Prospects for introducing the institution of establishing objective truth in a criminal case. Truth as the goal of proof in a criminal case Objective and material truth in criminal proceedings

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

    • government bodies, officials acting on the prosecution side are obliged to use all procedural means provided to them to substantiate the charges brought against the person with evidence;
    • is presumed innocent and is not required to prove his innocence;
    • The court, in an adversarial proceeding, examines the evidence presented by the parties and resolves the case on its merits.

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

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

In the literature of recent years, different attitudes have been expressed towards the accessibility of knowledge of truth.

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

An opposite view on this issue is expressed by Yu. K. Orlov, who believes that all the philosophical aspects of the characteristics of truth in criminal proceedings and its subject have not lost their significance, and therefore criticizes the Code of Criminal Procedure of the Russian Federation for the absence of norms in it that would oblige the court, along with the investigator and prosecutor take measures to establish the truth.

If we understand truth in the field of criminal proceedings as the correspondence of the conclusions of the investigation and the court to the actual circumstances of the case, to what took place in reality, then to answer the question of whether truth can be considered as the goal of proof, without which the purpose of the criminal case cannot be achieved legal proceedings, it is necessary to turn to procedural means and the evidentiary procedure in criminal proceedings.

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

The question of truth as a necessary condition for achieving the purpose of criminal proceedings must be considered taking into account the differences in the requirements that the law places on a conviction and an acquittal. Essentially, truth, understood as the correspondence of the established circumstances of the case with what actually took place, can be spoken of in relation to a guilty verdict. A conviction cannot be based on assumption and is decided only on the condition that during the trial the defendant’s guilt in committing a crime is confirmed by the totality of evidence examined by the court (Part 4 of Article 302 of the Code of Criminal Procedure).

The conclusions contained in the guilty verdict must be reliable, that is, proven, justified by the totality of evidence. Therefore, the proof of the accusation, subject to strict adherence to the law regulating the rules for collecting, checking and evaluating evidence, gives grounds to consider the circumstances established by the court to correspond to what actually took place.

You can be convinced of the truth of the acquired knowledge only by comparing the knowledge with reality, which is impossible in criminal proceedings (it is impossible to verify knowledge about a crime empirically), therefore, when the principle of free evaluation of evidence is applied, comes “the determination to recognize a known opinion as true or to base it on of its activities."

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

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

The rules for issuing an acquittal do not require proof of a person’s innocence, since by virtue of the presumption of innocence, “unproven guilt is proven innocence.” At the same time, the principle of the presumption of innocence requires that irremovable doubts about a person’s guilt be interpreted in his favor (Part 3 of Article 49 of the Constitution of the Russian Federation, Article 14 of the Code of Criminal Procedure).

