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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Vol. 40, Nº 72 (2022), 108-124
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Normative content of the principle of
immediacy of research of testimonies,
things and documents during criminal
procedural evidence
DOI: https://doi.org/10.46398/cuestpol.4072.06
Stetsyk Bohdana *
Olga Vakulyk **
Diana Serhieieva ***
Oksana Luchko ****
Mark Makarov *****
Abstract
The objective of the article was to analyze the tactical
and procedural characteristics of conducting a record in the
investigation of crimes against public security. To achieve the
objective in the research process, a system of general and special
methods is used, such as: dialectical method; method of systematic analysis
of legal norms; comparative legal method; statistical method. Based on the
study of legislation, scientic sources, the results of the generalization of
investigative and judicial practice, current issues of normative content of
the principle of immediacy of the study of evidence and the problems of its
implementation during criminal procedural evidence. It is concluded that
this principle determines the responsibilities of the persons conducting the
trial (questioning suspects, accused, witnesses, victims, experts, hearing
expert opinions, reviewing physical evidence, announcing and examining
documents, audio and video recordings), to whom correspond the rights
of other participants to present evidence, to become personally familiar
with the materials of criminal proceedings, receive copies of procedural
* Candidate of legal sciences, Deputy Head of the Department of Criminal Law and Procedure for
Educational Work of Lviv University of Trade and Economics; Lviv, Ukraine. ORСID ID: https://orcid.
org/0000-0003-1237-8425
** Candidate of legal sciences, Associate Professor, Associate Professor at the Department of Criminology
and Forensic Medicine, National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0003-3080-3165
*** Doctor of legal sciences, Professor, Professor at the Department of Criminal Procedure and Criminalistics,
Law Institute Taras Shevchenko National University of Kyiv; Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0003-1005-7046
**** Candidate of legal sciences, Associate Professor of Pre-trial Investigations, Faculty of Kryvyi Rih
Educational and Scientic Institute Donetsk State University of Internal Aairs; Kryvyi Rih, Ukraine.
ORСID ID: https://orcid.org/0000-0003-2388-055Х
***** Doctor of Law, Associate Professor, Head at the Department of Criminal Procedure of National
Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0003-4515-5033
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CUESTIONES POLÍTICAS
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documents, participate directly in investigative and judicial actions. Finally,
attention is paid to problematic issues related to the denition of the limits
of the principle.
Keywords: principle of immediacy of the examination of the test;
assessment of the evidence; researcher; investigating judge;
internal conviction of the judge.
Características tácticas y procesales de la realización
de un registro en la investigación de delitos contra la
seguridad pública
Resumen
El objetivo del artículo fue analizar las características tácticas y
procesales de la realización de un registro en la investigación de delitos
contra la seguridad pública. Para lograr el objetivo en el proceso de
investigación se utiliza un sistema de métodos generales y especiales, tales
como: método dialéctico; método de análisis sistemático de las normas
jurídicas; método jurídico comparativo; método estadístico. Partiendo
del estudio de la legislación, fuentes cientícas, los resultados de la
generalización de la práctica investigativa y judicial, temas de actualidad de
contenido normativo del principio de inmediatez del estudio de la prueba y
los problemas de su implementación durante la prueba procesal penal. Se
concluye que este principio determina las responsabilidades de las personas
que conducen el juicio (interrogar a sospechosos, imputados, testigos,
víctimas, peritos, escuchar dictámenes periciales, revisar pruebas físicas,
anunciar y examinar documentos, grabaciones de audio y video), a quienes
corresponden los derechos de otros participantes para presentar pruebas,
familiarizarse personalmente con los materiales de los procesos penales,
recibir copias de los documentos procesales, participar directamente en
las acciones investigativas y judiciales. Por último, se presta atención a
cuestiones problemáticas relacionadas con la denición de los límites del
principio.
Palabras clave: principio de inmediatez del examen de la prueba;
valoración de la prueba; investigador; juez de
instrucción; convicción interna del juez.
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Stetsyk Bohdana, Olga Vakulyk, Diana Serhieieva, Oksana Luchko y Mark Makarov
Normative content of the principle of immediacy of research of testimonies, things and documents
during criminal procedural evidence
Introduction
The current Criminal Procedure Code of Ukraine, adopted in 2012,
enshrined Chapter 2 “Principles of Criminal Procedure”, resulting in a
revision of the system of principles of criminal procedure in accordance with
generally accepted requirements of international and European standards.
