Proof In Criminal Proceedings Research Articles

The subject of proof in the criminal process of Ukraine

The article claims that the process of proving is the main content of criminal procedural activity. It is thanks to this process that the tasks of criminal procedure are fulfilled and the objective truth is established in criminal justice. The subject of proof in criminal proceedings is one of the key categories related to the process of proving. Establishing all the circumstances that characterize such a subject contribute to a full pre-trial investigation and trial. A conclusion has been formulated, according to which evidence in a criminal procedure should be understood as the activity of the subjects of criminal justice in relation to the collection, verification and evaluation of evidence and their procedural sources, as well as the formulation of a certain thesis (accusatory or exculpatory) on this basis and the submission of arguments in support of it. This activity is retrospective in nature. The purpose of cognition in criminal proceedings is to establish a certain set of circumstances of a criminal offense, which have been called “the subject of proof in a criminal procedure.” The list of such circumstances is defined in Art. 91 of the Code of Criminal Procedure (CCP) of Ukraine. The subject of proof in a criminal proceeding is the list of circumstances provided for by the Criminal Procedure Law of Ukraine, which must be established in each criminal proceeding and ensure the adoption of a corresponding procedural decision. The list of circumstances to be ascertained in criminal proceedings regarding criminal offenses committed by minors should be considered as a supplementary, clarifying subject of proof in relation to the general subject of proof. Circumstances to be established during criminal proceedings regarding the application of coercive measures of an breeding nature in relation to minors who have not reached the age of criminal responsibility, and regarding the use of coercive measures of a medical nature constitute a separate, independent subject of proof in a criminal process, determined by the characteristics of a person who has committed a socially-dangerous act, and the specifics of the criminal procedural form.

The situation of "double protection" and its impact on evidence in criminal proceedings: appearance analysis and recommendations to lawyers

Relevance. A lawyer, not being a subject of proof in criminal proceedings, nevertheless, is an active participant in the proof process, which he carries out throughout his activities to protect his client from suspicion or formed and put forward an accusatory thesis. At the same time, the current situation of "double protection" significantly hinders the participation of a lawyer in proving innocence or lesser guilt in comparison with the accusatory thesis put forward, and at the same time establishes an obstacle to the implementation of the provisions enshrined in Article 48 of the Constitution of the Russian Federation, which enshrines the right of everyone to receive qualified legal assistance. The situation of "double protection" is one of the most negative factors in advocacy. In order to avoid the occurrence of a "double protection" situation, the author proposes an algorithm of actions when entering the process as a defender.Objective: to develop an algorithm for entering the process in order to avoid a situation of "double protection".The purpose of the study is to continue the research of advocacy in criminal proceedings, refuting the arguments of the prosecution and proving the innocence or lesser guilt of the defendant.Methodology. The methodological basis of the research was the universal dialectical method of cognition of socio-legal phenomena, general scientific research methods (analysis and synthesis, deduction and induction, system-structural and others). In addition, private scientific methods of cognition were used logical-formal and system analysis.The results of the study are both theoretical and applied in nature, and have elements of scientific novelty. The author considers the issues of the lawyer's entry into the criminal process by appointment, proposes an algorithm for the lawyer's actions in order to avoid possible violations and the emergence of a situation of "double protection".Conclusions. The discussion of the identified problems will allow us to develop solutions to eliminate the identified gaps in the implementation of protection in criminal proceedings, protect lawyers from possible violations of internal corporate regulations.

Стандарт доказывания в уголовном процессе в контексте расследования высокодоходных преступлений (сравнительно-правовой аспект)

The article considers approaches to the legislative regulation of the standard of proof in criminal proceedings and its practical interpretation in Russia and abroad (in particular, in England, Germany, the USA and France). The author finds that the standard of proof of guilt in domestic criminal proceedings, which requires that all irremovable doubts be resolved in favour of the accused (article 14 (3) of the CPC of the RF), significantly expands the constitutional prescription, which lacks any indication of the necessity of such an evaluation of all (!) irremovable doubts (article 49 of the Constitution of the RF). At the same time, the law does not offer any additional criteria that could help to assess such doubts. Such an approach severely limits the possibilities of proof in complex criminal cases (especially high-profit crimes), where some doubts may always remain, and does not allow for a proper assessment of circumstantial evidence.

