Evidence In Criminal Proceedings Research Articles

Legality of application of the provisions of Chapter 17 of the Criminal Procedure Code of Ukraine in order to block websites in criminal proceedings

The purpose of the study is to analyze the case law on blocking websites in criminal proceedings and find the right way to solve this gap in legislation, by arresting in accordance with Chapter 17 of the Criminal Procedure Code of Ukraine, creating conditions for improving criminal procedural law to clearly define the mechanism of blocking websites and formulate appropriate proposals for amendments to the Criminal Procedure Code of Ukraine. Research methods were used to achieve this goal, in the process of scientific research used various methods of scientific knowledge. The methodological basis of scientific work were general scientific methods: theoretical (analysis and synthesis, deduction and induction, systems analysis), as well as empirical research methods, for example, conducting expert evaluation and other methods. Results: the case law on blocking websites in criminal proceedings is analyzed and attention is drawn to the lack of a clear mechanism for restricting access to websites within criminal proceedings. This shows a big problem for making legal judgments. It was concluded that the current version of the Criminal Procedure Code of Ukraine could not be used to block websites. Emphasis is placed on the impossibility of recognizing a web- site as material evidence in criminal proceedings, as this contradicts the legal definition of physical evidence as a material object. The references in the motions of the pre-trial investigation bodies and the decisions of the investigating judges to the fact that the users of the website may have intellectual property rights, as it contradicts the norms of civil law, are considered unfounded. It is proposed to supplement part ten of Article 170 of the Criminal Procedure Code of Ukraine with a new object that can be seized - a website.

Legal regulations of interrogation in conditions of maritime

The article examines the legal regulation of interrogation in martial law. During the statement of the problem it is noted that the imperfect legal regulation of interrogation in peacetime causes an increase in problematic issues of regulatory regulation of this procedural action in martial law. In the course of presenting the main material, the expediency of regulating during the martial law regime the exclusive possibility of the court’s departure from the principle of immediacy of the examination of personal testimony is emphasized. At the same time, the legal regulation of written protocols of interrogation at the stage of pre-trial investigation with the warning of individual participants about criminal liability should be left. Attention is drawn to the fact that the decision to recognize pre-trial testimony as evidence by a court cannot be made formally only in view of the imposition of martial law throughout the country. The court must assess the specific circumstances of the proceedings, the activity of hostilities in a particular area, the level of danger to the participants in criminal proceedings, and so on. It is stated that the legal regulation of international standards in extreme situations allows the recognition as evidence of pre-trial testimony recorded in the interrogation records at the stage of pre-trial investigation. It is concluded that during the martial law regime the legal regulation of interrogation should be carried out in such a way that in exceptional cases the court has the opportunity to deviate from the principle of immediacy of judicial examination of testimony. As a general rule, such cases should provide for the observance of appropriate procedural guarantees of human rights and freedoms in the course of obtaining and recording testimony at the stage of pre-trial investigation. Although in the most extreme situations of criminal proceedings (illness, death, threat of danger, etc.) the court should be able to accept as evidence the results of pre-trial interrogations outside the observance of procedural guarantees. It is concluded that the current legal regulation of interrogation during martial law generally corresponds to the circumstances of the relevant legal regime. At the same time, it is emphasized that the criminal procedural norms regarding the legal regulation of interrogation during the martial law regime need to be improved in relation to the regulation of the exclusive possibility of the court to recognize the results of pre-trial interrogations as evidence in criminal proceedings.

