Process of evidence -the activities of the investigation authorities, the prosecutor, the court and other participants in the criminal process, are in a strictly established procedural form, to collect, consolidate, verify and evaluate the evidence necessary for the correct permission of the criminal case. Structure of the Process of Process: 1.Thising.2. Read.
- Provides evidence collecting (Art. 86): 1.Production of investigative and other procedural actions.2. Representation of suspects, accused, victims, GR plaintiff and respondent written documents and subjects to encourage criminal proceedings as evidence. There are other information, certificates of certificates, and other documents from government bodies, public associations. - Check evidence - The practical activity of the investigator, the investigator, the prosecutor, the court, which consists in comparison of the evidence existing in the criminal case, establishing the source of their origin, obtaining new evidence confirming or refuting previously obtained. That is, testing of evidence may be the nature of mental, logical activities (analysis of evidence, the conditions for its preparation; comparison of evidence), and can be carried out through practical activity (by producing an investigative experiment, checking testimony in place, full-time rate, etc.) .
-Evaluation of evidence - The mental activity of subjects of proof, which consists in determining the attitudes, admissibility and reliability of evidence, the meaning of each of them and their entirety for the correct permission of the criminal case. When evaluating evidence, subjects are guided by the internal belief based on the knowledge of the law and conscience.
Evaluation Rules: Each evidence is subject to evaluation in terms of attribution, admissibility, accuracy, and all the evidence collected in aggregate - sufficiency for the permission of UD. In cases where the evidence is collected with violations of the requirement of Code, they are recognized unacceptable. The proof recognized as invalid is not to be included in the indictment (ACT / RESOLUTION.
Subjects of evidence -these are 1.Subes that carry the duty of evidence (state bodies and officials) .2.Subjects endowed with the right to participate in the process of proving the suspect, defendant, defender, the victim, the plaintiff / the defendant and their representatives).
The duty of evidence is assigned to officialscarrying out the function of criminal prosecution: the investigator, investigator and prosecutor. They should if there is an occasion and reason to initiate a criminal case, collect evidence confirming the event of a crime, the guilt of the accused and all other circumstances. The law prohibits these officials to shift the duty to evincible on other participants in the process, as well as proof by unauthorized means and methods. Of great importance in the distribution of the burden of proof belongs to the principle of the presumption of innocence, in accordance with which the accused should not prove his innocence. If the defendant occupies a passive position in the case and refuses to date the testimony, it cannot be found in the rationale for the withdrawal of his guilt. A special place in relation to the obligation to exercise proof is the defender. The law does not call it among the subjects, on which the duty of evidence is entrusted. But the defender is not entitled and to avoid participation in proof. The duty of evidence does not lie in court. In accordance with the principle of competitiveness of the criminal process, the court only explores and evaluates the evidence that are represented by the parties.
In the structure of proof traditionally allocate its elements such as collecting, checking and evaluating evidence. Some authors are additionally referred to as elements of the process of evidence, as the nomination and development of versions, consolidate evidence, the rationale of the conclusions in the case. A. R. Belkin calls collecting, checking, evaluating evidence by phases of the process of proof, adding to them as the fourth phase use of evidence. All these activities are undoubtedly inherent in criminal procedural proceedings. Consider or not consider them with independent elements of evidence, the case, what is called, taste. Having considered each of the named elements, we may form and their point of view on this issue.
Having determined the provocation as the process of justifying the guilt of a certain person in committing a crime, we recognize the purposeful nature of this activity. However, the above goal appears only when the subject of evidence has a person suspected or accused of committing a crime. While such a person was not found, the activities of the investigation body largely bearing a research nature - it is aimed at searching and detecting this
persons for its subsequent initiation. At this stage, it is not one thing, but a few, even many options for explaining the event of the investigated event, i.e. versions. The version that arises based on the existing evidence is believable, the TE. Probably explains the detected traces of the crime and allows you to determine the investigation strategy in each of the possible directions. In science it is rightly noted that in its logical nature The version is a hypothesis, respectively, the version check is carried out in the same way as the test of the hypothesis, i.e. Experimental, experimental. The version is checked by conducting investigative actions and comparing the results obtained. The version that was not confirmed during the verification disappear, and on the basis of the data obtained, new and checked, and so as long as finally one of them remains the only possible.
Nomination and verification of versions, as we see, coincides with the collection, verification and evaluation of evidence and is part of that logical thinking activities that characterizes the entire process of evidence until the sentence is issued. For the court independent of the criminal prosecution authorities, the prosecution put forward and submitted to the person is only one of two, at least versions substantiated by one side. It is possible that the version of the victim differs from the official conviction, the defense has its explanation of the event, and the court can form his own, different from others, a look at the circumstances of the case.
The question of the place in the structure of the process of proving activities to consolidate evidence is associated with the concepts of form and content of evidence. If proof is any information on the basis of which the desired circumstances can be established, the consolidation of evidence is independent activities to preserve the evidence already obtained (ie, information) in the criminal case materials. This activity provides the possibility of using evidence in the future, as it is aimed at identifying the fact of obtaining evidence, and the compliance of its content reflected in the trace of the crime of information. At the same time, the theory has developed a sustainable opinion that the fastening of the detected investigation
information in the case file is inseparable from the process of receipt: any information about the circumstances of importance to the case can be used in criminal proceedings only after their procedural consolidation in the materials of the criminal case. So far, the proof is fixed, "it is impossible to argue that the proof is really discovered, since it is not yet known that it is precisely found and is really evidence that detected." Deeply investigating the collection of evidence as the information and reflective process S. A. Sheefer came to be convinced that fixation (consolidation) of evidence was an integral part of their collecting, since it includes the "transformation by the proof information perceived by the investigator, as well as information about sources, conditions and methods Its obtaining, in a form that provides effective (maximally full) saving and use the data obtained for evidence. " With this approach, the fixation of the proof as a form of certificate activities is one of the parties to collect evidence that finalizing its formation.
By giving tribute to the undisputed contribution of Professor S. A. Shefer to the theory of evidence, his deep development of the cognitive nature of investigative action, as the main way of collecting evidence, cannot be paid to the current trends in the development of criminal procedural legislation, which seems to be significant grounds. To doubt the possibility of preserving further look at the collection of evidence as the process of their formation.
The concept of the formation of evidence is due to the presence in the criminal process of the pre-trial part, the main content of which is the search, detection and consolidation of information about the circumstances of the importance for the case, in order to conserve them and subsequent use to justify the court. The civil proceedings do not have a similar pre-trial part does not need to give evidence of any procedural form, since the court is
the only subject directly receiving information about the circumstances that are important to the permission of a judicial dispute, from (from) their sources. And the GIC, and the APCs are consolidated only by the valid types of evidence and their sources - explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recording and the conclusion of experts. Procedural form of evidence in civil Procedure "Contains: a) the source of information and b) a certain way to bring information to court", determined by the specifics of the source of information. No one forms evidence in civil procedure. The court receives from the parties to the evidence already having a certain form, its task to check and evaluate the accuracy of the information contained in them and decide in accordance with the law.
