Assurance of Evidence

Abstract

This paper reflects the detailed theoretical and interpretative treatments of criminal evidence and the process of proving according to criminal procedural legislation, based on the Constitution and E.C.H.R. Theoretical and interpretive depeened treatments, are based on the scientific research closely connected to the judicial practice of the implementation of this legislation, the positions held by judicial practice. Special attention is paid to all criminal evidence, meaning, object, features, procedural rules of receiving, verification and evaluation of them throughout the penal process, the rights and obligations of the parties in this process. The implementation of legal provisions onto evidence, evidence search tools and the process of proving, by procedural subjects in judicial practice has recognized and shown the most important issues in relation to other instutitutet of criminal procedural law. The terminology used in this paper is supported and conditioned by the terminology used by the legislator in dispositions of the Criminal Procedure Code. Provision of proof is a relatively new institute in the criminal proceedings. It first became known in the procedure code of 1995, in order to preserve the value of the data found during the preliminary investigation. Providing of proof would be applied in all those cases where evidence risks to be damaged, disappear, et lost and receiving it can not be deferred until the trial. Regarding to the relevant literature in Albanian language, only few authors have mentioned it sporadically, not emphasizing the real importance of evidence assurance institute. Even in the commentary of criminal proceedings this institute is dealt with very little, in summary, if we refer to its importance. Assurance of proof is provided in the Criminal Procedure Code in Articles 316-322. In these provisions is expressed the whole procedure of securing evidence, from the definition of specific cases in which it might apply (Article 316 Criminal Procedure Code), continuing with the presentation of evidence and the application for evidence assurance and subjects legitimized in its appearance (Articles 317,319 Criminal Procedure Code), as well as the right of the court in disposition of this requirement. An important element to be treated is to determine the scope of the institute of evidence assurance. Often in practice it is said that the demand for evidence assurance, is applied more in criminal offenses smuggling of women for sexual exploitation, trafficking of minors for other exploitation purposes, sexual relations with minors etc. In this paper is also treated the evidence assurance institute as well as that of the research means of evidence, these institutions closely linked to criminal trials and the process of proving. Of the most important institutes of criminal procedural law is that of "criminal evidence and proving process" which is rightly considered as the backbone institute of this right. The importance of criminal evidences and the process of proving is determined by the purpose itself and content of the criminal legislation. These institutes are directly related to the content and task of this science, to what is the process of detecting and proving the truth in criminal trials. While acknowledging the special place it occupies the evidence assurance institute it is not yet determined its importance really. In this brief theoretical material, I tried to treat through a slightly wider framework assurance of evidence focusing on its importance, theoretical and practical problems in determining the scope of these institutes.

DOI: 10.5901/ajis.2017.v6n2s1p69