Is it possible to establish the truth in a criminal case? Establishing the truth in a criminal case as the goal of criminal proceedings

On this moment The State Duma is considering a bill that would introduce the institution of establishing objective truth in a criminal case. Despite the fact that the document was submitted to the lower house by a deputy Alexander Remezkov, the RF IC took a significant part in the development. As the department itself notes in its official statement, the bill is aimed at reforming the foundations of the Russian criminal process to ensure its fairness.

Principle objective truth, the introduction of which is advocated by the RF IC, presupposes the active role of the court, which is endowed with the right not only to evaluate the evidence presented by the parties, but to collect it independently. In fact, the court has the opportunity to “assist” the parties in collecting evidence, so its impartiality plays a key role. However, he can make a decision not based on the arguments of the parties. A similar system has been used in our country since tsarist times, as well as throughout the Soviet period until 2002. Initially, this principle comes from the Romano-Germanic system of law.

It is usually contrasted with the principle of the so-called formal truth. In this case, the court plays a more passive role, evaluates the evidence presented by the parties, but does not itself collect it. The court is a kind of observer that regulates the process of evidence, but does not have an active role in it. The court's position is formed on the basis of the parties' arguments, and the decision is made in favor of the one whose evidence was the most complete and reliable. This approach is best described by the saying “Truth is born in dispute” and is characteristic of the Anglo-Saxon legal system.

As noted by the lawyer of the Moscow Bar Association "Knyazev and Partners" Anton Matyushenko, today there are both provisions that relate to the principle of objective truth, and norms that embody formal truth. According to him, this raises a lot of theoretical disputes and practical difficulties.

"It is impossible to specifically answer the question of which principle is better for Russia, material or formal truth. For the criminal procedural system of our country, it is better, in my opinion, to have a consistent, accurate and complete implementation of one of these principles in the law, so that the procedural system gets rid of an incredible number of contradictions. Another question is which principle will be easier to introduce in modern realities; however, the answer to this question is based on historical development Russia, it seems to me, lies on the surface", notes the lawyer.

Speaking about the bill, it is also worth noting that some of its provisions are not consistent with current legislation. Thus, individual chapters to which changes are made have lost force (for example, chapters 44-45), and new paragraphs that are planned to be introduced into some articles are already present in them. Thus, it is obvious that the document will be significantly improved as it passes through the State Duma. However, we will consider it as it stands at the moment.

The concept of objective truth and change in general principles court work

The bill proposes to understand objective truth as the correspondence with the reality of the circumstances established in a criminal case that are important for its resolution. At the same time, the following will be required to take all prescribed measures for a comprehensive, complete and objective clarification of the circumstances that are subject to proof in order to establish the objective truth in a criminal case:

• prosecutor;
• head of the investigative body;
• investigator;
• inquiry body;
• head of the investigation unit;
• interrogator.

Based on the principle of establishing objective truth, the bill states that the court is not bound by the opinions of the parties, and if there are doubts about the truth of their opinions, it must take all necessary measures to establish the actual factual circumstances of the criminal case. In addition, the court may, at the request of the parties or on one's own initiative to fill in incomplete evidence to the extent possible during the trial. At the same time, it is formally stated that the court must maintain objectivity and impartiality, without siding with the prosecution or the defense.

Also, the individual powers of the presiding officer () must undergo characteristic changes. If earlier, in addition to leading the court hearing, he was obliged to ensure competitiveness and equality of the parties, now it is planned to entrust him with taking the necessary measures for a comprehensive, complete and objective clarification of all the circumstances of the criminal case.

In addition, criminal proceedings against the accused on the basis of paragraphs. 1-2 and paragraph 4 can be suspended only if this does not interfere with the establishment of objective truth in the criminal case. Otherwise, all production will be suspended. Also, the trial will not be able to be carried out in the absence of the defendant (on the grounds provided for by the Russian Federation), if this prevents the establishment of objective truth in the criminal case.

Review of the grounds for returning a criminal case to the prosecutor

One of the main novelties of the bill is provisions allowing the court to return criminal cases to the prosecutor due to the incompleteness of the preliminary investigation and inquiry, as well as to change the charge to a more serious one. There is an opinion among the expert community that these provisions are aimed at facilitating the work of investigative bodies, whose mistakes and falling apart criminal cases will eventually be corrected by the courts.

The RF IC itself refers to the fact that these changes create a system of counterbalances when the judge, having established the incompleteness of evidence that may indicate the innocence of the defendant, will eliminate it. In his opinion, the new procedure will protect the defendant from unfair charges.

Thus, it is planned to enshrine the following in the Code of Criminal Procedure of the Russian Federation. If it is not possible to eliminate the incompleteness of evidence in a trial, the court will be able to return the criminal case to the prosecutor to remove obstacles to its consideration (changes are planned to be made to). However, only at the request of the party such measures can be applied in the following cases (provisions are being adjusted):

• incompleteness of the preliminary investigation or inquiry, which cannot be filled in at a court hearing, including if such incompleteness arose as a result of declaring evidence inadmissible and excluding it from the list of evidence presented in court proceedings;
• existence of grounds for bringing a new charge against the accused related to a previously filed one, or to change the charge to a more serious one or significantly different in factual circumstances from the charge contained in the indictment or indictment.

In addition, in addition to those already prescribed in the Code of Criminal Procedure of the Russian Federation, another case is introduced when a judge at the request of a party or at its own initiative will be able to return the criminal case to the prosecutor to remove obstacles to its consideration by the court (in addition to those already enshrined in). This can happen if, during pre-trial proceedings, other significant violations of the law were committed, resulting in a violation of the rights and legitimate interests of participants in criminal proceedings. We are talking about cases when such violations cannot be eliminated during a court hearing, and if they are not related to making up for the incompleteness of the inquiry or preliminary investigation. In this case, the criminal case will be able to be returned to the prosecutor, both during the preliminary hearing and trial.