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

V. BALAKSHIN
V. Balakshin, candidate of legal sciences, Sverdlovsk region.
The introduction of jury trials and the first trials with their participation revealed a number of problems. At the same time, having arisen in a jury trial, some of them were automatically transferred to “ordinary” proceedings. In particular, the established view that the purpose of legal proceedings and justice is to establish objective (material) truth has been revised. A restoration has begun of the position previously shared only by Western and some domestic pre-revolutionary jurists, according to which legal knowledge (in particular, about a person’s guilt in committing a crime) is probabilistic in nature. Thus, methodologist V. Nikitaev writes: “Objective (material) truth is a fiction, more precisely, a legal fiction, which allows the use of the Criminal Code to pronounce a sentence: and therefore its preservation as a means of the criminal process presupposes that procedural truth will be put in first place” ( Nikitaev V.V. Problematic situations of the criminal process and legal thinking // Adversarial justice: works of scientific and practical laboratories. M.: International Committee for the Promotion of Legal Reform, 1996). By procedural truth he understands “the compliance of the judicial process (and therefore its result) with the requirements of procedural law.”
Thus, the purpose of the criminal process is determined not by objective (material) truth, not by what happened “in reality,” not by true knowledge about a socially dangerous act with all its objective and subjective characteristics, but by “procedural” truth. In other words, an event, action or inaction of a person, even if it did not actually occur, but was established by the court on the basis of evidence recognized by it as reliable and benign.
It is difficult to agree with such a point of view, as, say, with the proposal that a person’s guilt in committing a crime can be proven with a “degree of probability established by law.”
The goals and objectives of criminal procedural activity are formulated in concentrated form in Art. Art. 2 and 20 Code of Criminal Procedure. They are: quick and complete detection of crimes, a complete, comprehensive and objective study of the circumstances of the case, exposing the guilty and ensuring the correct application of the law so that everyone who commits a crime is subjected to fair punishment and not a single innocent person is prosecuted and convicted.
The most undesirable thing that can happen in a criminal trial is the prosecution and conviction of innocent people.
The purpose of criminal procedural activity and proof, in particular, cannot be anything other than the establishment of objective reality, the reality that took place in the past. Not absolute truth, because it is impossible to achieve it, not relative, because this will entail a violation of the rights of the participants in the process and other undesirable consequences, but objective truth. It presupposes the presence of such knowledge and conclusions about the circumstances of the case that correctly reflect the reality existing outside human consciousness. “To establish the truth in a criminal trial,” writes P. Lupinskaya, “means to know the past event and all the circumstances to be established in a criminal case, in accordance with how they took place in reality” (Lupinskaya P.A. Criminal procedure. Textbook . M., 1995. P. 129). It is difficult to disagree with the conclusions of P. Lupinskaya and other scientists who adhere to the same position. All that remains is to add: the circumstances of the commission of a crime (socially dangerous act) exist objectively. But they exist in the past and cannot be changed or transformed in any way. They either took place in reality, or they did not exist at all. In other words, these circumstances cannot and should not be made dependent on the presence or absence of evidence confirming and establishing them. The absence of evidence does not mean that some act did not occur. In such a situation, the opposite is not excluded: the act actually took place, but evidence of this has not been obtained. Or those obtained that reflect it somewhat distortedly. If this is so, then there is no reason to talk about establishing objective truth in the case and achieving the goal of proof. For as long as the knowledge of the inquirer, investigator, prosecutor, judge does not correspond to reality, does not reflect reality, the goal of proof cannot be considered achieved.
It is pointless and unscientific to deny the obvious. Namely, that in real judicial and prosecutorial practice it is impossible to establish in each criminal case what actually happened. There are cases when it is not possible to comprehend the objective truth for some reason.
Such a conclusion, for example, can be made by analyzing the resolution of the Presidium of the Krasnoyarsk Regional Court dated June 11, 1996 in the case of G. The latter was convicted by the Kirov District Court of Krasnoyarsk under clauses “a”, “b”, part 2 of Art. 146 of the Criminal Code of the RSFSR for the fact that he and a citizen unidentified by the investigation, while traveling in a VAZ-21063 car, attacked its owner Z., who was sitting behind the wheel. The mentioned citizen used a gas canister against Z., and G. at that time grabbed Z. by the clothes and neck. The latter managed to free himself and jump out of the cabin. G. and the citizen, whose case was separated into separate proceedings, took possession of the car and left.
Overturning the verdict of the district court and the ruling of the judicial panel in criminal cases, the presidium indicated: “When qualifying the offense under paragraphs “a”, “b”, part 2 of article 146 of the Criminal Code of the RSFSR, the court proceeded from the fact that the use of a gas spray created threat to the life and health of the victim.
However, in the case materials and in the verdict there is no information about the degree of danger to the life and health of the victim as a result of the use of a gas spray during the attack. A forensic medical examination was not carried out on the nature and severity of Z.’s injuries resulting from the use of the contents in the gas canister, and the canister itself was not found.
According to the testimony of the victim Z., no bodily harm was caused to him. The case contains no information about the circumstances of the acquisition of the gas cartridge and the properties of the substance contained in it. Under such circumstances, what G. did should be qualified as an open theft of personal property of citizens (robbery), committed by prior conspiracy by a group of persons, combined with violence not dangerous to the life and health of the victim, i.e. according to Part 2 of Art. 145 of the Criminal Code of the RSFSR, in force at the time the crime was committed" (Bulletin of the Supreme Court of the Russian Federation. 1997. No. 5. P. 17).
From the decision of the Presidium it follows that G.’s actions were reclassified as a less serious crime not because the use of a gas spray did not create a threat to the life and health of the victim, but because this issue was not properly addressed by either the preliminary investigation authorities or the court of first instance researched. The gaps in the process of evidence in this case are obvious. However, something else is obvious: the conclusions of the courts of all instances, due to the incompleteness of the study of the circumstances of the case, were made with a certain degree of probability. For it is not at all excluded that the use of a gas canister against the victim Z. created a threat to his life and health and, therefore, G.’s actions were initially correctly classified as robbery, and not robbery.
Therefore, it is impossible to admit that during the investigation and consideration of the analyzed case, an objective truth was established and a fair verdict was rendered, based on the fundamental provisions of the theory of evidence.
On the contrary, an analysis of the Resolution of the Presidium of the Supreme Court of the Russian Federation dated January 24, 1996 in B.’s case gives grounds for the conclusion that as a result of the procedural activities of the preliminary investigation bodies and the court, the objective truth was achieved. The evidence and arguments presented in the resolution, their careful, complete and cumulative analysis allowed us to draw the only correct conclusion that B., through deception and abuse of trust, embezzled various amounts of money, which he spent on his personal needs, paying remuneration to intermediaries for services rendered, then has committed a crime under Part 2 of Art. 147 of the Criminal Code of the RSFSR (Bulletin of the Supreme Court of the Russian Federation. 1997. No. 2. P. 7 - 8). Here there is a coincidence of objective (material) truth and procedural truth!
This is, however, the ideal option. We are for it to prevail in judicial and prosecutorial practice, so that the objective truth is established in the majority of criminal cases considered by the courts.
Objectively, in real life both options exist. Therefore, the question naturally arises: how should the court, when determining its position on this very pressing issue, act in cases similar to the first case?
Society has reached a level of legal consciousness where, at the legislative level, it is necessary to specify, firstly, the purpose of proof in criminal proceedings, and secondly, the purpose of justice itself. This is extremely necessary, if only because at present, de facto, “investigative and judicial practices are different practices” (V.V. Nikitaev, Decree. Work. P. 300). The ability of the court to identify and discover evidence is much more modest than that of the inquiry and investigation bodies. Consequently, the bodies engaged in operational investigative activities and conducting investigations in criminal cases should be primarily aimed at establishing objective truth. They are aimed at obtaining such evidence, in such quantity and quality, that would allow us to obtain knowledge about the socially dangerous act that took place, corresponding to the actual circumstances.
It seems that the goal of justice should be to achieve the identity of objective and procedural truths (ideal option). In the same case, when it is obvious that objective truth cannot be achieved, since the investigative bodies and the court itself have completely exhausted all measures provided by law to establish it, in any case procedural truth must be achieved. That is, the truth that follows and is based on the materials of the criminal case is fully consistent with the evidence available in it, properly and scrupulously verified, examined and evaluated by the court.
Actually, such a requirement is enshrined in paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 29, 1996 “On the Judicial Sentence,” according to which “a conviction must be based on reliable evidence, when all the emerging versions of the case have been investigated, and the existing contradictions clarified and assessed." We can only hope that this requirement will be extended not only to convictions, but also to other court decisions, including acquittals. For the principles of the presumption of innocence and the adversarial nature of the parties in criminal proceedings presuppose that a person’s innocence of committing a crime must also be proven, and an acquittal would not contain “wording calling into question the innocence of the acquitted” (clause 17 of the Resolution “On the Judicial Sentence”).
Such an approach would allow the investigative authorities to focus on taking comprehensive measures to establish the objective truth, and not be content with formally establishing those circumstances of the crime that are covered by the victim, suspect, accused, if there is evidence of the commission of a crime under other circumstances. This would help eliminate cases of falsification of evidence, slander and self-incrimination - common reasons for unjust verdicts.
The introduction into practice of the standard of proof “with an established degree of probability” is unacceptable. The result of this will inevitably be serious errors in judicial activities.
LINKS TO LEGAL ACTS

"CRIMINAL PROCEDURE CODE OF THE RSFSR"
(approved by the Supreme Court of the RSFSR on October 27, 1960)
"CRIMINAL CODE OF THE RSFSR"
(approved by the Supreme Court of the RSFSR on October 27, 1960)
DECISION of the Plenum of the Supreme Court of the Russian Federation dated April 29, 1996 N 1
"ABOUT THE JUDGMENT"
Russian justice, No. 2, 1998

Section P. Proof from the point of view of achieving the truth. Purpose of proof

M. S. Strogovich. Selected works.

T. 3. Theory of forensic evidence. Moscow, publishing house "Nauka", 1991, p. 16-33

METHODOLOGICAL FOUNDATIONS OF THE THEORY OF EVIDENCE

THE CONCEPT OF MATERIAL TRUTH

[...] In solving the problem of material truth, it is necessary to decisively eliminate the possibility of a narrowly empirical, unscientific and unprincipled approach.

