Вагомість кримінальних судових доказів

The evaluative concept of "weight" of criminal judicial evidence introduced by the legislator is proposed to be prima facie defined as its activity characteristics (the general scientific concept of "characteristic" in this narrative is considered a distinguishing feature of something [6, p. 629]), according to which a certain proof as a result of a pragmatic logical and legal evaluation ad hoc is outlined from its totality due to the suitability attributed to it by a lawyer to serve as a more convincing, stronger evidentiary basis for a procedural decision in comparison with other available evidence.

Therefore, in the post-Soviet theory of proof, "criminal procedural evidence" (Article 84 of the CCP) is further considered using a natural-scientific method, that is, as a natural object, Kant's "thing-in-itself', having immanent "properties" that the lawyer can only identify; however, from the standpoint of activity approach, it can be considered completely differently - the result of the evidentiary activity of authorised participants in criminal proceedings. Such participants are the ones who can attribute the characteristics defined in the law to the evidence (Articles 85-86 of the CCP). As S. Pashyn convincingly emphasises in this regard, in a process where decisions are made based on internal conviction, the only purely legal characteristic of the evidence is its admissibility [7, p. 16]. In the current CCP of Ukraine, it is interpreted as compliance of evidentiary materials (factual data together with procedural sources of their origin) with the requirements of the established standard of admissibility (Article 86 of the CCP) and the rules of the standard of inadmissibility of evidence (Articles 87-88 of the CCP). Legal permits and prohibitions enshrined in these two standards (positive and negative) are procedural rules of proof, following which allows deciding on the admissibility (inadmissibility) of materials as criminal court evidence. As J. Skorupka rightly notes in this regard, the standards of admissibility of evidence determine the scope of permitted procedural activities for the authorities, and, consequently, establish the limits of permissible interference with the rights and freedoms of participants in criminal proceedings [8, p. 97].

In addition to admissibility, the procedural law also mentions other legally unregulated logical and cognitive characteristics of evidence - its credibility (Article 85 of the CCP), reliability (Part 1 of Article 94 of the CCP), and for the totality of the evidence - sufficiency and relationship for making a relevant procedural decision (Part 1 of Article 94 of the CCP). The need and opportunity to attribute the mentioned characteristics to the materials (objects specified in Part 2 of Article 84) arises during the work of authorised participants in criminal proceedings with acceptable materials as part of solving problems caused by their procedural positions (prosecution - defence - arbitration). Therefore, according to the authors of the study, the above-mentioned characteristics of evidence can be called activity-based characteristics. Thus, the positive conclusion of the investigator, inquirer, prosecutor, and the court as an arbitrator-evaluator on the admissibility of evidence is a conditio sine qua non of their further use as procedural evidence in general. The decision on the possibility of attributing to materials the activity characteristics required by law allows using procedural evidence to solve specific practical problems of evidence activity in the conditions of place and time, a specific situation of criminal proceedings, for example, the choice of a certain preventive measure. Notably, the above refers to evidentiary materials (and not judicial evidence) provided by judicial charges, based on the following grounds. Firstly, the concept of "criminal procedure" covers only the activities of the court and the parties to consider a criminal legal claim (sensu largo), therefore, no evidence in out-of-court police detective activities is out of the question in general. Police detectives monopolistically perform an informative historical reconstruction of a right-wing event of the past in closed mode, and its products - facts as knowledge with a claim to reliability are used by the prosecutor to form a reasonable suspicion and accusation, which will be defended as part of the judicial proof procedure. Secondly, the possibility of the latter implies the presence of such indispensable attributes as a presence of an arbitrator(court) and equal parties-players (prosecution and defence) as procedural proponents and opponents, respectively. Proof also provides for the presence of theses - a legal position that one party defends (prosecutor-proponent), and the other - refutes (defender-opponent). While in merito issue is decided by the court. Evidently, all this in the pre-trial proceedings, guided by the principles of the Inquisition, do not exist. Accordingly, thirdly: procedural criminal judicial evidence as a product of the interpretive efforts of the parties and the court arise in court as part of the proper procedure of judicial proof of legal "raw materials", which is the evidence of the prosecution; approval of their use is given by the court, positively resolving the issue of their admissibility as evidence. It is unnecessary to prove that raw materials and products are different concepts. Fourthly, the analysis of the content of Part 2 of Article 23, and the related Part 4 of Article 95 of the CCP, leaves no room for rational doubts about the validity of the given position on "evidence materials". This statement does not detract from their weight and value: it is simply the task of the prosecutor to be able to show one's evidence in court.

