Review

Unfortunately, the new Criminal Procedure Code of Ukraine still contains some controversial provisions. Thus, the general jurisdiction courts at the beginning of the court consideration do not fulfill the requirements of the art. 349 CPC of Ukraine about determination of the amounts of evidence subject to investigation and the order of such investigation in an equal manner.

In practice there are cases when the prosecution refuses referring to certain procedural documents available (investigation reports, etc.), material evidence or expert opinions for the grounding of the order of their investigation suggested by the prosecutor.

Consequently, the court cannot approve specified amount of evidence for investigation (in particular, the difficulty appear to define persons to summon to appear before court). The issues of determining the order of their investigation, according t the p. 2 art. 349 of the CPC of Ukraine, also appears problematic, as the court is not informed, in particular, about the availability of material evidence, their amount and location, etc.

Besides, the absence of the prosecution’s «desire» to come up with concrete amount of evidence with which the prosecutor will confirm the circumstances, provided for by the art. 91 CPC of Ukraine, hinders the court’s consideration of issues about the so-called «obviously inadmissible» evidence which may be resolved also at the preliminary procedure stage.

The issues above arise with relation to the absence of the «amount of evidence» interpretation in the disposition of the art. 349 and other norms of Ukraine CPC which is evaluative notion with regard to which it requires deeper studying

To our point of view, during determination of the amount of evidence and the order of their investigation the following is logical for presentation to the prosecution and defense: а) certain documents about conducting the procedural actions; б) defined material evidence в) expert opinion.

One of the ways of determining the amount of evidence and the order of their investigation, to our point of view, is the direction not only for the procedural actions, which resulted in the evidence acquisition, but also to the procedural resources where these or that evidence is fixed. We believe that the introduction of such provisions into the requirements of the art. 109 CPC of Ukraine will allow the court approving the order and amount of evidence investigation which will provide for the compliance with the reasonable terms of the court investigation.

In case of legislative recognition of the said approach the set of issues are settled which the defense may ask within rendering legal aid to the client.

Based on the above, it becomes noteworthy that the determination of the amount and order of evidence investigation is an important stage of the main part of court consideration procedure. Depending on the types of evidence admitted for investigations by the court, the recognition or non-recognition of their relevance by the parties, to our point of view, this will lead to the corresponding tactical and strategic actions of prosecution and defense, for the purpose of the goals set for them. Besides, the quality of the criminal proceeding consideration depends upon the correctness of the said procedural action.

Acting norms of the criminal procedural law, unfortunately, do not contain the concretization of the procedure of determining the amount of evidence and the order of their investigation. Imperative is only the provision which contains the regulation as to the prosecution’s evidence investigation at first and then – those of the defense. Also there is no legal definition of the term «amount» in the context of the chapter 4 CPC of Ukraine.

The efficiency of the criminal proceeding consideration depends upon the quality of reflection of evidence in the procedural documents, with the help of which the parties will defend their interests.

Keywords: evidence, amount of evidence, order of the evidence investigation, court consideration.