender and not confirmed by suspects accused of court are unacceptable. Thus, the law, based on the prescription of Article 50 (part 2) of the Constitution of the Russian Federation, eliminates the possibility of any, direct or mediated, the use of information contained in them.

Summing up the above, I want to note that the correct permission of this problem will increase the quality of the preliminary investigation, reduce the likelihood of judicial errors and will exclude absurd situations from practice when a person who has been investigating a criminal case is simultaneously the subject of evidence, and the "source" of evidence.

XML: Namespace\u003e

XML: Namespace\u003e

XML: Namespace\u003e

Federal judge

Maykop District Court. Bhwnikov

The requirements imposed on the evidence in the criminal process and the procedure of their submission to the norms of the Code of Criminal Procedure of the Russian Federation can be called established. Nevertheless, practice does not stand still, and the legislator does not always have to make changes to the law.

Attention! You are on a professional website for the participants of the criminal process. To read the article may require registration.

In this article:

1. When the investigator fails to satisfy the application of the protection associated with the study of evidence is illegal.
2. What is understood by other documents that can serve as evidence in Golvone process.
3. What requirements are presented to the results of the Horde, in order to recognize their evidence.

The article provides a review and analysis of the positions of the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation and the European Court of Human Rights (hereinafter referred to as the Armed Forces of the Russian Federation, the CS of the Russian Federation, the ECHR) relating to the norms of the heads 10 "evidence in criminal proceedings" and 11 "Proving" of the Criminal Code of the Russian Federation .

Circumstances to be proof

Article 73 of the Code of Criminal Procedure defines the subject of proof of the criminal case, enshrining the circle of circumstances to be established for each criminal case.

At the same time, the degree of concretization of these circumstances is different depending on its actual circumstances. It is determined by their significance to qualifying the act, determining the foundation and measures of criminal liability, including the punishment, to determine the defendance, jurisdiction, as well as to permit other legally significant issues (definition of the CS of the Russian Federation of January 24, 2013 No. 43-O).

In addition to the circumstances listed in Art. 73 Code of Criminal Procedure, research and establishment for each case are subject to all circumstances referenced by the Protection Party (such as Alibi, for example). The burden of refutation of such circumstances is assigned to the direction of the prosecution (definitions of the COP of the Russian Federation of 09/29/2011 No. 1238-oh-o, dated January 27, 2011 No. 118-O-O).

This norm plays an important role in the implementation of the right to protect the right to participate in proof, because when permitting applications that declare it, the investigator, the investigator, the call and interrogation of witnesses, the investigator, the court must be guided primarily to whether the value contained in these evidence or testimony Information to establish the circumstances specified in Art. 73 Code of Criminal Procedure (definition of the CS RF of 05/28/2013 No. 723-O).

It should be noted that the ECHR, adhering to a similar position, and at the same time, the burden of proofing the existence of evidence in the external evidence to establish the circumstances to be proof to be proof (the decision of the ECHR dated February 29, 2009 on the case of Tareu against Romania, from March 18, 2010 in the case "Kuzmin against the Russian Federation").

Useful documents

• A copy of the court order to ignore the lawyer
• The petition for familiarization with the materials of the criminal case
• A petition for reimbursement of expenses for the payment of services of the victim

Evidence in criminal proceedings

According to Part 1 of Art. 74 Code of Criminal Procedure The evidence is any information that make it possible to establish the importance of circumstances. However, by virtue of Art. 86 Code of Criminal Procedure The evidence can be formed only by the court, the prosecutor, the investigator, the investigator, and moreover, in the manner determined by the Code of Criminal Procedure. Also, h. 2 tbsp. 74 Code of Criminal Procedure enshrines a closed list of criminal procedural evidence.

Thus, the current legislation enshrines the concept of evidence As the unity of the content and the only permissible procedural form (definition of the COP of the Russian Federation of 15.11.2007 No. 764-oh).

From said it follows that within the framework of the current legal regulation The protection side is not authorized to directly form evidence in a criminal case and can participate in the process of proof only by application of various petitions, complaints, etc. accused and his defender (as well as other individuals participating in legal proceedings: the victim, civil plaintiff and the defendant) can receive independently Separate evidence, first of all listed in PP. 3.1, 4, 6 h. 2 of this norm. However, they are introduced to the case files they can only be a person carrying out the proceedings (definition of the CS of the Russian Federation of 09/29/2011 No. 1212-oh).

Nevertheless, by itself, the fact that the right of the parties on the formation of evidence is not identical, does not put them in an unequal situation and does not violate the rights of the accused of defense, since the participants in the process (including the accused, defender) are not entitled to choose at their discretion Methods and protection procedures (definition of the COP of the Russian Federation of 04.03.2004 No. 145-O).

The above legal position is consistent with the approach of the European Court, which has repeatedly emphasized that consolidation in Art. The 6 European Convention on the Protection of Human Rights and the fundamental freedoms of the right of every accused of protection does not imply limit states in the choice of funds and mechanisms for the implementation of this right. Including the adversarial and equality of the parties in proof can be provided by various legal mechanisms that provide a fair trial, and not only the "arithmetic" equalization of the powers of the parties (see the EDHR decisions of October 31, 2013 in the case of "Eduard Rozhkov against the Russian Federation", from 25.04 .2013 in the case of "Evgeny Ivanov against Russia"). The concept of ensuring the truly equal position of the parties instead of mechanical provision of identical powers gained fame as "Equality of Weapons".

Invalid evidence in criminal proceedings

Part 1 Art. 75 Code of Criminal Procedure Enforce the general rule, according to which the evidence obtained in violation of the requirements of criminal procedure legislation is unacceptable.

In law enforcement practice, however, a differentiated approach was distributed, according to which only evidence obtained with a significant violation of the law is unacceptable. The question of the possibility of recognizing the permissible evidence obtained with the insignificant violation of the law has repeatedly been the subject of consideration of the Constitutional Court of the Russian Federation, but this court evades direct response to it.