In other words, if in the first case the lawyer decides on the fundamental possibility of using the collected materials in evidence as procedural evidence, the second is the possibility of the most efficient use of the latter for evidentiary purposes in various procedural situations "here and now ". That is, the procurator (prosecutor) in the perspective of defending their legal position in court in pre-trial proceedings should be concerned about how best - from the standpoint of evidence-basedpraxeology - to justify the available evidence (apropos, the volume and quality of which in practice do not always correspond to the theoretical (ideal) ideas about it). In this situation, there is the need to attempt to attribute to the existing evidence material other, activity characteristics that are not covered by the normative template (Articles 85-86 of the CCP), but which are necessary for solving their evidence-based tasks. Vice versa the prosecutor must give an answer to the pragmatic question of how they should manage to properly use the evidentiary potential of both each individual piece of evidence and their available totality. Therefore, in this regard, it should be noted that in western doctrines, especially in common law countries (Great Britain, USA, Canada, Australia, New Zealand, Israel, India, Japan, South Korea, etc.) and - to a lesser extent - in the case-law of the European Court of Human Rights (ECHR), where, in contrast to national legislation, there is no legal (normative) definition of "procedural evidence", more attention is paid to work with performance characteristics (activity grounds) of evidence, the catalogue of which is much more meaningful than the current national CCP. Lawyers of these countries, remembering that argumenta non numeranda, sed ponderanda sunt, work with such concepts as "the best evidence"; "supporting evidence"; "irrefutable evidence"; "contradictory evidence"; "negative evidence"; "positive evidence"; "prima facie evidence"; "probable evidence"; "rebuttal evidence"; "side evidence", "credible evidence"; "weighty, strong, valuable evidence" etc. [9; 10, p. 1-4; 11, p. 1661; 12, p. 81-82]. The mentioned and other characteristics of procedural evidence are not a reflection of their objectively inherent properties, as is conventionally stated in the post-Soviet theory of proof but are the result of logical and cognitive operations and the reasons for their choice, because they are derivative from the evidentiary activity of authorized participants in criminal proceedings.

For example, an investigator finding a passport with traces of blood at the scene should not only decide on the criminal procedural qualification of the case, i.e., its classification in a certain type of evidence (evidence matrix specified in Part 2 of Article 84 of the CCP) - a document or physical evidence with the simultaneous determination of its affiliation and admissibility, but also - more importantly - properly work with this evidence (which, unfortunately, in the special and educational literature is not paid attention to). The above refers to the fact that within the framework of a specific evidentiary situation, the investigator (prosecutor) must decide what the evidence obtained in criminal proceedings is suitable for: for example, the same evidence can be used to prove some circumstances of criminal proceedings, but cannot be used to establish others; evidence can be evaluated for one situation as prima facie evidence or as "supporting evidence" in another, etc. This requires a lawyer to be very professional and creative because the law in this case, in contrast to situations of deciding on the admissibility of the use of materials as procedural evidence does not contain any substantive instructions on specific means and methods of their use to address these issues.

