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Vira MIKHAILENKO,

Judge of the High Anticorruption Court

THE OBVIOUS INADMISSIBILITY AS A CRITERION OF EVIDENCE IN THE CRIMINAL PROCEEDINGS

The article analyzes the scientific approaches and court practice of declaring evidence inadmissible and attempts are made to characterize the obvious inadmissibility as a criterion for declaring evidence as inadmissible in the process of judicial review.

It is established that the criterion of explicit inadmissibility transfers the assessment by the court of certain information as evidence at the time of their investigation. At the same time, the definition of obvious inadmissibility in the current Code of Criminal Procedure is not disclosed, the unity of judicial practice in this matter is missing. This creates certain enforcement problems.

It has been substantiated that the approach used in the letter of the High Specialized Court of Civil and Criminal Cases does not correspond to the current procedural content of the concept “obvious inadmissibility”.

It has been established that when applying the doctrine of “the fruits of a poisoned tree”, it is advisable to talk about the obvious inadmissibility of evidence when the primary information has already been declared inadmissible for the purposes of proof.

Analyzed current court practice, which indicates the differences in approaches to the definition of evidence is clearly unacceptable. In similar situations involving the evaluation of evidence, the courts apply different criteria and approaches.

This characterizes the obvious inadmissibility as an evaluative, situational phenomenon, due to the possibility of judicial discretion. The obvious inadmissibility of evidence is always associated with a violation of the procedure for obtaining them, which must be obvious and unconditional; The establishment of a violation must precede the investigation of information in respect of which the question of apparent inadmissibility arises.

It is substantiated that the court’s refusal to recognize the information as obviously inadmissible evidence during the study does not mean that it is impossible to exclude such evidence during sentencing and declare it as inadmissible as a general rule.

It has also been established that, although the law grants the parties to the criminal process equal rights to file applications for declaring evidence inadmissible, in practice this right has only protection. When studying the judicial practice for 2017–2019, no cases were found where the evidence was clearly inadmissible on its own initiative.

Key words: criminal proceedings; proof; inadmissibility of evidence; obvious inadmissibility of evidence; judicial review.

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