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- Scientific adviser — teacher of the Department of Foreign Languages of the Ural Law Institute of the Ministry of Internal Affairs of Russia Merkulova M.V.
| Винокуров В.Н. Признаки и пределы малозначительности деяния в уголовном праве // Современное право. —
2017. — № 6. С. 64-70. Ishbulatova A.R — cadet 3 course of the Ural law institute of the Ministry of Internal Affairs of Russia, ordinary police; Scientific adviser — teacher of the Department of Foreign Languages of the Ural Law Institute of the Ministry of Internal Affairs of Russia Merkulova M.V. PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS: DOMESTIC AND FOREIGN EXPERIENCE The principle of presumption of innocence is one of the most significant procedural rules, compli- ance with which is a necessary condition for the implementation of criminal proceedings appointment. This principle is directly enshrined in Article 14 of the Criminal-Procedural Code of the Russian Feder- ation 1 and formulated in accordance with the Constitution of the Russian Federation 2 , where article 49 states that every accused of a crime is considered innocent until his guilt will not be proven, in the manner prescribed by Russian law, and is established by an enforceable guilty verdict of the court. Analyzing the provisions on the presumption of innocence enshrined in the Criminal-Procedural Code, we understand that the suspect (accused) has the same legal status as the ordinary citizen, with the exception of certain exceptions contained in criminal procedural legislation, investigative actions and so on. And only after, in accordance with the procedure established by law, a criminal case will be considered within the framework of the trial, following which a conviction will be pronounced and this verdict will come into legal force, the accused will become convicted. Only after this, this person can be called a criminal and punished. Thus, the presumption of innocence is the assumption of the person's innocence in the deed. At the same time, this principle is the most important guarantee for the protection of human and civil rights and freedoms. The 1993 Constitution of the Russian Federation, for the first time in a long history, en- shrined in Russian legislation the provision on the presumption of innocence of persons held criminally responsible. Strengthening the situation at this level has become an important step for the protection of human rights and freedoms. However, according to the current legislation, the burden of proof is only on the prosecution side, that is, gathering evidence of the person guilty of committing a crime, as well as refuting arguments cited by the defense. It is forbidden to impose on the accused the duty to prove his innocence. To prove innocence is the right of the accused (suspect), who, if necessary, he can use. It should be borne in mind that the presumption of innocence is a principle not only of national (Russian) legislation, but also of international law. Thus, Article 11 of the Universal Declaration of Rights states that any person accused of an offense has the right to be presumed innocent until his guilt is established lawfully through a public trial in which all his possibilities for protection will be provid- ed 3 . Similar provisions are also fixed in the legislation of Russia. Analyzing further international legal acts, we cannot fail to note article 14.2 of the International Covenant on Civil and Political Rights, which states that every person charged with a criminal offense has the right to be presumed innocent until proved guilty according to law 4 . Similar provisions are also enshrined in Article 6.2 of the Euro- pean Convention on Human Rights 5 . Studying article 7 of the Arab Charter on Human Rights, it can be seen that its content is slightly modified 6 . So, in this legal act it is said that the accused is considered innocent until he is found guilty by a law court and all rights of defense are respected, that is, the de- fendant must be guaranteed the right to defense. And in Article V of the Universal Islamic Declaration of Human Rights, the presumption of innocence was reflected as follows: no one can be convicted of an offense and be punished if the evidence of guilt was not recognized by an independent court 7 . Studying the international legal acts, it becomes obvious that the provisions concerning the pre- sumption of innocence fixed in them are fully reflected in the main law of Russia, as well as in the leg- islation regulating criminal proceedings in the Russian Federation. Thus, the principle of presumption of innocence is one of the constitutional principles governing the procedural aspects of the criminal 152 process, and it is inadmissible to consider it in isolation from constitutional norms, the content of which predetermined many aspects of the criminal procedural legislation. It should be noted that the presumption of innocence is fixed not only at the level of international law, not only in the Basic Law of the Russian Federation, but also in the national legislation of foreign states at the constitutional level. An example is the Constitution of Tajikistan, which briefly but never- theless secures the presumption of innocence at the level of the country's supreme law, and is included in the prohibition on recognizing any person as "guilty" before the court's verdict enters into legal force 8 . In the Constitution of Azerbaijan, on