Journal article Open Access
A.S. Tuntula, O.V. Kosarevska
The article deals with the possibility to improve the notion and basic legal features of evidence and admissibility of anti-criminal information of this type in anti-criminal proof. It has been proposed to amend an article on proves in the Draft Code of Anti-Criminal Proceedings with the provision that evidence shall be defined as any information on the fact in general or its certain part which was obtained from objective and/or subjective and/or mixed sources of information. At the same time, this information should have indispensable set of the main basic legal features of evidence which are significance, good quality and reliability. The set of evidence shall be so coordinated and sufficient that the main subject of anti-criminal proceeding could make an opinion on possibility or necessity or impossibility and the lack of necessity to take certain interim or final decision on the case.
It has been highlighted that incompliance with the procedure of obtaining evidence should be followed by liability for the guilty person and resulted in inadmissibility of this evidence only in the event of doubt in its reliability or in the event if this information lacks other main basic legal features of evidence. It has been stated that national procedural legislation and case law based on it and related to equitable decisions in the event of recognition of anti-criminal information as inadmissible evidence under formal circumstances regarding incompliance with the procedure of obtaining evidence and in the event of the lack of doubt in its reliability violates legal status of victims and contradicts p. 2 of Art. 3 of the Constitution of Ukraine regarding the main duty of the state and its authorities to assert and ensure rights and freedoms of all citizens.
It has been also noted that requirements of effective procedural legislation and certain case law on recognition of hearsay evidence as admissible evidence depending on existence or absence of consent from parties to the proceedings do not comply with the principle of professionalism in anti-criminal proceedings.