The court only indicates that the arguments of the suspect, accused of recognizing those or other evidence that legal force Must be investigated, and when doubt about the admissibility or accuracy of these evidence, they must be rejected. The requirements of legality, substantiation and motivation are applied to the relevant procedural solution (Resolution of the CFC of the Russian Federation of October 18, 2012 No. 1901-O, from 10/20/2011 No. 1423-Oh, 09/23/2010 No. 1190-oh). In each case, it is subject to clarify the question of what the violation was specifically expressed (the decision of the Plenum of the Armed Forces of the Russian Federation of 05.03.2004 No. 1).

The ECHR also, by the advantage, refrain from the presentation of specific requirements for the admissibility of evidence, indicating that the establishment of such refers to the competence of national states. In solving the issue of admissibility of evidence, this court finds it necessary to take into account the provision of the accused of challenging the accuracy of these evidence and object to their use; compete public interest in the investigation of a specific crime and the interests of the accused of exclusively to collect evidence of the charge; Take into account the evidence value of evidence, as well as the extent to which the circumstances of their gathering are questioned by their accuracy (ECHR's decisions of July 11, 2006 in the case of Yallo vs. Germany, from 10.03.2009 in the case of "Bulls against the Russian Federation", from 01.06. 2010 in the case of "GEFGEN against Germany").

Thus, it also does not insist on the inadmissibility of all evidence in the criminal process obtained with any violations of the law, including insignificant.

It is important, besides this, that there are no evidence from violations of the Code of Code of Criminal Procedure to comply with the constitutional rights of citizens, regardless of the entity that made the specified violation. In other words, even if the violation is admitted not to a person carrying out the proceedings, but by another person (for example, a citizen was inexplicitly carried out audio recording), the resulting proof is invalid (definition of the CS of the Russian Federation of 11.05.2012 No. 814-O). Invalid evidence should not be used not only directly in evidence, but also in solving procedural issues (Definition of the COP of the Russian Federation of 05/23/2006 No. 154).

Invalid evidence as evidence of innocence

Controversial, including in practice, the question of whether the current legislation is provided by the so-called. "Asymmetry" of evidence, i.e. Are the evidence obtained in violation of the law, as evidence of innocence.

This concept, developed in the Soviet doctrine at the end of the 1980s. On the basis of the presumption of innocence, it comes from the fact that the norms aimed at protecting the interests of the accused cannot serve as a basis for recognizing invalid evidence beneficial to it. It should be noted that this idea is not alien to the Russian law enforcement (see, for example, the definition of the COP of the Russian Federation of 06.03.2003 No. 108-o complaint of gr. Cizzkishvili, paragraph 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of October 22, 2005 No. 23) .

Since art. 75 Code of Criminal Code is clearly intended primarily to ensure the interests of the protection part of the protection, as evidenced by the wording "and cannot be based on the prosecution", the highest courts often emphasize that evidence that causes doubts from the point of view of their compliance with the law cannot be laid precisely The basis of the indictment (definition of the COP of the Russian Federation of 03/22/2011 No. 373-O-O). Nevertheless, now we can talk about "asymmetry" only to a certain extent, since it is still not fixed anywhere else, and its use in practice faces a number of difficulties. Wherein higher courtes constantly hesitate in the direction of more, then towards the smaller adoption; In 2015, another small "rollback" occurred.

Special cases of inadmissibility of evidence in criminal proceedings

Part 2 Art. 75 Code of Criminal Procedure lists specific special cases of the inadmissibility of evidence. The greatest number of questions cause it para. 1. As explained the COP of the Russian Federation, it eliminates the possibility of not only direct, but also mediated (by interrogation of the investigator or investigator on the content of the data suspected in the absence of the testimony) of the testimony of the suspect or the accused, the data during the preliminary investigation In the absence of a defender and not confirmed by him in court.

This norm also applies to explanations given during operational-search activities (survey) (definition of the CS of the Russian Federation of 15.11.2007 No. 924-oh), and also applies to any explanation of the accused, the data of them during any investigative actions (Definition of the CFC of the Russian Federation dated December 16, 2010 No. 1681-O-O), and now - and predetermined verification.

However, the commented point does not prevent the interrogation of victims, witnesses and other participants in criminal proceedings about the circumstances that have become known from the suspect (accused) outside the criminal proceedings (definition of the CS of the Russian Federation of October 17, 2006 No. 427-O). It also does not apply to the information reported by the accused during the obedient turnout (definition of the COP of the Russian Federation of 10/20/2011 No. 1448-O-O).

European Court As a special case of the inadmissibility of evidence, the recognition made under torture is most often indicated (the decision of the ECHR from 01.06.2010 in the GEFGEN case against Germany). Also unacceptable evidence obtained in violation of the right of the accused, the suspect does not testify to themselves, which includes any ways of obtaining evidence from it. Contrary to its will (violent application of vomit, "rack ducks" in chambers, etc.) (ECHR decisions on 11.07. 2006 in the case "Yallo vs. Germany", from 05.11.2002 in the case "Allen vs. Germany").

In addition, it is impossible not to note the interest of the highest court instances RF to the doctrine "Fruits of poisoned wood". Of course, it is impossible to talk about her acceptance, on the contrary, it is traditionally denied, but now she at least has become the subject of a fairly active discussion.

The testimony of the suspect and the accused

Speaking of requirements for the testimony of the suspect and the accused, enshrined in Article 76 and 77 of the Code of Criminal Procedure, it must be said that they largely coincide with the above-mentioned evidence requirements in the criminal process. At the same time, we note that part 2 of Article 77 of the Code of Criminal Procedure establishes a special rule of evidence, according to which the recognition of the accused guilt cannot be the only basis of the indictment.

This norm is designed primarily to emphasize the enshrined in Art. 17 Code of Criminal Procedure The Principle of Freedom of Evaluation Evaluation, as well as to prevent abuse by the prosecution, intentlying the potential application of unacceptable methods for obtaining such recognition.

Norms Art. 314 Code of Criminal Procedure, allowing the special procedure for the trial with the consent of the accused with the accusation presented to it, do not contradict the commented by the commission. Such agreement is not the indication of the accused, but its focusing effect. In addition, by virtue of CC. 6.7 st. 316 Code of Criminal Procedure of the Russian Federation conviction and special order It cannot be resolved if the prosecution is not confirmed by evidence in the case.