Among them, the domestic legislator attributed the principle of immediacy
of the study of testimony, things and documents (paragraph 16 of Part 1 Art.
7 and Art. 23 Criminal Procedure Code of Ukraine) (Сriminal procedure
code of Ukraine, 2012), which is one of the important legal provisions of
criminal proceedings.
The importance of the principle of immediacy for criminal proceedings
is primarily because the direct receipt of information by a participant in
criminal proceedings provides maximum completeness and correctness of
its perception, which is a necessary condition for forming reliable evidence
and making sound, objective and fair decisions (Dekhtyar, 2014). Ensuring
compliance with the principles of adversarial proceedings, the rule of law
and the rule of law in the process of pre-trial investigation is the main
guideline of investigating judges in Ukraine in the exercise of judicial
control powers (Sukhov, 2021).
Normative consolidation of the main provisions of the principle
immediacy study of testimony, things and documents in the criminal
procedure law requires the denition of directions for its implementation in
law enforcement practice. Currently, discussions in the doctrine of criminal
procedure cause problems of elements normative content principle of
immediacy, its study from the standpoint of proof. The inuence of the
principle of immediacy on the stage of pre-trial investigation, the decision
on the use of the results of covert investigative (search) actions in criminal
proceedings and in the conduct of procedural actions remains poorly
studied. Procedural guarantees of the parties acquire special signicance
for realization principle of immediacy research of indications, things and
documents.
Thus, the consolidation by the domestic legislator the new system of
criminal proceedings principles, referring to it the principles of testimony
immediacy, things and documents, the lack of its implementation at the
stages of pre-trial investigation and trial necessitate research in this area,
which will be the subject of a scientic article.
1. Methodology of the study
To achieve this goal in the research process used a system of general
scientic and special research methods. The method of historical and legal
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analysis allowed to study the formation and development of scientic,
theoretical and legal foundations of the principle of immediacy in the
theory of criminal procedure and criminal procedural law. The application
of the dialectical method contributed to the study of the dynamics and
relationship of tasks, deepening the conceptual framework, clarifying the
essence of the principle of immediacy, identifying elements of its normative
content and research problems related to the implementation of this
principle in criminal proceedings at various stages. With the help of the
method of systematic analysis of legal norms, gaps and contradictions in
normative-legal acts were revealed and proposals for improvement of the
current legislation were formulated. The comparative legal method was
used to compare the norms of criminal procedural law of Ukraine. The
statistical method was used in the study and generalization of case law, the
formation and substantiation of conclusions based on their results.
2. Analysis of recent research
The problem of evidence, their formation and use in criminal proceedings
traditionally belongs to those that attract the most attention of experts
at dierent historical stages of development of the state and legislation.
However, in the perspective of the latest legislation of Ukraine, not many
scientic works have been devoted to the study of its problematic aspects,
in particular, N. Cherkasova (Cherkasova, 1993), O. Dekhtyar (Dekhtyar,
2013), Y. Groshovii, O. Kaplina (Groshovii and Kaplina, 2010), V.
Konovalova (Konovalova, 2005), V. Nor, T. Shevchuk (Nor and Shevchuk,
2019), Y. Orlov (Orlov, 1981), O. Shilo (Shilo, 2015), M. Shumilo (Shumilo,
2013), M. Strogovich (Strogovich, 1968), V. Tertyshnyk (Tertyshnyk, 2014),
H. Teteriatnyk, (Teteriatnyk et al., 2021) and other scientists.
It should also be noted that with the entry into force of the new Criminal
Procedure Code of Ukraine, the main elements of the content of the
principle of immediacy of the testimony, things and documents are subject
to revision taking into account the rules set out in it, which regulate pre-trial
investigation. The above necessitates the purpose of the study to determine
the characteristics of personal perception of the investigator, prosecutor,
investigating judge testimony, things and documents as an element of the
content of the principle of immediacy at the stages of pre-trial investigation
and trial.
