The constitutional prohibition of the use of evidence obtained in violation of the law in the practice of the Supreme Court of the Russian Federation

Belyshkov Dmitry Sergeevich ORCID: 0000-0002-7279-7421 Postgraduate student; Faculty of Law; State Academic University of Humanities 26 Maronovsky Lane, Moscow, 119049, Russia belyshkov@mail.ru

The constitutional prohibition on the use of evidence obtained in violation of federal law is the cornerstone of guarantees of individual rights in criminal proceedings. However, its practical implementation faces systemic contradictions due to the conflict between the need to ensure legality and the desire to establish the material truth. The Supreme Court of the Russian Federation, acting as an interpreter of constitutional norms in judicial acts, sometimes demonstrates inconsistency in assessing the admissibility of evidence, which gives rise to discussions about the limits of judicial discretion. The purpose of the article is to identify the key problems of applying the constitutional prohibition in the practice of the Supreme Court of the Russian Federation and propose a model for its unification based on a balance between the rights of the accused and public interests. The methodology of the article is based on a historical and legal approach, comparative legal analysis, and content analysis. The historical and legal method allowed us to trace the evolution of the approaches of the Supreme Court of the Russian Federation, identifying three key periods. Comparative legal analysis was used to compare the norms of the Constitution of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and their interpretations in judicial practice, which revealed legal conflicts. Qualitative content analysis is used to systematize terms ("materiality of violation", "bona fide violation"). Together, these methods provided a comprehensive study of the problem, combining a retrospective, an analysis of current norms and a predictive proposal for the introduction of a classification. The novelty of this study lies in the proposal to classify criteria for the materiality of violations as grounds for recognizing evidence as inadmissible based on changes in the practice of the Supreme Court of Russia within the selected periods.

As established by part 2 of Article 50 of the Constitution of the Russian Federation and article 75 of the Code of Criminal Procedure of the Russian Federation, the evidence base formed in violation of the requirements of federal legislation cannot be recognized as permissible in court proceedings. These legal provisions, fixed in these normative acts, are combined in the legal doctrine under the generalizing concept of "constitutional inadmissibility of unlawfully obtained evidence."

The motives for the ban on the use of evidence obtained in violation of federal law are embedded in the practice of violence, torture and other ill-treatment, which violated the constitutional rights to personal integrity and dignity of the individual, as pointed out by O. N. Nadonenko ^{[1, pp. 20-24.]}, V. I. Kachalov, O. V. Kachalova, E. V. Markovicheva ^{[2, p. 23]}, E. B. Mizulina ^[3].

The "period of formal legality" in relation to the assessment of violations obtained in the collection of evidence

The institution of a ban on the use of illegally acquired evidence entered the Russian legal system simultaneously with the adoption of basic versions of both the Basic Law of the country and the criminal procedure norms. It is noteworthy that the essence of these legal provisions has been preserved without editorial changes since their initial consolidation. However, over the years of law enforcement activity, the interpretation and implementation of the constitutional principle of the inadmissibility of evidence obtained in violation have undergone a serious transformation. Judicial practice demonstrates an evolutionary approach to the interpretation of these norms, reflecting changing ideas about procedural justice and the balance of interests of the parties to the proceedings.

The literal interpretation of the prohibition is that any violation of the law entails the impossibility of using evidence. In 1995, the Supreme Court of the Russian Federation restricted violations that could serve as an obstacle to their use as evidence. According to paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 8 dated October 31, 1995 "On certain issues of Application by Courts of the Constitution of the Russian Federation in the administration of Justice", the grounds for declaring evidence inadmissible include:

1. non-observance of constitutional guarantees of individual rights and freedoms;

2. procedural violations in the formation of the evidence base in the criminal process;

3. obtaining evidence by persons or authorities who do not have the appropriate authority, or using methods not regulated by procedural rules.

These formulations were universal in nature, which, in accordance with the literal interpretation of the highest court, made it possible to sift out evidence for any deviations from legislative requirements, including even formal procedural errors. At the same time, the legislator did not provide for any restrictive framework regarding the extent or nature of the violations identified. This interpretation set a precedent for the strictest approach to assessing the legality of evidence sources in judicial practice.