Digital Evidence as a Means of Proof in Criminal Proceedings

Objective: The purpose of this investigation is to specify the correct treatment of digital evidence to be admissible within the judicial process, respecting guarantees and fundamental rights of people. Method: Digital evidence is information stored on a technological device that is propagated through cyberspace. The computer record is accessible by people, electronics, or computers and is collected from a digital device. Also identify the procedure for obtaining, preserving, analyzing, and presenting digital evidence before the Judge. This theoretical review of sources was prepared under the systematic verification methodology, usable in the Scopus, Ebscohost, Scielo, Core, IG Global, Ciencia Latina, Latindex, Jurn, Openaire, and Redalyc databases of advantageous configuration and in Spanish for the last 5 years. Results and Conclusions: Based on the results obtained, the importance of the treatment of digital evidence as an instrument of proof is inferred, for the evaluation of the judge as an element of conviction in a criminal process. It is concluded that digital evidence has particular characteristics that distinguish it from physical evidence and procedural rules do not regulate its proper treatment, and are currently considered documentary evidence. Research implications: The article reflects the drawbacks from its definition, mention of current legislation, treatment in the judicial process, and its implication in the field of computer forensic digital evidence. Originality/value: It can be copied without any limit. It performed technically this procedure and with the appropriate tools, it can clone the information while maintaining the originality of its characteristics.

Rules of the organization of effective justice (guidelines) a tool for the application of judicial discretion and the exercise of discretionary powers of the court

The article analyzes the essence of the concepts of «discretionary powers» and «judicial discretion», their correlation; the essence of the concept of «guidelines», their legal nature and role as a tool for the application of judicial discretion in exercising discretionary powers by the court are defined. On the basis of a comparative analysis of the legal norms of civil and criminal procedural laws, the limits of the court's discretion, limits and direction of the judge's discretion are determined. It has been established that none of judicial proceeding can do without discretionary norms, and therefore without judicial discretion, however, the limits of discretion vary depending on the type of judicial proceeding and the stage of consideration of the case. This conclusion was made on the basis of a comparative analysis of the norms of civil and criminal procedural laws in terms of court evaluation of evidence. Thus, the difference in the discretionary powers of the court is due to the higher standard of proof in criminal proceedings, compared with civil ones. On the basis of the analysis of the functions of punishment and the principle of its individualization, a conclusion was made about the direction of judicial discretion in the exercise of discretionary powers during the imposition of punishment and, thus, it was demonstrated that discretionary powers are a specific means of legal protection. Discretionary powers and judicial discretion are independent concepts. In procedural codes, discretion begins with issues of recusals/self-recusals and ends with the imposition of punishment (in criminal proseedings). On the basis of the analysis of the provisions of procedural norms (civil and criminal), which determine the grounds for the removal of a judge, in particular, «the presence of other circumstances that raise doubts about the judge's impartiality», a conclusion was made about the possibility of such an interpretation that would allow arbitrariness, abuse and even corruption risks. The unpredictability and lack of understanding of the grounds for recusal in the absence of unanimous practice of national courts may call into question the guarantees provided for in Article 6 of the European Convention on Human Rights, namely the right to a fair trial. The essence of the guidelines comes down to the fact that judges, having determined the range of issues that cause the most controversy and in respect of which the legislation allows wide discretion, formulate a certain set of rules, how they generally interpret the corresponding «discretionary norms». The range of issues, the solution of which can be unified by including them in guidelines, can be as follows: valid reasons for postponing the trial; establishment of regulations for the speeches of the participants; order of calls and notifications of the parties; the procedure for agreeing the dates of court sessions, etc. The advantages of guidelines are named. Thus, discretionary powers are defined as the legislative basis for the application of judicial discretion – the intellectual and volitional activity of a judge, the direction of which is determined by the observance of the rule of law. Guidelines are rules of soft law that determine how judges apply judicial discretion to the discretionary powers granted to them. Key words: rules of the organization of effective justice, guidelines, judicial discretion, discretionary powers, standart of proof, rule of law

GENERAL CHARACTERISTICS OF PROVING IN CRIMINAL PROCEEDINGS

Some issues of proof in criminal proceedings, the specifics of the process of proving are discussed in the article. The author gives judgments on the optimization of the process of proof in criminal proceedings.