New grounds for reviewing sentences and court decisions

In addition to the changes described above, in order to establish objective truth, signs of one-sidedness and incompleteness of the judicial investigation(for this purpose, the Code of Criminal Procedure of the Russian Federation is planned to be supplemented with a new article 389.16.1). It is proposed to recognize as such a judicial investigation, during which circumstances remained unclear that could significantly influence the conclusions of the court and the establishment of objective truth in a criminal case. In this case, the judicial investigation in any case is recognized as one-sided or incomplete when, in a criminal case:

• a forensic examination was not carried out, the production of which is mandatory in accordance with the Code of Criminal Procedure of the Russian Federation;
• persons whose testimony could be used to establish the objective truth in the criminal case were not interrogated;
• documents or material evidence relevant to establishing the objective truth in the criminal case were not seized.

In addition, the one-sidedness or incompleteness of the judicial investigation is prescribed in the bill as a basis for:

• cancellation or modification of the sentence of the court of first instance and the ruling of a new sentence;
• cancellation or modification of a court decision on appeal;
• cancellation or modification of a court decision in cassation.

Revision of the tasks of investigative and inquiry bodies

In addition to the powers of the court, some changes provided for in the bill concern investigative and inquiry bodies. Thus, the Code of Criminal Procedure of the Russian Federation proposes to consolidate the norm according to which the prosecutor, the head of the investigative body, the investigator, as well as the head of the inquiry unit and the interrogating officer are obliged maintain objectivity and impartiality, avoiding an accusatory bias in evidence. In this case, the circumstances that exonerate the accused and the suspect or mitigate his punishment are subject to a thorough and comprehensive study and are assessed on an equal basis with the circumstances that incriminate the accused (suspect) or aggravate his punishment (corrected). Thus, the investigative and inquiry bodies, apparently, should turn into independent and impartial bodies that equally protect the interests of both parties.

The truth in a criminal case is the totality of the conclusions of the preliminary investigation bodies and the court and their full compliance with the circumstances of the incident, the attitude of the subject to what was committed and the reality of the incident as a whole.

Truth is an integral attribute of criminal proceedings, the ultimate goal of which is to achieve the truth in each specific case.

However, despite this, in the theory of criminal procedure the question of the nature and nature of truth in legal proceedings is still debatable.

Domestic legal scholars have always been interested in issues related to the concept, essence and content of truth in criminal proceedings. Thus, one of the most famous Russian legal scholars, A.Ya. Vyshinsky. Many works were devoted to this issue, in particular the article “Problems of assessing evidence in Soviet criminal proceedings,” in which, by the way, he expressed the view that establishing absolute truth in a criminal case it is impossible; only the “maximum probability” can be established, which is sufficient to determine a sentence. However, this theory of Vyshinsky A.Ya. showed itself to be untenable, having been adopted by judicial investigative practice in the 30-50s. 20th century, which developed the rule of objective imputation and normalized the arbitrariness of judicial prosecutors and judicial discretion that reigned in that period of time.

In contrast to the opinion of Vyshinsky A.Ya. spoke out Stroganovich M.S., who published treatise“The doctrine of material truth in criminal proceedings,” which reflects the opinion that in the course of legal proceedings it is possible not only to find the truth, but also to establish it, which is an essential condition for making a legal, informed and motivated judicial decision. It was M.S. Stroganovich developed the concept of “material truth,” which is a complete and exact correspondence of the conclusions of the investigation and the court about the circumstances of the criminal case under consideration, as well as about the guilt or innocence of the persons brought to justice with reality.

Currently, most modern scientists believe that the provisions on establishing the truth in criminal proceedings should become unshakable, a kind of legal axiom of legal proceedings in the application of criminal law, in order to avoid bringing the innocent to criminal liability and making illegal and unfounded decisions in criminal cases.

In criminal proceedings, like any other type of legal proceedings, the basis of activity is the cognitive process and comprehension of facts and circumstances that occurred both in the past and those occurring in the present. In this regard, the main goal of such a foundational stage as evidence in Russian criminal proceedings is to establish the truth in the case. This argument is supported by the provisions of Art. 73 of the Code of Criminal Procedure of the Russian Federation, which establishes the obligation to prove in each criminal case (“subject to proof”) the event of the crime (time, place, method and other circumstances of its commission), the person’s guilt in committing the crime, the form of his guilt, the nature and extent of the harm caused by the crime , etc. That is, the specified circumstances must be established exactly as they were in reality, and not conjectural or fictitious.

In addition, part 2 of Art. 21 of the Code of Criminal Procedure of the Russian Federation determines that in each case of detection of signs of a crime, the prosecutor, investigator, body of inquiry and interrogating officer take measures provided for by law to establish the occurrence of a crime and expose the person or persons guilty of committing it.

Also, the provisions of the Code of Criminal Procedure of the Russian Federation are aimed at the comprehensiveness, completeness and objectivity of clarifying the circumstances of the crime committed, establishing the need to establish circumstances in the case, both mitigating and aggravating responsibility (Clause 6, Part 1, Article 73 of the Code of Criminal Procedure of the Russian Federation). The rights and obligations of participants in criminal proceedings, both on the part of the prosecution and the defense, as well as the operation of the principle of adversarial parties in criminal proceedings (Article 15 of the Code of Criminal Procedure of the Russian Federation) also contribute to establishing the truth in the case.