It is more different about the criminal proceedings, where all information about the investigative event is at first perceived and is checked by the investigator (in the investigator). It is the investigator in the process of the production of investigative actions (interrogation, inspection) extracts information from the traces of a crime (memory of people or material objects) and fixes it in an established law. As a result of this cognitive-certified activity of the investigator, interrogation, inspection protocols arise, searching for the information obtained by him, i.e. Evidence taken from their procedural form. The emergence of evidence in criminal case, thus, there is a result of the procedural activities of the investigation body to detect, perceive and consolidate information about the circumstances proven, in the process of which this information is given by the provisions under Part 2 of Art. 74 CPC shape occurs, according to S. A. Shefer, the formation of evidence.
The concept of the formation of evidence as a synonym for their gathering quite corresponded to the model of criminal court that existed during its occurrence
washing and therefore attracted many supporters. In the criminal process, which did not have a corresponding form, the evidence could be obtained only by bodies preliminary investigation. And since in front of the investigator, the prosecutor and the court there were common tasks - quickly and fully disclose the crime and explicit the perpetrator, prevent the guilty of the responsibility, and the innocent was convicted, to investigate the circumstances of the case objectively and comprehensively, the results of the cognitive and urgent activities of the investigator (the investigator ) Rechangeed evidence and in court, i.e. judicial evidence.
However, as is known, the objectivity of any scientific knowledge of historical, "the opinions that presented objective at the same time may be subjective to another", therefore, when analyzing this concept, from the point of view of today, it is impossible not to detect its inconsistency with the corresponding form of criminal proceedings. Consider the basic parameters of this inconsistency.
1. Competition of the criminal procedure cannot but change our ideas about the role of the investigator in collecting evidence. The investigator cannot more apply for the role of an impartial subject with the legislator to the side of the accusation, and the results of the cognitive activity carried out by them is to the role of the only proofs permitted. The procedural form of cognitive activity of the investigator, investigator or prosecutor cannot continue to qualify for the role of a tool that ensures reliability, the correctness of the objectivity of the provision of evidence, since the subject of knowledge is denied privileges to be considered more objective and disinterested than the second party.
The presence of a subjective element in the formation structure of the proof recognizes the author of the concept. The essence of collecting evidence, he writes, represents "the perception of the subject of proof through the senses of the senses of crime, transformation and preservation by procedural means in Consciousness of the cognitive image. " The perception of the traces of a crime, as well as other information, is a subjective process, therefore cognitive images of the same phenomena are forming in various subjects. Its imprint on the formation of this cognitive image impose not only the features and status of the sense of the sense of the subject of the subject, but also the specific angle of view, under which they are investigated by the circumstances of the case, taking into account the procedural function. It is even subjective to the selection of evidence to be consolidated by procedural means, since it is mediated in front of a knowledgeable entity.
It is not difficult, so it's clear that the investigator collects, i.e. Reflects in his consciousness, and then in the acts compiled by him not all the information observed or by its sense authorities, but only the one that answers the cognitive task facing it. The cognitive image of this or that object, reflected in the protocols compiled by the investigator, is not an accurate, mechanical copy, and represents the result of its mental transformation of a learning subject. Attempts to issue the proof of the cognitive activity of the investigator or the prosecutor do not correspond to the meaning of the concept of evidence as objectively existing, independent of the knowledge subject. For example, in the presentation protocol for identification, the investigator indicates that three metal mounts are presented a witness. At the same time, neither general, nor individual signs of these objects in the protocol does not reflect, photographing does not produce. In the course of the judicial investigation, it turns out that the subjects presented for identification had significant differences, because the mothing could be considered
only one of the objects, whereas two others have signs of a nail. A nurse was presented as a real proof of the court, one of the ends of which was divided. At the same time, during the identification, none of the witnesses for such a noticeable sign of the identified object, which they called the mount, did not indicate. Defects of the presentation protocol for identification do not allow to evaluate the results of identification recorded by the investigator as reliable.
2. The Code of the RSFSR, in accordance with the norms of which the concept of the formation of evidence was developed, enshrining the rules on the collection of evidence, proceeded from an authoritarian and bureaucratic understanding of the legality, more appropriate to the spirit of the Inquisition (search) model of the criminal process. The principle of legality in such a model, as noted in science, peculiarity is characteristic, legal pedanticity, i.e. Reference following detailed prescriptions of the law. Such detailed regulation of the rules of collecting (formation) of evidence, according to S. A. Shaifer, creates conditions for an objective display of reported data, and also protects the rights, honor, the dignity of citizens from unreasonable constraints.
Practice, however, testifies that no most detailed regulation of the law of the investigative action procedure (procedural form) itself is not a guarantee of its observance.
Thus, the participation of understood by law is provided for as a guarantee of the legality of the actions of the investigator. However, it is known that this requirement of the law is violated everywhere and daily: there are not those extraneous persons who are capable of mentioning the legislator, to carry out an objective public control Behind the progress of investigative action and certify its results, and various kinds of unofficial (public) assistants, student students, and even almost consistent (secretly) in service in the investigation bodies. The presence of signatures of the same persons in many protocols of investigative
actions and in several cases "gives them a property of admissibility," since the court, as a rule, does not pay attention to reports on these violations.
Thus, in the case of R., accused of deliberate murder, the prosecutor, wanting to reject the application for the exclusion of as an invalid evidence of a number of protocols of the investigative actions, in which a citizen of X. was indicated as understood by the petition for the interrogation as a witness. In the process of interrogation X. showed that each time it turned out near the district prosecutor's office completely accidentally, extended its movement in the city and the problems of his memory, because it could not clearly indicate in what investigative actions she took part. My acquaintance with the investigator X. rejected until the defense presented the court documents from which X., a student of one of the local universities, twice passed the practice of this investigator. It is interesting to note that the investigator interrogated by the court about the circumstances of the attraction of X. as understood, also denied the fact of acquaintance with her, i.e. In fact, false testimony gave the court.
In investigative practice, a violation of the right of defendant for protection is common, for example, when the charges and subsequent interrogation of the person who has entered into an agreement on the provision of legal assistance with a specific lawyer is made in the presence of another invited by the investigator bypassing the order established by the corresponding chamber of lawyers in accordance with the submission. 5 p. 3 Art. 31. Federal Law from 31.05.2002 No. 63-F3 "On advocacy and advocacy B. Russian Federation" However, the courts in assessing such situations are guided, as a rule, a formal criterion - the presence of a warrant, and in the protocol - a lawyer signatures.
Decisions on the preparation of the search in individuals who are for one reason or another in the field of view of operational services substantiated only by an indication of the report on the possible involvement of each of them to commit the crime, "packages" are found in criminal cases about the unseasured murders and other serious crimes. Presence judicial decision The permission to limit the constitutional right to the housing integrity allows the use of the fact
"Detection of such persons have any prohibited to circulate objects as a basis for initiating a new criminal case. Judicial control The legality of the preliminary investigation introduced as an additional guarantee constitutional law Citizens, in many cases of their appointment does not justify, turning into another burdensome formality.