Cognition and Proof in Criminal Proceedings: Problems of the Correlation of Concepts

The author examines an issue that is still debatable in the science of criminal procedure law — the correlation between the concepts of «cognition» and «criminal procedural proof». There is no unity of views among scholars regarding this point. The goal of the research is the critical assessment of arguments presented by those researchers who equate cognition and criminal procedure proof, as well as the presentation of reasons proving that these concepts are in a generic-specific relation. The author also argues for the necessity of differentiating between such concepts as cognition, cognition in a criminal case, criminal procedural cognition and proof, and presents her own opinion regarding their content and correlation. The author used the general scientific methods of theoretical analysis, synthesis, formal logic legal interpretation, generalization and systematization of research data. The logical analysis identified some drawbacks and contradictions in the argumentation of scholars regarding the issues discussed in the article. It is concluded that criminal procedural cognition, and such its important part as proof, is a particular, specific type of cognition which cannot but demonstrate regularities common for any cognition. Besides, cognition is impossible without proof, but not vice versa. Disagreeing with the scholars who understand proving only as an activity carried out by the proceedings’ participants in order to justify conclusions, the author states that cognition and justification are two aspects of proof in the criminal proceedings. According to the legislative definition of proving it should be understood as the process of obtaining criminal procedural evidence and using it as arguments to substantiate the presence or absence of circumstances enumerated in Art. 74 of the Criminal Procedure Code of the Russian Federation.

Methods and means of committing illegal hunting as circumstances of proof in criminal proceedings (based on case law)

The present criminal and criminal procedural legislation, as well as the practice of application of the provisions on criminal liability for illegal hunting have been studied. As the study subject, the examples of case law have been chosen, which allowed to identify typical ways and means of committing a criminal offence in the presence of specific circumstances of their application. The correlation of substantive and procedural law provisions aimed at achieving the goal and fulfilling the tasks of investigating criminal offences against the environment has been analysed; recommendations on the practice of application of criminal liability provisions have been provided; the correct interpretation of the ways and means of committing illegal hunting based on the analysis of law enforcement practice has been ensured. Based on the analysis of law enforcement practice of some aspects of the criminal procedural component, the most common and typical means, methods (forms), and tools of illegal hunting used in encroachment on wildlife have been identified.
 It has been established that preparation for committing illegal hunting may include: choosing the time and place of illegal hunting; searching for and preparing illegal hunting tools and means; selection of accomplices to illegal hunting; and deciding on the prey. The typical ways of committing illegal hunting have been defined as follows: hunting without a permit (for hunting animals, for the use of firearms, etc.); hunting at prohibited times (during the periods prohibited for hunting of the respective species of animals, in the dark, etc.); hunting with the use of prohibited tools and prohibited methods (nooses, traps, nets, etc.); hunting in prohibited areas (on the territories and objects of the nature reserve fund, in reproduction areas, etc.); hunting for animal species listed in the Red Book. The above list of typical methods and tools for committing illegal hunting is not exhaustive, but is the most promising in terms of developing methods for their investigation. The most common tools used in illegal hunting are hunting (smoothbore or firearms) weapons, nooses and nets.

Forensic support of evidence in criminal proceedings: concepts and signs

The scientific article, based on the study and analysis of the positions of scientists, the provisions of the criminal procedural legislation of Ukraine, highlights the concepts and essential features of forensic evidence support in criminal proceedings.The research of the topic was carried out using the inductive method, highlighting separately the following components: «forensic support», «evidence» and «criminal proceedings».The author of the article sets the goal of defining the concept of forensic evidence support in criminal proceedings and its essential features.The work emphasizes that forensic support includes only such basic elements as: technical, tactical, and methodical forensic support, and evidence: collection, verification, and evaluation of evidence. The doctrinal content of each key element of both forensic support and evidence is highlighted.The list of authorized subjects who are obliged and have the right to conduct evidence using the means of forensic techniques, tactics and methods is presented. Highlighting the elements of the concept of “forensic support” and “proof” made it possible to form the features of the general concept of “forensic support of proof in criminal proceedings”.
 In general, the author came to the conclusion that the forensic support of evidence in criminal proceedings is the activity of meeting the needs of authorized subjects during the collection, verification and evaluation of evidence, providing them with the means of forensic techniques, tactics and methods in order to establish the subject of evidence during pre-trial investigation and court proceedings regarding criminal offenses, as well as conducting procedural actions in connection with the commission of an act provided for by the law of Ukraine on criminal responsibility.

