General idea of the image of the world. The concept of the "image of the world" in psychological science

Truth in the criminal process is material, not formal. Material truth exists regardless of certain requirements provided for by the criminal procedure law. Material truth is objective. In criminal proceedings, the competent authorities should strive to establish the objective truth.

Truth is a property of our knowledge of objective reality, which determines their correspondence to real events in the past.

With regard to the content of truth, there are three positions.

1. The truth in the criminal process concerns only the event under investigation and can be divided into elements, solely on the basis of the structure of the subject of proof.
2. Truth cannot be limited to stating the correspondence of knowledge to the circumstances of the incident. With these circumstances, the qualification, otherwise the legal assessment of the event, must also be consistent.
3. The content of truth consists of:
- -- correspondence of knowledge -- to the circumstances of the incident;
- -- Compliance of qualifications with the committed crime;
- - conformity of the imposed punishment - the severity of the crime and the identity of the perpetrator.

The author is closer to the second of the above approaches, but with a little clarification. Indeed, it is impossible to talk about the truth or falsity of knowledge about a crime in isolation from its legal assessment. Therefore, it is undoubtedly present in the characterization of such. Meanwhile, the isolation of qualification as an independent element of the content of truth is possible only in theory and difficult in practice. The division of the content of truth into separate structural elements can only be justified by the goals facing the educational process.

Objective truth in criminal proceedings is an exact correspondence of knowledge (captured in the conclusions) of the court, judge, investigator (inquirer, etc.), the head of the body of inquiry to the circumstances of a particular criminal incident in their socio-legal, independent of the consciousness and will of a particular executor, and at a certain stage may be political, evaluation.

Truth can be absolute or relative. According to the theory of evidence, absolute truth is a complete and comprehensive correspondence of the knowledge that the competent authority has to the circumstances of objective reality, covering all the properties and characteristics of cognizable objects and phenomena. Relative truth is incomplete truth, not exhaustive of all the properties and characteristics of cognizable reality.

In criminal proceedings, truth is absolutely relative. When sentencing, it must be absolutely true to know that:

- the alleged act took place;
- this act is socially dangerous and illegal;
- it was an action (inaction);
- the act contains elements of a crime;
- the defendant took part in the commission of this act;
- the criminal law criminalizing the act applies to it, based on the time and place of the crime;
- the defendant is guilty of a crime, etc.

Incomplete, for example, should be considered an investigation when the number of injuries inflicted on the victim, whether he violated the Rules of the Road, etc. is not established. victim, as well as a causal relationship between the act and socially dangerous consequences.

Most of the rest of the knowledge cannot be established with absolute certainty and, for the most part, this is why it is not required.

Absolute truth in criminal procedural proof is much less than relative. Moreover, the body of the investigator (inquirer, etc.), the court (judge), as well as the defender, even on issues on which absolute truth should usually be established, strive for such, but do not always have it.

M.S. Strogovich wrote: "The purpose of the criminal process in each case is, first of all, to establish the committed crime and the person who committed it." And further: “Thus, the goal of the Soviet criminal process is to establish the truth in the case, expose and punish the person who committed the crime and protect the innocent person from unfounded accusation and condemnation.” So, A.Ya. Vyshinsky believed that truth is the establishment of the maximum probability of certain facts to be evaluated. S.A. Golunsky believed that truth is the degree of probability that is necessary and sufficient to make this probability the basis of the sentence.

The absolute truth is recognized - knowledge, which in principle can neither be supplemented, nor clarified, nor changed.

Relative truth is considered - knowledge, which, although it reflects reality as a whole correctly, can be clarified, supplemented, or even partially changed. criminal proof truth

In criminal proceedings, as is known, not general patterns are established, but specific facts of reality. It is easy to see that the knowledge obtained in the course of criminal proceedings does not have any of the above characteristics, but is not exhaustively complete and absolutely accurate. As you know, the law leaves the possibility of checking and canceling or changing even a sentence that has entered into legal force. Therefore, there is no reason to consider the truth obtained in criminal proceedings as absolute.

At the same time, it cannot be recognized as relative. Relative truth always presupposes its subsequent clarification, addition, and in general it is considered as some stage, a moment in achieving absolute truth. In the criminal process, the truth, fixed in the verdict, is the final result of knowledge and usually does not need any addition, change and clarification (although it does not completely exclude this).

Objective truth in both philosophy and criminal procedural science is understood as such knowledge, the content of which corresponds to objective reality, correctly reflects it. This is the so-called classical (and the simplest) definition of truth, which has been going on since the time of Aristotle. In criminal procedural science, objective truth was also called material truth.

Formal truth is understood as the correspondence of conclusions to some formal conditions, regardless of whether they correspond to objective reality or not.

Currently, in the criminal process, there are the following varieties of formal truth.

1. Prejudice, i.e. facts of prejudicial significance. These include circumstances established by a court verdict that has entered into legal force or a court ruling or a judge's decision to terminate a criminal case on the same charge. Prejudice means "the duty of the court considering the case to accept, without verification and evidence, the facts previously established by a decision or sentence that has entered into legal force in any other case."
2. The circumstances recognized by the court as established during the consideration of a criminal case in a special procedure for making a judicial decision with the consent of the accused with the charge against him, established by Ch. 40 Code of Criminal Procedure of the Russian Federation.

In both these cases, there is no cognitive process.

If the cognitive process took place, then the truth achieved as a result of it can only be meaningful, and not formal.

In criminal procedural proof, it is possible to achieve only substantive truth, through the gradual accumulation of evidence, evaluated without any predetermined formal rules, according to inner conviction.

It should be noted that the concept of objective (material) truth dominated the entire Soviet period in the criminal procedure science. However, in our time, another concept has appeared (or rather, it was borrowed from foreign science) - formal truth, under various names - "legal truth" or "procedural truth".

So, the main sign of legal truth is that it must correspond to the evidence collected in a criminal case.

However, this banal and well-known fact has no effect on the nature of truth. Refers only to the means of obtaining the truth creates certain limitations and methods of achievement. Therefore, let us turn to the concept of legal (procedural) truth, the authors of which formulate it more specifically. Here are some quotes.

"In the area that is called the criminal process, it is possible and necessary to talk about the truth of the method of carrying out criminal procedural activities, but not its result."

"Thus, the lawyer is not responsible for discovering the truth, but only for ensuring that the result of the judgment is reached in a certain way."

"Objective (material) truth is a fiction that allows the use of the Criminal Code to pass a sentence, and therefore its preservation as a means of criminal procedure implies that procedural truth will be put in the first place," i.e. "compliance of the trial (and hence its result) with the requirements of procedural law."

In this interpretation of truth, the emphasis is already quite clearly shifted. The defining feature of classical truth - the correspondence of knowledge to objective reality - is frankly discarded. The main (and only) sign of truth is the way it is received, the observance of procedural rules. The goal is replaced by the means to achieve it.

The purpose of proof is to establish an objective truth, the content of which is the actual circumstances that characterize the event under investigation, i.e. objective reality, not a subjective representation of it.

To establish objective truth in a criminal case means to recognize that the conclusions of the investigating body and the court on issues to be decided on the merits of the case (whether a crime was committed, whether the accused committed it, what form of his guilt, whether there are mitigating or aggravating his guilt in the case circumstances) are made in accordance with reality, with real facts.

