The court is going the wrong way

The objective truth, the introduction of which the bill of deputy Remzkov is devoted to the criminal process, was immediately able to ridicule and reproach. They talk about the unattainability of the truth, they are afraid that Patriarch Cyril will have to contact her. But when it comes to the Code of Criminal Procedure, the question "what is truth" is not ontological, but procedural. And the conversation about truth is quite appropriate.

Never was a supporter of mentioning in the law of any truths, he always agreed with Professor P.A. Lupinskaya, one of the authors of the Code of Criminal Procedure of 2002, who loved to repeat the principle of Roman law: "What is not in the case file does not exist in the world."

The normal code may well do without truth, and recognize it as a guiding star.

The truth was invented by the deputy of Remeskov and the Investigative Committee not standing behind him. The need to establish truth was approved in the Charter of the criminal proceedings of 1864, and - more decisively - in the democratic concept of judicial reform of 1991; The procedural laws acting in legal states are not rejected from the truth. The search for truth by the investigation and the court does not deny and does not detract from the presumption of innocence and is quite compatible with adversarial proceedings.

Assessing the objective truth as the banner of the indictment, critics of the bill recall the denial of the presumption of innocence of the Stalinist "justice of Vyshinsky." But the objective truth was also rejected by Vyshinsky. Professor Alexander Larin, one of the authors of the concept of judicial reform, wrote: “In the 30s-50s, the thesis was imperiously approved that the truth, understood as reliable knowledge, is inaccessible in the criminal process in many cases, and is not mandatory, and in order to condemn the accused, it is enough to establish the“ maximum probability of “his guilt”. Therefore, Larin summarizes, "the only thing that the denial of objective truth can serve is the justification of investigative and judicial errors, investigative and judicial crimes."

And in the 1991 concept itself, the truth towered as the purpose of a fair court: "Thanks to the trial, the law is not applied mechanically, in the manner of stigma, but in truth and conscience. The court not only establishes, but also humanize the truth."

From all this, however, it does not follow that the project made by the signature of Mr. Remezkova deserves applause. But the point here is not in truth, but in what is behind her, to whom and what she will serve. The project gives the definition: "Objective truth is the correspondence of the reality of the circumstances established in the criminal case that are relevant to its resolution." Moreover, “objective truth”, that is, something related to the philosophy of law, is placed in the bill on a par with terms such as “housing”, “close relatives”, “detention of the suspect”, “verdict” and other formally defined concepts. The inclusion of truth in such a technological series at first glance is strange. But, peering into the definition, you begin to understand that for the authors of the project the truth is not the highest truth, not the clarification of what actually happened, but the means of legalizing "circumstances established in the criminal case," in other words - evidence obtained in any way, if only they would correspond to reality .

The objective truth is declared that "reality" from which a criminal case is sewn. But this “reality” is so false, gynicated, so does not correspond to what is happening in reality, so lumber parashi that the canopy of truth sewn with white threads, call it at least absolute, it will not cover its shame and stench.

The truth of the judicial reform of the 1860s, the truth of the folded judicial reform of the 1990s, alien to us and rotten, as Soviet propagandists wrote, the bourgeois truth of the adversarial process is one. The Soviet truth reproduced in Remzkov’s bill is completely different. The project corresponds to the spirit and meaning of such revelations of the Soviet lawyers: “To pass only legal and reasonable sentences for any criminal case, the necessary conditions have been created in our country: the courts are equipped to the end of the judges and socialist system, the truly democratic Soviet laws, all participants in criminal proceedings - persons performing an inquiry, investigation, investigation, investigation, investigation, investigation Prosecutors and judges are armed with Marxist-Leninist theory and work under the permanent leadership of the CPSU. "

The difference between the two truths is conceptual. It is remarkably expressed by Yu.V. Korenevsky: “In the Russian pre -revolutionary and foreign process, the criterion of truth recognized the internal conviction of the judge . In the USSR , the“ genuine guarantee of truth ” was assumed an objective criterion ( “ The objective criterion lying outside the consciousness ” ), guided by which “ can be separated from the false, to verify the reliability of conclusions . ”Soviet theory considered the Soviet theory.” The quotes given by Korenevsky in this fragment are taken from the fundamental composition of Soviet justice "Theory of evidence in the Soviet criminal process."

Objective truth threatens to gain a foothold in the Code of Criminal Procedure not by itself, but in conjunction with the destruction of the most significant elements of adversarial. Such, for example, was originally a ban on turning to the worst when revising the sentence, which entered into force. Now the article of the Code of Criminal Procedure, previously called "The inadmissibility of the turn to the worst," is called "Turn to the Worst."

And now the project on objective truth is finally allowed to return the case for the investigation to replenish the accusation incomplete, correct unacceptable evidence, and the execution of a more serious accusation. In the initial version of the Code of Criminal Procedure, there was no pre -investigation at all. “Returning the case for the investigation, the court says that he will pass a conviction, and invites the investigator to obtain something to justify the prosecution. The investigation instead of justification means the actual conspiracy between the court and the indictment,” wrote the outstanding Russian lawyer Yuri Stertsovsky.

At the same time, the most dubious procedural institutions are strengthened. Recently, prejudice has been expanded, that is, an obligation for the court of circumstances established by other previously issued verdict. The percentage of criminal cases considered in a special manner, which means that, with the full admission of guilt, the verdict is sentenced without a judicial investigation, that is, without checking the court of provenness of the guilt of the defendant. A special procedure is already applied for approximately 65% ​​of cases.

In combination with a special order, the principle of establishing objective truth will be, to say, firmly tied to practice as the main criterion of truth. On the scene of justice it will look like this. For example, in a group crime, one of the accused, who has concluded a pre -trial agreement on cooperation, confesses to a hundred crimes that he could not commit by the Fabula alone. Suppose that all this is invention, reservation, self -negotiation, but the paper will endure everything. The case of this accused will be allocated into separate proceedings and obey separately - in a special manner, without studying evidence on the merits of the prosecution, in fact in a protocol form. The verdict in the case of this citizen will enter into legal force and will become mandatory (prejudice) for the court, listening in the general manner of other accused who do not admit guilt. The circumstances established by the first sentence - the commission of crimes (fictional) - this will be the objective truth of the latest spill.

Although the special procedure for legal proceedings, with the consent of the accused with the charge of the charge, is not related to justice, no one is going to abandon him, despite the light of truth. However, the transaction with justice is the belonging of the same Anglo-Saxon (Anglo-American) model, from which the radiations of truth propose to refuse in the name of returning to the roots of the continental (Romano-German) model. As a result of the crossing of these two systems, a certain English-content chimera is cultivated: the establishment of truth by the court without a judicial investigation. How does the “comprehensive, complete and objective study of all the circumstances of the criminal case in their aggregate” are combined as a general rule as a general rule ” with a special order? But we are talking about most criminal cases!

In the United States, a special order is compensated by the competitiveness of the parties at all stages of the case. In the Russian Federation, some competitiveness is present only in court. The investigation is also deprived of a hint of adversarial, the rights and capabilities of the investigator and the defender are not comparable, the evidence is imposed on torture - if not by a Spanish boot, then withstanding in jail. Now, if the bill is adopted, and it is unlikely that it will be possible to talk about competitiveness in court. Especially when the charge in the courtroom is supported by shepherds.