Ensuring the admissibility of evidence raises a number of problems, both in theory and in practice. In this chapter, we will consider the most common of them and try to summarize the relevant opinions of scientists.
The main theoretical issues with respect to ensuring the admissibility of evidence include:
1. "Asymmetry" of the rules on the admissibility of evidence.
The essence of this concept is that the violations committed by the prosecution in the procedure for collecting evidence should not prevent their use in the interests of the defense See: Borulenkov, Yu. Decree. op. // Criminal law. - 2014. - No. 1. - S. 56 ..
This theoretical problem causes a different attitude. Some authors believe that the admissibility requirements should be the same for the parties See: Anisimov, A. Admissibility of evidence / A. Anisimov // Legality. - 2010. - No. 10. - P. 35 .. According to others, "asymmetry" should operate with certain restrictions See: Borulenkov, Yu. Decree. op. // Legality. - 2013. - No. 9. - S. 32 ..
It seems to us that such an approach to this problem would be fair, which provides for the imposition of "damages of proof" on the party through whose fault they occurred.
2. Insufficient development of the "rule of exclusion" in the criminal process in Russia.
This rule is intended to prevent violations by the criminal prosecution bodies of the constitutional rights of citizens due to the threat of recognizing the results of procedural actions of inadmissible evidence that are important for the prosecution. This rule is endowed with a number of specific features See: Shestakova, S. Admissibility of evidence in the criminal process in Russia and the USA / S. Shestakova // Criminal Law. - 2014. - No. 3. - S. 100.:
1) it applies only to violations of the constitutional rights of citizens, committed only by the criminal prosecution authorities;
2) it is designed to restore the balance of the procedural possibilities of the parties to the prosecution and the defense to defend their procedural interests, violated by the illegal restriction of the rights of citizens.
This concept is successfully operating in the US criminal process, while the Russian criminal procedure law, which received this rule, did not provide real mechanisms for its functioning.
According to S. Shestakova, this is due to a number of reasons See: Ibid. - S. 100 - 101.:
a) too broad interpretation of this rule at the level of national legislation;
b) fundamental differences in the construction of the evidential law of Russia and the United States of America;
c) limiting the possibilities of creating mechanisms that ensure the flexibility of the rule under consideration;
d) insufficient consideration of the features of this rule, which we have listed above.
It is worth saying that this problem needs to be solved first at the theoretical and legislative level, which will lead to the solution of the negative consequences arising from it that arise in practice. Only a more complete and adapted for Russia reception of the “rule of exclusion” can help the domestic legislator in this.
3. The problem of correlation between the concepts of admissibility and reliability of evidence.
This problem is due to the fact that a number of authors confuse the concepts of admissibility and reliability, and some even propose to combine these concepts into one common one. In this case, we agree with the opinion of Tatyana Shapovalova, who emphasizes the lack of identity of these concepts. Admissibility is the compliance of the form of evidence with the requirements of the law in terms of a number of important characteristics, while reliability is the correspondence to the reality of their content See: Shapovalova, T. Decree. op. - P. 98 .. Based on these findings, it can be argued that these properties of evidence are independent, but at the same time, of course, interconnected. The ratio of admissibility and reliability depends on the solution of the question of what social values the institute of admissibility of evidence is supposed to protect. It should also be said that the recognition of evidence as admissible does not prejudge the question of its reliability, and the conclusion about admissibility precedes the conclusion about reliability, but does not replace it See: Ibid. - S. 101 ..
With regard to the practical problems associated with ensuring the admissibility of evidence, among them are the following:
1. Should all violations of the law entail the inadmissibility of evidence and, accordingly, the deprivation of its legal force?
The answer to this question is defined differently by different scholars. I.I. Mukhin proposes to consider evidence inadmissible in case of any violation of the law. M.L. Yakub, on the contrary, believes that the evidence cannot be left without consideration on the merits, rejecting it for inadmissibility See: Pobedkin, A.V. On some problems of determining the admissibility of evidence in criminal proceedings / A.V. Pobedkin // State and Law. - 2011. - No. 7. - P. 54 .. O.V. Khimichev and R.V. Danilova subdivide violations into those that entail the inadmissibility of evidence in any case and minor violations See: Ibid. - P. 54. However, all these are the opinions of scientists, while problems really arise in practice.
