Characteristics of performance of the function by the notary in providing evidence in a criminal proceeding: a comparative legal study (Ukraine and the United States of America)

Abstract

The article reveals the features of the notary's performance of the function of providing evidence in a criminal proceeding based on a comparative analysis of the proposed changes to the notary legislation in Ukraine and the provisions of the Criminal Code of the State of Arizona (USA). It was concluded that the notarial act of “providing evidence”, which the Ukrainian legislator proposes to add to the list of notarial acts, consists in certifying by the notary of the data (information) provided, which can be carried out in various ways (by documenting, inspecting certain objects, video- and audio recording, etc.). Thus, the provision of evidence as a notarial act has signs of novelty both in terms of content (as it consists in the attestation of information by a notary) and in the way of performing the relevant notarial procedure (by inspecting certain objects, making video and audio recordings, etc.). In US legislation, we see a different approach of the legislator. In particular, it is possible to single out the following features of establishing the function of a notary public to provide evidence in criminal proceedings under the criminal law of the state of Arizona: А) The status of an affidavit certified by a notary public or another competent person as a document that is evidence in criminal proceedings is defined directly in the criminal law regulations. B) In certain cases provided for by law, the statement of facts related to criminal proceedings must be made by drawing up a document certified by a notary public or another competent person. C) The criminal law regulations define the procedural consequences of drawing up a document that is used as evidence in criminal proceedings.
 In comparing the approaches of the legislator of Ukraine and the USA to enshrining in the legislation the notary's powers to perform the function of providing evidence, it is worth paying attention to the following aspects. The proposed changes to the legislation of Ukraine on the notarial office relate exclusively to special norms regarding the performance of notarial acts and consist in granting the notary the right to perform an additional type of notarial certification of facts, namely, the fact that a person has provided certain information. At the same time, such changes are not ensured by corresponding changes in procedural and material norms of criminal, civil, economic legislation, etc. In the USA, on the other hand, the legislator focuses on the function of the notary in providing evidence by providing for the special legal status of the notarial document and its probative value directly in the criminal law regulations (which often also regulate issues of a procedural nature). At the same time, the procedure for performing notarial acts does not change.
 It was concluded that the approach provided for in the legislation of the United States of America is effective to consolidate the function of the notary in providing evidence, which is built with the help of the following basic legal structures: 1) provision in the criminal law and procedural norms of the special status of the notarial document; 2) determination of the notarial form of some procedural documents; 3) specification of the procedural consequences that arise for participants in criminal proceedings in case of drawing up/submitting or not submitting the corresponding document in notarized form; 4) provision in the criminal law regulations, which provide for criminal liability for giving false testimony, cases of giving false or contradictory testimony precisely when drawing up a notarial document, which is a document-evidence in a certain case. It was determined that the effective performance of this function by a notary of Ukraine should be ensured by the relevant provisions of special procedural and other legislation, in particular: a) changes to procedural norms (criminal procedural legislation, civil procedural legislation, etc.) regarding the possibility of securing evidence by a notary, as well as determining the legal status , the probative value of a notarial document (deed on provision of evidence, etc.) and the procedure for its use in the relevant court process or other proceedings; b) amendments to the Criminal Code of Ukraine regarding the establishment of criminal liability for providing false testimony or providing false information (data) to a notary when he performs the function of providing evidence; c) provision of a notarial form for certain types of procedural documents submitted as evidence of the presence/absence of certain circumstances, facts, etc. in the relevant categories of court cases and other proceedings.