the contrary, one can observe the presumption of inno- cence as a separate constitutional position 9 . Article 71 of the supreme law of Azerbaijan states that the presumption of innocence is the right of everyone and that any person who is charged with committing a crime is presumed innocent until his guilt is proved in accordance with the procedure established by law and the verdict of a court that entered the legal force. In addition, this article stipulates that if there are reasonable doubts as to the guilt of a person in committing a crime, conviction is not allowed, the person accused of committing a crime is not obliged to prove his innocence, and also cannot be used in the administration of justice evidence, obtained in violation of the law. The Constitution of Belarus 10 and Georgia 11 also fixed the presumption of innocence. In these normative acts, it is said that the pre- sumption of innocence is valid until the guilt of the person who committed the criminal act is estab- lished and proven in accordance with the norms of the current national legislation, and is later recog- nized as having entered into legal force a verdict. Studying the legislation of Western Europe, it can also be noted that the presumption of innocence is enshrined in national legislation. As an example, article 27 of the Constitution of the Italian Republic, according to which the accused is considered innocent until the final conviction, can be considered 12 . Here we understand not only the decision of the court of first instance that entered into legal force, but the final verdict pronounced by all higher courts into which the convict has the right to appeal. This principle is fundamental in the English criminal process, namely in the UK. Thus a person is presumed innocent until his guilt is proven in due process, and the burden of proving guilt lies with the prosecutor in the absence of justifiable doubts. Moreover, an important aspect is that no one can be convicted twice for the same crime. It should be remembered that the United Kingdom is the country of the Anglo-Saxon system of law and the main source of criminal procedure is the rule issued by the judge and reflected in the judicial precedent. The totality of these norms is called case law. On the con- trary, for comparison, another source of law is the sources of the criminal procedure law of Belgium and Denmark, namely, statutory law. At the same time, the Constitution and codified laws play a more significant role in these countries. Also for these countries, unlike Great Britain, is characterized by the recognition of international law as an official source of criminal procedural law. Of course, the impact of international acts in the countries of the Anglo-Saxon system, although not so great, is also taking place. As for the very principle of the presumption of innocence and the burden of proof, in England it refers to general principles, while in Belgium and Denmark – to the principles governing the process of proof in criminal proceedings. Thus, summing up it can be noted that the presumption of innocence is a fundamental principle guaranteeing the protection and ensuring this protection of the individual from unlawful accusation and restriction of the rights and freedoms of the individual. This provision is recognized by many states, regardless of which national model of criminal justice they belong to. The presumption of innocence is enshrined in both the constitutional (national) and international law. According to the formulation of the statement, the presumption of innocence has small differences, generally not affecting the meaning and essence of this principle. However, despite the simplicity and fixing it in international legal acts, the question of the presumption of innocence in criminal proceedings is controversial to this day. Among scientists, there is no consensus on not only the concept of the presumption of innocence, but also its content, application and interpretation. 1 Criminal-Procedural Code of the Russian Federation // http://www.wipo.int/edocs/lexdocs/laws/en/ru/ru082en.pdf 2 The Constitution of the Russian Federation // http://www.constitution.ru/en/10003000-03.htm. 3 Universal Declaration of Human Rights // http://www.ohchr.org/EN/UDHR/Documents/UDHR_translations/eng.pdf 4 Georgia’s Constitution // https://www.constituteproject.org/constitution/Georgia_2013.pdf 5 European Convention on Human Rights // https://www.echr.coe.int/Documents/Convention_eng.pdf 6 Arab Charter on Human Rights //https://www.humanrights.ch/upload/pdf/091029_ Arab_Charter_on_ Human_ Rights_2004.pdf 153 7 Universal Islamic Declaration of Human Rights // http://www.webpages.uidaho.edu /~rfrey/PDF/101/Universal% 20Islamic%20Declaration%20of%20Human%20Rights.pdf 8 The Constitution of the Republic of Tajikistan // http://www.gender.cawater-info.net/publications/pdf/const_tj.pdf 9 The Constitution of the Republic of Azerbaijan // http://www.azerbaijan.az/ portal/General/Constitution/doc /constitution_e.pdf 10 The Constitution of the Republic of Belarus // http://www.wipo.int/edocs/lexdocs/laws/en/by/by016en.pdf 11 International Covenant on Civil and Political Rights // https://treaties.un.org/doc/Publication/ UNTS/Volume% 20999/volume-999-I-14668-English.pdf 12 The Constitution of the Italian Republic // http://www.senato.it/documenti/ repository/istituzione/costituzione_ in- glese.pdf жүктеу/скачать 7,29 Mb. 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