Thesis for the Doctor of Phylosophy scientific degree in the specialty 081 – Law. – National University «Odessa Law Academy», Odessa, 2021.
The thesis provides for a complex research, which is unprecedented for Ukrainian science, with a special focus on the process of proof in a criminal investigation, pursued by a defender for the purpose of choosing, changing, cancelling and prolonging measures to ensure criminal proceedings by an investigative judge in compliance with just and competition-based procedure proposed, which corresponds to a suspect’s right to have time and means for preparing his/her defense according to Para. 3 (b) Art. 6 of the European Convention on Human Rights and with the principle of reasonable time as defined by Ukraine’s Criminal Procedure Code. Based on the research provided for in this thesis, the author has for the first time ever developed: a general concept of the defender’s role in the process of proof within the pre-trial stage, which was differentiated and duly improved for the purpose of collection of evidence; the author’s concept of the process of proof undertaken by a defender in view of an investigative judge’s application of measures to ensure criminal proceedings in relation to a suspect as a component of the general concept complying with the Convention and the principles of fairness, competition and reasonable time of a criminal procedure; broadening of the defender’s powers to initiate application of a bigger amount of measures to ensure criminal proceedings.
The thesis determines major modern approaches towards the process of procedural proof, provides for its universal definition, which is applicable to all types of actors of criminal procedure. It provides for a general characteristic of the process of proof, undertaken by the defense. The author indicates the artificiality of the process of proof, which is used as a basis for proposing major ways to implement the principles of competition into the defense party’s activities with application of «favor defensionis» rules in relation to the defense’s evidence collection being one of their major components. The thesis includes consideration of the status of materials collected by the defense party during a pre-trial investigation as well as an algorithm for developing evidence of the defense party within the pre-trial stage, which is used as a basis for a conclusion regarding the defense party’s evidence collection «as it is» within the pre-trial stage, especially within the process of preparing the defense for the purpose of choosing, changing and cancelling the terms of measures to ensure criminal proceedings by an investigative judge. The author introduces definitions and classification of evidence as well as procedural decisions, which reflect on modern aspects of the process of proof. The thesis covers singling out the specifics of the process of proof, undertaken as a matter of choosing measures to ensure criminal proceedings by an investigative judge, with its main specific – special procedure for evidence collection by the defense party, which may be introduced due to significant time constraints related to the process of choosing, changing and prolonging measures to ensure criminal proceedings. It is indicted that the main purpose of the institute of measures to ensure criminal proceedings is satisfying the needs of all parties of the criminal procedure, which is used as a basis for broadening of the defense party’s powers to initiate application of a bigger amount of measures to ensure criminal proceedings.
