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the Conclusion

In a final part of research the most significant and important theoretical conclusions, offers which can find the reflexion in UPK the Russian Federation and application in practice are stated.

1.

In many positions of the operating criminal procedure legislation the term "admissibility" is used in connection with proofs in the most various, at times ambiguous, values. So, for example, ch. 2 items 74 UPK provide the Russian Federation, that as proofs are supposed: indications of the suspect convicted; indications of the victim, the witness; the conclusion and indications of the expert; the conclusion and indications of the expert; material evidences; reports of investigatory and judicial actions; other documents. According to item 83 UPK the Russian Federation, reports of investigatory actions and reports of sessions of the court are supposed as proofs if they correspond to the requirements established UPK the Russian Federation. In perfect other value the term "admissibility" is used in the item 84 UPK the Russian Federation in which it is said, that other documents are supposed as proofs if the data stated in them matter for an establishment of the circumstances specified in article 73 UPK the Russian Federation.

In the resulted norms the category "admissibility" can be interpreted on - a miscellaneous. First, "admissibility" as simple instructions, that indications of the suspect convicted, the victim, the witness, the expert, the expert, the expert's statement, the expert, material evidences, reports of investigatory and judicial actions, other documents have the status of proofs (ch. 2 items 74 UPK the Russian Federation). Secondly, "admissibility" as a condition to correspond to the requirements established UPK the Russian Federation to be considered as the proof (item 83 UPK the Russian Federation). Thirdly, "admissibility" as a condition of a recognition of certain objects proofs on criminal case in case the data stated in them matter for an establishment of the circumstances specified in item 73 UPK the Russian Federation (item 84 UPK the Russian Federation). Such "variety" of treatments of admissibility of evidence in UPK the Russian Federation does not promote correct appropriate explanation of essence of the given category.

2. The special criticism is deserved by norm of the current legislation in which the term "inadmissible" in connection with proofs is used. This term meets in item 75 UPK the Russian Federation, item 88 UPK the Russian Federation, item 226.7 UPK the Russian Federation. In our opinion, the designation of proofs "inadmissible" contradicts methodological bases of understanding of essence of the category "proof". Occurrence and existence of proofs in criminal trial probably thanking actually to result of an establishment of the special signs characterising the proofs. Those signs of proofs are their admissibility, the relevancy, reliability and sufficiency. Therefore correctly to approve, that the inadmissible the remedial sources received with infringement of requirements operating UPK the Russian Federation, not carried and doubtful - data on circumstances of the committed crime which, accordingly, or have no communication with the given perfect crime can admit, or do not answer the objective validity.

Thus, proofs cannot be combined with such terms, as "inadmissibility", "irrelevance" or "unauthenticity". To consider differently - means to contradict laws of formal logic.

3. In our opinion, the Russian Federation it is necessary to rename and present item 75 UPK in a new wording.

źArticle 75. Admissibility of evidence

1. Indications of the suspect convicted; indications of the victim, the witness; the conclusion and indications of the expert; the conclusion and indications of the expert; material evidences; reports of investigatory and judicial actions; other documents are supposed as proofs if they have been received in conformity by the requirements established by the present Code.

2. Indications of the suspect convicted; indications of the victim, the witness; the conclusion and indications of the expert; the conclusion and indications of the expert; material evidences; reports of investigatory and judicial actions; other documents received with infringement of the present Code, come under to an exception from among proofs under the petition of participants of process or under own initiative of the inspector, the investigator, the head of the organ of inquiry, the chief of division of inquiry, the public prosecutor and court ╗.

4. In a context of necessity of perfection of norms operating UPK the Russian Federations which are connected with admissibility of evidence, are offered following changes of norms of the criminal procedure legislation:

- In the maintenance of item 83 UPK the Russian Federation it is necessary to refuse the formulation źare supposed as proofs if they correspond to the requirements established UPK the Russian Federation╗, having replaced with its accurate definition of concept of the specified kind of proofs on criminal cases.

