Volume 12 - Issue 68
/ August 2023
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DOI: https://doi.org/10.34069/AI/2023.68.08.19
How to Cite:
Horodetska, M., Zarubei, V., Dulskyi, O., Kamyshanskyi, O., & Morgun, I. (2023). Factors influencing the effectiveness of proving
criminal offences during trial. Amazonia Investiga, 12(68), 199-209. https://doi.org/10.34069/AI/2023.68.08.19
Factors influencing the effectiveness of proving criminal offences
during trial
Фактори, що впливають на ефективність доказування кримінальних
правопорушень в судовому процесі
Received: July 20, 2023 Accepted: August 28, 2023
Written by:
Maryna Horodetska1
https://orcid.org/0000-0002-3228-6299
Viktoriia Zarubei2
https://orcid.org/0000-0001-6690-967X
Oleksandr Dulskyi3
https://orcid.org/0000-0003-4711-1106
Oleksii Kamyshanskyi4
https://orcid.org/0000-0001-8460-0035
Igor Morgun5
https://orcid.org/0000-0003-3582-1741
Abstract
Proving effectiveness is a guarantee of protection of
human rights, which is especially important for
countries with a transitional legal system. Proving
is influenced by a number of factors, including
those the negative consequences of which are
threatening the achievement of the goals of justice.
Possibilities of minimizing their impact determine
the relevance of the issue under research. The aim
of the study is to determine the factors affecting the
proving effectiveness and the prospects for
improving this process in the context of human
rights protection. The study involved the following
practical methods: doctrinal approach, comparative
method, forecasting. The dependence between
crimes and types of evidence of their commission
was established. The types of digital evidence were
summarized, among which the OSINT technique
prevails. The factors are classified into general and
special. It was demonstrated that objective
organizational factors prevail among the factors of
proving crimes related to armed conflicts. It is
proposed to focus on the legal regulation of the
latest technologies and improving the professional
training of the subjects of proving. It is appropriate
to develop international recommendations for the
1
PhD of Law Sciences, Head of the Department, Department of Organization of Pre-trial Investigation, Faculty № 1, Kryvyi Rih
Educational & Scientific Institute of Donetsk State University of Internal Affairs, Kryvyi Rih, Ukraine.
2
PhD of Law Sciences, Professor, Department of Criminal Procedure, National Academy of Internal Affairs, Kyiv, Ukraine.
3
Doctor Philosophy, Attorney at Law, “Voichenko & Dulskyi” Attorneys ta Law, Kyiv, Ukraine.
4
Dean of the Faculty of Specialist Training for Preventive Activity Units, Dnipropetrovsk State University of Internal Affairs, Dnipro,
Ukraine.
5
PhD of Technical Sciences, Senior Research Fellow, Scientific and Organizational Center, National Academy of the Security Service
of Ukraine, Kyiv, Ukraine.
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use of digital evidence, including artificial
intelligence.
Keywords: criminal justice, justice, protection of
human rights, proving, effectiveness of
proceedings. .
Introduction
The appropriateness of the functioning of
criminal justice is determined by ensuring the
standards of the rule of law (Carrera et al., 2021).
Therefore, proving in criminal proceedings
requires thoroughness and completeness of the
study of evidence in accordance with the law
(Fedoriv, 2022), contested action and freedom in
the submission of evidence by the parties to the
court and in proving their persuasiveness
(Van Kempen, 2014). In turn, the judge shall
determine all the circumstances that must be
proven, provides his/her arguments regarding the
evaluation of the evidence of the parties
(Hnatenko, 2022).
However, proving criminal offences during trial
remains insufficiently effective. In general, this
is explained by limited resources, organizational
imperfections, and the complexity of criminal
justice systems (Dela Rama, 2022). This
determines a number of factors that negatively
affect proving, in particular:
− non-compliance with international standards
for the protection of human rights as a result
of violations of the assessment of certain
evidence (European Court of Human Rights,
2022);
− changes in the structure of crime, for
example, the emergence of types of criminal
offences associated with the use of the latest
technologies (Office of National Statistics,
2022);
− lack of developed algorithms for working
with digital evidence (Lewulis, 2022) and
the use of communication and data exchange
platforms that do not take into account the
specifics of criminal justice (Carrera et al.,
2021);
− insufficient attention to the protection of
complainant's rights. Criminal trials are a
communicative interaction with crime
victims and the wider population
(Eskauriatza, 2021). Accordingly, proving
criminal offences requires "sensitivity to
victims" (UNODC, 2019).