According to the case described above, R. Investigator instructed the inquiry authority to make a search without a court decision in his dwelling. During the search, numerous violations of the Code of Criminal Procedure were admitted during the search: the search for the search for the search was awarded a few hours after its end, while the time of the search was not specified in the protocol; seized objects are not packed and not sealing; Part of the investigative action (search in the garage and seizure of cars and keys from it) is not reflected in the protocol. Carried out the control of the legality of the search in accordance with Art. 165 Code of Criminal Procedure The court did not see any violations of the law and himself violated the law, having considered the report on the investigative action produced more than 15 days.
In criminal cases, it is sometimes possible to meet a variety of certificates of investigators about allegedly performed by the actions or the events that have taken place - about the notice of the defender of the date of investigative action, the presence of a translator when performing procedural actions, the protocols of which this fact do not reflect, etc. The list of actually illegal procedural actions, the detection of which is hampered by the presence of relevant entries with the investigator in the protocol, can continue infinitely. As we see, the procedural form provided by law does not only do not protect against procedural disorders, but used as their cover actually contributes to them.
3. Stipulated by the legislator The procedural form does not ensure the accuracy of information obtained during these actions, and therefore cannot be considered as the only guarantee of the reliability of evidence and the validity of their conclusions arising. The concept of evidence obtained by the investigation authority was called upon to serve as a guarantee of the reliability of the evidence obtained today serves an obstacle to their objective, free, not pre-installed assessment, as evidence submitted by the accusation and received out of control by the second party.
Compliance with the procedural form of evidence is amenable to external control to a greater extent than its content, the reliability of which is difficult to evaluate with the help of a system of formal criteria. Since the evidence estimate is carried out mainly on such criteria, compliance with the form begins to act as the main purpose of procedural activities, the concept of "proof" is replaced by the concept of "permissible evidence", and only evidence collected (ie, formed) by the investigation authority is admissible, including including violation of CPC requirements.
4. To a certain extent, the consequence of this concept is an artificial increase in the number of evidence leading to the false representation on the presence of their aggregate. Often, one and the same information is present in a criminal case in various types: an obey turnout, the testimony of the suspect, the testimony of the accused, testimony at one-time rate and during the inspection on the spot. Understanding the investigative (proceeding) action as a method of forming evidence suggests that in the described case we have several "formed" in this way evidence. However, in reality, no multiplication of the number of evidence occurs: in the criminal case materials, it is only repeatedly recorded outgoing information from one general source.
5. The concept under consideration allowed and continues to allow theoretically justify the procedural inequality of the parties in the criminal process. With our
preliminary investigation ganisy The formation of a totality of evidence is fully focused in the hands of entities engaged in criminal prosecution. The accused and his defender, as well as the victim, as subjects who are not eligible to collect evidence in the procedural form, which is recognized as the only possible, from the formation of a set of evidence submitted by the court is actually suspended.
In connection with the declared clarification. Collecting information about the event of a crime, the investigator forms an evidentiary base that allows it to make and substantiate certain conclusions. However, it does not forms a specific evidence, because in this case, according to P. A. Lupinskaya, "the investigator, as it were, becomes the creator of evidence, which contradicts the nature of evidence." The evidence is created in the process of interaction of the crime and ambient, the investigator finds out, discovers, perceives and consolidates these evidence.
The term "collecting evidence" is conditioned. You can collect only phenomena with a quantitative characteristic. Collect (collect) means to connect, focus in one place a certain community of phenomena, items, people. Therefore, it is impossible to talk about collecting or on the formation of one, single evidence, but it is possible to collect information about the formation of a totality of evidence. From the formation of a combination of evidence, i.e. The collection of information should be distinguished by the design of the information obtained by drawing up protocols, etc. The certificate of investigation authority really accompanies each informative
the step, ensures the preservation of the evidence obtained in the criminal case materials, gives it a certain procedural form, but it is unequivocal to the formation of evidence.
So, collecting evidence - This is picking up information about the crime and other circumstances that matter. In accordance with Part 1 of Art. 86 Code of Criminal Procedure, collecting evidence carried out by the investigator, investigator, prosecutor and the court by committing investigative and procedural actions provided for by the Code.
Investigative actions, which are the most perfect mechanism for obtaining evidence and reflecting it in criminal case materials, are the main way of collecting evidence. The procedure of each of them is set up in detail by law. To a lesser extent legislative regulation, such procedural actions were undergoed in the Code of Criminal Procedure, such as the presentation and evidence of evidence and the requirement for the conduct of documentary audit, known and previously implemented by law.
On the presentation of evidence as a method of replenishing materials of the criminal case, articles say articles criminal procedural The law determining the status of its informal participants - the suspect, the accused, the victim, the civil plaintiff and the civilian defendant, their representative, as well as the defender of the suspect, accused. By virtue of the indications of Part 2 and 3 Art. 86 CPCIs are entitled to submit to their disposal objects and documents that can contribute to the establishment of circumstances that are important for business. Evidence can be represented by operational-search bodies. However, due to the fact that the law does not contain any instructions on the form of such a submission, any actions should be recognized as permissible to transfer the evidence to the investigation and court. Does not contradict the law and even corresponds to its meaning to drawing up a protocol reflecting the fact of the provision of evidence by a participant in the criminal process.
Celebration of evidence by the investigation body and the court is a way of collecting, mainly documents from organs state power and local governments. These can be copies of documents.
at their disposal (for example, certificates of state registration) Certain information compiled, containing generalized information based on their documents and other information (for example, a certificate of conviction). It is not forbidden to request documents from non-governmental organizations and citizens and even objects that may have the importance of material evidence if there is no threat to their destruction or concealment. Obtaining requested proof should also be reflected in the case file.
The requirement for the production of documentary inspections and revisions is provided only as an action to verify the report on the crime under the initiation stage of the criminal case (part 1 of Art. 144k). The form of the requirement by law is not resolved. The task of controlling and auditing bodies is determined by the investigation authority in the very general. However, it is obvious that this requirement and the results obtained must have a written form.
Each investigation authority and judgment, the proof is subject to careful and comprehensive verification and evaluation in terms of its relativeness, admissibility, accuracy. CPC calls as ways to verify evidence: a) comparing them with other evidence already available in the case; b) establishing sources of evidence; c) obtaining other evidence confirming or refuting the verifiable evidence. As you can see, the evidence check combines the practical (obtaining evidence, the establishment of their sources) and the mental (comparison with other evidence) activities. In science, attention is drawn to the fact that testing evidence in relation to the proof of proof as a whole has conditional independence, since it practically dissolves in collecting and evaluating evidence. All elements of the proof process are really interconnected: at each moment of practical evidence, we have and picking up, and verification, and evaluating evidence, but this does not deprive them of independent content and value.
The main way to verify evidence is to obtain other evidence, the expansion of their aggregate, since it ensures and establish sources of verified evidence and the ability to compare evidence among themselves. Each new proof in this sense also serves as a means of checking existing evidence and itself is checked by them. Synonym for evidence verification is the term "study" as used in theory.
Evaluation of evidence - This is mental activity, consisting in the analysis and synthesis of the content and forms of evidence and the final conclusion on the relativeness, admissibility and reliability of each evidence and adequacy as a whole, the combination of the procedural decision (part 1 of Article 88 of the Code). Independent activity cannot be regulated by criminal procedural law, it proceeds in accordance with the laws of human thinking, logic and psychology. At the same time, the law establishes the principles and rules to which the investigator and the Court should be guided in the process of evaluating evidence, as well as the rules for the procedural expression of the results of appraisal activities. At the same time, the significance of evaluation evaluation is so large that the legislator formulated the rules of evaluation as the principle of criminal proceedings.
