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УДК: 34.037
Maiseyeva Iryna
Candidate of Legal Sciences (PhD), Associate Professor Deputy Dean of the Faculty of Law ORCID: 0000-0003-2890-2789 GoogleScholarID: b W8_ UwIAAAAJ Shupitskaya Oksana Candidate of Legal Sciences (PhD), Associate Professor Associate Professor of Department ofInternational Law,
Yanka Kupala State University of Grodno DOI: 10.24411/2520-6990-2019-10529 АРГУМЕНТАЦИЯ КАК СРЕДСТВО ДОКАЗЫВАНИЯ В УГОЛОВНОМ СУДОПРОИЗВОДСТВЕ
Моисеева Ирина Анатольевна
кандидат юридических наук, доцент заместитель декана юридического факультета
ORCID: 0000-0003-2890-2789 GoogleScholarID: b W8_ UwIAAAAJ Шупицкая Оксана Николаевна кандидат юридических наук, доцент доцент кафедры международного права Гродненский государственный университет имени Янки Купалы
ARGUMENTATION AS A MEANS OF PROOF IN CRIMINAL PROCEEDINGS
Abstract
Failure to address or ignore the issues of reasoning in criminal proceedings has a negative impact on the quality of the work of the preliminary investigation bodies and the court. These circumstances have determined the choice of the topic of this study.
The aim is to study the nature and content of the thought-provoking activities of the subjects of evidence in the use of evidence to support the procedural decisions taken in criminal cases.
The object of study is the interconnection of logic and process ofproof in judicial activity. The subject matter is the character of thinking activity of subjects ofproof (the state prosecutor and the defender) on achievement of trustworthy knowledge on circumstances of the made criminal act.
Practical significance - the possibility of using scientific provisions and conclusions of the work in the law enforcement activities ofjudges and prosecutors, in research and teaching activities in the training of specialists in the specialty "Jurisprudence".
Аннотация
Невнимание к вопросам аргументации в уголовном судопроизводстве или их игнорирование негативно сказывается на качестве работы органов предварительного расследования и суда. Указанные обстоятельства определили выбор темы настоящего исследования.
Цель - изучение характера и содержания мыслительной деятельности субъектов доказывания по использованию доказательств для обоснования процессуальных решений, принимаемых по уголовным делам.
Объектом изучения является взаимосвязь логики и процесса доказывания в судебной деятельности. Предметом - характер мыслительной деятельности субъектов доказывания (государственного обвинителя и защитника) по достижению достоверных знаний об обстоятельствах совершенного преступного деяния.
Практическая значимость - возможность использования научных положений и выводов работы в правоприменительной деятельности судей и прокуроров, в научно-исследовательской и педагогической деятельности при подготовке специалистов по специальности «Правоведение».
Key words: arguments, court proceedings, evidence, criminal case, crime, conviction, guilt, innocence, judge, public prosecutor, attorney.
Ключевые слова: аргументы, судебное разбирательство, доказательства, уголовное дело, преступление, осуждение, вина, невиновность, судья, прокурор, адвокат.
Introduction. The resolution of any criminal case in court is limited to the determination of whether or not a certain criminal event exists and the application of the criminal law to it. Knowledge of the law is not
enough to solve these problems. The presentation of false arguments can cause very significant harm to the rights and legitimate interests of man and citizen in the field of law, as in no other area of public life. The price
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of error is too high: the fate of people depends on it to a greater or lesser extent.
Main part. Belief is one of the main problems of intellectual activity. Each of us has his or her own principles, ideals and values, according to which our daily activities are organized. However, we believe that the rest of the people with whom we have to communicate should have similar views. If this is not the case, we seek to convince them of our own rightness and the truth of our principles through a theory of reasoning that can be understood in both a narrow and a broad sense. Broadly speaking, argumentation is an intellectual activity with the ultimate goal of convincing the recipient of the information of the validity or inadequacy of the statements in question. In a narrow sense argumentation is the restoration of the sequence of statements that lead to some assertion.