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Stetsyk Bohdana, Olga Vakulyk, Diana Serhieieva, Oksana Luchko y Mark Makarov
Normative content of the principle of immediacy of research of testimonies, things and documents
during criminal procedural evidence
3. Results and discussion
3.1. The essence of the principle of immediacy of the study of
testimony, things and documents
The immediacy of the study of testimony, things and documents dened
as the basis of criminal proceedings in paragraph 16 of Part 1 Art. 7 Criminal
Procedure Code of Ukraine and formulated in Art. 23 of the Code:
The court examines the evidence directly. The court receives the testimony
of the participants in the criminal proceedings orally. Information contained
in testimony, things and documents that were not the subject of direct court
investigation may not be recognized as evidence, except in cases provided for by
the Criminal Procedure Code of Ukraine (Сriminal procedure code of Ukraine,
2012).
The court may accept as evidence the testimony of persons who do not
give it directly at the hearing, only in cases provided by law. The prosecution
is obliged to ensure the presence of prosecution witnesses during the trial in
order to exercise the right of the defense questioned before an independent
and impartial tribunal.
The essence of the principle of immediacy is the requirements of the
state to ensure the implementation of such criminal proceedings, in which
the court, as a body deciding on guilt (innocence), directly, free from the
subjective inuence of participants in the pre-trial investigation, accepts all
the circumstances Criminal case.
Although the provisions Art. 23 Criminal Procedure Code of Ukraine
dene the main elements of the content of the principle of immediacy
only in the context of the procedural activities of the court; however, a
systematic analysis of the Code, departmental regulations allows a broader
consideration of the content the immediacy principle, as objects that
conduct criminal proceedings, and the relevant rights of other participants
in the process to use evidence, their verication and evaluation, decision-
making and justication of decisions, participation in procedural actions
(Groshovii and Kaplina, 1999).
This principle determines the responsibilities of those who conduct the
process: to interrogate suspects, accused, witnesses, victims, experts, hear
the opinions of experts, review the evidence, announce and investigate
documents, audio and video recordings. These responsibilities correspond
to the rights of other participants to submit evidence, personally inspect
the materials of criminal proceedings, to receive copies of procedural
documents, to participate directly in investigative and judicial actions.
The implementation of these provisions determines the rules formulated
in various articles Criminal Procedure Code of Ukraine: procedural actions
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and decisions, except as provided by law, are carried out by a person
authorized to conduct criminal proceedings (Art. 9 Criminal Procedure
Code of Ukraine); the court hearing in each case takes place continuously,
except for the time allotted for rest (Part 1 Art. 322 Criminal Procedure
Code of Ukraine); each case must be heard in the same court, when one of
the judges is deprived of the opportunity to continue to participate in the
hearing, he must be replaced by another judge, and the case begins from the
beginning, except as provided in Part 2 Art. 319 Criminal Procedure Code of
Ukraine; the court substantiates the verdict based only on the evidence that
was examined at the hearing (Part 3 Art. 370 Criminal Procedure Code of
Ukraine); it is not allowed to announce testimony in court, except in cases
expressly provided by law (Art. 23 Criminal Procedure Code of Ukraine); the
participation of the defendant in the court hearing is mandatory, except as
expressly provided by law (Art. 323 Criminal Procedure Code of Ukraine);
the trial is carried out with the obligatory participation of the parties to the
criminal proceedings, except as provided by the Criminal Procedure Code
of Ukraine (Part 2 Art. 318 Criminal Procedure Code of Ukraine) (Сriminal
procedure code of Ukraine, 2012).
From the above it gave posibility to see that the principle of immediacy
specied in many rules, obliging the court, pre-trial investigation
authorities to act in such a way as to establish important circumstances
in the proceedings and ensure the actual exercise of their rights, including
such important as the suspect protection. It is in the process of direct
examination of evidence by the court that opportunities are created for the
accused to refute or mitigate the accusation, use his right to ask questions
to the person testifying against him, draw the judges’ attention to the
weaknesses of individual evidence in terms of their requirements in the
case.