There is no need to prove the fact that it is precisely the establishment of the truth in the case that contributes to the detection of crimes. However, the purpose of criminal procedural activity and proof cannot be to establish absolute truth, since this is impossible, as well as to establish relative truth, since this would entail a violation of the rights of participants in criminal proceedings. The purpose of criminal proceedings can only be to establish objective truth, that is, objective reality that took place in reality, and presupposing the presence of conclusions and knowledge that correctly reflect the reality that exists outside the human mind. To establish the truth in a criminal trial means to know the past event and the circumstances to be established in the case, according to how they took place in reality.

Considering all of the above, it becomes quite interesting to see the bill, which has long “caused a stir,” on amending the Code of Criminal Procedure of the Russian Federation in connection with the introduction of the “institute of objective truth in criminal cases.” This bill was widely discussed and received a fair share of criticism from a number of proceduralists.

So, according to this bill in Art. 5 of the Code of Criminal Procedure of the Russian Federation it is proposed to introduce clause 22.1 on the determination of objective truth, which will be understood as the correspondence with the reality of the circumstances established in a criminal case that are important for its resolution.

However, this formulation raises many questions. Opponents of the theory of “objective truth” interpret it through the prism of rigid specificity, as a result of which they conclude that in the presence of such a legislative norm, the subject receiving knowledge about “reality” must accurately correlate it with the events that took place place in the past, and establish an absolute identity. That is, the subject a priori must know “reality” as it existed in reality, but everyone understands perfectly well that this is simply impossible, since, unfortunately, the “time machine” has not yet been invented, and none of us can return to the past .

In this connection, it seems that the view of the establishment of “objective truth” of the opponents of this theory is narrow and mediocre. In this case, you need to understand that when establishing the truth, the court and the investigative bodies seem to believe that they will establish objective data as much as possible and correlate them with each other, and will not impose them on each other, like a stencil, in order to establish their identity. That is, in this case, it is necessary to ask the question: do our knowledge and conclusions correspond to what actually happened or not. If they do, then it should be considered that the truth has been established.

Bibliography

1. Bozhiev V.P. Costs of a systemic nature when adjusting the norms of the Code of Criminal Procedure on evidence and prejudice // Legality. 2010. No. 6. P. 3 - 7.

2. Kudryavtsev V.L. Problems of establishing the truth through the mechanism of proof in the context of the activities of the public prosecutor in court // “Journal Russian law", 2006, No. 2

3. Pletnev V.V. Essence, purpose and significance of proof // Russian justice. 2012. No. 1. P. 35 - 37.

4. Fransiforov Yu.V. The price of truth in criminal procedural proof // “Russian Investigator”, 2005, No. 11

5. Churilov S.N. Subject of proof in criminal proceedings and criminology: Scientific and practical allowance. M.: Justitsinform, 2010, 136 p.

1

The article is devoted to the analysis of the bill “On Amendments to the Criminal Procedure Code Russian Federation in connection with the introduction of the institution of establishing objective truth in a criminal case", developed by the Investigative Committee of the Russian Federation, submitted to the State Duma Federal Assembly Russian Federation. The initiators of the project believe that only on the basis of true knowledge about the circumstances of the crime is a fair conviction of the perpetrator possible and that the restoration of this institution will ensure constitutional guarantees for fair justice and increase the degree of confidence of citizens in the court. The article positively evaluates the bill “On the introduction of the institution of establishing objective truth in a criminal case into the criminal procedural legislation” proposed by the Investigative Committee of Russia. It is noted that this bill cannot radically change the existing adversarial model of the Code of Criminal Procedure of the Russian Federation. This bill is only an important step towards the establishment of objective truth - as an independent concept of the criminal process.

an objectively true model of the criminal process.

collision

eclecticism

formal legal truth

adversarial model of criminal procedure

principle of establishing objective truth

1. Marx K. and Engels F. Soch. T. 1. 2nd ed. M., 1955.

2. Mikhailovskaya I. B. A judge’s handbook on evidence in criminal proceedings. M., 2006.

3. On amendments to the Criminal Procedure Code of the Russian Federation in connection with the introduction of the institution of establishing objective truth in a criminal case. Bill No. 440058-6 of the deputy State Duma A.A. Remezkov. Electronic resource: Access mode: http://asozd2.duma.gov.ru/main.nsf/%28SpravkaNew%29?OpenAgent&RN=440058-6&02.

4. Pechnikov G.A., Glebov V.G. The bill of the Investigative Committee of Russia on the institution of establishing objective truth in a criminal case and the adversarial Code of Criminal Procedure of the Russian Federation // Bulletin of the Volgograd Academy of the Ministry of Internal Affairs of Russia. 2013. No. 2 (25).

5. Smirnov G. Truth in criminal proceedings // Law. 2012. No. 6.

6. Strogovich M. S. The nature of the Soviet criminal process and the principle of competition. M., 1939.

7. The essence of the trial. Interview with the Chairman of the Investigative Committee A. Bastrykin to Rossiyskaya Gazeta about the bill to ensure objective truth // Russian newspaper, March 16, 2012.

8. Tomin V. T., Polyakov M. P., Aleksandrov A. S. Commentary on the Criminal Procedure Code of the Russian Federation: Introductory. M., 2002.

A bill (No. 440058-6) “On amendments to the Criminal Procedure Code of the Russian Federation in connection with the introduction of the institution of establishing objective truth in a criminal case”, developed by the Investigative Committee of the Russian Federation, headed by A.I., has been submitted to the State Duma of the Federal Assembly of the Russian Federation Bastrykin believes that only on the basis of true knowledge about the circumstances of the crime is a fair conviction of the perpetrator possible and that the restoration of this institution will ensure constitutional guarantees for fair justice and will increase the degree of confidence of citizens in the court. Objective truth does not belong to ideology, but is a basic category scientific knowledge.