Evidence in criminal proceedings on criminal offenses related to armed conflict: court practice

Purpose. The purpose of the work is to identify problematic issues of proof in criminal proceedings about criminal offenses related to the armed conflict in the aspect of judicial practice and to formulate recommendations for their solution at the level of law enforcement. Method. The methodology includes a set of methods of scientific knowledge: comparative-legal, formal-legal, systemic-structural, dogmatic (legal). Results: based on the results of the study, the problematic issues of proof and judicial practice in criminal proceedings on criminal offenses related to the armed conflict were formulated recommendations for practical workers. Practical significance: the results of the research can be used to specify the tasks of the investigation and to choose rational means of solving them based on a systematic approach in order to distinguish the facts that are subject to investigation as elements that make up the subject of proof, to identify the main features of these facts, to specify the areas and means of activities for identifying sources and carriers of information about these facts.

THE CONFESSION IN MICHEL FOUCAULT:

A privileged element of contemporary law, confession as a means of proof in criminal proceedings is the object of analysis in this research. Based on a bibliographic review, the study will seek to decompose and reorganize the object on two fronts, constructing a theoretical hypothesis that proposes to observe confession as an inquisitorial practice of an institution, but which also has a traceable genealogical depth in the modulations of subjectivation techniques. The notion of the care of the self that Michel Foucault referred to unfolds in Christian ethics and asceticism, reorganizing the sense of care of the self and slowly, as Christian philosophy developed and the influence of the Catholic Church in the state grew, make the act of confession loaded with an institutional-subjective double, elements that allow Zaffaroni to observe the apparent neutrality of contemporary justice as a facade for an authoritarian state and adept at inquisitorial practices, especially in matters of criminal justice.

Means of Proof in Criminal Proceedings in the Slovak Republic – New Challenges

Background: Turbulent technological progress in the 21st century has caused the emergence of a number of new possibilities, especially technical in nature, and allowed for new means of proof as evidence. Legal regulation of criminal law in the Slovak Republic is responding to this trend, and progressive approaches to evidence which reflect the current level of development of science and technology are gradually being introduced. This article focuses on current challenges in the field of legislation regulating the issue of evidence in criminal proceedings. Methods: Legal comparison, content analysis of websites, functional analysis of legal acts, and analysis of the decisions courts were used to process the research data. Results and Conclusions: Current legislation on executing evidence in criminal proceedings in the Slovak Republic requires modification. There is especially the need to reflect on the current state of economic and dynamic technological progress in the 21st century. The recent list of evidence means in S. 119(3) of the Code of Criminal Procedure is not complete but does not automatically reject the use of other means of evidence. Discussions on how to proceed are currently taking place within the professional public. We believe that in the near future criminal law must respond adequately and enable the use of evidence obtained by new technologies such as satellites, GPS, GLONASS, dashcams, vehicle software, communication technologies, location tracking, etc. Of course, the final word will always be given to the court, which will assess whether such evidentiary information is admissible and effective, or what "weight" it will have in deciding on a particular criminal case.

Evidence and Proof in Criminal Proceedings: Problems of Understanding their Nature

The paper is devoted to the consideration of topical issues related to the essential characteristics of such categories of evidentiary law as «evidence» and «proof», due to the ambiguity of approaches that researchers apply to disclose their nature.The study purports to identify the conformity of the actual proof procedure with its definition reflected in the law, and to formulate scientific recommendations for improving the law in this part. Scientists’ ideas that the legislative definition of evidence does not reflect the requirement of their reliability are critically assessed, and the absence of grounds for such a conclusion is demonstrated.In the course of the research, scientific methods of analysis, synthesis, formal-logical and legal interpretation were used. Based on the terminological analysis, in contrast to the opinion of scientists who believe that such an element of proof as gathering should be replaced by the concept of «formation», the author substantiates the position that all elements of proof, and not just gathering, represent the process of evidence formation. Therefore, the most accurate characteristic of criminal procedural proof is the process of transformation of the information obtained during the proceedings into evidence to substantiate the presence or absence of circumstances to be proved, i.e., the process of forming evidence.In this regard, the author concludes that for a more accurate reflection of this process in a number of norms of Chapter 11 of the Criminal Procedure Code of the Russian Federation, it would be necessary to replace the concept of «evidence» with the concept of «information that can be used as evidence». According to the author, the legislative definition of criminal procedural proof should reflect not only the actual process of evidentiary activity, covering the initial stage of criminal proceedings, but also its target orientation. For this purpose, the author proposes the following wording of Article 85 of the Code of Criminal Procedure of the Russian Federation: «Proof consists in gathering, verifying and evaluating information in order to obtain evidence substantiating the presence or absence of circumstances provided for in Article 73 of this Code for the correct resolution of a criminal case.»