At the same time, the Code of Criminal Procedure solves this problem with the help of imperative prescriptions provided for in part 1 of Article 75, which do not allow one to go into the assessment of a particular violation of the law committed in the course of a criminal case. That is, if any, even the most insignificant, deviation from the law is revealed when collecting and fixing evidence, then their annulment with all the ensuing consequences is inevitable See: Borulenkov, Yu. Ukaz. op. // Criminal law. - 2014. - No. 1. - S. 56 ..
At the same time, it should be said that the opinion of the Supreme Court of the Russian Federation, expressed by it in various decisions, is by no means always in solidarity with the opinion of the legislator. The specified subject very often indirectly indicates that not any violation of the law initially predetermines the possibility of recognizing evidence as inadmissible, but only directly related to the procedural form of collecting and fixing information established by the legislator, the violation of which gives rise to irremovable doubts about the truth of the content of evidentiary information. This position is also held by most practitioners.
In our opinion, in order to solve this problem, it is necessary to harmonize legislative and practical provisions, so that persons who in any way take part in the criminal process know exactly which evidence is inadmissible.
2. Is it possible to recognize admissible evidence obtained during a search, seizure, if the very decision to conduct these investigative actions raises doubts about its validity?
This problem is connected, first of all, with the performance of these actions in a dwelling, which is regulated by part 5 of article 165 of the Code of Criminal Procedure of Russia. In practice, situations sometimes arise when the corresponding decision of the investigator, formalized by his decision, is based not on evidence, but on data of an operational-search nature that cannot be verified, which makes it impossible to determine whether the said decision is justified. At the same time, judges usually recognize the evidence obtained in this way as inadmissible See: Sheifer, S.A. Decree. op. - P. 52 .. Then another question arises - what if the objects and documents seized in this way will have a clear probative value? And at the same time, the objectivity of the properties of these things is beyond doubt.
In our opinion, this problem requires clarification of the Supreme Court of Russia on this issue. Then, perhaps, discrepancies in practice will cease to exist.
3. The problem associated with establishing the preponderance of the prosecution when considering the petition of interested parties to exclude evidence, the admissibility of which there are doubts.
This problem often arises in practice, since most often the court is in no hurry to exclude the indicated evidence, based on the fact that the verification that they underwent at the preliminary investigation stage is sufficient to recognize the evidence as admissible. Most often it is. Moreover, the constitutionality of the provisions of Articles 234 and 236 of the Code of Criminal Procedure of the Russian Federation was confirmed at the level of the Constitutional Court of Russia.
In its ruling dated October 13, 2009 No. 1258-O-O, this court clearly stated that “the refusal to satisfy the request to exclude inadmissible evidence and the re-examination of this issue at the trial stage cannot be equated with the use in criminal proceedings evidence obtained in violation of the law, which is understood as the substantiation by such evidence of decisions on the establishment of circumstances relevant to the criminal case "On the refusal to accept for consideration the complaint of citizen Andrey Anatolyevich Tokmantsev about the violation of his constitutional rights by a number of provisions of the Code of Criminal Procedure of the Russian Federation: definition of the Constitutional Court of the Russian Federation No. 1258-О-О dated 10/13/2009. - Access mode: ATP "Consultant Plus". - Clause 2.3..
In this regard, we fully agree with the opinion of the Constitutional Court and do not share the opinion of those practitioners who dispute it.
In conclusion of this chapter, I would like to conclude that the topic we are studying causes many different problems, both in theory and in practice. The solution of these problems, in our opinion, will depend on the establishment of a uniform opinion of the legislator and the highest judicial instances, which will increase the effectiveness of procedures for ensuring the admissibility of evidence.
The global problems of mankind affect our planet as a whole. Therefore, all peoples and states are engaged in their solution. This term appeared in the late 60s of the XX century. Currently, there is a special scientific branch that deals with the study and solution of global problems of mankind. It is called globalization.
