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Legal and factual grounds for the formation of evidence at the pre-trial stage of criminal proceedings

Shepeleva Ol'ga Rinatovna

PhD in Law

Associate Professor, St. Petersburg University of the Ministry of Internal Affairs of Russia, Saint Petersburg, Russian Federation

196605, Russia, Saint Petersburg, Pushkin, Peterburgskoe highway, 10, lit.A

zaripova_or@mail.ru
Preblagina Kristina Igorevna

Postgraduate student, Pushkin Leningrad State University

196605, Russia, Saint Petersburg, Pushkin, Peterburgskoe highway, 10, lit. A

kristina.preblagina@mail.ru

DOI:

10.25136/2409-7136.2023.11.68995

EDN:

HUIFEF

Received:

15-11-2023


Published:

23-11-2023


Abstract: The subject of the study is legal relations arising in connection with the criminal law and criminological aspects of determining the subject of evidence in criminal proceedings and its establishment. The methodological basis of the study is special methods of cognition (formal legal and comparative-legal), and general, which should include methods such as abstraction, analysis and synthesis, induction and deduction, and methods of theoretical research - dialectical, ascent from the abstract to the concrete and logical. The main conclusions of the study are that currently the investigator /inquirer at the pre-trial stages of criminal proceedings carry out activities to collect, verify and evaluate evidence included in the subject of evidence in a criminal case. This activity is carried out through the implementation of investigative and other procedural actions. Having considered the individual problems of collecting evidence by the investigator/inquirer, we come to the conclusion that, for the purposes of improving pre-trial evidence, it is necessary to clearly regulate the legal status of such an action as "obtaining explanations" in the process of considering a crime report (the form of obtaining explanations; procedural rules for obtaining explanations; legal regulation of the status of those persons from whom explanations are received, etc.) Thus, based on the results of the study, it is concluded that it is necessary to improve a number of norms of the Code of Criminal Procedure of the Russian Federation and specific changes are proposed.


Keywords:

proving, subject of proof, establishment of the subject of proof, proofs, investigative actions, procedural actions, collecting evidence, verification of evidence, evaluation of evidence, obtaining evidence

This article is automatically translated. You can find original text of the article here.

Introduction. The Russian Federation, being a democratic federal state governed by the rule of law, should create effective ways of regulating public relations. The new Criminal Procedure Code of the Russian Federation adopted in 2001 (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) laid the foundation for the construction of an updated system of criminal procedure legislation. At the same time, a lot of attention in it is given to the sphere of public relations that is related to proof, in this case we will consider some issues that arise at the pre-trial stage of criminal proceedings. The goals of criminal proceedings enshrined in Article 6 of the Code of Criminal Procedure of the Russian Federation can be achieved only when the actions of all persons, including those conducting the investigation of a criminal case, comply with the norms established by law, especially at the stage associated with the process of collecting evidence, their verification and evaluation. 

The problem of collecting, verifying and evaluating evidence at the pre-trial stage of criminal proceedings will always be relevant, providing not only theoretical, but also practical foundations for improving criminal justice, taking into account the fact that the process of "proving" itself has a cognitive nature, a clearly regulated procedure, as well as the deadlines established by law. An important place is occupied by the subject of proof, since it is by establishing the circumstances included in the subject of proof that it is possible to make a legitimate and reasoned decision on a criminal case, including the presence of the corpus delicti and the involvement of a particular person in its commission.

The methodological basis of the research consists of special methods of cognition (formal-legal and comparative-legal), and general, which include methods such as abstraction, analysis and synthesis, induction and deduction, and methods of theoretical research - dialectical, ascent from the abstract to the concrete and logical.

If we turn to the relevant legal literature, we can conclude that in the period 2022-2023, the following authors devoted their works to issues related to the understanding of the subject of proof (and individual circumstances that are included in the subject of proof): Z. M. Petrovsky [1], E. A. Brizhatov [2], I. G. Yelesina, N. A. Kislova, S. N. Belova [3], however, in the presence of certain problems, this topic has been sufficiently investigated, in particular, in the works of S. A. Shafer, M. S. Strogovich, F. N. Fatkullin and other scientists.

