Review

Abstract. The author of the article examines the provisions of the current criminal procedural legislation of Ukraine, the decision of the European Court of Human Rights and the modern practice of the courts of Ukraine regarding the application of the concept of “fruits of a poisoned tree” and exceptions to it. It has been proven that establishing the commission of a relevant criminal offense by a certain person or, conversely, his non-involvement in its commission is carried out on the basis of evidence provided to the court by the participants in the adversarial procedure. Determining the admissibility of the evidence presented to the court is a guarantee of the balance of rights of all participants in the criminal proceedings and ensuring that the court adopts a legal and fair decision on the case. In this context, the implementation of the concepts formulated in the criminal trials of foreign countries, regarding issues of admissibility of evidence, to the current criminal procedural legislation of Ukraine becomes important and requires additional research. The purpose of the article is to study the essence of concepts that are an exception to the rule of “fruits of the poisoned tree”, to implement their application in the judicial practice of Ukraine, in order to obtain new scientific knowledge and ensure correct understanding. In the world practice and the practice of the European Court of Human Rights, in particular, certain concepts were formed when solving the issue of admissibility of evidence in criminal proceedings, which are implemented at the present time and in the judicial practice of Ukraine. The most widespread and well-known of them in matters of inadmissibility of evidence is the concept of “fruit of the poisoned tree”, the essence of which is that if the source of evidence is improper, then all the evidence obtained with its help will be the same. However, at the present time there are already a certain number of concepts that are an exception to it and offer a different approach to the issue of recognizing evidence as admissible. It is noted that all exceptions from the concept of “fruits of the poisoned tree” have common features, in particular: first, the focus of the research is not on the violation as such, but on its essence; secondly, on establishing the impact of certain violations on ensuring a fair trial; thirdly, the credibility of the relevant evidence and the ability of the court to reach certain conclusions regarding the establishment of a person’s guilt in committing the relevant criminal offense. That is, they provide opportunities to move away from formalism in matters related to: admissibility of evidence, ensuring a fair trial and achieving the goal of criminal proceedings. It was concluded that the application, when the issue of admissibility of evidence in criminal proceedings is resolved, along with the concept of “fruit of the poisoned tree” of other concepts, which are actually an exception to the stated one, gives flexibility to the criminal process in the matter of recognizing evidence as admissible, which ensures the fairness of the judicial process for both sides and a certain balance between the public interests of society and the person who is brought to criminal responsibility, his rights and freedoms. The justice of the process as a whole and the decision (sentence) of the court, as a document that is accepted according to its consequences, can be achieved by transparency and comprehensibility of the applied norms and procedures for the participants in the process and society.

Key words: criminal process, the concept of “fruits of a poisoned tree”.

REFERENCES

LIST OF LEGAL DOCUMENTS

LEGISLATION

1. Postanova Velikoy palaty Verkhovnogo Sudu vid 13.11.2019 u spravi № 1–07/07 (Provadgennya № 13– 36зво19) [Resolution of the Grand Chamber of the Supreme Court in the case № 1–07/07] data zvernennya 06.05.2023 [in Ukrainian].
2. Postanova Velikoy palaty Verkhovnogo Sudu vid 09.09.2020 u spravi № 1–27/10 (Provadgennya № 13– 22 зво 20) [Resolution of the Grand Chamber of the Supreme Court in the case № 1–27/10] data zvernennya 06.05.2023 [in Ukrainian].
3. Postanova Verkhovnogo Sudu vid 27.10.2021 u spravi № 668/69/16-к (Provadgennya № 51– 10088 km 18) [Resolution of the Supreme Court in the case № 668/69/16-к] data zvernennya 09.05.2023 [in Ukrainian].

CASES

1. Case of Dvorski v. Croatia 2015 № 25703/11, 76–82, ECHR, 2015 р. accessed 07.05.2023 [in English].
2. Murray v. United States, 487 U.S. 533 (1988) accessed 04.05.2023 [in English]
3. Nardone v. United States, 308 U.S. 338 (1939). accessed 04.05.2023 [in English]
4. State v. Marshall, 476 So. 2d 150 (1985). accessed 08.05.2023 [in English].
5. Wong Sun v. United States, 371 U.S. 471 (1963). accessed 04.05.2023 [in English].

BIBLIOGRAPHY BOOKS

1. Enciclopedia suchasnoyi Ukraini. Tom 8. Litera D [Encyclopedia of modern Ukraine] < https://esu.com. ua/article-20527> data zvernennya 03.05.2023 [in Ukrainian].
2. Enciclopedia suchasnoyi Ukraini. Tom 14. Litera K [Encyclopedia of modern Ukraine] data zvernennya 03.05.2023 [n Ukrainian].
3. Slovnik inshomovnih sliv [Dictionary of foreign words] data zvernennya 03.05.2023 [in Ukrainian].
4. Slovnik inshomovnih sliv [Dictionary of foreign words] data zvernennya 03.05.2023 [in Ukrainian].

CONFERENCE PAPERS

1. Kaplina O. “Doctrina nemynuchogo vyavlennia: vytoki ta praktika ESLP” [The doctrine of inevitable discovery: origins and practice of the ECHR] Kriminalnyi proces i kriminalistika: vyklyky chasu: zbirnik stattey za materialamy vseukrainskoyi naukovo-praktichnoyi konferencyi z nagody 20-richya kafedry kriminalnogo procesy i kriminalistiky Lvivskogo nationlnogo universitety imeni Ivana Franka [Criminal process and criminology: challenges of time: a collection of articles based on the materials of the All-Ukrainian Scientific and Practical Conference on the occasion of the 20th anniversary of the Department of Criminal Process and Forensic Science of the Ivan Franko National University of Lviv] (Lviv, 2020) data zvernennya 30.04.2023 [in Ukrainian].

WEBSITES

1. The Not So Gr The Not So Great Writ: The E rit: The European Cour opean Court of Human Rights of Human Rights Finds Habeas Corpus an Inadequate Remedy: Should American Courts Reexamine the Writ? Allen E. Shoenberger/Catholic University Law Reviev/ data zvernennya 08.05.2023 [in English].