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§ 5. About prospects of reforming of criminal trial on the basis of introduction of information technologies

Containing in UPK the Russian Federation positions about application of information technologies and means mismatch a modern level of development of information technologies and possibilities on reduction of bureaucratic procedures in criminal trial at maintenance of guarantees of the rights and freedom of subjects of criminal trial owing to what many scientific and technical achievements remain without practical application.

Now in criminal trial of Russia tendencies on simplification of the criminal procedure form it is necessary for them to contrast aspiration to its adequate and economical application [193] take place. The occurred changes in a modern information society press for workings out of the criminal procedure norms regulating copying, withdrawal, preservation, processing, transfer and representation in court of the electronic information having evidentiary value, and also, that is the most important, - modernisations of criminal procedure forms with the account of information technologies so that they answered classical with requirements to ugolovnoprotsessualnoj to the form. However legal regulation of a supply with information of criminal trial carries till now fragmentary and neposledovatelnej character, there are no general provisions on use of information technologies, concept of means; criteria of an admissibility of use of means with rare exception also do not find the reflexion in the remedial legislation.

Thus it is necessary to realise importance of legal regulation of the criminal procedure form of information technologies since its non-observance involves certain legal effects, including a proof recognition inadmissible, that can lead to removal of the verdict of "not guilty" based not on established innocence of the defendant, and on an absence of proof of its fault owing to an exception recognised inadmissible proofs of charge from the list of proofs on criminal case.

Despite lacking in item 5 UPK the Russian Federations legal definition of concept of "means", in a law context are repeatedly used formulations about means. In operating UPK the Russian Federation it is possible to allocate some kinds of criminal procedure forms with "information" elements:

1) applications of technics regulating the general order during manufacture of investigatory actions and the special order concerning separate investigatory actions;

2) applications of means defining an order at acquaintance with materials of criminal case of participants of the criminal trial;

3) defining conditions of application of means in vessels of the first, appeal and cassation instances;

4) applications of means defining possibility for manufacturing of various remedial documents.

Besides, it is necessary to notice, that, proceeding from the maintenance operating UPK the Russian Federation, it is conditionally possible to allocate following groups of norms directly about use of means, such, as means of fixing, means for recording, the means structurally intended for an establishment of necessary data, and check and control means.

Thus, proceeding from existing discrepancy of actual and is standard caused use of information technologies in criminal trial, it is obviously necessary to establish, that the operating criminal procedure legislation requires actualisation in the designated directions.

Thereupon, in our opinion, it is possible to designate following basic directions of development of the criminal procedure legislation:

1. Expansion of limits of admissibility of evidence and occurrence of new sources of the fact sheet;

2. Expansion of the list of traditional investigatory actions, working out of additional guarantees of observance of legality by their manufacture;

3. Use of computer systems at acceptance remedially

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Significant decisions.

In UPK the Russian Federations are resolved by a number of consistently brought changes the basic questions connected with withdrawal, copying and storage of material data carriers in the electronic form. At the same time [194] question on criteria of electronic proofs in criminal trial remains till now debatable. However it is represented logical, that fastening of main principles of use of information technologies, and also a regulation of the criminal procedure form of the actions made with first of all is necessary

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Use of information technologies.

11. Now electronic document circulation in public sphere of the right is used seldom enough, but for last years the tendency as to increase in electronic document circulation, and the decision of a question on collecting of proofs in electronic form has ripened. We assume, that in the near future electronic kinds of proofs become on a level with the proofs executed in tipograficheskoj to the form then there will be consecutive a realisation of leaving from collecting of proofs only in tipograficheskoj (paper) form and transition to electronic document circulation. However the given transition will be connected with a number of problems. One of which, in our opinion, will be formalisation (the form of expression of proofs in the electronic form). First of all, expansion of the general concept of "proof", and also definition of "electronic proofs», criteria of their relevancy, an admissibility and reliability is necessary. It is necessary to notice, that signs of "the electronic proof» and criteria of their involving in proving process on criminal case are absent till now, and at occurrence of doubts in authorship, integrity and an invariance of the computer information, and also its other characteristics is appointed is computer-technical expert appraisal. Realising presence of possibility of manufacturing of reports of investigatory actions in the electronic form, a summer residence and the subsequent fixing of witness's testimonies, the victim, the expert and other [195] persons in the electronic form, possibility of familiarising with materials of business of material evidences in the electronic form, it is necessary to add item 74 UPK the Russian Federation "Proof" with concrete instructions on such form of proofs - "electronic". As such proofs in the electronic form can be presented not only the documents signed by the elektronno-digital signature of the official, but also audio-and videorecordings of the investigatory actions, which experience of application by us have been resulted in chapter 1 paragraph 5. To opinion on possibility

