Evidence and Proving in Criminal Procedure and Criminalistic Measurement
Journal Title: Держава та регіони. Серія: Право - Year 2016, Vol 1, Issue
Abstract
The article deals with the conceptual problems of proof under the existing Code of Criminal Procedure and the corresponding generalizations made aimed at improving his means in criminal proceedings. The current Criminal Procedural Code of Ukraine, in pursuance of requirements of the Council of Europe, changed the whole “ideology” and the legal paradigm of criminal justice oriented the best world samples. But these changes, as has been repeatedly pointed out by leading scientists, pointing to the famous shortcomings of the CPC 2012 and a certain inertia of consciousness a considerable part of law enforcement officials, have caused a number of problems, not only of enforcement, which are the unregulated, conflicting or debatable, and – methodological associated with a new theoretical interpretation known in the science of criminal trial and criminalistics institutions requiring a corresponding scientific practical study. Among them, the central place belongs to the theory of evidence. Based the marked, the purpose of the article was the conceptual analysis of the current legal paradigm of evidence and of proof, as well as their reflection in the existing criminal procedural legislation. Historically speaking, based on domestic legislative acts, starting with the “Russian Truth”, “Pskov Judicial Charter”, Lithuanian statutes, collections of Magdeburg law, “Rights, which is suing the Little Russian people”, the legislative acts of the Russian empire XVIII-XIX centuries, the Regulation Charter of the criminal justice in 1864 the various types of evidence have been analyzed: indications of the parties and witnesses, written documents, physical evidence and the like. And also summarizes the rules of work with them: the gathering, evaluation and use. Separately, was investigated the issue of evidence with regard to Ukrainian criminal procedure legislation in 1922, 1927, 1958, 1960 in which the concept of procedural sources of evidence has been fixed which include: testimony of a witness, the victim's testimony, the testimony of the suspect, the testimony of the accused, expert evidence, physical evidence, records of investigative and judicial actions, protocols with relevant applications, compiled by authorized bodies as a result of operational search activities, and other documents. A significant part of the article was devoted to a detailed analysis of problems of proof in the acting Code of Criminal Procedure. On the basis of this drew relevant lessons. For Evidence and proofs have the same cognitive nature, and differ only in the procedural status. During a the preliminary investigation, to clearly define the properties (identity, admissibility, reliability and sufficiency) of collected factual data (future proof), is problematic. Therefore, at the pretrial stage investigation is advisable to apply lexical phrases like: “factual data (circumstances)", “information contained in the statement,” “information obtained from during the study of things, documents, material traces of the crime”, “information relevant for establishing the circumstances of the criminal offense “and others. It is only in judicial proceedings is permissible to use the term “evidence” or “forensic evidence”.
Authors and Affiliations
В. Г. Лукашевич
Keywords
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