The appearance of this bill on objective truth is not at all accidental, since the current Code of Criminal Procedure of the Russian Federation gravitates towards the Anglo-American doctrine of “pure adversarialism”, which is alien to the traditional Russian criminal process. In such a process, the priority is not objective, but formal legal truth, determined by the position of the winning party in the dispute, even if it does not correspond to reality.

This bill of the Investigative Committee of Russia, of course, marks a breakthrough towards the establishment of objective truth in Russian criminal proceedings. But this important step towards the objective truth of the process is only half the battle. The bill means a lot in relation to beginning to conquer the space of the modern Code of Criminal Procedure of the Russian Federation with objective truth, since it does not even contain the word “truth” at all. But this, in our opinion, is not enough to create a new holistic concept of the criminal process with objective truth, since this bill of the Russian Investigative Committee, in fact, concerns only the means of the Russian criminal process - its principles, but not its goal (adversarial goal), nor its essence and does not shake the adversarial structure of the Code of Criminal Procedure of the Russian Federation, therefore it cannot radically change its adversarial orientation. After all, the institution of establishing objective truth in a criminal case, proposed by the bill, is only a procedural principle. A new separate article of the Draft Law - 16.1 of the Code of Criminal Procedure of the Russian Federation “Establishing the objective truth in a criminal case” - is intended to be placed in Chapter 2 “Principles of criminal proceedings”. But principles are not the goal, principles are only means. It is also important that the goal and the entire concept of criminal proceedings be aimed at achieving objective truth.

According to the proposed article 16.1 of the Code of Criminal Procedure of the Russian Federation:

"1. The court, the prosecutor, the head of the investigative body, the investigator, as well as the inquiry body, the head of the inquiry unit and the interrogating officer are obliged to take all measures provided for by this Code for a comprehensive, complete and objective clarification of the circumstances that are subject to proof in order to establish the objective truth in a criminal case.

2. The court is not bound by the opinions of the parties. If there are doubts about the truth of the parties’ opinions, the court takes all necessary measures to establish the actual factual circumstances of the criminal case in order to ensure the administration of fair justice.”

The draft law of the RF IC also provides for other characteristic additions to the Code of Criminal Procedure of the Russian Federation, which in their own way express the principle of establishing objective truth in a criminal case.

However, the principle is only a principle (one of the principles of criminal proceedings), and it is not able, as noted, to radically change the adversarial model of the current Code of Criminal Procedure of the Russian Federation. On the contrary, finding itself in the adversarial coordinate system of the modern process, this principle will inevitably “learn”, “acquire”, “take over” the adversarial logic of this process and one way or another will contribute to the implementation of this logic into practice, since in an adversarial criminal process everything is “adversarial”: and purpose, and principles, and legal institutions.

In general, the goal, the princes of the process, and legal institutions are not free from the essence of the criminal process in which they are represented. The objectively true type of criminal process, in which everything is aimed at achieving objective truth, is one thing. And a completely different matter is the adversarial (win-lose) type of criminal proceedings, where everything promotes competition between the prosecution and defense in the interests of finding out which side is stronger than the other.

An adversarial criminal trial is initially not a process of establishing objective truth, but a process of determining the winner in a competition (legal dispute) of the parties. Not to reliably reveal the true crime, but to win the case in one’s favor in a duel between the parties - this is the desired purpose of the adversarial Code of Criminal Procedure of the Russian Federation.

Since the adversarial procedural form in the Code of Criminal Procedure of the Russian Federation is self-valuable and everything is contained in the adversarial process itself, then the truth in such a process will be “adversarial”, will always be the “truth of the winner”, and objective truth, complete, reliable disclosure of crimes, the inevitability of responsibility of the truly guilty (the fight against crime) as the general goal of the criminal process remains outside the adversarial framework, beyond the borders of the adversarial criminal proceedings of Russia.

There is no common goal in the Code of Criminal Procedure of the Russian Federation, but there are only narrowly pragmatic, winning goals of the opposing sides of the prosecution and defense. However, without a common goal, the criminal process is imperfect, since it essentially turns out to be based on a tautological approach: “a competition for the sake of competition.”

In fact, the legislator in modern criminal proceedings in Russia poses the question in an alternatively harsh way: either adversarialism or objective truth. There is no third. As rightly noted in the legal literature: “First of all, it is worth noting the interpretation of the adversarial principle. It enshrines the provision on the passive role of the court in relation to the activity of the competing parties. The court is not a criminal prosecution body and does not act on the side of the prosecution or the defense. The court creates the necessary conditions for the competition, for the parties to perform their procedural duties and exercise the rights granted to them. It should not replace the parties both in terms of determining the subject of the procedural dispute and in what evidentiary means this dispute is resolved. He is no longer obliged to establish objective truth, but is obliged to state judicial truth. The rejection of the normative requirement for completeness, comprehensiveness and objectivity of the investigation also indirectly indicates the legislator’s rejection of the concept of objective truth, which is contrary to adversarial law.”

The foregoing confirms that the adversarial process and the objectively true process are different types criminal proceedings. Therefore, it is not enough to introduce the institution of establishing objective truth in a criminal case into criminal proceedings; it is necessary to radically change the very concept of the criminal process from adversarial to objectively true. The criminal process is either entirely adversarial or entirely objectively true. This organic nature of ends and means was accurately expressed by K. Marx: “Not only the result of research, but also the path leading to it must be true. The study of truth itself must be true; true study is an expanded truth, the disconnected links of which are united in the end.”