In legal doctrine and practice, this approach has been adopted ambiguously. On the one hand, scientists recognize that strict observance of the law is required, because otherwise any evidence that contradicts the very essence of the law may be obtained and used (A. Shurygin ^[4], V. V. Kaznacheisky ^{[5, pp. 26-30]}), and its violation should entail the negative consequence of excluding evidence. On the other hand, the exclusion of evidence for a reason that is not significant may lead to an unfair release of the guilty person from criminal liability, which should not be allowed (L. N. Maslennikova ^[6], N. Gasparyan ^[7]). The discussion is relevant at the moment.

At the turn of the century, courts actively excluded evidence on formal grounds ^[7], which led to mass acquittals, which did not meet the goals of the criminal law, and probably led to a change in the practice of the Supreme Court of the Russian Federation. Until 2004, the practice of the Supreme Court of the Russian Federation can be considered as a "Period of formal legality." Official opinions and approaches were not expressed, which entailed unconditional compliance with the constitutional prohibition on the use of evidence obtained in violation of the law. However, the "Period of formal legality" dragged on and gave rise to a practice that did not suit the Supreme Court of the Russian Federation, as indicated in judicial acts on specific cases from 2004 to 2017. The designated time period can be called the "Period of variability", since the opinion of the supreme court has changed in the process of considering specific violations, but has not yet taken final form.

The "period of variability" in relation to the assessment of violations obtained in the collection of evidence

The starting point of the stage under consideration was the issuance of Resolution No. 1 of the Plenum of the Supreme Court of the Russian Federation dated 05.03.2004, where the supreme court for the first time established the obligation of courts to establish specific forms of manifestation of identified violations when assessing the admissibility of evidence. However, the court did not specify for what purpose it was necessary to clarify the essence of the violation, which was actually accepted as a formal requirement for the reasoned part of the judicial act. Later, the Supreme Court of the Russian Federation began to set out its approach more clearly.

In the framework of the cassation proceedings (Ruling of the Supreme Court of the Russian Federation No. 59-009-26 dated 08/19/2009), the supreme court pointed out a procedural gap: the submitted evidence was obtained before the official initiation of criminal proceedings, which excluded the possibility of lawful seizure of the object according to the rules of art. 183 of the CPC RF. The court emphasized that in such a situation, the investigator did not have legitimate grounds for conducting a seizure, since the procedural actions at the pre-trial stage were strictly limited by the law. Thus, without disputing the existence of a formal violation of the law, the evidence was nevertheless recognized as permissible, which in fact contradicted the constitutional prohibition and the earlier Resolution of the Plenum of the Supreme Court of the Russian Federation dated 31.10.1995 No. 8 "On certain issues of application by courts of the Constitution of the Russian Federation in the administration of justice." Further practice developed in the same direction.

According to the Appellate Ruling of 07.11.2014 No. 23-APU14-10, the Supreme Court of the Russian Federation indicated that "the absence of ... signatures ... of witnesses on the packages with the seized ..." does not entail the recognition of the exclusion of the protocol of the inspection of the scene. The examples shown were acts on specific criminal cases, which did not give the courts the freedom to borrow experience and recognize evidence obtained with minor violations of the law as acceptable.

The "period of objective truth" regarding the assessment of violations obtained during the collection of evidence

Only the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2017 No. 51 "On the practice of applying legislation in the consideration of criminal cases in the court of First Instance (general procedure of judicial proceedings)" finally changed the practice. The act contained a provision stating that not any violations of the law prevent the use of evidence, but only "significant" ones. Also, violations of not any law, but only the criminal procedure law are an obstacle to the use of evidence.

At the same time, the criteria for significant violations were not disclosed, which led to a greater problem in the practice of applying Part 2 of Article 50 of the Constitution of the Russian Federation, Article 75 of the Code of Criminal Procedure of the Russian Federation. Previously, the courts had to exclude all evidence that violated the law, which was more in line with the interests of the accused, whereas on December 19, 2017, the "Period of Objective Truth" began, in which the courts determine the materiality of the violation, which is more in line with public interests to the detriment of the accused.