The study of the circumstances of a criminal case in its epistemological nature does not differ from the study in other areas of knowledge. In the criminal process, certain facts and relations of objective reality are examined. Having found out in full and thoroughness the factual data related to the case under consideration, the investigating authorities and the court must draw a conclusion from their totality whether these facts and relations actually took place, about all their significant circumstances.

Establishing the circumstances of the case as they really were is the content of objective truth.

In criminal proceedings, which are regulated in detail and completely by the criminal procedure law, the procedure for establishing the truth is carried out in the form of a process of proof, in the manner prescribed by the law of evidence, and using the means provided for by law. Since the crime event always refers to the past, it is necessary to establish its picture, to reconstruct it by finding and using evidence. Evidence, as the content of criminal procedure, has as its goal the knowledge of the truth, i.e. establishing the facts that are important for the correct resolution of a criminal case (Articles 3,4,13, 20,223", 309 of the Code of Criminal Procedure).

The basis of legal guarantees of establishing the truth is the system of legal principles of legal proceedings, each of which has a certain value in providing true conclusions.

The establishment of the truth is facilitated by the division of the procedural functions of the subjects of the criminal process. For a comprehensive, complete and objective study of the circumstances of the case, it is important to go through the stages of the case, each of which plays a certain role in the collection, verification and evaluation of evidence. A special place among all stages of the criminal process is occupied by the trial in the court of first instance. Given that the recognition of a person as guilty, as well as the imposition of punishment on him, is entrusted only to the court of first instance, the law determines such conditions for the consideration of the case by the court, which create the most favorable conditions for reliable knowledge of the circumstances of the case. This is an oral, direct consideration of the case in conditions of equality of the parties of the competition and the decision of the case by an independent court.

Among the guarantees of establishing the truth in the case, an important place is occupied by the activities of higher courts, which check whether

due process of law has been observed in the consideration and resolution of the case.

Violation of the rules of evidentiary activity gives rise to doubts about the reliability of the conclusions, which entails certain legal consequences.

The practical task of investigating, considering and resolving a criminal case is to establish the circumstances of the case in accordance with what actually happened, while:

- government bodies, officials acting on the side of the prosecution are obliged to use all the procedural means provided to them to substantiate the accusation brought against the person with evidence;
- presumes innocent and is not required to prove his innocence;
- the court in adversarial proceedings examines the evidence presented by the parties and resolves the case on the merits.

The powers of the court differ from the powers of the bodies of inquiry, investigator, prosecutor. The purpose of criminal proceedings, its principles, primarily the presumption of innocence and competitiveness, explain the refusal in the Code of Criminal Procedure of the Russian Federation from imposing on the court the obligation to establish the truth in the case. The duty to prove the guilt of the accused lies with the one who asserts this guilt, i.e., on the side of the prosecution.

Truth as the goal of proof in the theory of criminal procedure for decades, a lot of attention was paid, a special ideological significance was attached, which should guide the activities of the investigator, the judge. When characterizing the truth achieved in the criminal process, such high philosophical concepts as "absolute", "relative" truth were used. At the same time, the practical tasks assigned to the investigator, prosecutor, court were justified from these methodological and ideological positions, namely, as the availability of knowledge of the absolute truth in relation to the circumstances of the case established in the criminal process (or even in relation to the qualification of a crime and the punishment imposed by the court). ).

In the literature of recent years, a different attitude is expressed towards the availability of knowledge of the truth.

So, Yu. V. Korenevsky proceeds from a purely practical understanding of truth in the criminal process, as the correspondence of the conclusions about the event to what happened in reality, and writes about the unacceptability of the philosophical characteristics of truth (“absolute” and “relative” truth) to practical task in the criminal process.

The opposite view on this issue is expressed by Yu.K. investigator, prosecutor to take measures to establish the truth.

If we understand the truth in the field of criminal proceedings as the correspondence of the conclusions of the investigation and the court to the actual circumstances of the case, to what actually took place, then to answer the question of whether truth can be considered as the goal of proof, without which the appointment of a criminal proceedings, it is necessary to turn to the procedural means and the procedure of proof in criminal proceedings.

It is obvious that the principle of the presumption of innocence and the rules of proof arising from it, accused of silence (paragraph 3 of part 4 of article 47 of the Code of Criminal Procedure), the right not to testify against oneself, one’s spouse and relatives, as well as other cases of release of persons from the obligation to testify may serve as an objective obstacle to establishing the circumstances of the case as they really were. Establishing the right to witness immunity, the legislator clearly preferred the protection of the values underlying this immunity (the presumption of innocence, the preservation of family relations, etc.) to establishing the truth “by any means”. The rule on inadmissible evidence written in the Constitution of the Russian Federation and developed in the norms of the Code of Criminal Procedure is also an essential guarantee of the rights of the accused and, at the same time, an obstacle to establishing the truth by any means.

The question of truth as a necessary condition for achieving the purpose of criminal proceedings must be considered in the light of the differences in the requirements that the law imposes on a guilty verdict and an acquittal. In essence, the truth, understood as the correspondence of the established circumstances of the case to what actually took place, can be spoken of in relation to the guilty verdict. A guilty verdict cannot be based on conjecture and is decided only on the condition that during the trial the guilt of the defendant in committing a crime is confirmed by the totality of the evidence examined by the court (part 4 of article 302 of the Code of Criminal Procedure).

The conclusions contained in the guilty verdict must be reliable, that is, proven, substantiated by the totality of evidence. Therefore, the proof of the prosecution, subject to strict observance of the law governing the rules for collecting, verifying and evaluating evidence, gives grounds to consider the circumstances established by the court as corresponding to what actually happened.

One can be convinced of the truth of the knowledge gained only by comparing knowledge with reality, which is impossible in a criminal process (it is impossible to verify knowledge about a crime empirically), therefore, under the principle of free evaluation of evidence, comes “the determination to recognize a known opinion as true or to put it in the basis its activities".

Competitive judiciary is impossible without the independence of the judiciary. The court, striving at all costs to establish the truth, inevitably moves to the position of the prosecution.. Thus, the equality of the parties is violated, and the truth, out of competition or in conditions where the parties were placed in an unequal position, is considered illegitimate.

Therefore, in order to fulfill the purpose of criminal proceedings, the court, when passing the sentence, must be convinced that the trial was fair, and the conviction of the court, expressed in the guilty verdict, is based on the circumstances established in compliance with all the rules of proof. A justified conviction expressed in a sentence (or other decision) means its proof, which is called “formal” or “material truth” in the theory of criminal procedure. This reliable knowledge, taken as truth, gives the right to judges (officials in pre-trial proceedings) to act in accordance with their powers.

Rules for acquittals do not require proof of a person's innocence because, by virtue of the presumption of innocence, "unproven guilt is proven innocence". At the same time, the principle of the presumption of innocence requires that irremovable doubts about the guilt of a person be interpreted in his favor (Part 3, Article 49 of the Constitution of the Russian Federation, Article 14 of the Code of Criminal Procedure).

Proven "beyond reasonable doubt" the guilt of a person, which forms the basis of a guilty verdict, is subject to verification by comparing the conclusion made with the available body of evidence, which, in turn, must be verified from the point of view of compliance with procedural and logical laws, when verifying and evaluating evidence. Therefore, a higher court has the right to cancel the verdict not because the truth in the case has not been established, but because the conclusions of the court set out in the verdict do not correspond to the actual circumstances of the criminal case established by the court of first instance (Article 389.15 of the Code of Criminal Procedure of the Russian Federation).