Based on the current version Art. 23 Criminal Procedure Code of Ukraine,
other articles detailing the principle of immediacy, we can conclude that
there are two elements in its structure: personal perception of evidence by
participants examining them, and justication of the decision by evidence
examined and evaluated personally. It should be noted that the name of the
principle in the current version – «immediacy of the study of testimony,
things and documents» narrows the true meaning of this principle, based on
the provisions of the constituent parts Art. 23 Criminal Procedure Code of
Ukraine. It is obvious that paragraph 16 of Part 1 Art. 7 Criminal Procedure
Code of Ukraine, and Art. 23 of the Code dene the relevant principle as
the immediacy of the study of testimony, things and documents. At the
same time in the provisions of Parts 1, 2 Art. 23 Criminal Procedure Code
of Ukraine is a direct study of the evidence, which according to the current
Code (Part 2 Art. 84), in addition to the above, also include the conclusions
of experts. It is believed that this lack of legislative technique in general
does not aect the perception of the normative content of the principle of
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Stetsyk Bohdana, Olga Vakulyk, Diana Serhieieva, Oksana Luchko y Mark Makarov
Normative content of the principle of immediacy of research of testimonies, things and documents
during criminal procedural evidence
immediacy, taking into account the mentioned source, because, as is known
from the general theory of law, the rule of law does not always coincide with
the article. some set of prescriptions of articles. In our case it is Art. 84, 101
Criminal Procedure Code of Ukraine (Dekhtyar, 2014).
3.2. Stages of criminal proceedings to which the principle of
directness of research of indications, things and documents
extends
Normative consolidation of the immediacy of the study of testimony,
things and documents as one of the general principles of criminal
proceedings (paragraph 16 of Part 1 Art. 7 and Art. 23 Criminal Procedure
Code of Ukraine) necessitates a review of the stages of criminal proceedings
to which it applies. Although Art. 23 Criminal Procedure Code of Ukraine
reveals the main elements of the content of this principle only in relation to
court stages, but Part 1 Art. 7 Criminal Procedure Code of Ukraine stipulates
that the content and form of criminal proceedings must comply with the
general principles of criminal proceedings (Сriminal procedure code of
Ukraine, 2012).
This approach of the legislator to determine the role of the general
principles of criminal proceedings suggests that during the trial in the
rst instance the principle of immediacy of the testimony, things and
documents is implemented in full taking into account the features dened
by the Criminal Procedure Code of Ukraine and its implementation in other
stages. criminal proceedings, including during the pre-trial investigation,
have a signicant specicity due to the signicant number of exceptions
to the general rules on personal perception and evaluation of evidence
(Dekhtyar, 2013).
As rightly noted by N. Cherkasova, direct examination of evidence,
which is carried out at the stages of pre-trial investigation and trial, are two
independent forms of research (Cherkasova, 1993). A thorough analysis
process of proof at these two stages reveals signicant dierences in the
study of evidence. In particular, at the stage of trial evidence is examined
with the direct participation of the prosecution and defense (Part 2 Art.
318 Criminal Procedure Code of Ukraine), which allows them to personally
perceive all evidence (both accusatory and exculpatory) simultaneously
with the court and other participants in the trial. proceedings and be in the
same conditions during the formation of its legal position, in contrast to
the stage of pre-trial investigation, for which such a situation is not typical.
In order to expand the content of the principle of immediacy regarding the
stage of pre-trial investigation in the legal literature, proposals were made
to supplement it with provisions that both the court and the investigative
body should take measures (within the limits and forms prescribed by law)
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to establish direct contact with participants. This will allow them to directly
perceive the course and results of procedural actions, to communicate
freely, without intermediaries with the persons who exercise them, to fully
use the rights to protect their legitimate interests and timely perform their
duties (Shundikov, 1974). The principle of immediacy in relation to these
participants is manifested in giving them the right to familiarize themselves
with the materials of criminal proceedings.
It should be noted some positive changes in this direction, due to the
adoption in 2012 of the new Criminal Procedure Code of Ukraine. Thus,
Art. 221 Criminal Procedure Code of Ukraine obliges the prosecutor,
investigator in the pre-trial investigation at the request of the defense,
the victim, the representative of the legal entity in respect of which the
proceedings are conducted, to provide them with pre-trial investigation
materials (with some exceptions). the person performing it has the right to
make the necessary extracts and copies.
In accordance with Part 6 Art. 223 Criminal Procedure Code of Ukraine
investigative (search) action is carried out at the request of the defense,
the victim, the representative of the legal entity that initiated it, and (or)
its defense counsel or representative, except when due to the specics
of the investigative (search) action it is impossible the person refused to
participate in it in writing (Сriminal procedure code of Ukraine, 2012).