Notably, paragraphs 1.11 of Part 1 of Article 178 of the current CCP "Circumstances considered when choosing a preventive measure" mention another unconditional activity characteristic - "weight" of available evidence of a suspect, accused criminal offence, as and "weight" of available evidence justifying the amount of damage or amount suspected income. The European Court of Human Rights (hereinafter referred to as the ECHR) draws attention to this characterisation of procedural evidence both in its decisions on specific cases and in the context of doctrinal positions regarding the standard of proof "beyond a reasonable doubt" (Part 2 of Article 17 of the CCP). For example, the ECHR decision in Prade v. Germany of 03 March 2016 stated that "40... [drugs] found in the applicant's home constituted weighty evidence" [13], and in the case of Buid v. Belgium of 28 September 2015, the ECHR, in particular, noted: "82. Allegations of ill-treatment contrary to Article 3 must be supported by relevant evidence. To evaluate this evidence, the Court applies the standard of proof "beyond reasonable doubt" but adds that such evidence may result from a set of fairly clear, weighty, and consistent conclusions or similar compelling presumptions of fact" [14], which logically presupposes the existence of a body of weighty, clear, and consistent procedural evidence.

Based on this, there are grounds to assert that the "weight" of evidence in the practice of the ECHR is considered an important activity characteristic of procedural evidence in general, which is used not only to justify procedural decisions on choosing a preventive measure but also other decisions in criminal proceedings. This position is shared by individual Ukrainian courts. For example, the Kyiv Court of Appeal, in its ruling of 8 June 2015 in case № 757/16862/15-k, stated: "...with regard to a person, if the question of the application of an exceptionally strict measure of restraint arises, the investigating judge should pay special attention to evaluating the weight of evidence of the crime. Evidence that does not have signs of weight cannot justify a suspicion that was sufficient for the application of a preventive measure in the form of detention but is only the basis for further pre-trial investigation in a criminal proceeding" [15].

The procedural law does not provide a legal definition of the evaluative concept "weighty evidence", which creates the above-mentioned situation of conceptual uncertainty. Therefore, to clarify its content to a certain extent, it is advisable to turn to the linguistic characteristics of the correlative adjectives "weighty" and "strong", and then to the interpretation in the doctrine of Anglo-American evidentiary law of the same root noun - the concept of "weight of evidence" (weight, strength, value of evidence). Thus, according to linguists, the adjective "weighty" means one that has weight, is meaningful, authoritative, convincing, and the adjective "strong" is interpreted as reasonable, sufficient to convince someone of something, convincing [16, p. 72]. Thus, it logically follows that "strong evidence" is one of them that has the necessary weight for a lawyer, is meaningful, authoritative, convincing, sufficient to convince its addressee.

American and British jurists, in turn, associate the weight of evidence with the weight, strength, value, and plausibility of evidence provided by one party compared to the evidence provided by the other party. If, in accordance with Rule 401 of the Federal Rules of Evidence of the United States of America, "appropriate evidence" is evidence that makes any fact more or less relevant to the case more likely than it would be without it, [17] the "weight of evidence" is a tool for evaluating the extent to which the degree of probability of a fact may change in the case of the use of certain evidence. Thus, American lawyers, for whom working by plausible standards is a cultural norm (habit), believe that the weight of procedural evidence is what can cause the desired evidentiary or rebuttal (damaging) competitive effect in proving the circumstances of a criminal case in an adversarial trial. In this context, it is worth mentioning that logic treats the strength of evidence - "nervus probandi", "vis argumentations" - as a strength that consists in a strictly logical connection of the thesis with arguments, as a result of which the confessor of the truth of arguments must recognise the truth of the thesis, which logically follows from these arguments [18, p. 528].

The procedural law, as mentioned above, does not establish any formal rules for determining the weight (strength) of procedural evidence, except that for the proponent no evidence must have a predetermined strength (Part 2 of Article 94 of the CCP), including expert opinion (Part 10 of Article 102 of the CCP). In the plan under consideration, this means, firstly, a legal prohibition for the court to give preference to certain types of evidence over others (for example, direct over indirect or material over personal) and to determine the weight (strength) of evidence according to depending on the party which received it.

