Material and Procedural Criteria for Inadmissibility of Evidence Obtained as a Result of Provocation: European Court of Human Rights Standards and Russian Jurisprudence

Abstract

The question of the inadmissibility of evidence obtained as a result of provocation remains debatable in the science of the criminal process and largely uncertain in the practice of the Russian courts. The institution was accepted by the Russian legislator on the basis of the recommendations of the European Court of Human Rights but has not yet received proper legal regulation. As a research task, the authors attempted to assess two criteria used in assessing the quality of operational and investigative activities: material and procedural measures and to propose ways to consolidate the latter in the Criminal Procedure Law. An analytical method of research, generalization, comparison and systematization of scientific data, as well as an empirical method of analyzing decisions of the European Court of Human Rights and Russian jurisprudence, was used to solve this problem. It is proposed to legalize the actual duty of the courts to exclude from the evidence the data obtained as a result of provocation by supplementing the principle of presumption of innocence with the provision of the presence of the prosecution the duty to prove the absence of provocation, as well as to put the relevant basis on the list of inadmissible evidence contained in art. 75 CPC of the Russian Federation.