The situation with the effectiveness of proving in
countries with transitional justice, which face
difficulties in complying with international
standards, is even more difficult
(Mayans-Hermida & Hola 2020). In particular, a
typical problem is the lack of real equality of the
parties in collecting and obtaining evidence, the
contested action of the parties in proving (Mazur
2020).
Although human rights affect almost all aspects
of criminal procedural law, regardless of the
specifics of the criminal justice system (Van
Kempen, 2014), the issue of the effectiveness of
proving is especially acute during armed
conflicts. In particular, this is related to: a) the
specifics of the crime and the objective
impossibility of properly collecting evidence
(Schmitt, 2022); b) staying of persons who
possess the evidence in the occupied territory;
c) the need to use digital evidence; d) reluctance
of victims to report crimes committed against
them (Fedoriv, 2022); e) introduction of remote
court hearings (Carrera et al., 2021), etc.
All studies on the issue are useful. However, their
authors mainly focus on particular aspects. The
identification and analysis of factors affecting the
effectiveness of proving criminal offences during
trial will contribute to the strengthening of
guarantees of human rights in the field of
criminal justice.
Aim
The aim of this study is to consider the factors
that affect the effectiveness of proving criminal
offences during trial, and outline the prospects
for improving human rights protection in this
area. The aim involved the fulfilment of the
following research objectives:
− Determine the essence of evidence during
trial and its specifics in relation to different
categories of criminal offences;
− Identify factors that influence the
effectiveness of proving in a criminal trial,
and find out the specifics of such an
influence;
− Determine promising directions for
improving the effectiveness of proving
Horodetska, M., Zarubei, V., Dulskyi, O., Kamyshanskyi, O., Morgun, I. / Volume 12 - Issue 68: 199-209 / August, 2023
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criminal offences during trial taking into
account modern challenges.
Literature review
The studies on the issue under research covers
both general aspects of proving and problems
related to particular legal situations or those
existing in certain states.
Regarding the general aspects, experts
emphasize the assessment by the court based on
the “beyond a reasonable doubt” standard of each
piece of evidence separately and the totality of
evidence from the perspective of: a) reliability of
information; b) legality/illegality of the method
of obtaining it (Criminal Law Center, 2023;
Khanin, 2023; Nasinnyk, 2022). However,
commentators on ECHR case law draw attention
to problems with compliance with evidentiary
standards and conformity of decisions with the
requirements of the European Convention in
terms of proving procedures (McBride, 2009).
As a result, courts issue decisions that are later
appealed to the ECHR because of the ineffective
proving (for example: European Court of Human
Rights (2006a); European Court of Human
Rights (2006b)), etc.
Some authors believe that this criticism is
exaggerated. The low effectiveness of
prosecution can be due to objective factors: the
adoption of new legislation, crime trends,
priorities in the work of law enforcement
agencies (McGrath & Healy, 2021; Zarubei et al.,
2021). Besides, there are disagreements between
law enforcement officers regarding the
sufficiency of collected evidence (OECD, 2021).
Regarding specific problems, the following is
worth noting:
1. Specialists pay attention to the correlation
between crimes and features of proving, in
particular, regarding crimes in the field of
the latest technologies (Office of National
Statistics, 2022). At the same time,
traditional evidence (for example, witness
statements or DNA tests) cannot be used in
such cases. However, for other crimes –
murder, rape, burglary – this evidence is the
most effective (Amankwaa & McCartney,
2021; Dela Rama, 2022).
A difficult issue is ensuring the effectiveness of
proof in specific situations, in particular, in
conditions of armed conflict. For example, the
ECHR emphasizes the unconditional adoption of
all measures to investigate violations of the right
to life (European Court of Human Rights, 2011).
However, Ukraine’s experience shows
significant procedural difficulties in ensuring the
effectiveness of proving such crimes (Fedoriv,
2022).
2. The discussion on the place of victims in the
discourse regarding the effectiveness of
proving occupies a separate place:
− the influence of the category of victims on
the effectiveness of proving, because there is
a pattern between the type of crime and the
category of victims (Warner et al., 2017;
Office of National Statistics, 2022);
− the influence of the position of the victims
on the effectiveness of proving. Although
trials are a form of public communication
(Jeßberger & Steinl, 2022), courts
sometimes do not clarify the goal pursued by
the victim (Kompanets, 2021). A
consequence of this is the low activity of
victims regarding requests for compensation
for the harm caused (The right of victims).
3. Regarding the evidence that is mainly taken
into account in trials, experts most often
note: a) the problem of false testimony and
methods of levelling their influence on
proving (Luke et al. 2016; Dela Rama,
2022); b) problems of data collection on the
Internet and their use in proving (Lewulis,
2022; Council of Europe, 2020).