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Uses of such proofs come also domestic scientists. Besides, in connection with change of the form of proofs addition in the text of norm and additional general criteria of admissibility of evidence is obviously necessary. Taking into account the resulted judgements it is offered expedient to state ch. 1 items 74 UPK the Russian Federation "Proof" in the following edition:

«1. Proofs on criminal case are any data and the information, reflected in documents, processes, subjects or the objects, received with observance of the remedial form established by the present Code and accessible to verification and an establishment of authenticity on which basis court, the public prosecutor, the inspector, the investigator in an order defined by the present Code, establishes presence or absence of the circumstances which are coming under to proving at criminal proceeding, and also other circumstances important for criminal case.

1.2. Proofs can be presented in hand-written, typographical and electronic forms. The electronic form of proofs is understood as a file containing text, graphic [196] information, audio - a video information and (or) their combination. The validity of electronic proofs is equivalent to a validity of the proofs presented in other form. »

Besides, the legislation should contain instructions on an equal validity of proofs, including the electronic documents constituted by the parties during pre-judicial manufacture in connection with fixing of a course and results of actions made by them, directed on reception of the evidentiary information. Thus it is necessary to notice, that any way of documenting we will admit, if it provides reliability of preservation and transfer of the evidentiary information presented in electronic form, and possibility to investigate and estimate authenticity of this information and to verify it [197]. In the long term means of copying, storage, transfer of the electronic information will make unnecessary paper criminal procedure documents, that is transition exclusively on electronic document circulation is possible.

Besides, the instructions in the law on possibility of drawing up of reports of investigatory actions and session of the court in the electronic form with use of means with entering of respective alterations into article 83 UPK the Russian Federation «Reports of investigatory actions and session of the court» are necessary.

Besides it, use in information criminal trial in the electronic form assumes existence of accurate ways of definition of its authenticity. As V.B.Vehov fairly marks, questions on possible falsification of the information arise periodically, in process of introduction of new technologies for maintenance of revealing, disclosing and

Investigations of crimes also are some kind of "natural" opponents of innovations, for example, similar problems arose and in 60th of the last century at filming and sound recording introduction, and in 80th at videorecording introduction. « ... Practically it is possible at desire to make to any report certain changes at unconscientiousness of the official ». The designated fears, certainly, should be resolved in text UPK the Russian Federation, however for today article regulating the authentication of electronic proofs, no. In this connection regulation, first of all, fundamental principles of carrying out of investigatory actions and other activity with use of information technologies and electronic documents by a formulation of norms about guarantees of authenticity of electronic proofs, for example, about its invariance, protection against possible encroachments and availability to the subsequent studying, deposition of electronic copies, obligatory participation of the expert is necessary at carrying out of the investigatory or judicial actions connected with copying, deposition, survey, withdrawal electronic

Information.

Electronic data carriers are one of the most widespread and simultaneously difficult objects for withdrawal. On sense of the current legislation under «an electronic data carrier» which can be withdrawn during investigatory action, it is necessary to understand the internal store on a rigid magnetic disk, optical disks of various kinds, magnitno-optical disks, flash cards of various formats, USB flesh-stores, floppy disks, an integrated microcircuit of memory, an operative memory of the COMPUTER, a constant programmed memory [198]

The COMPUTER, operative memory of remote terminal units, other carriers. From the maintenance of articles 81, 81.1, 182, 183 UPK the Russian Federation follows, that «the electronic data carrier» is covered by concept the specified list of devices. Accordingly manufacture of their withdrawal is possible both in the form of a search, and in the form of dredging. Many practical workers believe, that electronic proofs (electronic letters on mail, flesh-stores, phones, etc.) it is necessary to regulate special provisions in UPK the Russian Federation, not being limited to an existing rule about compulsory attendance of the expert at carrying out of investigatory actions with those.

