SEPARATE ISSUES OF ACKNOWLEDGMENT OF EVIDENCE IN CRIMINAL PROCEEDINGS

Abstract

The article examines certain issues of recognition of the admissibility of evidence in criminal proceedings. An analysis of certain problematic issues regarding the determination of the admissibility of evidence was carried out. Attention is paid to the study of one of the specified conditions of inadmissibility of evidence, such as the implementation of procedural actions that require the prior permission of the court, without such permission or in violation of its essential conditions. Cases of obtaining admissible evidence in compliance with human rights without prior permission of the court were investigated. Using the example of an analysis of the possible circumstances of conducting investigative (search) actions in a person’s home or other property, the observance of a person’s right to respect for private and family life was investigated. The practice of the European Court of Human Rights regarding guarantees of observance of human rights under the condition of application of judicial control in criminal proceedings is analyzed. The article examines the relationship between the assessment of the European Court of Human Rights regarding the fairness of the court decision and the recognition of evidence as inadmissible due to the lack of court permission to limit the rights or freedoms of a participant in criminal proceedings. It was concluded that, depending on the circumstances of the criminal proceedings, the European Court of Human Rights, provided that the evidence is recognized as inadmissible, may consider the trial to be unfair as a whole. It has been determined that strengthening the guarantee of the privilege against self-incrimination is quite important in criminal proceedings to ensure that admissible evidence is obtained. In the case of non-appeal exclusion of the testimony of a witness as inadmissible evidence, a situation arises when other evidence obtained as a derivative of the inadmissible testimony should also be excluded. It is established that this rule should be applied under the condition that, at the time of obtaining testimony from the witness, there was already evidence that he would be recognized as a suspect or accused, but, contrary to the existence of such a person’s right to remain silent and freedom from self-incrimination, the investigator or prosecutor takes actions, aimed at obtaining testimony. It is such actions, and not the actual fact of obtaining a statement from a witness who was subsequently recognized as a suspect or accused, that should be recognized as a significant violation of human rights. The recognition of inadmissibility of evidence obtained after the initiation of criminal proceedings through the exercise of pre-trial investigation bodies or the prosecutor’s office of their powers, not provided for by the Code of Criminal Procedure, to ensure pre-trial investigation of criminal offenses was considered.