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§ 1. Specification (modernisation) of the information approach to To understanding of criminal procedure proofs

Now the computerisation has reached general scales. Practically any field of activity of the person is connected with application of electronic and computing technologies. Exaggeration will not tell, that we live during an epoch of technologies.

They play the important role in formation, defence, dialogue and in many other things. Did not become an exception and crime control sphere. Since 1996, when (further UK the Russian Federation) has been included for the first time in the Criminal code of the Russian Federation the head about crimes in the field of the computer information, use of the information fixed on electronic carriers, has passed in the category of the routine phenomena.

It is obvious, that domestic legal science including the criminal trial science, cannot simply stand aside. Though for last years efforts of such experts as V.K.Lisichenko, N.A.Zigura, N.A.Ivanov, P.S.Pastuhov and others, criminal procedure and criminalistic sciences have far enough promoted "forward" in judgement of a role and a place of "the electronic information» in criminal trial, it is necessary to establish, that many criminal procedure questions of evidentiary value of the information presented in electronic form, remain opened.

As the information (along with its electronic form) is the key concept of our research, is necessary to be defined with a methodological basis. The so-called information approach applies for that in the criminal trial as in many respects thanks to this approach the information aspect of criminal procedure activity has been allocated. Thereupon the above-stated approach becomes a subject of our analysis. The purpose of our analysis consists in search of the answer to a question, whether allows treatment of the information and information processes to open a place and an information role in the electronic form in criminal procedure proving. Besides, it is necessary to specify terminology, considering, that now neither scientists, nor the legislator, pravoprimenitel and were not defined, how to name the data fixed on the electronic carrier.

ugolovnoprotsessualnyh proofs remedial proving was identified by many representatives of the Soviet school of the theory with information process. As a whole such approach has remained and nowadays. The In itself information approach in criminal trial represents itself as a component of the general information approach in knowledge. It is directed on revealing, the analysis and research of criminal procedure proving from a position of an information component. From a position of the information approach criminal procedure proving in its substantial aspect should be considered «as process of extraction, accumulation, processing, transfer and use of the evidentiary information» [13 [14].

Application of the information approach to criminal procedure knowledge has arisen approximately in the mid-seventies when in a society there was a splash in interest to cybernetics as to a science about the general laws of reception, storages, transfers and transformations of the information to difficult operating systems. As one of founders of the information approach in the domestic theory of criminal procedure proofs - V.J.Dorokhov wrote, search of carriers of the evidentiary information, their fastening, check and an estimation represent proving process on criminal case [15].

A.V.ratteen connected detection and reception of the information with collecting of proofs [16]. A.I. Cowards specifies in proving as on information process, that is process of reception, storage, transfer and processing

Information with a view of the permission of problems of legal proceedings. According to S.A.Shejferu, collecting of proofs is not that other, as «search, perception and fastening of the evidentiary information».

For the present period it is possible to establish, that the information approach, as a whole, is prevailing among representatives ugolovnoprotsessualnoj and criminalistic sciences. Many experts allocate, first of all, information processes of criminal procedure knowledge [17 [18] [19]. For example, A.R.Belkin understands proving as reception of the information on elements of the ultimate fact [20].

However than tsenen for a remedial science an information campaign? And whether to become capable it the methodological base to our research of the information presented in electronic form? It is possible to agree with M.V.Lapatnikovym that the information approach has introduced following innovations in a criminal trial science: an explanation of essence of process of proving as information process: reception, accumulation, storage, an exchange, perception, an estimation of the information subjects of proving; modernisation of the materialistic theory of reflexion with reference to needs of an explanation of knowledge of criminal trial besides in a context of concept of the information; the offer of information model of proofs according to which the proof represents unity of the information and its carrier (the fact sheet and their source); distinction of informative levels of remedial and some not remedial methods of knowledge [21].

In our opinion, key value has that thesis, that the information approach has provided application of the general scientific theory of reflexion to ugolovnoprotsessualnoj the validity. All the rest - revealing of information aspect of the proof, criminalistics and criminal trial differentiation, etc. - costs on the base of the theory of reflexion. Actually, we consider, that as a whole the information approach is not that other, as criminal procedure interpretation of the theory of reflexion with a stress on a cybernetic component. The reflexion theory allows to understand, how there is an information and how it co-operates with the learning subject (the inspector, the judge).

As is known, the reflexion theory being, as a matter of fact, private display of dialectic materialism, leant against following ideas:

1. Reflexion - property of all matter consisting in "transfer" by object - by the original outside of qualities inherent in it and properties (signs characterising them).

2. Reflexion is a product of interaction of two (and more) material systems.

3. All objects co-operating among themselves on their role in the course of concrete interaction are subdivided into two classes: on the objects transferring them of property, and the objects reflecting properties of influencing object.

4. Reflexion as the carrier of the data displayed in it about properties and signs of displayed object in the knowledge certificate can carry out function of a source of data on it.

5. The information is understood as data which characterise object of knowledge and can be allocated by the learning subject in display of cognizable object [22 [23] [24] [25].

One of consequences of application of the theory of reflexion in criminally - remedial science was the understanding of proving as objective process of search, revealing of fastening and subsequent use by the learning subject of data on a crime - so-called traces. As specifies N.S. Fishermen, the Soviet science aspired to explain a reality of a life, practice, the historical truth through concept of the fact, the inseparable law from concepts, trues, an objective reality. From here there was a known thesis that there are no objective obstacles to disclosing of any crime, and only subjective obstacles can prevent it. Within the limits of the information approach it is possible to present process of knowledge in the form of the following scheme: event of crime ^ a trace (information) ^ the learning subject (the inspector, the investigator, the judge) ^ the proof. The subject of knowledge of this scheme acts only as one of transfer links in elimination of uncertainty (entropy) concerning event of crime. From this point of view the inspector only the receiver of the information signals, which problem correctly to apprehend it, and then to broadcast it for other subjects of proving. The treatment of the proof as fact was radical expression of this position. Further, as we know, this position has been scarified, and as the proof began to understand, mainly, unity of data on the fact and the remedial form of fastening of the given data.

