Evidence in court proceedings

Consideration and resolution of a judicial case consist of determining the subject of judicial activity; establishing, as a result of proof, circumstances relevant to the case; determining the rights and obligations of persons participating in the case; resolution of the case on the merits.

The court cannot resolve any case without clarifying its circumstances. In each specific case, he establishes the legal facts with which the rules of law connect the emergence, change and termination of legal relations, determines controversial legal relations (whether the right that the plaintiff is asking for actually exists; whether the defendant has a corresponding obligation, what exactly it is ). The activities of the court are aimed at understanding the essence of the case under consideration, its legal and factual composition.

To establish circumstances that the court cannot directly perceive, phenomena that are directly perceived by the court and provide it with information about the facts are used. This is forensic evidence. They are a means of indirect knowledge by the court of the facts relevant to the case.

Part 1 art. 55 of the Code of Civil Procedure of the Russian Federation defines evidence in civil proceedings as information about facts on the basis of which the court establishes the presence or absence of circumstances justifying the demands and objections of the parties, as well as other circumstances that are important for the correct consideration and resolution of the case. The Arbitration Procedure Code of the Russian Federation (Part 1, Article 64) and the CAS of the Russian Federation (Part 1, Article 59) define judicial evidence in the same way.

Information about the circumstances of the case can serve as evidence in court only if it is obtained in the manner prescribed by law.

The Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, and the CAS of the Russian Federation regulate the form in which information about facts can be obtained. The latter are only evidence if they are established by the means of proof provided by law. So, paragraph 2, part 1, art. 55 of the Code of Civil Procedure of the Russian Federation establishes a modern system of means of proof. Its system-forming factor is the goal of proof, i.e. correct and timely determination of the factual circumstances of the case.

Paragraph 2 hours 1 tbsp. 55 of the Code of Civil Procedure of the Russian Federation establishes the elements of the system: explanations of the parties, testimony of witnesses, written evidence, material evidence, expert opinions, audio and video recordings. Part 2 Art. 59 of the Code of Arbitration Code of the Russian Federation includes among the means of evidence the explanations of persons participating in the case, the testimony of witnesses obtained, including through the use of video conferencing systems, as well as written and material evidence, audio and video recordings, and expert opinions. These norms establish an exhaustive list of evidence to be used in civil proceedings and in administrative proceedings. It should be noted that arbitration procedural legislation established an open list of evidence, indicating, among other things, other documents and materials as such (Article 89 of the Arbitration Procedure Code of the Russian Federation). This gives grounds to divide evidence into formalized and informal. Other documents and materials are of an unformalized nature. Traditional evidence has strict procedural regulation, while others have soft regulation. The law does not contain procedural conditions, the observance of which guarantees the admissibility of other documents within the framework of the arbitration process. Other documents and materials can only include evidence that contains information that cannot be supported by any formalized evidence.

The inclusion of other documents and materials in the Arbitration Procedure Code of the Russian Federation as a means of proof in the arbitration process has in a certain way changed the model of evidence in arbitration cases. In accordance with Art. 89 of the Arbitration Procedure Code of the Russian Federation, other documents and materials are admitted as evidence if they contain information about circumstances that are important for the correct consideration of the case. Other documents and materials may contain information recorded both in writing and in another form. These may include photographic and filming materials, audio and video recordings and other media received, requested or presented in the manner established by the Arbitration Procedure Code of the Russian Federation.

Other documents and materials may contain information recorded both in writing and in another form. This data can be obtained both within the framework of the process and outside it (for example, the opinion of an independent expert). Other documents and materials may be presented by the parties and other persons participating in the case and, at their request, may be requested by the court. Other documents and materials to acquire the status of evidence must be attached to the case materials on the basis of a court ruling. The court's refusal to admit such evidence must be motivated and can be appealed by the persons participating in the case on appeal. Thus, other documents and materials are documents and objects of the material world containing information relevant to establishing circumstances in the case that are subject to proof, which are presented by the participants in the proceedings and attached to the materials of the civil case.

In addition to the procedural requirements for the form of evidence, they must also meet the criteria of relevance and admissibility.