Testimony of the victim and witness

As noted by the COP of the Russian Federation, the victim's testimony includes all the information reported by him, including his opinions and assumptions. However, in part of the opinions and assumptions of the testimony of the victim are not admissible evidence and cannot be based on the prosecution (definition of the COP of the Russian Federation of 24.02.2005 No. 87-O).

According to Part 2 of Art. 79 Code of Criminal Procedure The Witness may be questioned about any circumstances relating to a criminal case, including the circumstances of the production of individual investigative and other procedural actions, the participant of which he was (defining the CS of the Russian Federation of 02.25.2013 No. 181).

The right of the accused on the challenge and interrogation of witnesses, as well as the right to interrogate the witnesses showing against him, enshrined in paragraph 3 of Art. The 6 European Convention on the Protection of Human Rights and Fundamental Freedoms is considered by the European Court as one of the main guarantees of a fair trial. Their restriction can be recognized as permissible only subject to the overall balance of interests of the parties. At the same time, regardless of the circumstances, the conviction cannot be made solely or mainly on the basis of the testimony of a witness whom the accused was not able to interrogate (the decision of the ECHR dated July 17, 2007 in the case of "Sanoki against Poland").

Conclusion and testimony of an expert and specialist

Parts 1 and 2 Art. The 80 Code of Criminal Procedure is consolidated by the concept of imprisonment and testimony of the expert, and CCh.3 and 4 specialist.

Since it is based on the provisions regulating the procedure for the appointment of an examination (Article 195 of the Code of Criminal Procedure), the Protection Party is not authorized to directly initiate its implementation and influence its course, the sentence of a specialist is often used by it as an "alternative expert opinion". However, it should be borne in mind that such an analogy is very conventionable, because, in contrast to the conclusion of an expert, a specialist's conclusion is not the content of the study and conclusions, but only a judgment. Thus, the conclusion of a specialist is a separate independent type of proof and cannot be replaced by an expert opinion.

This, however, does not impede the use of the protection side in law enforcement in law enforcement (as well as the victims and other participants in the process that are not currently operating) to challenging the expert's conclusion and as a substantiation of the stated petition for the appointment of re-either additional examination. Therefore, De Facto, the presence of such a type of evidence as the conclusion of a specialist is one of the most important guarantees of the rights of the protection of the protection associated with the conduct of the examination.

However, the CS of the Russian Federation categorically does not agree with the current state of affairs, insisting on the fact that the main guarantees related to the appointment forensic examinationare the rights of the accused, victim to declare applications about its appointment, to get acquainted with the appropriate resolution before it began (recently this position was supplemented with a reservation: except for the cases of objective impossibility to do this), to apply for additional issues to the expert, to declare an expert or apply for an expert. forensic examination expert institution, attend the permission of the investigator in the production of forensic examination, give explanations to the expert, get acquainted with the conclusion of the expert and other rights listed in Art. 198 Code of Criminal Procedure (definitions of the CFC of the Russian Federation of October 13, 2009 No. 1161-Oh, from 04.03.2004 No. 245-O).

It also should also be noted that the probabilistic and supposed conclusions contained in the conclusion of the expert can be used to substantiate the sentence that it does not constitute a violation of the presumption of innocence (definition of the COP of the Russian Federation of October 21, 2008 No. 566-oh).

Probabilistic and presumptive conclusions contained in the conclusion of an expert can be used to justify the sentence, which does not constitute disorders of the presumption of innocence

As for the actual attraction of a specialist and the introduction of his conclusion, the defender is entitled to such right, and at the end of familiarization with the materials of the case - also the accused, victim.

The investigator is obliged to include the specified side of the protection of a specialist in the list of persons to be challenged to the indictment court hearingMoreover, the court is not entitled to refuse to satisfy the petition for the interrogation at the court hearing as a specialist who came to court at the initiative of the Parties (definition of the COP of the Russian Federation of 24.02.2011 No. 264-oh). In satisfying the petition for the interrogation of a specialist or in an admission to the materials of the criminal case, his conclusion may be denied only if the circumstances that it can establish do not matter to the case (definition of the COP of the Russian Federation of 19.06.2012 No. 1100-O), or such indications Or the conclusion is not permissible evidence (definition of the CS of the Russian Federation of 09/29/2011 No. 1212-oh).

The presence of materials containing the components state secret The information does not prevent the involvement of the specialist protection, but only envisages the law of the investigator / investigator to prevent the latter about the inadmissibility of disclosure of such information (definition of the COP of the Russian Federation of 24.02.2011 No. 264).

Evidence

Parts 1 and 2 Article 81 of the Code of Criminal Procedure of the Russian Federation secure the list of objects that can be recognized by real evidence, and the procedure for their attachment. How repeatedly emphasized the COP of the Russian Federation, recognition of one or another property does not cause the transition of ownership of it and therefore cannot be regarded as a violation of ownership (definition of the CS of the Russian Federation of November 22, 2012 No. 2050-O).

When withdrawal as a real proof of the document, all the rights certifying rights are maintained in full (definition of the CS of the Russian Federation of November 24, 2005 No. 471-O).

Part 3 Art. 81 Code of Criminal Procedure of the Russian Federation contains norms on determining the fate of material evidence at the end of the proceedings.

When deciding on the termination of criminal case and criminal prosecution, the decision on material evidence is made by the investigator (paragraph 9 of Part 1 of Art. 213 of the Code of Criminal Procedure), in other cases - by the court (paragraphs 10-12 part 1 of Art. 299 of the Code of Criminal Code of the Russian Federation) . At the same time, the deprivation of his property recognized by physical evidence is possible only as a result of a court decision on the merits of the criminal case (the decision of the CS of the Russian Federation of July 16, 2008 No. 9-P).

Storage of physical evidence

The procedure for storing material evidence is determined in Article 82 of the Code of Criminal Procedure. In some cases (perishable goods, ethyl alcohol, etc. - PP. "In" p. 1 part 2, paragraph. "B-in" p. 2 h. 2, Part 3 of Art. 81 Code of Criminal Procedure) It is not only about storage, but also on the final removal of property, since the law provides for the implementation and / or destruction of material evidence. Therefore, these terminations cause a large number of disagreements in practice.