In legal doctrine, some scientists adhere to the formal approach of the need to exclude evidence regardless of the materiality of the violation based on the direct instructions of the law. For example, T. Y. Vilkova, T. Y. Maksimova, A. A. Nichiporenko ^{[8, pp. 132-141]} believe that, given that there are no criteria for materiality, any evidence that is in doubt as to whether the violation is significant should be excluded, which corresponds to the direct instructions of the law. VS Balakshin ^{[9, pp. 24-33]}, without focusing on the position of the Supreme Court of the Russian Federation, points out that the current version of Article 75 is imperfect and needs to be improved, since the recognition of evidence as inadmissible should proceed only from the rule of law, and not from the explanations of the supreme court. Another part supports the current position of the Supreme Court of the Russian Federation and believes that it is necessary to exclude only evidence that does not comply with certain provisions of the law, which requires clarification of the criteria of materiality. Thus, A.V. Smirnov ^{[10, pp. 20-23]} expands the position of the Supreme Court of the Russian Federation, pointing out that those violations that contradict not only formal criteria, but also affect material criteria, and therefore acquire a "fatal character", should be considered significant. A. E. Sitnikov ^[11] emphasizing the problem of the lack of criteria. The author suggests clarifying them by linking them to the violation of the criminal procedural rights of participants in the criminal process, the principles of the criminal process, as well as the requirements for the forms of procedural documents. A similar position is held by A. S. Yesina and M. A. Chikovani ^[12], additionally pointing out that a significant violation is also the collection of evidence by an improper subject. V. N. Isaenko, Yu. Ya. Vlasov ^{[13, pp. 59-65]} consider the legislative norm of art. 75 of the Criminal Procedure Law to be imperfect, positively assess the explanations of the Supreme Court of the Russian Federation, pointing out that even in an imperfect form they are more specific than the norms of the law.

However, the specification of criteria for the materiality of violations has not been developed at the moment. Scientists also disagree on which violations should be recognized as grounds for excluding evidence, which indicates an insufficient degree of study of the issue under consideration.

In this regard, dualism of approaches remains in the Russian doctrine at the moment. On the one hand, the formal prohibition does not allow for exceptions, on the other hand, the practice of the Supreme Court of the Russian Federation provides for the possibility of maintaining evidentiary force in case of "minor" violations. This dichotomy creates legal uncertainty. At the same time, the courts are obliged to follow the approach of the Supreme Court of the Russian Federation, since their decision to exclude evidence of a formal violation can in any case be overturned by the supreme court.

By itself, the approach to excluding evidence in the presence of only a significant violation is correct, since any violation cannot be used as an excuse if the culpability is objectively established by reliable data. But assigning the courts the duty to assess the materiality of evidence is reckless and generates a de facto "principle of good faith violation" for law enforcement agencies, which does not comply with the principle of legality.

The "principle of fair violation" that we have named is an informal approach that has developed in judicial practice, based on the right of judges to independently determine the degree of significance of procedural violations committed during the formation of evidence. The essence of this concept is as follows: even if deviations from legal norms are identified during investigative actions, the materials obtained may retain legal significance if the court classifies violations as "insignificant" or "involuntary" (that is, committed without intent and without distortion of information).

Thus, law enforcement officers who have committed formal omissions are given the opportunity to use such evidence in the process if the court finds that the error arose as a result of objective circumstances rather than systemic disregard for the law. This doctrine, without being directly enshrined in legislation, actually mitigates the effect of the ban on the use of materials obtained with violations, introducing the criterion of "reasonable tolerance" of procedural errors.

This doctrine weakens the protection of the rights of the accused, since the courts, in an effort to secure a guilty verdict, tend to justify violations committed by the investigation. For example, evidence obtained during an illegal search may be retained if the court considers it to be "reliable." This contradicts the principle of legality, which requires strict observance of procedural guarantees.

The lack of clear boundaries between "significant" and "minor" violations creates an incentive for the investigation to ignore the procedural rules, relying on the "loyalty" of the court. For example, non-compliance with the right to defense may be justified by referring to the investigator's "good faith violations."

Thus, the "principle of fair violation" transforms procedural guarantees into an instrument of flexible law enforcement, where the interests of the prosecution prevail over the protection of the constitutional rights of the individual. This calls into question the implementation of Part 2 of Article 50 of the Constitution of the Russian Federation.

To overcome the existing legal uncertainty, it is advisable to systematize violations affecting the admissibility of evidence through the creation and legislative consolidation of a hierarchical list. Such a catalog should clearly differentiate the degree of materiality of violations, based on their relationship to protected legal values, and provide for appropriate procedural consequences. Since the prohibition on the use of impermissible evidence follows from constitutional principles, the classification of violations should reflect their significance in the context of the protection of human rights, enshrined in both national and international law.

