Radzievsky, Y.E. The Preliminary (Reasonable) Assessment of Evidence by an Investigating Judge as a Cause for Unsubstantiated Criminal Procedural Decisions During Judicial Review.

This article addresses the problem of the artificial division of the evaluation of evidence in criminal proceedings into “preliminary (reasonable)” and “final (comprehensive).” According to this concept, when exercising judicial oversight of the pretrial investigation, investigating judges, based on a preliminary (reasonable) assessment, merely conduct a “reasonable assessment of the totality of the evidence obtained” in order to determine whether a person’s involvement in the commission of a criminal offense is probable and sufficient to notify that person of suspicion and to apply a restrictive measure against them. A final (comprehensive) assessment of the evidence in terms of its sufficiency, reliability, and admissibility is conducted only at the trial stage. This results in the evaluation of evidence at the stage of judicial review being carried out in a formal, limited, and superficial manner, leading to the adoption of unfounded decisions.

The position regarding the division of the evaluation of evidence into preliminary (ongoing) and final (conclusive) is unacceptable, since at any stage of the criminal process prior to the rendering of a final decision, whether it be judicial oversight of the pretrial investigation or a court hearing, there exists a local subject of proof (the set of circumstances that must be established for the correct adoption of a separate (non-final) procedural decision) and a standard of proof (the quantitative and qualitative components of proof, the fulfillment of which ensures the level of conviction necessary for making criminal procedural decisions that restrict rights and freedoms in criminal proceedings). It is impossible to establish proof without determining the factual circumstances of the case. The application of the “reasonable suspicion” standard of proof at the stage of imposing a preventive measure on a suspect does not relieve the investigating judge of the obligation to establish the factual circumstances of the case through the evaluation of evidence, but merely places this obligationto a lesser extent than when rendering a verdict following a trial under the “beyond a reasonable doubt” standard of proof. Current legislation, legal practice, and legal doctrine do not provide for the possibility of conducting a “reasonable evaluation of evidence.”

Keywords: judicial review, evaluation of evidence, preliminary (reasonable) evaluation of evidence, final (comprehensive) evaluation of evidence, trial, determination of the facts of the case, soundness of criminal procedural decisions, investigating judge, access to a fair trial.

Radzievsky Y.Y. An Advance (Reasonable) Assessment of Evidence by the Investigating Judge as a Cause of Unfounded Criminal Procedural Decisions During Judicial Review. The article addresses the problem of the erroneous division of the assessment of evidence in criminal proceedings into “preliminary (reasonable)” and “final” stages. According to this concept, investigating judges, when exercising judicial oversight during the pretrial investigation, based on a preliminary (reasonable) assessment, merely make a “reasonable assessment of the body of evidence received” in order to determine whether the person’s involvement in the crime is probable and sufficient to notify that person of suspicion and apply a restrictive measure against him or her. The final (full) assessment of evidence in terms of its sufficiency, reliability, and admissibility is conducted only at the trial stage. This is due to the fact that the assessment of evidence at the stage of judicial review is conducted in a formal, limited, and superficial manner, as a result of which the factual circumstances are not established and unfounded decisions are made. The position on dividing the assessment of evidence into preliminary (current) and final is unacceptable, since at any stage of the criminal process before a final decision is made—whether it involves judicial review during the pretrial investigation or the trial itself— there exists a specific subject of evidence (a set of circumstances that must be established for the proper adoption of a separate—not final—procedural decision) and a standard of proof (the quantitative and qualitative components of proof, the fulfillment of which ensures the level of certainty necessary for making criminal procedural decisions that restrict rights and freedoms in criminal proceedings). It is impossible to prove a case without establishing the factual circumstances of the case. The application of the “reasonable suspicion” standard of proof at the stage of selecting a preventive measure for a suspect does not relieve the investigating judge of the obligation to establish the factual circumstances of the case through an assessment of the evidence, but only imposes this obligation to a lesser extent than when rendering a verdict following a trial under the standard of proof “beyond a reasonable doubt.” Current legislation, law enforcement practice, and legal doctrine do not provide for the possibility of conducting a “reasonable assessment of the evidence.”

