Application of the institution of prejudice as a means of proof in criminal proceedings

Abstract

This paper presents a retrospective analysis of the development of the institution of prejudice in criminal proceedings in Russia, which is disclosed in a relationship with the achievement of objective truth in a criminal case. The features and problems of legal regulation of the institution of prejudice in the pre-revolutionary, post-Soviet and current legislation were revealed. In particular, the key problem of the Criminal Procedural Code of the RSFSR of 1923 was the lack of concrete limits of inter-branch prejudice that led to the formal resolution of criminal cases. Despite the resolution of this conflict when the USSR CPC was adopted in 1960, the search for objective truth was hampered by the high role of the judge’s subjective opinion in deciding questions about the possibility of using and limiting the limits of the application of prejudicial decisions. In addition, the paper reflects the modern legislator’s views on the achievement of objective truth in sentencing with the use of prejudicial circumstances as evidence. The authors present their own vision of the main trends in the development of the institution of prejudice and their proposals to reform not only inter-branch criminal procedural legislation but also inter-branch legislation, namely: Federal Law “On Operational Investigative Activity”. On the basis of the conducted analysis the necessity of changing the legal regulation of the institute of inter-branch prejudice and of introducing a new version of Article 90 of the CPC of the RF suggesting preservation of the non-controversial nature of intra-branch prejudice and revival of inter-branch prejudice of rebuttable nature was proved. In addition, in order to optimise criminal proceedings, the paper proposes to give prejudicial effect to the circumstance of a surgical experiment by legally changing the procedure for obtaining it in court.