It is proposed to consolidate the following catalog of the materiality of violations within the framework of the constitutional prohibition on the use of evidence obtained in violation of the law:

1. Violation of constitutional rights and freedoms. This category should entail the unconditional recognition of evidence as inadmissible, since the Constitution of the Russian Federation has the highest legal force (art. 15), and its norms guarantee fundamental individual rights (for example, the right to inviolability of the home — art. 25). Ignoring these guarantees undermines the legitimacy of the entire process, even if culpability is established. Example: evidence obtained through a search without a court decision automatically becomes invalid, as it violates the provisions of Article 25. This ensures respect for the rule of law and prevents abuse by law enforcement agencies.

2. Violation of international human rights standards. International acts are integrated into the Russian legal system (Article 15 of the Constitution of the Russian Federation), but their application often requires interpretation taking into account the national context. For example, a violation of the time limits for notification of detention provided for by international standards may be considered insignificant if it did not affect the fairness of the proceedings. However, systematic disregard of such norms (for example, torture) should unambiguously exclude evidence.

3. Procedural violations. Mistakes in procedural actions (for example, failure to comply with the interrogation procedure under Article 189 of the Criminal Procedure Code of the Russian Federation) are not always fatal. Their materiality should be assessed through the prism of their impact on the reliability of evidence and the rights of the participants in the process. Thus, the absence of a signature understood in the search report may be considered insignificant if the authenticity of the evidence is confirmed by other means. However, if the violation distorted the meaning of the evidence (for example, the absence of a person's admission as a specialist in compliance with the law), it is subject to exclusion. This criterion balances the rigor of the procedure and the effectiveness of justice.

4. Violation of other provisions of the law. This category includes violations that do not directly affect the rights of the accused or the evidentiary procedure (for example, technical errors in documents). They are recognized as significant only in exceptional cases when they create risks of judicial error. For example, a typo in the decision to initiate a case, which does not prevent its identification, does not entail the exclusion of evidence. However, violations of the procedural law leading to the loss of evidence should be recognized as significant. This provides flexibility by preventing formalism.

The dynamics of law enforcement and the evolution of legal standards require that the catalog remain open. This will allow for the inclusion of new types of violations identified in practice, without frequent changes to the law. For example, the development of digital technologies may require that the catalog be supplemented with regulations on the illegal collection of digital data. At the same time, the final assessment of materiality should remain with the court, which corresponds to the principle of judicial independence (Article 120 of the Constitution of the Russian Federation). This approach minimizes the risks of "bona fide mistakes" by law enforcement, while maintaining a balance between protecting rights and effective prosecution.

The proposed catalog should be implemented in the next Resolution of the Plenum of the Supreme Court of the Russian Federation, which will be a consistent and logical conclusion of the "Period of objective Truth" and will allow us to move into a "Balanced period" that will combine equally the public interests and the rights of the accused.

The practice of the Supreme Court of the Russian Federation in the field of constitutional prohibition demonstrates the need to find a balance between formalism and flexibility. The proposed measures, the standardization of criteria for the materiality of a violation, can strengthen criminal procedure legislation by creating legal certainty in the implementation of the constitutional prohibition on the use of evidence obtained in violation of the law.

The current lack of attention to the enforcement of Part 2 of Article 50 of the Constitution of the Russian Federation leads to differences in judicial practice and a violation of the balance of the rights of the accused and public interests.

Conclusions

Thus, the evolution of approaches to the admissibility of evidence in Russian criminal proceedings reflects a deep conflict between formal guarantees of legality and the pragmatics of law enforcement. The introduction of the "period of objective truth" in 2017, fixed by Resolution No. 51 of the Plenum of the Supreme Court of the Russian Federation, shifted the focus from the unconditional exclusion of evidence violating the law to an assessment of its materiality. This gave rise to the "Principle of Good Faith Infringement", which allows preserving the evidentiary value of materials obtained with procedural violations if the court designates them as insignificant. However, the lack of clear criteria for materiality has led to legal uncertainty, weakened protection of the rights of the accused and risks of abuse by the investigation. The dualism between constitutional prohibition and judicial practice threatens the rule of law by transforming procedural guarantees into a flexible prosecution tool.

To overcome these contradictions, it is necessary to systematize violations through the legislative consolidation of a hierarchical catalog that differentiates their significance. The proposed classification, based on the priority of constitutional rights, international standards, criminal procedure legislation and technical errors, will eliminate subjectivity in the assessment of evidence. The open nature of the catalog, which allows for the inclusion of new types of violations (for example, those related to digital technologies), will ensure adaptation to the dynamics of law enforcement. This approach will restore the balance between personal protection and the effectiveness of criminal prosecution, minimizing the risks of "bona fide mistakes" and returning the role of a guarantor of justice rather than a formality to procedural norms.