The Investigative Committee of the Russian Federation has developed a bill that introduces fundamental changes to the Code of Criminal Procedure. It is proposed to introduce the concept of "an institution for establishing objective truth" into the Code of Criminal Procedure and to endow participants in criminal courts with new rights.

What is the essence of the new bill, the correspondent of "RG" asked the chairman of the TFR Alexander Bastrykin.

Alexander Ivanovich, you are proposing to introduce a new concept into the Code of Criminal Procedure - the institution of establishing objective truth. Agree, even the name of this innovation sounds unusual, and for an ordinary person it is not very clear. Explain to ordinary citizens what is the essence and importance of this innovation?

Alexander Bastrykin: The introduction of the institution of establishing objective truth in a criminal case into the Code of Criminal Procedure will ensure guarantees of the constitutional right to fair justice and increase the degree of citizens' confidence in justice. The current Code of Criminal Procedure of the Russian Federation entered into force in 2002. Among its indisputable advantages are the adversarial nature of criminal proceedings, as well as the strict delineation of procedural functions and the corresponding powers.

The defense party has the right to collect evidence and the opportunity to actively participate in the process of proving. Procedural guarantees for ensuring constitutional human rights and freedoms have been significantly expanded, especially in the field of criminal procedural coercion.

Then there was a lot of talk about the fact that the introduction of competition in the process will bring the court to a qualitatively new level, save it from the "totalitarian past" and also allow it to make objective decisions. Did not happen?

Alexander Bastrykin: The fact is that some traditional institutions of criminal justice, which have proven their value over the years, have remained outside the attention of the developers. First of all, this refers to objective truth.

It was she who was the goal of criminal procedural proof. It was believed that only on the basis of true knowledge of the circumstances of the crime, a fair conviction of the perpetrator was possible.

Did the developers of the Code of Criminal Procedure do it by accident or on purpose?

The court in today's process is assigned the role of a passive observer, it should not show any activity in collecting evidence

Alexander Bastrykin: The main arguments of supporters of the exclusion of objective truth from the criminal process boiled down to the fact that this institution is "a relic of the Marxist-Leninist political ideology."

They said that in the criminal process, in contrast to scientific knowledge, objective truth is unattainable. And most importantly, in the conditions of an adversarial model of legal proceedings, this kind of truth generally becomes unnecessary.

Many lawyers, including eminent ones, were against this approach, saying that the developers throw out the baby along with the water. It seems that the current jurists have doubted the correctness of the chosen rules?

Alexander Bastrykin: These positions appear to be controversial. First, objective truth has nothing to do with any political ideology. In Russian criminal proceedings, the requirement to establish objective truth existed long before the birth of Marxist-Leninist philosophy. Objective truth does not belong to ideology, but is a basic category of scientific knowledge.

It has always been believed that when considering a criminal case, the main task of the court and judges is "to get to the bottom of the truth." Isn't it like that now?

Alexander Bastrykin: The court in today's process is assigned the role of a passive observer, it should not show any activity in collecting evidence. They decided that this could allegedly deprive him of impartiality and neutrality in the dispute, involuntarily putting either the defense or the prosecution on the side. The judge only assists the parties in exercising their rights and legitimate interests and keeps order.

It is similar to the role of a referee in the ring: he also only makes sure that the boxers beat each other according to the rules, and whoever wins wins. What changes do you propose?

Alexander Bastrykin: The draft of the new law is aimed at strengthening the guarantees that ensure the fairness of justice. Article 6 of the Code of Criminal Procedure of the Russian Federation defines the criminal prosecution and fair punishment of the guilty, as well as the protection of the innocent from these adverse legal consequences, as the purpose of criminal proceedings. And it is impossible to do this without clarifying the circumstances of the criminal case as they were in reality, that is, establishing objective truth in the case.

Simply put, the process of proving in a criminal case should be focused on achieving objective truth. This is a necessary condition for the correct resolution of a criminal case. But the Code of Criminal Procedure of the Russian Federation does not contain a requirement to take all possible measures aimed at finding it. The model of competitiveness implemented in the law does not contribute to establishing the truth either. It gravitates toward the Anglo-American doctrine, which is alien to the traditional Russian criminal process.

Our newspaper is read not only by lawyers, explain what the Anglo-American doctrine is.

Alexander Bastrykin: In it, the court is assigned the role of a passive observer of the procedural confrontation of the parties. Such a court should not show any activity in collecting evidence. The main purpose of the court is reduced to creating conditions for the parties to exercise their rights and legitimate interests, as well as to assessing the positions presented by them in the court session. Of these, the court chooses the most reasoned and, based on its legal assessment, makes a decision. In this case, the judge should not take measures to clarify the actual circumstances of the criminal case. Therefore, in such a process, the priority is not objective, but formal legal truth, determined by the position of the party that won the dispute, even if it does not correspond to reality.

But is there another model?

Alexander Bastrykin: The Romano-Germanic model of criminal procedural proof, to which Russian criminal justice traditionally gravitates, is based on the priority of reliable, objectively true knowledge about the crime event when making the final decision on the case.

The requirements to take all measures to find the truth were traditionally contained in the Russian criminal procedure legislation, in particular, in the Charter of Criminal Procedure of 1864, the Code of Criminal Procedure of the RSFSR of 1922, and the Code of Criminal Procedure of the RSFSR of 1960. This approach ensures the constitutional rights of citizens to the greatest extent and guarantees the fairness of justice.

In the new bill, you propose to restore the rights of the active participation of the court in finding the truth in the case. What does that require?

Alexander Bastrykin: The draft provides for the addition of the following provisions to the Code of Criminal Procedure, which together form the institution of establishing objective truth in a criminal case.

The concept of the presumption of innocence enshrined in Article 14 of the Code of Criminal Procedure of the Russian Federation involves the interpretation of irremovable doubts in favor of the accused. It can be applied only if it is impossible to achieve objective truth in the case and only after exhaustive measures have been taken to find it.

It is provided that the court is not bound by the opinion of the parties and, in case of doubt, takes the necessary measures to establish the actual factual circumstances of the criminal case. The powers of the presiding judge in the court session should also be adjusted. In accordance with the new wording of the first part of Article 243 of the Code of Criminal Procedure of the Russian Federation, the presiding judge not only leads the court session and ensures the competitiveness and equality of the parties, but also takes measures to comprehensively, completely and objectively clarify all the circumstances of the criminal case.

It turns out that the limits of litigation are expanding?

Alexander Bastrykin: Yes, and this is done due to the requirements to eliminate the incompleteness of the preliminary investigation. In particular, the court is vested with the obligation, at the request of the parties or on its own initiative, to fill in the incompleteness of evidence to the extent possible during the trial, while maintaining objectivity and impartiality and not speaking on the side of the prosecution or the defense. In addition, the draft law provides for the expansion of the list of grounds for the return of a criminal case to the prosecutor in order to eliminate obstacles to its consideration in court.

And how can one return a case from the court to the prosecutor's office today?

Alexander Bastrykin: The current procedure for criminal proceedings does not provide for the return of the criminal case to the prosecutor if it is necessary to eliminate the incompleteness of the preliminary investigation, which cannot be eliminated during the trial or if there are grounds for changing the scope of the charge in a direction that worsens the situation of the accused.

The draft provides for an open list of grounds for the court to return a criminal case to the prosecutor. This can be done if significant violations of the law were committed during pre-trial proceedings. Those that caused a violation of the rights and legitimate interests of the participants in the process and which cannot be eliminated during the trial. Of course, if such violations are not related to filling the incompleteness of the inquiry or preliminary investigation.