It is completely unacceptable and unscientific to argue that the theory of knowledge is one thing, and the theory of evidence in criminal proceedings is completely different, that there is no connection between them, that the epistemological problem is the field of philosophy, and the doctrine of material truth in criminal proceedings is a question of jurisprudence, judicial practice, why the latter question should be resolved regardless of any dependence on general philosophical provisions.

This way of asking the question is unscientific. The epistemological problem of truth has direct practical significance. K. Marx wrote: “The question of whether human thinking has objective truth is not at all a question of theory, but practical question. In practice, a person must prove the truth, that is, the reality and power, the this-worldliness of his thinking. The dispute about the validity or invalidity of thinking isolated from practice is a purely scholastic question.”

[...] When considering the problem of material truth in criminal proceedings... it is necessary... to eliminate the possibility of simplification, mechanical transfer of general philosophical provisions into the sphere of special issues of criminal proceedings. We can and should talk about resolving the issue of material truth in criminal proceedings on the basis of the Marxist-Leninist theory of knowledge, since a particular special procedural problem of material truth is the problem of the court’s knowledge of certain phenomena of reality.

tality - factors, events that form the subject of the case being considered by the court.

The starting point of the doctrine of material truth in Soviet criminal proceedings should be... the theory of reflection, according to which our sensations and ideas are casts, snapshots of reality, objective reality is reflected in our concepts and judgments, your thinking can cognize reality.

[...] Truth is the correspondence of our ideas and thoughts to objective reality. The human consciousness reflects objective reality, objects, things that are outside this consciousness and exist independently of it. .him. Sensations, perceptions, and ideas of a person are images of objectively existing things.

Truth is the correspondence of “our perceptions with the objective nature of perceived things.” Truth is objective truth, since it means a correct reflection in the consciousness of a person of objective reality - that which exists outside the consciousness of the perceiving person and independently of him.

[...] The Marxist concept of truth as objective truth finds its application in all branches of science and practical activity, in any process of Cognition, no matter what object is subjected to research and study.

This interpretation of... truth... is fully applicable to the concept of material truth in criminal proceedings. The content of the latter is specific facts, events of the crime committed, which are investigated in a particular criminal case by judges.

This event, which constitutes the subject of research in a criminal case, is a fact independent of the consciousness of the judge examining it (as well as the investigator and prosecutor), and the task of the judge is to correctly recognize this event, to establish it as it happened in fact. Establishing, in accordance with reality, the event of a crime, all its constituent facts, and the actions of those who committed it, is the achievement of material truth. If the event of a crime did not occur (although initially it seemed that it did), if the person brought to criminal responsibility did not commit a crime, the achievement of material truth consists in establishing the absence of a crime, the innocence of the person prosecuted.

In a word, material truth in criminal proceedings is the correspondence of the conclusion to which the court came with what happened in reality. Of course (and we have already pointed this out),

The establishment by the court of material truth in criminal cases does not pursue theoretical and educational tasks, but practical tasks of combating crimes, but this struggle is successful only under the indispensable condition that the material truth is established in each resolved criminal case. The object of judicial research in a criminal case is a separate specific event that happened in the past, in a certain place and at a certain time, or several such events, a group of them. Thus, the content of the material truth in a criminal case is an actual event, an action committed by a person (or his inaction).

The task of the court is not limited to establishing a single specific event, a fact: the established event must be correctly assessed politically and legally, and this assessment can only be made from the point of view of the principles and rules that constitute the content of socialist law and socialist legal consciousness. In a court case, a fact or a group of facts, an action or a set of actions is subject to such an assessment, i.e. we are talking about individual events that occurred in certain conditions of place and time, which must be established by the court as they actually happened.

Thus, the concept of material truth refers to the establishment of facts and circumstances of a criminal case, but not to a legal (criminal legal) assessment, qualification of these facts and not to the determination of punishment for the crime committed. The qualification of a crime and the determination of punishment is the application by the court of law to a fact established in accordance with reality, that is, it is based on the material truth established in the case.

It should be recognized as incorrect the opinion expressed in our literature that material truth means not only the correct establishment of facts, the actual circumstances of the case in accordance with Reality, but also the correct legal assessment of these facts by the court, their correct legal, criminal legal qualification and the correct imposition of punishment. This point of view is erroneous. The correct socio-political and legal assessment of a fact, act, crime is an obligatory, necessary property of a correct judicial verdict, but it is not included in the concept of material truth.

In a criminal case, the truth must be established, that is, the facts and circumstances of the crime must be established in full and exact accordance with reality. These facts, established in accordance with reality, must be

correctly assessed, the law must be correctly applied to them, and from this law the correct conclusions must be drawn for the given case (in the sense of conviction and punishment or acquittal of the accused). It is precisely in view of the discrepancy between the concept of material truth related to the establishment of the factual circumstances of the case and the concept of a correct legal assessment of the established facts of Art. 15 of the Law on the Judicial System distinguishes between the concepts of validity and legality of a sentence.

The wrong point of view in question expands the concept of material truth so much that it loses its definition, and it confuses questions of the correct establishment of facts with questions of the application of legal norms. With such an understanding of material truth, the latter largely loses the character of objective truth, since the legal assessment of the fact and the measure of punishment imposed by the court depend on the law in force at a given time, on the attitude of the judges to the act they are considering and on a number of other circumstances. The act itself, the event of the crime and the guilt of the person who committed it do not in any way depend on the judges; for them, they are an objective fact that the judges must establish and recognize as it took place in reality.

Another epistemological question related to the problem of material truth is the question of its cognizability, its accessibility to judgment.

At first glance, this formulation of the question may seem artificial and unnecessary. If there is information about the commission of a crime, usually relating to the recent past, there are witnesses who can certify the essential circumstances related to this event, there is material evidence and other evidence, why is it impossible to establish with certainty what happened, to be sure whether it happened? what crime was committed and who committed it?

