The internal conviction in the evaluating evidence in the constitutional judicial process

It is also worth paying attention to the comparative study of Greek lawyer Dimitrios Giannulopoulos «The exclusion of improperly obtained evidence in

Greece: putting the first constitutional rights» (2007). In particular, he notes that, unlike in England and Wales, where there is only the possibility of declaring inadmissible evidence of doubtful origin, in accordance with Article 177, paragraph 1, of the Code of Criminal Procedure, evidence obtained in breach of a statutory procedure is unacceptable automatically, including evidence, received in violation of the right not to interfere with privacy.

Considerable attention in scientific circles is given to the problem of subjective perception of evidence by various judges, based in particular on their political or religious preferences and moral principles, that is, the phenomenon of imbalance between individual knowledge and the assessment of evidence and their actual evidential weight, in particular, this is stated in the works:

Jacqueline M. Wheatcroft, Hannah Keogan. Impact of Evidence Type and Judicial Warning on Juror Perceptions of Global and Specific Witness Evidence (2017);

Sylvain Brouard & Christoph Hцnnige. Constitutional courts as veto players: Lessons from the United States, France and Germany (2017);

Volodymyr Kampo: «The Constitutional Court of Ukraine Is on the Path to a Doctrine of Real Law» (2011);

Sullivan, Barry, Just Listening: The Equal Hearing Principle and the Moral Life of Judges (2016);

Lydia B. Tiede. The political determinants of judicial dissent: evidence from the Chilean Constitutional Tribuna (2016);

Diego M. Papayannis. Independence, impartiality and neutrality in legal adjudication (2016).

In my opinion, despite the heterogeneity of these and other scientific concepts, the generalizing factor between them is that the authors, de facto, reveal the essence of the process of forming the judge's internal convictions in the context of his independence and impartiality.

Certainly, these factors are acceptable and necessary for judges of constitutional jurisdiction, but there is also a certain difference, the essence of which is that the judges of these bodies forming their inner convictions are more focused on the study of evidence in the context of their correspondence with the axiological, ontological and epistemic aspects.

In the legislative activity and judicial practice, the issue of determining the content of the concept of «inner conviction» of a judge is also given considerable attention.

So the Constitutional Court of the Republic of Moldova in the Decision of May 22, 2017, in particular, noted that “the judge's inner conviction is formed after examining all the evidence presented and stressed that this concept cannot be considered in the sense of the judge's subjective opinion, but is based on the body of knowledge, «Acquired by a judge after consideration of all evidence as a whole, in a diverse, objective and guided by law» (2017).

Closest in meaning to the concept of «inner conviction» is the term «beyond reasonable doubt», used in the practice of the ECHR in the process of proving. This term is based on the principle of «rational doubt». Thus, in the Decision of January 18, 1978, the European Court of Human Rightsnoted that «when evaluating evidence, the court, as a rule, should apply the criterion of proof“ beyond reasonable doubt», which follows from the presence of a collection of sufficiently convincing, clear and consistent evidence or irrefutable presumptions of facts (circumstances ) (2011).

The legislation of Ukraine, which regulates the activities of KSU, does not contain the concepts «assessment of evidence» and «inner conviction of a judge». The Constitution of Ukraine in Part 2 of Art. 147 only determines that this activity is based on the principles of the rule of law, independence, collegiality, publicity, validity and commitment of its decisions and conclusions.

In our opinion, this significantly drops the significance of constitutional jurisdiction as an important element of the national mechanism for protecting the rights, freedoms and legitimate interests of citizens in the context of comparison with the legislative settlement of procedural activities of constitutional courts of foreign countries and domestic courts of general jurisdiction.

For example:

- According to art. 35 of the Law on the Constitutional Court of Lithuania: «the evidence provided to the Constitutional Court is not binding beforehand. The court evaluates the evidence in accordance with the internal confidence of the judges, which is based on a detailed, comprehensive and objective examination of the full range of circumstances of the case at the court hearing and in accordance with the laws (2010);

- According to Article 12 of the Law on the Constitutional Court of the Republic of Moldova: after the appeal of the judge or one of the bodies, the Court makes a decision on the full or partial recognition of evidence, according to his own conviction, (part 2) (1995);

- in § 30 of the Law on the Federal Constitutional Court of the Federal Republic of Germany, it says that the Court at the closed part of the discussion considers and evaluates at its discretion and on the basis of the law the results of the oral hearing and the evidence presented (part 1) (1993).

According to the norms of domestic procedural legislation, which regulate issues related to the assessment of evidence in the case by judges of courts of general jurisdiction, the situation is as follows:

- Art. 86 «Evaluation of evidence» Economic Procedural Code of Ukraine:

the court evaluates the evidence according to its inner conviction, based on a comprehensive, complete, objective and direct examination of the evidence in the case; no evidence has a predetermined force for the court (part 1,2) (2018);

- According to art. 94 «Evaluation of evidence» of the Criminal Procedure Code of Ukraine: a judge, a court of his own conviction, which is based on a comprehensive, complete and impartial study of all the circumstances of criminal proceedings, guided by the law, evaluate each evidence in terms of admissibility, reliability, and the totality of the evidence collected - in terms of sufficiency for making the appropriate procedural decision; no evidence has a predetermined strength» (part 1,2) (2012).

Thus, it should be noted that modern domestic legislation in the field of constitutional jurisdiction is organically and functionally imperfect. One of the reasons for this, in my opinion, is the legislator's attempt to resolve in one law all issues related to the activity of the CCU, which resulted from the emergence of gaps, in particular, with questions of proof (obtaining, evaluating and using evidence and forming the judge's internal convictions) in a constitutional court proceeding.