In the decision of the CS of the Russian Federation dated July 16, 2008 No. 9-P, a position was formulated about the inadmissibility of the final seizure of material evidence without prior judicial control, which was reflected in the current legislation. Currently, such withdrawal is allowed by the decree of the extrajudicial body only in the presence of the consent of the owner of material evidence. In addition, in recent years, the issue of admissibility of deciding on the cancellation of the decision to withdraw material evidence has been actively discussed, their return by the owner is extrajudicially (since, firstly, such an order may violate the rights of the victim and other participants in the process, and secondly , prevents the very owner of real evidence to protect their rights - after all, he is deprived of the opportunity to go to court with a statement about their return, simply because such a decision is made not by the court, and the procedures of such an appeal does not provide). In general, in decisions of the Armed Forces of the Russian Federation and the CS of the Russian Federation, the protection of the owner's right to judicial protection in solving issues related to its property is clearly traced.

The procedure for the exercise, the destruction of material evidence is determined by the Regulations on the sale or destruction of items that are real evidence, the storage of which before the end of the criminal case or under criminal case, approved by the Decree of the Government of the Russian Federation of August 23, 2012 No. 848, the Regulation on the processing or destruction of the dismissed ethyl alcohol, alcohol and alcohol-containing products approved by the Decree of the Government of the Russian Federation of 05.22.2013 No. 430.

As for the storage of material evidence itself, before the permission of a criminal case on the merits, the temporary removal of material evidence from the owner for storage is also associated with the limitation of the authorities of possession, use and orders. Therefore, it is allowed only if it is impossible to ensure the solution of the tasks that standing before criminal proceedings, and the corresponding actions may be appealed to the court, that is, the subsequent judicial control Such solutions.

In assessing the legality and validity of the withdrawal from the owner or other legal owner of this or that property in connection with the criminal proof as a material evidence should take into account the severity of the crime, in connection with the investigation of which the issue of the withdrawal of property is being resolved, the features of the property itself, including its value, significance for the owner or owner and society , possible negative consequences of the seizure of this property (for example, its damage, destruction, causing unjustified losses as a result of the impossibility of use), etc. (Resolution of the COP of the Russian Federation of July 16, 2008 No. 9-P, Definitions of December 16, 2008 No. 1036-O-P, from 15.02.2005 No. 59).

For separate species Real evidence are provided special rules their storage. So, when withdrawing electronic media, their owner has the right to get a copy of the information contained on them.

The peculiarities of storage of narcotic drugs and psychotropic substances are enshrined in the regulations for storage, accounting and transferring material evidence related to the category of narcotic drugs, psychotropic substances, their analogues and precursors, potent and poisonous substances, as well as tools and equipment under special control and used for the production and manufacture of narcotic drugs and psychotropic substances approved by the Decree of the Government of the Russian Federation of 12.04.2010 No. 224.

The damage caused by the inadequate storage of seized material evidence is subject to compensation (see Decree of the FAS of the West Siberian District of 02.22.2012 in case number A03-5032 / 2011).

Protocols of investigative actions, court sessions and other documents

According to Art. 83 Code of Criminal Procedure Protocols of investigative actions and trials of court sessions are allowed as evidence if they comply with the requirements established by the Code of Criminal Procedure. As for evidence in the form of other documents, they are authorized to receive any individuals involved in the case. This type of evidence includes, in particular, the explanations that the investigator receives, the head of the investigative body, the investigator, the body of the inquiry when checking the report on the crime in the order of Part 1 of Art. 144 Code of Criminal Procedure (definition of the COP of the Russian Federation of 28.05.2013 No. 723-O, then the corresponding amendments were made to the Code of Criminal Procedure).

These may also be the documents received by the defender, the representative, including in order, paragraph 1 of Part 3 of Art. 6 of the Federal Law of 31.05.2002 No. 63-FZ "On advocacy and advocacy in the Russian Federation. " According to the specified norm, the lawyer has the right to collect the information necessary for providing legal assistance, including requesting certificates, characteristics and other documents from bodies and organizations that are required to issue the requested documents (their certified copies) within a month from the date of receipt of the law request.

It should be borne in mind that if the document retained the traces of the crime, or criminal actions were sent to him, or it was obtained as a result of the commission of a crime or possesses other signs listed in PP. 1-3 h. 1 Art. 81 Code of Criminal Procedure, it is recognized as material evidence (definition of the CS of the Russian Federation of 11.05.2012 No. 814-O).

Prince in criminal proceedings

Article 85 of the Code of Criminal Procedure of the Russian Federation establishes the foundations of the procedure for proving, lifting the three elements. The European Court of Human Rights does not establish any specific requirements for the procedure for proving, leaving it at the discretion of the National Law. However, he places general requirement Providing the side of protection of the possibility of effective participation in proof (ECHR decisions of December 16, 1999 in the case of "V. V. Agriculture").

The principle of "Equality of Weapons" specifies that each Party should be granted a reasonable opportunity to submit its legal position, including its evidence, so that it is not raised in a significantly less favorable situation than the other side (ECHR decree on 22.06. 2006 in the case "Kem and Other vs. Belgium", from 09/24/1997 in the case of "Anchor against Switzerland").

The Constitutional Court of the Russian Federation also clarifies that effective participation in the provision that meets the requirements of justice and equality involves the provision of the accused the opportunity to bring its position on the merits of the case and the arguments that he considers the necessary for her substantiation (Resolution of the Constitutional Court of the Russian Federation of 08.12. 2003 No. 18-P).

Collecting evidence in criminal proceedings

Part 1 Art. 86 Code of Criminal Procedure fixes general rules About collecting evidence during criminal proceedings: it is carried out by the investigator, investigator, the prosecutor and the court by the production of investigative and other procedural actions.

