Presumption of Circumstances Excluding Criminality of an Act: the Burden of "Negative" Proof

There is several groups of circumstances are subject to proof in criminal proceedings. Among them - the occurrence of a criminal offense and the guilt of the person in its commission. To prove guilt means to leave beyond reasonable doubt all possible variants of innocence. The law imposes on the prosecution the obligation to establish something opposite to the accusatory principle, circumstances which preclude criminal liability. Obviously, those that exclude the criminal unlawfulness of the act are the part of such exculpatory circumstances. Despite the fact that certain circumstances are subject to proof, their content is reduced to the denial of criminal unlawfulness. Given their mutual exclusivity, proof in one way or another amounts to establishing the absence of something, that is, a negative fact, a statement with specific logical properties. In addition, in the Criminal Code of Ukraine, circumstances excluding the criminal unlawfulness of an act are formulated rather as an exception. As a general rule, the burden of proving an exception rests on the party who invokes it. The relevant question is whether such a general approach also applies to circumstances excluding the criminal unlawfulness of an act. Accordingly, the purpose of the article is to show such circumstances as a separate and mandatory aspect of refuting the presumption of innocence. For this interpretation, general philosophical, dogmatic, comparative‑legal and other methods are applied.As a result, a specific antagonistic relationship between guilt and circumstances excluding the criminal unlawfulness of an act is argued. By virtue of such a relationship, these circumstances, under the rules of the presumption of innocence, must be considered present until the prosecution proves the opposite. Failure by the prosecution to fulfill this obligation strengthens the position of the defense, which benefits from the incompleteness of proof regardless of its causes. Therefore, the impossibility, incapacity or disregard by the prosecution of its evidentiary duty regarding the negative fact consisting in the absence of this type of exculpatory circumstances has the same legal consequences as unproven guilt and is a variety of such non‑proof. The inherently difficult task of proving the absence of something is further complicated by the need to convincingly refute unverifiable or extremely difficult‑to‑present features of the indicated type of exculpatory circumstances.