Nevertheless, supporters of the Soviet school of the theory ugolovnoprotsessualnyh proofs continue to insist that even if the inspector or court and do not perceive directly that happens in the objective validity, and do it by the mediated image, that is by means of proofs, the principle of reflexion is all the same carried out by the subject of object [26 [27] [28].

Thus, the information approach, recognising, that the information is means with which help the subject of knowledge establishes the fact, nevertheless, approves, that interaction of the last and an objective reality has character of reflexion, and reflexion has objective character. From here the understanding of the information as messages, a signal having the consumer and capable to satisfy its this or that requirement naturally follows, that is to carry out certain function. Or in another way speaking, the information is data on the facts concerning the ultimate fact; these data gather, made out and used by the authorised persons in the form defined by the law.

We consider, that the information approach in criminal trial has unreasonably actually excluded from process of knowledge of the subject. The given subject acts as a certain transfer link, impersonal smychkoj which main objective consists in revealing, fastening and mastering of data on criminal event. The informative scheme of reflexion in consciousness of the subject of an objective reality assumes, that the consciousness learning is only a certain blank leaf in which as if in a mirror external world events are reflected. For our research it is important, that the question on understanding of the information in a context of the information approach has the importance not only in the methodological plan, but also in private aspect of the so-called electronic information. We consider, what exactly the dialektiko-materialistic base of the information approach and others related to it of theoretical designs (the reflexion theory, the objective truth concept in criminal trial) has in many respects caused operating is standard-legal regulations of evidentiary use of the information presented in electronic form.

The thesis of the information approach that the subject of proving deals not simply with proofs, but also with the information constituting the maintenance of this proof, in our opinion, it is necessary to deny. To deny not for the reason that to us it is not pleasant, and in view of last data natural and the humanities, first of all kognitivnoj to psychology, pozitivistkogo directions in philosophy, etc. We consider a post - that classical pertseptivnaja the knowledge model should be subjected critical judgement. The knowledge carries appertseptivnyj character, that is perception of an external world the person is caused by features of mentality, experience by a condition of the person, that is as a whole consciousness.

During general hobby for cybernetics affirmed, that the information approach can be fruitfully used only when its restrictions are accurately realised. According to M.M.Mihienko's opinion, use of the theory of the information for essence disclosing criminally - remedial proofs can be fruitful only in the event that not to forget about legal nature of the specified proofs. We will add, that it is necessary not to forget about apertseptivnoj to the proof nature, as the signal transformed by consciousness of learning subject.

The subject of knowledge is not simply repeater of the received information. [29 [30]

It - a key link in knowledge; it the subject of reche-mysle-activity comprehending the information and forming of it «legal means» substantiations of the decisions. In it us assures kognitivnyj the approach of proving. This approach serves in remedial aspect ideologo-methodological obosnova -

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niem the so-called new theory of proofs.

The new theory of proofs closely connected with a name of professor A.S.Aleksandrova, differently approaches to criminal procedure knowledge. As its ideological basis serves kognitivnyj the approach. Last makes a start not from the faceless subject, mehanisticheski and passively reacting and perceiving a reality, and from actively operating learning person. This person not simply perceives, but "drops" the apprehended information through some kind of perception filters: social, skilled, religious, ideological, etc. the Traditional scheme of knowledge "subject-object" thus is reviewed. Instead of it the scheme "subektstruktura-object" is offered. In this scheme the knowledge is caused by the subject, and the subject knowledge.

Though presence of an objective reality at such approach is not denied, as gnoseology affirms reljativizm. Reljativizm it is proved by that the learning subject perceives only that is defined by its activity directed on the adaptation to this reality. As marks A.S.Alexander, the knowledge of the reality phenomena is not their reflexion in consciousness, and is faster, reconstruction, its "understanding" is adequate to requirements of a survival.

Subjective interpretation of concrete event makes impact more on its estimation. Each person differently estimates a situation, and with - [31 [32] [33] is responsible, comes to the conclusions differing from conclusions of other person. The learning subject it not a repeater, and the interpreter of an objective reality. Its conclusions about an external world are under construction, including on the basis of the personal experiences, experience etc. Owing to it the same situation is differently realised and from it different conclusions become.

Conditionality of perception assumes otverzhenie absoluteness of knowledge of a reality. Almost any knowledge of a reality approximately as it is deformed kognitivnymi by structures of the person, and this distortion has objective character.

From here A.S.Alexander comes to conclusion that subjects of proving in criminal trial operate not with "information", it is impossible to identify the proof with "information". In its opinion, the proof is the information, which sense prointerpretirovan the subject (process) on defined kognitivnoj models. The proof is an information plus model, investigatory or sostjazatelnaja. The certain legal form creates installation on knowledge: the subject operating within the limits of this form, interprets data of the feelings in a certain context, as means of achievement of the purpose. The knowledge of an objective reality exists in consciousness of the subject of proving, as activity, not as raw data, but in essentially transformed form, i.e. in a kind kognitivnyh structures, main of which legal - remedial. Therefore the criminal procedure proof, as the knowledge selected, prointerpreted, «suitable for ispolzova -

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nija there is"a procedural knowledge».

It is necessary to notice, that a number of experts still earlier subjected to the proved criticism of an extreme measure of the information approach. So, A.V.Agutin notices, that this approach «is not the universal"master key", capable to resolve any scientific problem and is not a unique scientific method is - [34]

Followings of problems of criminal procedure proving as does not consider influence of psychological, moral, social, physical factors [35 [36] [37]. As P.S.Pastuhov writes, "objectivity" of the inspector, its identification with a certain ideal subject of knowledge is the illusion eating stereotypes of investigatory ideology, like such, as «function of preliminary investigation», «a principle vsestoronnosti, completeness, objectivity of preliminary investigation» and so forth. This conditionality of the subject of knowledge is clearly shown that sometimes the same proof is interpreted by each of the parties to own advantage.