In addition, it should be noted that the imperfection of the legislative regulation of the activities of the domestic body of constitutional jurisdiction is also a consequence of insufficient attention to these problems on the part of the legal science. Despite the fact that according to the current version of the Constitution of Ukraine, the Court does not belong to the domestic system of justice, a significant part of lawyers still underestimate the importance of philosophical and legal factors in its activities, giving preference to a positivist approach to resolving issues that fall within its competence.

However, this approach is acceptable mainly for courts of general jurisdiction, where the judge's internal convictions are formed on the basis of the assessment of the evidence provided by the parties regarding the correspondence of the facts, actions or circumstances with the letter of the law. Instead, since the CCU verifies laws and other legal acts for compliance with the Constitution, which is essentially a political document, it cannot ignore the ideological orientation of this act of higher legal force (its «spirit»).

In this context, the CCU emphasized in the decision of November 2, 2004 No. 15-rp/2004 «One of the manifestations of the rule of law is that the law is not limited only by law as one of its forms, but also includes other social regulators, including moral norms, traditions, customs, etc., which are legitimate by society and are conditioned by the historically achieved cultural level of society. All these elements of law are united by a quality that corresponds to the ideology of justice, the idea of law, which has largely been reflected in the Constitution of Ukraine»).

The above should not be understood in such a way that the Court does not at all check the challenged laws and other legal acts (their separate provisions) to comply with the text of the Constitution, but it is indisputable that philosophical and legal factors have a significant influence on the decisions of this collegial body. The point is that the internal convictions of each judge on a matter which is considered by the Court are formed by methods of formal logic as a result of the assessment of the evidence of conformity:

- The ideological orientation of the Constitution for the protection of universally recognized human values, such as life and health, dignity and human integrity, etc. (axiological dimensions);

- Influence of the provisions of the challenged law or other legal act on legal relations in the sociopolitical, economic, moral-spiritual and other branches of society being (ontological dimensions);

- Modern concepts of scientific knowledge on issues raised in the constitutional petition, appeal or complaint (epistemic measurements.

Thus, based on the results of this research and foreign experience, I consider it expedient to introduce a scientifically substantiated modern system of legislative support for the activities of the domestic constitutional jurisdiction body, which can be conventionally defined as «the Constitution - the laws on the Constitutional Court - other laws and codes».

Scientific novelty of the publication is that the author has researched the actual issues of formation of internal convictions as a separate judge of the CCU and collegial body of constitutional jurisdiction as a whole, which at this time still remain out of the attention of legal science and are not regulated by law.

In particular, it is proposed by analogy with the law regulating the activities of courts of general jurisdiction, as well as by the example of some foreign countries to develop and adopt separate laws on the issues: first, the status of the body of constitutional jurisdiction and its judges; and secondly, the powers of the Court and the procedure for appealing to it, and thirdly, the constitutional court proceeding.

The latter, under the conventional name «On the judicial constitutional process», should consist of two parts: general and special. The subject of regulation of the provisions of the general part of this law should be, in particular, procedural issues related to the implementation of the judicial constitutional process, including the establishment of rules for the formation of the evidence base for the decision in the case, in particular, by assessing and using the evidence provided by the participants in the process, and received by the Court on its own initiative. A special part of the process «should consist of sections, each of which regulates the rules for reviewing cases on the activities of the Court, taking into account the peculiarities of constitutional proceedings in each of these areas».

Thus, the materials presented in the article are in essence the first comprehensive study of the laws of evaluation of evidence, taking into account the specifics of the constitutional court process.

Based on the above, in our opinion, it is possible to draw certain conclusions on issues related to the assessment of evidence in a constitutional legal process, according to your own conviction, the judge:

- firstly, the philosophical and legal foundations of the procedure for evaluating evidence in the domestic constitutional process are still poorly researched and not legally regulated;

- secondly, the study of the principles of the scientific approach and legislative regulation of domestic and foreign lawsuits in various branches of law, give grounds for some hypothetical assumptions on the definition of the concept of «inner conviction» of evaluating evidence in a constitutional court process:

a) the formation of the internal convictions of the judges of the Constitutional Court on the evaluation of evidence is significantly influenced by objective and subjective factors. The circumstances that were established during the consideration of the case should be attributed to the objective, to the subjective - personal traits of the judge's character and consciousness such as: worldview, professionalism, legal conscience, justice, etc.;

b) the philosophical-legal and psychological- mental category «inner conviction» of a judge in the constitutional process is de facto a reflection of his subjective confidence in the correctness of the assessment, objectively established circumstances, that is, a specific form of reflection of objective reality. However, being in form and content a reflection of objective reality, the inner conviction of one judge is not a criterion for knowing truth in the constitutional process, since this criterion is solely the decision of a collegial body;

- fourthly, modern domestic legislation in the field of constitutional jurisdiction is organically and functionally imperfect, not least because of the failed attempt by the legislator to resolve in one law all issues related to the activity of the CCU, which resulted in a collision legal norms and gaps, in particular, on issues of proof (reception, evaluation and use of evidence) in the constitutional court proceeding. Based on the results of this study and foreign experience, it is proposed to introduce a modern system of legislative support for the activities of the domestic constitutional jurisdiction body, which can be conventionally defined as «the Constitution - the laws on the Constitutional Court - other laws and codes».

internal conviction judge constitutional

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