TOP TEN FEATURES OF THE EVIDENCE INSTITUTE IN SWISS CRIMINAL PROCESS: A COMPARATIVE STUDY
Authors:
Type:
Article
Pages:
from 110
to 115
Status:
Published
Received:
15.09.2017
Accepted:
06.10.2017
Published:
06.10.2017
Subject area:
UDK 34 Право. Юридические науки
BBK 67 Право. Юридические науки
BBK 67 Право. Юридические науки
Language:
Russian, English
Keywords:
evidence, evidence law, theory of “the fruit of the poisoned tree”, code of criminal procedure, Switzerland.
Abstract (English):
The author considers the ten most important features of the evidence Institute in the Swiss criminal procedure. For the realization on the mentioned task the author analyzes the Code of Criminal Procedure and the doctrine of Switzerland: the rules concerning the evidence are the part of the criminal procedural law subject (the autonomous evidence law is not pointed neither doctrinal nor at the legislative level): as a subjects of the evidence can be recognised only the competent state authorities (the defender does not proof), the burden of evidence is a duty only of the the prosecution (there are no exceptions to this rule), the list of evidence is not exhaustive (the competent authorities shall take into account any significant procedural information, except the information which can not be seen as a proof by law) the freedom of evaluation of evidence without exception, normative consolidation of the theory of “the fruit of the poisoned tree” (if admissible evidence derived from the invalid, it also becomes invalid), the non-recognition of the theory of asymmetrie (the defense’s evidence and prosecution’s evidence are equal); the evidence check is not seen as a separate element of evidence (only the gathering and verification of evidence are pointed separately). The author also makes a comparison between the Swiss and Russian experience in solving a range of problems concerning the evidence. It is shown that the Swiss experience may be useful in further reforming of the evidence institute in Russian criminal proceedings with the aim of increasing its effectiveness. There are some proposals to improve the existing Russian legislation in this article. Among them, not exhaustive list of evidence in criminal proceedings and regulatory basis for the theory of “the fruit of the poisoned tree”, which are existing in Switzerland and in most countries around the world, deserve attention of the domestic legislator.
The author considers the ten most important features of the evidence Institute in the Swiss criminal procedure. For the realization on the mentioned task the author analyzes the Code of Criminal Procedure and the doctrine of Switzerland: the rules concerning the evidence are the part of the criminal procedural law subject (the autonomous evidence law is not pointed neither doctrinal nor at the legislative level): as a subjects of the evidence can be recognised only the competent state authorities (the defender does not proof), the burden of evidence is a duty only of the the prosecution (there are no exceptions to this rule), the list of evidence is not exhaustive (the competent authorities shall take into account any significant procedural information, except the information which can not be seen as a proof by law) the freedom of evaluation of evidence without exception, normative consolidation of the theory of “the fruit of the poisoned tree” (if admissible evidence derived from the invalid, it also becomes invalid), the non-recognition of the theory of asymmetrie (the defense’s evidence and prosecution’s evidence are equal); the evidence check is not seen as a separate element of evidence (only the gathering and verification of evidence are pointed separately). The author also makes a comparison between the Swiss and Russian experience in solving a range of problems concerning the evidence. It is shown that the Swiss experience may be useful in further reforming of the evidence institute in Russian criminal proceedings with the aim of increasing its effectiveness. There are some proposals to improve the existing Russian legislation in this article. Among them, not exhaustive list of evidence in criminal proceedings and regulatory basis for the theory of “the fruit of the poisoned tree”, which are existing in Switzerland and in most countries around the world, deserve attention of the domestic legislator.
Keywords:
evidence, evidence law, theory of “the fruit of the poisoned tree”, code of criminal procedure, Switzerland.
evidence, evidence law, theory of “the fruit of the poisoned tree”, code of criminal procedure, Switzerland.
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