4. The study of the experience of different
countries (Australia, Latvia, Poland,
Ukraine, etc.) is a separate direction of
research. Positive aspects are noted
regarding: a) the effectiveness of proving in
jury trials (Warner et al., 2017);
b) availability of guidelines for proving
certain categories of crimes (OECD, 2021).
However, negative aspects are also
identified, for example, the lack of legal
tools for processing open online information
(Lewulis, 2022). In Ukraine, as a state with
a transitional legal system, the regulation of
the powers of the defence attorney to collect
evidence and present it during trial remains
imperfect (Mazur, 2020).
Regarding the improvement of proving
procedures, attention is paid to regulating the use
of the latest technologies (Turner, 2020), in
particular, the introduction of artificial
intelligence (D’Alessandra & Sutherland, 2021;
Shi, 2022). Along with this, it is proposed to
resolve: a) organizational issues, for example, in
terms of the introduction of the European warrant
for the demand and storage of digital data
(Lewulis, 2022); b) the issue of training
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specialists for proving in certain categories of
complex cases (OECD, 2021). It is appropriate to
introduce the institute of attorney investigation
for countries with a transitional legal system
(Mazur, 2020).
The literature presents a number of conclusions
and proposals regarding the effectiveness of
proving criminal offences during trial, but they
do not constitute a complete system and do not
fully take into account the current context.
Methods
In order to achieve the aim and fulfil the research
objectives, the sources, which deal with the legal
and organizational issues of proving during trial,
and the factors influencing the effectiveness of
proving, were selected and generalized. For this
purpose, a) conventional provisions in the field
of human rights protection, ECHR case law and
comments on its individual provisions;
b) analytical reports on current problems of
proving crimes; c) the experience of Ukraine and
foreign countries regarding the proving
procedures and factors influencing their
effectiveness were used. This made it possible to
a) generalize the understanding of the nature of
proving in the legal process; b) determine the
specifics of proving various categories of
criminal offences; c) identify general and
specific factors influencing the effectiveness of
proving during trial; d) find out the prospects for
proving improvement with due regard to the
technological progress and the current security
situation. Research design is shown on Figure 1.
Figure 1. The research design (developed by authors)
The study involved the following methods:
− the system approach was used to understand
the place of proving criminal offences in the
system of human rights protection in the
field of criminal justice;
− the descriptive analysis was used to study
the components of proving and generalize
the factors that influence the effectiveness of
proving;
− the doctrinal approach made it possible to
generalize the main provisions of
international standards, the ECHR case law
in the field of proving criminal offences in
general and certain categories of acts in
particular;
− the comparative method was applied to
compare the experience of Ukraine and
foreign countries with regard to the main
factors that influence proving and the
neutralization of negative factors;
− the forecasting method was used to
determine the prospects for improving the
effectiveness of proving during trial with
due regard to the development of
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technologies and the current security
situation.
Results
The study of factors that influence proving of
criminal offences during trial is part of the
general discourse of human rights protection in
the field of criminal justice. Proving must be
based on the principles of the rule of law and the
principle of legality. Each piece of evidence is
evaluated in terms of relevance, admissibility,
credibility, and the totality of the collected
evidence must meet the requirements of
sufficiency and interconnectedness. This
provides an insight into the essence and structure
of proving (see Figure 2).
Figure 2. The nature and structure of proving criminal offences (developed by authors)
In this context, it is fundamental to emphasize
that ensuring the effectiveness of proving is the
task of all subjects depending on the stage.
However, it is the court that ultimately examines
and evaluates the evidence, using it to make a
decision about the guilt/innocence of a person in
a criminal offence.
Given the trends in the structure of crime, the
share of criminal offences, proving which is
impossible without digital evidence
(cybercrimes, economic torts, etc.) is increasing.
Digital evidence can be differentiated by its
relevance in criminal proceedings. This is
reflected in the share of its main types used by
the subjects of proving (see Figure 3).
Proving of criminal offences
Collection, verification and evaluation of evidence with the formulation and justification of certain
conclusions in order to protect the rights and legitimate interests of persons participating in criminal
proceedings
Subjects of proving
The prosecution
Defence
The investigating judge and the court
Structure (stages) of
proving
Obtaining evidence
Verification and evaluation of evidence
Use of evidence
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Figure 3. Types of digital content (by share of the use in criminal proceedings)
This context is important to ensure the
effectiveness of proving crimes related to armed
conflicts. A significant number of such crimes
and their partial localization in temporarily
occupied territories lead to the widespread use,
first of all, of open data posted on the Internet -
open-source intelligence (OSINT).
