Evaluation of evidences when applying the "reasonable suspicion" standard of proof by investigating judges

Abstract

The article is devoted to the problem of establishing the factual circumstances of the case at the stage of court control when applying the "reasonable suspicion” standard of proof. The crux of the problem is that, in practice, the vast majority of investigating judges understand this standard of proof as one that relieves them of the obligation to fully evaluate and examine the evidence and provides an opportunity to establish the reasonableness of the suspicion thanks to the so-called "reasonable evaluation of the evidence”. By making such a "reasonable assessment”, the investigating judge, without resorting to a detailed assessment of the person's actions, supposedly only has to make sure that the reported suspicion is well- founded. At the same time, the provided evidence is not subject to the same high requirements as when formulating the final indictment when the case is sent to court. Thus, without evaluating the evidence, investigating judges do not establish the factual circumstances of the case.
 The fallacy of dividing the evaluation of evidence into preliminary and final is substantiated. It is noted that the term "reasonable evaluation of evidence” is not defined either in legislation or in court practice. It is proved that at the stage of court control there is a local subject of proof, which differs from the subject of proof at the stage of consideration of criminal proceedings on the merits. It is substantiated that the evaluation of evidence is an integral part of the process of proving. The internal conviction of the investigating judge (as a result of the evaluation of the evidence), necessary for making a decision on the case, can be formed only as a result of the evaluation of the evidence according to the criteria defined by Art. 94 of the Criminal Procedure Code of Ukraine. "Reasonable evaluation of the evidence” without a detailed assessment of the person's actions and without "high requirements for the provided evidence” does not make it possible to establish the set of circumstances that are part of the local subject of proof and which are necessary for the correct resolution of the relevant procedural issue, and to form the appropriate internal conviction of the judge (as the result of the evaluation of the evidence). Decisions of investigative judges, which are made as a result of the so-called "reasonable evaluation of evidence”, cannot be considered reasoned in the sense of Part 3 of Art. 370 of the Criminal Procedure Code of Ukraine.