INTERNATIONAL STANDARDS FOR THE RIGHTS OF THE CHILD IN CRIMINAL PROCEDURAL PROOF: A SPECIAL REGIME FOR OBTAINING AND USING EVIDENCE IN PROCEEDINGS INVOLVING MINORS

Abstract

Based on the activity-based concept of criminal procedural proof, the article examines the functional significance of international standards for the rights of the child for obtaining and using evidence in criminal proceedings involving minors. It is substantiated that the UN Convention on the Rights of the Child, the case law of the European Court of Human Rights, Council of Europe instruments, European Union law and international juvenile justice standards do not create an autonomous law of evidence, alter the legal nature of evidence, confer predetermined probative value on a child's statements, or lower the requirements of evidentiary justification of procedural decisions. The guarantee nature of the special regime is clarified: additional safeguards are treated not as procedural privileges but as legal means of ensuring the child's effective participation, the lawful formation of the evidentiary basis, and its subsequent verifiability. The special regime for obtaining and using evidence is defined as a differentiated legal framework for applying general rules of criminal procedural evidence with due regard to the procedural status, age, level of development and actual capacity of the individual child. The article distinguishes the special subject matter of proof from the individual assessment of a minor and demonstrates that the outcome of such an assessment does not automatically constitute evidence and cannot replace forensic expertise. It argues for differentiated rules for obtaining statements from a minor suspect or accused person, victim and witness, and for extending special safeguards to covert methods of obtaining information and data in digital form. The doctrinal distinction between admissibility and reliability is further developed: reliability does not follow automatically from a procedural source but is established by evaluation based on verification of the relevant factual data. In covert and digital evidence gathering, enhanced judicial review, proportionality, proper recording, provenance, attribution, integrity and reproducibility are emphasised. Violations of special safeguards are classified according to their possible impact on admissibility, reliability, probative weight, sufficiency of the evidentiary basis and the fairness of the proceedings as a whole. The special protection of minors is shown not to reduce the applicable standard of proof; restrictive and other significant procedural decisions require an individualised evidentiary basis. An eight-element test for legal and evidentiary review of the special regime and proposals for improving Chapter 38 of the Criminal Procedure Code of Ukraine are formulated.