Judicial evidence can only be information about facts confirming the presence or absence of circumstances that are important for the correct resolution of the dispute. Relevant to the case are those factual data that serve as a means of establishing circumstances significant to the case. The court accepts only that evidence that is relevant for the consideration and resolution of the case (Article 59 of the Code of Civil Procedure of the Russian Federation, Article 67 of the Arbitration Procedure Code of the Russian Federation, Article 60 of the CAS of the Russian Federation).

Evidence is considered relevant when there is an objective connection between the content of judicial evidence and the facts to be established. Resolving the issue of the relevance of evidence takes place in two stages: 1) determining the meaning of the circumstance and the fact to establish which the evidence is used; 2) establishing the existence of an objective connection between the circumstances to be established and the evidence.

The admissibility of evidence is of no small importance.

In accordance with Part 2 of Art. 50 of the Constitution of the Russian Federation, in the administration of justice, the use of evidence obtained in violation of federal law is not allowed.

The content and form of judicial evidence are inseparable from each other. Relevant facts cannot serve as evidence if they are not obtained from the means of proof established by law (Article 60 of the Code of Civil Procedure of the Russian Federation, Article 68 of the Arbitration Procedure Code of the Russian Federation, Article 61 of the Code of Arbitration Procedures of the Russian Federation).

The admissibility of evidence is one of the fundamental principles of presentation, examination and evaluation of evidence at all stages of civil and arbitration processes. Therefore, it is more correct to consider the admissibility of evidence as a principle of evidence.

The procedural criteria for the admissibility of evidence in civil, arbitration and administrative proceedings should be considered identically. The procedural component of the admissibility of evidence includes the following criteria: 1) the proper composition of the persons carrying out procedural actions of proof; 2) an appropriate source of evidence; 3) compliance with the procedural order of collecting, presenting and examining evidence; 4) the limits of proof established by law at the stages of legal proceedings.

Thus, the admissibility of evidence implies the presence of substantive and procedural aspects.

Denis Ryabinin, lawyer of the Khabarovsk Regional Legal Center

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

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

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

———————————

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

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

Comment source:

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

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

The purpose of criminal procedural evidence

The criterion for the effectiveness of the activities of criminal justice bodies has always been the compliance of the conclusions they made and the procedural decisions adopted with what happened in reality, i.e. establishing the truth in a criminal case

The circumstances of the crime committed can be known to the same extent as other phenomena of objective reality. At the same time, the question of the concept, content and nature of truth, the possibility and degree of its achievement, its cognition has always been one of the key, but debatable and difficult in the theory of evidence and criminal procedure science.

The criminal procedural legislation of the Soviet period (Criminal Procedure Code of the RSFSR 1922, 1923, 1960) fundamentally determined the establishment of the truth as the goal of proof.

Yes, Art. 20 of the Code of Criminal Procedure of the RSFSR of 1960 established the duty of the court, prosecutor, investigator, person conducting the inquiry (interrogator) to comprehensively, fully and objectively investigate the circumstances of the case, that is, to establish the truth in the criminal case, which was a necessary condition for the implementation of fair justice.

“To establish the factual circumstances of a criminal case in accordance with reality means to establish the truth in the case” (M.S. Strogovich)

The current criminal procedural legislation (Code of Criminal Procedure of the Russian Federation) does not directly establish the duty of criminal prosecution authorities and the court to establish the truth in a criminal case. The ideology of post-reform criminal proceedings is based on the priority of the task of respecting individual rights over the task of solving a crime, identifying the person to be brought to trial and determining the extent of his responsibility. This means that procedural means cannot be used to establish the circumstances of the crime committed to the detriment of the interests of individual rights. This is the concept of the purpose of criminal proceedings proposed by the modern legislator (“truth is important, but human rights are primary”).

“The objectives of criminal proceedings are to respect the rights of citizens involved in criminal proceedings, and if during the criminal proceedings the rights of citizens are not violated, then its objectives are completed. Establishing the truth is no longer the goal of criminal proceedings” (E.B. Mizulina)

At the same time, it seems that the question of the attitude to truth in criminal proceedings should be resolved when studying the content of this category or the problem of the degree of achievement

truth.