Thereupon it is necessary to agree with S.V.Zueva and K.I.Sutjagina's opinion which suggest «electronic copying of the information» to define as independent investigatory action in UPK the Russian Federation, those means of transfer of requirements to the given investigatory action to establish simultaneously and demanded criteria in the relation of "electronic proofs» [199].

Videorecording, that is the electronic document could be the most adequate means of fixing of actions of participants of operatively-search action or investigatory action. The basic requirement to a data carrier, presented in electronic form, consists in that at its research it was possible to confirm a correctness of actions of the inspector, no less than fixing of those data which have been found out by participants of investigatory action which to others by cannot be presented court owing to objective causes.

The same wide circulation of information technologies at gathering and evaluation of evidence takes place and in judicial stages of criminal trial. Special concept «electronic justice», under which

Electronic document circulation or way of realisation of the justice, based on use of information technologies [200 [201] is understood, became conventional in right language. The electronic system of justice provides audio-and the video report, electronic archive and electronic removal of decisions [202].

It is necessary to notice, that the information technologies used for the organisation of activity of officials and bodies, carrying out the criminal trial, in regulatory legal acts are not considered in details, however actually their use everywhere accompanies criminal procedure activity both on pre-judicial, and at judicial stages of criminal trial. It is possible to carry electronic systems of office-work to such information technologies in vessels, the electronic digital signature, electronic criminal case, etc.

The electronic form is convenient for realisation and other legal proceedings. For example, realisations of the right of the public prosecutor on motivirovannomu to the letter of inquiry to familiarise with materials of criminal case being in manufacture (item 2.1 of item 37 UPK the Russian Federation) by means of their reception in the electronic form. The electronic copies of documents received by scanning of the paper carrier [203 [204], have received the name of an electronic image of the document. But application of an electronic image of the document is limited only by frameworks of electronic document circulation. Concerning an electronic image of the document, as well as concerning the statement for a crime in the electronic form, there is a problem on legitimacy maintenance. Effective way of overcoming of the present problem is digital signature use.

According to P.S.Pastuhova, the standardised sets of services to the population in various spheres in the form of so-called «administrative regulations» already became a reality. In particular, similar «the administrative regulations» regulated actions of employees of parts of law-enforcement bodies on duty at a stage of excitation of criminal case. The following step consists in transfer of activity of employees of law enforcement bodies on pre-judicial preparation of materials of criminal case for consideration in court in an electronic format. Thus, there is a transition from written legal proceedings in a telecommunication network [205 [206].

A.F.Abdulvaliev considering insists on transition to electronic document circulation also, that criminal trial modernisation should consist in refusal of paper remedial documents and transition to criminal case conducting in the electronic form. According to this author, transition to an electronic mode of production on criminal case should simplify, first of all, collecting of proofs and drawing up of remedial documents [207 [208] [209].

As a perspective technological innovation from criminalistic positions it is obviously possible to consider also use of popular computer programs and devices for electronic video recording of a course and results of investigatory actions and session of the court. Besides, during questioning of employees of organs of inquiry and agencies in charge of preliminary investigation it has been revealed, that 91 % interrogated considers perspective replacement of paper criminal case with electronic business (for quality and terms of manufacture of investigation). The establishment of general principles of realisation of electronic document circulation in criminal trial in separate article UPK the Russian Federation Thereupon is obviously necessary.

The special urgency is represented by the permission of a question on application of popular computer programs and devices at considerable volume of materials of affairs, quantity of inspectors, episodes of the crimes which have sustained, defendants and so forth to Domestic practice examples of the permission of similar affairs with application of popular computer programs and devices are known. Such criminal case, for example, has been considered in 2006 by the Supreme Court of Republic Tatarstan concerning the organised criminal society «29th complex», where in

Quality of the convicted 32 persons have appeared. Proceeding was made with jury participation, however, as the criminal procedure legislation forbids to investigate with participation of jurymen the data, capable to cause their bias concerning defendants, there was a problem with representation of pictures from records of search of places of incidents and from the conclusions of forensic pathologies on which, except surrounding conditions, the disfigured corpses have been fixed. In this connection shocking images of the dismembered corpses, body parts, etc. with use of program Windows Paint have been taken from the scanned photos, and with the permission of the judge pictures were shown already in an "admissible" kind. Technical equipment of proceeding included presence of microphones, a projector and the projective screen, the remote panel for management of materials. Interesting that at long time of a legal investigation there was a probability of that some investigated materials can be forgotten jurymen in this connection the public prosecutor accompanied the speech by presentation with a reminder before the investigated materials and references to pages of materials of business is represented also.