As can be seen from the CC. 2-3 of this norm, the participants in the process (suspect, the accused, victim, etc.) have the right only to collect and submit written documents and items to encourage them to criminal proof as evidence (other documents and material evidence, respectively). The defender is also entitled to also receive objects, documents and other information, interrogate individuals from their consent and referring certificates, characteristics, other documents from bodies and organizations and to provide written documents and items and subjects to encourage them to criminalize as evidence.

Thus, persons directly authorized by collecting evidence are the investigator, the investigator, the prosecutor and the court, the remaining participants in the process can only participate in the procedure of evidence.

As already noted above, when it comes to the positions of the courts regarding the norms of Art. 74 Code of Criminal Procedure, in itself, empowering the preliminary investigation, an exceptional authority to collect evidence in a criminal case cannot be considered as violating the right of citizens to judicial protection, since this right is ensured by the entire set of procedures provided for by the Criminal Procedure (Definition of the CS of the Russian Federation from 03/24/2005 No. 135-O).

In particular, the right of the defense side is to collect and submit evidence comply with the obligation of these bodies to consider each petition declared in connection with the study of evidence. At the same time, the fact that the investigation authorities are not required to satisfy each application, each petition declared in connection with the study of evidence does not violate the rights of the protection (definition of the CS of the Russian Federation of 04.03.2004 No. 145) due to the following.

Invalid arbitrary refusal both in obtaining evidence that the Protection Party is in appear and in the admission to the materials of the criminal case and the study of the evidence submitted by it

Taking into account the provisions of Part 3 of Art. 15, part 2 art. 159, Art. 274 Code of Criminal Procedure of the Russian Federation invalid the arbitrary refusal both in obtaining evidence that the Protection Party is given and in the admission to the materials of the criminal case and the study of evidence submitted by it. Such a refusal is possible only in cases when: proof is not related to criminal proceedings and is not able to confirm the circumstances to be established in criminal proceedings; Proof is invalid; The circumstances that are intended to confirm the proof specified in the petition are already established on the basis of a sufficient combination of other evidence, and therefore the study of another evidence is provided with the position of the principle of intelligence redundant (definition of the COP of the Russian Federation of 09/29/2011 No. 1189-O).

The decision made in this case should be reasonable and motivated, with reference to concrete arguments confirming the unacceptability of evidence, on the recovery and the study of which states the Protection Party (definition of the CS of the Russian Federation of December 21, 2004 No. 467, from 04.04.2006 No. 100-o, from 19.06.2012 No. 1063-O, on July 17, 2003 No. 1003 - O).

Finally, the right to the right of protection when collecting evidence is additionally guaranteed by the duty of the investigator, the investigator, the court to establish all the circumstances in the case, including circumstances that mitigate the defendant or justifying it, as well as other circumstances necessary for the fair and impartial permission of the criminal case on the merits ( Definition of the CS RF of 06.03.2003 No. 104-O).

Check evidence

It should be noted that existing criminal law Does not disclose the content of this element of proof - verification of evidence. In this regard, the essence of testing evidence is not entirely obvious. In the higher decisions judicial bodies Verification of evidence is usually merged with their assessment: "All evidence is subject to verification and evaluation in terms of their relatives, admissibility and reliability, and in the aggregate - sufficiency to resolve the case" (definition of the CS of the Russian Federation of 28.05.2013 No. 860-O).

At the same time, in the corresponding section of the Code of Criminal Procedure, nothing refers to the study of evidence, despite the fact that this term is widely applied in other norms of the Code (Article 240, etc.) and in forensic practice. Therefore, law enforcement practice, including the constitutional and Supreme Courts Of the Russian Federation, often consider proving rather as a totality of collecting, research and evidence assessment. So, the COP of the Russian Federation, the court indicates that Article 87 of the Code of Criminal Procedure of the Russian Federation, which establishes the obligation to verify the evidence, is subject to use with the provisions of Art. 240 Code of Criminal Procedure, establishing the court's duty to directly investigate all the evidence in the criminal case (definition of the CS of the Russian Federation of 02/25/2010 No. 261-O).

In a court appeals instance, there is no need to verify all evidence as a general rule.

Rules for evaluating evidence in criminal proceedings

The criteria for which evidence is evaluated on the case is enshrined in Art. 88 Code of Criminal Procedure. Evaluation of the evidence must be carried out by the investigator, the investigator, the court, taking into account the provisions of Art. 7 and 17 Code of Code of Criminal Procedure, enshrining the principles of legality and freedom of evidence evaluation. Freedom of evidence evaluation does not imply its arbitrariness, since it should be based not only on the inner conviction and conscience, but also on the aggregate of the evidence in the criminal case, and its faces are obliged to be guided by law (definition of the CS RF of 20.03.2008 No. 188-O- ABOUT). Decisions made by the results of evidence assessment cannot be unreasonable or unmotivated (definition of the CS of the Russian Federation of July 14, 2011 No. 955-O-O).

In addition, appreciating the evidence, a person carrying out the proceedings, is obliged to investigate all the reasons for the proceedings of the process (definition of the CS of the Russian Federation of 24.12.2012 No. 2400-O, from 04/22/2010 No. 499-oh). At the same time, the peyudition also does not associate courts when evaluating the fault of the accused, based on the concept of the autonomy of the criminal process.

Based on the provisions of Art. 240 Code of Criminal Procedure and generally accepted international standards The adventures of justice, when making a court decision on a case, only evidence directly studied in court (definition of the COP of the Russian Federation of October 24, 2013 No. 1559) was evaluated. Part 3 of 4 Article.88 of the Code of Criminal Procedure Code of the Russian Federation establishes a special procedural mechanism for assessing the admissibility of evidence - the recognition of evidence is invalid.

Use in proving the results of the Horde

As follows from Art. 89 Code of Criminal Procedure, the results of operational-search activities themselves are not evidence. They are only information about the sources of facts that may be evidence after consolidating them with a proper procedural way in accordance with the norms of the Criminal Procedure Law (definition of the CS of the Russian Federation of November 25, 2010 No. 1487-O, from 01/25/2012 No. 167- Oh).

