THE PROBLEM OF ASYMMETRY OF THE PROCEDURAL CAPABILITIES OF THE PROSECUTION AND THE DEFENSE IN PROOF

Abstract

The adversarial principle presupposes a reasonable balance between the possibilities of the parties to defend their procedural positions. This requirement primarily refers to the ability of the parties to take part in the proof. It is obvious that today the defense side does not have the same opportunities to participate in the proof with the prosecution. First of all, this state of affairs applies to pre-trial proceedings. The literature substantiates the thesis that the procedural inequality of the parties in the proof is compensated by the principle of "favor defensionis". This principle allows the defense to achieve its goals solely on the refutation of the evidence collected by the prosecution and ascertaining the shortcomings in the prosecution's scheme. The article substantiates the point of view that the purpose of modern criminal proceedings does not allow the defense side to solve the tasks facing it, using only passive methods of refuting the accusation. From the point of view of maintaining the balance of the parties, the need for effective, including active, possibilities of proof for the defense side becomes completely justified. It is concluded that ensuring equal opportunities for the parties in proving in any case should provide for a mechanism for implementing the initiative of the defense to collect factual data in the case, that is, active opportunities for its participation in proving a criminal case.