Having reviewed the work of these researchers, as well as the norms of the Criminal Procedure Code of the Russian Federation and materials of judicial practice, we can note the following.

The main section. As the analysis of the content of Chapter 11 of the Code of Criminal Procedure of the Russian Federation shows, the subjects of proof at the pre-trial stage of criminal proceedings are the officials in whose proceedings the criminal case is, the prosecutor, who are vested with the appropriate powers, and accordingly carry out the collection, verification and evaluation of evidence.

The investigator and the inquirer carry out evidence in a criminal case through the implementation of a preliminary investigation in a criminal case. The proof is carried out by the investigator / inquirer through the implementation of investigative and other procedural actions. So, in addition to investigative actions, the identification of evidence is also possible during procedural actions, for example, during audits. In addition, it is possible to identify evidence in the course of non-procedural, for example, operational investigative activities, but in this case, their consolidation and inclusion in the criminal case is still carried out exclusively within the framework of procedural activities. Detection is an assessment of the identified information as evidence from the point of view of their relevance, while such an assessment has a preliminary character [4, p. 364]. However, at the same time, the main tool of proof in criminal proceedings, in relation to the activities of the investigator / inquirer, is the conduct of investigative actions. Mandatory signs of investigative actions are: procedural regulation of the investigative action, that is, a clear consolidation in the norms of the Criminal Procedure Code of the Russian Federation of the specific name of the investigative action, the grounds, conditions, procedure for its production; the implementation of the investigative action only by a specially authorized subject (investigator, investigator, head of the investigative body, unit of inquiry, body of inquiry on behalf); the possibility of applying coercion (in relation to those investigative actions, the procedural regulation of which allows the use of coercion, for example, seizure); the cognitive nature of investigative actions [5].

Here, from our point of view, E. S. Tokarenko correctly determined that the cognitive activity of the investigator (inquirer) is aimed at the prospect of obtaining evidence and clarifying the circumstances to be proved, respectively, consists of collecting, checking and evaluating evidence [6, p. 53]. S. B. Rossinsky also pointed out the cognitive nature of actions the investigator or the inquirer [7, p. 5]. Indeed, it is worth agreeing that as the ultimate goal of the production of any investigative action, it is necessary to consider obtaining evidence that is subsequently subject to verification and evaluation, in connection with which it is reasonable enough to point out the cognitive nature of the actions of the investigator or the inquirer.

It should be noted that the Code of Criminal Procedure of the Russian Federation does not disclose the concept of investigative action, while this definition can be found in the works of S. B. Rossinsky [7], V. A. Sementsov [8], V. Y. Stelmakh [9], L. V. Golovko [10], S. A. Sheifner [11], and, agreeing with these authors in some part, we will formulate our own definition. Thus, an "investigative action" can be understood as an action of an official conducting a preliminary investigation in a criminal case conducted in accordance with the criminal procedure Law, which has an educational character, aimed at establishing the circumstances relevant to the present criminal case that are subject to proof, and their corresponding consolidation. 

An important aspect of the production of any investigative action is the appropriate basis, both legal and factual. The legal basis is a set of conditions fixed in the Code of Criminal Procedure of the Russian Federation, on the basis of which the investigator (inquirer) has the right to perform this or that investigative action [12, p. 58]. An example of a legal basis may be a resolution on the seizure, search, etc. The actual basis is the data that dictates the need to perform this or that investigative action in order to establish the truth in the case. Simply put, the purpose of the production of a specific investigative action can be considered as a factual basis. For example, the actual basis (purpose) of the confrontation is the need to eliminate contradictions in the testimony of previously interrogated persons.

Thus, it can be argued that any investigative action is characterized by a cognitive and normative side. The first is formed by the methods of cognition used in the production of an investigative action, and the second is a detailed criminal procedural regulation of the rules and conditions of their production.