Additionally, two new grounds for the return of a criminal case are introduced:

1. Incompleteness of evidence that cannot be filled in a court session, including if it arose as a result of the recognition of evidence as inadmissible and exclusion from the list of evidence presented in court proceedings;

2. The need to present a new charge to the accused, related to the previously filed. Or changing the accusation to a more serious one or one that differs significantly in actual circumstances from the accusation contained in the indictment.

The draft law clarifies that a criminal case may be sent to the prosecutor to remove obstacles to its consideration both at the stage of preliminary hearing and at the stage of trial. This corresponds to the decision of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 N 1.

What changes can other court participants expect?

Alexander Bastrykin: It is envisaged to expand the procedural possibilities of other participants in criminal proceedings. Including by giving them the right to file petitions for the production of investigative and other procedural actions for the completeness and objectivity of the preliminary investigation or trial.

In order to correct in the proceedings in the court of second instance judicial errors related to the failure to take measures to establish the objective truth, the draft law provides for the addition of the list of grounds for reviewing judicial decisions that have not entered into force.

What exactly will be added to this list?

Alexander Bastrykin: The new basis will be the one-sidedness or incompleteness of the judicial investigation. Conducted unilaterally or incompletely under the draft law is recognized as a judicial investigation, during which such circumstances remained unexplained, the establishment of which could significantly affect the conclusions of the court.

Today, in the first part of Article 380, as well as Article 389.16 of the Code of Criminal Procedure of the Russian Federation, an external similar ground is provided for, in which the court did not take into account the circumstances that could significantly affect its conclusions. However, a literal understanding of the disposition of these legal norms gives reason to believe that on this basis, the factual data that the court did not take into account when passing the verdict were established, that is, known to it.

In contrast, the grounds provided for by the draft rules, which presuppose the one-sidedness or incompleteness of the judicial investigation, include cases when the court read out the verdict without establishing any of the circumstances that could affect the outcome of the criminal case.

By the way

For six months of last year, the courts returned 6270 cases to the prosecutor to eliminate shortcomings in accordance with Article 237 of the Code of Criminal Procedure. According to judicial statistics, the regional courts returned to the prosecutor's office 5 percent of the total number of completed cases in six months.

And according to the Supreme Court of Russia, 24 percent of all citizens who appeared before the court during the year, both in a special and ordinary order, somehow escaped punishment. They were either acquitted or their cases were dismissed on various grounds. "Different reasons" means that people were not always innocent. The case could be dismissed, say, due to the expiration of the statute of limitations. The person is guilty, but it's too late to punish. The number of persons acquitted and released from criminal liability on rehabilitating grounds amounted to 5.8 percent of the total. For example, about 8,500 people who appeared before the court were acquitted. Cases for another 160,000 people were terminated, including due to rehabilitating circumstances. In a special procedure for making a court decision - with the consent of the accused with the charges brought - cases were considered for 590 thousand people, more than half of all criminal cases. There is no dispute here, the accused himself agrees to finish everything as soon as possible. However, even in such circumstances, not all is lost for the defendant. The cases of 83,000 people who agreed to a special procedure and actually accepted the punishments were terminated.

Basic concepts of the theory of evidence and evidence in criminal proceedings

The main concepts of the theory of evidence include: the very concept of the theory of evidence, the law of evidence, evidence, their properties and means of proof, sources of evidence, the subject and limits of proof, the subjects of proof, the stages of this process, and some others. The content and interpretation of these concepts in domestic procedural science are relatively well-established, discrepancies, as a rule, are not of a fundamental nature.

The purpose of the criminal process (Article 6 of the Code of Criminal Procedure of the Russian Federation) is, in addition to protecting the rights and legitimate interests of victims of a crime and protecting everyone from unlawful accusations, convictions, as well as criminal prosecution and the imposition of a fair punishment on the guilty. To achieve these goals, it must be established what actually happened, who committed the crime and under what circumstances. Since the event of a crime for persons conducting criminal proceedings is in the past, it is possible to establish all its circumstances only through proof. Therefore, the decision on the case is always preceded by such a cognitive process as proof.

Evidence is the process of establishing the truth in legal proceedings, its knowledge and substantiation of ideas about its content. Evidence consists in collecting, verifying and evaluating evidence. If the evidentiary activity ended without results, if it is not established the person and circumstances of the case, then the purpose of the criminal process is not achieved. The damage caused by the crime to the victims has not been compensated, the offender has not been brought to justice, justice has not been done. If a mistake is made in the process of proof, this may lead to the conviction of the innocent. Thus, the correctness of the decisions made in the case and justice in general depend on how complete and competently the proof is carried out. Therefore, proof is a responsible element of criminal procedure activity. As the famous English lawyer Jeremy Bentham (1748-1832) said: "The art of legal proceedings is nothing but the art of using evidence." The well-known lawyer of our time P.A. Lupinskaya writes that: "Evidence and proof are the most important legal institutions in the system of norms of criminal justice."

Another contemporary of ours, Yu.K. Orlov defines proof as a necessary and very responsible component of criminal procedure. A prominent figure in the criminal procedure science of the Soviet period M.S. Strogovich believed that "proving is the establishment, with the help of evidence, of all the facts, circumstances that are important for resolving a criminal case ... In other words, proving is the use of evidence to clarify the circumstances of a criminal case." According to I.B. Mikhailovskaya, proving "represents the activities of the investigative bodies, the prosecutor's office and the court, carried out in accordance with the requirements of the procedural law, in collecting, researching and evaluating factual data on the circumstances to be established in a criminal case."

Thus, proof is an important and integral element of criminal procedure aimed at achieving the purpose of criminal proceedings, which consists in collecting, verifying and evaluating evidence.

The criminal process is not entirely limited to proof. It includes other types of activities that are not evidentiary, for example, the application of measures of procedural coercion, securing a civil claim, and others. However, most procedural actions are aimed at collecting evidence or verifying it.

In proving, there are several aspects: proof-knowledge, proof-justification and proof-certification. First of all, proof is a cognitive activity, it is carried out in order to establish circumstances relevant to the case (the subject of proof, formulated in Article 73 of the Code of Criminal Procedure of the Russian Federation). Because of this, all the general laws inherent in any cognitive activity, studied by the theory of knowledge - epistemology, operate. However, proof in a criminal case has significant specifics that distinguish it from other types of knowledge:

1. The subject of knowledge in criminal procedure proof. They are not the general laws of nature and society, but the specific circumstances of the case to be proven, listed in Art. 73 of the Code of Criminal Procedure of the Russian Federation, such as: the event of a crime, the guilt of a person, the nature and extent of the harm caused by the crime, and others.

2. The need to make a procedural decision on the case. In any case, a decision must be made in a criminal case. If, as a result of evidentiary activities, the event of a crime and the person’s guilt in committing it are proven, then the preliminary investigation ends with a final document (indictment, act or resolution, depending on the form of the investigation), the trial ends with a judgment. If there are grounds for terminating the criminal case or criminal prosecution (for example, the involvement of a person in the commission of a crime has not been proven), then a decision is issued to terminate the criminal prosecution or otherwise.