The general epistemological problem of the reliability of our knowledge, the ability of human consciousness to correctly reflect and know the objects of objective reality finds its expression in the special area of ​​judicial activity, since the court’s knowledge of the facts investigated in a criminal case is a type, a special case of knowledge of the phenomena of reality. If our knowledge is reliable, if the objective truth is accessible to our consciousness, then the conclusion of the court about the guilt or innocence of the persons brought to criminal responsibility may be completely reliable, i.e. the material truth is accessible to the court [...]

The epistemological provisions of Marxist-Leninist philosophy deprive the assertion of the unknowability of truth in any field of knowledge, as well as in the field of administration of justice, of any basis. This does not mean at all that a person always knows the truth, that everything that a person considers true is really the truth. A person is capable of knowing the truth, but he can make a mistake, accept a lie as the truth and the truth as a lie. The truth is available to the court considering a legal case, but the court may mistakenly accept as truth what is not the truth.

Recognition of the availability of truth for the court does not exclude the possibility of judicial errors, but it denies the inevitability, irremovability of such errors and denies these errors justification. The path to material truth continues to remain difficult even with this formulation of the question, but these difficulties are stripped of any epistemological coloring and turn out to be difficulties of a practical nature that can and should be overcome. These difficulties depend to a large extent on the ability in each individual case to investigate with due completeness the factual circumstances of the case and to collect sufficient and good-quality evidence with the help of which it is possible to establish with complete certainty those facts that form the subject of the study and on the establishment of which depends correct resolution of the case. These difficulties may be more or less significant, but overcoming them is entirely within the capabilities of the investigative authorities and the court.

The Marxist-Leninist theory of knowledge distinguishes between the concepts of absolute truth and relative truth. In this regard, the question arises about the nature of material truth in criminal proceedings, whether it is absolute or relative [...].

In Anti-Dühring, Engels wrote that there are truths so firmly established that any doubt about them is tantamount to madness. These are the truths: the sum of the angles of a triangle is equal to two right angles, Paris is in France, a person without food dies of hunger, people in society cannot live without working, people were still divided for the most part into dominant and subordinate, Napoleon died on May 5, 1821 . etc. Engels points out that such truths can be called eternal, final, if “big words are applied to very simple things...” (gewaltige Worte auf sehr emface Dinge anzuwenden).

Engels calls such eternal truths “flatnesses and commonplaces of the worst kind” (Plattheiten schgs1 Gemeinplatze argsten Art). There are many such “planes”, they are well known, we encounter them at every step. But these are still truths, objective, absolute truths.

Speaking about such a truth as the fact that Napoleon died on May 5, 1821, V.I. Lenin pointed out that “it is absurd to consider this truth refutable in the future.” When the “empiriomonist” Bogdanov declared that such “planes” cannot be called truths at all, V.I. Lenin very sharply refuted this statement and explained the meaning of Engels’ ironic expression about planes and commonplaces: “Dühring to the right, to the left, on the most complex issues of science in general and historical science in particular, he threw out the words: “the last, final, eternal truth.” Engels ridiculed him: of course,” he answered, “there are eternal truths, but it is unwise to use big words (gewaltige Worte) regarding simple things.”

In those cases when the task of cognition is to establish a separate event, a separate fact in the conditions of a certain place and time, if this event, this fact is established correctly, exactly in accordance with reality - this is objective, absolute true. Precisely because the task of cognition in this case is only to establish a given event, a fact, the achieved truth, being objective, absolute truth, thereby loses the character of banality, flatness, which it inevitably acquires if the establishment of such truths to bring together the entire process of scientific knowledge of a diverse and developing reality. But in their field these truths are of enormous importance [...]

What conclusions should be drawn from the provisions of the Marxist-Leninist theory of knowledge for the problem of material truth in criminal proceedings that we are considering?

First of all, the conclusion should be drawn that material truth is objective truth.

This conclusion - about the objectivity of material truth - is completely undoubted, otherwise material truth would not be truth at all.

Further, from the teachings of Marxism-Leninism about the truth of our knowledge, the conclusion follows about the accessibility of material truth for judges resolving a criminal case. This conclusion is also undeniable. Indeed, if the truth is accessible to human knowledge in the natural and social sciences, in relation to the complex patterns of development of nature and society, why is it inaccessible to the court, in relation to a certain, specific fact, event, crime that took place in a certain place and at a certain time? ? We can only talk about practical difficulties in finding the truth in individual criminal cases, but not about its inaccessibility, unknowability, etc.

Sometimes it is pointed out that there are some specific conditions under which the discovery of material truth occurs in the activities of the investigation and the court - time limits for investigation limited by law, the use of only legally formalized evidence, etc. But for a lawyer it should be absolutely clear that such specific conditions and requirements not only do they not interfere with the discovery of material truth, but, on the contrary, they are a guarantee of its discovery.

The last question remains - can the material truth established in a criminal case be defined as an absolute truth or is it a relative truth. We believe that since material truth is objective truth, it is absolute truth if the court verdict fully and accurately corresponds to reality and establishes the facts as they actually happened. Material truth in criminal proceedings means that the court correctly, in accordance with reality, established the event of the crime and the person who committed it. What the court establishes in the verdict must be absolutely true and not raise doubts about its truth.

Indeed, if the court correctly resolved the criminal case, found the accused guilty of committing the crime that the accused actually committed, why is this not the absolute truth? That's exactly what she is.

Against the assertion that the court must establish the absolute truth in a verdict, the objection is sometimes raised that absolutely everything, even the smallest details of the crime, cannot be established with exhaustive completeness. This objection is unfounded. The court should not establish absolutely all the details of the event under investigation, since they are not important for the case. The same facts and circumstances that are essential to the case must be established absolutely precisely, in accordance with reality, since without this the case cannot be correctly resolved. The court should not establish absolutely everything about an event that is a crime and about the person who committed it, but what the court must establish for the correct resolution of the case, i.e. whether a crime was committed, what kind of crime it was, whether the accused committed it, - this must be established absolutely correctly.

It is further possible that in one case or another, certain facts of criminal acts could not be discovered. For example, it is possible that in one case or another it was not possible to discover all the facts of crimes committed by the accused, or it was not possible to detect some accomplices of the crime . It means that

in relation to such undetected facts and persons, it was not possible to establish the truth, but this does not mean at all that only relative truth was achieved in relation to those facts and persons in respect of which the court sentence was passed. Those facts that are discovered, investigated and which the court establishes by verdict must be established absolutely correctly, otherwise the verdict will be unfounded.