Thus, it is necessary to deny the information approach (in it «the Soviet recension») as reducing process of proving to information processes under the scheme of reflexion of an objective reality in consciousness of the subject. As the proof maintenance data on the criminal event reflected in an external reality as it approves the information approach, and interpretation of received data according to those parametres which cause the subject of proving (political, departmental, moral, emotional, etc.) act not.

In unproductiveness of the information approach, and teoretiko-methodological concepts closely connected with it (theories of reflexion, an objective truth) we extrapolate our belief not only on all criminally - remedial reality, but also on possibility of use as proofs of the information presented in electronic form. We recognise that the information approach is not capable to give an explanation to a phenomenon of digital technologies in information representation. At the best, we will speak not about high-grade "proofs", and about some kind of the information appendix to the report of investigatory action constituted by the inspector.

In this sense it is impossible to disagree that modern ugolovnoprotsessualnaja the doctrine is not ready to adaptation of results of information revolution. We base the given thesis that the reality generated by electronic technologies, for a long time already was beyond usual display of scientific and technical progress. It is connected with rapid development electronic, including digital technologies. For the present period electronic technologies have got into all spheres of our activity: a science, culture, formation, law-enforcement sphere, etc.

Society information is not the abstract term of the probable future, and global public process occurring (already) now. Its essence consists that as a defining kind of activity in the field of a social production processes on reception act, to processing, storage and information use. The key sign characterising these processes - they occur on the basis of electronic technologies. Modern manufacture of material and other blessings generally cannot function with due efficiency without use of a large quantity of the information. Here again the universal technical device is the computer. If in 20th century almost any intellectual product has been doomed to investment in the printing (paper) form today the printing form more and more fades into the background.

In many developed countries including in our country, information covers almost all branches of economy. On the agenda the attention to the question on electronic control introduction is brought. So, in Russia in 2008 Strategy of development of an information society in the Russian Federation has been accepted. The given strategy only in sphere of increase of efficiency of the government and local government, interaction of a civil society and business with public authorities, quality and efficiency of granting of the state services assumes realisation of following naprav - [38 [39]

leny developments of an information society: maintenance of an effective interdepartmental and inter-regional information exchange; integration of the state information systems and resources; increase in volumes and quality of the state services given to the organisations and citizens in electronic form; perfection of is standard-legal maintenance of standardization and administration of the state services; perfection of system of granting of the state and municipal services to citizens and the organisations.

In 2014 the Governmental order of the Russian Federation from 15.04.2014 № 313 «About the statement of a government program of the Russian Federation« the Information society (2011 - 2020) »[40], setting as the purpose improvement of quality of a life of citizens on the basis of use of information and telecommunication technologies is accepted. One of subroutines within the limits of the above-stated strategy is called« the Information state ». Among problems of this subroutine improvement of quality of granting of the state services by their transfer in an electronic kind is allocated; development of special information and information-technological systems of maintenance of activity of public authorities, etc. the Given problems is supposed to reach by 2020 by substantial increase of a share of electronic document circulation between public authorities in total amount of interdepartmental document circulation; Shares of public authorities and the local governments having speed of data transmission through an information-telecommunication network "Internet" not less 2 Mbit/sek, in the general number of the surveyed organisations of public authorities and local governments; shares of public authorities and the local government, using in accounting year of means of a digital signature.

The steady tendency in a modern society is the increase in number of physical persons, the organisations using electronic technologies. All it should affect the right. Here again it is necessary to note progressiveness of civil law, as the branch serving among other, enterprise activity. And in this sense the changes made for last years in the Civil code of the Russian Federation look remarkable, allowing to speak about making deal legal regulation in the electronic form. So, according to item 2 of item 160 GK the Russian Federation, at fulfilment of transactions facsimile reproduction of the signature by means of means of mechanical or other copying, and also the electronic digital signature or other analogue of the sign manual (item 2 of item 160 GK) is admissible to use. Use of the specified means at fulfilment of transactions is supposed in cases and in an order, statutory, other legal acts or the agreement of the parties. The contract can be in writing concluded by drawing up of one document signed by the parties, or by an exchange of documents by means of the post, cable, teletype, telephone, electronic or other communication allowing authentically to establish, that the document proceeds from the party under the contract (item 1 of item 434 GK the Russian Federation).

Information and remedial branches grazhdanskopravovogo has not bypassed a direction. In arbitral procedure the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation from November, 8th, 2013 № 80 «About the statement of the Order of giving of documents in arbitration courts Russian operates Federa -

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tsii in electronic form »which provides procedure of giving of documents in arbitration courts in electronic form. General jurisdiction courts though here again there are certain motions lag behind in this process. It is possible to establish, that the civil law and partly civil procedure naibo - [41 [42] lee have operatively reacted to information processes. Basically it it is no wonder, considering, that these branches regulate, first of all, economic processes. Business behind criminally-legal sphere. It is the note it is true; as spheres of grazhdansko-remedial and criminal procedure regulation constitute the uniform legal system, and sooner or later the legislator will reflect on necessary changes.

In connection with the aforesaid it is necessary to pay attention to perspective working out in manufacture sphere on affairs about administrative violations. In 2016 the beginning was necessary to special supplement introduction on smart phone "Spot" [43] which is developed the Ministry of Internal Affairs for fixing of infringements PDD on the basis of complaints of users [44]. Any interested person who is registered on a portal of state services can download the given appendix. The program containing in the appendix "Spot" allows the user to remove video with a binding to co-ordinates and an offence exact times. Thus the user cannot change the finished shooting videorecording in any way. In case of success of the given undertaking it is easily possible to predict, that use of the such device can become means of fixing and events of crimes and to be used as proofs on criminal cases.