Truth as the goal of proof in criminal procedure and as the basis for goal-setting in the criminal process has always been given great attention and given important methodological importance.

The Soviet theory of evidence, based on philosophical justifications for the absence of any epistemological obstacles to establishing the truth in criminal proceedings, denied the very possibility of failure to achieve this goal.

The absence of this result in practice was explained exclusively by the ineffective work of criminal prosecution bodies and judges, and not by objective obstacles to establishing the truth (the motto of that time was the following declaration: “there are no unsolved crimes - there are investigators who cannot solve them”).
Therefore, the task was set to accurately and completely understand the picture of the crime committed, i.e. establish the objective truth
in a criminal case.

In this regard, the theory of evidence has traditionally identified two approaches to the goal-setting of evidence: 1) in criminal proceedings only objective (material) truth should be established; 2) it is possible to achieve only legal truth (procedural or formal) while denying the likelihood of establishing objective truth. The first position, as a postulate of Soviet legal science, was completely opposed to the second, the ancestor of which was recognized as Western (and therefore alien) law.

1. When knowledge about a crime is adequate to objective reality and does not depend on man and humanity, the objective truth has been established in the case.

Objective (material) truth

– complete and exact correspondence with the reality of the conclusions of the investigator and the court about the circumstances of the criminal case under consideration, about the guilt or innocence of the persons brought to criminal responsibility (M.S. Strogovich).

The theory of objective truth reigned supreme in the criminal process of the Soviet state. Its supporters, relying on the Marxist-Leninist theory of knowledge, defined objective truth as the correspondence of human ideas about objects of reality to these objects, regardless of the consciousness of the perceiver. Otherwise, according to scientists, this is not the truth, but a delusion mistakenly accepted as the truth.

This theory completely rejected the product of bourgeois law - formal truth

, which meant compliance with the conclusions of the investigator and the court with some formal conventions.
It was called nothing more than quasi-truth, pseudo-truth
, and the court’s conclusions based on it were recognized as false. Formal truth in this understanding is the compliance of the court’s conclusions only with certain conventions. At the same time, such conclusions of Soviet criminal procedural science cannot be considered objective, devoid of ideological overtones. The very view of formal truth was proposed to be simplified, scientific, and surrogate.

2. Recently, the established view of the goal-setting of legal proceedings, as the establishment of exclusively objective truth, has undergone a serious revision. Quite noticeable is the process of restoration of the position shared by Western and Russian pre-revolutionary jurists, according to which legal knowledge allows for a probabilistic nature.

“Objective (material) truth is a fiction, or rather a legal fiction, which allows the use of the criminal process to determine a sentence: and therefore its preservation as a means of the criminal process presupposes that procedural truth will be placed in first place” (V.V. Nikitaev)

The Russian pre-revolutionary criminal process set itself “not the desire to find unconditional material truth, but the desire for legal truth” (I.V. Mikhailovsky). Most domestic proceduralists proclaimed the requirement to establish reliability

in judicial activities (with a more or less high degree of probability), explaining this by the imperfection of the means of human justice (V.K. Sluchevsky, I.Ya. Foinitsky), the presence of conventions, legal fictions, presumptions, etc.
in criminal proceedings (N.N. Rozin). Almost in the same position was the Soviet lawyer, former Prosecutor General of the USSR A.Ya. Vyshinsky, who recognized that the conditions of judicial activity confront the judge with the need to resolve the issue from the point of view of establishing the maximum probability
of certain factors to be assessed.

The norms of the Code of Criminal Procedure of the Russian Federation fully confirm these conclusions. It is obvious that objective obstacles to establishing material truth are directly contained in the law. This is, first of all, the principle of the presumption of innocence and the rules of evidence arising from it, the right of the accused to “remain silent” (clause 3, part 4, article 47 of the Code of Criminal Procedure), the right to witness immunity, strict rules and standards of evidence, the absence of the institution of additional investigation due to its incompleteness, the neutral role of the court, etc.

At the same time, such “obstacles” once again emphasize the conceptual idea of the modern legislator about the priority of the task of protecting and ensuring individual rights in criminal proceedings in relation to the task of achieving objective truth by any means.