In accordance with Art. 17 Code of Criminal Procedure, jury, as well as the prosecutor, the investigator, the investigator evaluate the evidence in their inner conviction based on the aggregate of the evidence in the criminal case, guided by law and conscience. No evidence has a predetermined
forces. In their combination, these rules personify the principle of free evaluation of evidence. Free evidence estimate - This is an assessment carried out by independent subjects of criminal procedure, not related to any formal prescriptions and does not allow any coercion to accept one or another solution.
A free evaluation of evidence was historically preceded by the formal theory of their assessment, based on the establishment of the law of the force of individual evidence and the possibility of their use, although, as I. Y. Foignitsky wrote, "the formal theory never warned unfair condemnation and very often led to impunity of obvious criminals."
Speaking about the subjects of free evaluation of evidence, first of all we mean a judge representing an independent judiciary in a particular case. Therefore, although formally, the principle of evidence assessing internal conviction was recognized by the preceding criminal procedure codes soviet period, he could not be fully implemented due to the lack of independent and independent judicial authority. It seems that the problem of free evidence is not resolved today. Note in Art. 17 CPC next to the judge of the investigator, the investigator and the prosecutor is the echo of the former representations inspired previously quoted Art. 20 UPC RSFSR. The essence of the freedom of the inner conviction in the non-binding of its unilateral procedural function and the absence of the obligation to prove anything. The investigator, as well as the investigator, is internally and cannot be free to assess the results of his labor, he is predramenten and is biased. Promracted and is biased by the prosecutor under the guidance
or supervision of which was investigated. No longer free public prosecutor representing court session The accusation approved by the Higher Prosecutor, and does not have the right without agreement with him to refuse to charge.
Thus, the subject of a really free evaluation of evidence in their inner conviction is the court considering and a permitting criminal case. His freedom is guaranteed:
Competitatory of criminal proceedings, liberating a judge from the obligation of proof;
Lack of responsibilities to make a certain decision;
The absence of pre-established rules for which evidence should be assessed;
The lack of a predetermined force of evidence;
Freedom from external coercion to decision making.
At the same time, the law states that the inner conviction of the judge must be based on the aggregate of evidence in the case. This means that it should be objective. The objectivity of the inner judicial belief depends on the possibility to take into account the arguments of both parties, for which they are equally equal to participation in evidence and to appeal the decision taken by the court.
So, we reviewed the procedural side of procension, including both practical (cognitive and urgent) activities and mental operations. Evaluation of evidence permeates all stages of procedural activities, is present both in the collection and verification (research) of evidence. It is not exhausted by the assessment of the properties of individual evidence in the process of their collection and inspection, but penetrates invisible and intangible links between the evidence themselves and between them and proven circumstances. It is this (based on evidence, as the results of practical activity), mental activity allows the subject of proof by logical conclusions to establish the existence of inaccessible direct knowledge of the facts.
Collecting evidence in the criminal process - a part of the criminal proceeding process in the criminal procedural law, which consists in legal relations and activities of the participants in the criminal procedure under the determining role of the investigator, investigator and court for detection, withdrawal, procedural consolidation (design) of evidence.
According to Art. 86 CPC is a suspect, accused, as well as the victim, civil plaintiff, a civilian defendant and their representatives are entitled to collect and submit written documents and subjects to encourage them to criminal proof as evidence. The defender has the right to collect evidence by:
1) obtaining items, documents and other information;
2) polls of persons with their consent;
3) requests for certificates, characteristics, other documents from state authorities, local governments, public associations and organizations that are required to provide the requested documents or their copies.
Collecting evidence - The legal relations and activities of participants in the process under the determining role of the body of the inquiry, investigator, the prosecutor and the court for the detection, withdrawal and procedural consolidation (design) of evidence.
Methods of collecting evidence (Art. 70 CPC):
1) the production of investigative and judicial actions;
2) the presentation on its own initiative of evidence by the participants of the process and persons who, after submitting evidence, become participants in the process;
3) the production of revisions, inventories and other documentary inspections;
4) Calm documents and subjects from organizations, public associations, officials and other citizens.
Ostrodiscusing remains the question of using the results of operational investigative activities, since Art. 11 of the Law of the Russian Federation of July 5, 1995, "On Operational Festival Activities" established: "The results of operational and investigative activities ... can be used in criminal proceedings in accordance with the provisions of the Criminal Procedure Legislation of the Russian Federation regulating the collection, verification and evaluation evidence. " Meanwhile, a special mechanism for checking operational data, a criminal procedural law does not contain.
Some authors argue that the results of operational activities should be considered as the basis for the formation of evidence. * Others rightly object to this thesis, since the law does not allow to collect evidence during operational investigative activities **.
* Share E. A. Use in proving the results of operational investigative activities. M., 1996.
** Larin A. M. REC. On the book: Share E. A. Use in proving the results of operational investigative activities. M., 1996 // State and Law. 1997. No. 7. P. 120-122.
Being a supporter of use in the criminal process of operational data, I would not allow them as evidence in a criminal case until a special procedural mechanism is developed. Nevertheless, if the subjects and documents received during operational activities will be presented, the investigator is obliged to know who submits them in detail this face about the circumstances of the appearance of these objects, to establish whether the law "On operational-investigative activities" is not violated Check the relevant data on the rules established by the criminal procedure law.
Check evidence - legal relations and activities of the process participants under the determining role of the body of the inquiry, investigator, the prosecutor and the court to establish contradictions between evidence and their elimination.
With regard to verification of evidence, the legislator of brief: "All the evidence collected in the case is subject to careful, comprehensive and objective check ..." (Article 70 of the Code of Criminal Procedure).
Separate authors believe that in the procedural sense, the verification is also collecting evidence, but not initial, and those with which the evidence can already be used. It seems that in testing practical activities unacceptably tear off from logical. Therefore, I believe that the verification in addition to this method is also carried out by:
a) comparison of evidence (actual data) contained in one appliance means;
b) comparison of evidence contained in several means of evidence.
Evaluation of evidence - Independent (logical) activities to determine the relativeness, admissibility, reliability and sufficiency of evidence.
Evaluation of evidence occurs in all stages of the criminal process. The law establishes uniform principles and rules for evaluating evidence in all stages of legal proceedings. According to Art. 71 Code of Criminal Procedure is evaluated by inner conviction based on the comprehensive, full and objective consideration of all the circumstances of the case in their population, guided by law and legal consciousness. In this case, no evidence has a predetermined force.
Internal conviction in evaluating evidence has two aspects. Inner conviction as the principle of evidence evaluation It is a free assessment of them, not related to the advantage of some evidence before others. Inner conviction as a result of evidence evaluation characterized, firstly, the knowledge gained; secondly, faith, conviction in the correctness of this knowledge; Third, a volitional incentive encouraging to certain actions and solutions.
Reliable evidence - Proof, the truth of the content of which is recognized as a deserving complete, undoubted confidence.
