MEASURES TO ENSURE CRIMINAL PROCEEDINGS IN THE SYSTEM OF CRIMINAL PROCEDURAL PROOF: STANDARDS OF EVIDENTIARY JUSTIFICATION AND REQUIREMENTS OF THE RULE OF LAW

Abstract

Based on the author’s concept of criminal procedural proof, the article examines the place of measures to ensure criminal proceedings within the system of means of proof and the rule-of-law requirements governing their application. It is substantiated that these measures have an independent legal nature aimed at ensuring the proper conduct of criminal proceedings. Their inclusion in the system of means of proof in the broad sense is functional: the application of a measure must be preceded by evidentiary justification, while its implementation may create conditions for obtaining, preserving, examining, or using evidentiary information. At the same time, not every measure performs an evidence-facilitating function in every criminal proceeding.

The relationship between the legal, factual, and evidentiary grounds for applying such measures is clarified. The legal grounds consist of the rules determining the permissibility, purpose, competence, procedure, and limits of interference. A judicial ruling constitutes an individual form of authorisation for the implementation of a measure, but cannot serve as a prerequisite for its own adoption. The standard of proof is defined as the threshold of persuasiveness concerning a particular proposition, whereas the standard of evidentiary justification is understood as a set of requirements relating to the quality of the evidentiary basis, the logic of argumentation, the allocation of the burden of proof, judicial scrutiny, and the reasoning of a decision. Proportionality is regarded as an independent legal test based on established facts rather than as a characteristic of evidence.

It is substantiated that the burden of justification rests with the party initiating the measure and that the court must not remedy substantial deficiencies in that party’s position. The procedural activity of an investigating judge or court should consist in a substantive examination of the evidence submitted rather than in constructing a new factual basis in place of the party concerned. It is established that, as the intensity and duration of restrictions on rights increase, the specificity of the evidence, the depth of judicial scrutiny, and the detail of the reasoning must also increase, although the statutory standard of proof may not be altered arbitrarily. A seven-element test for the legal and evidentiary review of such measures is proposed, and its application in in absentia proceedings and in the use of data in digital form is clarified.