The thesis is the first comprehensive study of issues related to checking the evidence in the criminal process of Ukraine. The dissertation is the scientific approach to understanding of checking the evidence as integral component of proving and to disclosure of court`s and other subjects` of proving procedural capacity of checking the evidence due to the Criminal Procedure Code of Ukraine and case law.
In this thesis the content of checking the evidence is revealed and the concepts of checking and examination the evidence are delineated, their meaning is determined in the relevant provisions of the Criminal Procedure Code of Ukraine. It is substantiated that the subject of checking the evidence is their relevancy, admissibility and credibility, the ways of checking the evidence are determined, the peculiarities of checking testimonies, documents, physical evidence, and expert's opinion are distinguished. It is proved that examanation of the witness reputation (Part 2 of Art. 96 of the Criminal Procedure Code of Ukraine) is contrary to the legal nature of checking the credibility of testimony. It is proposed to improve the current Criminal Procedure Code of Ukraine by supplementing, excluding and amending individual articles relating to checking the evidence.
Scientific views have been formulated on the notion of checking the evidence as an activity to clarify the content of evidence, to compare evidence, to collect new evidence in order to ascertain the relevance, admissibility and credibility of evidence already available. It is substantiated that the distinction between checking and evaluation the evidence should be made by four criteria, namely: firstly, that checking is a combination of practical actions and logical thinking, while evaluation is a purely logical activity; secondly, that the evaluation the evidence takes place immediately before making any legally significant decision, whereas checking the evidence is preceded by an evaluation; third, that the object of evaluation, as opposed to checking, is not only relevancy, admissibility and credibility, but also the sufficiency of the group of evidence; fourth, that a much wider range of subjects carry out checking the evidence, whereas only the investigator, the prosecutor, the investigating judge and the court carry out the legally significant evaluation the evidence.
It is substantiated that the following subjects are entitled to check the evidence: investigator, prosecutor, suspect, accused (defendant), the person subject to the application of coercive measures of medical or educational character, their defenders and legal representatives, the victim, his/her representative and legal representative, the civil plaintiff, his/her representative and legal representative, the civil defendant and his/her representative, the representative of the legal entity in the proceedings, the person in question for extradition to a foreign country as well as investigating judge and the court.
The thesis is based on legal acts, doctrinal works of Ukrainian and foreign scientists in the field of criminal proceedings and the theory of evidence, ninety nine court decisions of courts of all instances as well as ten decisions of the European Court of Human Rights, and the results of a survey of one hundred and twelve practitioners, scientists, and teaching staff.
The practical significance of the thesis lies in the possibility of using the obtained results: as a legal justification for amending the Criminal Procedure Code of Ukraine; as a basis for further research in the field of the theory of evidence; as recommendations to judges, prosecutors, attorneys-at-law, investigators; as a material in the development of appropriate educational and methodological support (texts of lectures, textbooks) for teaching such disciplines as “Criminal Process”, “The Theory of Evidence”, “Actual Problems of Criminal Process”, “Prosecution in Ukraine”, “Advocacy in Ukraine” and others.
