Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido el 15/06/2021 Aceptado el 14/08/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Vol. 39, Nº 70 (2021), 195-210
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Activities of the court to investigate the
circumstances of criminal proceedings
and their assessment under the
laws of Ukraine
DOI: https://doi.org/10.46398/cuestpol.3970.12
Hanna Teteriatnyk *
Oleksii Ryzhyy **
Anna Fedorova ***
Yurii Vykhodets ****
Vitalii Marko *****
Abstract
Sand investigates the procedural possibilities of the court to
investigate the circumstances of the criminal process at the trial
stage, by analyzing the current criminal procedural legislation
of Ukraine, judicial practice, the positions of scientists, as well
as by using modern methods of scientic knowledge (dialectic, systematic
analysis of legal norms, comparative, statistical, synergistic, hermeneutic,
structural, and formally dogmatic system). It also claries the essence
of scientic and legal categories such as «circumstances of criminal
proceedings», «verication of evidence», «evaluation of evidence», etc. It
was concluded that during the trial the evidence is examined in accordance
with a certain procedure and with the participation of the participants in
the criminal proceedings, who have the right to ask questions, draw the
attention of the court, lodge appeals, etc. Investigative (search) actions
have been identied as the most common procedural means of examining
evidence in criminal proceedings. It is emphasized that the evaluation of the
evidence by the court, unlike inspection, is not combined with any practical
action and is a purely mental, logical activity, which aims to determine the
admissibility, relevance, reliability, value (strength) of each.
* Candidate of legal science, аassistant рprofessor, Сhief of the Department of Criminal Process, Odesa
State University of Internal Aairs, Odesa, Ukraine. ORСID ID: https://orcid.org/0000-0002-8321-
7912. Email: roksolanna@ukr.net
** Judge of the Sarny District Court of Rivne Region. ORСID ID: https://orcid.org/0000-0002-5264-
3599. Email: ruzuy1987@ukr.net
*** Senior investigator, Territorial management of the State bureau of services, located in the city
of Mykolaev, Mykolaev, Ukraine. ORСID ID: https://orcid.org/0000-0001-8196-0799. Email:
a.fedorova@mk.dbr.gov.ua
**** Chief of Оdesa regional unit of Cyberpolice Department of the National Police of Ukraine. ORСID ID:
https://orcid.org/0000-0001-8604-9224. Email: yurii.vykhodets@cyberpolice.gov.ua
***** Candidate of Law, Senior Detective Ocer of the Territorial Department of the State Bureau of
Investigation in the city of Khmelnytsky. ORСID ID: https://orcid.org/0000-0001-6163-2106. Email:
marko.vitalij2020@gmail.com
196
Hanna Teteriatnyk, Oleksii Ryzhyy, Anna Fedorova, Yurii Vykhodets y Vitalii Marko
Activities of the court to investigate the circumstances of criminal proceedings and their
assessment under the laws of Ukraine
Keywords: court in Ukraine; criminal proceedings; evidence;
circumstances of a crime; evaluation of evidence.
Actividades del tribunal para investigar las
circunstancias de los procesos penales y su evaluación
con arreglo a las leyes de Ucrania
Resumen
Se investigan las posibilidades procesales del tribunal para investigar las
circunstancias del proceso penal en la etapa de juicio, mediante el análisis
de la legislación procesal penal actual de Ucrania, la práctica judicial, las
posiciones de los cientícos, así como mediante el uso de métodos modernos
de conocimiento cientíco (dialéctico, análisis sistemático de las normas
legales, derecho comparado, estadístico, sinérgico, hermenéutico, sistema
-estructural y formalmente dogmático). También, se aclara la esencia de
categorías cientícas y jurídicas como «circunstancias del proceso penal»,
«vericación de pruebas», «evaluación de pruebas», etc. En particular,
se concluyó que durante el juicio la prueba se examina de acuerdo con un
determinado procedimiento y con la participación de los participantes en
el proceso penal, quienes tienen derecho a formular preguntas, llamar la
atención del tribunal, presentar recursos, etc. Las acciones de investigación
(búsqueda) han sido identicadas como el medio procesal más común
para examinar pruebas en procesos penales. Se enfatiza que la valoración
de la prueba por parte del tribunal, a diferencia de la inspección, no se
combina con ninguna acción práctica y es una actividad puramente mental,
lógica, que tiene como objetivo determinar la admisibilidad, relevancia,
conabilidad, valor (fuerza) de cada uno.