In this context, it should be noted that the rapid development of information technologies creates the possibility of new ideas about the procedures for obtaining criminal procedural evidence. Therefore, J. Du, L. Ding, G. Chen reasonably identify electronic evidence as a new type of evidence in the criminal procedure legislation of the PRC [19, p. 111-112]. According to Y.V. Francifirov, A.P. Popov, P.P. Muraev, Y.V. Komissarova, the development of the information society has led to the intensive introduction of telecommunications technologies in the field of criminal proceedings. This requires solving the actual issue of switching from paper documents to electronic ones [20, p. 674-675].

Lawyers, deciding in their practice on the presence (lack) of signs of the weight of procedural evidence may, in the opinion of the authors of the study, consider the following provisions.

1. The need to evaluate the weight of evidence is directly related to the legal obligation of the prosecution to comply with the standards ofproof of the circumstances of criminal proceedings in the course of establishing the factual grounds for issuing important procedural decisions. For example, the "reasonable suspicion" and "beyond reasonable doubt" standards require the law enforcement officer to establish, on an ad hoc basis, facts sought in a particular criminal proceeding. This is due to the fact that the first standard of proof guides the establishment of grounds for lawful restriction of the human right to freedom and personal inviolability provided for in Article 29 of the Constitution, and the second - compliance with the requirement specified in Article 62 and Paragraph 3 of Part 3 of Article 129 of the Constitution to ensure the guilt of the defendant, i.e., in both situations, it is a question of the validity of the attempt to encroach on the accusatory power on the social values of fundamental importance. Therefore, Part 2 of Article 177 of the CCP establishes a direct prohibition for an investigator or prosecutor to initiate the application of a preventive measure without the existence of legal grounds for this, and in accordance with Part 1 of Article 290 and Article 291 of the CCP, an indictment cannot be sent to the prosecutor without sufficient evidence in criminal proceedings, while the performance of these tasks requires authorised persons primarily to form and rely on a reliable body of strong evidence.

2. The issue of determining the weight of available evidence is also directly related to the need for a well- thought-out, activity-based meaningful definition of subject of proof in specific criminal proceedings. This step should ensure that the evidence is grouped according to the circumstances of the case to convince the court of: (a) the existence of a criminal offence; (b) the existence of a criminal offence in the act; (c) the commission of this offence by the suspect (accused); (d) the guilt of the accused in committing the incriminated offence in accordance with the requirements of a particular standard of proof (for example, "reasonable suspicion" in deciding whether to choose a measure of restraint (Article 178 CCP) or "beyond reasonable doubt") in the case of a conviction (Part 2 of Article 17, Part 1 of Article 368, Part 1 of Article 373 of the CCP)

Such an approach allows the prosecution to form a systematically organised body of evidence, thus avoiding its submission to the court by a chaotic, disordered mass [21, p. 13]. Therewith, the procedure of grouping evidence allows identifying links and interdependencies both between evidence within a certain group and between individual groups of evidence, which, on the one hand, will help determine the degree (index) of the real weight of each "isolated" evidence, second, will "add" to it the weight of evidence within a specific body of evidence. Comparing individual separate evidence with the circumstances to be established helps to determine the weight of specific proof.

3. Simultaneously with the development of a body of evidence in criminal proceedings, the selection and examination of certain available procedural evidence (Paragraph 1 of Part 1 of Article 178 of the CCP) as its components should take place. This logical operation is of paramount importance because from the activity standpoint, every procedural evidence - no matter how "weak" - always has a certain weight, somehow justifies itself, independently of others [22, p. 13]. For example, failure to identify the valuables in the suspect's safe undoubtedly establishes the fact of their apparent absence at the time of the search, the interpretation of which allows the defence to insist that it is exculpatory evidence and the prosecution to claim that this is strong evidence of criminal "qualification" of the offender, so the mentioned valuables should be sought elsewhere [23, p. 9-13].