The bill of the Investigative Committee of the Russian Federation on the introduction of the institution of establishing objective truth into the Code of Criminal Procedure of the Russian Federation is, in our opinion, an eclectic combination of incompatible opposites: on the one hand, self-sufficient competitiveness, excluding objective truth, on the other, objective truth that denied “pure competitiveness”, its tautological the approach of “competition in the interests of the competition itself” with formal legal truth, “the truth of the winner of the competition.” Eclecticism of combining objectively true and competitive approaches; a combination of publicity (the obligation to solve crimes and establish the objective truth in criminal cases) and discretion (the freedom of the parties to dispose of their rights). Here one excludes the other. Dialectics (as opposed to eclecticism) requires that the entire criminal process be imbued with objective truth. It is unacceptable to reconcile these different types of criminal proceedings and erase the difference between them.

Objective truth is inextricably linked with an objective study of the materials of the criminal case, and not with the winning of the case by one of the parties in its favor. In turn, an adversarial criminal trial is not a process of establishing objective truth, but a process of determining the winner of a legal dispute.

It is not the objective truth that should be introduced by a separate institution into the Criminal Procedure Code of the Russian Federation in order to make it an integral part of the adversarial concept of the Criminal Procedure Code of the Russian Federation, thereby leveling the truth, but, on the contrary, the entire criminal process should be made objectively true both in form and in content. Hence, a new type of criminal process in Russia with an objectively true model of the process is needed. True, not everyone modern society Objective truth is convenient, not everyone is interested in it. Some people benefit greatly from a criminal trial with a purely adversarial model.

When introducing into the adversarial Code of Criminal Procedure of the Russian Federation the institution of establishing objective truth proposed by the Draft Law of the RF IC, a certain conflict will be observed between “pure adversarialism” and objective truth, expressing different systems of the criminal process. In this conflict, competition seems to win. “Pure competitiveness” will subjugate the “institute of objective truth”, level it and “competitively”.

The question is, why not the other way around? Why can’t objective truth dominate, prevail, and become an integral independent concept of the modern Code of Criminal Procedure of the Russian Federation if this Bill is supported by Russian parliamentarians?

The fact is that the institution of establishing objective truth in a criminal case, when legislatively introduced into the Code of Criminal Procedure of the Russian Federation, will not shake its very adversarial basis, due to the fact that in the criminal process of Russia the state (in the person of the inquirer, investigator, prosecutor) is only a party - the prosecution, confronting the suspect or the accused on an equal footing as a defense party in the interests and goals of winning the case in one’s favor. The winning goal also faces the defense side. The state does not rise above the prosecution and defense, although this is necessary for an objectively true process, but is located in the adversarial (win-lose) plane of the process. Meanwhile, the accusation in a true criminal trial must contain something more than just one purely formal accusation, which has only one one-sided accusatory-winning orientation (as in an adversarial process). The accusation must certainly be in a systematic connection with objective truth - as the general goal of proof; the accusation should be one of the important turns on the path to learning the objective truth in a criminal case.

However, adversarial criminal proceedings are a fundamentally different aspect. Here the state and the individual compete with each other according to the adversarial “rules of the game” established by the criminal procedural law, in strict accordance with the procedural form, which in the Code of Criminal Procedure of the Russian Federation has priority over the task of establishing the factual circumstances of the case, i.e. over the objective truth.

The priority of the procedural form is based, first of all, on the concept of a criminal claim, according to which the criminal process is considered as a special form of resolving a legal dispute between the state and the individual. With this interpretation of criminal proceedings, the significance of the procedure becomes obvious, since it is in fact the only means of ensuring at least formal equality between the individual and the state. Just like in America. For example: “US v. Harrison”, “State of Texas v. Johnson”, etc.

The adversarial criminal process is not aimed at reliable, objectively true detection of crimes, but at resolving a legal dispute in favor of “ strengths" It does not and cannot, by definition, go beyond the boundaries of a legal dispute, beyond the adversarial framework of the Code of Criminal Procedure of the Russian Federation, otherwise the very adversarial architectonics of the process, in which procedure is higher than objective truth, will be violated.

In fact, an accurate description of the current Code of Criminal Procedure of the Russian Federation is given by M. S. Strogovich, if his theoretical view is projected onto the modern criminal process in Russia, when he writes: “When studying the problem of procedural guarantees, we encounter in the legal literature a concept, the essence of which is that the whole The criminal process as a whole is nothing more than a system of guarantees for the individual against the arbitrariness of the state. According to this concept, this is the whole essence of the criminal process - not to assist the state in the fight against crime, but, on the contrary, to protect the accused from reprisals by the state. Proponents of this theory separate the criminal process from the tasks of combating crime, turning the court into an arena in which the state and the citizen fight.

The liberal Code of Criminal Procedure of the Russian Federation is “a competition for the sake of competition”, “procedural guarantees in the interests of the procedural guarantees themselves” (the intrinsic value of the procedural form), “an accusation for the prosecution” “for the purpose of exposing the accused of committing a crime” (clause 55 of Article 5 of the Code of Criminal Procedure of the Russian Federation) , in the interests of winning the case for the defense, and not to achieve a common, high, socially important, objectively true goal.

