Evidence In Criminal Proceedings Research Articles

Fixation of evidence in the course of proving

The article deals with criminal procedural regulation of the powers of the parties to criminal proceedings, the investigating judge, the court to consolidate evidence in the evidentiary process. Criminal procedural scientific and methodological sources, textbooks are analyzed to clarify the essence of the construction of "consolidation of evidence". The position of scientists on the coverage of the "consolidation of evidence" activities related to the adaptation of traces of the crime and other facts to use in evidence hsd been supported. The competence of different subjects of evidence at the stages of pre-trial investigation and trial to consolidate evidence in criminal proceedings is differentiated. It is proved that the consolidation of evidence is carried out mainly at the stage of pre-trial investigation by the parties during the collection of evidence and by the investigating judge during the control court proceedings. In addition, in exceptional cases, the consolidation of evidence may be carried out by a judge (court) when collecting evidence during the trial. The attention has been paid to the relevance of qualitative regulation of the use of computer data in the collection (consolidation) of evidence. Electronic data placed on flash media should be referred to as "computer data". The factual data contained in this computer data, by their procedural nature, act as evi-dence, and the computer data itself - the procedural source of evidence. Namely - a document, because the document in accordance with Art. 84, 99 of the CPC of Ukraine is one of the types of procedural sources of evidence. The author has argued that the need to assign "computer data" to a separate type of evidence (they supplement Part 2 of Article 84 of the CPC of Ukraine) stems from the peculiarities of fixing computer data during their collection and due to the specifics of computer data, ease their modification and destruction, the difficulty of ensuring their authentication (creating appropriate conditions to allow further verification of their authenticity). The construction of "consolidation of evidence", in particular, should cover special criminal procedural rules and the procedure for converting computer data into a written form of existence, suitable for direct human perception and preservation for further use in evidence with the obligatory observance of the condition – creation of possibility of repeated authentication of such data.

Сущность собирания доказательств в уголовном судопроизводстве (на примере уголовно-процессуального законодательства России и Узбекистана)

Настоящей статьей автор продолжает цикл своих научных публикаций, посвящённых исследованию структуры уголовно-процессуального доказывания. На основании высказанных аргументов автор приходит к выводу о необходимости частичного пересмотра своей прежней позиции, предполагающей рассмотрение категорий «собирание доказательств» и «формирование доказательств» как двух автономных способов осуществления первого этапа доказывания. Вместо этого автор предлагает придавать категории «собирание доказательств» несколько условное значение, понимая под ней любые формы поведения участников уголовного судопроизводства, направленные на получение и последующую процессуализацию полезной информации.

Доказательства в уголовном судопроизводстве (к 125-летию со дня рождения М. С. Строговича)

Доказательства в уголовном судопроизводстве (к 125-летию со дня рождения М. С. Строговича)

Features of the investigation of genocide

The article is devoted to the consideration of such a resonant crime as genocide. The purpose of the article is to form an idea ofgenocide as a crime, its investigation on the basis of analyzed regulations and investigations of this category of crimes.Particular attention is paid to the definition of the term “genocide” in accordance with national and international law (the definitionof the term is considered in the Criminal Code of Ukraine and the Convention on the Prevention and Punishment of the Crime of Genocide).The procedure of recognizing acts as genocide (the Holodomor of 1932–1933 in Ukraine; deportation of Crimean Tatars fromCrimea in 1944 as genocide of the Crimean Tatar people) and coverage of such events by the international community is studied.The process of genocide investigation is considered, taking into account the term of the crime, the number of victims and thedamage caused.One of the most resonant crimes provided by the Law of Ukraine on Criminal Liability is genocide. The scale of this illegal acthas aroused civil society for a long time, but only now, in the territory of independent Ukraine, it is possible to identify those responsiblefor the genocide and bring them to justice. It is impossible to ignore the fact that the investigation of genocide and the prosecution ofthose responsible for its commission is an extremely relevant process that requires special knowledge and skills in conducting an investigation.Officials who gather evidence in criminal proceedings, find persons involved in the crime and carry out other actions aimedat establishing the truth in the case, bear a huge burden of responsibility in the form of evidence.The investigation process consists of a set of necessary investigative (search) actions and must meet the requirements for theirconduct. It is necessary to involve in the investigation trained officers who have knowledge in this area and can clearly formulate a planof investigative (search) actions, and move in this direction.

