Special pre-trial investigation (in absentia) in the criminal process of Ukraine: evidentiary nature of grounds, subject of proof and judicial control

The article examines special pre-trial investigation (in absentia) in the criminal process of Ukraine through the prism of the evidentiary nature of the grounds for its application, the subject of proof and judicial control. The relevance of the topic is determined by the significant increase in the importance of this institution under the conditions of the armed aggression of the Russian Federation against Ukraine, the temporary occupation of part of the territory of Ukraine, the presence of suspects in the territory of the aggressor state, or their evasion from pre-trial investigation bodies and the court. It is substantiated that special pre-trial investigation (in absentia) is not only an exceptional procedural form, but also a specific evidentiary regime. The article defines the subject of proof of the grounds for special pre-trial investigation, which includes: the reasonableness of suspicion; proper notification of the person of suspicion; summonses carried out in accordance with the procedure prescribed by law; establishment of the suspect’s location or procedural unavailability; the existence of factual data on evasion; the person’s actual awareness or the state’s taking of all reasonable and available measures to inform the person; and ensuring a real right to defence. The necessity of differentiating the standards of proof of the grounds for special pre-trial investigation is demonstrated. Particular attention is paid to the digital form of factual data that may be used to confirm notification, actual awareness, location or evasion of the suspect. It is substantiated that such data do not constitute an independent type of evidence and must be assessed according to the general criteria of relevance, admissibility, reliability and sufficiency. The article concludes that judicial control over special pre-trial investigation must be substantive, active and evidence-oriented. The author proposes directions for improving legislation and practice aimed at increasing the evidentiary certainty of the grounds for in absentia proceedings, strengthening the reasoning of investigating judges’ rulings, ensuring the procedurally correct use of digital information, and safeguarding a real, effective and practical right to defence.