Problems of establishing facts by the courts necessary for making a procedural decision in pretrial stages

Abstract

The subject of this research is the problems caused by the absence of explicit regulations in the criminal procedure law on the rules for establishing facts by the courts necessary for decision-making, as well as recommendations for their solution. These problems include thee difficulties in determining the proper and acceptable procedural behavior of the court and the parties to criminal proceedings in pretrial stages, intricacies of making a procedural court decision in cases of failure of proof, ambivalence of the court's approaches demonstrated by the legislator and the highest judicial bodies (the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation ) pertinent to regulation of judicial activity in pre-trial stages, etc. Special attention is turned to the procedure of establishing facts by the court in pretrial stages in view of the special legal and social significance of the procedural decisions made by the court, which restrict the constitutional rights of the citizens and require most full guarantees of their justness. The result of the conducted research is reflected in the author’s recommendations for solution of the indicated issues. The conclusions lies in theoretical provisions on the possible legislative approaches towards determining the judicial activity in pre-trial proceedings based on the following principles: personalization (differentiation of the form depending on procedural status of the actors), simplification (no excessive formalization), variability (presence of several variants of the procedure, the application of which depends on the procedural situation and the purpose of activity of the court), application of actions regulate by the Criminal Procedure Code among other procedural acts available to the court and parties to the court hearing.