ON THE CONCLUSION OF THE SPECIALIST

The article is devoted to the issues of modern legislative regulation regarding the grounds and requirements for the execution of a conclusion by a specialist in criminal proceedings. The scientific works of outstanding domestic and foreign scientists are analyzed and their great contribution to the study of this topic is indicated. Since they conduct a fundamental analysis of the domestic and foreign heritage on this issue, they help to determine the further debatable direction and carry out the subsequent scientific search. Articles of the Criminal Procedure Code of Ukraine and the Criminal Code of Ukraine regarding the requirements for drawing up a written conclusion of a specialist, as well as articles on the responsibility of an expert and a specialist for introducing false information into the conclusion of the study prepared by them, have been carefully researched and analyzed, and the boundaries of the emergence of a certain responsibility are indicated. It is indicated that the expert's conclusion as one of the sources of evidence in the case allows, at the appropriate scientific level, to objectively and fully solve the designated tasks that require the use of special knowledge. The norms of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine in connection with the adoption of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses” are analyzed. It is indicated that a written conclusion of a specialist can be obtained to clarify the circumstances of the commission of a criminal offense before entering information into the Unified Register of Pre-trial Investigations. It is also indicated that the conclusion of a specialist is recognized as a procedural source of evidence in criminal proceedings on criminal offenses with the proviso that such a procedural source of evidence cannot be used in criminal proceedings for a crime, except on the basis of a ruling by an investigating judge, which is issued at the request of the prosecutor. A comparative analysis was carried out regarding the content of the conclusions of the expert with the conclusions of the specialist. The general and distinctive positions in the written content of the conclusions of a specialist and an expert are indicated. Key words: specialist, expert, the conclusion of a specialist, the conclusion of an expert, criminal offense.

THE ISSUE OF RECOGNITION AS A SOURCE OF EVIDENCE IN CRIMINAL PROCEEDINGS OF ELECTRONIC (DIGITAL) DOCUMENTS

Based on the analysis of the nature of electronic (digital) documents, the article defines the theoretical and practical aspects of recognizing digital documents as a source of evidence in criminal proceedings. It is noted that the carriers of electronic documents can be documents or documents-tangible evidence in terms of procedural significance. I state that the issue of the unity of the content of an electronic document and its form (carrier) is important from the standpoint of the admissibility of an electronic document as evidence. The primary material carrier and the factual data that are of interest to the process of proof must form an inseparable unity, provided that such a carrier, by its procedural nature, is a material evidence document. And such a unity of content and form is not necessary, provided that the carrier of computer data is a document by its procedural nature. Separate recommendations are formulated aimed at ensuring the admissibility of an electronic (digital) document as evidence, in particular: 1) the admissibility of a document as a source of evidence will depend on the accuracy of compliance with the requirements for formalizing the results of an investigative (detective) action, in particular, regarding the description of the content of computer data, their packaging, typographical errors, signing of packaging material, etc.; 2) law enforcement officers must perform all their actions in compliance with the rules apply specifically to the circulation of electronic (digital) documents; 3) for a subject that performs actions to obtain (copy) computer data, it is mandatory to use an electronic signature. This will significantly simplify the decision about proof of the reliability and authorship of the electronic (digital) document. Attention is also focused on the problem of recognition as a source of evidence of electronic documents containing a copy of unstable computer data from cyberspace. Even though the law declares equal conditions for the use of the original electronic (digital) document and its copy in the process of proving, the subject of proof should be as responsible as possible for their proper certification and apply measures aimed at ensuring that the original source is preserved unchanged. Key words: proof, admissibility, electronic (digital) document, electronic media, computer data, factual data.

Current Issues of the Procedural Nature: Proof of Criminal Offenses and Guilt in the Criminal Proceedings of Bosnia and Herzegovina

In this paper, the authors highlighted certain issues that are directly related to the complexity of determining or proving the existence of a particular crime and guilt, taking into account the legal nature and basic specifics of criminal procedure in Bosnia and Herzegovina. Considering the legally regulated stages of criminal procedure, consistency and consistent application of the law as an imperative obligation of all criminal procedural subjects in terms of realization of criminal procedural task is aimed at proper and legal court decision which clarifies and resolves a specific criminal matter. In that sense, the authors paid special attention to the differentiation between intelligence and information on the one hand and evidence in criminal proceedings on the other, then legal collection of evidence, secrecy of the investigation as a basic precondition for effective investigation, and conduct of the hearing. During the hearing, the importance of the criminal procedure was emphasized as the central part, which by the nature of things deserves special interest.

Procedural capacity of use electronic (digital) information as evidence in criminal proceedings

Law enforcement agencies and courts are increasingly investigating factual data (evidence) recorded in electronic (digital) form, which are stored on technical media. At the same time, the national criminal procedure legislation does not contain a clear definition of the term “electronic evidence”, which leads to ambiguous practices of their evaluation and use in the process of proving in the investigation of criminal offenses. The analysis of judicial practice also shows different approaches to assessing the relevance and admissibility of electronic evidence (factual data recorded in electronic (digital) form) in different types of proceedings. The article substantiates the need to define the category of “electronic evidence” in the Criminal Procedure Code of Ukraine and proposes the development of a new paradigm of electronic evidence theory.