In our legal literature, the opinion was expressed that material truth in criminal proceedings is relative truth. This point of view is incorrect, and following it leads its supporters to completely unacceptable conclusions.

V. S. Tadevosya strongly advocates the recognition of material truth as relative truth; Tadevosyan writes: “The circumstances of many of the cases under investigation and the results of the work of investigators, prosecutors, judges and experts and other persons assisting them in achieving the material truth do not always make it possible to establish the truth in full accordance with reality.”

“Does it follow from this that, when resolving a case and not being able to establish the absolute truth, the court should consider everything that it has established as a lie, as an error? maximum approximation to the truth, as the maximum probability of an Event?”-

Thus, Tadevosyan argues that material truth can be “the maximum approximation to the truth,” “the maximum probability of an event.” But the founders of Marxism-Leninism speak of relative truth as an approximation to absolute truth only in the sense that it is incomplete, does not exhaust knowledge about an object, does not cover all its properties, and not in the sense that it establishes only the probability of the existence of an object or the probability of belonging to certain properties. Relative truth is not probable, but reliable, albeit incomplete, knowledge about a subject. And if our knowledge about a subject is not reliable, but only probable, it is not only not absolute, but not relative truth, but simply a hypothesis, a guess, an assumption.

Tadevosyan interprets the relativity of the truth established by the court as the probability of what the court affirms in the verdict, thereby, in essence, he deprives the material truth of the meaning of even relative truth. This is evident from his following words: “Conscientious judges usually do not believe that the truth they establish is absolute, and those of them who are internally convinced of this are often mistaken, like any researcher.” "

The author’s assertion that conscientious judges pass a verdict without being convinced of its truth is absolutely false; conscientious judges never do this; they pass a verdict convicting the defendant to punishment only when they are convinced of the defendant’s guilt, when they consider their conclusion about the defendant’s guilt to be true. It is true that a judge, being convinced of the guilt of the defendant, can be mistaken, but in these cases there is not a relative truth, but an error, an error that is not made true because the judge is convinced that it is the truth. Tadevosyan's mistake is that he equates the concept of relative truth with probability, assumption, even delusion. But relative truth is an objective truth, only incomplete, it is truth, and not probability, much less a delusion, not an error [...]

What conclusions does V.S. Tadevosyan’s point of view about the “relativity” of material truth lead to? This can be seen from his following words: “The political and practical consequence of such a theory, which would require the court to always establish absolute truth, and otherwise would consider it necessary to acquit the accused, could only be a weakening of the state authorities in the fight against crime.”

This position is absolutely incorrect, and it contradicts the tasks of socialist justice. V.S. Tadevosyan, as can be seen from his words cited above, allows for the issuance of guilty verdicts in relation to persons whose guilt has not been established with complete certainty, but only with probability, which he, without sufficient grounds, identifies with relative truth and therefore deprives a judicial verdict from that base that determines its fairness and persuasiveness.

About the point of view of V.S. Tadevosyan on the pages of the magazine “Communist” it is absolutely correctly said: “Such an understanding of the truth in judicial practice can lead to gross violations of socialist legality. This kind of theoretical reasoning, which requires abandoning the objective reliability of judicial truth, justifies subjectivism and arbitrariness in passing sentences and decisions, and opens loopholes for lawlessness.”

In our literature, another point of view was expressed - that material truth in Soviet criminal proceedings is neither absolute nor relative truth, it is simply truth or objective truth; The philosophical distinction between the concepts of absolute truth and relative truth is not applicable to the truth that is investigated and established by a criminal court.

This point of view does not solve the issue, but simply avoids it. Since supporters of this point of view recognize that material truth is objective truth, they thereby extend the epistemological concept of truth to material truth, and having done this, it is impossible to stop there. halfway and abandon the consideration of material truth from the point of view of its absolute or relative character. And if so, there are no grounds - neither theoretical nor practical - to conclude without hesitation, firmly and decisively: the truth that ... the court in a criminal case strives for and must establish is the absolute truth; the court in a separate case may make a mistake, in this case the truth will not be achieved, but there will be a mistake, an incorrect verdict; but... justice is satisfied only by achieving objective, absolute truth.

[...] The criterion for the truth of our knowledge is practice. Practice verifies the reality of our knowledge, the truth of theories, views, thoughts, and judgments. V.I. Lenin wrote: “...things exist outside of us. Our perceptions and ideas are their images. Verification of these images, separation of true from false is given by practice.” “For the materialist, the “success” of human practice proves the correspondence of our ideas with the objective nature of the things we perceive.”

It is practice that makes it possible to distinguish true theories, judgments, ideas from false ones... Is practice a criterion for the truth of the conclusions of the investigation and the court about the circumstances of a criminal case, making it possible to distinguish material truth from error, delusion? Undoubtedly, it is - in the sense that the very practical activities of the investigative bodies, the prosecutor's office and the court, the success of their fight against crime, their strict adherence to the laws, the thoroughness of the investigation of the circumstances of the resolved criminal cases, the comprehensiveness of the verification of evidence, the use of scientific and technical methods of investigation criminal cases and, moreover, the entire social, political and everyday experience of Soviet investigators, prosecutors and judges

This is what ensures the discovery of the material truth in the case, and this is what proves that in criminal cases the conclusions of the investigation and the court are true and correspond to reality.

But, of course, the criterion of practice should in no case be understood in a simplified way; V.I. Lenin pointed out that “the criterion of practice can never, in the very essence of the matter, confirm or refute completely any human idea.”

In the field of judicial activity, the application of the criterion of practice to separate true conclusions from false ones has its own specific features that distinguish this activity from scientific research in the field of natural science.

If a scientist asserts the existence of any law of nature, he can verify this himself and convince others through experiments, causing corresponding natural phenomena, separating and combining chemical elements, again and again checking the causes of this or that phenomenon or those arising from it consequences, etc. Testing by experience and practice in various forms takes place in industry, in economic activity, etc.