ELEKTRONİK DELİLİN TOPLANMASI VE MUHAFAZASI

Elektronik delilin ceza yargılamasında kullanılabilmesi veri bütünlüğünün korunmuş olmasına bağlıdır. Zira bir elektronik delilin veri bütünlüğünün bozulmuş olması onun geçerliliğini de olumsuz etkileyecek ve ispat fonksiyonunun ortadan kalkmasına neden olabilecektir. Bir elektronik verinin bozulmasına neden olabilecek durumların başında ise onun uygun koşullarda toplanmamış ve muhafaza edilmemiş olması yer almaktadır. Bu bakımdan elektronik delilin yapısı itibariyle hassas özellik arz etmesi ve kolay bozulabilen nitelikte olması bu delilin toplanması sırasında bazı temel ilkelere uyulmasını, delil toplama sürecinde canlı analiz, imaj alma, hash değeri alma, zaman damgası ve koruma zinciri gibi bazı işlemlerin yapılmasını ve toplanan elektronik verilerin uygun şartlarda muhafaza edilmesini gerekli kılmaktadır. Biz de bu çalışmamızda elektronik delilin toplanması ve muhafazası sürecinde uyulması gereken prensipleri ve yapılması gereken işlemleri ele aldık.

Inadmissibility of Evidence in Criminal Proceedings in Ukraine

The aim of the article is to analyze the problematic aspects of finding evidence inadmissible in criminal proceedings, as well as to formulate, according to the Criminal Procedure Code of Ukraine (CCP of Ukraine) and the case law of the European Court of Human Rights (ECHR), proposals for elimination of existing shortcomings on the issue raised. In the article used general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, modelling, abstraction, generalization and logical, are applied. The problematic issues of the procedure for finding evidence inadmissible in the criminal proceedings of Ukraine are studied. The significant violations and shortcomings in collecting evidence by the pre-trial investigation bodies are under focus. The authors clarify grounds for the inadmissibility of evidence and the types of inadmissible evidence. The analysis of investigative practice and case-law enables to conclude that a violation in taking one piece of evidence in criminal proceedings may lead to finding a number of other pieces of evidence inadmissible (the doctrine of the fruit of the poisonous tree). The authors argue that the court should be proactive in resolving the issue of inadmissibility of evidence either on its own motion or on the motion by parties to criminal proceedings. The utilization of the case law of the ECHR in national law application activities are analyzed from legal perspective. The study establishes that ratio decidendi of the ECHR with regard to finding evidence inadmissible is that the issue of its inadmissibility is subject to regulation at the level of national law. The assessment of inadmissibility of evidence is the responsibility of national courts, and the ECHR is obliged to ensure that the means of taking evidence are fair.

LEGAL STANDARDS OF THE EUROPEAN COURT OF HUMAN RIGHTS REGARDING REQUIREMENTS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINFL PROCEEDINGS