The need to distinguish between pre-trial and forensic evidence was
one of the rst after the adoption of the new criminal procedure legislation
of Ukraine pointed out by M. Shumylo – the evidence in the pre-trial
proceedings will be only for the investigator and the prosecutor, but
probable for the defense counsel and the court. The structure of criminal
proceedings under the Criminal Procedure Code of Ukraine, the scientist
rightly notes, provides that in the course of the pre-trial investigation
materials are collected that can be recognized as evidence only by the court
(Shumilo, 2013).
Interpretation of these rules Art. 95 (Testimony) and 225 (Interrogation
of a witness, a victim during a pre-trial investigation in court) Criminal
Procedure Code of Ukraine allows us to draw the following conclusions:
1) testimony provided during the pre-trial investigation is relevant
only to substantiate the procedural decisions of the investigator and
prosecutor (except for those testimonies obtained in accordance with
Art. 225 Criminal Procedure Code of Ukraine). If the interrogation
is recorded by technical means, the text of the testimony may not
be entered in the relevant record of the interrogation, provided that
none of the participants in the proceedings insists on it.
In this case, the protocol states that the testimony is recorded on
the media attached to it (Part 2 Art. 104 Criminal Procedure Code
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during criminal procedural evidence
of Ukraine). This simplication procedural recording of testimony
during the pre-trial investigation is due, in particular, to the fact
that they have no probative value in court, and therefore it makes no
sense to record them in writing subject to technical means (of course,
if the participants do not insist);
2) court decisions may be based only on those testimonies that were
directly perceived: 1) by the court – during the trial; 2) by an
investigating judge – during the pre-trial investigation, which
is allowed in exceptional cases related to the need to obtain the
testimony of a witness or victim, if due to the danger to life and health
of the witness or victim, their serious illness, the presence of other
circumstances may prevent their interrogation in court or aect
the completeness or accuracy of the testimony (Art. 225 Criminal
Procedure Code of Ukraine).
3.3. Investigating judge as a subject of examination of
testimony, things, documents and expert opinions
One of the biggest restrictions on human rights and freedoms during
the pre-trial investigation is the application of measures to ensure criminal
proceedings. When studying the materials with which the prosecutor
substantiates the need to apply a measure of criminal proceedings to a
person, the investigating judge is faced with an extremely dicult and
important task: to nd a balance between protecting the person, society
and the state from criminal oenses. On the other hand, to ensure the
restoration and protection of the rights, freedoms and legitimate interests
of the person appearing before the investigating judge, so that no innocent
person is subjected to procedural coercion, in fact, to perform the tasks of
criminal proceedings. In our opinion, this can be achieved only by making
procedural decisions after direct examination and evaluation of the evidence
provided by the parties, which, unfortunately, is not always the case with
investigative judges.
We agree with the position V. Nor and M. Shevchuk that the burden
of proving the existence of grounds for choosing a measure of restraint of
a particular type rests with the prosecutor. The limited interpretation of
the prohibition to use evidence obtained in violation of the requirements
of criminal procedure law to substantiate suspicion when deciding on the
choice of a measure restraint, of course, greatly facilitates the burden of
proof on the prosecution and the activities of an investigating judge who
does not wants to complicate the work for himself (Nor and Shevchuk,
2019).
Note that now oppose the opposite position. A. Panova notes that in Part
1 Art. 94 Criminal Procedure Code deals with the mental and intellectual
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activity of the investigator, prosecutor, investigating judge, which consists
in their subjective perception of factual data, as well as evaluation of this
information according to their inner conviction to make a decision in
criminal proceedings. Accordingly, such an assessment is purely subjective,
which does not involve the adoption of a procedural decision by these
subjects to recognize such facts as evidence, because they acquire the value
of evidence only on the basis of their interpretation by the court (Panova,
2017).
We consider this position of the scientist to be wrong, because, in our
opinion, it directly contradicts the imperative prescription contained in
Art. 94 Criminal Procedure Code, which obliges the investigating judge
to evaluate each piece of evidence. Evidence at the stage of pre-trial
investigation exists regardless of «their interpretation by the investigating
judge or court», and the only way to legally exclude them from the materials
of criminal proceedings is to assess them (Panova, 2017).
The existence of dierent approaches to the evaluation of evidence by
the investigating judge in the theory of criminal procedural law obviously
results in the introduction of contradictory and sometimes erroneous
practices in law enforcement. In this regard, it is logical that scientists try
to investigate this problem in more detail.
