Rules of evidence and decision-making in criminal procedure within the mechanism of granting every person the right to legal defence
The author of the present article substantiates that the constitutional right to legal defence should include, at least, all elements of the right to a fair trial, guaranteed by Article 6 of the European Convention (interpreted by the European Court of Human Rights). Having analysed the European Courts practice, the author demonstrates that the necessity of having some rules of evidence is caused directly by the obligatory character of the realization of such elements of the right to a fair trial as competition and equality of the parties procedural opportunities and the right of a defendant to interrogate witnesses testifying against him/her or the right to summon and interrogate his/her witnesses on the same conditions as adverse witnesses. The article contains the following rules: rules, ensuring the right of the defence to summon and interrogate witnesses; rules, ensuring the right of the accused to interrogate adverse witnesses including the cases of witness non-appearance, the refusal of a witness to testify against him-/herself or his/her intimates or in case of applying security measures provided by the Criminal Procedure Code to a witness (interrogation of an anonymous witness); rules which should be taken into account when the admissibility of evidence is estimated: the inevitability to exclude some evidence irrespective of the provisions of national legislation (evidence obtained under torture, data obtained in consequence of police provocations), an extremely careful approach to estimate the admissibility of other evidence (evidence obtained from a defendant against his right to freedom from selfincrimination, obtained when a defendant was treated cruelly or was humiliated and his/her right to defence was violated) because their application creates a strong presumption of unfairness, the allowance of some evidence (written testimony of the witness who was interrogated in the absence of the defendant, testimony of an anonymous witness) conditionally admissible, moreover, the issue of their admissibility depends both on the observation of a number of conditions and their place in the system of accusatorial evidence; rules of evidence caused by the presumption of innocence (including the obligation of the prosecution to concretise accusations ); rules of checking and estimating some types of evidence (testimony of the accused and data obtained in consequence of provocation); an unbiased character of estimation of information (evidence) presented by the parties, the absence of different standards in the course of estimating the evidence of witnesses for the defence and prosecution; a motivated character of both the decision whether to include or not appropriate evidence in the case and the final decisions in which this evidence is estimated. Non-observance of the above-mentioned rules of evidence and making decisions in criminal proceeding make it impossible to realize the right of every person to legal defence of his/her rights and freedoms. The article characterizes the level of correspondence of the criminal-procedural legislation and its practical application to the above rules of evidence, formulates suggestions on amending the Criminal Procedure Code of the Russian Federation and developing the law enforcement practice.