THE CONCEPT OF EVIDENCE FORMATION IN VIEW OF THE ADVERSARIAL PRINCIPLE AND THE PROSPECTS FOR ITS DEVELOPMENT

  • Valentinа Aleksandrovna Lazareva S.P. Korolev Samara National Research University
Keywords: evidence formation, ways of collecting evidence, sources of evidence, evidence, investigative judge, adversarial system, equality of the parties

Abstract

The relevance of the study is caused by the theoretical and practical significance of the concept and the procedure of evidence formation in criminal proceedings in view of the adversarial principle. The paper considers the scientific concept of evidence formation and the prospects for its development in the context of introducing an investigative judge figure into criminal proceedings. The concept of evidence formation appeared in the period of Criminal Procedure Code of the Russian Soviet Federative Socialist Republic, naturally reflected the needs of the practice and corresponded to the idea of evidence as the information about the circumstances relevant to a case, embodied in the legally provided form. Obtaining such information and giving it a procedural form belonged to the exclusive competence of the preliminary investigation bodies, therefore only the information obtained and prepared (formed) by the preliminary investigation authorities was submitted to the court as evidence. The information received and presented by other participants in the criminal proceedings was not recognized as evidence. The adoption of the Criminal Procedure Code of the Russian Federation in 2001, based on different principles, highlighted the apparent contradiction between the concept of evidence formation and the principles of competitiveness and independence of the judiciary, since the materials formed by one of the parties, the prosecution, are important for the judicial evidence. This circumstance strengthened the arguments of the opponents of the evidence formation concept and gave rise to the proposal to revive the figure of a judicial investigator in the Russian Federation or to establish an investigative judge position, the competence of which should include the formation of evidence on the base of the sources submitted by the parties. In this regard, the possibility of revising the long-familiar ideas about the institutions of evidence law is being considered.

Author Biography

Valentinа Aleksandrovna Lazareva, S.P. Korolev Samara National Research University

Doctor of Sciences (Law), Professor, professor of Chair “Criminal Procedural Law and Criminalistics”

Published
2019-06-11
Section
Статьи