СТАНДАРТ ДОКАЗУВАННЯ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ: «ЗМІННИЙ» ЧИ «СТУПЕНЕВИЙ» ?

Abstract

The article is devoted to the analysis of the issue of division of standards of proof in criminal proceedings, in particular one of the types - variable standard of proof, which is distinguished by scholars of the Anglo-Saxon legal system. The article analyzes the question of the possibility of dividing the standards of proof depending on the severity of the criminal offense. \nThe motives and scientific arguments in favor of distinguishing a variable standard of proof in criminal proceedings are studied. Positively assessing the attempt of the appropriate scientific division of standards of proof in criminal proceedings, the authors argue that it is still impossible to agree with him to the end. In particular, according to the authors, the introduction of a variable standard of proof in criminal proceedings will not contribute to the unity of judicial practice in the process of making procedural decisions during criminal proceedings. \nIn addition, the article argues that decisions in criminal proceedings are made on the basis of internal conviction, which determines and assigns the type and measure of punishment, and not vice versa. Therefore, it is at least surprising the position of some scholars that the sanction of a sentence that can be imposed on an accused must determine the necessary level of “persuasion” (“evidence”) for his appointment. It is argued that in some cases, the establishment of a variable standard of proof in criminal proceedings will lead to a violation of the principles of criminal proceedings, in particular equality before the law and the courts. \nThe article presents the position of the authors on the doubtfulness of establishing the degree of proof of the circumstances of criminal proceedings depending on the severity of the criminal offense, as in criminal proceedings there is a single procedure and the same set of procedural rights.