Sufficiency evidence - A combination of evidence that ensures the adoption of a legitimate and reasonable decision.
An important issue in the criminal process is the question of the obligation of proof.
Duty proof - the amount of due behavior of the participants in the process of collecting, verifying and evaluating evidence.
Procedurealists divide all subjects of evidence into two groups:
1) government agencies and officials, obliged Collect, check and evaluate evidence.
This group traditionally belongs:
§ an organ of inquiry;
§ a person who produces inquiry;
§ investigator;
§ Head of the Investigative Department (Parts, Committee);
§ prosecutor, private prosecutor and his representatives;
Assigning Currently, the Judge (Judge, Judges district Court) The obligatory subjects of proof is questionable. This is due to the fact that the main meaning of the obligation of proof is the responsibility of proving the guilt of the accused. With considering constitutional principle Process Competition The Court must maintain impartiality and objectivity, on the one hand, and create the necessary conditions for a comprehensive and complete study of the circumstances of the case - on the other (Article 429 of the Code). Obviously, with this approach, the court should not have a duty to prove the guilt of the defendant;
2) participants in the process, having law Participate in proving certain circumstances of the case. This group includes:
§ accused, his legal representative, defender;
§ The victim, the civil plaintiff, the civil respondent and their representatives;
§ Public defender and public prosecutor.
Obviously, this classification is based on the principle of presumption of innocence.
According to the law, proving is to collect, verify and evaluate the evidence in order to establish the circumstances to be proof (Art. 85 of the Code of Criminal Procedure). Collecting, checking and evaluating evidence - a part of a single organic whole - the process of evidence, the process of establishing the truth in a criminal case.
The proof process begins with the collection of evidence. Collected and assembled evidence in the process of proof is checked and evaluated in order to establish the truth in the case.
The obligation to implement proof by virtue of the principle of publicity is assigned to the authorities of criminal procedure activities - the investigator, the investigator, the prosecutor, the court. It is they who are obliged to collect evidence, check and evaluate them (Art. 17, 86, 87, 88 of the Code of Criminal Procedure). They also lies the obligation to recognize the evidence by unacceptable (Art. 75, part 2-4 of Art. 88, 235, part 5 of Art. 335 Code of Criminal Procedure). Out of proving, the power subjects of the criminal proceedings from the prosecution will not be able to realize the function of criminal prosecution entrusted to them (Art. 21 of the Code of Criminal Procedure), and the court is to implement justice (part 1 of Art. 8 of the Code of Criminal Procedure. Only within the framework of proof, the tasks of legal proceedings associated with its appointment as a whole (Article 6 of the Code of Criminal Procedure) can be solved. It should be noted that by providing proving, collecting, checking and evaluating evidence, the court at the same time is not obliged to prove the guilt of the accused. The burden (duty) of proving the guilt of the accused lies in the investigator, investigator and prosecutor. Criminal prosecution On behalf of the state in criminal cases of the public and an hour of public prosecution, the prosecutor, the investigator and the investigator (part 1 of Article 21 of the Code of Criminal Procedure) are carried out.
The law provides an opportunity to accused to actively participate in proof. It can realize it by testing the testimony, applications for the production of investigative and judicial actions aimed at collecting, verifying evidence, participation in the production of investigative and judicial actions, participation in judicial debate, etc.
The right of the accused to participate in proof (which he under the law is disposed of at its discretion) does not mean his obligation to prove his innocence or guilt. The burden of proving the charges and denial of the arguments given to the defense of the suspect or the accused lies on the accusation side (part 2 of Art. 14 of the Code of Criminal Procedure).
Other participants in criminal proceedings are also endowed with rights that enable them to actively participate in proving, providing an appropriate effect on it. They can reach it: giving testimony; stating the petition for the production of investigative and judicial actions aimed at collecting and verifying evidence
Section I. General
or petitioning on participation in such actions; presenting objects and documents that can serve as the basis for the formation of evidence; stating the petition for the recognition of evidence unacceptable; participating in investigative and judicial actions; participating in judicial debate; Appealing the actions and decisions of the investigator, investigator, prosecutor or court.
Collecting evidence - part of the proof process, which includes production by the investigator, investigator, prosecutor and court provided by law investigative and judicial actions (h.
1 tbsp. 86 Code of Criminal Procedure) aimed at detecting data attributable to the case, their consideration and preservation.
Collecting the evidence with power subjects of the criminal procedure can be carried out only by the production of investigative and judicial actions provided for by the law, which in general are regulated by Part 1 of Art. 86 CPC. To such, the law refers: interrogation of a witness, interrogated the victim, interrogation of the suspect, interrogation of the accused, full-time rate, production of expertise, inspection (all its varieties), recess, searches, presentation for identification, investigative experiment, checking testimony in place, demand, presentation (Article 164-170, 173-174, 176-184, 186-207, 275-290 of the Code of Criminal Procedure).
Each independent type of evidence is inherent in its strictly defined method of collecting. Thus, the method of collecting the indications of the accused and the suspect serves the interrogation of the suspect, interrogation of the accused (part 2 of Art. 46, Art. 173-174, 187-191, 275-276 of the Code), the testimony of the victim and witness-interrogation The victim, the interrogation of the witness (Art. 187-192, 277, 278-282 of the Code of Criminal Procedure), the conclusion of the expert - the production of expertise (Art. 195-207, 282-283 of the Code of Code), material evidence - inspection and decision on the recognition of the subject with real proof and Attachment it to the criminal case (Art. 81-82, 176-177, 180, 284 of the Code of Criminal Procedure), etc. The evidence obtained by improper subjects is either as a result of actions not provided procedural standardsmust be confusing unacceptable.
The production of investigative and judicial actions aimed at collecting evidence can be carried out by the power subjects of the criminal procedure only if the foundation provided by the law, that is, the relevant information (data).
For investigative actions, the implementation of which is associated with the restriction of constitutional rights and freedoms of citizens (p. 4-9 and 11 hours 2, Article 29, Code of Criminal Procedure) judicial order obtaining permission to produce their production (Art. 165 of the Code of Criminal Procedure). He speaks an additional guarantee Compliance with the rights and freedoms of citizens in criminal proceedings, the inadmissibility of their restriction without legitimate to the reason.
The detection of data attributable to the case - means their perception by the investigator and the court from sources and in the forms provided for by the criminal procedure law. Before the case attracted to the case will be discovered during the production of the appropriate investigative or judicial action, it is necessary to find (find) a possible source of evidence - a person to which they can be known. This search can be carried out both by the production of investigative and judicial actions and in the implementation of operational investigative activities (part 1 of Art. 11 of the Law on Horde).
Consideration of the detailed data. It begins, for example, from the moment the perception of the investigator, the court, as part of the interrogation of the oral message of the witness. Consideration of the data contained in the document will occur when it is read by the investigator, the perception by judges of the content of the document when it is announced during the judicial investigation. During the consideration of the discovered data, the investigator, the court allocate those of them that relate to the criminal case. They are fixed in the protocol.
Saving detected and considered data - means reflection (consolidation, fixation) in the protocol in accordance with the requirements of the law. As a result of the consideration of the data discovered, the investigator and the court are convinced of their relatives to the criminal case, after which they are obliged to reflect them in the relevant protocol (Article 166, 259, 260 of the Code). The main form of fixation of these data law establishes writing. As optional fixation tools is allowed to use stenographing, technical means (Part 6, Art. 164, Part 2 of Art. 166 Code of Criminal Procedure).