It is necessary to notice, that opinion on efficiency of use of information technologies in the remedial form of the expert

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The conclusions not only finds the reflexion in the scientific literature, but also proves to be true results of questioning. So, 81 % of the interrogated practical workers of a consequence have positively estimated possibility [210 [211]

Introductions in the criminal trial of the remedial form of the expert judgements which have been carried out "oral" by (during a video conferencing), but written down on a video film or fixed by other electronic data carrier, and 55,4 % consider necessary addition of the paper record of interrogation

Witnesses / the interrogation convicted/sustained by videorecording (also criminal case attached to materials).

Thereupon inclusion in UPK the Russian Federation of norms, popular computer programs regulating application and devices in session of the court with participation of jurymen is possible at considerable volume of materials of affairs, and also quantity of defendants.

Other important party of a supply with information of activity of inspectors is the organisation of the help in analytical work on formation of decisions and the conclusions on the basis of the analysis of the available information. Very often young inspectors do not own sufficient experience in disclosing and investigation difficult mnogoepizodnyh crimes, and in it the information systems can assist them, capable to accumulate experience and to generate new knowledge, that is artificial intellect systems.

All is more active in activity of law enforcement bodies the automated workplaces (automated workplace) of the expert-criminalist, the operative worker, the investigator, the inspector, the head of the organ of inquiry, the public prosecutor and the judge, and also mobile computer complexes for work in "field" conditions [212 [213] take root. It is objective process as «in process of increase of level of technical equipment of agencies in charge of preliminary investigation and a consequence, - R.S.Belkin wrote, - the assortment of the tehniko-criminalistic means entering into corresponding sets of a general purpose» extends. However inclusion in UPK the Russian Federation of norms about use of the automated workplaces of investigators, inspectors, public prosecutors is represented excessive and, in our opinion, should find reflexion in corresponding special federal acts.

As by us it was repeatedly mentioned in research, activity on manufacture of preliminary investigation carries not only informative, but also analytical character. Analytical character of activity means the analysis and synthesis bolshego an information file, comparison and search of contradictions, relationships of cause and effect between circumstances, proofs and the persons participating in business. For the decision of problems under the analysis of the available evidentiary information artificial intellect systems can be used.

The methodology of use of systems of an artificial intellect is developed enough now in a domestic science. In general scientific sense such systems form and offer decisions on the basis of knowledge of a subject domain, ability to generalise, accumulate, get, apply and reproduce new knowledge. A source of knowledge within the limits of artificial intellect system are: results of mathematical modelling, experience of experts, normative acts and the literature, the investigatory actions realised earlier generated by system new knowledge and conclusions.

The help of computer technologies: dis.... kand. jurid. Sciences. Volgograd: VA the Ministry of Internal Affairs of Russia, 2003. 237 with.; JAkovenko I.N.modern a condition and prospects of use of information technologies in disclosing and investigation of crimes: avtoref. dis.... kand. jurid. Sciences. Krasnodar, 2005. 23 with.

217 Belkin R. S. Criminalistics: problems, tendencies, prospects. From the theory - to practice. M, 1988. With. 38.

However, in spite of the fact that in the present research we defend and prove efficiency of introduction in ugolovnoprotsessualnuju activity of information technologies and means, it is necessary to notice, that analytical activity of the inspector carries not only is intellectual-cogitative, but also creative character. Besides, we will dare to approve, as the intuitive approach also takes place to be in activity of the inspector. In this connection full replacement of analytical activity of the inspector with artificial intellect systems, certainly, is impossible, though it is impossible to deny, that use of such systems can facilitate a problem bolshego an information file, for example, on mnogoepizodnym to criminal cases.