Scientific specialists from various fields work in this area: biologists, soil scientists, chemists, physicists, geologists. And this is no coincidence, because the global problems of mankind are complex in nature and their appearance does not depend on any one factor. On the contrary, it is very important to take into account the economic, political and social changes taking place in the world. Life on the planet in the future depends on how correctly the modern global problems of mankind will be solved.
You need to know: some of them have existed for a long time, others, quite “young”, are connected with the fact that people began to negatively affect the world around them. Because of this, for example, the environmental problems of mankind have appeared. They can be called the main difficulties of modern society. Although the problem of environmental pollution itself appeared a long time ago. All varieties interact with each other. Often one problem leads to another.
Sometimes it happens that the global problems of mankind can be solved and completely get rid of them. First of all, this concerns epidemics that threatened the lives of people on the entire planet and led to their mass death, but then they were stopped, for example, with the help of the invented vaccine. At the same time, completely new problems are emerging that were previously unknown to society, or already existing ones are growing to a world level, for example, the depletion of the ozone layer. The cause of their occurrence is human activity. The problem of environmental pollution allows you to see this very clearly. But in other cases, too, there is a clear tendency for people to influence the misfortunes that befall them and threaten their existence. So, what are the problems of humanity that have planetary significance?
environmental disaster
It is caused by daily environmental pollution, depletion of terrestrial and water resources. All these factors together can accelerate the onset of an environmental catastrophe. Man considers himself the king of nature, but at the same time does not seek to preserve it in its original form. This is hindered by industrialization, which is proceeding at a rapid pace. By negatively influencing its habitat, mankind destroys it and does not think about it. No wonder pollution standards have been developed that are regularly exceeded. As a result, the environmental problems of mankind may become irreversible. To avoid this, we must pay attention to the preservation of flora and fauna, try to save the biosphere of our planet. And for this it is necessary to make production and other human activities more environmentally friendly so that the impact on the environment is less aggressive.
demographic problem
The world's population is growing at a rapid pace. And although the “population explosion” has already subsided, the problem still remains. The situation with food and natural resources is deteriorating. Their stocks are shrinking. At the same time, the negative impact on the environment is increasing, it is impossible to cope with unemployment and poverty. There are difficulties with education and health care. The solution of the global problems of humanity of this nature was undertaken by the UN. The organization created a special plan. One of his items is the family planning program.
Disarmament
After the creation of a nuclear bomb, the population tries to avoid the consequences of its use. For this, treaties between countries on non-aggression and disarmament are signed. Laws are being adopted to ban nuclear arsenals and stop the arms trade. The presidents of the leading states hope in this way to avoid the outbreak of the Third World War, as a result of which, as they suspect, all life on Earth can be destroyed.
Food problem
In some countries, the population is experiencing food shortages. The people of Africa and other third countries of the world are especially affected by hunger. To solve this problem, two options have been created. The first is aimed at ensuring that pastures, fields, fishing zones gradually increase their area. If you follow the second option, it is necessary not to increase the territory, but to increase the productivity of existing ones. For this, the latest biotechnologies, methods of land reclamation, and mechanization are being developed. High-yielding varieties of plants are being developed.
Health
Despite the active development of medicine, the emergence of new vaccines and drugs, humanity continues to get sick. Moreover, many ailments threaten the lives of the population. Therefore, in our time, the development of methods of treatment is actively conducted. Substances of modern design are created in laboratories for effective immunization of the population. Unfortunately, the most dangerous diseases of the 21st century - oncology and AIDS - remain incurable.
The ocean problem
Recently, this resource is not only actively explored, but also used for the needs of mankind. As experience shows, it can provide food, natural resources, energy. The ocean is a trade route that helps restore communication between countries. At the same time, its reserves are used unevenly, military operations are conducted on its surface. In addition, it serves as a base for the disposal of waste, including radioactive waste. Mankind is obliged to protect the wealth of the World Ocean, avoid pollution, and rationally use its gifts.
Space exploration
This space belongs to all mankind, which means that all nations should use their scientific and technical potential to explore it. For the deep study of space, special programs are being created that use all modern achievements in this area.