The article deals with the requirements of the European Court of Human Rights regarding evidence and evidence, which are disclosed in the provision of paragraph 3 of Article 6 “The right to a fair trial” of the Convention for the Protection of Human Rights and Fundamental Freedoms, the latest practice of the Supreme Court regarding the criteria for admissibility of evidence and analysis of the current criminal procedural law. As you know, the attitude of the state towards the protection of human rights and freedoms is one of the indicators of its democracy. Ukraine has chosen the European Community as the main strategic vector of development. Such a vector provides for the unification of the regulatory framework in accordance with European legislation, as well as compliance by law enforcement agencies with international standards for the protection of the rights and freedoms of citizens. That is why, the corresponding rule is enshrined in the Criminal Procedure Code of Ukraine, providing that the rule of law in criminal proceedings is applied taking into account the practice of the European Court of Human Rights (part 2 of article 8). A detailed analysis of the provisions of the Criminal Procedure Code of Ukraine regarding the admissibility of evidence in criminal proceedings and the relationship of these norms with the legal positions of the European Court of Human Rights is carried out. They also examined the requirements of the European Court of Human Rights regarding the admissibility of evidence in decisions in which a violation by the state of the norms of the Convention was found, and in decisions in which such a violation was not found. So, summarizing and analyzing the practice of the ECHR, we saw that the Court emphasizes that a guilty verdict cannot be generally based only on inadmissible evidence, and if such a sentence is pronounced, then this is a violation of Article 1 6 of the Convention in respect of an unfair trial. Therefore, the investigator, prosecutor, investigating judge and judge should take into account the relevant practice of the ECHR and the norms of the Convention in their procedural activities in order to avoid these violations and to submit complaints to the European Court of Human Rights in the future.

Використання електронних доказів у кримінальному процесі

The scientific article pays attention to the use of electronic evidence in criminal proceedings. The mechanism of proof on the basis of electronic evidence is considered, and therefore the concept of «electronic evidence» and their types are investigated. The position of scientists in the specified subjects and recommendations on modification of the legislation deserves special attention. Keywords: electronic evidence, criminal proceedings, investigation, trial

Prospective Role of Advanced Technologies in Forensic Science in Averting Harassment of Accused in India

The present work addresses the impact of modern scientific techniques of investigations on the rights of accused. The dramatic scientific breakthroughs in forensic science like new scientific instrumentation, DNA typing and physical evidence databases have contributed to evidence in criminal proceedings over the years. A systematic change in investigations can be brought by applying the 7 basic principles of forensic science capable of giving impartial results. Increasing the reliance on objective forms of evidence, result oriented investigation based on scientific methods will prevent futile harassment of accused.

About the properties of evidence in criminal proceedings

About the properties of evidence in criminal proceedings

Ensuring of the rights and legal interests of the person in the conditions of “digitalization” of criminal proceedings

The article identifies and characterizes perspective vectors of digital transformation of pre-trial investigation through the prism of ensuring the rights and legitimate interests of the individual.
 In particular, the first vector of digital transformation of pre-trial investigation is the improvement of the national model of detection and disclosure of criminal offenses. Its separation is due to the fact that the rules of the current criminal procedural legislation differ with certain archaicity about the latest manifestations of illegal acts on the network, since they contain general rules for the protection of rights and legitimate interests of a person against threats in reality, without considering the possibility of committing criminal offenses online. The main directions of this vector include: (1) determining the position of digital information and its media in the system of procedural sources of evidence; (2) expanding the legislatively regulated ways of generating evidentiary information in criminal proceedings; (3) change of conceptual approaches to the verification and evaluation of evidence in criminal proceedings.
 At the same time, the second vector of digital transformation of pre-trial investigation should be the creation of a digital platform for the interaction of the criminal proceedings subjects. The article highlights the potential directions for implementing the idea of creating a designated platform: a) fixing the possibility of filing an application, notification of a criminal offense through electronic appeal; b) the creation of a single electronic register of pre-trial investigation and trial materials, which should ensure free access of parties to the material of proceedings. According to the authors of the article, such access to the materials of the proceedings should provide various possibilities: (1) online submission of procedural documents, exchange of documents between participants, courts, institutions; (2) online access to all publicly available material; (3) ensuring the identification of a person in criminal proceedings by means of an electronic signature whereby it can be established that the document is signed electronically by a specific person; (4) messaging online; (5) obtaining the results of the consideration of the petitions by the parties to the proceedings, and more.