So, the nature and structure of proving,
comparison of crimes and types of evidence
determines the set of the main factors that
influence the effectiveness of proving criminal
offences during trial. These factors are supposed
to mean phenomena (conditions) that can change
the level of effectiveness of proving. These
factors can be general or special depending on
their effect in most or some criminal
proceedings. The classification of these factors
on different grounds is presented below (see
Figure 4).
Figure 4. Classification of factors that influence the effectiveness of proving (developed by authors)
The presented division of factors gives grounds
to generalize the correspondence of the most common general factors to their classification
types (see Table 1).
Digital content
(according to Lewulis 2022)
test SMS
text messages (social networks)
files on digital media
internet banking data
data of internal information processing systems
data of website administrators
e-mail letters
provider data
open data on the Internet
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Table 1.
Correspondence of general factors to classification types
Factors
By nature
By consequences
Objective
Subjective
Positive
Negative
dynamics of national legislation
+
+
+
incomplete compliance of national legislation with
international standards
+
+
changes in the structure of crime
+
+
introduction of the latest methods of proving
+
+
prejudiced attitude towards the victim
+
+
insufficient preparation of the subjects of proving
+
+
organization of communication with civil society
institutions
+
+
The proposed correspondence is the basis for the
following conclusions:
− the dynamics of national legislation cannot
be assessed unambiguously. The positive
impact of legislative changes consists in
improving the quality of the regulatory text
and eliminating regulatory gaps and
collisions. At the same time, negative
consequences are usually revealed when the
subjects of proving have not adapted to the
new regulations;
− changes in the structure of crime are
associated with an increasing share of
intellectual types of criminal activity, an
increasing latency level, etc.
Special factors will be illustrated by using the
example of factors that influence the
effectiveness of proving crimes related to armed
conflicts. Under such conditions, the subjects of
proving operate in extreme conditions and
provide evidence for thousands of crimes. This is
connected with a special set of factors, the vast
majority of which significantly complicate
proving (see Figure 5).
Figure 5. Factors influencing the effectiveness of proving crimes related to armed conflicts (using the
example of Ukraine)
So, the vast majority of factors in proving crimes
related to armed conflicts are objective
organizational factors with a negative impact.
The objective factors that increase the
effectiveness of proving include the introduction
of OSINT techniques, as well as cooperation
Organizational:
−impossibility of access to a
significant area for the purpose
of collecting evidence;
−the need to simultaneously
involve a large number of
investigators and experts,
including conducting a large
number of various
examinations;
−difficulties in ensuring the
participation of defenders;
−difficulties in evaluating
individual digital evidence (for
example, screenshots,
fragments of website content,
social network pages)
Communication with
victims:
−
peculiarities of the
physical and
psychological
state of the
victims, especially
in case of
violence;
−
reluctance of
victims to report
crimes committed
against them (in
particular, related
to sexual violence)
The main factors influencing the effectiveness of proving criminal offences related to armed
conflicts
Threats to the security of
subjects of proving
(because
of hostilities and mining of a
large area)
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with international organizations and foreign
countries.
The identified aspects provide an insight into the
main possibilities for improving the effectiveness
of proving by the authorized subjects. It is
considered appropriate to identify conceptual
directions within which the set of measures is
variable and adaptive to existing conditions (see
Figure 6).
Figure 6. Directions for improving the effectiveness of proving criminal offences during trial
Regarding special factors, it is necessary to draw
attention to the development of the algorithm and
the normalization of its use in proving artificial
intelligence. This is extremely important when
proving crimes related to armed conflicts (for
example, to identify those who died during
hostilities, persons who committed war crimes,
or persons who were subjected to forced
deportation). However, we emphasize the need
for a clear legal regulation of such an evidence
base. It is proposed to develop international
recommendations for national law enforcement
and judicial bodies on this issue.
So, the following directions appear to be
promising: a) development of techniques for
handling digital evidence and legal regulation of
the use of the latest technological developments
in proving; b) improvement of the professional
training of subjects of proving.
Discussion
This work showed the appropriateness of
addressing the issues of the nature and structure
of proving (Khanin, 2023), which determines the
interest of all subjects of proving in its
effectiveness. At the same time, this research
showed that these studies do not fully take into
account current challenges, in particular, the
problems of proving crimes related to armed
conflicts.
In the context of compliance with international
standards, it is appropriate to subscribe to the
position that national criminal justice systems are
vulnerable to objective factors (McGrath &
Healy, 2021; OECD, 2021). Therefore, non-
compliance with the European Convention may
be a temporary consequence of the process of
adapting the law enforcement system to changes
in legislation, crime dynamics, etc.