The control element in criminal trial is shown in two aspects: first, in postadijnom construction of the most legal process, and secondly, at special institutes of the control which, in turn, includes: the departmental control, procurator's supervision and the judicial review. It is necessary to notice, that each of control kinds provides check of legality and validity of decisions and actions of officials at certain stages, having the specificity. So, the departmental control is carried out by the head of the organ of inquiry, the chief of agency in charge of preliminary investigation, but it is necessary to notice, that the subject of the control and the supervising subject in such situation has a general remedial interest that is caused by their general departmental accessory; in such situation it is possible to assume, that the similar control will not be the unconditional guarantor of observance of the rights of participants of criminal trial. In turn, procurator's supervision, being non-departmental and "separated" from interests of organs of inquiry, also has the remedial

218 Enikeev, Z.D.mechanism of criminal prosecution: the Manual / Z.D.Enikeev. - Publishing house Bashkirsk. Un y. - Ufa, 2002. - With. 95-98.

The interest caused by association in the name of uniform body - Offices of Public Prosecutor - necessity of achievement of the purposes of criminal prosecution by means of accusatory interest which is the general with organs of inquiry. One more kind of the control - the judicial review is independent whereas vedomstvenno, remedially it is not connected with two vysheoboznachennymi control kinds. ved in this connection we are represented proved to approve, that in view of the special status of court by means of the judicial review probably widest maintenance of legality and protection of the rights and legitimate interests of citizens and legal bodies.

Thus, proceeding from the purposes and control problems, the information technologies used for the control of activity of officials and bodies, carrying out the criminal trial, it is possible to define as set of means, receptions and methods of processing and an information transfer, directed on optimisation of the organisation of control and supervising activity, and also promoting efficiency of interaction of the persons participating in criminal trial.

Absence is standard-legal regulation ugolovnoprotsessualnoj forms of use of information technologies in the form of the control it is represented "nezasluzhenno" disregarded the legislator. So, for example, use of the general specialised system by the head of the investigatory group created as item 163 UPK the Russian Federation, would allow to make more effective interaction of participants of investigatory group and to promote more transparent management and the control from its head. The mentioned ideas get a special urgency of necessity of legislative fastening in the light of that interdepartmental investigatory groups (or investigatory-operative groups) are frequently created. According to I.A.popova, the form of interaction of interested services of law enforcement bodies in the form of investigatory groups urged to provide: High level of the organisation of interaction of the inspector in which manufacture there is a criminal case, with other participants of investigatory-operative group, timely information interchange between members of group and efficiency of its realisation, criminal case investigation in as much as possible reduced terms, the adjusted planning of investigatory actions, operatively-search and

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Organizational actions.

It is similarly possible to assume, that presence of the general specialised system will have positive value and for conduct of investigation by group of investigators as item 223.2. UPK the Russian Federation, according to ch. 2 which the interdepartmental structure of participants also is possible - «officials of the bodies which are carrying out operatively-search activity can be involved in work of group of investigators».

Formation of materials of business not only in a paper kind, but also in the form of electronic criminal case, undoubtedly, will simplify item realisation

158.1. UPK the Russian Federation according to which restoration of the lost criminal case or its materials is made under the decision of the head of the organ of inquiry, the chief of agency in charge of preliminary investigation, and in case of loss of criminal case or materials during judicial manufacture - under the decree directed to the head of the organ of inquiry or the chief of agency in charge of preliminary investigation for execution. It, in turn, will allow not to resort to application ch. 4 items 158.1. UPK the Russian Federation namely not to release convicted in case on the lost criminal case has expired a holding in custody deadline.

I.A.investigatory's 219 Priests group as one of forms of a collective method of investigation of crimes: a modern condition and development prospects//the Bulletin of the Moscow university of the Ministry of Internal Affairs of Russia. 2013. № 3. S.119-124.

In summary it is necessary to notice, that effective application of information technologies for the control of activity of officials and the bodies which are carrying out the criminal trial, it is impossible if to be based exclusively on regulation by departmental certificates. Legislative fastening of supervising rules of an order of application of information technologies of the control is necessary. Besides, realisation of control powers of the public prosecutor at the statement of the bill of particulars (or the certificate) will be considerably simplified by introduction of electronic criminal case, and also Uniform automated informatsionnokommunikatsionnoj systems of Office of Public Prosecutor of the Russian Federation. Besides it, undoubtedly, that the available regulation of information technologies containing in gl. 45.1. And 47.1. UPK the Russian Federation, regulating manufacture in court of appeal and cassation instances, leaves many questions at pravoprimenitelja, that also demands the legislative decision.