О некоторых правилах оценки допустимости доказательств в уголовном судопроизводстве

The article considers the rules for assessing the admissibility of evidence in criminal proceedings, highlights the cases of recognition of evidence inadmissible in criminal proceedings; identifies typical errors in assessing the admissibility of evidence in practice. The author analyzes existing approaches to defining the concept of admissibility and its criteria. Based on the analysis of investigative and judicial practice, the author draws conclusions about the rules for assessing the admissibility of evidence, which include: the presence of an appropriate subject authorized to carry out criminal proceedings; the source from which the evidentiary information was obtained; the investigative action, as a result of which the evidentiary information was obtained; as well as the absence of violations of the procedure (procedural order) for the production of a specific investigative action. The article provides a list of cases when the subject of obtaining evidence must be found to be improper in relation to each subject: the investigator, investigator, and judge conducting criminal proceedings. The author has identified significant errors in investigative and judicial practice, if they are admitted, the evidence must be considered inadmissible.

Subject and limits of examination evidence in the proceedings of the criminal case in the court of first instance

The article analyzes the norms of the criminal procedure law, the opinions of scientists, judicial practice materials related to the examination of evidence in criminal proceedings in the court of first instance, on the basis of which the author proposed definitions of the notions subject of examination evidence and limits of examination evidence they were compared with the concepts of subject of proof and limits of proof. The study used such research methods as logical, system-structural, statistical. As a result of a study of specific court decisions in criminal cases, differences in the understanding of evidence and the examination of evidence were revealed. A distinction has been made between the subject and the object of the study of evidence at the court hearing. The question of determining the subject matter and the limits of the examination of evidence was analyzed, including with regard to the consideration of the criminal case in a special order of judicial decision of the court, with the consent of the accused with the accusation. The rationale for the view that the examination of evidence takes place during the examination of a criminal case under a special court procedure is given, the circumstances that can be established during the court session, namely, the circumstances that may lead to exemption from punishment, as well as the postponement are analyzed. serving the sentence. These circumstances, if any, are mandatory to be established in court proceedings through the examination of evidence. According to the results of the analysis, proposed measures to improve the norms of the criminal procedure law governing the consideration of the criminal case in a special order of the trial. The question of the scope of the examination of evidence was considered in conjunction with the norms of the criminal procedure law, which established the grounds for the return of the criminal case to the prosecutor.

Experts and pretenders: Examining possible responses to misconduct by experts in criminal trials in England and Wales

Much academic literature explores the reliability of expert evidence in criminal proceedings in England and Wales. However, almost no attention has been paid to misconduct by experts giving evidence in criminal cases. Whilst rare, its serious impact on the administration of justice and public trust in it means that this area requires analysis. This article explores possible responses to expert witness misconduct occurring in the context of criminal proceedings in England and Wales, noting particularly the differences in responses available, depending firstly upon whether the expert is a registered professional, and secondly whether the expert has stepped outside of their expertise; did not have relevant expertise at all, or was dishonest. Professional disciplinary procedures focus on ‘fitness to practise’, and it is argued that this is sufficient where a registered professional has overstepped their expertise, but has not displayed mala fides. On the contrary, where someone gives evidence purporting to have expertise that they do not, or lies about their conduct as an expert in the case, criminal sanctions are available, appropriate, and should be used. These include contempt of court; perverting the course of justice; fraud by false representation, and perjury.

PROCEDURAL FEATURES OF INVESTIGATORS (SEARCH) ACTIONS AS MEANS OF COLLECTING EVIDENCE IN CRIMINAL PROCEEDINGS AGAINST JUVENILES

The relevance of the article is that evidence in criminal proceedings is the most important part, which is carried out in the manner prescribed by law by the investigator, prosecutor, investigating judge and court with the participation of other participants in criminal proceedings to collect, verify and evaluate factual data (evidence) to establish the reality, substantiate the conclusions and decisions taken. The procedural form of proof is determined by its content. In essence, proving includes cognitive, communicative, witnessing, and mental activity. The first element of the process of proving is the collection of evidence, which consists in identifying sources and carriers of evidentiary information, obtaining, seizing material evidence, fixing, fixing in the statutory procedural form of factual data. One of the most effective procedural ways of gathering evidence is investigative (search) actions. The aim of the work is to analyze the current criminal procedure legislation and the position of scholars on the theory of criminal procedure on the procedure for conducting investigative (search) actions during the investigation of criminal offenses committed by minors. The article is devoted to the study of procedural features of investigative (search) actions with the participation of a minor. Problems were clarified and proposals for their solution were proposed by making changes and additions to the criminal procedural legislation to ensure the realization of procedural rights and legitimate interests of the juvenile. It is concluded that the conduct of investigative (search) actions as a means of obtaining evidence in criminal proceedings against minors are based on the characteristics of the subject of such proceedings - minors. In order to ensure the realization of the procedural rights of a minor, it is proposed to enshrine in the CPC of Ukraine certain provisions that will formulate an order that least disrupts the normal lifestyle of a minor and will correspond to his age and psychological characteristics.