- In item 84 UPK the Russian Federation it is necessary to exclude the first part.

- The maintenance of item 88 UPK should be resulted the Russian Federation according to its name by an exception of considered norm of the second, third and fourth parts.

- Point 1 ch. 6 items 226.7 UPK the Russian Federation to be reworded as follows:

ź1) about an exception of the proof specified in the accusatory decision in connection with the law-breaking admitted at reception of such proof╗.

5. As a result of the carried out research it is established, that most

Exact and adekvantym in the image characterise the requirement of admissibility of evidence offered in a science of criminal trial four rules of admissibility of evidence: 1). About appropriate subjects of reception

Proofs; 2). About appropriate sources and the remedial form

Proofs; 3). About appropriate ways of reception of proofs; 4). About an appropriate order of carrying out of ways of reception of proofs. Thus, in our opinion, the problem of "asymmetry" of rules of admissibility of evidence should be considered in a context only ought pravoprimenenija norms operating criminal procedure

Legislations. With a view of maintenance of the established order of the criminal trial the subjects leading process, are obliged to receive proofs in conformity with requirements UPK the Russian Federation. Therefore it is not so important, that received proofs on the value can be both accusatory, and justificatory, the main thing - to collect, fix and keep the evidentiary information in the statutory remedial form.

6. Essential signs of material evidences which reflect specificity of the given kind of proofs, are concentrated in appropriate definition of its their maintenance and the remedial form. The material evidence maintenance are data on all its evidentiary properties (for example, data on the subject location, its sizes, accessories, etc.) The remedial form of a material evidence represents a way of existence of such data. It should reflect all set of these properties and characteristics to be criminal procedure activity accessible to subjects. Therefore the in itself subject (a thing, object), concerning a perfect crime, cannot represent itself as an appropriate remedial source, as the remedial form of a material evidence. Subjects, things, objects are only inanimate sources of the remained traces of a crime. Their transformation to the remedial form which is capable to express and bear in itself the data important for criminal case is necessary. Such transformation occurs as a result of preservation, fastening and the description of all evidentiary properties and subject characteristics (a thing, object) in established UPK the Russian Federation an order.

7. The operating legislative norms devoted to material evidences, not absolutely precisely reflect specificity of the given kind of proofs from the point of view of correct definition and a parity of its maintenance and the remedial form. Thereupon, we consider necessary to offer new edition ch. 2 items 81 UPK the Russian Federation:

ź2. Subjects and the documents specified in ch. 1 items 81 UPK the Russian Federation, including the electronic data carriers withdrawn during pre-judicial manufacture on criminal cases about crimes, provided by articles 159 parts a heel - the seventh, 159.1 - 159.3, 159.5, 159.6, 160 and 165 Criminal codes of the Russian Federation if these crimes are made in sphere of enterprise activity, and also articles 171 - 174.1, 176 - 178, 180 - 183, 185 - 185.4 and 190 - 199.2 Criminal codes of the Russian Federation, admit material evidences if on their basis data on presence or absence of the circumstances which are coming under to proving at criminal proceeding are received, and also other circumstances important for criminal case. The received data should be fixed in the record of search of a subject, the document or an electronic data carrier. About a recognition of a subject, the document or an electronic data carrier the material evidence, and also about its familiarising with criminal case takes out the corresponding decision. The order of storage of material evidences is established by present article and article 82 of the present Code ╗.

8. The features of an estimation of material evidences established as a result of carried out research on criminal cases show, that, in particular, the main objective at definition of their relevancy, unlike other kinds of proofs, consists, first of all, in avoiding "congestion" of criminal case by unnecessary materials, familiarizings of all withdrawn subjects during survey of a scene, other investigatory actions, or received as it should be ch. 2 items 86 UPK the Russian Federation. Specific feature of an estimation of reliability of material evidences is that fact, that it depends including on a correct estimation of reliability of the report in which the description of results of survey of a material evidence contains, from an estimation of reliability of the expert opinions which were carrying out researches with material evidences.

