The correlation of in Dubio Pro Reo And In Dubio Pro Duriore Principles in the criminal proceedings of Switzerland and Russia

• Serebrennikova, A.V. ^[1] ; Trefilov, A.A. ^[3] ; Kharlamov, D.D. ^[1] ; Zuykov, A.V. ^[2]
  1. [1] Moscow State University

     Moscow State University

     Rusia

     
  2. [2] Peoples' Friendship University of Russia

     Peoples' Friendship University of Russia

     Rusia

     
  3. [3] Institute of Legislation and Comparative Law

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• Localización: Revista Publicando, ISSN-e 1390-9304, Vol. 5, Nº. 15, 2, 2018, págs. 229-250
• Idioma: inglés
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• Resumen

  • The criminal process in bothSwitzerlandandRussiahas traditionally been related to a mixed type, which assumes that pre-trial stages are based on the inquisitional (investigative) beginning, and judicial - on the adversarial. At the same time, the purpose of legal proceedings, in the opinion of the majority of continental proceduralists, is to establish material truth. It is on its achievement directed investigative and other procedural actions. At the same time, the question inevitably arises about the nature, limits and logic of the cognitive activity of criminal justice bodies. In this regard, the author, on the basis of normative and doctrinal sources, including German, Swiss, Austrian, examines the procedural and legal principles in dubio pro reo (in doubt - in favour of the accused) and in dubio pro duriore (in doubt - according to the strictest version ) on the example of the Swiss and Russian law and order. It is shown that in the criminal justice of these states they balance among themselves and counterbalance each other. According to the European approach discussed in the article, the principle in dubio pro duriore in order to establish the material truth in pre-trial proceedings somewhat restricts, constricts the presumption of innocence. On the contrary, when considering a case in a court of first instance, the latter manifests its full force. In this article it is shown that in the domestic science the principle in dubio pro duriore has not yet been developed, but has become widespread in practice.  In the Russian legal literature, the ratio of the principles in dubio pro reo and in dubio pro duriore has not been studied practically at present either in monographs or in other publications. This article will serve to eliminate and fill this gap.