Article 94 of the Code of Criminal Procedure contains provisions on the
evaluation of evidence in criminal proceedings, which oblige the investigating
judge on his inner conviction, which is based on a comprehensive, complete
and impartial examination of all circumstances of criminal proceedings, to
assess each piece of evidence. admissibility, reliability, and the totality of
the collected evidence – in terms of suciency and interrelation for the
adoption of the relevant procedural decision.
In this case, for the latter, no evidence has a predetermined force. Such a
prescription Art. 94 Criminal Procedure Code can not be interpreted either
literally / philologically, nor logically-substantive method, other than the
obligation of full and comprehensive assessment by the investigating judge
of all evidence submitted to him by the parties to the criminal proceedings,
which should ultimately be the basis for a proper decision. on the basis
of own, formed on the basis of evaluation of evidence, internal conviction.
Otherwise, what sources (information), other than evidence, should the
investigating judge be guided by when making the appropriate decision?
In accordance with the principle of immediacy of the examination of
testimony, things, documents and expert opinions, the investigating
judge has no right to substantiate court decisions with testimony given
to the investigator or prosecutor, or to refer to them. The court may base
its conclusions only on the testimony that he directly received during the
hearing or which were obtained in the manner prescribed by Art. 225
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during criminal procedural evidence
Criminal Procedure Code, that is during the interrogation of a witness, a
victim during the pre-trial investigation in court.
Considering the rules Art. 225 Criminal Procedure Code of Ukraine as a
new institution – the interrogation of a witness or victim by an investigating
judge during the pre-trial proceedings, the authors of scientic and practical
commentary to the Criminal Procedure Code of Ukraine edited by V. Tatsiy,
V. Pshonka and A. Portnov believes that its existence is an exception to the
general rule of the immediacy of the study of evidence (Tatsiy et al.,, 2012).
Partially sharing this position, it should be noted, Part 1 Art. 225
Criminal Procedure Code of Ukraine provides for interrogation by an
investigating judge in the presence of the parties to criminal proceedings,
which allows both the investigating judge and the parties to personally take
the testimony of a witness, the victim. Exceptions to the general rule on the
presence of the parties to criminal proceedings are two cases specied in
Part 1 Art. 225 Criminal Procedure Code of Ukraine: 1) non-arrival of the
party, who was duly notied of the place and time of the court hearing, to
participate in the interrogation; 2) the absence of a party to the defense, if
at the time of the interrogation no person was notied of the suspicion in
this criminal proceeding.
In these cases, the testimony of the witness, the victim is perceived
directly by the investigating judge, and in respect of one or both parties
to the criminal proceedings is limited to the principle of immediacy of the
examination of testimony, things and documents.
The Supreme Court of Ukraine gives guidance to its decisions on
the principle of immediacy and the procedure for its implementation
(Resolution of the Supreme Court of 05.02.2019 in case № 127/23722/15-
k), pointing to the need to apply Art. 23 Criminal Procedure Code in the
work of the investigating judge. This is due to the fact that the immediacy
of the perception of evidence makes it possible to properly investigate 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 Art.
94 Criminal Procedure Code, and to form a complete and objective view of
the facts of a particular criminal proceeding.
Failure to comply with the principle of immediacy violates other
principles of criminal procedure, including the presumption of innocence
and proof of guilt, ensuring the right to defense, adversarial parties and
freedom to present their evidence and to prove their persuasiveness before
a court. Therefore, the principle of immediacy is an integral element of
the procedural form of the trial, and its non-compliance with the court,
given the content of Part 2 Art. 23 and Art. 86 Criminal Procedure Code,
means that evidence that was not the subject of direct investigation of the
court can not be considered admissible and taken into account in the court
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decision, except as provided by this Code, and therefore the court decision
in accordance with Art. 370 Criminal Procedure Code cannot be recognized
as lawful and reasonable (Resolution of the Supreme Court of 12.02.2019
in case № 754/7061/15).
Thus, the basis for the evaluation of evidence and direct study of their
sources, although perhaps, at rst glance, unsystematic, but was laid by the
legislator in the current Criminal Procedure Code of Ukraine. Using Art. 26
Criminal Procedure Code, which provides that the investigating judge in
criminal proceedings decides only those issues that are submitted to him
by the parties and referred to his powers Criminal Procedure Code, and the
principle of adversarial, the content of which is disclosed in Art. 22 Criminal
Procedure Code, the parties to criminal proceedings must apply for a direct
examination of testimony, things and documents, as well as the recognition
of evidence inadmissible to the investigating judge, without waiting for
the latter’s initiative. V. Nor and M. Shevchuk argue that regardless of the
presence parties motions to the criminal proceedings, the investigating
judge must decide to declare the evidence inadmissible in case of obvious
signs of their inadmissibility (Nor and Shevchuk, 1945).
