Problems of proof in a fair trial and their reflection in the legal positions of the ECHR: challenges for the Russian science of the criminal procedure and law enforcement practice

The author proceeds from the fact that by ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms, the Russian Federation has made a commitment to establish a systematic mechanism to implement in Russia the rights enshrined in the Convention, including the right of the accused to a fair trial. The development of such a mechanism in practice is complicated by the fact that the legal position set forth by the European Court of Human Rights on specific issues often significantly diverges from the established domestic legal doctrine, the Russian legislation or the established practice of its application. Russian laws and Russian law enforcement practice often do not create sufficient guarantees against the abuse of subjective rights or discretionary powers by trial participants. Therefore, the legal science faces the task not only of an adequate perception of the ECHR legal positions, but also of rethinking of the domestic legal doctrine on their basis. Further, the author gives examples of the ECHR legal positions on the issues of proof, of opinions that differ most from those habitual to the Russian criminal procedure science, as well as from existing law enforcement practices, on the need to establish the truth in a trial, on the content of competition and equality of the parties in a trial, on the criteria of admissibility / inadmissibility of certain evidence, on the requirement of the court impartiality and of the motivation of its decisions, compares them with the Russian legislation and law enforcement practice, demonstrates the problems of criminal procedural law that create opportunities for the abuse of right. The author proposes to: a) refine the domestic understanding of the adversariality of criminal proceedings; b) introduce changes that take into account the autonomous definitions of "witness", "charge", "expert" the ECHR formed to the Russian legislation and law enforcement practice; c) revise theoretical principles of the criminal procedure science for proof, so that the criteria for the admissibility of evidence in Russia take into account the ECHR legal positions, and the requirement to use only admissible evidence does not exclude the possibility for the defense to argue their case; d) address the issue of ensuring the impartiality ofjudges, as well as the problem of ensuring motivation of judicial decisions.

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