The institution of establishing objective truth in a criminal case is actually aimed at creating a “balanced adversarial system.” This was emphasized by the representative of the Investigative Committee of the Russian Federation G. Smirnov: “Many believe that the presumption of innocence works for equality of the parties. However, let's think about what happens in practice. The defendant does not really have to prove his innocence; This often happens when he uses the services of a free defense attorney who does not want to waste his energy collecting evidence. The defendant usually does not have sufficient legal knowledge to defend himself on his own. In conditions of pure competition, where the logical force of arguments predominates, this leads to the triumph of accusatory argumentation and a guilty verdict. As a result, there are now fewer acquittals, according to representatives of the legal community, than during the Stalinist repressions. Thus, pure adversarialism is largely incompatible with the presumption of innocence. Instead, it is proposed a model of balanced adversarialism, which orients not only the court, but also the inquirer, investigator and prosecutor to an active and impartial role in learning the truth in the case. Contrary to the fears of opponents of objective truth, this will not lead to a shift in procedural functions, since the court will not replace any of the parties, but will only replenish the evidence base, regardless of its nature.

The foregoing indicates that the legislative introduction into the adversarial fabric of the Code of Criminal Procedure of the Russian Federation of the institution of establishing objective truth in a criminal case will not, in our opinion, change the adversarial concept of the criminal process in Russia. But this does not mean at all that truly necessary steps should not be taken (and the bill of the Investigative Committee of Russia certainly demonstrates this important step) towards the establishment of objective truth in criminal proceedings as an integral concept.

The objectively true model of criminal proceedings is superior to the adversarial (win-lose) model of criminal proceedings, from the point of view of truly objective, fair observance of the rights and legitimate interests of the individual in the criminal process of true justice. Objectively true justice is higher than competitive-winning justice, the justice of the strong and not the right.

Reviewers:

Eremin S.G., Doctor of Law, Professor of the Department of Criminalistics of the Educational and Scientific Complex for Preliminary Investigation in the Internal Affairs Bodies of the Volgograd Academy of the Ministry of Internal Affairs of Russia, Volgograd;

Kolotushkin S.M., Doctor of Law, Professor of forensic technology of the educational and scientific complex of expert forensic activities of the Volgograd Academy of the Ministry of Internal Affairs of Russia, Volgograd.

Bibliographic link

Pechnikov G.A., Shuvalov N.V., Skobkareva E.A. ABOUT THE SIGNIFICANCE OF INTRODUCING THE INSTITUTE OF ESTABLISHING OBJECTIVE TRUTH IN CRIMINAL CASES INTO THE ADVERSARY COPICAL PROCEDURE OF THE RF (ASSESSMENT OF THE DRAFT LAW) // Contemporary issues science and education. – 2014. – No. 6.;
URL: http://science-education.ru/ru/article/view?id=16960 (access date: 02/01/2020). We bring to your attention magazines published by the publishing house "Academy of Natural Sciences"

Formal truth isthe court's knowledge of the factual circumstances of the case, based on the evidence presented, regardless of its correspondence to objective reality.

Formal truth is not truth in the philosophical sense. Knowledge about the circumstances of a case from a philosophical point of view can be true or false. However, due to the fact that they were received in the manner established by the rules of civil procedural law, they are recognized as true. In this case, we are dealing with a “fiction of truth,” and the decision made in this case is formally true (res judicata pro veritate accipitur).

Thus, establishing the truth in modern civil proceedings in every civil case cannot be achieved. Civil procedural legislation contains provisions indicating that the court is obliged to establish the actual circumstances of the case. At the same time, obstacles to this are inherent both in the civil procedural form itself and in the social purpose of civil proceedings.

Given the general focus of judicial knowledge on the search for truth, the court in a number of cases is forced to limit itself to establishing only formal truth, which in reality may or may not correspond to objective truth. In this regard, the question of the appropriateness of using the very concept of truth to determine the purpose of the functioning of the mechanism of evidence in civil cases is legitimate. In some cases, objective truth is achieved, as the correspondence of human knowledge to reality, in others - formal truth, as knowledge obtained in the manner prescribed by law. The latter cannot be considered as truth in a philosophical sense. “Truth in its philosophical sense does not depend on the validity of the conclusions contained in the judicial decision, the abilities and capabilities of cognizing subjects, including the court, since it relates to objective reality, and not to subjective perception.” "Formal truth is pseudo-truth".

The purpose of evidence is to correctly and timely establish the circumstances of the case.

The most consistent with the modern model of civil procedure is the understanding of the purpose of evidence as the correct and timely establishment of the circumstances of the case.

Understanding the purpose of proof as the correct and timely establishment of the circumstances of the case allows us to eliminate the differences between supporters of objective truth and formal truth. In addition, for the practice of considering civil cases in courts of general jurisdiction, one thing is fundamentally important: to correctly and timely establish the circumstances of the case, apply the rules of law to them and resolve the dispute.

In the science of procedural law, the concept of “correct establishment of the circumstances of the case” is considered as an evaluative category. I. V. Reshetnikova notes that each subject understands “correct” in its own way: the court - from its independent, objective position, side - according to its vision of the essence of the dispute and evidence. In modern legislation, this term ceases to be evaluative and subjective in nature. In accordance with Art. 2 of the Code of Civil Procedure, the tasks of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation and its subjects.

Legal activity is characterized by a certain order, which should be optimal for performing certain procedural actions. The optimal procedure for establishing the factual circumstances of a case contains a program of legal activity aimed at a comprehensive, complete and direct examination of evidence and, ultimately, at making a legal and informed decision that ensures the protection of the right.

When determining the correctness of establishing circumstances relevant to the case, one should proceed from the concept of correct consideration of a civil case, developed in the theory of civil procedural law.