The basis for this is Part 4 Art. 193 Criminal Procedure Code, according to
which at the request of the parties or on its own initiative, the investigating
judge has the right to hear any witness or examine any material relevant to
the issue of precautionary measures. In addition, Part 3 Art. 95 Criminal
Procedure Code establishes the obligation of a witness / expert to testify
to an investigating judge in the manner prescribed by this Code (Сriminal
procedure code of Ukraine, 2012).
Thus, the investigating judge is explicitly mentioned in the Code of
Criminal Procedure as the subject of evaluation and direct examination
of evidence in criminal proceedings. The need to establish during the
judicial review the presence or absence of facts and circumstances relevant
to criminal proceedings and subject to proof by direct examination of the
sources of evidence and evaluation of evidence of relevance, admissibility,
reliability, as well as the totality of evidence collected in terms of suciency
and relationship for the adoption of the relevant procedural decision is not
in doubt.
Otherwise, the investigating judge will not be able to perform the task
of criminal proceedings and the actual function of judicial control and
become a barrier to insolvent criminal proceedings, which already at the
stage of pre-trial investigation do not contain substantiated / proved by
appropriate, admissible and sucient evidence of suspicion is the ocial
beginning of bringing a person to criminal responsibility, as well as other
circumstances, the proof of which is required by law. As a result, this will
violate the requirements Art. 29 of the Constitution of Ukraine and Art. 370
Criminal Procedure Code. It will be recalled that the decision made on
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during criminal procedural evidence
the basis of objectively claried circumstances, which is conrmed by the
evidence examined during the trial and assessed by the investigating judge,
in accordance with Art. 94 Criminal Procedure Code.
3.4. The judge’s inner conviction during the examination and
evaluation of evidence
The principle of immediacy of the examination of evidence provides
for the possibility of a judge with the participation of the parties to the
proceedings to conduct proceedings on the basis of personal and direct
acquaintance, examination of evidence without the assistance of certain
subjects of criminal proceedings or, as rightly noted by B. Tertyshnyk,
«without any intermediate links» (Tertyshnyk, 2014).
The court is not entitled to substantiate court decisions with evidence
that has not been directly investigated (heard, studied, veried) with the
participation of the parties during the trial. It is clear that in adversarial
proceedings the court does not collect evidence of guilt or innocence of the
accused on its own initiative, but the obligation of the court to verify the
evidence submitted by the parties is undeniable.
It is for this purpose in the adversarial process that the active role
of the court can be traced, for example, in the appointment of expertise.
Thus, Part 2 Art. 332 Criminal Procedure Code of Ukraine authorizes the
court by its decision to entrust the examination to an expert institution,
expert or experts, regardless of the petition, if the court provided several
conicting expert opinions, and interrogation of experts failed to eliminate
the identied contradictions; during the trial there were grounds for an
inpatient psychiatric examination. Thus, it can be concluded that in order
to make a lawful, reasonable and fair decision, the court is obliged to take
certain active actions on its own initiative to directly evaluate the evidence
and perform its procedural function based on internal conviction (Girovich,
2015).
M. Strogovich considers the concept of «inner conviction of the judge»
as a process of mental activity, an act of thinking associated with awareness
of the circumstances of the case (Strogovich, 1968). V. Konovalova and V.
Shepitko believes that the concept of «inner conviction» in its meaning
expresses subjective condence in accordance with the subjective
assessment of objectively existing circumstances or facts. The subjectivity of
inner conviction as its form not only does not exclude, but on the contrary,
presupposes its objective meaning. Therefore, inner conviction is one of the
forms of reection of objective reality. As a reection of objective reality in
its content, inner conviction, according to scholars, does not play the role
of a criterion for the truth of what is known in criminal proceedings. The
criterion of truth in this area, as in all other areas of knowledge, according
to scientists, is practice (Konovalova, 2005).