In accordance with Part 4 of Art. 21 Code of Code The investigator and the court have the right to demand from enterprises, institutions, organizations, officials and citizens of presenting subjects and documents that are significant for a criminal case. On their basis, it is possible to form proofs under the observance of procedural regimes intended to collect considerable evidence, other documents.
According to the law (part 2-3, Art. 86 of the Code of Criminal Procedure 86 of the Code of Criminal Procedure), a suspect, accused, as well as the victim, civil plaintiff, a civil respondent and their representatives are entitled to collect and submit written documents and subjects to encourage them to criminal proof as evidence. This right cannot be interpreted as their right to the production of investigative actions aimed at collecting evidence. In this case, we are talking about written documents and subjects obtained by the subjects listed in the formal manner government agencies, officials, enterprises, institutions, organizations. These participants are entitled to submit the authority in the production of which is a criminal case, documents and items that are at their disposal. In these
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Chapter VIII evidence and proof ( general provisions)
these subjects may request documents and through legal advice.
It must be borne in mind that in the case under consideration we are talking about the submission of non-evidence, namely, documents and items that have, in the opinion of representing the importance for a criminal case. The very fact of their presentation is legitimately considered only as an appropriate petition. After the submission of the document, the subjects of the criminal procedure get acquainted with its content, inspect the items. Thus, the presence in the documents of the data attributable to the case is established, and in the subjects their properties and states, meaningful for the case, which are reflected in the protocol, that is, the formation of evidence occurs. In the future, they can be recognized by other documents or are attached to the case as a physical evidence. The introduction of submitted documents and items to a criminal case may be denied if it is established that they do not meet the requirement of relatives.
The law provides the advocate of the right to collect evidence by: receiving subjects, documents and other information; polls of individuals with their consent; Celebrations, characteristics, other documents from organizations that are required to submit the requested documents or their copies (part 3 of Article 86 of the Code of Criminal Procedure). In this case, it is not referred to in mind that the advocate is wrong to collect evidence, and its right to receive objects, documents that can be represented by a criminal proceedings. In the future, on their basis, evidence may be formed in the manner prescribed.
Regarding the right of the defender to collect evidence by surveying individuals with their consent (paragraph 2 of Part 3 of Art. 86 of the Code of Criminal Procedure), it should be noted that in this case the information obtained as a result of the poll of private persons with the defender set forth by him or questioned persons in writing, It is impossible to be considered as evidence, in particular as the testimony of a witness. They were obtained in the absence of guarantees provided for by the criminal procedure law of guarantees of their benign (without preventing a person about responsibility for the gift of obviously false testimony, beyond the procedure for interrogation of obtaining and fixing indications, etc.). Such information may be considered as grounds for calling and interrogation. specified persons As witnesses or for the production of other investigative actions to collect evidence.
Collecting evidence in court (compared with the preliminary investigation) inherent in a number of features. They are expressed in the following: collecting evidence in court occurs in the conditions of the most complete action of all principles of the criminal process; carried out by the court to the subject independent and obeying the law only; originated
dIT in the presence and with the participation of all subjects of the criminal proceedings, which allows the court at the same time to look at the formable proof through the prism of the procedural interests of various participants in the criminal procedure, etc.
The verification of evidence is part of the proof process, which is the activity of the investigator, investigator, the prosecutor, the court on the analysis and synthesis of evidence, comparing them with the already collected evidence, collecting new evidence (Art. 87 of the Code of Criminal Procedure) 1.
The purpose of testing evidence is to establish their reliability, i.e., compliance or non-compliance of the information contained in them and the circumstances that are important for the proper permission of the criminal case. In the course of the test, the validity of the evidence is also being investigated - the compliance of their shape to the legal requirement of admissibility.
The information contained in the evidence may be based on the conclusions on the case only after their verification, comprehensive research2. Verification of evidence is a continuation of the proof process starting when collecting evidence. The limitations of sensual knowledge requires verification of the provision of evidence not only with a sensual practical way (which takes place when collecting new evidence), but also rational means - through the analysis and synthesis of evidence, comparing its content with other evidence already collected.
The activities of the investigator and the court for verifying the evidence carried out through their analysis and synthesis, comparison between themselves and collect new evidence, the completed assessment of the entire set of collected and proven evidence, acts in the process of proving as "the constructive method of knowledge of the cognition of a criminal case.
Character, orientation, the volume of evidence verification, the variety of methods used in this case do not depend on the arbitrary discretion of the investigator and the court, but are determined by objective factors: the features of the investigated crime; the type of evidence of the evidence; the quantity and quality of the assembled evidence associated with the facts checked through the displayed facts; the ratios of the well-known and alleged facts, their nature, places and meanings to establish the truth in the case; The volume of established and not established bonds of these facts with other facts and circumstances. In addition to etogb, it is necessary
Among the three ways to verify evidence, the law does not mention the analysis and synthesis. This circumstance can be explained by the fact that the analysis and synthesis of evidence begins to be carried out already when it is collected "" of the Air Force of the RSFSR 1990 No. 2 with II
Section I. General
consider the specifics of each single evidence verified. It may be due to the individual features of perception, memorization and reproduction of a person who is a source of evidence and is largely character public relationsThe participation in which led to the reference to the case of information.
A significant role in verification of evidence can also be played by subjects of criminal procedure activities that are not given to the authorities involved in proofing both by the protection and the prosecution. They can implement it by applying various purposes, directly or indirectly related to the inspection of collected or assembled evidence; setting questions to the questioned (witness, victim, accused, suspected); introduction to the protocols of investigative and judicial actions (in the production of which they participated) add-ons, amendments and comments; participation in judicial debate; making complaints, etc.
Verification of evidence At the initial investigation stage, it seems quite complicated, since by this time only individual facts are established, indicating signs of a crime, when many significant circumstances of the case are not yet known. In such cases, the test started in the formation of evidence may continue considerable time, sometimes until the end of the preliminary investigation.
Starting an inspection of already formed evidence, first of all, it should be ensured that it was obtained after the initiation of a criminal case, the proper subject of the criminal process and as a result of the actions provided for by law. The evidence obtained before the initiation of a criminal case "or inappropriate subject2; or during the actions not provided for by law3 are invalid.
Violations The permissibility requirement not detected during verification deprive the investigator and judges to eliminate or take into account their influence on the content of evidence. The retreat from the requirements of admissibility may be entitled and violation of rights and legitimate interests Persons from which proofs are based4. As a result, serious difficulties may arise at the final stage of proving when evaluating the entire totality of evidence, since it will fall into it that
"For example, the Air Force. 1996 No. 11. P. 6-7.
2 See: RF Air Force 1997. No. 3 p. 11; 1998. No. 8. P. 6-7
1 See: Air Force. 1996. No. 1. P. 6.
as a significant violation of criminal procedural lawlimiting the right to
protection (BVS of the USSR. 1974. № 4. C 25).