THE ADMISSIBILITY OF CRIMINAL CONVICTIONS IN CIVIL PROCEEDINGS

Admissibility of criminal convictions as evidence in criminal proceedings has become a controversial decision of the Court of Appeal of United Kingdom in the case of Hollington v Hewthorn (1943). Since then several follow-up decisions has either adopted this decision and some jurisdictions have rejected it. This article assesses the effect of this decision in four jurisdictions, i.e UK, Australia, Canada and Malaysia. It is found that UK, Australia and Canada have since moved away from this judgement by amendment to their respective Evidence Acts. However, this is not so in the case of Malaysia. This paper recommends that Malaysia revisit section 43 of the Evidence Act 1950 with a view to amend this section to be on par with UK, Australia and Canada.

Regarding the peculiarities of certain methods of gathering evidence in criminal proceedings

The article proposes to improve the classification of methods of gathering evidence (formation of the evidence base of the legal position of a particular subject of evidence) into: (1) methods used by subjects conducting criminal proceedings and (2) methods used by subjects protect their or their interests in criminal proceedings. The essence of certain methods of gathering evidence (formation of the evidence base of the legal position of a particular subject of evidence), in particular, such as: demand and receipt, initiation of investigative (search) actions, as well as other actions by the defense proceedings are underway that are able to ensure the submission of appropriate and admissible evidence to the court. Peculiarities of term use in relation to the named methods in accordance with the current CPC of Ukraine are considered; analyzed issues concerning the objects of demand and receipt, possible both procedural and non-procedural actions that can ensure the submission to the court of appropriate and admissible evidence. Critical remarks were made regarding the procedure of normative regulation and use of one or another method, as well as in general about the expediency of allocating such a method as initiating investigative (search) actions. Regarding the latter, the opinion expressed in the scientific literature that such “initiation of investigative (investigative) actions” should be considered not as a way of gathering evidence by the defense, but as one of the opportunities for the defense to participate in evidence by the prosecution. Particular attention is paid to the peculiarities of documenting the use of all considered methods of gathering evidence (formation of the evidence base of the legal position of a particular subject of evidence).

E‐Evidence Cooperation in Criminal Matters from an EU Perspective

AbstractFor several years there has been debate among EU Member States on the need to regulate cross‐border access to electronic data used as evidence in criminal proceedings and how best to do this. The existing model of cooperation, based mainly on bilateral agreements, appears dysfunctional and is perceived by many as a barrier to effectively combatting rising cross‐border crime. In response, work has begun on several new legal mechanisms, most importantly the draft e‐Evidence Regulation from the European Commission and a proposal to extend the Convention on Cybercrime – already in operation for almost 20 years – with an additional new protocol. At the same time, the United States has proposed its own model of cooperation, arising from the CLOUD Act. This article discusses the current state of play and the expected shape of future regulations – in terms of both facilitating law enforcement cooperation and clarifying obligations imposed on digital service providers.

Electronic evidence in proving crimes of drugs and psychotropic substances turnover

Background: This article is prompted by the increasing levels of crime in the sphere of illicit trafficking in narcotic drugs, psychotropic substances, their analogues, or precursors using information and telecommunication systems. The aim of the article is a comprehensive analysis of the problem of the use of electronic evidence in proving crimes of trafficking in these substances. Methods: A number of methods were used in this article, namely: theoretical analysis – the study and analysis of official documentation, scientific, methodological, and educational literature, summarising information to determine the theoretical and methodological foundations of the study; logical analysis – to formulate basic concepts and classification; concrete-historical analysis – to demonstrate the dynamics of development of the use of electronic evidence in criminal proceedings; the dialectical method – to reveal the meaning of concepts of ‘electronic evidence’. The judicial practice of the Supreme Court of Ukraine regarding the recognition of electronic proof as appropriate evidence in cases is disclosed. The definition of electronic proof in the Ukrainian legal system, as well as the forms and features of electronic proof, are also considered. Results and Conclusions: It is established that the main causes of drug trafficking crimes include insufficient legal regulation of cyberspace, the lack of geographical boundaries, the spread of information about drugs on the Internet, especially on the Darknet, and the uncontrolled development of the cryptocurrency market.