The concept of the correctness of consideration and resolution of a civil case from the point of view of the mechanism of judicial protection of rights reflects the result of the functioning of both the mechanism as a whole and all its constituent elements. Accordingly, the correct establishment of the factual circumstances of the case as the goal of proof is the result of the work of the mechanism of evidence within the framework of the civil procedural form. Correct establishment of the circumstances of the case requires the following conditions to be met:

• – compliance with the civil procedural form of evidence;
• – correct application norms of substantive and procedural law governing evidence;
• – taking into account the legal positions formed judicial practice;
• – proper (in accordance with the law) implementation of subjective rights and obligations of participants in educational and evidentiary activities in the form of performing procedural actions;
• – use of methods of proof that do not contradict the rules of law. A mandatory characteristic of any legal activity, including evidentiary work, is timeliness. The concept of timeliness is based on the philosophical category “time”. In the science of civil procedural law, temporal connections and relationships are used in the form of duration, sequence, simultaneity, point in time and dating.

In legal literature, timely consideration and resolution of civil cases by the court is usually understood as consideration of them within the time limits established by civil procedural law. A similar interpretation is given by arbitrage practice.

Arbitrage practice(position of the Supreme Court of the Russian Federation): Thus, courts of general jurisdiction are ordered to take the necessary measures to eliminate errors and omissions in the application of legislation on procedural time limits for the consideration of criminal, civil cases and cases of administrative offenses, entailing an increase in the time limits for trial proceedings, as well as to take other enforcement measures up to the termination of the powers of judges who allow facts of red tape. The resolution states that when administering justice, one should proceed from the fact that failure to comply with the legal deadlines for proceedings in criminal and civil cases significantly violates the right of citizens to judicial protection, guaranteed by the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms (resolution of the Plenum of the Armed Forces of the Russian Federation dated December 27 .2007 No. 52 “On the time limits for consideration by the courts of the Russian Federation of criminal, civil cases and cases of administrative offenses”).

Thus, legislation, judicial practice and doctrine are based on an understanding of the timeliness of both compliance with the deadlines established by law for the performance of individual procedural actions, and the consideration and resolution of the case as a whole.

“Timeliness of establishing the circumstances of the case” is a narrower concept compared to the concept of “timeliness of consideration and resolution of a civil case” (more precisely, the first is one of the conditions of the second). Accordingly, the content of the timeliness of establishing the circumstances of the case is determined by the content of the concept of timeliness of consideration and resolution of a civil case.

Timely establishment of the circumstances of the case means, firstly, the presentation and collection of evidence within the period established by law for a particular stage of the process or legal proceedings as a whole, as well as within the period established by the court for carrying out individual actions of proof; secondly, the presentation and examination of evidence at that moment in the development of the process, at that stage of the process, as defined by civil procedural law.

We proceed from expediency concentration of evidence in the court of first instance, which is a manifestation in proving the principle of concentration of the process. This means that all evidence must be presented to the trial court. The court of first instance has the widest possibilities for examining evidence, which creates optimal conditions for correctly establishing the factual circumstances of the case. The concentration of evidentiary material in the court of first instance corresponds to the functional purpose of this court - resolving the case on the merits. The establishment of the factual circumstances of the case at the verification stages of the process should be of an exceptional nature or absent altogether (depending on the type of review) and serve the purpose of verifying the correctness of the establishment of the factual circumstances of the case by the court of first instance.

Within the framework of the general goal of proof - the correct and timely establishment of the factual circumstances of the case - one should distinguish intermediate goals, i.e. goals that confront the subjects of evidentiary activities at individual stages of the process. The specifics of the purposes of proof at certain stages of legal proceedings do not exclude the specifics of the purposes of the evidentiary activity of individual participants in the process. Considering the question of the purposes of proving individual subjects of evidentiary activity, we proceed from the fact that the subjects of proof are the court and other participants in the process, who have different target orientations in the process and, accordingly, perform divergent functions. In this regard, the question arises about the advisability of classifying the purposes of proof depending on the target orientation of the activities of individual subjects of proof.

In the specialized literature, it has been suggested that formulating the purpose of proof presupposes the need to abstract from the individual tasks of a particular participant in the process, since it is difficult to identify the procedural goal that each participant in the proceedings sets for himself. However, highlighting the general purpose of proof does not exclude the presence of purposes of proof of individual subjects. The obvious heterogeneity of the goals of proof (for example, the court, the plaintiff or the defendant) determines the need to highlight the goals of proof of individual participants in the process. It is the goals that they set for themselves that determine their functions during the trial, including in proving. Thus, the plaintiff pursues the goal of protecting his subjective rights and interests by confirming them in a court decision and forcing the defendant to commit legally significant actions. Accordingly, the purpose of his evidentiary activity is to confirm, with the help of evidence, the existence of legal facts to which he refers in support of his claims and objections. This entails such a procedural function of the plaintiff as substantiation of claims.

The procedural goals of the court are determined by the tasks of the civil process (Article 2 of the Code of Civil Procedure). The purpose of the court's participation in proof completely coincides with the general purpose of proof - the correct and timely establishment of factual circumstances relevant to the case. In accordance with this goal, the functions of the court in proving in conditions of adversarial proceedings are determined - organizing the interaction of the court and persons participating in the case (procedural cooperation), and monitoring the quality of evidence and evidence.

Despite the difference in goals facing individual subjects of evidence, all their activities are carried out within the framework of “the target orientation of legal norms and are carried out under the control of the court, which is obliged to sanction only such actions of other participants in evidence that meet their rights and obligations and the goals of the proceedings.” Therefore, the goals of individual subjects of proof should be considered as elements unified system purposes in a civil case.

