No 2 (2022)

The religious contradictions in multinational countries are inevitable, which is confirmed by world history. To prevent conflicts, the state throughout its existence took the religious feelings of believers under its protection, including through the prosecution of persons who violated criminal standards towards the feelings of the religious believers. The religious feelings protection in itself corresponds to the content of the criminal law principles. However, the concepts of religion, feelings, religious believers, and freedom of conscience and religion used in the disposition of Article 148 of the RF Criminal Code do not have legally enshrined definitions and it is impossible to interpret them officially, since they are rooted in philosophy, psychology, and other branches of science. The inaccuracy of wordings causes the discussion in the scientific community and difficulties in law-enforcement activities. The study covers the problems of defining individual objective and subjective signs of a violation of the right to freedom of conscience and religion (Article 148 of the RF Criminal Code) and searching for ways to resolve them. The authors traced the historical path of development of legislation on the protection of the religious feelings of believers, considered the positions of various scientists from criminalization to decriminalization of criminal standards. The analysis allowed formulating the proposals to exclude parts 1 and 2 of Article 148 of the RF Criminal Code to eliminate the subjective imputation due to the failure to fix legislatively the estimating concepts of feelings and believers. The authors identified the lack of differentiation of religious associations by the legislator and suggested replacing the concept of religious organizations with the concept of religious associations due to the need to protect the rights of representatives of religious groups that are not registered as a legal entity. The authors propose to amend Article 148 of the RF Criminal Code leaving only the obstruction of religious associations, committed with the qualifying factors, and transferring the main actions described in parts 1 and 2 to administrative legislation.

The paper critically evaluates the practice in the Russian criminal procedure when the pre-trial evidence of a suspect or accused beyond volition is included in the body of evidence and used when proving guilt. Having analyzed the factors influencing the estimation of evidence of a suspect or accused, the authors criticize the “double standard” established by law, which is used when evaluating evidence obtained in the presence of a defense lawyer or without one’s participation. The paper proves that the existing legal regulation enshrines different extent of procedural possibilities for the defense by an accused person of one’s interests defined by the presence or absence of a defense lawyer in the pre-trial procedure. Paradoxical as it may sound, when defending interests, the maximum damage is inflicted on those convicted who used the assistance of a defense lawyer during the pre-trial procedure. Having studied the Russian and international practice of evaluating the evidence of a suspect or accused and analyzed current Russian legislation, the authors identified the existing contradictions and proved the necessity to improve the Russian Federation Code of criminal procedure in terms of excluding the statements, which allow using the evidence not confirmed by an accused person given in the presence of a defender. Taking into account that the main disputes occur when evaluating so-called “admissions” of suspects or accused persons, the authors pay special attention to the study of this problem, including in the context of “the fruit of the poisonous tree” scientific doctrine recognized in Russia. The authors see the way out of the current contradiction in the leveling of the relevance of evidence of a suspect or accused in the cases when a suspect does not confirm it in court, regardless of whether a defender participated or not in an investigative interview.                         

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