The investigative actions carried out must comply with the legally established rules, the violation of which leads to the recognition of the evidence obtained during their production as inadmissible, respectively, negates all the work of proof. Such rules are: the duty of the investigator (inquirer) to prevent the violation of the rights and legitimate interests of citizens (except for cases that directly provide for the possibility of their restriction); the possibility of conducting an investigative action only if there are grounds; the legality of the investigative action, its production strictly in accordance with criminal procedural requirements; the need to comply with moral and ethical standards.

These conditions are general, concerning all investigative actions without exception, however, in some cases, in relation to individual investigative actions, other requirements may be established, for example, the possibility of conducting an investigative action only on (on the basis of a court decision).

We also consider it necessary to draw attention, without delving into this topic, which deserves a separate study, to the fact that investigative actions are simultaneously procedural, while not all procedural actions are investigative.

Thus, despite the fact that, in accordance with Article 38 of the Code of Criminal Procedure of the Russian Federation, the investigator (inquirer) he himself determines the direction of the investigation, and, accordingly, the course of the proof process, it must be remembered that the production of this or that investigative action in order to obtain any evidence is unacceptable without legal or factual grounds for this.

Considering the specifics of the implementation of evidence by the investigator / inquirer in pre-trial proceedings, it is impossible not to dwell on individual problems that take place in the area of legal relations under consideration.

It should be noted that when checking a crime report, investigators most often use such a tool as "getting explanations", which is a procedure in which a person with information about the act being checked presents the information he has to the investigator, who can ask clarifying questions. In other words, getting explanations is to a certain extent a prototype of interrogation. At the same time, the receipt of explanations is practically not regulated by the norms of the criminal procedure law, in view of which the question arises as to in what form explanations should be received - orally or in writing; what actions should be carried out by an official before receiving explanations and after; what procedural status do the persons giving explanations have, given that that they are not responsible for reporting knowingly false information.

When conducting an inquiry in an abbreviated form, despite the absence of any normative consolidation, explanations are used as evidence and are reflected in the indictment, and subsequently in the verdict of the court, however, when conducting an inquiry in the general order and preliminary investigation, explanations are not included in the list of evidence.

The scientific literature offers options for fixing explanations as evidence, recognizing them as other documents in accordance with paragraph 6, Part 2 of Article 74 of the Criminal Procedure Code of the Russian Federation, which, in our opinion, contradicts the essence of the evidence [13 p. 147], since still "other documents" can be recognized as some source of information that has the physical shell, to which the explanations do not apply, given that in them a person reports information that may be of interest to the investigation of a criminal case, and are inherently close to the testimony.  

As well as in the case discussed above, we believe that if the explanations were recognized as material evidence in a criminal case, this would contradict Part 1 of Article 81 of the Code of Criminal Procedure of the Russian Federation.

In addition, if explanations are included in the list of evidence regulated by the Code of Criminal Procedure of the Russian Federation, then there are still questions about their relative admissibility, since their presence in the list of evidence does not guarantee that they will be issued accordingly in accordance with the norms of legislation, given that the requirements for issuing explanations, for example, as with the protocol of interrogation (Article 190 of the Code of Criminal Procedure of the Russian Federation).  

We agree with the position of O. V. Michurina, who believes that "the informational nature of the criminal case initiation stage is such that its tasks can be solved without the help of investigative actions" [14, p. 57], which means that there is no such fundamental need to give explanations the status of investigative actions.

However, it should be noted that explanations can still be used, including by courts when considering criminal cases. Thus, by a court verdict, K. was found guilty of committing a crime under paragraph "z" of Part 2 of Article 112 of the Criminal Code of the Russian Federation. Not agreeing with the verdict, the lawyer of the convicted person filed an appeal against him, in which, among other things, the testimony of the witness was disputed, which, according to the author of the complaint, was dependent on the victim's spouse, since enforcement proceedings were initiated against him by the bailiff department, which was headed by the victim's spouse. By the resolution of the Leningrad Regional Court of 19.10.2023 [15], this sentence was left unchanged, and in substantiating its conclusions, the court of appeal pointed out that the arguments of the defense about the unreliability of the testimony of witness G., and about the presence of grounds for the reservation of the convicted person, the court of first instance reasonably rejected them, properly motivating its decision. To disagree with this conclusion of the court of first instance, the court of appeal finds no grounds, including taking into account the explanation of G. from 08.03.2022 examined in the court of appeal about the circumstances of the events between the convicted and the victim on 21.02.2022, given that enforcement proceedings against G. were initiated by the bailiff department on 08.04.2022.