But when the court examines the circumstances of a separate criminal case and establishes the presence (or absence) of a crime event and the guilt (or innocence) of the accused, it is deprived of the opportunity, through experience, experiment, to verify the truth of its statements and conclusions: it is impossible to repeat the crime in order to check whether it was it and exactly how it was accomplished. We cannot reproduce the crime in order to make sure that we understood it correctly, we cannot repeat the commission of certain actions of the participants in the crime in order to verify the correctness of the version accepted in the case.

What is called “investigative experiments,” i.e., artificial reproduction of the circumstances of an event to verify the testimony of a witness or accused, in some cases makes it possible to objectively verify the fact under investigation (for example, whether the witness could have seen such and such an event, hear such and such words, is it possible to hit a certain target with a gun from such and such a place, etc.) But such an experimental, experimental method of verification is applicable only within very limited limits and concerns only individual circumstances of the case; Moreover, a reliable result can only be obtained in a negative sense (you can’t hear, see, you can’t hit the target), but in a positive sense, this experiment can only give a more or less probable assumption (you can see, hear, you can hit the target, but not what the person actually saw, heard, hit the target, etc.). So the “investigative experiment” as a particular method of investigation does not change the general position that by experimental means the court cannot verify the truth of the existence of the facts to be established, cannot verify whether a material truth has really been discovered.

Therefore, the criterion of practice, while retaining all its significance in matters of establishing the material truth in a criminal case,

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 an event of the past in relation to the investigation and trial.

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

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.

The article, based on an analysis of the provisions of the Constitution of the Russian Federation, criminal procedural legislation, judicial investigative practice and legal literature, examines the essence, content and problems of truth in criminal proceedings.

Kruglikov A.P. Once again about the truth in criminal proceedings // Current state and problems of criminal and criminal procedural law, legal psychology. Sections “Criminal Procedure Law” and “Legal Psychology”: materials of the International. scientific-practical conference, Russia, Volgograd, December 13-14. 2012; comp.: I.S. Dikarev, A.V. Borovkov, E.I. Elfimova. - Volgograd: VolSU Publishing House, 2012. P. 232-243.

Kruglikov A.P.
Once again about truth in criminal proceedings

The concept, content and nature of truth in criminal proceedings are the subject of heated debate among scientists and practitioners. An additional impetus to the disputes was given by the draft law prepared by the Investigative Committee of the Russian Federation “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.” The bill was published on the website of the Investigative Committee of the Russian Federation; Chairman of the Investigative Committee of the Russian Federation A.I. gave a lengthy interview about it on the pages of the Rossiyskaya Gazeta. Bastrykin. Of course, the established length of the article allows only briefly to highlight some of the issues related to truth in criminal proceedings.

On the issue of the concept of truth in criminal proceedings.

First of all, it is necessary to pay attention to the fact that a significant number of scientific and practical workers, although they proceed from what was developed by philosophy the same definition of objective truth as an adequate reflection of reality by a cognizing subject, reproduction of it as it is outside and independently of consciousness, at the same time, those related to truth in criminal proceedings and expressing the same concepts are designated by different terms.

Thus, many authors in their publications call the objective truth established in criminal proceedings at the same time “material truth.” For example, M.S. Strogovich, in his two-volume work “The Course of Soviet Criminal Procedure,” wrote: “Material truth and objective truth are not different concepts, but one and the same concept, the term “material truth” serves to designate objective truth, and not anything else... The term “material truth” itself is used in the Soviet theory of criminal procedure in order to express that this truth is a real, genuine truth, that the conclusions of the investigation and the court are true when they correspond to reality. In this sense, the concept of material truth is contrasted with formal truth, which is understood as the correspondence of the conclusions of the investigation and the court to various formal conditions (for example, the presence of a certain number of witnesses, certification of a particular fact by a certain document, etc.).

A similar view is shared by V.T. Tomin. In one of his last works, he indicated that in it: “the term material truth is understood as objective truth, cognizable in a criminal case by means permitted by criminal procedural law(highlighted by V.T. Tomin)".

Here it is impossible not to note the fact that the term “material truth” was used, along with foreign authors, by many domestic procedural scientists back in the pre-Soviet period of Russian history. For example, professor of the Imperial Moscow University S.V. Poznyshev wrote: “a criminal court should strive to disclose objective, material truth, i.e. to figure out, what they really are all objective and subjective aspects of the events subject to consideration that may be important for criminal liability. The concept of material truth is opposed to formal truth, which consists only in the correspondence of the decision to known data, the meaning of which is established in advance (for example, by documents). The verdict of the criminal court must fully correspond to the circumstances of the case, as they actually developed, it must be, so to speak, materially, and not formally true” (emphasis mine - A.K.). In other words, the court's verdict must be based on the circumstances that actually took place and correspond to these circumstances. And only then can we consider that the objective truth has been established by the court.

The criminal process of Tsarist Russia, in the period after the adoption of the Charter of Criminal Proceedings of 1864, changed significantly. So, S.V. Borodin noted: “the criminal process in Russia acquired new qualities that were not inferior to the English or French criminal process in terms of the possibilities, as they said then, of establishing the “material truth” in the criminal cases being investigated and considered.” The system of formal evidence was abolished, and a free assessment of evidence was provided for according to conscience and inner conviction.

As for the Soviet and subsequent periods of Russian history, the criminal procedural legislation did not provide for the use of a system of formal evidence. On the contrary: in the current Code of Criminal Procedure of the Russian Federation in Part 2 of Art. 17 enshrines the rule: “No evidence has pre-established force”, part 3 of Art. 240 of the Code of Criminal Procedure of the Russian Federation stipulates: “The court’s verdict can be based only on the evidence that was examined at the trial.”

Based on the above, the questions arise: “How necessary and advisable is it to simultaneously call objective truth material truth? Why denote the same concept with different terms?”

In relation to the above situation with the terms “objective truth” and “material truth”, one can cite the judgment of famous procedural scientists N.S. Alekseeva, V.G. Daeva, L.D. Kokoreva: “...there is hardly any need to use different terms in relation to the same concept...”.

According to legal theorist S.S. Alekseev, “it is unacceptable to use different terms to denote the same concepts.” A term in science, other authors believe, should be unambiguous.

The foregoing allows, in our opinion, to conclude that at present there is no need to call the objective truth established in criminal proceedings material.

Establishing objective truth in a criminal case - a principle of the criminal process or its goal?

Much of the above is applicable by analogy when considering the question of what is establishing the truth in a criminal case - the principle of the criminal process or its goal?