As noted above, the purposes of proof are divided into direct And distant. The immediate goal of proof is aimed at achieving the result of the actual evidentiary activity - the correct and timely establishment of the factual circumstances of the case. Distant goals of proof are the final goals of legal proceedings. The long-term goal of proof is the correct and timely resolution of the case based on the establishment of circumstances relevant to the case, the protection of rights, the elimination of social uncertainty and the bringing of social relations into compliance with the requirements of the law.

The distant goal of proof also has social aspect. The social purpose of evidence in the system of civil procedural activity, its role in achieving the objectives of legal proceedings as a whole predetermines specific areas of civil procedural activity.

The social need for evidence is determined by the state of conflict and the unsettled state of social relations. In the course of proving, the interested person, defending his position, strives to eliminate social uncertainty and bring social relations into compliance with the requirements of the law.

At the same time, it is necessary to take into account that social changes caused by evidence have reverse side. Changed social relations surrounded by the loser of a legal dispute, persons give rise to negative attitude to law, evidence, enforcement. In order for proof to fulfill its social purpose, it is necessary that, as a result of proof, the court, the participants in the process and any citizen who has information about a particular process have a belief in the correctness, reliability of the establishment of the circumstances of the case and the fairness of the decision. As L. Cadieux (France) and O. Chase (USA) noted, characterizing the state of modern scientific development of the problems of evidence and proof, “the main sociocultural significance of proof, along with its intellectual function, is to obtain a statement that we accept in advance The function of proof is the formation of a belief, or, what is the same thing, obtaining approval. By ensuring the achievement of true knowledge that satisfies this requirement, proof performs a universal function that has no national boundaries of establishing social connections, the implementation of which may differ from country to country. country. A judicial decision with the property of res judicata is also not absolutely true (truth), it is only considered as such in order to ensure social harmony."

The preliminary investigation authorities accused Kolesov of illegally acquiring and storing large quantities of narcotic drugs without the purpose of selling them, as well as of illegally transporting large amounts of narcotic drugs, i.e. the crime provided for in paragraph “c” of Part 3 of Art. 228 of the Criminal Code of the Russian Federation. According to the indictment, Kolesov, under circumstances unidentified by the investigation, in an unspecified location in the area of ​​Bezymyannaya Street at an unspecified time and from an unidentified person, acquired a narcotic drug for his own use without the purpose of sale - a homemade preparation of ephedrine with a total volume of at least 14 ml, which he kept on his person. in his clothing pockets, carried and transported in his Opel Kadett car. At approximately 21:10 on August 15, 2010. he was detained in a state of intoxication on the street. Unnamed to check documents by police officers and taken to the police station, where, in the presence of witnesses, a bottle of pink liquid containing a narcotic drug - a homemade preparation of ephedrine with a volume of 11 ml - was removed from his right trouser pocket.

1. Was the goal of proof achieved by the authorities conducting the preliminary investigation? 2. Is it necessary to establish all the signs of the event under investigation? 3. What is the nature of the truth established in criminal proceedings?

• 1. I believe the purpose of proof has been achieved.
• 2. In my opinion, in this case it is not necessary to establish all the signs of the event under investigation. From the incident it is clear that Kolesov committed a crime.

A crime subject to investigation in criminal proceedings is, in relation to the investigation and trial past event.

In this regard, the establishment of the factual circumstances of a crime that have legal significance is carried out through retrospective knowledge, specific form which in criminal proceedings is proof.

The purpose of proving as a form of knowledge in criminal justice is the establishment of truth, which is objective in nature.

True- correspondence of knowledge and conclusions to reality.

Establishing the truth in a criminal case is of great not only theoretical but also practical importance. The rights and freedoms of man and citizen, whose interests are affected in criminal proceedings, as well as the authority of officials administering justice depend on this

Truth in criminal proceedings- compliance of the conclusions of the investigative and court authorities about the actual circumstances of the commission of the crime with the circumstances that existed in reality.

The concept of objective truth inextricably linked with the concepts validity, probability and reliability.

Validity of conclusions means their compliance with the evidence available in the case.

The degree of validity of conclusions can be probable and reliable.

Probabilistic knowledge-- speculative knowledge and conclusions reflecting reality, allowing doubt as to their truth.

Reliable knowledge-- knowledge and conclusions that clearly reflect reality, characterizing complete and undoubted confidence in their truth.

Consequently, the purpose of criminal procedural evidence is to establish reliable objective truth.

In accordance with Art. 85. Code of Criminal Procedure of the Russian Federation.

Proof consists of collecting, checking and evaluating evidence in order to establish the circumstances provided for in Article 73 of the Code of Criminal Procedure of the Russian Federation.

Article 73. Circumstances to be proven.

• 1. During criminal proceedings the following shall be subject to proof:
• 1) the event of the crime (time, place, method and other circumstances of the crime);
• 2) the person’s guilt in committing a crime, the form of his guilt and motives; truth proof criminal trial
• 3) circumstances characterizing the personality of the accused;
• 4) the nature and extent of the damage caused by the crime;
• 5) circumstances excluding criminality and punishability of the act;
• 6) circumstances mitigating and aggravating punishment;
• 7) circumstances that may entail release from criminal liability and punishment;
• 8) circumstances confirming that the property subject to confiscation in accordance with Article 104.1 of the Criminal Code of the Russian Federation was obtained as a result of the commission of a crime or is proceeds from this property or was used or intended to be used as an instrument of crime or for the financing of terrorism, extremist activities ( extremism), organized group, illegal armed group, criminal community (criminal organization).

Article 88. Rules for evaluating evidence

1. Each evidence is subject to assessment from the point of view of relevance, admissibility, reliability, and all collected evidence in the aggregate - sufficiency to resolve the criminal case.