Keywords: judicial review, evaluation of evidence, preliminary (reasonable) assessment of evidence, final (full) assessment of evidence, trial, establishment of the factual circumstances of the case, validity of criminal procedural decisions, investigating judge, access to a fair trial.

The purpose of this study is to refute the existence of a “preliminary (reasonable)” assessment of evidence, as this leads to investigating judges effectively recusing themselves from exercising judicial oversight and, as a result, issuing unfounded and unjust criminal procedural decisions.

State of the Research. The issues of evidence evaluation and standards of proof have long been the subject of scholarly interest and are reflected in the scholarly works of Yu.P. Alenin, V.G. Goncharenko, I.V. Glovuk, V.O. Grynyuk, Yu.M. Groshev, V.V. Vapnyarchuk, V.Ya. Dorokhov, V.S. Zelenetsky, G.R. Kret, I.M. Luzgin, P.A. Lupinskaya, T.M. Miroshnychenko, M.M. Mikheyenko, V.S. Nikolaev, I. Sukhachov, Yu.M. Sukhov, O. Torbas, A.I. Trusov, V.V. Fedchishin, O.I. Chuchman, S.G. Khanin, and others.

Presentation of the Main Material. Some investigating judges mistakenly believe that, when exercising judicial oversight, they do not have the authority to evaluate evidence in terms of its sufficiency and admissibility, that they are unable to give preference to certain evidence over others by evaluating and analyzing it in its entirety, but are only required, on the basis of the so-called “reasonable assessment of the totality of the evidence obtained,” to determine that a person’s involvement in the commission of a criminal offense is probable and sufficient to notify that person of suspicion and to apply a restrictive measure against them[1;2;3;4]. Based on the foregoing, it can be concluded that a “reasonable assessment of the totality of the evidence obtained” is an assessment of the evidence that is conducted in a truncated manner, not in its entirety, and to which less stringent requirements are applied. At the same time, in practice, investigating judges, citing the need to conduct a “reasonable assessment of the totality of the evidence obtained” regarding a person’s involvement in the commission of a criminal offense, do not examine the classification of the crime, do not evaluate the evidence, and do not establish the factual circumstances of the case.

According to Part 1 of Article 23 of the Criminal Procedure Code of Ukraine, the court examines the evidence directly, and the court receives the testimony of participants in criminal proceedings orally. Prosecutors, along with motions to apply measures to secure criminal proceedings to substantiate the grounds for suspicion, routinely submit copies of interrogation transcripts of witnesses and victims en masse, without ensuring the latter’s appearance in court. Investigating judges deny the defense’s motions regarding the inadmissibility of copies of such interrogation transcripts and accept them for the purpose of conducting a preliminary (reasonable) assessment of the evidence.

The evaluation of evidence in criminal proceedings is an analytical and reasoning activity carried out by the investigating judge, the prosecutor, investigating judge, and the court, which consists of analyzing evidence for its reliability, relevance, admissibility, and sufficiency to establish the factual circumstances of the case that require proof. Zhuravel V.A. and Kovalenko A.V. reasonably consider the examination of evidence to be a component of the evidentiary process, one of the operations involving evidence (alongside its collection and use), which consists of familiarizing the party bearing the burden of proof with a specific source of evidentiary information, obtaining and clarifying the content of the factual data contained in such a source, assessing the source for admissibility, verifying the factual data, and evaluating them for relevance, reliability, and (in conjunction with other evidence) sufficiency to support a specific procedural decision[7].

The textbook “Judicial Oversight During the Pretrial Investigation in Criminal Proceedings” [9] reflects the further development of the concept of judicial oversight as an instrument for securing evidence in criminal proceedings. In this manual, judicial oversight is reasonably interpreted as a distinct and systematic area of the court’s activity carried out at the pretrial stage of criminal proceedings. Its essence lies in monitoring compliance with the rights, freedoms, and legitimate interests of participants in criminal proceedings, primarily in the process of applying coercive measures, conducting investigative (search) and covert investigative (search) actions, as well as in the process of reviewing complaints against decisions, actions, or inaction by the prosecution. A distinctive feature of the concept outlined in the manual is that judicial oversight is presented not as a peripheral function, but as a central preventive and evidentiary filter capable of ensuring that the evidentiary process complies with the principles of the rule of law, proportionality, and adversarial proceedings. The authors emphasize that the powers of the investigating judge should be viewed not merely as a formality, but as an integral element of the evidentiary process itself, since the admissibility of evidence obtained through interference with an individual’s rights directly depends on the judge’s decisions. The textbook sets forth important positions regarding the criteria for the substantive nature of judicial review. It is emphasized that the review of the merits of a motion filed by an investigator or prosecutor must include an analysis of: the level of substantiation of the facts confirming the existence of grounds for the interference; the evidentiary link between the requested action and the objectives of the criminal proceedings; and the existence of alternative, less intrusive means of achieving the objective.

