Schwartz, O.A. Once again on the objective truth and active role of court in a criminal process

Abstract: Due to the introduction into the State Duma of the draft Federal Law “On amendments to the Criminal Procedural Code of the Russian Federation due to introduction of the institution of establishing the objective truth in a criminal case” and the statement in its explanatory note that the requirement on finding objective truth in a criminal process is traditional for Russia and provided for by the Charter of Criminal Judicial Proceedings of 1864, the author provides analysis of the text of the Charter of Criminal Judicial Proceedings, explanatory note and commentary to it, as well as scientific works of the renowned lawyers of the time in order to find out the attitude of the drafters of the Charter towards establishment of objective truth, adversarial character and active role of court in the process. In the process of writing the article the author employed the standard methods for the legal studies: analytic, historical legal and comparative legal methods. Based upon the studies of the above-mentioned sources the author makes a conclusion that at that time a number of leading lawyers supported the position, according to which legal cognition is probabilistic, and there was a concept of criminal judicial authenticity. The Charter of Criminal Judicial Proceedings referred to the need to achieve material truth as opposed to the pre-existing principle of achieving a formal truth, that is the need to prove guilt of a criminal defendant at any cost. The drafters of the Charters required that judges provide scrupulous analysis of evidence presented by the parties in adversarial process in accordance with their inner conviction. At the same time, there was a negative attitude towards overly active role of the presiding judge in the Criminal Procedural Code of France.

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