International Standards of Proof at the Stage of Court Consideration of Criminal Proceedings for Infringement of Intellectual Property Rights

Abstract

Based on the analysis of scientific works, decisions of the European Court of Human Rights, foreign and national law enforcement practice, the theoretical aspects and the practice of use of standards of proof «weighty conviction», «beyond reasonable doubt» in criminal proceedings for infringement of intellectual property rights have been studied. Based on the opinions of scholars and the positions of the courts, the problematic issues, in particular, the place of the balance of probabilities in the judicial standards of proof and criminal proceedings have been identified. Critical remarks on the existing approaches have been made and the consequences of the lack of unity of the approach to implementation of standards of proof in Ukraine have been outlined. Recognition by the Supreme Court of the permanent criteria of the standard «beyond reasonable doubt» does not secure against contradictory judgements/decisions in similar cases. Such decisions do not contribute to the principles of legal certainty and fairness; they lead to avoiding of liability by infringers, repeated infringement of intellectual property rights and introduction of counterfeit products/counterfeit content into turnover. For discussion in the scientific community and for taking into consideration by the practical workers, a number of the decisions of the Supreme Court, which could guide further implementation of judicial standards of proof on the basis of the established criteria, inner conviction and «common sense», has been proposed.