Thus, it is possible to draw a conclusion, that high information technologies can give to participants of criminal trial possibility to satisfy the increased requirements. For successful introduction and use of modern technologies reforming of all system of the criminal trial is required. For this purpose, in our opinion, development of the criminal procedure legislation in following directions is necessary:

To create base rules and norms of work with uniform information system and to fix them in UPK the Russian Federation;

To expand limits of admissibility of evidence and occurrence of new sources of the fact sheet;

To expand the list of traditional investigatory actions, to develop additional guarantees of observance of legality by their manufacture;

To use computer systems at acceptance of remedially significant decisions.

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129 About a digital signature: Feder. The law from 06.04.2011 № 63-FZ (in red. From 23.06.2016): it is accepted gos. Duma Feder. Sobr. Dews. Federations on March, 25th, 2011: odobr. Federation Council Feder. Sobr. Dews. Federations on March, 30th 2011г.//Sobr. Legislations of Dews. Federations. - 2011. - № 15, item 2036; 2016. - № 26 (the Part I), the item

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A source: Medvedeva MARIA OLEGOVNA. the CRIMINAL PROCEDURE FORM of INFORMATION TECHNOLOGIES: the MODERN CONDITION And the BASIC DIRECTIONS of DEVELOPMENT. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2018

More on topic § 5. About prospects of reforming of criminal trial on the basis of introduction of information technologies:

  1. § 1. The Criminal procedure form of the information technologies used for the organisation of activity of officials and bodies, carrying out the criminal trial
  2. § 2. Features and properties of the criminal procedure form of information technologies in criminal trial of the Russian Federation
  3. § 3. The Criminal procedure form of the information technologies used for the control of activity of officials and bodies, carrying out the criminal trial
  4. § 4. Occurrence and the basic stages of development of standard regulation of information technologies in criminal trial of Russia
  5. § 5. Foreign experience of standard regulation of information technologies in criminal trial and possible variants of its use in the Russian Federation
  6. 4.3. Formation of new possibilities of consumption on the basis of information technologies
  7. § 4. Prospects of legal regulation of expert testimony in court in conditions sostjazatelnogo the criminal trial
  8. § 4. The elements of the criminal procedure form directed on maintenance of safety of information technologies
  9. § 1.2. The Criminal liability for false information granting in the criminal trial of the countries of continental Europe and the USA: historical aspect
  10. Concept of the person enquired to delivery for criminal prosecution, and the basis of its occurrence of the Russian criminal trial
  11. §1.3. Social conditionality of an establishment of the criminal liability for false information granting in the modern criminal trial of Russia, the countries of continental Europe and the USA
  12. § 2. The Criminal procedure form of the information technologies used for collecting, check and evaluation of evidence
  13. § 3.3. The special bases of clearing of the criminal liability (punishment) for granting of the false information dangerous to the criminal trial, under the legislation of Russia, the countries of continental Europe and the USA
  14. the Chapter II. The LEGISLATIVE REGULATION of the BASES of the CRIMINAL LIABILITY FOR GRANTING of the FALSE INFORMATION DANGEROUS TO the CRIMINAL TRIAL, In Russia, the COUNTRIES of CONTINENTAL Europe And the USA
  15. Prospects of perfection of the criminal legislation providing protection of the confidential information
  16. the Chapter III. DIFFERENTIATION of LIMITS of the CRIMINAL LIABILITY FOR GRANTING of the FALSE INFORMATION DANGEROUS TO the CRIMINAL TRIAL, In the LEGISLATION of Russia, the COUNTRIES of CONTINENTAL Europe And the USA
  17. the Chapter I. ISTORIKO-LEGAL PRECONDITIONS And SOCIAL CONDITIONALITY of the ESTABLISHMENT of the CRIMINAL LIABILITY FOR FALSE INFORMATION GRANTING In the CRIMINAL TRIAL of Russia, the COUNTRIES of CONTINENTAL Europe And the USA