This issue is not new: at a discussion of the issue of the system of principles of criminal procedure organized by the department of criminal procedure of the Moscow Law Institute back in 1952 at a joint meeting of this department and the departments of criminal procedure of the Institute of International Relations and the All-Union Correspondence Law Institute, despite the long-term discussion of a common view on It was not possible to develop a system of principles. As noted by N.N. Polyansky, among the issues that caused disagreement during this discussion was the following: Isn’t the inclusion of the principle of objective truth in the system of principles of criminal proceedings a confusion of the concepts of principle and purpose of criminal proceedings?(emphasis mine - A.K.).

In our opinion, as noted above, one and the same concept cannot be denoted by different terms. Moreover, some authors consider the establishment of objective truth in a criminal case to be both a principle of the criminal process and its goal. So, T.N. Dobrovolskaya called one of the sections of her work on the principles of the criminal process: “The principle of objective truth,” but in the same section she writes: “Establishing the truth in a criminal case is undoubtedly, first of all, the goal of the Soviet criminal process.” Regarding the point of view of T.N. Dobrovolskaya, one can give the opposite opinion of N.S. Alekseeva, V.G. Daeva, L.D. Kokoreva: “... objective truth is the goal of the process, and the same category cannot be both a goal and a principle at the same time.” The position of these authors is shared by other scientists.

For example, I.F. Demidov noted: “The category “goal” answers the question - what is the activity aimed at, the category “principle” - how, in what way it is carried out.” According to B.B. Glazunov: “the identification of tasks and principles is unacceptable, since these are legal categories that are different in their content and purpose.”

Taking into account the above views, as well as for the reasons stated above in relation to why objective truth cannot simultaneously be considered material, there is no reason for the concept of “establishing objective truth in a criminal case” to be considered both the principle and goal of the criminal process.

Is establishing objective truth in a criminal case the only goal (task) of the criminal process or one of its goals (tasks)?

When answering this question, we should proceed from the fact that the terms “goal” and “task” are synonymous.

Many authors have said that establishing objective truth in a criminal case is not the only goal (task) of the criminal process. So, M.A. Cheltsov wrote: “Objective truth in a criminal case is a reflection of the facts of objective reality in the conclusions of the investigator and the court about the existence of a crime and about the guilt or innocence of the person brought to criminal liability in its commission. However establishing the truth does not exhaust the tasks of the criminal process. The court must render a just verdict in each case” (emphasis added - A.K.). I.B Mikhailovskaya noted: “regardless of the legislative formulation, the goal of criminal proceedings is a “set” of tasks of more specific content, which are in a hierarchical relationship.

I.L. Petrukhin spoke about the “goals” of the criminal process, reasonably identifying them with tasks. He believed: “The new Code of Criminal Procedure significantly modified the wording of the “purpose”, i.e., the tasks of criminal proceedings, putting in first place the protection of individual rights, whereas in the previous code preference was given to the protection of public interests, which included the rapid and complete detection of crimes, exposure perpetrators ensuring the correct application of the law (Article 2 of the Code of Criminal Procedure of the RSFSR). These are, rather, the tasks of a preliminary investigation rather than a trial, since the court does not reveal the crime and does not expose the perpetrators(emphasis added - A.K.). In accordance with the Code of Criminal Procedure of the Russian Federation (Article 6), the protection of the rights and legitimate interests of crime victims involves not only the creation of favorable procedural conditions for them during the preliminary investigation and in court, but also the disclosure of the crime, the identification of the culprit, and the recovery of damages from him. Another task of criminal proceedings is to protect the individual from illegal and unfounded accusations, convictions, restrictions on his rights and freedoms, and the rehabilitation of the innocent (Part 2 of Article 6 of the Code of Criminal Procedure of the Russian Federation). These goals can be reduced to two: achieving the truth in a criminal case and protecting individual rights in the search for truth. Both goals are equally important.

The above views of procedural scientists and analysis of criminal procedure legislation allow, in our opinion, to conclude that establishing objective truth in a criminal case is one (perhaps the most important) of the tasks of the criminal process. This conclusion is based on the provisions of Art. 73 of the Code of Criminal Procedure of the Russian Federation, which established burden of proof in every criminal case(“subject to proof”) the event of the crime (time, place, method and other circumstances of its commission), the guilt of the person in committing the crime, the form of his guilt, the nature and extent of the harm caused by the crime, etc.

Moreover, from the above text of the Code of Criminal Procedure of the Russian Federation, the following undoubtedly follows: the specified circumstances must be established exactly as they were in reality, and not conjectural or invented by the investigator and the head of the investigative body, as sometimes happens in practice.

The Code of Criminal Procedure of the Russian Federation contains many other provisions aimed at establishing the objective truth in the case. So, 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. The provisions of the Code of Criminal Procedure of the Russian Federation are aimed at the comprehensiveness, completeness and objectivity of clarification of 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.

Taking into account the above, we can conclude that there are no grounds for introducing the so-called “institution of establishing objective truth in a criminal case” into the Code of Criminal Procedure of the Russian Federation. This institute, as shown above, already exists in the Code of Criminal Procedure of the Russian Federation.

On the bill prepared by the Investigative Committee of the Russian Federation on introducing into the Criminal Procedure Code of the Russian Federation the institution of establishing objective truth in a criminal case.

Chairman of the Investigative Committee of the Russian Federation A.I. gave a lengthy interview to the Rossiyskaya Gazeta about the essence of the said bill. Bastrykin. The scope of the article makes it possible to dwell only on some aspects of the said interview and the provisions of the bill.

Unfortunately, we have to admit that the quality of the preliminary investigation, as noted by many scientists and practitioners, has not improved in recent years and has even become worse. Speaking with a report on April 27, 2011 at a meeting of the Federation Council of the Federal Assembly of the Russian Federation, Prosecutor General of the Russian Federation Yu.Ya. Chaika, in particular, noted: “Many problems have arisen with the quality of the preliminary investigation. There is still a significant number of criminal cases returned by prosecutors for additional investigation. …The constitutional rights of citizens are violated everywhere by investigative bodies. Among the most frequently identified violations by prosecutors are the illegal initiation of criminal cases, violation of the rights of participants in criminal proceedings, and unjustified prosecution.”