Argumentation is understood by researchers in several ways:
1) as an art of strong evidence of what has been said (in other words, an art of discussion);
2) as a logical operation, which is a combination of judgments;
3) as a logical and communicative process aimed at substantiating the speaker's position in order to understand and accept this position by another person.
Arguments are made by means of speech. The whole point of the rhetoric is the idea of the audience sharing with the speaker any opinion and the meaning of the judgment conveyed to them. The key factor in understanding the nature of rhetorical reasoning is the factor of the audience, as any substantiated evidence needs listeners. A necessary condition for judicial reasoning is the audience's willingness to perceive the messages as an argument in favor of a certain position.
Rhetoric is the basis of judicial argumentation, as it is based on oral speech. Court reasoning is impossible without an adversarial approach [1, p. 5259].
To be successful in court it is necessary to win and keep the attention of the judicial audience in a tense anticipation until the end of the speech. Listeners' attention to the speaker's words depends on several factors: the degree of interest in the topic; the speaker's skill; his or her personal qualities; and the listeners' psychological mood. To make the audience of the court a part of the speaker's thoughts and feelings, to make them reflect together with the speaker at the court (public prosecutor or attorney) on the issues raised is an indicator of the speaker's high level of speaking skills [2, p. 331].
The task of attracting and retaining the attention of the court audience is most relevant for the attorney, as the defending speech is delivered after the indictment, the lawyer is faced with the need to shift the attention of listeners who are impressed by the speech of the public prosecutor. The first condition for sustained attention is that the content of the speech corresponds to the interests and attitudes of the audience.
The trial is a strictly regulated speech situation which creates such relations between the participants that require them to perform certain speech actions, which are carried out in a strictly defined order, defined
by the Criminal Procedure Code, and are saturated with standardized units and stamps.
The persuasive effect of a speech by a public prosecutor or attorney is not based on the number of arguments, but on their quality: one argument may have persuasive force; conversely, the absence of a single argument may render the entire evidence untenable. To pick up strong and convincing arguments is not a simple matter. There are no special rules that can be remembered and applied in any situation. Much depends on the general erudition of the speaker (public prosecutor or attorney), his thorough knowledge of the subject, the speed of his reaction, his resourcefulness and ingenuity, and his understanding of the audience. It is important to select the only right words that will have the desired impact on the court audience in this particular situation.
In court, the truth is not simply established, but proved by the parties. A court verdict must combine rational truth with ethical truth.
The search for truth in court is a specific problem that requires a judge to make moral and willful efforts. The court must choose between the arguments of the parties. It is a choice between the versions, each of which can be confirmed by some evidence, that is, has a certain probability.
In the course of argumentation, it is important for the public prosecutor and attorney to distinguish between "fact" and "opinion". A fact is a real event or phenomenon that actually happened. Opinion is a judgment expressing an assessment, attitude, and view of something. Facts exist objectively, regardless of our assessment and purpose of use. Opinions can be biased, subjective, erroneous. Therefore, facts are more reliable arguments. In argumentation, a fact is considered to be the strongest argument, if it is not accidental. Any fact must be substantiated, correctly interpreted scientifically.
Evidence is a fact when it is given in support of another fact. The fact is the information about what was (is). The concept of "fact" is both narrower and broader than the concept of "proof" formulated by the Criminal Procedure Code of the Republic of Belarus in part 1 of article 88. [3] The Code defines evidence as any information on the basis of which the circumstances sought are established, whereas only reliable information may be a fact. Evidence submitted by a party (public prosecutor or attorney) may be only information obtained from sources provided for in article 88, part 2, of the Code of Criminal Procedure. But the concept of "fact" does not include the source of information. Thus, there is a "fact" and there is a "source of information" submitted by the parties to confirm their position. Any evidence that is presented and investigated in court is only an assumption in the argumentation system. The content of no single source of evidence can be taken for granted as truth. The truth of the judicial fact is that it is accepted by the judge on the basis of the results of verification and evaluation as a reliable information and is used as the basis for the verdict [4, p. 9-11].
