Блог

DOI: https://doi.org/10.33994/kndise.2022.67.23

Z. Toporetska

The article is devoted to the analysis of the principles of public management of the gambling market in Ukraine, which are aimed at protecting society and each player from the harmful effects of gambling in the form of gambling addiction.

The author highlighted and analyzed such principles of public administration as: protection of rights, legitimate interests, life, and health of citizens, ensuring the principle of responsible gaming, protection of personal data, combating gambling addiction (addiction). The author concludes that the principles of public gambling management proposed in the article should ensure the functioning of a civilized gambling market in Ukraine, where the interests of society, not business or the state, will come first: not filling the budget, getting maximum earnings from this business. and the creation of a legal alternative to those wishing to gamble, while maximizing control of the gaming process and protecting each player from the formation of gambling addiction.

Key words: principles, state regulation, state policy, gambling, gambler, addiction, protection of society.

DOI: https://doi.org/10.33994/kndise.2022.67.22

O. Baulin

The article deals with the issues of legal regulation of the exhumation of a human corpse and reveals the procedure for conducting an examination of a corpse related to the exhumation during the pre-trial (preliminary) investigation, provided for by the current legislation of Ukraine. The author draws attention to the existing problems in the modern investigative practice of conducting an examination of a corpse associated with the exhumation and suggests ways to solve these problems.

It is noted that the examination of the corpse associated with the exhumation is one of the most complex investigative (detective) actions since it consists of several successive stages (initiation, with the adoption and execution by the prosecution of the decision to conduct it; taking measures to address the decision on the exhumation of the corpse to execution; direct implementation of this decision, etc.), each of which is also structured according to certain organizational, procedural, tactical and forensic criteria and other aspects of investigative activity.

The author of the article draws attention to the significant shortcomings of the legal regulation of the current Criminal Procedure Code of Ukraine of 2012 on the procedure for examining a corpse related to exhumation. Errors of the investigator in choosing the type of examination of the corpse, as well as violation of the procedure established by law for exhumation and the penetration of the prosecution into the tomb (crypt), which are private property, without the consent of the owner or the determination of the investigating judge (court), may subsequently lead to recognition by the court the inadmissibility of using the results of this investigative (detective) action in court as evidence.

The author proposes ways to solve these problems. In particular, it is proposed in the decision-making mechanism for the exhumation of a corpse to determine the place of close relatives or family members of the deceased in order to guarantee their right to respect for family and private life, in accordance with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the implementation of which should not depend entirely on the discretion of the pre-trial investigation bodies and the prosecutor’s office. This provision does not meet the requirements of international standards, in particular, the decision of the European Court of Human Rights in the case of Solska and Rybicka v. Poland (Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, 20 September 2018). The early introduction of the amendments proposed by the author to Article 239 of the Criminal Procedure Code of Ukraine will bring the national procedure for examining a corpse related to exhumation closer to international standards.

Key words: pre-trial investigation, investigative (search) action, exhumation of a corpse, inspection of a corpse, body identification, forensic examination.

DOI: https://doi.org/10.33994/kndise.2022.67.21

N. Akhtyrska

The article is devoted to the analysis of international cooperation in the collection of evidence in electronic form, in accordance with the Second Additional Protocol to the Cybercrime Convention approved by the Council of Europe, which provides a legal basis for disclosure of domain name registration traffic, cooperation in emergencies, updates the video conferencing procedure.

The analysis of the Second Additional Protocol shows that it created a legal basis for direct cooperation with service providers, accelerated forms of cooperation for disclosure of subscriber information and traffic data, accelerated cooperation and disclosure of information in emergency situations, additional instruments of mutual assistance, data protection and other guarantees of the rule of law.

Taking into account the above and the provisions of the Second Additional Protocol, it is advisable to supplement Art. 541 of the CPC of Ukraine, the term “transferring party”, hould be understood as the state that transmits data in response to a request or within a joint investigation team in which the data service provider or organization providing domain name registration services, as well as a state that provides evidence on its own initiative without request. The purpose of the Second Additional Protocol was, inter alia, to increase cooperation in the fight against cybercrime and the collection of evidence in any criminal proceedings electronically using additional tools to facilitate mutual assistance and other forms of cooperation between competent authorities. According to the Second Additional Protocol, the following shall not be recognized as grounds for refusal of international cooperation:
1) the absence of such an offense in the legislation of the requested State;
2) another terminological definition of the act;
3) assignment of the act to another category of severity.

Key words: evidence in electronic form, data on the movement of information, transcription.

DOI: https://doi.org/10.33994/kndise.2022.67.20

G. Pishchenko, O. Soloveу

The article is devoted to the concept of bullying, its social danger. The main types of bullying and its characteristics are identified. The state and tendencies of bullying spread in Ukraine and abroad are studied. Peculiarities of foreign experience in combating bullying in schools are considered and appropriate proposals are given.