Palabras clave: tribunal en Ucrania; proceso penal; prueba;
circunstancias de un delito; evaluación de la prueba.
Introduction
Large-scale transformational changes in society, which are characteristic
of the beginning of the new millennium, have put many new challenges «on
the agenda» before humanity. The progressive development of all countries
of the world, including Ukraine, which constitutionally declared itself as a
sovereign and independent, democratic, social, legal state, depends on their
solution (Article 1 of the Constitution of Ukraine) (Constitution of Ukraine,
1996).
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The Strategic Plan for the Development of the Judiciary of Ukraine for
2015-2020 emphasizes that it is the state’s responsibility to provide its
citizens with an eective remedy and the right to a fair trial in accordance
with the Convention for the Protection of Human Rights and Fundamental
Freedoms. (Strategic Plan For The Development Of The Judiciary Of
Ukraine For 2015-2020, 2012). Judicial reform also provides for the renewal
of the criminal procedure law (Strategy for the Reform of the Judiciary,
Judiciary and Related Legal Institutions for 2015–2020.) (Strategic Plan
For The Development Of The Judiciary Of Ukraine For 2015-2020, 2012).
The main purpose of such an update is to improve the procedural provision
of justice and the right to defense during criminal proceedings (). Such
legislative approaches encourage theoretical and praxeological discussion,
actualize the discussion of issues of optimization of the court’s research and
assessment of the circumstances of criminal proceedings.
According to modern opinion polls, society has less and less trust
in courts and judges. Thus, the level of trust in the judiciary of Ukraine
among the persons who participated in court proceedings is 40%, and
among the persons who were not participants in court proceedings, 13%
(All-Ukrainian Survey Of Citizens On Democratic Change In The Political
And Social Spheres, Judicial Reform And The Process Of Cleansing The
Government In Ukraine: Summarizing The Results Of The 2016 Study And
Comparison With Data For 2015, 2016). One such factor is the unjustiably
lengthy consideration of criminal proceedings in court. Proper and timely
consideration of criminal proceedings, able to ensure an adversarial
criminal process which is a characteristic feature of the modern rule of law.
This fact should encourage a rethinking of certain forms of functioning of
the judicial system, taking the necessary measures of theoretical, legislative
and applied nature in this direction.
Changes in the eld of criminal procedure legislation have put on the
agenda a revision of many methodological provisions of the criminal process.
This is due to the fact that the amount of modern scientic knowledge is
increasing extremely rapidly, while changing and improving legislation.
This, in turn, necessitates the improvement of existing and the creation
of new, more eective methods of learning and practical application of
knowledge. The reform of the criminal procedure legislation and the judicial
system of Ukraine highlights, in particular, the need for a comprehensive
scientic study of the powers of a judge to study and evaluate evidence in
the judicial process of Ukraine.
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Activities of the court to investigate the circumstances of criminal proceedings and their
assessment under the laws of Ukraine
1. Methodology of the study
To achieve the goal set in the scientic article, general scientic,
philosophical and special methods are used, in particular: dialectical method
of cognition - in clarifying the essence of such concepts and categories
as «study of circumstances», «evaluation of evidence», «activity» and
«initiative», analysis of their common and distinctive features; systematic
analysis of legal norms - to identify gaps and inconsistencies in regulations
and formulate proposals for improving existing legislation; comparative
law - to compare the rules of criminal procedural law of Ukraine and the
provisions of other regulations in terms of investigating the circumstances
of a criminal oense by the court at the stage of trial; statistical - for research
of materials of criminal proceedings, statistics and generalization of the
received results; synergetic, hermeneutic, system-structural and formally
dogmatic - to clarify the specics of the judge, to identify the system of
relationship and interaction with other subjects of criminal proceedings, to
formulate proposals for improving criminal procedural law. The use of all
research methods in conjunction ensured the persuasiveness and reliability
of scientic research results.
