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Evaluation of proof in the constitutional judicial procedure of Russia and United States: arbitrary assessment of evidence or standards of proof?
Abstract.The article examines approaches to the assessment of evidence used by Russian and American courts. The main purpose of the paper was to identify the distinctive features of judicial review of legislation that a lawmaker should take into account while selecting optimal rules for the assessment of evidence in constitutional litigation. The author pays particular attention to the epistemological foundations and procedural aspects of a direct perception of evidence that leads to a conclusion on whether or not facts at issue exist. Using methods of comparative law and analyzing in detail the rules on the assessment of evidence, he determines the historical reasons why Russia adopted the concept of free evaluation of evidence, whereas the United States opted for the objective standards of proof, such as «preponderance of the evidence», «clear and convincing evidence», and «beyond a reasonable doubt». The article demonstrates that rules on the assessment of evidence should take into consideration the structural properties inherent to constitutional litigation, including the consequences of the constitutional decision-making process, the necessity to decide constitutional cases on a probabilistic basis, and the generalized nature of facts affecting the constitutionality of laws.
Keywords: constitutional justice, inquisitorial system of justice, adversarial system of justice, standards of proof, free evaluation of evidence, constitutional litigation, assessment of evidence, legislative fact, probability, relevance of evidence
Article was received:31-01-2018
This article written in Russian. You can find full text of article in Russian here .