One of significant consequences of information for administrative sphere is the question on transition to electronic document circulation. Above we already marked, what value is given to transition to electronic document circulation by Strategy of development of an information society in the Russian Federation. It is interesting, that we already have legal concept of the electronic document. According to point 11.1 of article 2 of the Federal act «About the information, information technologies and about information protection» [45], the electronic document - the documentary information presented in the electronic form, that is in vi - de, suitable for perception the person with use of electronic computers, and also for transfer on informatsionnotelekommunikatsionnym to networks or processings in information systems. It is remarkable here and maintenance of article 10.11 and 10.12 given laws which establish duties of the organizer of distribution of the information in a network "Internet" and features of distribution blogerom the popular information.

All aforesaid concerning a role and a place of information of sphere of legal regulation visually illustrates our thesis that information occurring on eyes should affect, both the doctrine of the domestic criminal procedure, and on the legislation and pravoprimenitelnoj to practice. As a whole, if to try to generalise directions of influence of process of information on criminal trial it is possible to speak about following areas of interosculation: creation of preconditions for introduction of electronic document circulation with possible prospect of replacement with it paper - remedial documents, first of all reports of investigatory actions.

It is necessary to mention in this sense the short stories brought in FZ «About HORDES», departmental certificates of the Ministry of Internal Affairs, FSB and other special services about which we will speak further - in the first paragraph of the second chapter.

Especially it is necessary to tell about influence of a network the Internet on a reality ugolovnoprotsessualnogo provings. It is a question that a network the Internet gives huge possibilities under the information claim. And - equal possibilities to all users. If in criminal procedure proving subjects of knowledge not equal among themselves on the Internet the full equality reigns almost. It is especially important in a context eliminatsii monopolies of the state for access to the information. There is in certain degree an equation between remedial and not remedial means of reception of the electronic information.

Thus, influence of information on the criminal trial is traced in following directions: 1) transition to electronic document circulation; 2) possibilities of a network the Internet on state monopoly blasting on access to the information; 3) the information presented in electronic form, as object, a subject and the crime instrument.

From this it is visible, that information revolution occurring before our eyes should mention criminal procedure proving. And to mention not only in practical sense, but also methodological. Considering, that earlier we have subjected to criticism the information approach created by the Soviet remedial school, there will be logical a critical relation to inkvizitsionnoj to the form of process and the objective truth concept. As the detailed analysis of these two major fundamental concepts leaves for a subject of our research, we, basically, will concentrate on proving. Nevertheless, accurately and unequivocally to be defined in remedial predilections, we will state our relation to above-stated kontseptam.

Going into details till now ceasing discussion concerning necessity of introduction for process of institute of an objective truth, we will note the following: proisshedshaja scientific and technical revolution has actually given to usual citizens huge possibilities, including on information reception. Yes, the monopoly for violence still remains in state hands, but the monopoly for possession is washed away by the information. Also it is objective process. Now almost any person having possibility of application of elektronno-technical devices, can actually create the information which can be used further as the proof. It is clearly visible to that in court is a lot of cases of use as proofs of records from a mobile phone, videoclips from a video hosting http://www.youtube.com/etc.

The official monopoly in proving - is one of corner ideas of investigatory process. In investigatory process by the proof is only those data which are received by the authorised officials and at observance of corresponding procedures. That all other participants of process - only the information which can become subsequently the proof collect. In 60th years of 20 centuries M.S.Strogovich approved, that while the proof is not fixed remedially, it is impossible to approve, that dock -

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zatelstvo really is, that is proof presence depends on activity, the decision of the subject of proving [46 [47]. Is Even more categorical in S.A.Shejfer's this opinion, which approved what to recognise object as the proof, to enter it into process is an exclusive prerogative of body of preliminary investigation, the public prosecutor, court. In its opinion, the decision on familiarising of a subject or the document to business represents finishing moment in formation of the proof [48].

Within the limits of an investigatory paradigm other experts, already during the modern period investigating a problematics of computer criminally - remedial proofs argue also. So, N.A.Zigura comes to conclusion that presented by participants of process or other persons the computer information «becomes the proof», only after the inspector recognises as its carried and admissible, and it will occur after reproduction, survey, executings a process-verbal of survey and will be satisfied with the petition for familiarising of the carrier of the computer information to business [49].

And in this sense ideas stated in the remedial literature about so-called «free proving», are, though also a step forward, but besides in the tideway of an investigatory paradigm. Supporters of this idea suggest to collect, check and even to estimate collected by all participants of process of the proof according to requirements of the criminal procedure law. And final judgement about use of proofs the public prosecutor, the inspector, the investigator [50 [51] should accept not only court, but also. V.A.Lazareva's rights that, representations about the proving, developed in conditions nesostjazatelnogo, prevent to see many scientist modern realities of counteraction criminally -

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sti

Meanwhile, with development of electronic technologies position varies. Preservation of judicial-investigatory monopoly for collecting of proofs has lost sense. Otherwise, it is necessary to forbid access to the Internet and using mobile phones and another devices. It is extremely improbable, that we to it will come. As P.S.Pastuhov fairly marks, use of progressive technologies and means in an out-of-date order of proving cannot be quite effective. Restrictions inkvizitsionnogo remedially-right order will inevitably reduce potential of electronic proofs », possibilities of their use. In particular, it concerns also abusings from law enforcement bodies at uncontrolled manipulations with the electronic information, including with the help of the"" experts, experts [52].

How much existing investigatory technology of proving on criminal cases is adequate to modern conditions? In our opinion, it looks a little archaic in the light of, for example, such projects of our government, as «National technological initiative» where the arrogant is put

Problem on creation of standard base under requirements innovative, vyso -

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kotehnologicheskogo country developments.