Legal (procedural or formal ) truth is the compliance of the court’s conclusions with the evidence available in the case, properly and scrupulously verified, examined and evaluated. This is the truth, based on the materials of the criminal case. This is confirmation of the reliability of the established factual circumstances of the crime, that is, “proven reliability”.

Most likely, in a dispute about the purposes of proof and the degree of cognition of truth, as in any questions of faith, there cannot be right and wrong. K. Capek has a story “The Last Judgment”, where a criminal, after death, ended up in heaven and did not see God among his judges - he acted only as a witness. The criminal turned to the Lord with surprise and asked why he was not the judge, to which he received the answer: “Because a person needs a person. As you can see, I am only a witness, but the people themselves must punish... and in heaven. People deserve no other justice than human... If judges knew everything perfectly, they would... not be able to judge!”

Thus, the Code of Criminal Procedure of the Russian Federation did not officially abandon the task of establishing the truth in a criminal case, although it “camouflaged” it with the proclaimed model of adversarial proceedings.

The optimal goal of criminal procedural evidence should be the achievement of the identity of objective and legal truth

– this is an ideal option. Each law enforcement officer must try to achieve this result, but exclusively by legal means while strictly ensuring the rights of participants in criminal proceedings.

“...the pursuit of the ideal... guarantees no more than an optimal result as a whole” (N.A. Kolokolov)

In addition, the issue of achieving the truth is resolved selectively in relation to a verdict of guilty and acquittal, for which the law imposes different requirements. The correspondence of the established circumstances of the case with what actually took place in relation to the conviction, which cannot be based on assumptions and is established only on the condition that during the trial the defendant’s guilt in committing a crime is confirmed by the totality of the evidence examined by the court (Part 4 of Art. 302 Code of Criminal Procedure).

An acquittal is also pronounced when a person’s guilt has not been proven, including because the judges still have “irremovable doubts about the person’s guilt” (Part 3 of Article 49 of the Constitution of the Russian Federation).

Question 2. Subject of proof. Characteristics of the circumstances to be proven in criminal cases. The meaning of the subject of proof. Features of the subject of proof for certain categories of criminal proceedings

Circumstances to be proven (subject of proof)

The crime is investigated in those parameters, the determination of which is necessary for the correct resolution of the criminal case. For this purpose, circumstances that are significant for each specific

criminal act, which, in turn, contains
general
legal elements.
Therefore, at the legislative level, a number of circumstances that are generally significant for all crimes (a kind of algorithm) are defined, which are subject to proof in each criminal case
.

The criminal procedural legislation of the Soviet period (Criminal Procedure Code of the RSFSR 1922, 1923, 1960) fundamentally determined the establishment of the truth as the goal of proof.

“To establish the factual circumstances of a criminal case in accordance with reality means to establish the truth in the case” (M.S. Strogovich)

truth.

Truth as the goal of proof in criminal procedure and as the basis for goal-setting in the criminal process has always been given great attention and given important methodological importance.

1. When knowledge about a crime is adequate to objective reality and does not depend on man and humanity, the objective truth has been established in the case.

Objective (material) truth

This theory completely rejected the product of bourgeois law - formal truth

The optimal goal of criminal procedural evidence should be the achievement of the identity of objective and legal truth

– this is an ideal option. Each law enforcement officer must try to achieve this result, but exclusively by legal means while strictly ensuring the rights of participants in criminal proceedings.

“...the pursuit of the ideal... guarantees no more than an optimal result as a whole” (N.A. Kolokolov)

Circumstances to be proven (subject of proof)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[15] Ibid. – P. 26.

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

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

Concept and properties of evidence. Classification of evidence

To make a decision in a criminal case, it is necessary to establish whether the event about which the criminal case was initiated took place, who committed the criminal acts, the guilt of the accused and other circumstances.

The peculiarity of establishing these circumstances is that they all took place in the past and cannot be reproduced again. Their cognition occurs by restoring the picture of the event that occurred on the basis of the information that remained in the objective world. They can be reported by an eyewitness, they can be contained in documents, preserved as traces at the scene of an incident, etc. The peculiarity of indirect cognition in criminal proceedings is that, unlike, for example, historical cognition, it occurs in a strictly established order by law and only using the means established by law, which should serve as a guarantee of the reliability of the conclusions on which life, honor and dignity depend citizen.

