ARGUMENTS OF DEFENCE IN THE APPLICATION FOR EXCLUSION OF THE LAW DURING THE COURT HEARING FOR SELECTION OF PREVENTIVE MEASURE

The article examines the difficulties faced by a lawyer-defender in connection with traditional and asymmetric approaches of representatives of the judiciary in the implementation of preventive judicial control, and offers a guideline for solving problems of regulatory regulation and judicial practice in the field of selection and extension of preventive measures. The article presents positions of the courts and the opinion that prevents the court from observing the rules for evaluating evidence and using the power to recognize them as inadmissible when considering such cases. The article presents the report of the Commissioner for human rights of the Russian Federation on the complaints of the applicants and identifies the existing unsolved problems of a systemic nature, in particular concerning the use of a preventive measure by the court in the form of detention. The article examines the issue of the right of a lawyer to request the exclusion of evidence at such a significant stage of criminal prosecution for the defense. The results of the analysis of judicial practice revealed that the courts denied to the defenders of the petition, but the courts’ failure to examine and evaluate the reasonableness of the suspicion in the involvement of the person to the crime at the stage of preventive measure should be regarded as substantial violations of criminal procedure law (paragraph 4 of article 7 of CPC of the Russian Federation). The study develops and clarifies a complex and practically significant problem of improving the mechanism for selecting and extending preventive measures, as well as the active role of defense lawyers at this stage, which will be a catalyst for changing judicial practice and improving the effectiveness and differentiation of the selection of preventive measures.

measure of restraint, detention, ECHR, Constitutional court of the Russian Federation, petition, protection of the defendant, сommissioner for Human Rights in the Russian Federation, validity of suspicion, assessment of proofs, judicial discretion.

Kalinina A. L. Arguments of defence in the application for exclusion of the law during the court hearing for selection of preventive measure. Business. Education. Law, 2020, no. 3, pp. 316–321. DOI: 10.25683/VOLBI.2020.52.322.