There is reason to shape the position on the
relationship between crimes and the types of
evidence used in trials (Amankwaa &
McCartney, 2021; Office of National Statistics,
2022). This position is supported by Ukraine’s
experience in proving crimes related to armed
conflicts (Fedoriv, 2022). In this study, this
approach was developed by highlighting the
main factors that affect the effectiveness of
proving crimes related to armed conflict.
However, it is impossible to agree with
considering the factors as equivalent, so their
classification was proposed and the
consequences of influence (not only negative, but
also positive) were clarified.
Emphasis on the importance of taking into
account the position of victims (Warner et al.,
2017; Kompanets, 2021) is positive. It is
supplemented in this study by an understanding
of the specifics of communication with victims
of crimes related to armed conflicts as a special
factor that is determined by the scale and
consequences of human rights violations during
an aggressive war.
It should be agreed that an important part of the
professional discourse is the operation of digital
evidence and the problems of regulatory
regulation of proving in this regard (Lewulis,
2022; Council of Europe, 2020). We share the
point of view about the growing importance of
this problem, taking into account changes in the
structure of crime (Turner, 2020; Office of
National Statistics, 2022). However, this study
generalizes the types of digital evidence and
identifies their features in relation to crimes
related to armed conflicts.
Regarding general factors -
reducing the influence of subjective factors (first of
all, increasing the awareness of the subjects of
proving regarding the specifics of changes in crime
structure and the latest methods of proving)
Regarding special factors -
regulatory support for handling individual
digital evidence
Promising directions
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The following propositions were made with
regard to increasing the effectiveness of proving
crimes committed under martial law:
a) paying special attention to proving the harm
caused to victims of crimes related to armed
conflicts (Schmitt, 2022);
b) increasing awareness of the use of
journalistic investigative materials and
digital technologies for evidence collection
and their use in courts (D'Alessandra &
Sutherland, 2021, 26).
In general, this vision can be shared, but it is
fragmentary. This study proposes a classification
of factors that influence proving of crimes related
to armed conflicts. This gives grounds to
conclude that the vast majority of such factors are
objective organizational factors with a negative
impact.
There is no doubt that considerations regarding
the need to regulate the use of the latest
technologies are productive (Turner, 2020).
Along with this, it is important to train specialists
to provide evidence in certain categories of
complex cases (OECD, 2021). However, this
study suggests to clarify the mentioned
propositions in view of the need for:
a) improvement of methods of handling digital
evidence, without which regulatory
regulation of proving algorithms is
impossible;
b) professional training of all subjects of
proving, not only those specialists who
investigate complex cases.
We support the debate on the introduction of
artificial intelligence (D’Alessandra &
Sutherland, 2021, 25; Shi, 2022). However, such
a decision must depend on the crime category
and requires careful methodical preparation. This
study emphasizes the appropriateness of using
artificial intelligence in proving crimes related to
armed conflicts (for example, to identify persons
who committed war crimes or forced deportees).
In general, these considerations can be the basis
for the implementation of legal, organizational
and procedural mechanisms to increase the
effectiveness of proving criminal offences during
trials.
Conclusions
The conducted research gives grounds for
drawing a number of conclusions regarding the
factors that influence proving criminal offences
during trials.
It is shown that the essence and structure of
proving condition the involvement of all subjects
of proving to ensure its effectiveness. However,
the court occupies a central place in the system
of these subjects. Emphasis is placed on the
connection between the committed criminal
offences and the types of evidence used by the
subjects of proving. A generalization of the types
of digital evidence is presented and their features
as applied to crimes related to armed conflicts are
clarified. A classification of factors that influence
the effectiveness of proving is proposed on
different grounds (by nature, consequences, and
spread). Correspondence of individual factors to
specific characteristics was identified. The
significance of the factors influencing the
effectiveness of proving crimes related to the
armed conflicts was established. It was proved
that the vast majority of such factors are
objective organizational factors with a negative
impact.
Promising areas of improving the effectiveness
of proving criminal offences were identified.
Special emphasis is placed on improving the
methods of handling digital evidence and the
legal regulation of the use of the latest
technological developments in proving, as well
as on improving the professional training of the
subjects of proving. It is proposed to pay special
attention to the regulatory support for the use of
artificial intelligence in proving crimes related to
armed conflicts. It is appropriate to develop
international recommendations for national law
enforcement and judicial bodies regarding the
use of digital evidence in general and artificial
intelligence in particular.
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