It should be noted that neither Ukrainian legislation, nor legal doctrine, nor the case law of Ukrainian courts and the European Court of Human Rights contains a definition of “reasonable assessment of evidence.” Based on the context in which this term is used in the cited court decisions, it can be concluded that “reasonable assessment of evidence” refers to a certain truncated, limited, and superficial evaluation of the evidence, in which no preference is given to one piece of evidence over another, and no analysis is conducted regarding the evidence’s reliability, relevance, admissibility, and sufficiency to establish the factual circumstances of the case; rather, it merely establishes a person’s involvement in the commission of a criminal offense to a degree sufficient to notify that person of suspicion and to apply a restrictive measure against them.

The distinction between preliminary (ongoing) and final (conclusive) evaluation of evidence existed even in the doctrine of criminal procedure during the Soviet era. For example, A.I. Trusov erroneously believed that it was necessary to distinguish between the evaluation of evidence during a pretrial investigation—which is preliminary in nature—and the evaluation of evidence during a court hearing, which is final in criminal proceedings [16]. I.M. Luzgin supported this position, arguing that during a pretrial investigation, the evaluative activities of participants in criminal proceedings are of a nature that can be classified as judicious and verifying, since the evaluation in this case is preliminary and serves as the logical basis for formulating an accusatory or exculpatory argument. He acknowledged the possibility at this stage of unreliable or substandard factual data, which will inevitably be linked to the performance of functions by each party to the proceedings, during which they will be guided by their own interests [11]. A.O. Lyash [13] and T.M. Miroshnychenko [15] agree with the classification of evidence evaluation into preliminary and final.

A. Kalinovska reasonably considers the concept of “preliminary evaluation of evidence” to be somewhat inappropriate, since such an evaluation is inevitably associated with an incomplete assessment of the evidence. In the scholar’s opinion, the concept of “preliminary evaluation of evidence” should be abandoned. She rightly notes that the evaluation of evidence at any stage of the investigation or trial, with respect to that specific stage and the body of evidence gathered at that particular moment, is final [8]. P.A. Lupinska aptly noted in this regard that during the course of a pretrial investigation and court proceedings, characterizing the evaluation of evidence during the pretrial investigation as “preliminary,” and as final in the verdict does not reflect the essence of the evaluative activity and does not emphasize the independent nature of this activity [12]. M.M. Mikheyenko notes that the evaluation of evidence based on the internal conviction of the investigator, prosecutor, or judges—which finds its objective expression in their ruling, order, or judgment— is final, not preliminary, at the time each decision is made. If a new decision is subsequently made—including one to overturn or amend a previous decision—that new decision will be based on a new evaluation of the evidence; the previous evaluation, however, cannot be overturned or amended and will remain a fait accompli [14]. Y.M. Groshevyi and S.M. Stakhivskyi also rightly point out the finality of any evaluation of evidence that led to the adoption of a decision [6]. G.R. Kret, sharing this position, notes that the evaluation of evidence, when objectively determined, is final regardless of the entity conducting the evaluation or the form in which its results are expressed [10].

We fully agree that the position regarding the division of the evaluation of evidence into preliminary (ongoing) and final (conclusive) is unacceptable. At any stage of the criminal process prior to the rendering of a final decision—whether it be judicial oversight of the pretrial investigation or a court hearing—there exists a local subject matter of proof (the set of circumstances that must be established for the correct adoption of a separate (non-final) procedural decision) and a standard of proof (the quantitative and qualitative components of proof, the fulfillment of which ensures the level of conviction necessary for making criminal procedural decisions that restrict rights and freedoms in criminal proceedings).