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Yu. Orlov believes that inner conviction can act as a method of evaluating
evidence and as a result. The scientist notes that «... in the case of impossible
direct experimental verication of the conclusion, the subjective criterion
often acts as one of the derivatives of objective, as a concentrated expression
of collective experience, social practice. A similar function is performed
by the inner conviction of the subjects of proof, which, on the one hand,
is a method of evaluating evidence, and on the other – the result of this
evaluation, one of the criteria for its correctness» (Orlov, 1981).
V. Tertyshnyk, notes that a judge’s inner conviction is a state of
consciousness of a judge, which reects the result of his subjective mental
activity in the process of evaluating evidence in order to reliably establish
the facts of a particular criminal case, which is the subject of evidence
decision (Tertyshnyk, 2014).
There is no doubt that during the criminal proceedings the judge conducts
research activities, checking and evaluating the available evidence, the result
of which is the reproduction of a fragment of reality, reconstruction of all the
circumstances necessary for the court to decide during the court decision.
Thus in the course of knowledge of factual circumstances of business the
general laws of process of thinking which take place and in other spheres of
a society come to light. Therefore, the evaluation of evidence as one of the
stages of proof is a kind of mental activity.
Thus, in our opinion, the inner conviction of a judge should be considered
as a complex phenomenon. It’s not just an individual and subjective feeling
of condence. Of course, judges’ beliefs are individual and subjective in the
sense that they are made up of individuals who decide the case. But this legal
category should not be considered unilaterally and only in psychological or
only legal aspects in any case.
The convictions of judges are based primarily on their legal awareness,
the whole set of views, ideas, sense of justice (as a subjective factor in
the formation of internal convictions of judges), as well as their direct
examination during the criminal proceedings, oral hearing of participants
in criminal proceedings (as eective factor).
In administering justice, a judge is obliged to form an inner conviction
not as a personal perception of certain phenomena of objective reality, but
as a professional vision of the facts obtained as a result of procedurally
appropriate and admissible actions. According to the case law of the
European Court of Human Rights, it is worth noting that the dierence
between facts and evaluative judgments is that facts need to be proved and
evaluative judgments do not. Thus, the formation an inner conviction of
a judge during criminal proceedings will take place as a result of proving
or disproving the facts enshrined in the procedural sources of evidence
provided by the parties.
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Conclusions
Summarizing the above, it should be noted that the principle of
immediacy of research of testimony, things and documents in criminal
proceedings structurally consists of two elements: personal perception
of evidence by participants examining it, and justication of the decision
by evidence examined and evaluated personally. The immediacy of the
examination of evidence, carried out at the stages of pre-trial investigation
and trial, are two independent forms of research, which have dierences in
nature.
The principle of direct examination of testimony, things and documents
at the stage of pre-trial investigation imposes on the investigator,
prosecutor, and in cases provided by the Criminal Procedure Code of
Ukraine and the investigating judge, the obligation to directly examine
the evidence. Immediacy in their examination of the evidence is that the
investigator, prosecutor must: personally conduct in a particular criminal
proceeding investigative (search) actions, and in cases provided by the
Criminal Procedure Code of Ukraine – as well as covert investigative
(search) actions, directly perceiving in the course of their proceedings,
factual data that allow to establish the presence or absence of facts and
circumstances that are relevant to the criminal proceedings and are subject
to proof; make procedural decisions based on the assessment of personally
perceived factual data.
The specicity of the implementation of the principle of immediacy of
the study of testimony, things and documents is inherent in the stage of
pre-trial investigation and is due to signicant restrictions on the personal
perception of evidence by the investigator, prosecutor. The range of such
restrictions is quite wide and is determined both by the circumstances
Criminal proceedings and the place where the criminal oense was
committed, and by the powers of the prosecutor and the head of the pre-
trial investigation body. At the same time, the existence of these restrictions
does not aect the duty of the investigator, prosecutor to directly investigate,
verify and evaluate all procedural evidence in the materials of a particular
criminal proceeding when making procedural decisions.
At the stage of trial, the basic factor in the formation of the judge’s own
evaluation of evidence, along with the procedural conclusions obtained
during the proceedings, is the so-called internal conviction, which is the
perception and understanding of perceived information through the prism
of knowledge of substantive and procedural law. that he gave a correct
assessment of all the evidence available in the proceedings and that the
conclusion he had drawn from the examination of all the issues was correct,
complied with the requirements of law, justice and in no way restricted
human rights.
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 72