It is noted that today in the world there is no single point of view on the definition of “bullying”, however, in many sources the opinion of scientists coincides that it should be understood as harassment, aggressive persecution of one of the team members (students, colleagues, colleagues) by another person or group of persons, aimed at causing fear in the victim and subjugating it to himself. UNICEF defines bullying as the unwanted aggressive behavior of school-age children that results in the child being bullied by another child or group of children in order to humiliate, intimidate and demonstrate force, and the authors agree. The Ukrainian legislation gives a broader definition of bullying – Article 173-4 of the Code of Administrative Offenses of Ukraine “Bullying (harassment) of a participant in the educational process” states that “bullying (harassment), ie the actions of participants in the educational process, which are psychological, physical, economic, sexual violence, including the use of electronic means of communication committed against a minor or a minor or such a person against other participants in the educational process, as a result of which the mental or physical health of the victim may or may not have been harmed …”. Therefore, the typical features of bullying are: systematic action; the presence of the parties (offender (bully), victim and observers); actions or omissions of the offender, as a result of which there is physical or moral damage.

Suggestions for the prevention of bullying in Ukrainian schools: 1) in junior classes in the course “I explore the world” should pay attention to the dangers of child bullying (especially cyberbullying) in the school environment with the involvement of relevant professionals, for which it is advisable to show situations with facts of such violence and discuss them with children in order to avoid such in the future; 2) school psychologists should more often conduct psychological work with primary school students, especially with conflicting children; 3) distribute booklets “Violence – no!”

Among schoolchildren; 4) conduct mediation between the victim and the perpetrator, where it is necessary to consider and discuss the causes and consequences of the conflict, as well as make appropriate decisions aimed at eliminating the negative consequences and not repeating them in the future.

Key words: child abuse, bullying, violence, cyberbullying, harassment, physical
violence, mental violence.

DOI: https://doi.org/10.33994/kndise.2022.67.19

О. Samoilenko, Yu. Cherdyntsev

Based on the analysis of the nature of electronic (digital) documents, the article defines the theoretical and practical aspects of recognizing digital documents as a source of evidence in criminal proceedings.

It is noted that the carriers of electronic documents can be documents or documents-tangible evidence in terms of procedural significance. I state that the issue of the unity of the content of an electronic document and its form (carrier) is important from the standpoint of the admissibility of an electronic document as evidence. The primary material carrier and the factual data that are of interest to the process of proof must form an inseparable unity, provided that such a carrier, by its procedural nature, is a material evidence document.

And such a unity of content and form is not necessary, provided that the carrier of computer data is a document by its procedural nature. Separate recommendations are formulated aimed at ensuring the admissibility of an electronic (digital) document as evidence, in particular:
1) the admissibility of a document as a source of evidence will depend on the accuracy of compliance with the requirements for formalizing the results of an investigative (detective) action, in particular, regarding the description of the content of computer data, their packaging, typographical errors, signing of packaging material, etc.;
2) law enforcement officers must perform all their actions in compliance with the rules apply specifically to the circulation of electronic (digital) documents;
3) for a subject that performs actions to obtain (copy) computer data, it is mandatory to use an electronic signature. This will significantly simplify the decision about proof of the reliability and authorship of the electronic (digital) document.

Attention is also focused on the problem of recognition as a source of evidence of electronic documents containing a copy of unstable computer data from cyberspace. Even though the law declares equal conditions for the use of the original electronic (digital) document and its copy in the process of proving, the subject of proof should be as responsible as possible for their proper certification and apply measures aimed at ensuring that the original source is preserved unchanged.

Key words: proof, admissibility, electronic (digital) document, electronic media, computer data, factual data.

DOI: https://doi.org/10.33994/kndise.2022.67.18

P. Bilenchuk, V. Koloniuk, О. Kravchuk

The article is devoted to the basics of scientific and methodological support of knowledge (research) of the financial result of a transaction, including a credit transaction (liabilities), in the process of implementing constitutional, civil, economic, administrative, and criminal justice, law enforcement, and human rights activities.

It examines the pressing issues of the legislative definition of the term “income”,
the receipt of income as a result of the implementation of a credit transaction (liabilities), and also proposes a set of urgent measures aimed at stopping and preventing manifestations of tax discrimination against citizens of Ukraine.

The theoretical and conceptual apparatus and the means of scientific and methodological support for the knowledge of the financial result of the transaction are stated on the example of the implementation of a credit operation (debt compliance) and substantiated
their use in the professional legal activities of the law enforcement agencies.

Key words: knowledge in justice, law enforcement, and human rights activities; the financial result of the transaction; effective means and methods of knowing the financial result of a transaction, including a credit transaction (liabilities).