The implementation of operational investigative activities is also characterized by certain problems, namely, obtaining its results for the purposes of subsequent proof in a criminal case. So, for example, paragraph 2 of Part 1 of Article 15 of Federal Law No. 144-FZ dated 12.08.1995 "On Operational search activities" provides that during the conduct of public operational search activities (hereinafter referred to as ORM), it is possible to seize documents, objects, materials and messages, while a protocol must be drawn up in accordance with the norms of the CPC RF. This provision is often interpreted literally, therefore, the acts on the conduct of an operational experiment, test procurement and other OPM contain references to Articles 176, 179, 182, 183 of the Code of Criminal Procedure of the Russian Federation. However, this practice, in our opinion, is incorrect and, moreover, it makes it impossible to continue using these materials for the purposes of criminal procedural proof, for the reason that the protocol of absolutely any operational event must be drawn up with references and on the basis of Federal Law No. 144-FZ of 12.08.1995 "On operational investigative activities", whereas the requirement to take into account the norms of the Code of Criminal Procedure of the Russian Federation concerns only the definition of the general form and internal content of the specified protocol.

As we have already noted above regarding explanations, in this case, the same will partially be true for the use of the results of operational investigative activities (hereinafter referred to as ORD), since they must have signs of admissibility and reliability. We believe that it is impossible to attribute the results of the ORD to material evidence, in connection with which it would be logical to attribute them to other documents, however, by virtue of Article 84 of the Code of Criminal Procedure of the Russian Federation, they must be obtained, claimed or submitted by conducting investigative or other procedural actions established by the criminal procedure law. In order to legitimize the results of the ORD as evidence in a criminal case, in our opinion, it is necessary to amend Part 2 of Article 74 of the Code of Criminal Procedure and supplement it with paragraph 7 "results of operational investigative activities obtained and provided in accordance with the procedure established by law."

Conclusion. Summing up the above, we can conclude that at present, officials conducting a preliminary investigation, at the pre-trial stages of criminal proceedings, carry out activities to collect, verify and evaluate evidence included in the subject of proof in a criminal case, through the implementation of investigative and other procedural actions. Having considered some problems of collecting evidence by an official conducting a preliminary investigation, we come to the conclusion that there is no fundamental need to give explanations the status of investigative actions, while it would be advisable to supplement Part 2 of Article 74 of the Code of Criminal Procedure with paragraph 7, which can be referred to as "the results of operational investigative activities received and provided in accordance with the established procedure." in order."

 

 

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First Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