Application of the institution of prejudice as a means of proof in criminal proceedings

This paper presents a retrospective analysis of the development of the institution of prejudice in criminal proceedings in Russia, which is disclosed in a relationship with the achievement of objective truth in a criminal case. The features and problems of legal regulation of the institution of prejudice in the pre-revolutionary, post-Soviet and current legislation were revealed. In particular, the key problem of the Criminal Procedural Code of the RSFSR of 1923 was the lack of concrete limits of inter-branch prejudice that led to the for-mal resolution of criminal cases. Despite the resolution of this conflict when the USSR CPC was adopted in 1960, the search for objective truth was hampered by the high role of the judge’s subjective opinion in deciding questions about the possibility of using and limiting the limits of the application of prejudicial decisions. In addition, the paper reflects the modern legislator’s views on the achievement of objective truth in sentencing with the use of prejudicial circumstances as evidence. The authors present their own vision of the main trends in the development of the institution of prejudice and their proposals to reform not only inter-branch criminal procedural legislation but also inter-branch legislation, namely: Federal Law “On Operational Investigative Activity”. On the basis of the conducted analysis the necessity of changing the legal regulation of the institute of inter-branch prejudice and of introducing a new version of Article 90 of the CPC of the RF suggesting preservation of the non-controversial nature of intra-branch prejudice and revival of inter-branch prejudice of rebuttable nature was proved. In addition, in order to optimise criminal proceedings, the paper proposes to give prejudicial effect to the circumstance of a surgical experiment by legally changing the procedure for obtaining it in court.

Selected issues of preventive activity in criminal proceedings

The article highlights the theoretical and practical issues of a special preventive function to combat crime, which is carried out by the investigator, investigator (detective), prosecutor and court (judge) within the pre-trial investigation and trial in criminal proceedings. Based on the analysis of the current legislation, in particular, the specific tasks established for law enforcement agencies to prevent criminal offenses and problems of practice, the need to supplement the Criminal Procedure Code of Ukraine with norms that would regulate the powers and procedure of the prosecution and the court (judge) in identifying the causes and conditions that made it possible for them to commit a criminal offense in the process of pre-trial investigation and trial. The views of scientists are analyzed and their own position on the expansion of the subject of proof in criminal proceedings, defined by Article 91 of the CPC of Ukraine, and the inclusion in its list of establishing the causes and conditions that concocted the commission of a criminal offense. It is concluded that the institution of the reasons and conditions that contributed to the commission of a criminal offense should be considered through the prism of law, and not the duty of the prosecution and the court (judge). The necessity of introducing into the CPC of Ukraine a number of articles that would authorize the prosecution, in the case of establishing the causes and conditions that made it possible to commit a criminal offense, has been substantiated, to submit to the relevant state body, public organization or official a submission on taking measures to eliminate these causes and conditions, and to the court (judge) - to make a separate ruling (decision).

The state of scientific research on the problems of proof in criminal proceedings about crimes related to the illegal appropriation of property of an enterprise, institution, organization

The state of scientific research on the problems of proof in criminal proceedings about crimes related to the illegal appropriation of property of an enterprise, institution, organization

Subjects of proof in criminal proceedings on the offences in the economic sphere

An analysis of scientific approaches and provisions of criminal procedural legislation regarding the determination of the essence, features and structure of evidence in criminal proceedings, including crimes in the economic sphere, has been carried out. It has been determined that evidence in criminal proceedings on crimes in the economic sphere is a structured epistemological and praxeological activity of authorized subjects, which is implemented on the grounds and in the manner prescribed by criminal procedural legislation, and consists in collecting, verifying and evaluating evidence about the circumstances of commiting the named criminal offenses and other circumstances relevant to criminal proceedings. It has been argued that one of the most important elements in the structure of proof is the subjects. The specifics of proof in criminal proceedings on crimes in the field of economy have been clarified. It has been substantiated that the specificity of crimes in the field of economy affects not only the content of the subject of proof, sources of evidence and methods of proof, but also the subjects authorized to carry it out. It has been noted that the subjects of proof in criminal proceedings on crimes in the field of economy should be systematized according to certain criteria, taking into account both criminal procedural and forensic features of this category of criminal offenses and activities for their detection, pre-trial investigation and trial. It has been proposed to single out the following as criteria for the systematization of evidence subjects in the specified criminal proceedings: stages of criminal proceedings; responsibility for pre-trial investigation of crimes in the economic sphere; immediacy of proof. Systematization of subjects of evidence in criminal proceedings on crimes in the field of economy has been carried out.

