The features of recognition of evidence are inadmissible in the practice of the Supreme Court

One of the most important guarantees of observance of the principle of legality during criminal proceedings, the fair court decision, the provision of rights and interests of a person is the provision stipulated in Article 62 of the Constitution of Ukraine that the prosecution can not be based on evidence obtained illegally and on assumptions, and all doubts about the conviction of the person should be interpreted in its favor. These provisions express the legal nature of the admissibility of evidence.


The problem of clarifying the essence of the admissibility of evidence, its conditions, studying the procedure for recognizing evidence is inadmissible in the criminal process is complicated by various terminological approaches to its understanding and variety of scientific and theoretical concepts. In this regard, it is extremely important to consider the implementation of provisions on the admission of evidence admissible or inadmissible through the prism of the practice of the supreme court in the system of judicial system of Ukraine – the Supreme Court. It should be noted at once on the aspect that the Supreme Court, in accordance with the new Law of Ukraine “On the Judiciary and Status of Judges”, began functioning on December 15, 2017, indicating the renewal of the practice of this institution and the creation of a new, clear and consistent position regarding the application of the rules of the Criminal Procedure the Code of Ukraine, including in respect of such evidence of evidence as admissibility.
According to part 1 of Article 36 of the Law of Ukraine “On the Judiciary and Status of Judges”, the Supreme Court is the supreme court in the system of the judicial system of Ukraine, which ensures the consistency and unity of judicial practice in the manner and manner established by procedural law. In connection with the existence of this norm, in particular, the issue of studying the practice of this judicial institution is actualized.
One of the areas of recognition of evidence inadmissible in the practice of the Supreme Court is to refer to the doctrine of “the fruit of a poisonous tree” from the practice of the European Court of Human Rights.
In the decision of “Gefgen v. Germany” of June 30, 2008, to describe the evidence obtained in violation of the established order, it formed the doctrine of the “poisonous tree fruit”, according to which, if the source of the evidence is inappropriate, then all the evidence obtained with its help will be as follows same
In the judgment of “Nechiporuk and Yonkalo v. Ukraine” of April 21, 2011, the European Court noted that the evidence obtained in a criminal proceeding in violation of the established procedure leads to their injustice in general, regardless of the evidential value of such evidence, and whether or not they are sufficient use is decisive for convicting a defendant.
Thus, for example, the Cassation Criminal Court of the Supreme Court, by decree of February 15, 2018, in case 357/14462/14-k, declared the inadmissible conclusion of the automotive examination No. 9-8 dated July 21, 2014, because its data are derived from the conclusions obtained during the above-mentioned examination, previously acknowledged as inadmissible evidence.

Author: Ivan Ischuk

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