2. Analysis of recent research
With the adoption of the new Criminal Procedure Code of Ukraine in
2012, issues related to court proceedings received somewhat dierent legal
regulation. In particular, numerous provisions of the criminal procedure
law are aimed at ensuring the real adversarial nature of the parties,
introduced many other positive novelties, aimed primarily at protecting the
rights, freedoms and legitimate interests of man and citizen.
The legislator repeatedly uses the concept of «examination of evidence»
in relation to the stage of the trial (Articles 319, 322, 339, 349, 352, 357,
358, 359, 386 of the Criminal Procedure Code of Ukraine) (Criminal
Procedure Code Of Ukraine, 2012). All subjects of criminal proceedings
are endowed with certain powers, rights, and responsibilities in the eld of
evidence. The nature of these powers, rights, and responsibilities, of course,
is dierent and depends on the criminal procedural function of the subject,
his interest in criminal proceedings, the general criminal procedural status,
etc. (Lytvyn, 2016).
The participation of the court in the evidence in criminal proceedings is
accompanied by numerous procedural and applied diculties and requires
an immediate solution. Given the controversial nature of certain provisions
of the Criminal Procedure Code of Ukraine in terms of the court’s exercise of
its powers at the trial stage, the question arises: how can a court in criminal
proceedings investigate the circumstances of a crime and assess them?
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Problematic issues of court participation in the study of the
circumstances of criminal proceedings and their assessment in criminal
proceedings were the subject of research of such domestic proceduralists
as V.O. Gryniuk (2012), Yu.M. Groshevyi and S.M Stakhivsky (2006), O.I.
Korovaiko (2010), V.Ya. Korsun (2011), T.V. Lukashkina (2013), V.T. Nor
(2013), O.V. Rybalka (2013), V.I. Slipchenko (2009).
Most of such works relate to the general provisions of evidence in
criminal proceedings, while only some modern works are devoted to the
study of our issues. This necessitates the need to clarify the possibility for
a judge to directly conduct research and evaluation of testimony, things,
documents in criminal proceedings.
Today in the doctrine of criminal procedure the issue of court activity is
debatable, and scientic positions vary from the requirement to complete,
comprehensive, objective investigation and establishment of objective
truth to the court and to the complete denial of the possibility of court
manifestations of any forms of activity. do not correspond to the essence
of its procedural function (Kuchynska, 2011). Clarication of this issue is
important to determine the degree of activity of the court in the examination
and evaluation of evidence.
3. Results and discussion
It is legally dened (Article 23 of the Criminal Procedure Code of
Ukraine) that the court examines the evidence directly and receives the
testimony of the participants in the criminal proceedings orally. It follows
that the oral testimony of the participants in the criminal proceedings as a
result of their direct examination during the trial is perceived and evaluated
by the court on the basis of the so-called internal conviction of the judge.
(Criminal Procedure Code Of Ukraine, 2012).Failure to comply with the
principle of immediacy leads to a violation of other principles of criminal
proceedings: the presumption of innocence and proof of guilt, ensuring the
right to defense, adversarial parties and freedom to present their evidence
and prove their persuasiveness before the court (paragraphs 10, 13, 15 of
Article 7 of the Criminal Procedure Code). Code of Ukraine). Therefore, the
principle of immediacy is a necessary element of the procedural form of
trial, non-compliance with the court, based on the content of the second
part of Article 23 and Article 86 of the Code, means that evidence that was
not the subject of direct investigation of the court cannot be considered
admissible and taken into account. The decision of the court, except in
cases provided by the Criminal Procedure Code of Ukraine, and therefore,
the court decision in accordance with Article 370 of the Code cannot be
recognized as lawful and reasonable.
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Activities of the court to investigate the circumstances of criminal proceedings and their
assessment under the laws of Ukraine
In addition, the rules of criminal procedure law on the invariability of the
court ensure the direct perception and evaluation of evidence by all judges
from the beginning to the end of the trial, guarantee the comprehensiveness,
completeness and objectivity of all criminal circumstances, without which
it is impossible to rule lawfully, reasonably and fair sentence.
