CERTAIN PROBLEMS OF INADMISSIBILITY OF EVIDENCE IN CRIMINAL PROCEEDINGS TAKING INTO ACCOUNT THE SPECIAL REGIME OF CRIMINAL PROCEEDINGS UNDER MARTIAL LAW

Abstract

The modern realities of aggressive war and the introduction of the legal regime of martial law have led to changes in criminal procedural norms. The challenges of wartime and the need for a quick response to criminal offenses have led to a simplification of the pre-trial investigation procedure, which is reflected in Article 615 of the Criminal Procedure Code of Ukraine. In such conditions, the bodies of inquiry and pre-trial investigation are forced to balance between respect for human rights and the need for a quick and effective investigation of criminal offenses. At a time when the usual procedure for pre-trial investigation (court sanction for investigative actions, participation of witnesses during the search, acceptance by the court of evidence provided exclusively during the trial) is being forcibly replaced by other alternatives, the question arises: where is the line drawn between «forced necessity» and a violation of the right to a fair trial? The admission of evidence obtained in violation of traditional criminal procedural procedures was previously a common way of restoring violated human rights «restitutio in integrum» (restoring, as far as possible, the previous legal status that the applicant had before the violation of the Convention). However, in today’s conditions, such a mechanism needs to be reconsidered in order to prevent impunity for serious crimes, so that everyone who committed a criminal offense is held accountable to the extent of their guilt, and no innocent person is accused and convicted. This article reveals the criteria for the admissibility of evidence obtained under the special regime of criminal proceedings under martial law. The correlation of the «fruit of the poisoned tree» doctrine and its exceptions is analyzed based on the legal positions of the US Supreme Court, the European Court of Human Rights, and the case law of the Supreme Court of Ukraine, developed in modern war conditions. The criterion of «materiality» of human rights violations during evidence collection is studied, and its impact on recognizing evidence as limitedly admissible or not admissible is studied. A legal assessment of the «objective impossibility» of exercising one’s powers by an investigating judge in martial law conditions and the functional replacement of an investigating judge by a prosecutor is provided. The article proposes the application of a model of delegating investigatory powers in combat zones to operational units as a balance between the need for a quick and effective pre-trial investigation and the proper subject of evidence collection. Such an approach will help to combine the efficiency of investigative actions in martial law conditions and the provision of basic human rights and freedoms. All this can serve as a significant tool for strengthening the rule of law during the period of armed aggression against Ukraine.