V. V. Vapnyarchuk reasonably argues that individual (non-final) procedural decisions made at all stages of criminal proceedings (in particular, regarding: the initiation of a pretrial investigation, notification of suspicion, the application of interim measures, the suspension of criminal proceedings, rulings on recusals, etc.). They do not require the establishment of all the circumstances specified in Article 91 of the Code of Criminal Procedure, but do require the establishment, to a certain extent, of other circumstances, which, as a rule, serve as grounds or conditions for adopting certain decisions. In legal doctrine, such a direct subject of proof is referred to as the “local subject” [5, 91]. One cannot but agree with V. V. Vapnyarchuk that the circumstances of criminal proceedings, which constitute the content of the subject of criminal procedural proof (whether general, generic, specific, or individual), are cross-cutting, that is, they must be established both during the pretrial investigation and in court [5, 92].

Some investigating judges refrain from evaluating evidence for relevance, admissibility, reliability, and sufficiency on the grounds that establishing a person’s guilt at the pretrial investigation stage would violate the presumption of innocence. It is clear that when selecting a preventive measure for a suspect during the pretrial investigation stage, there is no need to establish guilt in committing a criminal offense beyond a reasonable doubt; but it is sufficient merely to prove the existence of reasonable suspicion of a crime, that is, the existence of facts or information that could convince an objective observer that the person could have committed the offense. At the same time, it is impossible to establish a person’s involvement in the commission of a criminal offense without evaluating the evidence in terms of relevance, admissibility, and reliability, and the totality of the evidence gathered—in terms of sufficiency and interconnection.

The application of the “reasonable suspicion” standard of proof at the stage of imposing a preventive measure on a suspect does not relieve the investigating judge of the obligation to establish the factual circumstances of the case through the evaluation of evidence, but merely places this obligationto a lesser extent than when rendering a verdict following a trial under the “beyond a reasonable doubt” standard of proof. Contrary to this, in practice, investigating judges often completely absolve themselves of the duty to evaluate evidence and establish the facts of the case, and, citing their so-called “reasonable assessment of evidence,” reduce it to merely copying the list of evidence from the investigator’s motion into their ruling.

Thus, current legislation, legal practice, and legal doctrine do not provide for the possibility of conducting a “reasonable assessment of evidence.” The division of the assessment of evidence into preliminary (ongoing) and final (conclusive) stages is incorrect. Any evaluation of evidence at any stage of a pretrial investigation or court proceedings, with respect to a specific stage and the evidence gathered at a specific point in time, is final. When exercising judicial oversight during the pretrial investigation stage, although the standard of proof is “reasonable suspicion,” it does not exempt investigating judges from evaluating each piece of evidence in terms of relevance, admissibility, and reliability, and the body of evidence collected—in terms of sufficiency and interconnection—for the purpose of making the appropriate procedural decision.

List of Sources Used:

1. Ruling of the Zhashkiv District Court of Cherkasy Oblast dated September 6, 2022, in Case No. 693/688/22. URL: https://reyestr.court.gov.ua/Review/106112160 (accessed December 1, 2025).
2. Ruling of the Lviv Court of Appeals dated June 15, 2021, in Case No. 465/1642/21. URL: https://reyestr.court.gov.ua/Review/97789358 (accessed December 1, 2025)
3. Ruling of the Kyiv City Court of Appeal dated April 5, 2016, in Case No. 754/464/16-k. URL: https://reyestr.court.gov.ua/Review/59017937 (accessed December 1, 2025)
4. Ruling of the Kyiv Court of Appeals dated June 9, 2022, in Case No. 761/10961/21. URL: https://reyestr.court.gov.ua/Review/104798230 (accessed December 1, 2025)
5. Vapnyarchuk, V. V. Theory and Practice of Criminal Procedural Evidence: Monograph / V. V. Vapnyarchuk. Kharkiv: Yurait, 2017. 408 pp. http://nbuv.gov.ua/UJRN/nvuzhpr_2014_29(2)__48 (accessed: Dec. 1, 2025).
6. Trusov, A. I. Fundamentals of the Theory of Judicial Evidence: A Brief Overview. Moscow: Derzhurvydav, 1960. 176 pp.

The article was published in the electronic academic journal Analytical and Comparative Jurisprudence, No. 1, 2026.