Legal reasoning is an integral part of the theory of evidence. The value of an evidentiary fact increases if the conclusion based on this fact is a more
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likely conclusion than other conclusions or explanations of this fact (and if any, they are less likely or natural). The degree of force required will vary according to the different types of evidence, depending in some ways on the differing perceptions of human experience of these facts, the practical suitability of stronger facts. This explains the importance of an adversarial procedure that compares all possible explanations from the perspective of the competing parties. The public prosecutor offers his or her evidence. The attorney criticizes it, explains it in his own way. The public prosecutor and the attorney shall present their interpretations of the fact to the court. The court must examine each part of the evidence first from the point of view of the public prosecutor, then from the point of view of the lawyer. Thus, the judicial reasoning takes place directly before the people who have the power to resolve the dispute on its merits -the judges. The system of argumentation is based on the recognition of judges (ordinary people, not machines and supernatural beings) capable of establishing facts and making the right decision, guided by reason and a sense of justice [1, p. 52-59].
The understanding of argumentation in logic and rhetoric is different. In logic argumentation is connected with proof. And in rhetoric argumentation is connected with conviction. Conviction by its very nature is close to proof, but not identical to it. By its very nature, conviction is broader than proof. In logical proving, the requirement of truth is obligatory, while in rhetorical argumentation its plausibility is sufficient. Moreover, the use of precise knowledge in speech is not yet a guarantee of persuasion, since only an educated or specially trained audience can evaluate a speech based on knowledge. Therefore, the speaker who wants to achieve the audience's accession to their point of view, has to adjust to the level of training of their audience.
The legal reasoning is characterized by the following features:
1. The jurisprudence proclaims the principle of presumption of innocence: a person is considered guilty only when proven guilty. There is no need to prove innocence. In support of this, we give an example from the judicial practice. Sh. and V. were accused that, acting together with other unidentified persons, a group of persons carried out illegal cutting of trees by prior agreement. By their actions, the accused caused damage on a particularly large scale. In addition, S. and V. were accused of forgery of documents and use of knowingly false documents, that is, of committing crimes under part 2 of article 277 and part 2 of article 380 of the Criminal Code of the Republic of Belarus [5]. In the court session, the accused did not plead guilty, although at the stage of pre-trial proceedings they confessed. The defendants showed that they were not engaged in illegal felling of trees. They confessed to committing the crime at the request of others. In addition, they were misled, saying that, having taken the blame for the actions of other persons, they will be brought not to criminal, but to administrative responsibility, and all monetary penalties for them will be paid. One of the evidences of guilt of the accused by the prosecution was presented by the confessions of S. and V., given by
them during the preliminary investigation. The defense insisted on the innocence of the accused people taking into account the testimony of the accused in court about their noninvolvement in the commission of the crime. At the request of the defense, new witnesses were questioned in court, including to confirm the "alibi" of the accused people and to refute the prosecution case. Data on telephone connections to the subscriber numbers of not only the accused, but also of all witnesses were requested. The court, having examined the submitted evidence, came to the conclusion that the testimony of the accused about their involvement in the illegal felling of trees was unreliable during the preliminary investigation. Also, the court, having checked and evaluated the submitted evidence, came to the conclusion that the charges brought against S. and V. were not confirmed by sufficient evidence, and the accused people were to be acquitted due to the lack of proof of their participation in the commission of the crime under part 2 of article 277 of the Criminal Code of the Republic of Belarus [6]. At the same time, in science, negative evidence that such a fact does not exist has equal force with positive evidence that such a fact does exist. Similarly, the fact that the evidence of innocence is not sufficient does not mean that a person is truly innocent.
