On the use of citizens' explanations in proving in a criminal case

The subject of the study in the article is the procedural status of explanation, the production of which is possible within the verification of the report on a crime and which, after the initiation of a criminal case, following the logic of the provisions of Art. 144 of the RF Code of Criminal Procedure, can be used as evidence. The problems unsolved by the legislator are identified, arising both in obtaining an explanation and in determining its possible evidentiary value. The aim of the work is to determine the legal nature of explanation for establishing the optimal mode of its production. Within the scope of the problem, issues relating to the correlation of explanation with interrogation are resolved, as well as the advisability of introducing such a procedural document as an explanatory protocol that actually duplicates the interrogation protocol, but without the possibility of observing general rules for the production of investigative actions when drafting it. The article also explores the possibility of attributing explanation to one of the existing types of evidence fixed in Part 2 of Art. 74 of the RF Code of Criminal Procedure - the "other document". As a result, the article draws the following conclusions. Explanation can not be equated to such evidence as the testimony of a suspect, victim, witness, since by virtue of a number of procedural features it will not meet such a proof property as admissibility. The protocol of explanation in case of its introduction in the Criminal Procedure Code of the Russian Federation will be a surrogate document, to which the rules established by Art. 166 of the Code of Criminal Procedure can not be applied. To create a separate article specifically providing for the explanation protocol or including explanation into the list of investigative actions duplicating interrogation is inappropriate. If there is no other mechanism for fixing explanation in the RF Code of Criminal Procedure as evidence in a criminal case, explanations of citizens can be used as evidence in the form of the "other document" under a number of requirements designed to ensure the admissibility and reliability of the evidence thus obtained: an explanation can be used in proving as the "other document" only if the person interviewed died, is seriously ill or their whereabouts are not known and for objective reasons they can not be called for interrogation and give evidence in the procedure provided for by the Code of Criminal Procedure of the Russian Federation; information stated in explanations should have such an obligatory condition of reliability as verifiability, including the right and the possibility of the parties and the court to interrogate the official who received the explanation as an eyewitness; obtaining an explanation is possible only if the requirements of the criminal procedural legislation are fulfilled both in terms of observing the rights of the person who gave explanations and in the part of verbal procedural actions; in order to comply with the rule on the proper securing of evidence, the investigator must make a decision on the attachment of materials (explanations) to the criminal case as "other documents" in each case.

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