The court to verify the relevance, admissibility and reliability of evidence
provided by the parties to the criminal proceedings, has the power: to include
issues in the decision to conduct an examination (Part 3 of Article 332 of
the Criminal Procedure Code); ask questions during the interrogation of
the accused (Article 351), witnesses (Article 352 of the Criminal Procedure
Code), a victim (Article 353 of the Criminal Procedure Code) or an expert
(Article 356 of the Criminal Procedure Code) (Criminal Procedure Code
Of Ukraine, 2012).Certain provisions of the Criminal Procedure Code of
Ukraine also indicate the need for the court to take a certain activity in
establishing the circumstances of a criminal oense. On the initiative of the
court, some investigative (search) actions may be carried out, in particular:
interrogation of an expert (Part 1 of Article 356 of the Criminal Procedure
Code); examination of documents 160 (Article 358 of the Criminal
Procedure Code); on-site inspection (Article 361 of the Criminal Procedure
Code); examination in accordance with Part 2 of Art. 332 of the Criminal
Procedure Code; repeated interrogation of a witness (Part 13 of Article 352
of the Criminal Procedure Code); simultaneous interrogation (Part 14 of
Article 352 of the Criminal Procedure Code) (Criminal Procedure Code Of
Ukraine, 2012).
An important group of issues to be decided by the court are those related
to the provision and examination of evidence during the trial. We share the
point of view of O.V. Lytvyn, who understands the examination of evidence
in court as the mental and practical activity of the court regulated by the
Criminal Procedure Code with the active participation of participants
in the proceedings with the assistance of other participants in criminal
proceedings, aimed at establishing the relevance, admissibility, reliability
of evidence by analyzing each of them other evidence and obtaining
evidence that conrms or denies the relevance, admissibility, reliability of
the evidence under investigation (Lytvyn, 2012).
The importance of such a direction of judicial activity as the
administration of justice requires the creation of such conditions for
the study of the actual circumstances of a criminal oense, which would
ensure the adoption of a reasoned court decision. Given the adversarial
principle, litigants enjoy equal rights to examine evidence and prove their
persuasiveness in court, and the court must create the necessary conditions
for litigants to exercise their procedural rights and direct the investigation
to ensure that the parties exercise their rights.
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As a general rule, the court receives the testimony of participants in
criminal proceedings orally. The information contained in testimonies,
things and documents which were not a subject of direct research of court,
except for the cases provided by Art. 23 of the Criminal Procedure Code
of Ukraine (Criminal Procedure Code Of Ukraine, 2012). It is a question
of immediacy of research of indications, things, documents as the general
principle of criminal proceedings which is dened in item 16 of h. 1 Art. 7
and formulated in Art. 23 of the Criminal Procedure Code of Ukraine.
This principle is important for the full clarication of the circumstances
of the criminal proceedings and its objective solution. The immediacy
of the perception of evidence allows the court to properly examine and
verify them (both each piece of evidence separately and in conjunction
with other evidence), to assess them according to the criteria set out in
Part 1 of Art. 94 of the Criminal Procedure Code of Ukraine, and to form a
complete and objective view of the facts of a particular criminal proceeding.
Also in paragraph 18 of the Resolution of the Supreme Court of Ukraine
of 21.01.2016 in the case №5-249x16 states that the immediacy of the
examination of evidence means addressed to the court requirement of the
law to examine all evidence collected in a particular criminal proceeding by
questioning accused, victims, witnesses, expert, review of physical evidence,
announcement of documents, reproduction of sound and video recording,
etc. (Resolution Of The Supreme Court Of Ukraine, 2016).
Determining the limits of the court’s participation in the examination
of evidence in the trial, we support the position of V.T. Nora that the
court in resolving the case - a lawful and reasonable decision - should not
remain a passive observer of the legal duel of the parties, monitoring only
the observance of its procedure (rules). The court should be able, with the
assistance of the parties, but independently of them, to examine the evidence
submitted by them by all procedural means, including investigative and
judicial actions, which the law makes available to it. (Nor, 2010).