3. The process of proof always has certain deadlines. The Code of Criminal Procedure of the Russian Federation regulates the terms for the implementation of criminal procedural and evidentiary activities. Some terms are clearly defined in the law, some appeal to the element of reasonableness of terms. In particular, the terms of the preliminary investigation are established during which evidentiary activities are carried out. These terms are regulated by the criminal procedure law, depending on the form of the investigation. Also, in the Code of Criminal Procedure of the Russian Federation, there is a special rule of Art. 6.1 of the Criminal Procedure Code of the Russian Federation, which determines the reasonableness of the terms of criminal proceedings: “When determining a reasonable term for criminal proceedings, which includes the period from the moment the criminal prosecution begins to the moment the criminal prosecution is terminated or the conviction is delivered, such circumstances as the legal and factual complexity of the criminal case are taken into account , the behavior of participants in criminal proceedings, the sufficiency and effectiveness of the actions of the court, the prosecutor, the head of the investigative body, the investigator, the body of inquiry, the head of the body of inquiry, the head of the unit of inquiry, the interrogating officer, carried out in order to timely carry out criminal prosecution or consider a criminal case, and the total duration of criminal proceedings ".

4. The process of proof is regulated by law and takes place in the appropriate procedural form. All criminal procedural activity takes place in the so-called criminal procedural form, which is understood as the procedure of criminal procedural activity provided for by law. The criminal procedure law establishes the rules for handling evidence, their collection, research, verification, evaluation; requirements for evidence, a list of subjects of proof, etc. The procedural form of proof has a dual purpose. First, it is designed to minimize investigative and judicial errors. Secondly, the procedural form is designed to ensure the observance of the rights of the persons involved in the case. For this purpose, for example, special rules have been established for the conduct of investigative actions that most affect the personal interests of citizens (obtaining a court decision, the inadmissibility of endangering the life and health of persons participating in investigative actions, etc.).

At the same time, the criminal procedure law leaves to the subjects of proof the choice of tactical, technical and other methods and techniques in a particular situation. For this, appropriate recommendations have been developed within the framework of forensic science. In particular, the issues of tactics for the production of investigative actions are left to the discretion of the investigator, the interrogating officer, the court.

Epistemological, logical, legal and other foundations of proof are studied by the theory of evidence, which is part of the science of the criminal process. proof theory- this is a part of the science of the criminal process, which is a system of scientific provisions covering the process of proving in a criminal case.

The term "theory" means that along with a description of various phenomena related to the process of proof, their justification is also given.

The proof theory is divided into general and special parts. The general part studies questions about the concept of evidence and their classification, the subject and limits of proof, the process of proof and its subjects, as well as other issues related to proof in general. The content of the special part is the doctrine of certain types of evidence - the testimony of witnesses, expert opinion, material evidence, etc.

The theory of evidence is based on the universal philosophical provisions inherent in any cognitive activity. In the theory of evidence, he uses the achievements of other sciences - philosophy, logic, psychology, the achievements of technical and natural sciences.

The subject of proof theory is:

History of the development of evidence law (representations of evidence);

Legal norms establishing the procedure for collecting, checking and evaluating evidence in criminal cases;

Practical activities of the court, investigation and inquiry bodies in the process of proving, as well as the activities of persons participating in proving;

Patterns associated with working with sources of evidence;

Features of proof in foreign countries.

The main goal of proof theory is to obtain and deepen knowledge related to its subject, i.e. to the process of proof. The ultimate goal of the theory is to increase the efficiency of law enforcement, investigative and judicial practice.

The theory of evidence, based on the results of cognition, formulates all kinds of recommendations, suggestions, techniques and methods of practical activities for proving. These are, for example, recommendations regarding the collection of evidence, their evaluation, recommendations on the methods of conducting investigative actions.

The set of criminal procedural norms enshrined in the Code of Criminal Procedure of the Russian Federation and regulating evidentiary activity is called evidentiary law. Evidence law is a sub-branch of criminal procedure law. The rules of evidence law define the general rules of proof, the concept of evidence and their types, the rules for collecting, researching, verifying and evaluating evidence, the rights and obligations of the subjects of proof.

L.E. Vladimirov, a well-known legal scholar of the early twentieth century, considered the law of evidence in the narrow framework of the criminal process. In particular, noting the definitive and protective evidentiary law, he wrote: “The definitive law of evidence is a set of legislative decrees that indicate the methods for establishing and using criminal evidence in order to obtain the reliability of the facts that are the subject of procedural research”; “Protective law of evidence is a set of legislative decrees that determine the coercive measures that the judiciary has, both to ensure the delivery of evidence by third parties, and to protect the reliability of this evidence.”

Subject legal regulation of the law of evidence are criminal procedural legal relations arising between the subjects of criminal procedural activity, related to the proceedings in a criminal case and aimed at proving the event of a crime and the guilt of a person in its commission.

Rules of evidence It is the legal basis of evidence in criminal proceedings. Establishing the circumstances of a criminal case in strict accordance with the rules of conduct established by them contributes to the application of a unified procedure for the implementation of evidentiary activities in all criminal cases and all subjects of proof.

Features of the method of legal regulation in the field of proof:

1) the presence of power, the presence of which allows the bodies authorized to conduct proceedings in a criminal case to collect evidence;

2) a system of procedural guarantees of the individual, ensuring the protection of the legitimate interests of citizens participating in the proof.

The main forms of the method of regulation are permission, prescription, prohibition. Of these, the law of evidence is dominated by prescriptions addressed to the state authorities conducting the proof. In some cases, prescriptions are combined with prohibitions. For example, the prohibition of the implementation of actions and the adoption of decisions that humiliate the honor of a participant in legal proceedings, as well as treatment that degrades his human dignity or creates a danger to his life and health (Article 9 of the Code of Criminal Procedure), and with a system of permissions for citizens participating in proving, for example , the right to have a defense lawyer or representative in a criminal case.

It should be borne in mind that the subject of legal regulation of the law of evidence is not only the production of the investigative and judicial actions themselves, with the help of which evidence is drawn up, but the law of evidence governs the process of cognition itself. For example, the law of evidence contains certain instructions on the rules for conducting each investigative action.

The rules of evidence have a traditional structure that is characteristic of most legal rules. The structure of the rules of evidentiary law consists of a hypothesis, a disposition and a sanction. The norm hypothesis refers to the conditions under which it is prescribed, allowed or prohibited to act in a certain way. Conventionally, the hypothesis of a legal norm can be denoted by the word "if". The disposition of the norm is the very rules of behavior of the subjects of regulated legal relations. Conventionally, the disposition can be called the word "that". The sanction is those negative legal consequences that will come in case of non-fulfillment of the rules of conduct specified in the disposition. Conventionally, the sanction can be denoted by the word "otherwise". Thus, the structure of the norm of evidentiary law can be expressed with the help of such a verbal construction as, "if - then - otherwise". An example of the verbal expression of all three elements of the structure of the rule of evidence is the rule contained in the text of Part 4 of Art. 58 of the Code of Criminal Procedure: “A specialist is not entitled to disclose the data of the preliminary investigation that became known to him in connection with participation in the criminal proceedings as a specialist, if he was warned about this in advance in the manner prescribed by Art. 161 Code of Criminal Procedure. For the disclosure of preliminary investigation data, the specialist is responsible in accordance with Art. 310 of the Criminal Code of the Russian Federation.

The execution of the provisions of the procedural law is ensured by the possibility of applying sanctions, which in the law of evidence are divided into three groups:

1) procedural, the application of which is possible in relation to the actions and decisions of officials authorized to prove in the case, when these actions were carried out illegally or unreasonably. In particular, if the evidence was obtained in violation of the Code of Criminal Procedure of the Russian Federation, then it is recognized as inadmissible and loses its legal force.