9. To admissible subjects of reception of material evidences on

To criminal cases officials who receive material evidences by manufacture of investigatory and other legal proceedings - the investigator, the inspector, the chief concern, first,

Inquiry divisions, the chief of agency in charge of preliminary investigation, the head of the organ of inquiry, the public prosecutor, the judge; secondly, the suspect convicted, their defenders, the victim, the civil claimant, the defendant, their representatives who can represent the material evidences received as it should be ch. 2 items 86 UPK the Russian Federation and ch. 3 items 86 UPK the Russian Federation.

10. The public prosecutor as the participant from charge, in judicial manufacture is allocated by competences as item 286 UPK the Russian Federation to represent the documents possessing signs, specified in ch. 1 items 81 UPK the Russian Federation which can admit material evidences. Therefore the public prosecutor participates in reception of material evidences by means of their representation to court during judicial criminal proceeding. Thus, the public prosecutor can be the admissible subject of reception of material evidences in judicial manufacture at only stipulation observance if there are no the circumstances excluding its participation in criminal case which are provided item 61 UPK the Russian Federation.

11. On the basis of the analysis of the operating criminal procedure legislation it is possible to draw a conclusion that the head of the organ of inquiry acts as the admissible subject of reception of material evidences at observance of following requirements. First, the head of the organ of inquiry should not come under to tap on the bases specified in item 61 UPK the Russian Federation. Secondly, the head of the organ of inquiry as the admissible subject of reception of material evidences, is obliged as it should be ch. 2 items 39 UPK the Russian Federation to excite criminal case, to accept it to the manufacture and to spend preliminary investigation in full volume, possessing thus powers of the inspector or the head of the investigatory group, provided UPK the Russian Federation.

12. The chief of division of inquiry within the limits of specified in UPK the Russian Federation of powers also can act as the admissible subject of reception of material evidences. Thus observance of following requirements is necessary: 1) the chief of division of inquiry should not come under to tap on the bases specified in item 61 UPK the Russian Federation; 2) the chief of division of inquiry is obliged as it should be ch. 2 items 40.1 UPK the Russian Federation to excite criminal case, to accept it to the manufacture, to make inquiry in full volume, possessing thus powers of the investigator, and in cases if for criminal case investigation the group of investigators has been created, - powers of the head of this group.

13. The carried out analysis of the operating criminal procedure legislation of the Russian Federation shows, that the investigator can represent itself as the admissible subject of reception of material evidences at observance of following requirements:

1) should not be the circumstances provided by item 61 UPK the Russian Federation which exclude participation in criminal case of the investigator;

2) the investigator did not spend and does not carry out on criminal case operatively-search actions (ch. 2 items 41 UPK the Russian Federation);

3) in conformity from item 1 ch. 3 items 41 UPK the Russian Federation the investigator independently receives material evidences during investigatory and other legal proceedings on initiated and accepted by it to the manufacture to criminal case;

4) reception of material evidences by the investigator is admissible as in cases and an order established by item 1.1 ch. 3 items 41 UPK the Russian Federation, in a course and following the results of a summer residence to agency in charge of preliminary investigation, obligatory for execution of written commissions about carrying out of operatively-search actions, about manufacture of separate investigatory actions, about execution of decisions about detention, a drive, taking into custody and about manufacture of other legal proceedings;

5) the investigator receives material evidences in connection with performance by it obligatory for execution of written commissions of the public prosecutor (item 4 ch. 2 items 37 UPK the Russian Federation), the inspector (item 4 ch. 2 items 38 UPK the Russian Federation), the chief of division of inquiry (item 2 ch. 3 items 40.1 UPK the Russian Federation), the chief of agency in charge of preliminary investigation (ch. 4 items 41 UPK the Russian Federation).