Chapter VIII. Evidence and proof (general provisions) 175
it is generally unacceptable due to a significant violation of the criminal procedural law when they are collecting them. Therefore, without establishing compliance with the evidence of the requirement of admissibility, it is impossible to assume that its verification is completed.
Analysis and synthesis of evidence. In the theory of the criminal process, it is generally recognized that testing of evidence begins with their analysis and synthesis. The process of analysis is accompanied by the formation of the investigator and judges of concepts, judgments about individual parts, the sides of the proof, their properties. The analysis is subject to the content of evidence and its source.
At first, the investigator and the court analyze the content of the proof, producing mental dismemberment of information about the facts and circumstances contained in it. At the same time, they investigate them out of connection and relationships with each other, as if considering the circumstances of the subject of proof and side facts, the information about which proof is carried out separately from different sides and at different angles. This allows you to focus on individuals as analyzed information and facts, the circumstances that they reflect, to comprehend and understand them deeper. The dismemberment of the proof of the proof gives a more detailed and clear knowledge of the characteristics of the volume and nature of the information contained in it, and through them, respectively, a clearer and more detailed idea of \u200b\u200bthe characteristics, individual sides of the facts and circumstances that are important for business.
After analysis, the proof must again be investigated, but already with a compound into a single whole of all of its individual parties and, taking into account the characteristics of the signs and features identified by them. Knowledge of the relationships, relations and dependencies that exist between the various sides of the proof, as a reflection of the relations, parties, the relationship of the circumstances and the facts that make up its contents, the conditions of their perception, physical, social features The identity of the source of evidence, the nature and content of social relations, participation in which gave birth to the person referred to the case of information can only be obtained by synthesis.
In itself, identifying such dependencies, connections still does not mean their effectiveness, as does not indicate the opposite. Analysis and synthesis of evidence, giving the investigator and the court knowledge of relations and dependencies between the various sides of the evidence, together with the fact that they do not allow to allocate those that, being inherent in the objective action
Section I. General
are a reflection of the circumstances and facts that are important for the case and separate them from facts that are not included in the proof of nonproless and procedural stage Its formation. In some cases, for example, in the presence of an established interest of a witness who suffered in the outcome of the case, they, nevertheless, can give truthful and complete testimony.
As a result of analysis and synthesis, it becomes possible to identify further directions and forms of evidence verification - the ones of its parties that can and must be compared with other strictly defined evidence
Comparison of evidence. To study obscure moments in previously identified relations, relations and dependencies between the parties to the evidence of the evidence, as in the facts displayed by them, the nature and content of which it is impossible to establish by analysis and synthesis, it is necessary to compare it with other evidence-related evidence, Through the displayed facts. This allows you to make sure in full or partial coincidence, misconception of the proof with other evidence. The investigator and the Court can also state that part of the information contained in the evidence of the test event, which previously caused their doubts about their reliability, does not comply with other evidence related to those checked through the displayed facts, their connections and relationships.
Based on the compliance of the content of several evidence associated through the displayed facts, the investigator and the court come to a reasonable assumption that information about the crime that they carry correspond to reality. The recognition of the importance and necessity of comparing the evidence among themselves, with their inspection, judicial practice is also said, regarding the unreasonable and unproved cases of accusations, built on evidence in contradiction with other evidence1.
However, checking evidence after analysis and synthesis by comparison with other evidence does not always allow to obtain knowledge of all its qualities and properties, the facts and circumstances that make up its content. Further check is possible only by collecting new evidence.
Gathering new evidence. Evidence, being a reflection of the circumstances of the subject of proof and side facts, their numerous properties and relations, are among themselves in a variety of connections, information about which is given in the evidence collected. It is
Head VIII evidence and proof (general provisions)
gives objective prerequisites not only for comparison, but also for further verification by collecting new evidence.
A characteristic feature of the inspection by collecting new evidence is its strict target orientation. The study may relate to any qualities, properties and bonds of evidence, in respect of which the investigator and the court have no doubts that have not been permitted during the prior audit. At the same time, the factors that have influenced the accuracy of information attributable to the case, which is one of the prerequisites for the achievement of truth implemented by evaluating evidence.
Verification of evidence in various stages of the criminal proceedings are inherent in its features.
The most favorable conditions for evidence verification are completed (exist) in the stage judicial trial. They are due to the action of a number of facts, which should include: carrying out the verification of evidence by the court - genuinely independent and independent subject of the criminal procedure, which is not related to the content of the functions of criminal prosecution and protection; Implementation of the verification of evidence in court in the context of the most complete effect of the principles of the criminal process (primarily immediance, competition and equality of the parties); Availability at the disposal of the court and aspects of the combination of evidence collected, proven and evaluated under the preliminary investigation and, as a result, possession of the full picture perfect crimeestablished during the investigation and the possibility of accounting for those facts that influence the results of testing evidence; the possibility of almost simultaneous participation in verification of evidence of all participants in the proceedings; The opportunity for the parties to present in front of each other and the court in a holistic and concentrated form and the results of the evidence carried out by them.
The results of testing evidence should be reflected in the case file, in particular in indictment, in the sentence. At the same time, it is impossible to be limited to an indication of evidence to the sources of evidence, the content of evidence should be given, state the results of their verification. It is on this path that judicial practice is underway.
Evaluation of the evidence is part of the proof process, which is a mental activity corresponding to the logical level of knowledge, during which, on the basis of the aggregate of collected and verified evidence, it turns out output of facts and circumstances included in the subject of proof, and the truth is established in a criminal case.
"SM Air Force of the RSFSR 1962 №2 with 16
SM Air Force of the Russian Federation 1996 No. 7 C 3, 1997 №2 with 14
Section I. General
Evaluation of evidence is the most difficult part of proof. It is carried out where, on the basis of the aggregate of collected and proven evidence, the investigator, the court in the laws provided by law receives a new output knowledge of the facts and circumstances to be proof in a criminal case, part or all the crime, including the conclusion as the punishment made by the court. Evaluation of evidence taking into account the public start of the criminal proceedings assigned to the investigator, investigator, the prosecutor and the court, which is directly indicated in part 2 and 3 of Art. 88 CPC. The remaining subjects of the criminal proceedings can be actively involved in evaluating the evidence by applying for the inadmissibility of evidence, appealing the actions and solutions of power entities related to evaluation evaluation.
According to the law, the court, the prosecutor, the investigator, the investigator assess the evidence of its inner conviction based on the aggregate of the evidence, guided by law and conscience (part 1 of Article 17 of the Code of Criminal Procedure. In this case, no evidence has a predetermined force for them (Part 2 of Art. 17 of the Code of Criminal Procedure).
Evaluation of evidence in the criminal proceedings is made on the basis of uniform principles. The difference between evidence estimates in various stages consists not in its nature, but in order to evaluate, the number of evidence assessed, the conditions under which it is carried out, the contents of the conclusions formulated on them and their significance for the criminal case.