2) disciplinary - may be applied against an inquirer, investigator, prosecutor, judge, as well as a lawyer, expert, specialist, if they improperly fulfill their duties in proving;

3) criminal law, if in the course of the investigation violations of the procedural order of proof were committed, which have signs of a criminally punishable act.

The rules of evidentiary law can be applied by those subjects who are entrusted with the duty of proof. So, in accordance with Art. 86 of the Code of Criminal Procedure of the Russian Federation: “The collection of evidence is carried out in the course of criminal proceedings by an interrogating officer, investigator, prosecutor and court through the production of investigative and other procedural actions.”

Evidence law, being a part of criminal procedure law, consists of general and special parts.

The general part consists of legal norms governing the provisions: the purpose and subject of proof, the concept and properties of evidence, the process of proof, the subjects of proof.

A special part of the law of evidence is the definition of types of evidence, the concept of investigative and judicial actions to prove and their systems, the features of collecting, evaluating certain types of evidence. Among these features, it is also necessary to highlight the features of proof in certain categories of criminal cases.

The sources of evidentiary law are the same as for criminal procedure law. This is the Constitution of the Russian Federation and the Federal Law. The Constitution has the highest legal force and direct effect, which is determined by the constitutional norm of Article 15. The Code of Criminal Procedure is a systematized law that regulates the basic rules of the law of evidence that regulate legal relations in the field of proof.

The sources of evidence law include a number of other laws that have their main subject of legal regulation, cover a number of issues of procedural activity, including the work with evidence. These are the Law "On operational-search activity", the Federal Law "On the police", the Federal Law "On the legal profession and advocacy" and others. The norms of these laws in terms of regulating the issues of proof and evidence should not contradict either the Code of Criminal Procedure or the Constitution of the Russian Federation.

The correlation of the law of evidence and the theory of evidence is manifested in the fact that, revealing the patterns of development of the law of evidence and the practice of its application, the theory of evidence recommends the subjects of evidentiary activity the ways of the correct application of the relevant norms. By recommending certain behavior, proof theory contributes to the development of effective methods of proof.

Evidence theory methods:

1) historical and legal, aimed at tracing historical changes in legislation, theory and practice of proof, to identify elements of the continuity of the legal form and significant changes in certain historical periods;

2) comparative law, which consists in drawing up the features of systems of evidentiary law, taking into account differences in the subject of regulation, for example, criminal proceedings, civil proceedings, as well as socio-political and national differences;

3) descriptive-analytical, consisting in a qualitative description of the following phenomena: norms, institutions in the activities for their implementation;

4) structural-logical, aimed at identifying the structural features of the law of evidence as a regulatory system as a whole, its individual institutions, as well as the structure and logical properties of individual norms of the law of evidence, and others.

In addition to the above methods, proof theory also uses private scientific methods, for example, observation, experiment, analysis, synthesis.

Evidence theory has close links with other legal and non-legal sciences.

The theory of evidence, being part of the criminal procedure science, uses all the main provisions of the latter.

From epistemology, i.e., the theory of knowledge, he borrows such scientific ideas as the doctrine of truth, the ways and methods of cognizing objective reality, its dialectical development, and the criteria of practice.

From the general theory of law, the theory of evidence uses general concepts of legal norms, their structure and classification, legal relations, sources of law, its institutions and systems.

The general concepts of corpus delicti, guilt, characteristics of individual corpus delicti developed by the science of criminal law are essential in the development of the theory of evidence of a general concept and features of the subject of proof for certain categories of criminal cases.

The theory of evidence comes into contact with criminalistics in the study of such concepts as the circumstances that contributed to the commission of crimes. These circumstances are subject to clarification within the framework of the subject of proof and are included in the range of problems of the theory of evidence. Also, the theory of evidence and the science of criminology consider the problems of proof in the investigation and resolution of criminal cases.

With the civil procedure, there is a unity of a number of guiding principles and definitions in the field of evidence and proof, for example, evidence, assessment of evidence, as well as the uniformity of the collection process.

The theory of evidence is also in contact with such sciences as forensic medicine, forensic psychiatry, forensic accounting, psychology, etc. The need for these sciences arises where the process of proving requires the involvement of specialists from other fields of knowledge.

Thus, the theory of evidence, being a system of scientific knowledge, cannot exist and develop without regard to other areas of knowledge, it uses their data in order to solve the problems of criminal justice.

1. What is the right of evidence? Expand the content of this concept.

2. What is proof theory? Expand the content of this concept.

3. What are the features of criminal procedural evidence.

4. What is included in the content of the general and special parts of the law of evidence and the theory of evidence?

5. Expand the content of the points of contact between the subjects of the sciences of criminal procedure, general theory of law, criminal law, forensic science, criminology, forensic medicine, forensic psychiatry. Indicate the possibility of coincidence of the objects of study of the indicated sciences.

Procedural guarantees of establishing the truth in a criminal case. Presumptions and prejudices in proof.

In criminal proceedings, it is important both to convict the truly guilty and to prevent the prosecution and conviction of the innocent. This is only possible under the condition that; the circumstances of the criminal case are established by the competent authorities and officials as they actually took place, regardless of the individual characteristics of the consciousness of the learner. Such a correct establishment of the circumstances of the crime and other circumstances significant for the criminal case has traditionally been considered in the Russian criminal procedural science as the establishment of objective truth.

The question of truth in the science of the Russian criminal process has always been one of the debatable ones. In the current Code of Criminal Procedure of the Russian Federation there is no unity of the conceptual basis. There are two contradictory beginnings in it: on the one hand, the need to establish objective truth to resolve the case and, on the other hand, the possibility of passing a sentence on the basis of formal truth. The reason for this situation is the dual nature of the Russian criminal process - the presence in it of a public (search) preliminary investigation and adversarial proceedings.

Despite the absence of a direct indication in the current Code of Criminal Procedure of the truth in the criminal process, it seems that in the criminal proceedings of any state it is important to establish the circumstances of the criminal case exactly as they actually happened.

The philosophical understanding of truth and the concept of truth in the process of investigation are not equivalent concepts. For philosophy, truth is an adequate reflection of reality by the subject, its reproduction as it is outside and independently of consciousness. Therefore, in philosophy, the terms are often used:

The objectivity of truth, which means the content of knowledge independent of man and mankind;

The subjectivity of truth, meaning the form of expression of objective truth through human knowledge.

Many philosophers have addressed the problem of the truth of knowledge. Thus, I. Kant considered truth to be the main perfection of knowledge. Philosophy considers the process of cognition as an endless one, passing from cognition of relative truth to absolute truth, i.e. to the complete coincidence of the image with the object of knowledge. However, for criminal proceedings, the infinity of knowledge of the truth predetermines the impossibility of the investigating body and the court to come to reliable conclusions on the criminal cases being investigated and considered. To assert that the truth in the criminal process is absolute means to recognize the infinity of the process of cognition in a criminal case, aimed at an exhaustive study of all the circumstances of the crime committed without exception. The specificity of the appointment of criminal proceedings does not allow the preliminary investigation and trial to be carried out indefinitely. Taking into account the peculiarities of criminal procedural activity to establish the circumstances of a crime committed in the past, the methods of collecting and evaluating evidence, the truth achieved in a criminal case is both relative and absolute. It is considered relative due to its incompleteness, and absolute, if the tasks of criminal proceedings are solved. After all, the investigating authorities and the court learn only a certain part of what happened in reality, always only the essential aspects of the event within the limits that are necessary to fulfill their tasks - to solve the crime, identify the perpetrators and punish them fairly.