DOI: https://doi.org/10.33994/kndise.2022.67.16

O. Humin, A. Sobchuk

The article analyzes the provisions of the criminal procedural legislation regarding the institute of criminal offenses introduced in Ukraine, as well as the practice of their application. With the use of general scientific and special methods of scientific knowledge, proposals are formulated for: supplementing the Criminal Procedure Code of Ukraine with provisions for the adoption of an appropriate procedural decision by an interrogating officer in case of failure to establish the composition of a criminal offense; determination of the interrogating officer as the subject of the search, as well as filing a petition for the seizure of property.

The analysis of the provisions of the criminal procedural legislation regarding the institution of criminal offenses introduced in Ukraine, the practice of their application, made it possible to draw the following conclusions.

1. The domestic legislator needs to ensure the avoidance of violations of the rights and freedoms of man and citizen by law enforcement agencies, which may be caused by shortened investigation periods, duplication of certain provisions of the Code of Criminal Procedure of the Russian Federation, the absence and vagueness of instructions regulating the procedure for investigating criminal offenses. The gaps and contradictions identified by us in the criminal procedural law provide opportunities for abuse of their powers by authorized subjects, interpreting the uncertainty of the law in favor of the prosecution.

2. In order to increase the effectiveness of the investigation of criminal offenses in the form of an inquiry, it is advisable: to supplement the Code of Criminal Procedure of Ukraine with a provision on the adoption of an appropriate procedural decision by the investigator, if, based on the results of the information carried out for entering into the Unified Register of Pre-trial Investigations of the procedural actions, it does not establish the composition of the criminal offense; the definition in the Code of Criminal Procedure of Ukraine of an interrogating officer, along with an investigator and a prosecutor, the subject of a search, as well as filing a petition for the seizure of property, primarily to seize temporarily seized property during the arrest of a person.

Key words: criminal offense, criminal crime, pre-trial investigation, inquiry.

DOI: https://doi.org/10.33994/kndise.2022.67.15

Е. Lukianchykov, B. Lukianchykov, O. Mykytenko

The article deals with the process of origin and formation of inquiry as one of the forms of pre-trial (preliminary) investigation. Despite the long period of development of this institution, the search for ways to improve it continues, which attracts the attention of scientists and practitioners and indicates the relevance of the study.

The purpose of the article is to study the institution of inquiry as a form of pretrial investigation, its normative regulation and, on this basis, to develop recommendations for further improvement.

Investigation of crimes is considered as an information-cognitive process of activity of state bodies specially authorized for this purpose – inquiries, and investigations. In the historical aspect, the difference in the powers of these bodies was determined by the degree of complexity of the crime under investigation.

It is noted that the first mention of inquiry (search) is associated with the emergence of elements of the search process in Western Europe in the 13th century. Its essence consisted in the production of investigative actions, verbal inquiries, and covert observations. The production of formal procedural actions (interrogations) was not allowed.
Several provisions on the inquiry, enshrined in the Charter of Criminal Proceedings of 1864, were developed in the Code of Criminal Procedure of the Ukrainian SSR as of 1922. The bodies of inquiry were divided into three groups, which contributed to the delimitation of their competence. At this time, there is a separation of two types of inquiry: one of them preceded the preliminary investigation, and the second took place in cases where the investigation was not conducted.

It is noted that the further regulatory regulation of the institution of inquiry in the Code of Criminal Procedure of Ukraine in 1960 did not answer several questions.

The general concept of the body of inquiry is not formulated, and instead of procedural powers, which is quite natural, the bodies of inquiry are obliged to take operational-search measures.

The next stage in the development of the institution of inquiry is associated with the adoption of the current Code of Criminal Procedure of Ukraine. Even though the substantive law did not determine which criminal offenses were misdemeanors, Chapter 25 was singled out in the Code of Criminal Procedure, in which the norms on the peculiarities of the conduct of an inquiry were concentrated. They concerned non-essential moments of the investigation: the application of not all preventive measures, the prohibition of undercover investigative actions, and the peculiarities of the end of the inquiry.

At present, in the bodies of the National Police of Ukraine, investigation units have been created, which are entrusted with the function of investigating criminal offenses. According to statistics, the workload on investigators was reduced by a third, which allowed investigators to focus on investigating serious and especially serious crimes.

Attention is drawn to the expansion of methods for collecting information about misconduct until the moment when information about misconduct is entered into the Unified Register of Pre-trial Investigations and Sources of Evidence in the process of inquiry.

The conclusions suggest: to clarify the concept of “authorized persons of other units”, which may be entrusted with the obligation to conduct an inquiry; develop a procedural form of actions that can be carried out at the initial stage of the inquiry to clarify the circumstances of the offense; to continue the study of the issue of the relationship between the expert and the expert.

Key words: inquiry, a body of inquiry, investigator, a form of investigation, investigation, evidence, means of forming evidence.