It is obvious to us, that sooner or later occurring nauchnotehnicheskaja revolution will force the legislator to refuse the fallen asleep, out-of-date forms of the law of evidence. Availability of the information, its possibility of transfer on huge distances, its persuasiveness (the videoclip of event of crime published on the Internet can be much more convincing than witness's testimonies about which knows only a narrow circle of people), and it dictates necessity of the new approach to understanding of basic concepts of the criminal procedure. For today of a reality are that, that this or that event can be fixed on the technical carrier any person then thousand will be acquainted with result of this fixing, hundred thousand, and sometimes and millions people. Place videorecording dorozhnotransportnogo the incidents, carried out not in remedial frameworks, and contradicting the scene record of search, can have huge influence on a total conclusion of the investigation or vessels. It is possible to argue as much as necessary about neprotsessualnosti the given videorecording, that it not the proof but only the information which can become subsequently after remedial registration the proof, but it is obvious, that ignoring of this record by investigatory agencies and court will contradict a known legal principle of justice «yes other party» (audiatur et altera pars) will be listened also, that will not allow to speak about justice, let alone doubts in their impartiality. It is rather probable, that soon we will come to that many crimes will be made that it-lajn is called.

Even if to recognise, what to speak about unconditional introduction of electronic document circulation with replacement of the paper carrier while prematurely reception of access from the majority of citizens to huge possibilities of a network the Internet on state monopoly blasting on access to the information [53] is a reality. Information as one of displays of scientific and technical revolution, yet has not rendered radical influence on ugolovnoprotsessualnoe the right, but we are assured, that sooner or later it happens. Now it occurs in private law branches, and here branches of the public law owing to the conservatism show slowed more down reaction. So, the operating civil law allows to use means almost in any public places, establishing, that is not infringement of secret of a private life of the citizen (paragraph 2 ч.1 item 152.2 GK the Russian Federation). pravoprimeniteli quite often introduce electronic technologies, not waiting reactions of the legislator. So, in 2012 changes have been made to the decision of Plenum of the Supreme Court of the Russian Federation from 05.03.2004 № 1 «About application by vessels of norms Ugolovnoprotsessualnogo of the code of the Russian Federation» which have allowed to inform to vessels participants of session of the court by the SMS-NOTIFICATION [54].

Whereas the remaining monopoly of the inspector on oprotsessualivanie the evidentiary information assumes an inequality of the parties in proving of the facts. Deprivation of the party of protection is high-grade to represent the proofs actually gives to the charge party the big advantages as it can show only that part of the information fixed on the electronic carrier which to it is favourable. Protection in this sense depends on favour of court; and all yes anything, if not display of a so-called accusatory bias at some representatives of the judicial authority. From our point of view, the investigatory format is initially programmed that as a result of informative actions of the party of charge on "exit" the proof turns out, instead of easier information, as from protection. The parties are a priori laid down in unequal conditions that is even more aggravated with displays of an accusatory bias. In investigatory process by the basic, main subject of knowledge the inspector acts, and procedure of knowledge occurs to and out of court. Alas, but the criminal trial working model, generally, ignores the protection party, represents dialogue the inspector - the public prosecutor - the judge.

Supporters of investigatory ideology believe, that transformation of the information received before excitation of criminal case, to "proofs" occurs by means of manufacture by body of preliminary investigation of investigatory actions [55]. As a result of fastening and the description of properties (characteristics) of the proof in a statutory order (that is - in the investigatory action report) [56 [57] [58], there is a formation "ugolovnoprotsessualnogo" proofs. Evidentiary value of the received information consists in due observance of procedure of its reception: « The major sign of the proof is its admissibility, observance of statutory procedure of reception ». And monopoly for its"observance"organs of inquiry possess exclusively. It turns out, by the admissible evidence does the information the decision of the body leading criminal case. The admissibility becomes a control facility proving from the party of"competent"state body: only it is authorised to make« procedural knowledge »- the admissible proofs recognised as legal means of an establishment of legally significant facts on business.

As truly writes V.V. Terekhin, in investigatory process the legal standard of admissibility of evidence fixes an inequality between the official subject of proving (the inspector, the judge) and informal (convicted, its defender-lawyer), provides monopoly of the judicial-investigatory power of the state for an establishment of "objective truth" [59].

Investigatory process actually puts in the centre of system of criminal justice of the inspector. Though it is formal UPK the Russian Federation speaks about independence of court, about a spontaneity of research of proofs etc. as specifies S.A.Shejfer though judicial authority strengthening in a certain measure and has limited powers of bodies of preliminary investigation, nevertheless, norms of the new Code of Criminal Procedure of the Russian Federation do not give the bases to call into question the fact admitted by much lawyers: the evidentiary base necessary for correct adjudication, is formed, basically, on preliminary investigation [60]. In court there is a research of the proofs collected on preliminary investigation [61].

In turn V.A.Lazareva pays attention on «amazing solidarity of inspectors and judges in an estimation, both proofs, and material breaches by inspectors of an order of manufactures of investigatory actions at reception of proofs. Judges shut eyes to these infringements, interpreting them as admissible and not undermining values of justice, putting above human rights is false understood interests of a society (government). Judges undertake all possible measures for neiskljuchenija the doubtful proof not to weaken accusatory base and not to complicate removal of a verdict of guilty [62].

Introduction of electronic technologies as we consider, will allow to counterbalance protection and charge possibilities in a certain measure. Naturally, only till the certain moment as protection does not possess the right of application of coercive measures. However technical possibility to fix this or that event, action «here and now», and in the subsequent to legalise this fixing in the conditions of fair proceeding allows de - to design investigatory installation on monopoly of the official (investigatory-judicial) power for true. The investigatory model historically is not capable to open informative potential of information technologies to the full. Otherwise, we risk to lose possibility to compensate an actual inequality of the parties, possibilities to undermine out-of-date investigatory monopoly for proof formation.

Besides "technical" discrepancy investigatory (inkvizitsionnoj) models to realities of a modern epoch, our critical relation to it is caused by ideological and practical reasons. As is known, for an ideological substantiation of investigatory process the objective truth concept is used. Above we already marked incompatibility of the new theory of proofs with an objective truth. Within the limits of postulates of the new theory of proofs, the court should to aspire learn not an objective truth, and to find the optimum decision in the set circumstances, such decision which consolidates the nation on feeling of a generality and hardens social structure [63]. It is necessary to agree with S.A.Pashin that in legal proceedings we speak not about the validity, and about validity; "objective truth" is in general a philosophical category which is not present a place in the law [64].