Allowability.In order for the results of operational-search activities to be used as evidence, they must be obtained in compliance with the norms of the Code of Criminal Procedure of the Russian Federation relating to the relevant evidence, but also the provisions of the Federal Law of 02.08.1995 No. 144-FZ "On the operational-search Activities "(definition of the CS of the Russian Federation dated December 24, 2012 No. 2321-O) and other federal laws (definition of the CS of the Russian Federation of 27.05.2010 No. 636-O).

At the same time, the requirements of the Federal Law of 02.08.1995 No. 144-FZ "On operational-search activities" on compliance with the legality, ensuring human rights and freedoms and citizen, and the operational-search activities themselves must be implemented in accordance with the established grounds and conditions Their holding and tasks of operational-search activities (definitions of the CS of the Russian Federation of 27.05.2010 No. 636-Oh, from 10/21/2008 No. 640-O-O).

One of these grounds is the presence of an initiated criminal case (paragraph 1 of Part 1 of Article 7 of the Federal Law of 02.08.1995 No. 144-FZ "On Operational Festival"). At the same time, by virtue of paragraph 4 of Part 2 of Art. 38 Code of Criminal Procedure The investigator has the right to give a branch of the inquiry to fulfill the written instructions on the conduct of operational-search activities, and the specified body is obliged to execute them (part 2 of Article 14 of the Federal Law of 02.08.1995 No. 144-ФЗ "On operational and investigative activities" ).

In addition, the results of operational-search activities conducted under any other legal grounds, including after the initiation of a criminal case (definition of the CS of the Russian Federation of January 25, 2012 No. 167-O-O), may be transformed into evidence.

The European Court also allows the use of the results of secret police operations, subject to the presence of a clear procedure for the appointment, conduct and control of such operations (ECHR's decision of 05.02.2008 in the case of Ramanauskas against Lithuania). In recent years, as russian courtsAnd the ECHR himself shows increasing liberalism in matters of admissibility of such results, making emphasis, and not on the form of actions produced.

The impossibility of substitution of procedural actions.Nevertheless, the implementation in connection with the production of preliminary investigation in the criminal case of operational-search activities cannot be replaced by procedural action. In particular, it is illegal to be a common practice of obtaining samples of the accused for a comparative study by implementing its survey, since to obtain samples for comparative study by the norms of criminal procedure legislation (Article 202 of the Code of Criminal Procedure), a certain procedure is provided (definition of the COP of the Russian Federation of January 24, 2008 № 104-O-O).

Inadmissibility of provocation.In addition, an important requirement to the legality of the results of operational-search activities is the inadmissibility of provocation in its implementation. Provocation is the provision of influence on the face with the aim of inciting it to commit a crime (which would never have been committed) so that the evidence could be collected and implement criminal prosecution. The evidence mined as a result of a police provocation is always unacceptable as depriving accused rights to a fair trial (the decision of the ECHR dated October 26, 2006 in the case of "Khudobin against the Russian Federation").

Provocation is obvious if the guilty intent is confirmed, aimed at committing a crime, which formed independently of the activities of employees of operational divisions, that is, there is no reason to believe that in the absence of the police intervention, a specific crime would be committed (before the start of operational search events did not exist Data on the planned crime either about the accused into it, or the latter expressed the reluctance to commit a crime, etc. (definitions of the Armed Forces of the Russian Federation of September 18, 2012 No. 50-d12-65, from 01.11.2012 No. 50-d12-83, the Decree of the Presidium Armed Forces of the Russian Federation of 20.07.2012 No. 131-p12).

For transformation, in proof of the case, the results of operational-search activities should be enshrined by the appropriate procedural means (definition of the CS of the Russian Federation of 10/17/2006 No. 427-O).

The procedure for providing the results of operational investigative activities to the criminal proceedings to their transformation in the proof in the criminal process is enshrined in the instructions on the procedure for submitting the results of operational investigative activities to the investigator, the investigator or to the court approved by the joint order of September 27, 2013 the Ministry of Internal Affairs Russia, Ministry of Defense of Russia, FSB of Russia, FSO of Russia, FCS of Russia, SVR of Russia, FSIN of Russia, FSKN of Russia and SC of Russia No. 776/703/509/507/1820/42/535/398/68.

Interrogation of witnesses at the court session. Announces of testimony of witnesses.

When considering a criminal case in common orderThe testimony of witnesses interrogated at the court session or announced in accordance with the requirements of the law is used as evidence in a criminal case.

According to the law, the witness is a person who can be known any circumstances that are important to investigate and permit a criminal case, and which is caused to give testimony from these circumstances.

So, as witnesses at the court hearing, not only eyewitnesses of the commission of a crime may be interrogated, but also persons who spent as those understood during investigative actions, or which can be characterized by the defendant.

In most cases, the testimony of witnesses are crucial to permit criminal proceedings and the establishment of guilt or not guilty of the defendant.

The right to challenge and interrogation of witnesses at the court session possesses both the prosecution and the protection side. At the same time, according to Part 4 of Article 271 of the Code of Criminal Procedure, the court is not entitled to refuse to satisfy the petition for the interrogation at the court hearing as a witness or a specialist who came to court at the initiative of the parties.

Thus, if the witness appeared at the hearing, the court was not entitled to refuse his interrogation.

The interrogation of the witness at the court hearing begins with the establishment of the court of his personality and the warning of the witness about the responsibility for the refusal of the testimony and the country to the court of obviously false testimony.

Important: The witness has the right to refuse to testify against himself and his loved ones (spouse, spouse, parents, children, adoptive parents, adopted, native brothers and sisters, grandfather, grandmother, grandchildren). That is, if the witness is known to know the information that can be used as evidence of the guilt of the defendant, then being a close relative of the defendant, the witness can not give such indications.

The first asks questions to the witness, the party, on the initiative of which he is interrogated in court, after the opposite side. If the witness is summoned by the accusation side, then the first asks the questions of the prosecutor, and only then the lawyer and the defendant.

The court can also ask questions a witness on the merits of the criminal case, as well as to distinguish the issues of the parties if they are not related to the case under consideration or, for example, can declassify the identity of the witness if the data on his personality is preserved in secret.