In jurisprudence, and in particular in the theory of evidence, there is currently no common understanding of truth. There are different types of truth: 1) absolute; 2) relative (objective); 3) legal (formal); 4) conventional.

Under absolute truth understand the comprehensive and complete knowledge of the phenomena of the objective world; moment of absolute knowledge in the composition of relative knowledge. The legal literature denies the possibility of achieving absolute, i.e. full and comprehensive truth in criminal proceedings, in connection with which practical activity was aimed at establishing the maximum likelihood of an event, which led to gross violations of the law. Taking place in our country in the 30s - 50s. In the years of the 20th century, political terror corresponded to the political situation and had social roots, on which disputes arose around objective truth and the problems of its achievement in criminal proceedings. The lawlessness of that period of time became possible due to the denial of objective truth and the possibility of achieving it in a criminal case, and the rationale for the need to resolve the issue of the guilt of the defendants from the point of view of maximum probability.

Relative (objective) truth - knowledge that is as close as possible to the realities of the objective world, but does not exhaust all the properties of the cognizable phenomenon of objective reality;

Legal truth (formal)- the truth, achieved taking into account the rules of proof and providing, within the framework of procedural economy, the resolution of a criminal case.

Formal in the theory of proof is the truth, which corresponds not to objective reality, but to pre-established rules and conditions.

Convention is considered true by convention (convention). A judgment is true not because it corresponds to reality, but because people have agreed to consider it to be true.

Throughout the historical development of the criminal process, the understanding of truth has undergone changes depending on the prevailing theory of evidence. So, in the accusatory criminal process, characteristic of the first historical formations. The purpose of proof was not the truth, but the judge's belief in the truthfulness or correctness of any of the participants in the legal dispute. In such a “correctness”, along with elements of knowledge about the events of objective reality, elements of beliefs in the power of divine will and superstition could coexist.

Later, in the inquisitorial process, the purpose of proof was declared to be the establishment of formal truth. Formal observance was sufficient. Such truth is called formal. The main thing was not to reliably establish the events of the crime, but to strictly observe the legislative requirements in criminal proceedings.

With the approval of the system of free assessment of evidence on the basis of inner conviction, the views on the nature of the achieved truth have also changed. The idea of achieving material truth came to the fore, which began to be understood as such knowledge, the truth of which the judge himself must verify.

The decision that the criminal process in Russia should serve to establish the truth was historically traditional for the Russian criminal procedure science. It was adhered to by the majority of scientists who studied the criminal process in Russia, which was formed according to the Charter of Criminal Proceedings of 1864.

These scientists laid the foundations of the domestic Russian theory of the criminal process in conditions similar to those existing today in the sense that both in 1864 and in modern Russia the criminal procedure legislation is being reformed. The opinion of these scientists remains relevant.

Thus, the famous legal scholar I.Ya. Foinitsky recognized (to our extent, true) the idea that (the task of the criminal court is to find unconditional truth in every case. Establishing the truth in a criminal process was regarded as a state interest. “The state,” wrote Vl. Sluchevsky, “concentrating the judicial the authorities are interested in the fact that the court decision was in accordance with the truth and that it was perceived as such in the public mind.After 1917, the problem of truth in the criminal process constantly attracted the attention of scientists, while leaving room for discussion.

A well-known ideologist of the Soviet criminal process at the beginning of the 20th century A.Ya. Vyshinsky believed that the "maximum degree of probability" was sufficient for the trial. . However, the denial of the need to achieve truth in criminal cases was subsequently subjected to detailed criticism.

In the textbooks on the criminal process in the Soviet period, the need to achieve the truth in criminal cases was expressed. This fact is important because the educational literature, the positions defended in it, have a serious impact on the formation of the legal consciousness of future law enforcers: judges, prosecutors, investigators.

Most scholars recognize the need to establish the truth in criminal cases. However, different authors have different understandings of the nature and content of criminal procedural truth. So, our contemporary, E.A. Karyakin believes that in the course of criminal proceedings, truths can be established (formed): objective (material), formal (procedural), conventional. All of them, according to E.A. Karyakin, being different in character, are components of a single "judicial truth". However, conclusions that correspond to the signs of formal and conventional truths can only be used to make intermediate judgments, where reliability is not required. When making final judicial decisions, it is necessary to establish objective truth. Formulating in the verdict a conclusion about the actions of the defendant, the court must correlate it (the conclusion) with nothing else, but with reality. Therefore, in order to reach a lawful, justified and just verdict, an adequate reflection in the judicial conclusions of what actually happened is required. Adequacy provides only material truth. Formal (procedural) and conventional truths do not correlate their content with reality, but with procedural rules or with the agreement of the parties. Rules of procedure contribute to the establishment of truth, but in themselves do not lead to truth. Therefore, conclusions in the form of formal and conventional truths can approach the reflection of reality, but are not capable of achieving a complete reflection; they always admit, a fraction of the probability. Justifying the sentence with such conclusions can lead to the conviction of the innocent.

In the literature, some authors express the position that the current Code of Criminal Procedure of the Russian Federation contains a requirement to establish the truth. However, the task of establishing the truth is not enshrined in the Code of Criminal Procedure of the Russian Federation; its presence can be revealed only by interpreting the norms of the code. Interpretation reveals the possibility of establishing both objective and formal truth. There is no unity on this issue in the Code of Criminal Procedure of the Russian Federation. In addition, the Criminal Procedure Code of the Russian Federation does not contain all the means necessary to establish the truth. An analysis of the provisions of the Code of Criminal Procedure of the Russian Federation allows us to say that it provides for rules that only indirectly serve to establish the truth in the case. These include, first of all, the principle of legality in criminal proceedings (Article 7 of the Code of Criminal Procedure of the Russian Federation); equality of the parties (Article 15 of the Code of Criminal Procedure of the Russian Federation), the principle of free evaluation of evidence (Article 17); the need to establish the subject of proof in each criminal case (Article 73), the rule on inadmissible evidence (Article 75 of the Criminal Procedure Code of the Russian Federation); the requirement to verify and evaluate evidence (Articles 87-88 of the Code of Criminal Procedure of the Russian Federation), etc. Given this state of the law, the head of the Investigative Committee of the Russian Federation A.I. Bastrykin proposes to include in the current Criminal Procedure Code of the Russian Federation a number of articles fixing the task of establishing objective truth, and all the means necessary to solve it.

A study of the practice of the European Court of Human Rights shows that the problem of achieving the truth is included in the scope of its interests. Thus, in the judgment of December 17, 1996 in the case of Soundres v. the United Kingdom, it is said that "... the public interest in protecting society from this kind of crime requires the discovery of the truth."

Based on the position that the very method of obtaining a decision is important - through the court, thus, it is clear that the legislator has accepted the idea of legal (formal) truth.

Meanwhile, in most textbooks and courses on criminal procedure, the idea of the need to achieve the truth in criminal cases is advocated. The state power as a subject of law must apply in each case criminal punishment to those guilty of a crime, and only to them, it can be argued that the criminal process should serve to ensure the truth in a criminal case. It should serve to ensure that the conclusion of the court (and the investigating authority) about the circumstances of the case - whether this act was committed, by whom and under what circumstances, by virtue of what motives, whether the person is guilty of committing a crime - corresponds to reality. It is important to establish the truth - to recognize guilty the one who is really guilty of the crime.

