In Part 1 of Art.75 of the Code of Criminal Procedure of the Russian Federation, it is established that information that was obtained by violating the requirements of the law cannot be used by the prosecution and has no legal force. These materials can not be used to confirm any of the circumstances set out in norm 73. Consider in more detail Art. 75 Code of Criminal Procedure with comments.
In part 2 of Art.75 of the Code of Criminal Procedure of the Russian Federation defines the types of violations due to which the information and materials received are not accepted for consideration. In particular, the legal force will not have the testimony of the accused / suspects, which are given in the investigation process in the absence of a defense counsel, including refusal of him, if they are not confirmed by the subject during the proceedings. According to Part 2 of Art. 75 of the Code of Criminal Procedure are not taken into account information obtained from witnesses / victims, based on conjectures, rumors, assumptions. The testimony of subjects who cannot name the source of awareness are also invalid. Not taken into account and other materials and information obtained in violation of the provisions of the Code.
Materials and information that are obtained officialpersons in the process of investigation must comply with the established legal requirements. This means that they must have the proper procedural form. Departure from it leads to nullity of information. This is confirmed by the judicial practice under article 75 of the Code of Criminal Procedure. Invalid evidence becomes so in violation of the provisions of the Code. However, in accordance with the Constitution, it is prohibited to use information and materials obtained in the event of non-compliance with the prescriptions of federal legislation. In this situation, there is a conflict of norms. In this case, the advantage of constitutional provisions. In this regard, according to experts, the interpretation of Art. 75 of the Code of Criminal Procedure is necessary to expand. Otherwise, materials obtained, for example, with violations during operational-search measures, but duly executed, could be taken into account in the proceedings.
Operational staff conducted a testprocurement of a narcotic substance with further penetration into a dwelling against the will of the persons who were in it, without obtaining the prior permission of the authorized body. If the prohibited means received at the same time and the money found at the seller are examined in compliance with the procedural requirements, then within the meaning of Art. 75 of the Code of Criminal Procedure, they have legal force as materials confirming the guilt of the subject. Formally, therefore, the provisions of the Code were not violated. Nevertheless, these actions are contrary to the Federal Law, which regulates the operational-search work and the Constitution. Accordingly, the evidence obtained cannot be considered admissible. Otherwise, there is a substitution of operational-search actions of procedural measures for the illegal procurement of materials necessary for the prosecution.
In Art.75 of the Code of Criminal Procedure provides an open list of situations where materials and information received by officials must be recognized as not having legal force. In particular, the testimony of the accused / suspect, given in the absence of defense counsel, is considered as such, and is not confirmed at the hearing of the case. This provision of art. 75 of the Code of Criminal Procedure of the Russian Federation serves as the most important guarantee against the subject’s self-incrimination and guilty plea under the influence of mental pressure or physical violence. It should be noted that the condition on the absence of counsel is also included in the refusal of the suspect / accused himself. This prevents illegal actions of officials. In particular, they can manifest themselves in a formally voluntary reluctance to exercise the right to counsel. In such situations, he, on the contrary, is usually forced.
They are the information provided onbased on guesses, rumors, assumptions, as well as one whose source the subject cannot name. The inclusion of this provision in Art. 75 of the Code of Criminal Procedure of the Russian Federation due to the fact that verification of such information is extremely difficult. In addition, the investigation uses specific facts of direct relevance to the event. All this applies to the testimony of the witness. As for the victims, they are not covered by this provision. Probably, it is assumed that the victim himself acts as the primary source of information about the crime, so it is unlikely to testify according to rumors.
In the considered norm it is also established that inas inadmissible are evidences that were obtained even with other non-compliance with the provisions of the Code. Many believe that any violation of procedural law, that is, deviation from any order that is present in the rules, leads to the loss of legal information obtained. Meanwhile, it should be noted that the article in question speaks of non-compliance with the Code as a whole, but not its individual provisions. If the law provides for ways and means by which it is possible to neutralize the ensuing consequences, with their proper application it will not be possible to say that the materials and information were obtained incorrectly, therefore they cannot be accepted. As the judicial practice of art. 75 of the Code of Criminal Procedure of the Russian Federation, failure to prevent a witness to have the right not to testify against himself or his relatives is a significant violation of current legal procedures. But if it is established, including through the explanations of the subject himself, that this did not affect the integrity of the information provided to them, they can be considered valid. At the same time, it is impossible to eliminate the violation related to obtaining confessions from the accused through ill-treatment, torture, or degrading actions. Or in another case, for example, a search was conducted with witnesses. Subsequently, it became clear that they were the investigators. In accordance with the rules, only disinterested subjects can be understood. Thus, there are doubts about the objectivity of the search and the reliability of the results that were obtained.
The current CPC provides forguarantees of timely detection and blocking of inadmissible information. In accordance with Art. 88, part 3, 4, under certain conditions, the investigator, the prosecutor, the investigator may recognize the materials as not having legal force on their own initiative or at the request of the accused / suspect. Evidences that are considered inadmissible shall not be included in the indictment or the conclusion.
According to art. 125 h1 Code of Criminal Procedure, decisions of the prosecutor, investigator, inquirer about refusal to initiate or terminate a criminal case, as well as other actions / omissions or decisions that could harm constitutional freedoms and legitimate interests of the parties to the process or impede subjects' access to the proceedings, can be challenged. Citizens' rights include the ability to declare a requirement to exclude information obtained illegally from criminal materials. From this it follows that decisions, inactions, actions of officials and authorized bodies related to obtaining evidence, but violating the rules, can be appealed.
According to art. 14, h.3, arising doubts about the guilt of the subject, which cannot be eliminated in the manner prescribed in the Code of Criminal Procedure, are interpreted in favor of the accused. According to experts, this provision also applies to cases of illegality of the collected materials on the case. If the investigator, prosecutor, inquiry officer, or the authority authorized to hear the case obtained evidence justifying the accused in violation of the established procedure, then it should be deemed admissible at the request of the defense. Such information in any case raises doubts about the guilt of a citizen. At the same time, the burden of proving the errors of the prosecution cannot be placed on the suspect / accused. Other rules apply if the defense has provided evidence obtained by it in violation of the regulations. In such situations, information may be considered null and void if the fact of the illegality of their receipt is proved by the prosecutor. The basis for this conclusion is not only part 1 of Art. 75. This provision is also stipulated by the constitutional norm, which establishes that everyone has the right to freely seek, receive, distribute, produce, transmit information exclusively by legal means. The adoption by the court of this kind of evidence does not preclude their assessment in terms of reliability, taking into account the violations that were made in the process of their collection.