The method of evaluating evidence is the inner conviction of a person who produces inquiry, investigator, prosecutor, judges. The main requirements under the law should meet the evaluation activities in the criminal process, are expressed as follows:
Evidence should be assessed freely on the inner conviction of the investigator, judges. However, this does not mean that they can be estimated arbitrarily. Without establishing in advance the strength and meanings of certain evidence, the law at the same time in general features Regulates the requirements that should be guided by the investigator and judge when evaluating evidence. Naturally, at the same time they are guided by both their legal consciousness and conscience; *
Internal conviction of the investigator, judges, as a method and result of evidence assessment, should be based on a set of part of the evidence (in case of assessing limited aggregates when making intermediate decisions in a criminal case) or on all the evidence collected in their total (in the case of the final decision-making decisions in a criminal case );
At the heart of the intermediate and final conclusions in a criminal case, appropriate aggregates of evidence must lie;
Chapter VIII. Evidence and proof (general provisions)
Evaluation of the evidence by the investigator and the court should be carried out in the forms provided for by the criminal procedure law (decrees, the indictment adopted by the court decisions, definitions, the verdict of the court).
Evaluation of evidence on internal conviction is fundamentally different from evaluation evaluation adopted in the formal theory of evidence, when the force, the importance of evidence is established in advance by law. With this approach, the investigator and judges are not free in evaluating evidence.
Evaluation of evidence as the process of their research by the investigator or the court is concluded by the conclusion of guilt or innocence of the accused of committing a crime. The doubtfulness of the accused, not eliminated in the process and resulting in the criminal case, are interpreted in his favor (Part 3 of Art. 49 of the Constitution of the Russian Federation).
The criterion for the truth of the withdrawal knowledge obtained by the investigator and the court in evaluating evidence is the practice in all the variety of its forms used in the process of proof.
The conclusions of the indictment regarding the circumstances to be proof in a criminal case made on the basis of the combination of collected, proven and evaluated evidence should be undoubtedly unambiguous. Analysis judicial practice Allows you to make the following generalizations regarding the requirements that the evidence assessment must meet, the errors allowed by:
All the proofs available in the case are subject to evaluation in their combination1, and the conclusion of the court on the guilt of the convict should be based on evidence critically estimated in their aggregate2;
The sentence can be based only on evidence, thoroughly proven and evaluated at the court session.
The prosecution version cannot be recognized as informed if there is an opposite version, supported by irrefutable evidence5;
See: USSR Air Force. 1968 No. 2 pp. 29., See: USSR Air Force. 1966. No. 1. S. 29. 4cm: USSR Air Force. 1965. No. 3. P. 37. 5 See: USSR Air Force 1959. No. 5. P. 15. See: USSR Air Force. 1960. # 2.S. 21.
Section I. General
The accusation version cannot be recognized as reasonable if the evidence assessment is unilateral ";
The sentence cannot be recognized as reasonable if the case contains irreversible evidence, testifying to Alibi of the accused2;
The sentence cannot be recognized as correct in the presence of significant unreared contradictions identified in the study at the court of evidence collected in the preliminary investigation process;
The sentence cannot be based on assumptions or evidence, the objectivity and accuracy of which in the case causes doubts and is declared only on condition that, during the trial, the guilt of the defendant in committing a crime is proved4;
Proof - any information on the basis of which the court, the prosecutor, the investigator, the investigator in the procedure determined in law establishes the presence or absence of circumstances to be proof in the criminal case and other circumstances that are important for the case (Article 74 of the Code of Criminal Procedure).
Types of evidence: direct and indirect; primary and secondary; indictment and justification; Real and personal.
Sources of evidence: the testimony of the suspect, the accused; testimony of the victim, witness; the conclusion and testimony of the expert; evidence; Protocols of investigative and judicial actions; Other documents.
Evaluation criteria for evidence: admissibility; relevant; Accuracy.
Admissibility is the compliance of the detection process, consolidation, admission to the case of evidence (procedural form) of the Code of Criminal Procedure.
Requirements - the presence or absence of a logical connection between the information obtained in case and the circumstances to be processed in a criminal case, as well as other circumstances that are important for the case.
Reliability is a qualitative characteristic of the proof that indicates that evidence corresponds to objective reality and have no subjective plaque.
6.2. Subject of evidence
The subject of evidence is the circumstances subject to the mandatory in the case (Art. 73 of the Code of Criminal Procedure):
Event of the crime (time, place, method, etc.);
The guilt of a person in committing a crime, the form of his guilt, motifs;
circumstances characterizing the identity of the accused;
The nature and amount of harm caused by a crime;
circumstances excluding the crime and the punishability of Acts;
circumstances mitigating (art. 61 of the Criminal Code) and gagging (art. 63 of the Criminal Code) punishment;
circumstances that may entail liberation from criminal responsibility and punishment (for example, reconciliation (Art. 25 of the Code of Criminal Procedure));
Circumstances that contributed to the commission of a crime.
6.3. The subject of evidence and the obligation of proof
Subjects of evidence - Persons engaged in the production of investigative and other procedural actions to collect evidence: the court, the prosecutor, the investigator, the investigator, and having the right to participate in proof by statement of petitions for the recovery of documents and subjects as evidence, enforce them, as well as The production of investigative and other procedural actions aimed at obtaining evidence: a suspect, accused, as well as the victim, civil plaintiff, a civil respondent, defender, a private prosecutor (part 2, 3 of Art. 86, Ch. 41 UE?).
Proving limits - required minimum Significant evidence and the depth of study of the circumstances of the subject of proof, on the basis of which it is possible to adopt the only correct decision on the case. This is a universal rule for all solutions in the criminal process.
Proving is the process of collecting, verifying and evaluating evidence (Art. 85 of the Code of Criminal Procedure).
The collecting evidence occurs mainly by the production of investigative, as well as procedural actions by the investigator, investigator, prosecutor and the court.
The defender has the right to collect evidence by: obtaining items, documents and other information; Polls of persons with their consent; Celebrations, characteristics and other documents from the authorities of various levels, as well as public associations (Article 86 of the Code of Criminal Procedure).
Collecting, evaluation and verification of evidence in order to establish the circumstances of the subject of proof - the formalized concept of the proof process.
From the rules of evidence evaluation it follows that each evidence is subject to not only verification, but also evaluating from the perspectiveness, admissibility, and all the evidence collected in the case is sufficient to permit a criminal case. The rules of admissibility are established in Art. 75, 88 CPC, and in case of violation of the requirements of the law, they do not have legal force And they cannot be based on the prosecution or justification, as well as used to evoke any of the circumstances called in Art. 73 Code of Criminal Procedure (proving items). The sufficiency rule in essence corresponds to the determination of the limits of proof of the criminal case.
The rally of the rally indicates that the circumstances established by the court who entered into legal force are recognized by the investigation and court by proof without additional verification, if these circumstances do not doubt, but cannot prevent, however, the guilt of persons who did not participate earlier in the criminal court business.
6.4. Inadmissibility of evidence
The evidence obtained in violation of the CPC requirements are unacceptable. This means that they do not have legal force and cannot be based on the prosecution.
Invalid evidence (Art. 75 of the Code of Criminal Procedure):
1. The testimony of the suspect, the accused, data during pre-trial production in a criminal case in the absence of a defender, including cases of refusal to defend, and not confirmed by suspects accused of court;
2. The testimony of the victim, the witness, based on guessed, assumption, hearing, as well as the testimony of a witness who cannot indicate a source of his awareness;
3. Other evidence obtained from violation of CPC requirements.