People know that if these problems do not disappear, the planet may die. But why do many do not want to do anything, hoping that everything will disappear, “dissolve” by itself? Although, in truth, such inaction is better than the active destruction of nature, the pollution of forests, water bodies, the destruction of animals and plants, especially rare species.
It is impossible to understand the behavior of such people. It would not hurt them to think about what to live, if, of course, it is still possible, on a dying planet their children and grandchildren will have to. You should not count on the fact that someone will be able to rid the world of difficulties in a short time. The global problems of humanity can only be solved jointly if all of humanity makes an effort. The threat of destruction in the near future should not frighten. Best of all, if she can stimulate the potential inherent in each of us.
Do not think that it is difficult to cope with the world's problems alone. From this it seems that it is useless to act, thoughts appear about powerlessness in the face of difficulties. The point is to join forces and help the prosperity of at least your city. Solve the little problems of your habitat. And when every person on Earth begins to have such responsibility to himself and his country, large-scale, global problems will also be solved.
I would like to start talking about NLP from the most, in my opinion, important - how NLPists present (classify) human "problems", in other words - difficulties or complex tasks of personal growth, called - Life.
After all, from how - this or that psychotherapeutic doctrine classifies and understood in the broadest sense our (usually tangled in a ball and hardly conscious) problems, it also depends on how much confidence we will treat this doctrine, approach, method.
The classification of human problems that NLP gives is, in my opinion, interesting. NLP divides all the various problems into seven types. Of course, this division is very conditional, but it is convenient in work (as practice proves) and visually for the patient himself (that is, for all of us).
Here they are, seven types of human problems according to NLP, at a glance.
The first cause of human problems (according to NLP)
This is when at least two parts of our "I" are in conflict with each other.
Are you familiar with this condition? It is not for nothing that it is taken to the root cause of all human suffering and discord, preventing us from moving where we want or simply enjoying a quiet life.
Artistic culture now and then describes (in its own way, metaphorically) such states.
- The well-known “Cancer moves back, the swan breaks into the clouds, and the pike pulls into the water” (Krylov) ... This is about life goals, when, according to the results of life, a gifted person has a cart (for some reason) and now there ...
- “And my tastes and requests are strange. I'm exotic to say the least. I can chew glasses and read Schiller without a dictionary at the same time. (Vysotsky) This is about the deepest properties of nature, about "ugly behavior" that breaks out and is not humbled by any culture and any previous "pious" upbringing. Dr. Jekyll and Mr. Hyde, in other words...
- And finally, the classic description of spiritual (heart) discord, described by the ancient classic Catullus in his most famous couplet about love - "I hate and love." (Odi et Amo). Here is his literal translation: “I hate and love. You ask why I do this. I don’t know, but I feel that this is happening, and I go out in torment.”
The Second Cause of Human Problems According to NLP
The Problem of Identity. This is when our idea of ourselves (the picture of our “I”) is so poorly formed (we don’t know ourselves so much) that we can’t function normally in principle - we are in constant stress and limit ourselves in everything that is just right for us by our nature.
There is nothing surprising and rare in such a “diagnosis”. The fate of each person: at the beginning of a conscious and independent life, not to know anything about the present oneself, and only with years and experience (years of knowledge are reduced the faster, the more extreme the experience gained), begin to understand oneself, get to know oneself in the present ...
The Third Cause of Human Problems According to NLP
The problem of emotional states. It is connected with the fact that a person either closes himself from any true and deep emotions (artificial frigidity), or vice versa, opens all the floodgates towards the most genuine emotions, against the background of the fact that he absolutely does not know how to manage these emotions, control them.
I want to break down this human problem with a concrete example. My favorite Carl Rogers also noticed the following.
At the moments when a person usually opens all the floodgates towards emotions (and this usually happens in an “unusual” emergency situation, when a person seems to be knocked out of his usual rut), such a thing happens.
The first expression of his (man's) TRUELY SIGNIFICANT FEELINGS occurs most often in the form of a negative attitude towards other people around him.