14. The recognition of the inspector is connected by the admissible subject of reception of material evidences with observance of following requirements of the operating criminal procedure legislation. First of all, there should be no circumstances of item 61 UPK the Russian Federations excluding possibility of participation of the inspector in criminal proceeding. As the inspector acts as the admissible subject of reception of material evidences only at observance of positions of items. 1-3 ch. 2 items 38 UPK the Russian Federation, i.e. on the initiated criminal case accepted to the manufacture, during independent manufacture of investigatory and other legal proceedings. The following case when the inspector is the admissible subject of reception of material evidences, arises in connection with performance of written instructions of the head of the organ of inquiry by it (item 3 ch. 1 items 39 UPK the Russian Federation).

15. Court as the subject of reception of material evidences in criminal trial, possesses essential features in comparison with other subjects leading process. In our opinion, the operating criminal procedure legislation allows court to show activity in reception of material evidences. So, in conformity from item 286 UPK the Russian Federation familiarising with materials of criminal case of documents can be a wasp - shchestvleno during their reclamation spent under the initiative vessels. The documents possessing signs, specified in ch. 1 items 81 UPK the Russian Federation, admit material evidences.

The court acts as the admissible subject of reception of material evidences at observance of following conditions: 1) there should be no grounds for disqualification of the judge as item 61 UPK the Russian Federation; 2) requirements of item 63 UPK the Russian Federation about inadmissibility of repeated participation of the judge in criminal case consideration are observed; 3) the composition of the court by criminal case consideration corresponds to rules of item 30 UPK the Russian Federation; 4) the rules of jurisdiction provided by the item of item 31-36 UPK the Russian Federation are observed.

16. Reception of admissible material evidences can be realised by means of activity of the suspect convicted, their defenders, the victim, the civil claimant, the defendant, their representatives is perfectly in order ch. 2 items 86 UPK the Russian Federation and ch. 3 items 86 UPK the Russian Federation. However, the existing model of the Russian criminal trial does not allow participants of the criminal trial, not concerning the state bodies, to carry out the investigatory and other legal proceedings provided operating UPK the Russian Federation for collecting of proofs. They cannot make of the decision on criminal case and use proofs as the bases of their removal. Only the official in which manufacture there is a criminal case, is authorised to do a conclusion about presence or absence at its order of proofs, to recognise or not to recognise data as proofs, and, accordingly, to establish by means of proofs presence or absence of significant circumstances for criminal case.

17. In our opinion, not all from provided in ch. 2 items 86 UPK the Russian Federation of versions of sources of data on circumstances of the committed crime have the apt words allowing correctly to identify the maintenance of the concrete proof with its remedial form. Told substantially concerns legislative definition of the remedial form of a material evidence. Moreover, it is necessary to draw an unequivocal conclusion that the legislator in ch. 2 items 86 UPK the Russian Federation at all do not define the remedial form of a material evidence. Thereupon on the basis of gnoseological laws and the system analysis established UPK the Russian Federation of instructions complex character by the admissible remedial form of material evidences on criminal cases is established. Under the general rule it consists of the subject (thing), the report containing results of its survey, the decision about a recognition of a subject a material evidence and its familiarising with criminal case. Thus on the basis of specified in ch. 2 items 82 UPK the Russian Federation of rules of storage of material evidences, it is possible to draw a conclusion that the admissible remedial form of some versions of material evidences "is supplemented" with following materials: 1) photos; 2) video-or films; 3) documents (decisions) on the material evidence location; 4) samples of a material evidence, sufficient for comparative research; 5) reports in which the facts of destruction are fixed, recyclings or realisations of material evidences; 6) reports in which the carried out copying of the information is fixed, transfer of the electronic data carriers containing the copied information, to the legal holder of the withdrawn electronic data carriers or the owner of the information containing on them.

In our opinion, all materials listed above are necessary for carrying also to number of compound components of the admissible remedial form of a material evidence, along with a subject, the report containing results of its survey, the decision about a recognition of a subject a material evidence and its familiarising with criminal case.