The subject of the research in the article submitted for review is, as follows from its name, the legal and factual grounds for the formation of evidence. The title of the work does not indicate that the author covered exclusively pre-trial criminal proceedings with his research. Thus, the title of the article needs to be clarified. The methodology of the research is not disclosed in the text of the article, but it is obvious that the scientists used universal dialectical, logical, formal and legal research methods. The relevance of the research topic chosen by the author is justified by him as follows: "The problem of proof occupies one of the main places in criminal procedure law. This circumstance is supported by the fact that proving has a special specificity of cognitive activity, which is associated with strict regulation of the procedure, deadlines established by law and other features related to the investigation and consideration of criminal cases in court. At the same time, the "core" of proof is the subject of proof, since it is by establishing the circumstances included in the subject of proof that it is possible to properly consider and resolve questions about the presence of corpus delicti in the event under investigation, as well as about the guilt of a particular person in committing a crime, etc. If we turn to the relevant legal literature, we can conclude that in the period 2022-2023, the following authors devoted their works to issues related to understanding the subject of proof (and individual circumstances that are included in the subject of proof): Petrovsky Z.M. [2], Brizhatov E.A. [3], Elesina I.G., Kislova N.A., Belova S.N. [4] and others". At the same time, the author did not indicate the names of the most famous specialists who have ever studied the problems raised in the article, nor did he disclose the degree of their study. Meanwhile, this directly affects the scientific novelty of future research. The article does not say what this scientific novelty of the work is manifested in. In fact, it is missing. The article is a collection of well-known statements and quotations from some theoretical sources. The author does not propose original definitions of scientific concepts, does not develop independent approaches to solving certain controversial problems. The article is of a superficial, overview nature and does not make a special contribution to the development of domestic legal science. The scientific style of the research is fully sustained by the author. The structure of the work is quite logical. In the introductory part of the article, the author substantiates the relevance of his chosen research topic. In the main part of the work, the scientist examines the signs of an investigative action, gives its definition, indicates the grounds for investigative actions, makes an attempt to reveal the essence of such an action as "obtaining explanations", talks about the problem of registration of the results of operational investigative activities for the purposes of proof. The final part of the article contains conclusions based on the results of the study. The content of the work, as already noted, does not fully correspond to its title. It is also not without some other disadvantages. Thus, the author gives the definition of an investigative action: "... a complex of search, cognitive and certifying traces of a certain type regulated by the criminal procedure law and carried out by the investigator (court) and adapted to the effective search, perception and consolidation of the evidentiary information contained in them" [8]" (the work of S. A. Shafer), but does not carry out a critical After analyzing this definition, he does not explain why, out of all the variety of definitions of this concept proposed in the scientific literature, he chose this one. The scientist does not offer an original definition of the concept of "procedural action", although it is repeatedly mentioned in the work. The author says that "... obtaining explanations is practically not regulated by the norms of the criminal procedure law, which raises the question of the form of obtaining explanations (oral or written); there is a question about the procedural rules for obtaining explanations; there is no legal regulation of the status of those persons from whom explanations are received, and accordingly, there is no responsibility for false information. It seems that these circumstances should be settled within the framework of the procedural law." All these issues are discussed in sufficient detail in the literature (see, for example, scientific articles by V. Smirnova, V. Stelmakh, etc.), but the author does not analyze them and does not offer original ways to solve the relevant problems. The same should be said about the problem of using the results of the ORD in proving a criminal case. The bibliography of the study is presented by 10 sources (normative legal acts, monographs, scientific articles, textbook). From a formal point of view, this is enough, from the actual point of view, the author failed to reveal the research topic with the necessary depth and completeness. There is an appeal to the opponents, but it is of a general nature and cannot be considered sufficient. The scientific discussion is conducted by the author correctly. The provisions of the work are not justified to the necessary extent. Conclusions based on the results of the conducted research are available ("Summing up the above, we can conclude that currently the investigator / inquirer at the pre-trial stages of criminal proceedings carries out activities to collect, verify and evaluate evidence included in the subject of evidence in a criminal case. This activity is carried out through the implementation of investigative and other procedural actions. Having considered the individual problems of collecting evidence by the investigator/inquirer, we come to the conclusion that, for the purpose of improving pre-trial evidence, it is necessary to clearly regulate the legal status of such an action as "obtaining explanations" in the process of reviewing a crime report (the form of obtaining explanations; procedural rules for obtaining explanations; legal regulation of the status of those persons from whom explanations are received, etc.)", but they need to be clarified and specified. Firstly, the subject of proof does not include evidence, but circumstances relevant to the criminal case. Secondly, the author's proposal to improve the legal regulation of such an action as "obtaining explanations" is not justified to the necessary extent. The legal nature of the explanations has not been clarified; their potential use as evidence in a criminal case has not been considered in detail. Finally, the conclusions based on the results of the study do not reflect all the scientific achievements of the author. The article needs additional proofreading. There are typos in it. So, the author writes: "The Russian Federation, being a democratic federal state governed by the rule of law, should create effective ways to regulate public relations, including the criminal procedure area" (not "should", but "should" is an error of coordination). The scientist notes: "At the same time, the "core" of proof is the subject of proof, since it is by establishing the circumstances included in the subject of proof that it is possible to properly consider and resolve questions about the presence of corpus delicti in the event under study, as well as about the guilt of a particular person in committing a crime, etc. (in the first case, a comma is not needed, but it is necessary after the words "circumstances"). The interest of the readership in the article submitted for review can be shown primarily by specialists in the field of criminal law and criminal procedure, provided that it is finalized: clarifying the title of the work and its individual provisions, disclosing the methodology of the study, additional justification of its relevance, introducing elements of scientific novelty and discussion, formulating clear and specific conclusions based on the results of the conducted research, elimination of violations in the design of the article.