Investigative (search) and covert investigative (search) actions as means of proof in criminal proceedings related to illegal trafficking in firearms or ammunition

The subject matter of the study is to provide a detailed description of investigative (search) and covert investigative (search) actions as means of proof in criminal proceedings related to illegal trafficking in firearms or ammunition. The purpose of the article is to clarify the place, content, significance and system of such actions.
 It is suggested that the actions under study are inherent phenomena, necessary processes which include methods of collecting and verifying factual data to form appropriate admissible and reliable evidence as the basis for making a lawful, reasonable and well-grounded court decision in criminal proceedings related to illegal trafficking in firearms or ammunition. This study is aimed at creating preconditions for improving existing and developing new forensic recommendations and methods for investigating criminal proceedings related to illegal trafficking in firearms or ammunition, as well as developing proposals for improving the current criminal procedure legislation in terms of regulating evidence.
 As a result of the study, it has been obtained new scientifically substantiated results which contribute to improving the provision of investigative bodies with modern methodological recommendations aimed at increasing the efficiency of investigation of criminal offenses related to illegal trafficking in firearms or ammunition. It has been clarified the meaning of investigative (search) and covert investigative (search) actions as effective means of proof due to their cognitive and identification capabilities, the significance of these actions (ensuring obtaining proper, admissible and reliable proof) has been determined and their system (priority and subsequent, typical and exceptional) has been considered. It has been proved that these actions form the instrumental basis for the formation of the evidence base in the course of criminal investigations. It is concluded that a systematic approach to the formation and scientifically based analysis and generalization of the content of evidence are the conditions for the development of effective modern methods of investigating criminal offenses related to illegal trafficking in firearms or ammunition.

Permissibility of the Reverse Burden of Proof and its Limits in Criminal Proceedings in the Context of the Presumption of Innocence

This publication explores the limits of admissibility of the reverse burden of proof in criminal proceedings. To determine these limits, the reverse burden of proof is tested vis-à-vis the fundamental principle of the presumption of innocence in criminal proceedings. In searching for answers to the advanced question, the Latvian criminal procedural regulation is analysed in the context of the findings made in the Latvian and foreign theory of criminal procedure law, fundamental rights enshrined in the Satversme [Constitution] of the Republic of Latvia and the case law of the Constitutional Court of the Republic of Latvia, as well as international legal regulation and case law of the European Court of Human Rights.

Certain aspects of allocation of obligation and burden of proof in criminal proceedings on infringement of intellectual property rights

Keywords: criminal procedure proving, obligation of proof, burden of proof, allocationof proof, reverse burden of proof
 Different approaches of national and foreign scientists and judges to themeaning of the concepts of «obligation» and «burden» of proof and allocation thereofbetween parties to criminal proceedings have been analysed. The basic features fordistinguishing the concepts of «obligation» and «burden» (compulsion and material interest)and property (dynamism) have been given. It has been noted that in the legislationof some European countries, despite the existence of the presumption of innocence,in certain categories of criminal proceedings, the obligation of proving innocenceis placed on the defence. The global trends of shifting the obligations of proof,simplifying the criminal procedure in certain categories of cases, and expanding therights of participants in the criminal proceedings have been observed. The provisionsof the Federal Rules of Criminal Procedure of the USA and the Criminal ProcedureCode of Ukraine regarding the mechanism of demanding evidence by the prosecutionfrom the defence have been compared. The norms of Clause 6, Part 2, Art. 242 of theCriminal Procedure Code of Ukraine, which shifted the obligation of proving materialdamage (damages) from the prosecution to the victim, have been analysed. Based onthis norm, it is expected to increase the procedural activity of the victim regarding establishingand proving this circumstance during the pre-trial investigation and thetrial. Based on the decisions of the European Court of Human Rights, it has beenproven that silence can be, although not the only, basis for issuing a guilty verdict. Itis proposed to define and consolidate in the judicial practice of the Supreme Court thepresumptions typical for cases of infringement of intellectual property rights: eventsof criminal offence and guilt.