The most common procedural means of examining evidence in criminal
proceedings are investigative (search) actions, which, in particular, include
interrogation in court. The general procedure and sequence of interrogation,
interrogation of witnesses, victims, suspects and accused, features of
interrogation of minors of dierent procedural status, interrogation by
video conference, etc., are dened in Art. Art. 351-354, 356 of the Criminal
Procedure Code of Ukraine (Criminal Procedure Code Of Ukraine, 2012).
Failure to comply with the procedural rules of interrogation is a violation of
the law and entails the invalidity of the investigative (search) action and the
inadmissibility of the testimony obtained as a source of evidence.
Judicial interrogation is carried out by obtaining testimony in court
from persons who have information about the circumstances of the criminal
case to be established by the court. And this method is not limited to the
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assessment under the laws of Ukraine
process of voicing the testimony of the interrogated person in court, but its
essence is to interrogate the interrogated person, giving him oral testimony
(in the form of a free story or answers to questions), perception (hearing)
testimony by a subject whether it is situationally determined to conduct the
relevant type (stage or phase) of judicial interrogation.
During the trial, the interrogated person may, in the manner prescribed
by law, be induced to testify not only by the prosecutor or the court, but
also directly by the accused, his defense counsel, the victim and other
participants in the trial. The results of the judicial interrogation in the form
of testimony form in the court an inner conviction about the investigated
event, its circumstances and other issues that are important for the proper
resolution of criminal proceedings. N.M. Maksymyshyn emphasizes that
during this investigative (search) action there is no need to comment or
correct the interrogated, it is necessary to give them the opportunity to
speak fully, and then by asking questions to supplement and detail gaps
in their testimony and clarify information about the circumstances are
essential to the case (Maksymyshyn, 2016).
It should be emphasized that asking supplementary, control questions
to the interrogated is the exclusive right of the court and the parties to the
criminal proceedings. For example, after interrogation of the victim (direct
and cross) with the permission of the presiding victim in the order of priority
may ask questions and other participants in criminal proceedings, as well
as the presiding judge, other judges (Article 353 of the Criminal Procedure
Code of Ukraine). However, to clarify and supplement the answers of the
victim, the presiding judge may ask questions throughout the interrogation
of the victim (by analogy with Part 1 of Article 351 of the Criminal Procedure
Code of Ukraine) (Criminal Procedure Code Of Ukraine, 2012).
After the interrogation of a witness, a victim, an expert by the parties
to the criminal proceedings, they may be asked questions by the presiding
judge and judges (Part 11 of Article 352, Part 2 of Article 353, Part 2 of
Article 356 of the Criminal Procedure Code of Ukraine). The presiding judge
also interrogates the accused by the latter, which does not deprive him of
the right to ask questions during the entire interrogation by the participants
in the proceedings (Part 1 of Article 351 of the Criminal Procedure Code of
Ukraine). Such powers of the presiding judge to examine evidence during
a court interrogation are much broader than those of other participants.
In our opinion, such an order of interrogation of persons does not
create obstacles for the court to take an active position in clarifying the
circumstances of the criminal proceedings during the interrogation. We
substantiate our position through the prism of the study of the category
«activity» and «initiative».
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As V.V. Vapnyarchuk emphasizes, it can be argued that the concepts
of «activity» and «initiative» are close in meaning but not completely
identical. Yes, not every active activity and not in all cases can be proactive.
Intense activity is realized in a larger volume and more intensively (more
vigorously than usual). For example, the court makes a decision at the
request of the investigator, prosecutor (for example, on the application
of a certain measure to ensure the proceedings, conducting a separate
investigative (search) action). Such activities are intense, but not proactive
(Vapnyarchuk, 2014).
Initiative activity is manifested in the fact that it is carried out at its own
discretion, at its discretion, is not mandatory for the subject who carries
it out, but the element of activity is present in it in connection with the
implementation of certain energetic actions. In particular, when taking
the initiative, a certain subject is thus active (does, although he could not
do, that is, could remain passive). That is, initiative activity is a narrower
category, an integral part of the intense activity of the court.