The most significant rules of evidence are enshrined in Chapters 10 and 11 of the Code of Criminal Procedure and are valid at all stages of the criminal process.

In accordance with Part 1 of Art. 74 evidence in a criminal case is any information on the basis of which the court, prosecutor, investigator, inquirer, in the manner prescribed by the Code of Criminal Procedure, establishes the presence or absence of circumstances that are subject to proof in criminal proceedings, as well as other circumstances relevant to the criminal case.

These data are established by the testimony of the suspect, accused, victim, witness, conclusion and testimony of a specialist (expert), physical evidence, protocols of investigative actions and court hearings, etc., i.e. are drawn from certain sources. From the above definition it is clear that evidence is not the circumstances themselves, but information about them contained in the source provided by law. Thus, evidence represents the unity of its procedural form (a certain procedure for establishing a circumstance) and factual content.

In order for certain information to be recognized as evidence in a criminal case, it must have certain properties. Properties of evidence are requirements (signs, qualities) established by law that evidence used in criminal proceedings must meet. In accordance with Part 1 of Art. 88 of the Code of Criminal Procedure, each evidence must be assessed from the point of view of its relevance, admissibility, reliability, and all collected evidence - sufficiency to resolve the criminal case.

Relevance is a legal requirement addressed to the content of evidence. Relevant evidence is the content of which indicates the existence of circumstances to be proven, as well as other circumstances relevant to the case. Any factual data can become evidence in a case if it is related to the event that occurred and if it can be established on its basis. In a number of cases, circumstances that are important for the correct resolution of a case are derived from various facts that are objectively related to this circumstance. Such facts are usually called evidentiary facts, for example, in a murder - hostile relations between the accused and the victim, the acquisition of weapons by the accused, threats against the victim. All this together can serve as evidence of the commission of a murder by a specific person.

Admissibility is a legal requirement imposed on the form of evidence, that is, on the source of information and the method of collecting (forming) evidence.

The admissibility property consists of:

— information must be obtained from sources provided for by law, i.e. only from those enshrined in Part 2 of Art. 74 Code of Criminal Procedure.

— the procedural form of collecting and recording information must be observed (i.e., for example, the procedure for interrogation, inspection, seizure of material evidence).

- information must be collected by an appropriate, authorized person (who accepted the case for proceedings).

Compliance with admissibility requirements is of great importance for the formation of good-quality evidence and, accordingly, ensuring the rights of participants in the process and a fair resolution of the criminal case. The prohibition on the use of evidence obtained in violation of federal law is enshrined in the Constitution, and after it - in the Code of Criminal Procedure (Article 75).

The Code of Criminal Procedure establishes the procedure for declaring evidence inadmissible. Evidence may be declared inadmissible at the initiative of the inquirer, investigator, court or at the request of the parties, the prosecutor (parts 2,3,4 of Article 88, Article 119, Article 234, Article 235, Article 271, Article 120, Article 121, Article 124, Article 125 of the Code of Criminal Procedure).

Reliability – compliance of the information received with the circumstances of the crime committed and other circumstances to be established in the case. It is determined as a result of checking the evidence and is established when sentencing.

Sufficiency is a necessary and sufficient set of information for the court to conclude that the subject of proof has been established. The requirement of sufficiency is determined in relation to the entire body of evidence.

Classification of evidence:

Evidence can be classified depending on what source it is obtained from, whether it relates to the circumstances included in the subject of proof or others, whether it confirms or refutes the accusation, etc.

1) By source:

- initial

- derivatives

Depending on whether the official receives information from the primary source or “second-hand”. The initial testimony will be the testimony of a witness who personally observed the facts reported by him. The testimony of a witness who did not observe but heard from another person who was an eyewitness will be derivative evidence. When receiving second-hand evidence, the original source of information must be identified and interrogated. If this is not possible, second-hand testimony loses the value of evidence.