2. In court, facts obtained illegally cannot serve as evidence, while logic is indifferent to the ways of obtaining evidence. Let's result some examples as the proof of the truth of the told. Homel regional court questioned the expert during the trial of the case against L. without expert examination, and his testimony in the verdict was given as the testimony of a specialist. However, the specialist's opinion is not evidence of a crime committed by a person, since for this purpose it should be contained only in the expert's opinion. The court's verdict was overturned [7]. Another example. Examining the criminal case against C., H. and S., the court of Zavadski district of Minsk found out that during the forensic drug examination during the preliminary investigation the members of the expert commission were not warned about the criminal responsibility for giving a false conclusion, as well as for refusing to perform their duties. Having recognized this violation of the criminal procedure law as essential, the court reasonably appointed a second forensic drug examination against the accused people [7].
3. In practice, there are situations when it is necessary to deal with a conflict of norms of law. The question arises about the balance of different interests. For example, when an important politician's unsightly past is published in the press, what is more important - the journalist's right to freedom of expression or the right to privacy? There are even more complex cases. For example, the court releases the victim from the courtroom as a security measure, guided by article 68 of the Criminal Procedure Code of the Republic of Belarus. Meanwhile, in this situation, the accused cannot properly exercise his or her right to defense by asking questions to the victim and directly examining the evidence, as provided for in article 43 of the Code of Criminal Procedure of the Republic of Belarus.
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4. A jurist is bound by procedural deadlines in resolving a dispute, unlike a philosopher, logic or historian. A jurist cannot tell the parties: "Wait for new evidence to emerge".
5. In law, the court should pay attention to the impact of the sentence on society, its opinion and mood. From the point of view of logic, the acquittal of the guilty and the conviction of the innocent do not differ from each other. But if we pay attention to the impression that each of them makes on society, we should recognize that the harm from the sentence condemning the innocent is much greater than the harm from the acquittal of the guilty. In addition, the theory of evidence in a criminal case in court should be based on the judge's internal, freely formed, and not predetermined by any external, legal criterion of the judge's conviction. The law only provides a framework for forming such a belief, but does not impose it.
6. In rhetorical proving, as opposed to logical proving, the conclusion does not necessarily follow from the given arguments: the same arguments can lead to opposite conclusions, and from several parcels one single conclusion can follow. The reasoning in law may be rhetorical. Such a situation arises, for example, when a person has actually committed a crime, but denies it. In this situation, the defender does not have the right to declare the guilt of the defendant in accordance with the law. However, whether such argumentation will achieve the result, i.e. whether the judge will be convinced of the innocence of the accused in case of insufficiently weighty arguments of the defense, is a question that remains open.
Thus, argumentation in law is rhetorical rather than logical.
7. Logical reasoning is designed for a universal audience: the assumptions used and the conclusions based on them are obvious and absolutely correct, independent of place, time and social conditions, and that these conclusions have equal weight for everyone. The reasoning in rhetoric, including in a criminal case in court, initially assumes that there are other points of view on the problem. In this case, it is necessary to resolve the existing doubts.
Moreover, the power of argument in rhetoric, unlike logic, can change depending on the situation: a change in the historical, political, cultural or social situation inevitably leads to a change in the interpretation of the former rules of law and changes the persuasive power of the former arguments.
8. Argumentation elements of the evidentiary process in a criminal case before a court of first instance have their own peculiarities. In the substantive sense, the process of proving a criminal case is of a retrospective nature: the court session learns about the circumstances that have occurred in the past; the arguments act as a link between the knowledge of information on the criminal case and the conviction of the correctness of a particular position in the criminal case [8, p. 7-12].
9. Logical reasoning often requires special knowledge and terminology. That is why, when evaluating the attorney's defensive speech in court debates,
the average person often pays attention not to the logical arguments of the attorney, but to his oratory art.
Conclusions. As a result of the study, the authors believe it is necessary to draw the following conclusions:
Speaking in the debate at a criminal trial is a logical reasoning process. The main thing in it is to establish or refute the grounds for applying the punishment to the person who committed the crime. Detection of presence in the act of the person of structure of an incriminated crime, that is proving (argumentation) is the essence of criminal proceedings.
The judicial truth is the legal truth. Its reality is the law. Its reasonableness is the absence of reasonable doubt. In the field of judicial argumentation, common sense and public opinion are the indicators of truth.
List of literature
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