Regulatory framework of technical-forensic research

The basic normative legal acts regulating carrying out of researches connected with forensic engineering as a section of forensics are considered. The law regulates the conduct of investigative actions in the detection, recording, seizure and investigation of objects that contain forensically significant information and can be used as evidence in criminal proceedings. The basic provisions of the Constitution of Ukraine are considered, which must be observed during conducting of forensic investigations. According to the author, in the draft law "On forensic activity in Ukraine" among the terms that are used in the text of the bill itself and are important for interpretation, namely: "expert institution", "head of expert institution". The head of the expert institution is the subject of the expert activity, but his authority, the amount of work performed, the competence is somewhat different from that of the ordinary expert. Therefore, it is necessary not only to provide the definition of the head of the expert institution, but also to supplement the bill with a separate article, where to state its rights and responsibilities. The following definition of the head of an expert institution is considered appropriate: "a person who performs the function of leadership during the organization and conduct of judicial examination in a subordinate unit". The author does not support the views of some scholars on the need to regulate these examina-tions in the Criminal Procedure Code of Ukraine (CCP). In our opinion, the types of expertise are of sci-entific rather than procedural importance, so it is not necessary to burden the CCP of Ukraine with unnec-essary provisions.

Заключение эксперта или специалиста по результатам тестирования с использованием полиграфа не является доказательством в уголовном судопроизводстве

Заключение эксперта или специалиста по результатам тестирования с использованием полиграфа не является доказательством в уголовном судопроизводстве

Theoretical aspects of determining the content of forensic economic expertise

Introduction. At the present stage, the reforms being implemented in Ukraine are often accompanied by an increase in crime in the economic and financial spheres. And this poses the greatest and real threat to Ukraine's national security. In order to identify illegal economic activity and gather evidence in criminal proceedings, it is necessary to possess not only legal knowledge, but also special – economic. Therefore, forensic economic examinations can be considered as the most effective measure of gathering evidence on economic crime. The purpose of the paper is to study and analyze the main scientific and practical approaches regarding the interpretation of the content and essence of the concept of "forensic economic expertise." Results. In order to achieve this objective, the article identified and achieved the following objectives: Analysis and evaluation of approaches of domestic and foreign scientists and practitioners regarding the definition and interpretation of the concept of forensic economic expertise; Components of forensic and economic expertise have been identified. The methodological basis of the study was terminological analysis, which was used to disclose and clarify theoretical provisions that reveal the essential nature, peculiarities and nuances of scientists "views on the interpretation of the concept of forensic economic expertise; The method of scientific abstraction and concretization - with the author 's formulation of the constituent parts of forensic economic expertise and the formulation of the author 's definition of the concept of forensic economic expertise; Abstract-logical method – to formulate theoretical generalizations and conclusions of the study. Conclusion. Thus, according to the results of the study, there is no common position among scientists and practitioners on the definition of forensic economic expertise; It is noted that the definition of the essence of forensic economic expertise is divided by scientists into the following categories, such as: science, part of the study, method, process, type, procedural form; Attention was drawn to the homonymity in the interpretation of the concept of forensic economic expertise; The need for legislative consolidation of the concept of forensic economic expertise and its further elaboration is proposed and justified; Based on an analysis of the definitions of expertise and judicial economics, an author 's definition of forensic economic expertise has been proposed; The need for new theoretical developments and differentiation of existing scientific views and approaches regarding the interpretation of the content of forensic economic expertise is justified, which, in turn, will allow to expand the range of their functional purpose and increase the efficiency of practical application.

