The article notes that in the post-Soviet doctrine a conceptual methodological hypothesis starts to be formed on the need for restructuring of criminal procedure by taking the subsystem of pre-trial proceedings out of the general structure of criminal proceedings (criminal procedure). It is noted that in practical terms, this statement should lead to a differentiated legal regulation of two legal phenomena: 1) deformalized administrative and police detective activities aimed at preparing a criminal action which are made under judicial control in the form of the police inquiry; 2) activities of the court aimed at considering the legal claims of the prosecution as a criminal plaintiff which are made within the framework of due process (article 2 of the Criminal Procedural Code of Ukraine, CPC of Ukraine). If we accept this scientific hypothesis, then the police version-generating (drafting and cognitive) and substantiating activities may be qualified as preparatory activities (preparatory proceedings) of the prosecution which precede the proving in court of its categorical assertion about the presence of appropriate physical and procedural grounds for a criminal action (parts 1, 2, article 17 CPC of Ukraine). Therefore, the author suggests that the phenomenon of criminal procedure should be considered as an exclusive attribute of the judiciary, since “the procedure is available only where there is a prosecution and a court”.

The purpose of the article is an attempt to problematize (to question) this generally accepted and time-honored doctrinal status quo, and accordingly, to offer new visions of the phenomena of proof and proving in criminal procedure.

The author believes that the concept of “proving” in court procedure can be defined as a special legal concept denoting a kind of argumentative thinking activity by the prosecution in court aimed at defending its legal position in merito. The article investigates the issue of the normative structure of the prosecution’s activity with the aim of proving in court, and it is comprised by such elements as “object”, “purpose”, “source material”, “method”, “actor”, “means”, “product”. It is emphasized that the represented functional structure of the prosecution’s activity of proving in court is implemented in its procedure which may be split into the preparatory, main and final stages. According to the author, the preparatory stage of proving consists of the following elements: 1) announcement of the indictment by the prosecutor; 2) obtaining of the prosecutor’s “clarifications” concerning the indictment; 3) finding out of the defense attorney’s position concerning the indictment; 4) finding out of the defendant’s attitude towards the charge brought against him/her; 5) finding out of the defense attorney’s position concerning acceptability of the legal formula of the defendant’s speech. The main stage of proving in court consists of the following elements: 1) introductory speech by the prosecutor; 2) submission to court of the list of evidence materials of the prosecution; 3) finding out of the defense attorney’s position concerning the evidence offered by the prosecution; 4) examination of evidence submitted by the prosecution; 5) opening speech by the defense attorney; 6) submission to court of the list of evidence for the defense; 7) finding out of the prosecution’s position concerning the evidence offered by the defense; 8) examination of evidence submitted by the defense; 9) interrogation of the defendant. The final stage of proving in court consists of closing speeches by the parties. The author concludes that since the main body of the argumentative work of proving and disproving within the proposed scheme is done by the parties during the specially designated time, the task of the closing speeches is to summarize the resulting criticism of their opponents’ legal positions and to submit their proposals for the sought-for court decision. As for the closing speeches, the first of them is that of the prosecution, the second one – of the defense represented by the defense attorney, and the defendant him- / herself with the so-called “last plea” does not speak at all. After the speeches are made, the parties hand over their respective texts to the court.

Bibliography

Authored books

1. Konverskyi A, Lohika: pidruchnyk [Logic: Textbook] (Kyivskyi universytet 2017) (in Ukrainian).

2. Volosova N i Volosova M, Ugolovno-processual’noe zakonodatel’stvo Japonii: sravnitel’noe issledovanie [Japanese Law of Criminal Procedure: A Comparative Study] (Jurlitinform 2016) (in Russian).

3. Vorob’ev A i drugie, “Delo Jukosa” kak zerkalo russkoj advokatury: kompleksnoe issledovanie v zashhitu rossijskoj advokatury i pravosudija [“The Yukos Case” as a Mirror of the Russian Bar: A Comprehensive Study in Defense of the Russian Bar and Justice] (Citadel’ 2008) (in Russian).

Journal articles

4. Mazurkiewicz А, ‘Sprawność działania – interpretacja teoretyczna pojęcia’ (2011) 20 Nierówności Społeczne a Wzrost Gospodarczy 56 (in Polish).

5. Gerasimova I i Novoselov M, ‘Argumentacija kak metodologija ubezhdenija’ [‘Argumentation as the Persuasion Methodology’] (2003) 10 Voprosy filosofii 72-84 (in Russian).

6. Hachaturjan D, ‘Gnoseologicheskie osnovy opravdatel’nogo prigovora kak metod opredelenija predmeta sudebnogo poznanija’ [‘Epistemological Foundations of a Non-Guilty Verdict as a Method to Determine the Subject Matter of Judicial Cognition’] [2016] 2(72) Gosudarstvo i pravo 188-9 (in Russian).

7. Hmyrko V, ‘Diialnisnyi pohliad na restrukturizatsiiu kryminalnoho protsesu: the attempt of dogmatic Shawshank Redemption?’ [‘Activity-Based Look at the Restructuring of Criminal Procedure: The Attempt of Dogmatic Shawshank Redemption?’] [2018] 1(20) Pravova pozytsiia 21-36 (in Ukrainian).

8. Nikitaev V, ‘Problemnye situacii ugolovnogo processa i juridicheskoe myshlenie’ [‘Problematic Situations of Criminal Procedure and Legal Thinking’] [1996] 1(2) Sostjazatel’noe pravosudie. Trudy nauchno-prakticheskih laboratorij 297 (in Russian).

Theses

9. Vasil’janova I, ‘Osobennosti argumentacii v sudebnom diskurse’ [‘Specifics of Argumentation in Court Discourse’] (avtoref diss kand filolog nauk, Kaluzhskij gosudarstvennyj pedagogicheskij universitet im K Je Ciolkovskogo 2007) (in Russian).

Websites

10. Shhedrovickij P, ‘Kak sovremennyj upravlenec formiruet kartinu mira. Cikl lekcij v NITU MISIS. Moskva, 2010-2011’ [‘How a Modern Manager Forms a Picture of the World. Series of Lectures at NUST MISIS National University of Science and Technology. Moscow, 2010-2011’] (Centr gumanitarnyh tehnologij, 17.01.2013) <https://gtmarket. ru/library/articles/5547> (accessed: 11.08.2019) (in Russian).