Implementation of the burden of proof in criminal proceedings by the victim and their representative

Abstract

The article analyses the provisions of criminal procedure legislation with a view to defining the role of the victim and their representative (attorney-at-law) in proving the circumstances specified in Article 91 and Part 2 of Article 92 of the CPC of Ukraine. It is argued that the legislator, when defining the information which constitutes the victim's burden of proof, used the wording which does not give an unambiguous understanding of the totality of the circumstances which the victim and his/her legal representative are obliged to prove. Based on the results of the textual analysis of the provisions of current legislation, and on the basis of the generalisation of court practice, it is proposed that the circumstances which should be proved by the victim (his/her representative) include the following: the amount of procedural costs incurred by the victim; circumstances characterising the personality of the accused, as indicated by the injured party; arguments and evidence confirming the circumstances set out in the petitions and complaints filed by the injured party; circumstances related to non-pecuniary damage caused to the victim; circumstances underlying the claims set out in a civil action. It is established that a representative engaged by the victim plays a significant role in collecting evidence which forms the basis of the claims set out in a civil action. This includes, in particular, requesting copies of documents certifying the costs incurred by the victim and obtaining an expert opinion based on the results of a psychological examination. It is determined that in order to clarify such circumstances, the victim’s representative may resort to a number of measures, including: 1) submission of lawyer’s requests; 2) conducting surveys of citizens; 3) obtaining an expert opinion on a contractual basis; 4) obtaining temporary access to things and documents on the basis of a decision of the investigating judge; 5) initiating procedural actions in the form of investigative (search) and covert investigative (search) actions, etc.

Keywords

• criminal procedure
• proof
• victim
• victim’s representative
• lawyer
• subject matter of proof
• circumstances of a criminal offence.