|PDF:||Author(s):||Avdonin V. A.,|
|Number of journal:||4(61)||Date:||November 2022|
The author, based on an analysis of judicial acts of the Constitutional Court of the Russian Federation, examines its legal positions on the burden of proof and the possibility of its redistribution between the participants of the prosecution and the defense at different stages of criminal proceedings, in particular at the preliminary investigation stage, where the principles of competition and equality of arms in Russia are subject to the public nature of criminal proceedings and have limited opportunities for implementation. The author conducts a comparative legal analysis of the procedural status of defense in the Anglo-Saxon legal system (especially, in the United States), revealing the possibility of legally burdening the above party with the obligation to prove a certain list of facts. The study states the specificity of the Romano-Germanic criminal proceedings with prevailing public law nature due to historical, geographical, socio-cultural background, where the imperative rule of shifting the burden of proof on the authoritative subject — the prosecution applies. The author emphasizes that other types of Russian legal proceedings allow for the possibility of redistribution of the burden of proof of certain circumstances relevant to the resolution of the case. The article notes that although the defense is de jure exempted from the burden of proof, based on the principle of the presumption of innocence, de facto shifting the burden of assertion is potentially possible when proving exculpatory circumstances that are essential to the defense. This assumption of shifting the burden of proof in no way goes against the purpose of the procedural function of the defense and the principles of competitiveness and equality of arms, since it is aimed at providing additional guarantees “to be heard” by the authoritative subject of proof.
presumption of innocence, competitiveness, equality of the parties, burden of proof, preliminary investigation, “equality of arms”, Anglo-Saxon criminal procedure, shifting the burden of proof to the defense, exculpatory circumstances, burden of proof, rehabilitation
Avdonin V. A. The position of the Constitutional Court of the Russian Federation on the burden of proof in criminal proceedings. Business. Education. Law, 2022, no. 4, pp. 230—234. DOI: 10.25683/VOLBI.2022.61.436.