The main reasons for the current situation with the quality of the investigation are known - the deprivation of the prosecutor of many powers to supervise the preliminary investigation, poor training of lawyers in educational institutions and a number of others, the analysis of which lies beyond the scope of this article. But I will note one of the reasons for the low quality of the preliminary investigation, which seems to be one of the main ones: weak control over the investigation of criminal cases by the heads of investigative units.

And what is important: the introduced bill, in our opinion, provides a strong basis for the assumption that the main reason for its preparation and introduction is the goal of “involving” judges in the investigation of criminal cases and exposing those guilty of committing them.

The basis for this conclusion follows from the text of the said interview with A.I. Bastrykin to the Russian newspaper. It criticized the provisions of Article 14 of the Code of Criminal Procedure of the Russian Federation, which enshrined the principle of the presumption of innocence in criminal proceedings (and, therefore, the corresponding provisions of the Constitution of the Russian Federation and many international legal acts). The bill proposes to include in the Code of Criminal Procedure of the Russian Federation a rule that “the court is not bound by the opinions of the parties and, if in doubt, takes the necessary measures to establish the factual circumstances of the criminal case.” At the same time, the presiding officer at the court hearing should be charged with the responsibility “to take measures for a comprehensive, complete and objective clarification of all the circumstances of the criminal case.”

That is, the investigators and the prosecutor failed in court, and the court is obliged to establish all the circumstances of the case. It can be assumed that after the adoption of the bill, the main burden of proving the guilt of the accused of committing a crime will fall on the court. A.I. Bastrykin also stated that the proposed bill provides for “an open list of grounds for the court to return a criminal case to the prosecutor.”

Meanwhile, in the Concept of Judicial Reform in the Russian Federation, approved by a resolution of the Supreme Council of the RSFSR on October 24, 1991, and the provisions of which have not been officially canceled or amended, the court’s obligation to return criminal cases for additional investigation if they are incomplete, as well as the obligation to fill in the gaps of the preliminary investigations through independent search for evidence were named among the rudiments of the accusatory role of the court.

The statement contained in the interview that the court in today's proceedings is assigned the role of a passive observer, and that the court should not be active in collecting evidence, is not true. The actual legal status of the court indicates the opposite: Article 86 of the Code of Criminal Procedure of the Russian Federation, called “collection of evidence,” gives the court the right to collect evidence by carrying out investigative and other procedural actions provided for by the Code of Criminal Procedure of the Russian Federation. And, for example, in accordance with Article 283 of the Code of Criminal Procedure of the Russian Federation, the court has the right, during the judicial investigation, on its own initiative or at the request of the parties to order forensic examinations. Under these circumstances, where is A.I. Did Bastrykin see the court as having “the role of a passive observer of the confrontation between the parties”?

When assessing the provisions of the bill under consideration, it is necessary to remember the democratic achievements of the science of criminal procedure in the pre-Soviet period of Russian history. And here it could not be more appropriate to cite the following opinion of Privat-Associate Professor of Tomsk University I.V. Mikhailovsky: “To detect crimes, to prosecute and expose criminals, there are other authorities, whose responsibility is to collect all the necessary data and present it to the court. And if these bodies do their job poorly, then all responsibility should fall on them, and not on the court. The judge would turn into an organ of the administration if he were imbued with its principle of “promoting the comprehensive cultural well-being of the people” and began to compete with the prosecutor in solving crimes. ...we can say that on the day when judges would be forced to “assist” the authorities in the prosecution of criminals, collecting exoffcio evidence of guilt and bringing to justice on their own initiative, there would be one more administrative body, but the court, as a guardian of the rule of law, as the defender of the rights of everyone, as the main pillar of the rule of law, would cease to exist.”

The judgments of A.I. presented in the article. Bastrykin and the provisions of the bill prepared by the Investigative Committee of the Russian Federation contradict generally accepted international canons, the Concept of judicial reform in the Russian Federation, the Constitution of the Russian Federation and the current Code of Criminal Procedure. But there is no certainty that this bill will not be adopted. Here, it seems, the Supreme Court of the Russian Federation should have its say.

About "legal truth".

When considering the issue of truth in criminal proceedings, one cannot help but touch upon, at least very briefly, the issue of “legal truth,” the existence of which is recognized by many authors. So, I.B. Mikhailovskaya, noting that the new Code of Criminal Procedure of the Russian Federation has expanded the scope of discretion, writes: “Dispositivity, which allows the parties to use the rights granted by law or refuse them at their own discretion, to influence the outcome of the process with their decisions, etc., is in conflict with the principle of publicity ( officiality) and forces the legislator to seek a compromise between them. In cases where this contradiction is resolved in favor of dispositiveness, the legality of the sentence is assessed based on the criterion of compliance or non-compliance of the court’s conclusions with the case materials. The establishment of such correspondence gives grounds to talk about achieving legal truth, not material truth. Legal truth may or may not correspond to the facts that took place in reality."

P.A. Lupinskaya believed that compliance with the procedure established by law when collecting, checking and evaluating evidence, conducting a trial based on the principle of adversarialism and equality of parties lies at the basis of understanding the court’s conclusions as “legal truth” or “material truth” (in the sense of forming a belief based on materials affairs)" .

Without being able, due to the limited scope of the article, to analyze in detail the above and the points of view of other authors about the essence of “legal” truth, I will only note the following.

Understanding and knowing that courts often make decisions on the basis of the materials available in a criminal case and the evidence considered in court, I still believe that there is no basis for the existence of any special “legal truth.” There is one concept of truth - whether our knowledge and conclusions correspond to what actually happened or not. If they match, then the truth has been established.

The existence of “legal truth” can lead, and in practice sometimes does, to the falsification of evidence on the basis of which investigators and judges make decisions, claiming that the truth (of course, “legal”) has been established.

The scope of the article made it possible only to briefly highlight a number of provisions contained in it related to truth in criminal proceedings; they require further research.


See, for example: Philosophical Dictionary / Ed. I.T. Frolova. - 6th ed., revised and additional. - M.: Politizdat, 1991. P. 169; Alekseev P.V., Panin A.V. Philosophy. Textbook. Second edition, revised and expanded. - M. “Prospekt”, 1999. P. 120.

See: Tomin V.T. Criminal process: current problems of theory and practice. M.: Yurayt Publishing House, 2009. P. 208.

See: S.V. Poznyshev. An elementary textbook of Russian criminal procedure. Edition by G.A. Lnmana. Moscow, 1913. pp. 29-30.