Organizational and procedural aspects of obtaining testimony during a court interrogation

The article makes a meaningful analysis of the scientific works and the rules of the Code of Criminal Procedure of Ukraine, which define the concept of testimony as a procedural source of evidence in criminal proceedings, its methods of obtaining, verifying, and evaluating. The legislative regulations and procedural procedure for the judicial interrogation of participants in criminal proceedings have been studied. Attention is paid to certain innovations in legislation that require scientific understanding, interpretation, and choice of appropriate tactics by a defense attorney, prosecutor, and judge. The methodological basis of the article is the complex application of general methods and special methods of scientific knowledge in its relationship, selected considering the purpose and objectives of the study, its object and theme. By way of conclusion, the proposals and recommendations of an organizational and tactical nature are based, aimed at improving police practice to address the existing problems of obtaining, verifying, and evaluating testimonies in the evidentiary process.

Hearsay evidence as admissible evidence in criminal proceedings

The article is devoted to the study of problematic issues of recognizing hearsay evidence as admissible evidence in criminal proceedings. Hearsay evidence is a statement made orally, in writing or in another form about a certain fact, which is based on the explanation of another person. The scientific literature points out the imperfection of such a definition due to weak regulatory requirements for such procedural evidence and uncertainty about the possibility of giving the court certain documents by a person who is not the author, or the content of the document she read. In addition, a number of scholars point to the importance of such an institution of evidence in criminal proceedings, as sometimes such testimony from others may be the best evidence available.
 Certain contradictions in the conditions of admissibility of using hearsay evidence as a procedural source of evidence, which are enshrined in criminal procedural law, are analyzed. On the example of judicial practice, the peculiarities of the application by national courts of the law on the recognition of hearsay evidence as proof confirming the guilt of a person in committing a criminal offense were considered. Attention is drawn to the need to improve the legislative regulation of hearsay evidence in order to adhere to the principle of direct examination of evidence and presumption of innocence and ensure proof of guilt, which will really help the court to make the right decision and perform criminal proceedings.
 It is noted that the use of such testimony as evidence in criminal proceedings is an exception to the general rule and is a rather controversial institution, as in the science of criminal procedure and jurisprudence there is no consensus on the appropriateness of consolidation or its existence in general. It is concluded that it is appropriate to make changes in the definition of "hearsay evidence", the conditions of admissibility of such testimony and the impossibility of interrogation of the person who is the original source.

Situation of scientific research in the sphere of electronic mapping in criminal proceedings

Considering everything, the accusation of a person is formed due to the available evidence in criminal proceedings, the scientific article pays attention to a new source of evidence - evidence that exists in electronic form.
 It is noted that today scientists call and define the evidence that exists in electronic form in different ways.
 The purpose of the article is to highlight the situation of scientific research in the sphere of electronic mapping in criminal proceedings, which will contribute to the further development of theoretical and practical aspects of the use of evidence that exists in electronic form.
 It draws our attention to the fact that the Commercial Procedural Code of Ukraine, the Code of Administrative Procedure of Ukraine, the Civil Procedure Code of Ukraine enshrine the concept of "electronic evidence" as a separate type of evidence on a par with material and written (documentary). However, there is no such evidence in the Criminal Procedure Code of Ukraine.
 In order to comprehensively cover the state of scientific research on this topic, the author, taking into account the most indicative positions of scientists, was divided into certain blocks by the names of evidence that exist in electronic form: electronic evidence; digital evidence (digital (electronic) evidence); electronic traces (electronic digital footprints, virtual footprints); electronic mapping.
 It is noted that it is inexpedient to enshrine the concept of "electronic footprints" in the Criminal Procedure Code of Ukraine, which will denote evidence that exists in electronic form.
 It is summarized that certain concepts of scientists regarding the name of the category of evidence that exist in electronic form, mainly have common features: "factual data or information system presented in digital (discrete) form or information network and recorded on any type of media" . However, the names of this category of evidence differ significantly, depending on the creative approach of the authors and the definition of certain distinctive features in the concepts of such types of evidence.
 The position of the authors on the title of such evidence "electronic mapping" and the introduction of appropriate amendments to the Criminal Procedure Code of Ukraine is supported.