If during the trial there are contradictions between already interrogated
participants in criminal proceedings, only the presiding judge has the right
to appoint simultaneous interrogation of two or more already interrogated
participants in criminal proceedings (witnesses, victims, accused) to
determine the reasons for dierences in their testimony. rules established
by Part 9 of Art. 224 of the Criminal Procedure Code of Ukraine (Part 14 of
Article 352, Part 2 of Article 353 of the Criminal Procedure Code of Ukraine)
(Criminal Procedure Code Of Ukraine, 2012).
It is worth paying attention to the procedural order for clarifying the
circumstances of criminal proceedings in the examination of written
and physical evidence determined by the Criminal Procedure Code of
Ukraine. Before the examination of material evidence, the presiding judge
explains to the participants in the proceedings about their right to draw
the court’s attention to certain circumstances related to the thing and its
inspection, as well as the right to ask questions about physical evidence to
witnesses, experts, specialists. inspected. After clarifying the circumstances
established during the criminal proceedings and verifying them with
evidence, the presiding judge is obliged to nd out from the participants in
the proceedings whether they wish to supplement the trial and how exactly
(Part 1 of Article 363 of the Criminal Procedure Code Of Ukraine) (Criminal
Procedure Code Of Ukraine, 2012).
The provisions of the criminal procedure law determine the general
rules for determining the authenticity of testimony, things and documents.
For example, in order to verify the authenticity of documents, participants
in criminal proceedings have the right to: 1) ask questions about documents
to witnesses, experts, specialists; 2) ask the court to exclude them from the
evidence and decide the case on the basis of other evidence or to appoint
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Activities of the court to investigate the circumstances of criminal proceedings and their
assessment under the laws of Ukraine
an appropriate examination of this document (parts 2 and 3 of Article 358
of the Criminal Procedure Code of Ukraine) (Criminal Procedure Code Of
Ukraine, 2012).
In case of discrepancies between the examined document and other
evidence, the court, in order to nd out the reasons for these discrepancies,
has the right to conduct other procedural actions: mainly, the examination
of witnesses and the appointment of an expert examination. As a rule, in case
of discrepancies between the document and other evidence, the person who
drew up this document is subject to interrogation as a witness. Determining
the authenticity of documents, depending on their type, the court also has
the right to appoint autographic, handwriting, phototechnical examination,
technical examination of documents, examination of video and audio, etc.
(Dekhtyar, 2014).In this case, participants in criminal proceedings have the
right to ask the expert questions to be included in the court decision on
the appointment of examination, except when the answers do not relate to
criminal proceedings or are not relevant to the trial (Part 3 of Article 332
procedural code of Ukraine).
We agree with the position of M.I. Shevchuk, that lawful and admissible is
also the activity of the court to examine the evidence, which is manifested in
its ability to ll in the incompleteness of the study of specic evidence, which
is caused by the passivity of the parties in its submission and examination
in court, by more careful, comprehensive study of evidence. For example,
the court may examine in more detail the objects and documents provided
to it by a party or other participants in the proceedings; ask the interrogated
witness additional, clarifying questions; consider it necessary to conduct
an inspection of the scene; the court at the place of inspection may also ask
questions to the participants in the criminal proceedings who take part in
it (Shevchuk, 2015).
As rightly noted by O.V. Dekhtyar, in case of replacement of a judge
in accordance with Art. 320 of the Criminal Procedure Code of Ukraine,
the principle of immediacy is fully implemented, as the reserve judge was
present during the direct examination of evidence by the court of rst
instance. In the case of replacement of a judge under Part 2 of Art. 319 of the
Criminal Procedure Code of Ukraine, this principle is limited, because the
perception of evidence by a judge who intervenes in the case, is not directly,
but by reviewing the course of court proceedings and materials of criminal
proceedings. Such conclusions of the scientist concern the replaced judge
who before was not in the status of the reserve, and therefore could not
personally perceive the circumstances of criminal proceedings investigated
during trial. In the event of a replacement of a judge, the substitute judge
shall be empowered to verify the aliation, authenticity and suciency
of the evidence, to obtain new evidence, thereby ensuring that all the
circumstances of the criminal proceedings are claried. (Dekhtyar, 2014).