To interrogation of witnesses at the hearing, it is necessary to approach very seriously, consider all the questions that the protection party will ask a witness, and its possible answers to them.

When preparing for interrogation of a witness, the prosecution should be understood that the contract of charge with a greater probability has already instructed a witness about the content of the testimony that he needs to be given at the court session and on possible issues of protection. In addition, in practice, not rare cases when the prosecutor before the interrogation of the witness gives him the opportunity to read the testimony of the data at the investigation stage.

Keep in mind that often the prosecution witnesses take the side of protection "in the bayonies" and fully support the position of the prosecutor.

When preparing for the interrogation of a witness of protection, it is advisable to advise the witness in very detailed about the content of its testimony, and the possible issues of the accusation side in order to discredit its testimony. Be prepared that the prosecutor will ask a lot of clarifying issues to question the attitude of the data of the testimony to the criminal case under consideration.

Announcement of data indications of the witness on a consequence due to contradictions.

The law presents the opportunity to announce the testimony of the witness's testimony at the preliminary investigation stage due to significant contradictions available between previous indications on the investigation and at the court hearing.

This tool is very skillfully used by the side of the accusation in cases where the witnesses of the accusation parties cannot give clearly indications on the merits of the criminal case, to explain significant circumstances, whose eyewitnesses they were, or to the questions of the protection and accusation, are inconvenient to charge the answers.

As a rule, the prosecutor declares a petition for the announcement of the testimony of such witnesses data on the investigation.

Important: In the case of an application with a prosecutor of such a petition, ask to specify the creatures of contradictions.

After the announcement of the testimony, the court is obliged to eliminate the existing contradictions and find out their causes, and the witness should give a clear answer. However, if a witness refers to the side of the accusation, he confirms the announced testimony referring to the result of the events that occurred, according to the prosecutor, "at the time of the testimony, did you better remember the events for the testimony?", Which is essentially leading.

Thus, regardless of the testimony of the witness of the charges of data at the court hearing, in the overwhelming majority of cases, the court is based on the trial testimony of the witness the data on the investigation.

In my opinion, the courts should give priority to the testimony of a witness directly from the court in the court hearing, and not accepted protocols of interrogation of the witness, which in their essence are a tool of investigation in proven the guilt of the defendant at the investigation stage, since any abuse of their powers are possible from the investigation.

Unfortunately, there are no situations in practice when the prosecution of the court session refuses to indicate data on the investigation and indicates that they did not give such testimony to the investigator, and signed the protocols without reading or empty blanks. However, the courts do not give these facts to the appropriate assessment, the testimony of such witnesses, and at best interrogate according to the circumstances of the interrogation of the investigator, which of course claims that the Witness itself gave testimony and there was no abuse from the investigator.

This practice does not comply with the requirement of a fair trial of the case by an independent and impartial court, since the court does not take sufficient measures to clarify the true circumstances, limiting himself only to the interrogation of the interested person (investigator), thereby creating the visibility of the verification of the proven witnesses.

Announcement of the testimony of not a witnessed witness at the court hearing.

The current legislation provides for cases of the announcement of data indications at the investigation stage, without their immediate interrogation at the court hearing.

The announcement of the testimony of the witness at the court hearing is regulated by Article 281 of the Code of Criminal Procedure.

Thus, the announcement of the testimony that witnessed the witness was possible at the request of the charge or protection, and only with the consent of the opposite side to their announcement.

IMPORTANT: Indications of the not appeared witness announced at the court session are full-fledged proof of the criminal case, and should be obtained in the sentence. If you challenge the circumstances of which the witness reported at the stage of the investigation, then do not agree to the announcement of its testimony at the court session, and insist on its call and direct interrogation.

Without the consent of the parties, it is possible to announce the testimony of a witness only in cases: death witnesssevere illness impeding the appearance of the courtfailure of the victim or witness being foreign citizen, appear on call, natural disaster or other emergency circumstanceshindering the appeal to the court if, as a result of the measures taken to establish the place of finding the victim or a witness for a challenge to the court session, it was not possible.

2.2 Practice of the Constitutional Court of the Russian Federation on the witness immunity in the criminal process

In the course of our study, we have repeatedly referred to the practice of the Constitutional Court of the Russian Federation. It is fair to emphasize that the practice of the Constitutional Court of the Russian Federation is of key importance in the study of the Institute of West Immunity.

The following practical materials of the Constitutional Court of the Russian Federation, which are important for the topic under study can be distinguished.

Resolution of the Constitutional Court of the Russian Federation of June 29, 2004 No. 13-P "On the case on the verification of the constitutionality of certain provisions of Articles 7, 15, 107, 234 and 450 of the Criminal Procedure Code of the Russian Federation in connection with the request of the Deputies Group State Duma»;

Definishing the Constitutional Court of the Russian Federation of February 6, 2004 N 44-O "On a complaint of a citizen of Demyanenko Vladimir Nikolayevich for violation of its constitutional rights, the provisions of Articles 56, 246, 278 and 355 of the Criminal Procedure Code of the Russian Federation";

Determination of the Constitutional Court of the Russian Federation of March 6, 2003 No. 108-O "According to the complaint of a citizen of Cizzkishvili GIIs, Kazyvichi for violation of its constitutional rights, paragraph 2 of the third part of Article 56 of the Criminal Procedure Code of the Russian Federation";

Resolution of the Constitutional Court of the Russian Federation of April 25, 2001 No. 6-P "In the case of the verification of the constitutionality of Article 265 of the Criminal Code of the Russian Federation in connection with the complaint of a citizen A.A.Shevyakov."

In its definition of February 6, 2004 №44-o constitutional Court The Russian Federation stressed that the situation contained in the third part of Article 56 of the Code of Criminal Procedure of the Russian Federation cannot serve as a basis for reproducing the content of the testimony of the suspect, the accused data during the pre-trial production in a criminal case in the absence of a defender and not confirmed by him in court by interrogation as a witness, the investigator or investigator who has made an inquiry or preliminary investigation.