Technical Solutions for Legal Challenges: Equality of Arms in Criminal Proceedings

Abstract The paper focuses on how computational models and methods impact on current legal systems, and in particular, on criminal justice. While the discussion about the suitabilty of the exploitation of learning machines and Artificial Intelligence (AI) either as surveillance means and human substitutes in the judicial decision-making process is arising, the authors reflect upon the risk of using AI and algorithm-based evidence in criminal proceedings. The claim of the paper is twofold: on the one hand, we should reinterpret todays legal frameworks, e. g. the European Convention of Human Rights, shifting the attention from possible violations of the right to privacy to potential infringements on a basic fair trial feature, the Equality of Arms. On the other hand, we should aknowledge that main legal issues, triggered by the breathtaking advancements in AI, can properly be addressed mainly through technical solutions (e. g. methods for assessing the completeness and correctness of digital evidence related to mobile devices and conversations). No legal theory, which overlooks the crossover of juridical and computational expertise, will survive the present time.

ЗАБЕЗПЕЧЕННЯ СЛІДЧИМ СУДДЕЮ ДОКАЗУВАННЯ ПІД ЧАС НАДАННЯ ДОЗВОЛУ НА ПРОВЕДЕННЯ ТИМЧАСОВОГО ДОСТУПУ ДО РЕЧЕЙ І ДОКУМЕНТІВ

Judicial control is one of the key guarantees of legality and reasonableness of restriction of rights, freedoms and legitimate interests of a person in criminal proceedings, guaranteed by the Constitution of Ukraine. Judicial control in criminal proceedings is entrusted to the investigating judge. The effectiveness of the examination by investigating judges of petitions, complaints, allegations of procedural actions related to the restriction of rights, freedoms and legitimate interests of persons in criminal proceedings, evaluation of evidence on which they are based, as well as fairness, legality, motivation and validity of investigators relevant rulings and the legitimacy of the restriction of the rights, freedoms and legitimate interests of individuals in the course of their implementation certainly depends on the proper provision of evidence by investigating judges in criminal proceedings. The purpose of the article is to develop theoretical provisions and practical recommendations aimed at providing the investigating judge with evidence in criminal proceedings during the granting of permission for temporary access to things and documents. Problematic issues of providing the investigating judge with evidence during the granting of temporary access to things and documents have been identified: the lack of legal opportunity for the investigating judge to hear any witness, victim or to demand things or documents during the consideration of petitions; non-compliance by the parties to the criminal proceedings with the requirements of Part 2 of Art. 160 of the CPC of Ukraine during the preparation, submission and consideration of applications for temporary access to things and documents; the investigating judge does not have the authority to return petitions for temporary access to things and documents in case of their non-com-pliance with the requirements of Art. 160 of the Criminal Procedure Code of Ukraine; the absence in the CPC of Ukraine of a rule on the mandatory consideration of requests for temporary access to things and documents that contain a secret protected by law, in a closed court session; uncertainty in the CPC of Ukraine of the period during which the investigating judge must consider the request for temporary access to things and documents. It is concluded that the investigating judge, providing evidence when granting permission for temporary access to things and documents, when checking them in terms of legality and reasonableness must establish: 1) compliance of the request for temporary access to things and documents to the requirements, provided by 160 of the Criminal Procedure Code of Ukraine; 2) information contained in things and documents may be used as evidence in criminal proceedings; 3) if it is impossible to prove in other ways the circumstances which are supposed to be proved by means of these things and documents; 4) there is a real threat of alteration or destruction of things and documents that are important for criminal procedural evidence; 5) if they cannot be obtained as a result of the use of other means of obtaining evidence (demand of things and documents, conducting SRD and NSDS); 6) evidence confirming the arguments of the petition of the parties to the criminal proceedings.