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It is worth noting the undeniable organizational inuence of the chairman,
on which Art. 321 of the Criminal Procedure Code of Ukraine entrusts
managing the course of the hearing, ensuring compliance with the sequence
and procedure of procedural actions, the implementation of participants in
criminal proceedings their procedural rights and responsibilities, directing
the trial to ensure clarication of all circumstances of criminal proceedings,
eliminating it anything that is irrelevant to criminal proceedings.
According to Art. 94 of the Criminal Procedure Code of Ukraine, the court
in its internal conviction, which is based on a comprehensive, complete, and
impartial examination of all circumstances of criminal proceedings, guided
by law, evaluates each piece of evidence in terms of relevance, admissibility,
reliability, and the set of evidence - from the standpoint of suciency and
relationship to make an appropriate procedural decision ... No evidence has
a predetermined force (Criminal Procedure Code Of Ukraine, 2012).
Evaluation of evidence is nal to address issues arising during the criminal
proceedings, and the Criminal Procedure Code of Ukraine provides for the
appropriate procedural procedure for participants in criminal proceedings
in case of non-compliance of factual data with the criteria of relevance,
admissibility, reliability. Evaluation of evidence, unlike verication, is not
combined with any practical actions and is a purely mental, logical activity,
the purpose of which is to determine the admissibility, relevance, reliability,
value (strength) of each piece of evidence and the suciency of their totality
to establish the circumstances in the subject of proof.
In the process of developing the theory of evidence as one of the
directions of the criminal process, dierent approaches to dening the
concept of evaluation of evidence have been outlined. Some proceduralists
consider the evaluation of evidence as a statutory activity of subjects of
knowledge (Strogovich, 1968). Other scholars understand the evaluation of
evidence as a logical mental process, determining the value of the evidence
collected to establish the truth (Lupinskaya, 1997). From a philosophical
point of view, evaluation as an activity is a subjective relation to the object
of cognition (Shinkaruk, 2002). The right authors are those who believe
that the evaluation of evidence is not limited to the purely mental work
of the subject of knowledge. It has internal (logical) and external (legal)
sides (Gromov and Zaitseva, 2002). We believe that the evaluation of
evidence can be dened as the statutory practical and mental activity of
authorized subjects of criminal proceedings to determine the relevance,
admissibility, suciency, reliability of evidence and their relationship to
make a procedural decision.
One of the most important criteria for evaluating evidence is its
admissibility. Inadmissibility of evidence is the antithesis of their
admissibility. The inadmissibility of evidence is determined by the following
criteria: obtaining evidence by unauthorized entities; obtaining evidence
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assessment under the laws of Ukraine
from an improper source; violation of the procedure for obtaining evidence
established by law. Obviously inadmissible evidence is evidence that:
obtained by the pre-trial investigation body in a manner not provided by
procedural law; received by the body of pre-trial investigation in violation
of the procedure provided by procedural law; evidence obtained as a result
of a signicant violation of human rights and freedoms. In case of obvious
inadmissibility of evidence during the trial, the court declares this evidence
inadmissible, which entails the impossibility of examining such evidence
or terminating its examination in court, if such investigation was initiated
(Part 2 of Article 89 of the Criminal Procedure Code of Ukraine) (Criminal
Procedure Code Of Ukraine, 2012).
The scientic literature has repeatedly emphasized that the court
can never independently initiate the procedure of declaring evidence
inadmissible during the trial, arguing that otherwise the principle of
adversarial proceedings will be violated. The court must decide on the
admissibility of evidence in the sentencing process, determining the
reasons for which it declares this or that evidence inadmissible (Criminal
Procedure Code of Ukraine, 2012). Scholars also rightly point out that
to legislate for the court the right to initiate the procedure of declaring
evidence inadmissible during the trial, the court can hypothetically become
a hostage of its own activity, namely: the more persistently with its own
intentions and initiative it will act during the examination of evidence, it
will be more dicult for him to be in the role of an impartial arbitrator in
the future when making a nal decision in criminal proceedings.