Second Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

The subject of the study. In the reviewed article "Legal and factual grounds for the formation of evidence at the pre-trial stage of criminal proceedings", the subject of the study is the norms of criminal procedure law governing public relations related to the collection, verification and evaluation of evidence at the pre-trial stage of criminal proceedings. Research methodology. When writing the article, such methods were used as: logical, historical, theoretical and predictive, formal legal, system-structural, comparative law and legal modeling. The methodological apparatus consists of the following dialectical techniques and methods of scientific cognition: analysis, abstraction, induction, deduction, hypothesis, analogy, synthesis, typology, classification, systematization and generalization. The work used a combination of empirical and theoretical information. The use of modern methods made it possible to study established approaches, views on the subject of research, to develop an author's position and to argue it. The relevance of research. The relevance of the research topic stated by the author is beyond doubt. The author rightly notes that "the problem of collecting, verifying and evaluating evidence at the pre-trial stage of criminal proceedings will always be relevant, providing not only theoretical, but also practical foundations for improving criminal justice, taking into account the fact that the process of "proving" itself has an educational character, a clearly regulated procedure, as well as deadlines established by law. The subject of proof occupies an important place, since it is by establishing the circumstances included in the subject of proof that a legitimate and reasonable decision can be made in a criminal case, including the presence of corpus delicti and the involvement of a particular person in its commission." These circumstances indicate the relevance of doctrinal developments on this topic in order to improve criminal procedure legislation and the practice of its application. Scientific novelty. Without questioning the importance of previous scientific research, which served as the theoretical basis for this work, nevertheless, it can be noted that this article for the first time formulated noteworthy provisions, for example: "having considered the individual problems of collecting evidence by an official conducting a preliminary investigation, we conclude that there is no fundamental need to give explanations of the status of investigative actions, while it would be advisable to supplement Part 2 of Article 74 of the Code of Criminal Procedure with paragraph 7, which can be referred to as "the results of operational investigative activities obtained and provided in accordance with the procedure established by law." Based on the results of writing the article, the author has made a number of theoretical conclusions and suggestions, which indicates not only the importance of this study for legal science, but also determines its practical significance. Style, structure, content. The article is written in a scientific style, using special legal terminology. The material is presented consistently, competently and clearly. The article is structured. It seems that the introduction meets the requirements for this part of the scientific article. In conclusion, the main results achieved by the author during the research are formulated. The topic is disclosed, the content of the article corresponds to its title. There are no comments. Bibliography. The author uses a sufficient number of doctrinal sources, provides links to publications of recent years. References to sources are designed in accordance with the requirements of the bibliographic GOST. Appeal to opponents. A scientific discussion is presented on certain issues of the stated topic, and appeals to opponents are correct. All borrowings are decorated with links to the author and the source of the publication. Conclusions, the interest of the readership. The article "Legal and factual grounds for the formation of evidence at the pre-trial stage of criminal proceedings" is recommended for publication. The article corresponds to the subject of the journal "Legal Studies" and corresponds to its editorial policy. The article is written on an urgent topic, has practical significance and is characterized by scientific novelty. This article may be of interest to a wide readership, primarily specialists in the field of criminal procedure law, and will also be useful for teachers and students of law schools and faculties.
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