General theoretical problems of the right to adequate proof in the Ukrainian judicial system (in the light of the practice Court of Strasbourg)

This article studies the proper establishment of the actual circumstances of the case in Ukrainian court enforcement in accordance with the requirements of the European Court of Human Rights. There has been provided a strong analysis of the domestic compliance with the requirements of the ECHR on the implementation of the adversarial trial model, equality of opportunities for the parties to the proof date evidence on which the court enters the judgment and motivations. We consider each of these requirements in detail for the various types of domestic proceedings. It is noted that the state of compliances in Ukraine today is insufficient and does not correspond to the ECHR requirements. In particular, it is pointed out that the economic and administrative processes of the court may collect evidence on their own initiative, making these types of processes so to say less «competitive» if compared to the civil and criminal proceedings. The important drawback regarding the requirements of the
arms equality in the evidence is the legal limitation of the number of persons being in a criminal defense case. Other kinds of process in the absence of the guaranteed legal aid do not vouch for the parties participating in the «fight» equality, which is a significant obstacle to the introduction of effective equality of the parties in evidence. In Ukraine the requirements are consistent with the positions of the ECH R lawfully, but in practice they do not always adhere to. The problems of judicial decisions motivation realization in Ukraine are as follows: 1) the lack of legislative provisions as requirements for the independent judgment in almost all the procedural codes (apart from the Criminal Procedural Code of Ukraine); 2) the shortcoming of the motivation scope and content in the practical enforcement. There have been stated the perspective directions of the national procedural law improvement regarding the legal proof according to the European standards. To improve the situation the several points have been proposed: – to deprive the court of law of collecting the evidence on its own initiative in the economic and administrative processes; −− to modify Art. 45 of the Criminal Procedural Code of Ukraine «Defender» with the second paragraph stated in the following words: «Other experts in law, who are entitled by law to provide legal assistance in person or on behalf of a legal entity, can be perceived as the defenders. In cases and in the manners prescribed by this Code, the defender’s role can be given to the close relatives of the accused, convicted, acquitted, as well as his guardians or custodians»; − to supplement the Procedural Code of Ukraine with such grounds for a decision cancellation as justification of decision with inapplicable evidence and improper judgment motivation; − to reeve motivation as a separate requirement to secure the judgment in Art. 213 of the Civil Procedural Code of Ukraine, Art. 159 of the Code of Administrative Procedure of Ukraine and Art. 83 (1) of the Commercial Procedure Code of Ukraine.