As to practical reasons in this occasion it is stated a lot of criticism to the address of the concept of an objective truth. The same A.S.Alexander recognises that the "objective truth" concept is co-ordinated to authoritarianism; it is the concentrated expression inkvizitsionnoj ideologies [65]. V.L.Budnikov also in process sees ideological value of the concept of an objective truth in returning to neoinkvizitsionnym to designs and usages of the Soviet criminal trial [66]. The impressing list of "sins" of an objective truth results also G.M.Reznik, main of which justification of an actual inequality of the parties in proving [67].

Even if to assume, that G.M.Reznik, S.A.Pashin, A.S.Alexander and other "liberals" owing to the ideological sights, trades etc., exaggerate negativity of the estimations be the aforesaid truly only half or less, it nevertheless forces to search of accessible alternatives inkvizitsionnoj to the process form. Alas, but the theory of proofs in the name of the majority of the researchers a little than can help here. Moreover, the developed situation in many respects is caused by those stereotypes which are extended in the theory. As truly writes V.V. Terekhin, many domestic scientists the terminological innovations in the theory of proofs expressing investigatory ideology, only complicate a problem. And it would be necessary to refuse the investigatory theory at all [68].

As opposition of investigatory model the model sostjazatelnaja acts. To estimate appeal sostjazatelnoj models from a position of an effective utilisation of digital technologies, it is necessary to be defined that this model in relation to proving means. As we already specified, as essential lines of the investigatory form the following acts:

1) investigatory-judicial monopoly for proof formation; 2) process of formation of the proof occurs to and out of court; 3) the protection party actually is not admitted to proving, acting only as the applicant at the remedial opponent; 3) the defining subject of an establishment of true is the inspector.

On the contrary, essential lines sostjazatelnoj models are the following: 1) proof formation is carried out by both parties;

2) process of formation of the proof occurs mainly in court; 3) the protection party in proving if does not act on equal with the party of charge [69 [70] [71] [72] possesses considerably the big remedial possibilities; 3) the defining subject of an establishment of true is the court which decides difference with participation of the parties and establishes the facts.

As essence of adversary procedure the certain scheme or technology of proving in which centre there is a court as ravnoudalennyj from the parties the arbitrator acts, and before it compete in its belief of the party of charge and protection. From here follows, as many experts believe, necessity of division of functions of charge, protection and adjudication between court and the parties. A.V.Smirnov recognises that to speak about process as about sostjazatelnom, at it should be present three sign - presence of the parties separated from each other, their remedial equality and independence of the court removed from the parties. If these signs are present, it is possible to speak about legal proceedings model as about sostjazatelnoj. As a whole, this position razde -

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ljajut and others known protsessualisty.

If in investigatory process the technology of knowledge can be expressed in a word-combination proving-search adversary procedure is mediated by proving-dispute. It means, that though the problem of crime control, data which have been found out and fixed by them is still assigned to criminal prosecution bodies, are not the high-grade proof, and the initial information which will find evidentiary value after research (revealing of its sense) in court by rules sostjazatelnoj procedures. In turn the protection party also has the right to collect and fix the information which also should pass judgement and (or) "clearing" in court within the powers. Consideration and the permission of criminally-legal dispute should be carried out only on a basis directly and orally investigated by court with participation of the parties of data. It does not mean, that it is necessary to reject pre-judicial manufacture as something become outdated, unnecessary. Eventually, without proving-search the majority of crimes, including the most socially dangerous cannot be opened. However in the head of a corner adversary procedure puts judicial knowledge where the parties are formally equal in rights, and have remedial possibilities on upholding of the position at proof research.

On this special attention turns the European Court under the human rights which understanding consists that the principle of equality and competitivenesses of the parties demands «fair balance between the parties», reasonable opportunity to present the position on business in conditions which do not put it in essential less benefits - should be given each party

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noe position in comparison with the opponent.

Thus, the proof, including having the maintenance the information presented in electronic form, gets the legal status only after research legal proceedings. The party which has received in the order videorecording of this or that event, concerning a crime, will act not as the applicant at remedial about - [73] tivnika as it is realised in domestic investigatory process, and the intercessor before independent court. And it more corresponds to occurring information. But even in this case there is no full equalising of possibility of the parties, on what we pay attention of opponents of supporters of investigatory process. Nobody selects at possibility charge operativnorozysknoj activity, the right to manufacture of the investigatory actions limiting constitutional laws of citizens, at last, the right of application of measures of remedial compulsion. All it remains at the inspector, but as indemnification for such objective inequality granting serves the counter party to challenge the presented data in the presence of the independent arbitrator (vessels).

Certainly, pure competitiveness, as well as pure sledstvennost, is abstraction. We will not find the such in a reality. Nevertheless, depending on what beginning - investigatory or sostjazatelnoe, prevails, we can speak about concrete type of legal proceedings. It is especially necessary for understanding, considering, that supporters of search process often enough appeal to that the Russian criminal trial is process mixed in which are simultaneously combined search and principles of controversy. Though, as a rule, it is a question of competitiveness as about a process principle, they believe, that if the principle does not extend on all stages and it is impossible to say that domestic criminal trial is constructed on sostjazatelnoj to the form. And it, in spite of the fact that also the Constitution of the Russian Federation (ch. 3 items 123) and Ugolovnoprotsessualnyj the code (the item 14) order to resolve the basic question of criminal trial - guilt/innocence of the person by results of proceeding, and conclusions of preliminary investigation specifies to estimate as not having a binding force for court. So, according to V.I.Zazhits-of whom, founders UPK the Russian Federations have obviously hurried, recognising competitiveness a principle of all criminal trial. Our criminal trial is mixed. Competitivenesses are not present and cannot be on preliminary investigation as it is characterised by inquisitorial principles. In sostjazatelnoj the basic question of criminal case - about attraction as convicted - in essence is authorised to the form of the criminal trial court with participation of the parties. Such procedure is called as preliminary consideration of criminal case in court. And on UPK a question on attraction of the person as convicted the inspector resolves the Russian Federation independently, without someone's consent to that or the permission. Already one this essential circumstance does not allow to speak about any competitiveness. With reference to a stage of excitation of criminal case it is still more obvious [74 [75].