18. In a similar context it is necessary to consider a problem of application of scientific and technical means at the material evidence reception which results of use directly are connected with an admissibility of the remedial form of a material evidence. According to ch. 6 items 164 UPK the Russian Federation, by manufacture of investigatory actions can be applied means and ways of detection, fixing and withdrawal of traces of a crime and material evidences. Thus ch. 5 items 166 UPK provide the Russian Federation, that in the investigatory action report the means applied by manufacture of investigatory action, a condition and an order of their use, objects to which these means have been applied, and the received results should be specified also. Photographic negatives and pictures, films, slides, soundtracks of interrogation, the videorecording cartridge, drawings, plans are applied on the report, schemes, moulds and the prints of traces executed by manufacture of investigatory action, and also the electronic data carriers, received or copied from other electronic data carriers during investigatory action manufacture (ch. 8 items 166 UPK the Russian Federation). Thus, results of use of scientific and technical means during reception and material evidence fixing should be made out as appendices to the corresponding report of investigatory action. In our opinion, it is necessary to support those scientists who in the works fairly support expansion of use of scientific and technical means by manufacture of investigatory and other legal proceedings, as a rule - photographings and (or) videorecordings. Thereupon, operating UPK the Russian Federation requires the position providing obligatory application of scientific and technical means during manufacture of any investigatory and other legal proceedings if this most does not strike the rights and legitimate interests of participants of the criminal trial. Accordingly, ch. The Russian Federation it is necessary to present 6 items 166 UPK in the following edition:

ź6. By manufacture of investigatory and other legal proceedings application of scientific and technical means and ways of detection, fixing, withdrawal of traces of a crime and material evidences is obligatory, except those cases when this most breaks the rights and legitimate interests of participants of the criminal trial╗.

19. On criminal cases it is necessary to carry to admissible ways of reception of material evidences:

- First, manufacture of such investigatory actions, as survey, survey, a search, dredging, survey, dredging and arrestment on pochtovo-cable departures, the control and record of negotiations, reception of the information on connections between subscribers and (or) user's devices, investigatory experiment, a presentation for an identification, reception of samples for comparative research, examination;

- Secondly, manufacture of other legal proceedings: 1) reclamation and withdrawal of documents and subjects (ch. 4 items 21 UPK the Russian Federation, ch. 1 items 144 UPK the Russian Federation); 2) reclamation of results of documentary checks or audits (ch. 1 items 144 UPK the Russian Federation); 3) discovery of documents and the materials which are available in an arrangement of corresponding mass media (ch. 2 items 144 UPK the Russian Federation); 4) research with participation of experts of documents, subjects, corpses (ch. 1 items 144 UPK the Russian Federation); 5) discovery of documents under the court initiative (item 286 UPK the Russian Federation);

- Thirdly, representation of results of operatively-search activity;

- Fourthly, activity of the suspect convicted, their defenders, and also the public prosecutor who has sustained, the civil claimant, the defendant and their representatives on collecting and representation of written documents and subjects for their familiarising with criminal case as proofs;

- Fifthly, actions of citizens, officials, the enterprises, establishments and the organisations on representation of written documents and subjects for their familiarising with criminal case as proofs.

20. That results of operatively-search activity were are transformed to material evidences it is necessary to be guided by Instruction positions about an order of representation of results of operatively-search activity to agency in charge of preliminary investigation, the inspector or in court from September, 27th, 2013. According to the specified Instruction reception of the "future" material evidences on the basis of results of operatively-search activity is made by means of their transfer by mail, transfers to the courier or in another way with the account of requirements of the standard legal acts regulating the organisation of office-work. In our opinion, the considered way of reception of material evidences should concern other legal proceedings which it is necessary to provide directly UPK the Russian Federation. In this connection the Russian Federation it is necessary to add item 89 UPK with a new part of the following maintenance:

ź2. Results of operatively-search activity can be presented agency in charge of preliminary investigation, the inspector or to court for their familiarising with criminal case as written documents or material evidences╗.

