Evidence affiliation or evidentiary facts affiliation in domestic criminal proceedings: which shore should we seek?

The authors of the article have substantiate the position, where the definition of evidence affiliation depends on the interpretation of the concept of “procedural evidence”. There is no single approach to this issue in the current Criminal Procedural Code of Ukraine (CPC). A simplified and incomplete formulation of evidence as a material substance is preserved in the Art. 84 of the CPC, which is inherited from the Soviet criminal process, whose creators are equally recognized as criminal prosecution agencies and the court. The suggested regulatory definition does not also solve the issue about means assisting an investigator, a prosecutor, an investigating judge and court to establish the presence or absence of facts and circumstances important for criminal proceedings and are subject of proving. Unfortunately, such narative of evidence still remains dominant in law enforcement activities and scientific research. It is the reason that evidence affiliation is perceived as an inherent property of a natural product, but not as a result of logical activity. In this regard, the authors of the article provide a critical assessment to the definition of evidence affiliation contained in the Art. 85 of the CPC and, accordingly, in modern scientific sources. According to the Concept of Reforming Criminal Justice Agencies, approved by the Decree of the President of Ukraine of 8 April 2008 No. 311/2008, paragraph 2 of the Art. 23 of the CPC the requirement that “information contained in testimonies, things and documents that were not the subject of direct examination by the court cannot be recognized as evidence ...” is enshrined at the level of criminal proceedings principle. Based on this interpretation of evidence, the authors have substantiated the thesis that evidence affiliation’s formation should be considered as a process and result being started at the stage of pre-trial investigation and is finalized during the court hearing. The basic ground of such a methodological approach is that evidence affiliation is primarily associated with the traces of the fact of a committed criminal offense, the establishment of their systemic relationships through cognitive, logical, psychological and legal operations that ensure the formation of evidentiary facts affiliation as means of establishing search facts.

evidence, evidentiary facts, pre-trial investigation, evidence affiliation, pre-trial investigation agency, a prosecutor, an investigator, trial, facts and circumstances important for criminal proceedings.