The nal assessment of the admissibility of evidence is made by the court
in sentencing. According to the Criminal Procedure Code of Ukraine, it is
the court that decides the admissibility of evidence during their evaluation
in the deliberation room during the court decision (Part 1 of Article 89).
Judicial consideration of criminal proceedings, resolution of petitions
led during the trial by the parties, their substantiation, oral hearing of
testimony of the accused, victim, witnesses, announcement of protocols of
investigative (search) actions, conclusions of experts, specialists, content
of other documents aimed at investigating criminal circumstances form an
objective vision of what is done. Such an objective vision contributes to the
formation of an inner conviction in the judge.
The law requires that the court consider all the circumstances of the
criminal proceedings as a whole and, on that basis, develop its internal
conviction to assess the evidence. Only in this case can he develop full
conviction that certain factual circumstances have indeed occurred in the
past. Yu.M. Groshevyi notes that the judge’s inner conviction is a conscious
need of the judge, the use of his own thoughts, views and knowledge. It
is related to the legal consciousness of the judge, which is seen as a form
of social consciousness that combines a system of views, ideas, ideas,
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theories, as well as feelings, emotions and experiences. They characterize
the attitude of people and social groups (including through actual behavior)
to the existing and desired legal system (Groshevyi and Stakhivskyi, 2006).
Having systematized and analyzed the positions of researchers, we
can conclude that the inner conviction - an element of mental activity for
the study and evaluation of evidence, formed during the criminal case in
essence, the judge’s idea of how to resolve the dispute.
Therefore, the court remains solely responsible for resolving the issues
provided for in Art. 368 of the Criminal Procedure Code (Criminal Procedure
Code Of Ukraine, 2012). A conviction cannot be based on assumptions, it
is passed only if during the court the guilt of the defendant in committing a
criminal oense is proven (Dyakov, 2016).
Conclusions
Thus, the activity of the court to investigate the circumstances of
criminal proceedings and their assessment under the laws of Ukraine is a
complex practical and mental activity. The evaluation of evidence by the
court can be dened as regulated by law its practical and mental activity
as a competent subject of criminal proceedings to determine the relevance,
admissibility, suciency, reliability of evidence and their relationship to
make a procedural decision.
The most common procedural means of examining evidence in criminal
proceedings are investigative (search) actions. The concept of «examination
of evidence» by the court within the criminal procedural law in its essence
and content almost coincides with the «assessment of evidence», because
as a result of perception of certain procedural sources and mental activity
of the judge new knowledge is formed, which allows to form judgments
and inferences. At the stage of court proceedings, they are expressed in the
form of procedural court decisions with the appropriate reection in the
text of such considerations and conclusions. The dierence between these
concepts is in the subject composition.
The court assesses the evidence independently, while being personally
responsible for the decisions made. Evidence is investigated according to
a certain procedure and with the participation of participants in criminal
proceedings, who have the right to ask questions, draw the court’s
attention, make appropriate motions, and so on. That is, the «assessment
of evidence» by the court requires personal direct perception of evidence as
part of the materials of criminal proceedings by the court (judges), without
direct and simultaneous perception of them by other participants in the
proceedings. Evaluation of evidence, unlike verication, is not combined
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Activities of the court to investigate the circumstances of criminal proceedings and their
assessment under the laws of Ukraine
with any practical actions and is a purely mental, logical activity, the
purpose of which is to determine the admissibility, relevance, reliability,
value (strength) of each piece of evidence and the suciency of their
totality to establish the circumstances in the subject of proof. The court’s
assessment of reliability, as well as the assessment of the appropriateness
of evidence and their procedural sources is a long process, which ends only
at the time of formulating the nal conclusions in criminal proceedings on
the basis of the totality of evidence collected. The suciency of the evidence
gathered in the case for a reliable conclusion in the criminal proceedings is
determined by the internal conviction of the court.
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Esta revista fue editada en formato digital y publicada
en octubre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
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