Despite the fact that the provisions of Ch.5 Art. 246 and part 3 of Article 278 of the Code of Criminal Code of the Russian Federation, providing the public to the right to apply for the call to the court of witnesses and interrogate them, and part 3 of Art. 56 of the Code of Criminal Procedure, which determines the circle of persons who cannot be interrogated as witnesses, do not exclude The ability to interrogate the investigator and the investigator who conducted a preliminary investigation into a criminal case, as witnesses, including the circumstances of the production of individual investigative and other procedural actions. At the same time, these provisions to be applied in system communication with other norms of criminal procedure legislation do not give grounds to consider them as allowing the court to interrogate the investigator and investigator on the content of the testimony, during the pre-trial production by a suspect or accused, and as allowing the possibility of restoring the content In spite of these testimony, contrary to the Code of Criminal Procedure of Article 2 of Part 2 of Article 75 of the Code of Criminal Procedure, according to which the testimony of the suspect, the accused, data during the pre-trial production in a criminal case in the absence of a defender and not confirmed by suspects accused of court, belong to unacceptable. Thus, the law, based on the prescription of paragraph 2 of Article 50 of the Constitution of the Russian Federation, eliminates the possibility of any, direct or indirect, the use of information contained in them.

An interesting thing, it was considered by the Constitutional Court on April 25, 2001 (the case on the verification of the constitutionality of Article 265 of the Criminal Code of the Russian Federation in connection with the complaint of the citizen A.A. Chevyakov). Our interest is associated with the arguments of the claims of the complaint about the inconsistency of Article 265 of the Criminal Code of the Russian Federation Art. 51 of the Constitution of the Russian Federation and the position of the Constitutional Court of the Russian Federation.

Running forward we note that at present, Article 265 of the Criminal Code is already excluded from the Code ( the federal law Of December 8, 2003 №162-ФЗ "On Amendments to the Criminal Code of the Russian Federation" (as amended on March 11, 2004)), however, at the time of consideration of the case, the Constitutional Court of the Russian Federation did not find the grounds for recognizing the provisions of ST .265 of the Criminal Code of the Russian Federation by contradictory of the Constitution of the Russian Federation.

Recall, Article 265 of the Criminal Code of the Russian Federation has established criminal liability for leaving the place of the road traffic accident.

According to the applicant contained in this article, the norm is essentially introduced criminal liability For refusal to promote in the investigation of road accidents, and on the driver who committed a crime is entrusted to maintain and provide law enforcement agencies Evidence of its guilt, which contradicts the provision of Article 51 (Part 1) of the Constitution of the Russian Federation, that is, the principle of testimonial immunity is actually violated.

As we have noted, the Constitutional Court of the Russian Federation acknowledged Article 265 of the Criminal Code of the Russian Federation not contrary to the Constitution of the Russian Federation. However, a special opinion was also expressed (the special opinion of the judge of the Constitutional Court of the Russian Federation A.L. Kononov "in the case of the verification of the constitutionality of Article 265 of the Criminal Code of the Russian Federation in connection with the complaint of the citizen A.A.Shevyakov").

Judge A.L. Kononov informed examples from world practice: "As a rule, the constitutional supervisory authorities recognized that the obligation to report the police on the traffic accident is limited, taking into account the eviction immunity, only the information necessary to provide effective assistance to the victims and rapid recovery roadand cannot be used to criminal prosecution of the driver (COP of the Republic of Korea, decision of 27.08.90.). The requirement for the driver who has committed a transport violation, report itself to the police contradicts the right not to testify against himself, as it obliges him to recognize himself guilty in violation with the risk to be punished (COP of Spain, decision dated 23.12.95). Such a requirement puts the obligated face before the problem of choosing between testimony against itself or the commission of a new offense in the form of a message of false information, or silence, which enhanced the risk of compulsory measures, which should be considered as an attempt to freedom of action and violation of the right to respect the personality. Requirement to provide through own statement Prerequisites for the accusation or application of appropriate sanctions is unreasonable and not compatible with human dignity (COP Germany, decision of 11/16/98). It is very real and serious is the possibility that permission to use in the criminal proceedings made by the duty message about a traffic accident could increase the likelihood of abuse by this from the state. Obtaining any such information occurs in circumstances that do not allow it to use it in the criminal process, since this would violate the basic principle of justice, according to which no one must testify against itself (Sun Canada, a decision of 10.06.99) ".

Conclusions A.L. Kononov about the inconsistency of Article 265 of the Criminal Code of the Russian Federation turned out to be prophetic, the legislator excluded it from the criminal law.

Thus, it is possible to state not just the formation of the Institute of Witness Immunities in the Russian Federation, but also its consistent improvement, bringing in accordance with the European Convention on Human Rights.

Definishing the Constitutional Court of the Russian Federation of February 6, 2004 No. 44-O "According to the complaint of a citizen of Demyanenko Vladimir Nikolayevich to violate its constitutional rights to the provisions of Articles 56, 246, 278 and 355 of the Criminal Procedure Code of the Russian Federation" // Bulletin of the Constitutional Court of the Russian Federation. - 2004 - №5.

Federal Law of December 8, 2003 N 162-FZ "On Amendments and Additions to the Criminal Code of the Russian Federation" // Meeting of the legislation of the Russian Federation. - December 15, 2003. - №50. - Art.4848.

Resolution of the Constitutional Court of the Russian Federation of April 25, 2001 N 6-P "In the case of the verification of the constitutionality of Article 265 of the Criminal Code of the Russian Federation in connection with the complaint of a citizen A.A. Eeshekova" // Bulletin of the Constitutional Court of the Russian Federation. - 2001 - №5.

The so-called rule of testimal immunity is violated, enshrined in Article 51 of the Constitution of the Russian Federation. The introduction of testimonial immunity is an important element of democratization and humanization not only the criminal process, but also russian society generally. The right of the witness to abandon the testimony against a loved one is associated with family bonds and with such moral categories as ...

Acts. The Constitution was made to changes in December 1988 and December 1989, the period for which the judges were elected was established at 10 years instead of 5 initial. 2. Criminal law and trial In Germany, the end of the 19th onwards of the 20th century and their development as the history of our legislation begins by the Tsar Alexei Mikhailovich, so the history of the criminal law Germany leads its development from ...