Certain aspects of the definition of the concept of “evidence” and its properties in criminal proceedings under martial law

Abstract

The authors of the article studied the provisions of the current criminal procedural legislation of Ukraine, the European Convention on Human Rights (1950), the decision of the European Court of Human Rights, the Rome Statute of the International Criminal Court, defined and clarified the concept of “evidence”, its properties, the procedural mechanism for obtaining and evaluating in the conditions of martial law. It has been proven that despite the positive results of legal reform and improvement of the current criminal procedure legislation of Ukraine, the study revealed a number of gaps in the issues related to the definition and clarification of the concept of “evidence”, its properties and the procedural mechanism for obtaining and evaluating it under martial law. The provisions of Art. 86 of the Criminal Procedure Code of Ukraine establishes that evidence is considered admissible if it is obtained in accordance with the procedure established by law. Inadmissible evidence cannot be used when making procedural decisions, it cannot be referred to by the court when passing a court decision. In contrast to the norms of the Rome Statute of the ICC, the established wording is quite categorical and does not provide “flexibility” to the process when resolving this issue by the court. At the same time, the legislator’s position on this issue, which is defined in the provisions of Art. 87 of the Criminal Code of Ukraine and stipulates that evidence obtained as a result of a significant violation of human rights and freedoms guaranteed by the Constitution and laws of Ukraine, international treaties, the consent of which is binding by the Verkhovna Rada of Ukraine, as well as any other evidence obtained thanks to information obtained as a result of a significant violation of human rights and freedoms. In the conditions of martial law, the provisions of this article are applied taking into account the features specified in Art. 615 of the CCP of Ukraine. It has been determined that the specified provisions of the current criminal procedural legislation of Ukraine provide for a procedural approach to the issue of admissibility of evidence, but do not have the primary goal of establishing the truth and, accordingly, achieving justice, which significantly distinguishes this approach from that enshrined in the Rome Statute of the ICC. There was a need to depart from the formal procedural position enshrined in the provisions of the Criminal Procedure Code of Ukraine, to provide courts with flexibility in accepting and evaluating evidence to establish the truth.