Legislative Development of Criminal Proceedings and Evidence in the Slovak Republic (1993-2021)

Background: In this article, the author focuses on the legislative development of criminal proceedings and evidence after the establishment of the Slovak Republic. This article pays special attention to the issue of evidence and means of proof. It also deals separately with the legal regulation of using information and technical means. It briefly suggests possible directions of development in the field of evidence, reflecting the current state of development of science and technology, as well as changes in the security situation. Methods: The scientific methods of historical analysis and legal comparison were used to process the research data. Results and Conclusions: Developments in this area are constantly advancing, and the area of evidence in criminal proceedings in the Slovak Republic will inevitably be subject to updating.

Firearms and Toolmark Error Rates

We have outlined several problems with the state of error rate studies on firearm and toolmark examination. Fundamentally, we do not know what the error rate is for these types of comparisons. This is a failure of the scientific study of toolmarks, rather than the examiners themselves, but until this is corrected with multiple studies that meet the criteria described in Section 3, we cannot support the use of this evidence in criminal proceedings.

ЕЛЕКТРОННІ ДОКУМЕНТИ ЯК ДОКАЗИ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ: ПРИРОДА, СТАНОВЛЕННЯ ТА ОСОБЛИВОСТІ ВИКОРИСТАННЯ

The article examines the issue of using electronic documents as evidence in criminal proceedings through the digitalization of justice. The legal principles of the creation of electronic documents in Ukraine as a result of digitization of all spheres of public life are analyzed, in particular, its impact on the ability of electronic documents to acquire evidentiary value, to be recognized as evidence in criminal proceedings. The study of electronic documents as evidence becomes especially relevant in connection with the spread of a new type of criminal offenses committed in the digital space. Based on the legal definitions of the concept of an electronic document as a document in which information is recorded in the form of electronic data, including mandatory requisites of the document, as an electronic form of presenting information, as a way of documenting it, which makes it possible to reproduce information in a visual form suitable for human perception, a conclusion was made about the duality of the essence of an electronic document, which, on the one hand, consists of information, and on the other - of a material carrier - electronic communication devices, on which this information is fixed and with the help of which it is reproduced. In the aspect of the topic of scientific research, the relationship of such concepts as "data" ("factual data"), "information" and "knowledge" was considered and it was concluded that these terms are synonyms. The distribution of electronic documents in law enforcement activities caused the question of the possibility of their use as an evidence base. Article 99 of the Criminal Procedure Code of Ukraine classifies such documents, as well as other media, as evidence. A document is a material object specially created for the purpose of preserving information, which contains information recorded, in particular with the help of written signs, that can be used as evidence of a fact or circumstance established during criminal proceedings. The above shows that the document as evidence combines the form of recording information (material object, information carrier and its features) and its content (information, information that can be used as evidence). The guidelines of international documents, as well as the regulatory principles of some states regarding the introduction of criminal procedural tools for obtaining evidentiary information from electronic noses (legislation of the Baltic countries and France), as well as the views of domestic scientists on these issues, were analyzed. It was concluded that digital information is one of the types of documentary information as such, which is created, stored and transmitted with the help of electronic equipment. At the same time, it does not matter in what form the procedural document is created - paper or electronic, it can perform only one function - to be evidence in criminal proceedings.

