Criminal procedural means of examining evidence in investigating judge`s proceedings

Abstract

The article is dedicated to clarifying the criminal procedural means of proof used in the proceedings of the investigating judge in Ukrainian criminal procedure.

It is emphasized that the investigating judge is authorized to resolve a number of significant criminal procedural issues within the framework of exercising the function of judicial control during the pre-trial investigation. All decisions made by this entity are procedural and must therefore be based on the results of the examination and evaluation of the evidence presented to them.

The author argues that the current criminal procedural legislation does not establish a separate procedure for the proceedings of the investigating judge and contains a number of gaps and contradictions regarding the mandatory nature and procedure for the examination of evidence by this entity. Instead, the provisions of the Criminal Procedure Code of Ukraine regarding the rules for trial in the court of first instance are applied to investigating judge`s proceedings by analogy. To ensure legal certainty principle it is proposed to amend the Criminal Procedure Code of Ukraine to clarify the procedural status and powers of the investigating judge. The amendment should explicitly establish that judicial reviews conducted by the investigating judge follow the general rules outlined in Articles 318–380 of the Code, while considering any specific features defined by the Code.

Based on the analysis of 100 rulings by investigating judges of first instance courts issued between 2020 and 2024, the author demonstrates that in the vast majority of cases (92 %) investigating judges, while exercising their powers, examine written evidence (procedural documents) that substantiated the motions, applications, and complaints submitted to them, as well as the objections against them. At the same time, the interrogation of witnesses and the examination of physical evidence by Ukrainian investigating judges are practically not conducted.

Based on the review of judicial practice, the author concludes that the procedural opportunities for examining evidence in the proceedings of the investigating judge are not fully utilized.