21. Besides the participants of criminal trial specified in ch. 2 items 86 UPK the Russian Federation, possess the right of representation of material evidences as also other subjects of criminal procedure activity. In particular, ch. 5 items 246 UPK the Russian Federation are provided by possibility of representation of proofs the public prosecutor. In item 2 ch. 1 item 53 UPK the Russian Federation skazanno, that collect and represent the proof can to take advantage of the right the defender. However the specified participants of the criminal trial are not named in ch. 2 items 86 UPK the Russian Federation among subjects of representation of written documents and subjects as proofs. Thus provided in ch. 3 items 86 UPK ways of collecting of proofs the defender not absolutely correlate the Russian Federation with positions ch. 2 items 86 UPK the Russian Federation as concern a procedure the defender of evidentiary activity, but do not define an admissible way of transformation (representation) of the written documents received by the defender and subjects for their familiarising as proofs In our opinion, the given discrepancy should be eliminated by inclusion of the designated participants of process in the maintenance ch. 2 items 86 UPK the Russian Federation. Thereupon ch. 2 items 86 UPK should be was reworded as follows the Russian Federation:

ź2. The suspect convicted, their defenders, and also the public prosecutor who has sustained, the civil claimant, the defendant and their representatives have the right to collect and represent written documents and subjects for their familiarising with criminal case as proofs╗.

22. By means of actions of citizens, officials, the enterprises, establishments and the organisations on representation of written documents and subjects for their familiarising with criminal case as proofs there is an expansion of admissible ways of reception of material evidences on criminal cases. However operating UPK the Russian Federation does not contain the direct instruction that citizens, officials, the enterprises, establishments and the organisations have the right to represent written documents and subjects for their familiarising with criminal case as proofs. In this connection we consider necessary to add item 86 UPK the Russian Federation with a new part of the following maintenance:

ź2.1 to Represent written documents and subjects for their familiarising with criminal case as proofs citizens, officials, the enterprises, establishments and the organisations╗ can also.

23. In conformity with ch. 2 items 81 UPK the Russian Federation a remedial order of reception of material evidences include survey of subjects, their recognition material evidences and familiarising with criminal case by removal of the corresponding decision. At the same time, the order of reception of admissible material evidences during manufacture of investigatory actions can have the certain specificity caused by features of carrying out of separate investigatory actions. Such specificity proves more often by manufacture of such investigatory actions, as the control and record of telephone and other negotiations, survey of a corpse, exhumation, a search, dredging, arrestment on pochtovo-cable departures, their survey and dredging, reception of the information on connections between subscribers and (or) user's devices, a presentation for an identification, check of indications on a place, examination. Therefore non-observance of rules of the remedial procedure of the specified investigatory actions should involve a recognition inadmissible material evidences if corresponding subjects have been received during carrying out of such investigatory actions.

24. A variety of admissible ways of reception of material evidences on criminal cases does not allow to provide a uniform universal remedial procedure of these ways in the operating criminal procedure legislation. This fact in turn can affect check and an estimation of an admissibility of the material evidences received during various ways on criminal cases negatively. With the account of the told following improvements of the current legislation are offered:

- To add item 21 UPK the Russian Federation with the new offer that by results of reclamation of subjects and documents the Russian Federations should be executed the reclamation process-verbal according to item 166 UPK, and also the decision about familiarising of subjects (documents) as material evidences on criminal case;

- To specify in ch. 2 items 86 UPK the Russian Federation, that the presented written documents and subjects should be issued the representation report according to item 166 UPK the Russian Federation, thus in case of conformity of the received data to positions of item 74 UPK the Russian Federation they admit material evidences and join criminal case by the corresponding decision;

- To bring into accord ch. 3 items 86 UPK the Russian Federation with item 3 instructions ch. 3 items 6 of the Federal act źAbout lawyer activity and legal profession in the Russian Federation╗ that the defender has the right to collect and represent subjects and documents which can be recognised by material and other proofs, in an order established by the legislation of the Russian Federation.

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A source: Kravchenko Maxim Evgenevich. the ADMISSIBILITY of MATERIAL EVIDENCES In CRIMINAL TRIAL. The dissertation on competition of a scientific degree of the master of laws. Krasnodar - 2017. 2017

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