Imagine, this is a law known to all psychotherapy. Did you know this?
What situations can be called “abnormal”, “unusual”? Where, to put it simply, does it unsettle a person?
First(Let's pay tribute to psychotherapy) This is a psychotherapeutic group - a seminar, a training. There, this explosion of negative emotions is monitored by the Leading psychotherapist and introduced into a healthy channel.
Second(strange as it may sound) these are holidays (especially long ones), vacations and vacations. This is where the "expression of truly meaningful feelings" can be controlled only by the police... Unfortunately. Have you often encountered the fact that a company of cheerful friends, having come to relax together, suddenly begins to quarrel right up to a massacre? Is alcohol to blame? Not certainly in that way. Even those who don't drink fight to the death.
Why does it happen that when a person “thaws” at least for a while from his idiotic dead life, which he lives all year (and some of us - most of his existence), he first of all manifests such true emotions that you want to turn away indignantly or call the police?
This was brilliantly explained by Carl Rogers. I give him my word without interrupting. You see “Deeply positive feelings are much more difficult and dangerous to express than negative ones. If I say that I love you, I am vulnerable and open to the most terrible rejection. If I say that I hate you, I may be attacked, but I can defend myself..."
The Fourth Cause of Human Problems According to NLP
The problem rooted in the language or - "thought spoken is a lie."
It can also be said that for NLP itself, this problem in general is the first and basic one. As well as for all-all science of the 20th century, where NLP came from. Even Wittgenstein said that all philosophical "pseudo-problems" are the result of inexact, imperfect in nature - language.
It was language, Wittgenstein believed (the main philosopher of the 20th century) that can easily give rise to pseudo-problems and futile disputes about them.
Or, as another great thinker of the same 20th century, Exupery, said: “The most important thing cannot be said with words. Only the heart is vigilant."
NLPists believe that there are three basic language mistakes that then lead us all to psychological (and simply life) problems:
- maintaining a constant “internal dialogue” (this topic is so well known to everyone that we will not raise it here),
- negative statements (“I want to keep with you”),
- non-constructive statements (“They will dance with me”, “So that they know” ... and similar air shaking).
(We will talk about everything in more detail in subsequent articles).
The fifth cause of human problems according to NLP
The problem of wrong styles (patterns) of thinking. NLP postulates its main working idea: what matters is not what we think about, but HOW we think about something. This “how” is usually wrong. And what to think about - it's really - all the same.
Let me give you an example from personal practice.
In the course of conducting a conventional psychological test related to visualization (imagine that you are walking through a desert area and encounter various artifacts and creatures on your way), a middle-aged lady who had previously shown obvious psychological problems in communication showed an interesting result.
In the test, a person walking through a desert area had to meet an animal similar to a dog on his way and describe this meeting. What dog? Is it a dog? Where did she end up? How did she react to you? How are you on it? What happened next? Etc...
The woman said this: “And I saw a skinny dog dying of thirst, which lay miserable on the ground and almost died. I began to force him to drink water.
I won’t go into details, but the woman showed exactly such an attitude towards her (not dying from anything) and still cheerful grandson all the time we could watch her.
The sixth cause of human problems according to NLP
The problem of incorrect (because limiting) beliefs or incorrect (because too poor) meanings.
People are not concerned with the facts themselves, but with their own perceptions of the facts.
Anything can happen to us (and turn around in the end as you like), but fear, pain and panic bring us precisely the thought of what we think about it, what meanings we attribute to what is happening.
The plane took off without me, is it a problem? No, what if it was more important for you to stay on the ground?
And finally
The Seventh Cause of Human Problems According to NLP
The problem of strategies is ignorance (lack of correct information) about how to change the forms of one's behavior...
Actually, we are devoting a series of articles about NLP to filling these gaps, which will be published on our website.
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Translation of "This issue is related to" in Russian
Other translations
This problem is related to the sovereign right of countries to establish their own system of administration of justice.
The issue touched on the sovereign right of a country to establish its own judicial system.">
This problem is related to the difficult economic situation that emerged from the collapse of the Soviet Union, which appears to have had a more negative impact on men's health.
