The procedural decision on the admissibility of evidence of the defendant who alleges being subjected to unlawful methods of investigation: the ECHR legal positions

The article dwells on the verification of the applicant's complaint about the use of torture and other forms of violence as well as on the procedural peculiarities of the decision on the claim. The author determines the cases when, according to the ECHR, violence is admissible during criminal proceedings. The legality or illegality of the methods of proof is determined depending on whether the statutory procedure of investigative and other procedural actions was observed and whether the evidence obtained by way of such a procedure corresponds to the admissibility requirements. According to the ECHR legal positions, the evidence obtained by means of unlawful methods of investigation should not be excessive or decisive importance in the structure of the indictment. The ECHR in its decisions has repeatedly drawn attention to the lack of a clear regulation of the mechanism of effective investigation of torture and ill-treatment in the current criminal procedural legislation of the Russian Federation. For this procedural decision to be taken and evidence obtained in the course of possible violence to be assessed, the following conditions are required: there should be facts evident of ill-treatment in the claim; the level of "cruel treatment" should be assessed in conjunction with the specific circumstances of the case; the thorough "pre-investigation" inspection of the evidence has been taken, with all reasonable practicable steps to obtain evidence relating to the incident; the "pre-investigation" inspection has been completed within a reasonable time; the procedural decision employed evidence obtained by the internal security of the Interior Department, who were not interested in investigating abuse; the procedural decision not to institute a criminal case due to the lack of evidence was recognized as legitimate by the court of appeal. The criteria above can be defined as a certain standard of ill-treatment investigation. However, not all evidence obtained through violence can be regarded as totally unacceptable. In some cases, the bodily integrity of the person can be limited, if it is necessary to obtain evidence. In accordance with the Russian criminal procedure legislation, in cases where a person does not wish to voluntarily provide a sample for a comparative study, it can be obtained with the consent of the court in strict compliance with the requirements of Art. 164-170, Art. 202 of the Code of Criminal Procedure of the Russian Federation.

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