ЩОДО РОЗУМІННЯ СПІВВІДНОШЕННЯ ПОНЯТЬ ПРЕДМЕТ ДОКАЗУВАННЯ ТА МЕЖІ ДОКАЗУВАННЯ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ

The article is devoted to the relationship between the subject and the limits of evidence in criminal proceedings, establishing their relationship. The correct definition of these concepts in practice contributes to the fulfillment of the tasks of criminal proceedings, in particular, by establishing all the circumstances that are subject to proof in criminal proceedings. The subject of proof and the limits of proof have been creating a debate among scientists and practitioners for a long time due to their uncertainty, as they are of essential importance for the process of proof in criminal proceedings, and accordingly, the relevance of this topic is obvious. The author of the article aims to solve the problem related to the perception of the subject of proof and the limits of proof as equivalent concepts, to establish the relationship between the subject and the limits of proof in criminal proceedings, to propose possible ways of solving other urgent problems related to the topic of the article. The author considered scientific approaches to understanding the subject of proof and the limits of proof, as well as their practical significance. Problematic issues of the relationship between the subject matter and the limits of evidence in criminal proceedings have been identified. Based on the analysis of the literature and the provisions of the current Criminal Procedure Code of Ukraine, the essential features of these concepts were determined, which further contributed to their delineation. It is proposed to understand the subject and the limits of proof as interrelated categories, but not equivalent.

ОПЕРАТИВНО-РОЗШУКОВЕ ДОКУМЕНТУВАННЯ ЗЛОЧИНІВ: ДО ВИЗНАЧЕННЯ ПОНЯТТЯ

The article is devoted to the study of problematic issues of operational and investigative documentation of crimes by employees of operational units in the interests of criminal justice. The purpose of the article is to analyze the doctrinal approaches to the definition of the concept and content of operational and investigative documentation of crimes and, on this basis, with due regard for its essential features, to formulate the author’s own definition of this concept which would meet the essence of this process and the needs of practice. The article substantiates that for successful operational and investigative documentation of crimes by operatives, it is important that they know the theory of criminal procedural evidence as a methodological basis for operational and investigative documentation, since the theory of criminal procedural evidence reveals such fundamental concepts as evidence, its properties, subject matter of proof, etc. These categories of the theory of criminal procedural evidence orient operatives to the objects of operational and investigative documentation, their features and properties, and give them an idea of what qualities the actual data on the signs of a crime must meet in order to be used as evidence in criminal proceedings. Understanding of the subject matter of proof by operatives enables operatives to understand the amount of information they should receive in the course of operational and investigative documentation. The article covers the following categories: operational search, recording, factual data, operational case, materials of operational search activity, operational search information, operational search support, document of operational search activity, operational search case, operational search cognition, etc. Based on the analysis of the theory of activity, epistemology, systemic and comparative analysis of legal provisions, and doctrinal approaches, the author defines the concept of operational and investigative documentation of crimes. The author concludes that operational and investigative documentation of crimes is the essence of operational and investigative activity and consists in the implementation by authorized officials of law enforcement agencies’ operational units of a set of search and investigative measures established by the Law of Ukraine «On Operational and Investigative Activity» and departmental regulations aimed at learning the circumstances of a crime and reliable reflection (fixation, recording) of the results and procedure of this.

Дослідження окремих різновидів речових доказів у судовому розгляді: деякі питання правозастосування

The author of the article based on the analysis of actual judicial practice, highlights the problem issues of researchof certain varieties of real evidence in court proceedings in accordance with the procedural order regulated Art. 357 ofthe Criminal Procedure Code.First of all, attention is drawn to the problem of review by the court of large in the volume of material objects thatare recognized by material evidence. The author on the basis of litigation and regulatory acts analyzes cases wherea review of real evidence is necessary at the place of their finding. At the same time, the arguments that should be givenin the requests of the criminal proceedings on this review. are emphasized.Secondly, the author of the article reveals the issue of expediency of conducting material objects in court, the evidenceof which is due to their internal properties that are not available for external unpredictable perception. Taking into accountthis analysis, the author proposes to introduce certain changes to Article 23 of the Criminal Procedure Code.And, finally, the author pays attention to the needs of renewal of domestic legislation on the procedure for researchingdigital evidence in criminal proceedings. This is based on the features of such a category of evidence that causes a newunderstanding of the original and copies of information. Given this, the author offers ways to verify digital informationthat will ensure the verification of its authentities and unchanged, produced in science and practice.The conducted research gave reasons to determine the directions of correction of domestic criminal procedurallegislation on this issue, as well as formulate some scientific and applied recommendations on the procedure for studyingthis categories of material evidence in court proceedings.

Principles of evaluation by the Public Prosecutorof evidence in criminal proceedings

Principles of evaluation by the Public Prosecutorof evidence in criminal proceedings