The problem has been linked to the economic hardship following the collapse of the Soviet Union which appears to more negatively affect men's health than women's.
The problem has been linked to the economic hardship following the collapse of the Soviet Union which appears to more negatively affect men"s health than women"s.">
This problem is related to the fact that public associations in Kazakhstan are subdivided depending on the territorial scope of their activities into:
This problem is related to the procedures for reviewing the Group's reports in the participating organizations, the timing and procedure for submitting such reports to the relevant legislative bodies, and the lack of proper follow-up on the implementation of the decisions taken.
The problem can be traced to procedures followed by the participating organizations in treating the Unit's reports, when and how they present them to their legislative bodies and what they do with the decisions taken.
The problem can be traced to procedures followed by the participating organizations in treating the Unit"s reports, when and how they present them to their legislative bodies and what they do with the decisions taken.">
It is clear that the poorest segments of the population suffer the most from the lack of legal protection, which suggests that this problem is related to socio-economic structure of society (...).
Legal insecurity clearly affects the lower income strata more severely, so that it is considered that the problem is related to the socio-economic structure of society (...).
The problem is related to the socio-economic structure of society (...).">
It came to the conclusion that this problem is related to execution of a decision of the Ministry of Justice in a particular case and cannot be resolved by a decision of a single administrative structure, such as the Ministry of Justice.
It concluded that the problem involved the enforcement of the Justice Ministry's ruling over the case and cannot be resolved by the decision of the Administration alone such as the Ministry of Justice.
The problem involves the enforcement of the Justice Ministry"s ruling over the case and cannot be resolved by the decision of the Administration alone such as the Ministry of Justice.">
Suggest an example
Other results
Fourth aspect this problem is related to such illegal activities as drug trafficking, movement of persons, weapons, smuggling, terrorism, etc.
A fourth aspect has to do with illicit activities such as drug trafficking, trafficking in people and arms, smuggling, terrorism, etc.
Aspect has to do with illicit activities such as drug trafficking, trafficking in people and arms, smuggling, terrorism, etc.">
Therefore, Finland offers two different solutions this problem, associated with using fiber reinforced concrete tanks in cold climates.
This problem of cold climatic areas and the fibre-reinforced plastic tanks.">
This problem directly related to the problem right-wing extremism and racial hatred, as members of the football fan groups most prone to such actions regularly take part in demonstrations and marches of extremist associations.
The issue of spectator violence is directly of rightist extremism and racial hatred, as members of the most risky football fan groups regularly participate in demonstrations and marches organized by extremist groups.
The issue of spectator violence is directly blended together with the issue of rightist extremism and racial hatred, as members of the most risky football fan groups regularly participate in demonstrations and marches organized by extremist groups.">
The information collected through the questionnaire revealed best practices across countries, as well as conceptual, methodological and data problems, connected with measurement of human capital.
Information from the questionnaire identified best practices across countries, as well as conceptual, methodological and data-related issues associated with human capital measurement.
Data-related issues associated with human capital measurement.">
In this regard, the Special Rapporteur would like to emphasize that this problem not connected with an attempt to find an international definition of "indigenous peoples" and cannot be resolved in this way.
In that regard, the Special Rapporteur would like to emphasize that this is not a problem resulting from, or which can be resolved by, attempting to arrive at an international definition of "indigenous peoples".
This is not a problem resulting from, or which can be resolved by, attempting to arrive at an international definition of "indigenous peoples".">
If some aspects this problem is related to political action by States Members of the United Nations, others linked to information-gathering, analysis and early warning activities, for which the mandate of the Special Adviser on the Prevention of Genocide was specifically established.
While some aspects of the problem involved the political responses of States Members of the United Nations, others involved the information collection, analysis and early warning function for which the mandate of the Special Adviser on the Prevention of Genocide was specifically created.
The problem involve the political responses of States Members of the United Nations, others involved the information collection, analysis and early warning function for which the mandate of the Special Adviser on the Prevention of Genocide was specifically created.">
In this case this problem appears inseparably associated with security and democratic stability, as well as health.