This position is in many respects closed with understanding of competitiveness during the Soviet epoch. So, in the decision of Plenum of the Supreme Court of the USSR from 05.12.1986 «About the further consolidation of legality at justice realisation» it has been specified what to resolve affairs it is necessary «in exact conformity with requirements of the law in the conditions of publicity, a spontaneity, competitiveness». The classic of the Soviet remedial science M.S.Strogovich has formulated a position according to which competitiveness is a principle not all Soviet criminal trial, and a principle of construction of proceeding in which charge is separated from the court solving of business and in which charge and protection are carried out by the parties allocated with the equal rights. Thus the court is authorised to supervise over process, actively to investigate proofs and to make the decision on business [76].

But here it is necessary to understand accurately, that the Soviet competitiveness was a camouflage inkvizitsionnogo process and to speak about the Soviet legal proceedings as about sostjazatelnom is an oxymoron. The above-stated treatment of competitiveness actually did not answer realities of the Soviet criminal trial on one of points. Collecting and formation of proofs osushchestvlja - an elk on pretrial stages by bodies of preliminary investigation, and the defender was supposed only already at the closing stage of investigatory knowledge. The defender and convicted possessed the limited circle of laws of procedure, charge was shown by the inspector, and actually was not simply the demand of the state for impeachment, and the certificate bringing to criminal liability. Conclusions of preliminary investigation in overwhelming majority of cases predetermined proceeding as the court was recommended to search in common with the parties for true. The court occupied position not the arbitrator, and one more (together with the public prosecutor) verifying department in relation to the inspector. The court and criminal prosecution bodies had a same purpose - crime control which quite often pathosly was called as true search; that, in general, at all did not change its investigatory essence. In this sense it is no wonder, that for the Soviet concept of competitiveness the justification of activity of court, its initiative in correction of errors and defects of preliminary investigation was characteristic. A number of remedial "levers" - institute of returning of criminal case on additional investigation, an auditing principle of the appeal in cassation and supervising instances for this purpose intended. About any distribution of remedial functions of speech did not go. In this sense of the right of V.A.Lazareva that competitiveness, first of all, means court freedom (from the accusatory power) in evaluation of evidence and decision-making.

As approves G.M.Reznik, the essence of search process consists in connection of three main remedial functions (charge, protection and the criminal case permission in essence) are not severed, and consolidated in activity of a certain competent state body (judicial, investigatory). Under such inkvizitsionnuju the model of criminal trial by the Soviet legal science was brought theoretical base: the Soviet court (inspector) unlike a drill - [77] zhuaznogo searches for an objective truth. It is remarkable, that the Soviet defender affirms as the same book in A.Tolmachyov's foreword to the edition of 1960, that, protecting legitimate rights convicted, should not transform the

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Activity in crime protection.

The operating mixed model of domestic criminal trial, in our opinion, cannot provide to the right degree any more a regulation of the changed public relations. Even at standard level. At level of realisation position is even worse, as it is possible to establish almost full failure so-called sostjazatelnoj revolutions of 2001. Alas, but acceptance in 2001 of the new Code of Criminal Procedure, has not finished the period of democratic reforms in criminally-legal sphere. Yes, transition from inkvizitsionnogo process type to sostjazatelnomu has formally been proclaimed. The event those years was estimated in the literature as «essential expansion sostjazatelnyh

The beginnings »or as that Russia passes from search ("mixed") type

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The criminal trial to sostjazatelnomu.

But, by more sober estimations of some authors, despite declarations at the highest levels of the power, the saturation ugolovnoprotsessualnogo inkvizitsionnymi elements has exceeded legislations

Critical weight; reasonings on competitiveness of the Russian criminal

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Legal proceedings have no practical sense.

Agreeing with it opinion, we believe, that has ripened a question on revision of standard model of criminal trial of Russia from a position sostjazatelnoj a pas - [78 [79] [80] [81] [82] radigmy. In our opinion, attempts of modernisation of the investigatory theory without radical reformatting of its essence are useless and senseless. Most likely, V.A.Lazareva's rights that, clinging to old representations about proving, our science simply brakes formation in Russia sostjazatelnogo

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Legal proceedings.

With reference to a situation of formation of an information society, necessity of opposition to threat kiberprestupnosti, inherent in it, key questions of change of a format of criminal procedure proving became a subject of researches of P.S.Pastuhova to which we already referred above. We support its position, first of all, in that, as to treatment of the proof and proof formation in a type of information, presented in electronic form. He actually suggests to refuse the investigatory form and to pass to other technology of proving which is more adequate to modern conditions. In particular, it is necessary to support its thesis that the information on a crime, accessible to any subject with use telecommunication and Internet technologies, can be copied or it is otherwise received by the representative of the party in business and it is presented court as the proof. This thesis is based that during pre-judicial manufacture formation of the criminal procedure proof as that takes place not, that is the court of evidence, and fixing of traces of a crime in a type of information on certain carriers. That can be the information presented in electronic form - on «electronic data carriers», as speaks our law (articles 81, 81.1 UPK the Russian Federation) [83 [84] [85] [86].

According to A.A.Kuhty, the fact sheet received during all pre-judicial manufacture, represents «information preparation» court of evidence to which should pass processing through representation and research with participation of the parties in session of the court and transformation into the court of evidence [87 [88] [89]. Thus, essentially important sign of the given position is that the information can be recognised by the proof only the judicial decision, during pre-judicial manufacture formation admissible to use in proof court has preliminary character. Also T.V.Khmelnitskiy who writes similarly argues, that during pre-judicial manufacture of full formation of the criminal procedure proof does not occur; only participation of court in proving does its capable to "faktoobrazovaniju". Therefore only in court there is a proof formation, and criminal procedure proving is an activity of two parties and court in sostjazatelnoj to the form judicial

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Sessions.