Thus, it should be recognized that the truth in the criminal process is necessary, without its establishment, the sentence is deprived of the quality of justice. And only objective (material) truth is needed, as adequately and fully reflecting the actions of the defendant in reality, for which he is responsible. However, in order to successfully solve the problem of establishing the truth, all necessary means must be fixed in the Code of Criminal Procedure.

Criminal procedural guarantees are a system of legal means to ensure the successful solution of the problems of justice and the protection of the rights and legitimate interests of its participants. Procedural guarantees in criminal proceedings can be considered in various aspects: both in terms of establishing the objective truth in the case, and in a narrower aspect - as guarantees of the completeness and reliability of factual data when obtained from certain sources and with the help of specific investigative and judicial actions.

As a guarantee of establishing the truth, there are:

ü constitutional guarantees;

ü principles of criminal procedure;

ü criminal procedural form, the system of stages of the criminal process;

ü duties of officials conducting criminal proceedings;

ü responsibility for improper performance by officials of their procedural duties;

ü regulation of the process of proof, the obligation to prove authorized subjects, the rules for the admissibility of evidence;

ü Prosecutor's supervision and judicial control.

Presumption(from lat. praesumptio- assumption) - a general rule on the basis of which some fact is postulated (presumed) in advance. There are different types of presumptions. In proof, those presumptions that are enshrined in law (legal presumptions) and relate to proof are important. They are defined as the recognition of a fact as legally certain until proven otherwise.

The most important of these is the presumption of innocence. It was first proclaimed during the French Revolution, and then perceived as a necessary element of the rule of law. In proving an important role is played by the consequences of the presumption of innocence, enshrined in Art. 14 Code of Criminal Procedure of the Russian Federation. Namely:

1. The suspect or the accused is not obliged to prove his innocence. The burden of proving the prosecution and refuting the arguments put forward in defense of the suspect or the accused lies with the prosecution. In accordance with Art. 21 of the Code of Criminal Procedure of the Russian Federation, criminal prosecution on behalf of the state is carried out by the prosecutor, as well as the investigator and the interrogating officer. These subjects are authorized to collect evidence in a criminal case.

2. All doubts about the guilt of the accused, which cannot be eliminated, shall be interpreted in favor of the accused. This means that if a fact could not be reliably either confirmed or refuted, it is considered to exist when it testifies in favor of the accused, and did not take place if it speaks against him.

3. A guilty verdict cannot be based on assumptions. This rule follows from the acquittal of a person on grounds of lack of proof of the accusation or dismissal of the case.

The application of presumptions consists in the fact that when one of the facts, the connection of which is expressed by a presumption, is established, a conclusion is made about the existence of another fact; the latter is thus inferred from the presumption. Presumptions are often used when putting forward versions, performing investigative and other procedural actions, making decisions in proceedings based on materials and criminal cases.

Presumptions are divided into legal (legal, legal) and factual; as well as refutable and irrefutable. Legal presumptions are directly defined in the law or can be derived from it, while actual ones are often not established by law. A legal presumption is a rule established by law according to which the presence or absence of facts is presumed until evidence is presented to the contrary. For example, in accordance with the presumption of innocence, a person accused of committing a crime is considered innocent until his guilt in committing a crime is proven in the manner prescribed by the Code of Criminal Procedure and is established by a court verdict that has entered into legal force.

Factual presumptions are usually enshrined in law, but play an important role in the process of proof in criminal cases. They are generalizations derived from judicial and investigative practice, statistics, formulated by forensic science and other sciences, the knowledge of which is used in the investigation of crimes. Factual presumptions can be derived from the rules of law by legal interpretation. The main difference between actual presumptions and legal ones lies in something else - not in form, but in content. Factual presumptions are based on actual patterns, on what is more common. So, the actual presumption is the presumption of sanity, by virtue of which each person is considered sane, unless the opposite is proved. Sanity is not specifically proven in each criminal case, although it is one of the necessary signs of the subjective side of the crime. The need for this arises only when there is evidence of a person’s inability to understand the meaning of his actions and manage them. In addition to the presumption of sanity, the factual presumptions include the presumption used in proving intent in cases of crimes with material offenses that a person expects the natural consequences of his actions.

So, for example, N. inflicted multiple punches and kicks on M., causing grievous bodily harm, which then negligently caused the death of the victim. The court did not see any special cruelty in these actions and excluded the sign of special cruelty from the charge, since, in its opinion, the mere fact of inflicting a large number of blows on the body to the victim, who was also in a strong degree of alcoholic intoxication, cannot prove that N. was aware of the infliction of special suffering on the victim. The Supreme Court did not agree with this assessment, and indicated that, according to the meaning of the Law, the concept of special cruelty is largely associated with the method of murder, including when the victim in the process of deprivation of life was inflicted with a large number of bodily injuries, the nature of which may indicate intentional cause him great suffering. Thus, in this case, it is actually presumed that a person who inflicts a large amount of bodily harm on the victim is aware of the natural consequences of his actions, namely the infliction of special torment and suffering on him.

For formal offenses that do not require the occurrence of specific harmful consequences, there is an actual presumption that a person is aware of the public danger of his actions, etc.

So, presumptions in proof are rules for making decisions enshrined in law. They operate only in those cases when reliable knowledge is unattainable, when the truth cannot be established.

In the process of proving, criminal procedure is of great importance. prejudice. The basis for a prejudice is the presumption of the truth of a sentence, a court decision in a civil case, i.e. the assumption that any court decision reflects objective truth.

Prejudice is the basis for exemption from proving any fact. This means that the subjects of evidence are obliged to take as a basis, without verification and proof, the facts relevant to the case, established by a court decision that has entered into legal force in a civil case or a verdict in another criminal case.

Prejudice is a legal rule, according to which the verdict (decision) of one court that has entered into legal force is binding on another, and therefore the repeated consideration of the same case in whole or in part is excluded. According to Art. 90 of the Code of Criminal Procedure of the Russian Federation, the circumstances established by a verdict that has entered into legal force, adopted in the framework of civil, arbitration or administrative proceedings, are recognized by the court, prosecutor, investigator, interrogating officer without additional verification. At the same time, such a sentence or decision cannot prejudge the guilt of persons who have not previously participated in the criminal case under consideration.

The prejudicial nature of decisions taken earlier by the court in criminal and civil cases is explained by the fact that the procedural conditions of justice are the same for all courts of a single judicial system. So

Prejudice Meaning:

1) prejudice allows the court not to review the issue of facts previously established by the court;

2) participants in criminal proceedings are exempted from proving prejudicially established facts.

Prejudicially established facts are contained in such sources of evidence as, in particular, other documents (copies of sentences and other decisions of the court (judge) in criminal administrative and civil cases). In this regard, in the presence of the details provided for by law, they will meet all the requirements of judicial evidence both in content and in procedural form. The procedural law establishes that documents are evidence if the circumstances and facts certified or set forth in them are relevant to the criminal case.

Control questions and tasks:

1. What is included in the philosophical understanding of truth and what do the concepts of its objectivity and subjectivity mean?

2. What is the relationship between the philosophical understanding of truth and the concept of truth in the process of investigating a crime?

3. . What is included in the content of truth in the process of proof.

4. Define the concepts of absolute, relative, formal (legal) and conventional truth, what is their ratio

5. Justify your position on the issue of truth as the goal of proof in criminal cases.

6. What is the value in proving presumptions?

7. What is the role of prejudice in proving?

General idea of ​​the image of the world. The concept of the "image of the world" in psychological science

General idea of the image of the world. The concept of the "image of the world" in psychological science