2) In relation to the subject of proof:

- straight

- indirect

3) Depending on the relationship to the subject of the accusation, evidence in criminal proceedings is divided into accusatory and exculpatory. Incriminating evidence is evidence that incriminates the accused of committing a crime or aggravates his criminal liability. For example, a report to an investigator by an eyewitness about a specific person stabbing a person with a knife. Exculpatory - evidence that refutes the accusation of a specific person in committing a crime or mitigates his criminal liability.

4) Depending on the mechanism for generating evidentiary information in criminal proceedings, evidence is divided into personal and material. Personal - evidence, in the formation of which a person’s mental perception and processing by his consciousness of the relevant circumstances and the transfer by this person in various forms of information about these circumstances to the officials conducting the criminal process take part.

Personal evidence includes the testimony of a suspect, accused, victim, witness, conclusions and testimony of an expert and specialist, protocols of investigative and judicial actions, and other documents. Physical evidence is objects of the material world that show traces of their interaction with other material objects or a person related to the criminal case under investigation.

The most significant rules of evidence are enshrined in Chapters 10 and 11 of the Code of Criminal Procedure and are valid at all stages of the criminal process.

Admissibility is a legal requirement imposed on the form of evidence, that is, on the source of information and the method of collecting (forming) evidence.

The admissibility property consists of:

— information must be obtained from sources provided for by law, i.e. only from those enshrined in Part 2 of Art. 74 Code of Criminal Procedure.

— the procedural form of collecting and recording information must be observed (i.e., for example, the procedure for interrogation, inspection, seizure of material evidence).

- information must be collected by an appropriate, authorized person (who accepted the case for proceedings).

Classification of evidence:

1) By source:

- initial

- derivatives

2) In relation to the subject of proof:

- straight

- indirect

The process of proof and the content of its elements

According to the law, the process of proof consists of collecting, verifying and evaluating

evidence in order to establish the circumstances to be proven (Article 85 of the Code of Criminal Procedure).

The collection of evidence is carried out during criminal proceedings by the inquirer, investigator, prosecutor and the court through investigative and other procedural actions provided for by the Criminal Procedure Code. The prosecutor, as well as the investigator and interrogating officer, carry out criminal prosecution, i.e. procedural activities in order to expose a suspect accused of committing a crime (clause 55 of Article 5 of the Code of Criminal Procedure of the Russian Federation). However, they are obliged to establish all the circumstances that must be proven in a criminal case. These include circumstances that exclude criminality and punishability of the act, as well as those that may entail exemption from criminal liability and punishment (clauses 5-7, part 1, article 73 of the Code of Criminal Procedure of the Russian Federation).

The suspect, accused, as well as the victim, civil plaintiff, civil defendant and their representatives have the right

(but are not obliged) to collect and present written documents and objects to be included in the criminal case as evidence. These entities are entitled to collect and (or) provide written documents and (or) objects relevant to the case, but not evidence.

The defender has the right to collect evidence by:

obtaining items, documents and other information;
interviewing persons with their consent;
requesting certificates, characteristics, and other documents from state authorities, local governments, public associations and organizations that are obliged to provide the requested documents or copies thereof.

The defender cannot carry out investigative actions. The materials collected by him become evidence after they are included in the criminal case as such by the person conducting the investigation or the court.

Examination

evidence is produced by the inquirer, investigator, prosecutor, court by comparing it with other evidence available in the criminal case, as well as identifying their sources, obtaining other evidence confirming or refuting the evidence being verified. Comparison is a cognitive activity aimed at comparing evidence with each other to establish both the coincidence of the information contained in them and their differences. Physical evidence is compared according to its stable and characteristic features.

Evaluation of evidence

- this is the mental activity of judges, prosecutors, investigators, and the person conducting the inquiry. It consists in the fact that these persons, guided by their inner conviction, based on the totality of available evidence, the law and conscience, decide on the admissibility, relevance and reliability of each evidence and its sufficiency for making a procedural decision. Evidence is assessed at all stages of the process.

All elements of evidentiary activity - collection, verification and evaluation of evidence - are inextricably linked, flow in unity, take place at all stages of the process in those procedural forms that correspond to the tasks of a given stage and the procedure established in it.