Once again we will underline that in the conditions of mass access to information technologies the attention to the question on refusal of investigatory monopoly in the law of evidence or, at least, its restriction with privneseniem sostjazatelnyh technologies of proving should be brought. For the reasons of political, economic and technological character. If to make a start that we enter such phase of development of a postindustrial society as a society information to it corresponds sostjazatelnyj process type. Technologies have allowed to equalise possibilities of the parties in certain degree. Yes, not completely, but the adversary procedure concept even in the most radical variants did not provide delegation to protection of powers on application of coercive measures. The last a prerogative of public authorities, otherwise, it should be possible to talk about blasting of monopoly of the government on violence, and it is inadmissible and in a lawful state.

And pravoprimeniteljam it is necessary for scientific community to offer a new way of the decision of a problem. For this purpose it is not necessary to come too far, it is enough to glance in the Constitution of Russia regarding which third article 123 it is established, that legal proceedings are carried out on the basis of competitiveness and equality of the parties. That is the science and practice should address to more progressive alternative to the investigatory form, and that for the present moment acts competitiveness. The investigatory form of process mismatches a capitalist formation, especially in the conditions of global information. A trouble "sledstvennosti" not in its primary ushcherbnosti. It is not defective, but it mismatches, generally, to other type of the political and economic organisation of a society. Today, when we have passed to a capitalist way of managing, the president of our country in the Message of the President of the Russian Federation to Federal assembly from 04.12.2014 «has it depends noted The honest work, private property, business freedom are same base conservative, I will underline, values as patriotism, the respect for history, traditions, culture of the country »[90], more and more topical becomes a question on change of a criminal procedure paradigm.

Let's sum up. Information occurring in a society makes the big impact on criminal procedure proving. The information approach and the concepts connected with it (the reflexion theory) cannot be a methodological basis of understanding of information processes in proving.

Generated by the Soviet school of the theory of proofs the information approach vulgarises understanding of the information as proofs. The Soviet (investigatory) variation of the information approach is not that other, as one of variations of the theory of the reflexion, justifying monopoly of organs of inquiry the information processes connected with revealing, disclosing and investigation by a crime, an "objective truth" establishment on business. It is possible to present the information approach in the form of the following scheme: event of crime ^ a trace (information) ^ the learning subject (the inspector, the investigator, the judge) ^ the proof. In this scheme the role of the subject of knowledge which acts only as though as a transfer link, instead of is underestimated by the active subject of "reche-mysle-activity" who interprets sense of the information, does humanised by "procedural knowledge». Such version of the information approach should be denied.

It is necessary to support kognitivnuju a version of the information approach in the proving, practised by representatives of "the new theory of proofs» (A.S.Alexander and others). The knowledge of criminal trial in the light of this theory carries apertspeptivnyj character, that is the perception of an external world is caused kognitivnymi by structures of subjects of proving. «The subject of proving» - not simply repeater of the received information, but the subject of judgement of the information, investment with its properties of the proof - the evidence used for belief in correctness of the position.

As the proof maintenance the trace (information) crimes », not data, not a signal, not the information on the criminal event reflected in an external reality, and interpretation of" value of a sign »,« sense of the information »- according to those parametres which are caused by a legal status of the subject of proving in criminal trial and its interests recognised as the law acts not«. During pre-judicial criminal proceeding the information presented in electronic form, contains in «actual materials», that is or on «electronic data carriers» or the documents specifying in its address on the Internet or a telecommunication communication channel; in court the information presented in electronic form, is interpreted in a course sostjazatelnogo pleadings as "fact".

Information involves washing out of investigatory monopoly for possession the information. For a variety of causes, restrictions inkvizitsionnogo an order will inevitably reduce potential of work with electronic proofs, to mediate a remedial inequality of the parties. In turn, adversary procedure including in a context of introduction of electronic technologies will promote in a certain measure to removal of this inequality. Now, adversary procedure more corresponds to realities of an epoch of an information society.

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A source: KUVYCHKOV Sergey Ivanovich. USE In PROVING ON CRIMINAL CASES of the INFORMATION PRESENTED In electronic form. The DISSERTATION on competition of a scientific degree of the master of laws. Nizhni Novgorod - 2016. 2016

More on topic § 1. Specification (modernisation) of the information approach to To understanding of criminal procedure proofs:

  1. § 2.3. Criteria of the formalized requirements to criminal procedure proofs
  2. 2.4. The specification of social responsibility of the integrated subjects in the conditions of modernisation of the Russian economy
  3. § 3.3. Prospects of use of achievements of the material approach to realisation of institute of an admissibility of criminal proofs in practice of law enforcement bodies of the Russian Federation
  4. § 2.4. Influence of lacks of the formalized approach to realisation of institute of an admissibility of criminal proofs on law-enforcement activity
  5. § ZL. General provisions, concept and the reasons of occurrence of the material approach to realisation of institute of an admissibility Criminal proofs
  6. § 2. Features and properties of the criminal procedure form of information technologies in criminal trial of the Russian Federation
  7. § 1. The Criminal procedure form of the information technologies used for the organisation of activity of officials and bodies, carrying out the criminal trial
  8. § 3. Representation, research and an estimation as proofs of the information presented in electronic form, by consideration by criminal case court in essence
  9. § 3. The Criminal procedure form of the information technologies used for the control of activity of officials and bodies, carrying out the criminal trial
  10. § 2. The Criminal procedure form of the information technologies used for collecting, check and evaluation of evidence
  11. § 2. Classification of proofs and kinds of proofs in criminal trial of Socialist Republic Vietnam and the Russian Federation
  12. value of the electronic information and electronic data carriers in system of proofs on criminal case
  13. Chapter 2. Problems of use of the information presented in electronic form, as proofs at various stages of criminal trial
  14. § 4. The elements of the criminal procedure form directed on maintenance of safety of information technologies