Therefore, the selected evidence can and should be worked on in the context of its place in the existing body of evidence to form judgments about: (a) the degree of its potential reliability (certainty), (b) the degree of sufficiency of the evidence to prove a particular thesis (factum probandum), (c) its inconsistency (harmony) with other evidence, and (d) the possible purpose of using that evidence within a particular body of evidence; nevertheless, in the body of evidence, as in a special evidence structure, each of them is called to perform a certain function, for example, be "decisive" evidence, laxative, or reinforcing, etc.

In this regard, it should be emphasised that the reliability of evidence (as, indeed, its other characteristics) must be proved independently, regardless of the justified theses, since the latter, by its logic, is always a plausible judgment. Therefore, it is necessary to separate the evidence from the fact proved by it, from the conclusion about it, while the evaluator must be guided by the rule of independence of arguments from the proved thesis to avoid logical errors. For example, in the criminal proceedings on the death of a motorcyclist as a result of a collision at an unregulated intersection with a truck, the testimony of two identified witnesses suggested a probable logical thesis (version) that the motorcyclist, leaving the yard of the house on the main road, turned left, where the collision took place immediately. The truck driver categorically denied his guilt, explaining that he, turning left at the intersection, as a person with many years of experience, could not help but notice and miss a motorcyclist who was moving in the opposite area to him. The new investigator, who was assigned an investigation a year and a half later, decided to carefully check the arguments (witness statements) without seeming to be tied to the obvious reliability of the thesis. As a result, it was established that both witnesses were mistaken in stating on repeated interrogations not what they actually saw, but their own judgments about the critical day they perceived. As a result, very strong evidence on some facts of criminal proceedings immediately turned into no less weighty evidence on other circumstances. In turn, the degree of sufficiency of the evidence is determined by evaluating the probability of its real "contribution" to ensuring the quality and quantity of evidence taken in their entirety, if they logically followed the required reliability of the proven judgment and not some other thesis. Therefore, when deciding on the degree of the weight of evidence, firstly, it is necessary to strive to use only those evidence that within a specific situation and purpose to the maximum extent indicate the reliability of the proven thesis.

4. In the practice of proof, it is standard practice to attribute - with equal reliability - more weight to direct evidence than indirect. In one way, the situation is evaluated, for example, the detention of a person at the time of commission or attempt to commit a criminal offence or immediately after the commission of a criminal offence or during its direct prosecution (Paragraphs 1-2 part 2 of Article 207 CCP), and in another - the situation of finding stolen valuables in one's home. In the case of direct evidence, the rules of probabilistic logic must be taken into account, according to which the weight of this evidence is greater the more they increase the probability of the existence of a substantiated thesis. Therefore, for example, the expert's opinion on the individual identification of a person by fingerprint will always be more important than the diagnostic opinion on the sex and age of the alleged offender.

5. The procedural law (Part 2 of Article 242 of the CCP), without formally establishing a list of preestablished evidence, determines the grounds for the mandatory appointment of expertise in certain criminal proceedings. In addition, investigative and judicial practice establishes the grounds for the appointment of mandatory examinations in certain types of offences (e.g., automotive, drugs, economic, fire and technical, etc.), or mandatory in certain situations of criminal proceedings (eg, car science, ballistics, dactyloscopic, psychological, etc.). Therefore, the presence of evidence obtained as a result of the examination in the materials of the criminal proceedings is mandatory, and their weight to establish certain circumstances of the case is in fact presumed a priori greater than other evidence.

6. The weight of procedural evidence in criminal proceedings is always determined only "here and now", strictly individually within the available body of evidence, by examining each of them and correlating with the circumstances of the evidence, given their credibility, admissibility, reliability, and other performance characteristics; notably, in the totality of evidence each individual evidence has its function (purpose): for example, to be "weighty" evidence, to be "decisive" evidence, to be "reinforcing" evidence, to be "convincing" evidence, etc.

Conclusions