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ENSURING THE RIGHTS AND LEGAL INTERESTS OF THE VICTIM IN CRIMINAL PROCEEDINGS IN UKRAINE

DOI: https://doi.org/10.33994/kndise.2022.67.14

N. Nestor

The article is devoted to ensuring the rights and legitimate interests of the victim, the victim of a criminal offense in modern criminal proceedings in Ukraine. The problems in the mechanism of ensuring the rights and legitimate interests of the victim of a criminal offense are highlighted and ways to solve these problems are proposed.

The article describes the provisions of the current criminal procedure legislation of Ukraine, which determine the legal status of the victim, his representative, and legal representative in the criminal process. Attention is focused on their procedural rights. It is noted that the realization by the victims of certain procedural rights and legitimate interests during the pre-trial investigation and in court is problematic since the national system for ensuring the rights and legitimate interests of the victim of a crime does not meet international standards.

The author of the article draws attention to the existing legal conflict in determining the place and role of the victim as a participant in criminal proceedings. According to some provisions of the Criminal Procedure Code of Ukraine, in some cases he belongs to the side of the prosecution, according to others, he does not belong to the parties to the criminal process, remaining an independent participant in the process. Such a provision detracts from the role of the victim, in violation of the principle of competitiveness, puts him in an unequal position with the defense, and gives rise to a formal attitude of investigators, prosecutors, and judges towards the realization of his rights and legitimate interests. The examples of the judicial practice of the Supreme Court show the shortcomings of the legal regulation of procedural relations with the participation of the victim as the successor of the deceased victim of the crime.

The impossibility for the victim is critically assessed: to appeal against the court during the pre-trial investigation of certain procedural actions and decisions of the investigator, the prosecutor, on which the admissibility of the evidence collected by the prosecution depends; take advantage of free legal assistance; receive compensation from the state budget for the harm caused to him by the crime.

Changes to the current legislation are proposed to improve the system for ensuring
the rights and legitimate interests of the victim.

Key words: criminal proceedings, victim, representative of the victim, rights and
legitimate interests, securing a criminal offense.

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PROBLEMS OF APPOINTMENT AND CONDUCTING THE FORENSIC EXAMINATION IN THE INVESTIGATION OF CRIMINAL OFFENSES UNDER ART. 263-1 OF THE CRIMINAL CODE OF UKRAINE

DOI: https://doi.org/10.33994/kndise.2022.67.13

S. Peretiatko

Based on the analysis of scientific points of view and practice of investigating the illegal manufacture, processing, or repair of firearms or falsification, the illegal removal or change of its marking, or the illegal manufacture of ammunition, explosives, or explosive devices, typical types of forensic examinations carried out in such criminal proceedings are identified. The values of the selected forensic examinations for criminal procedural proof have been established, typical errors in their appointment and conduct have been identified, ways to prevent and solve them have been proposed.

The effectiveness of the expert opinion and its use by the investigator depends not only on the legality and validity of his preparation by the expert, the solution of all the necessary questions that were put before him/her but also on the admissibility and belonging of obtaining evidence during investigative (search) actions, based on which expertise is being conducted. Prevention and elimination of these negative factors will contribute to the prevention of expert errors, will contribute to the effectiveness of the investigation of crimes in this category.

Key words: forensics examination, investigation, firearms, ballistics, explosive
devices.

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THE USE OF “SMART” TECHNOLOGIES IN FORENSICS

DOI: https://doi.org/10.33994/kndise.2022.67.12

R. Pertsev

In the modern world, technology continues to develop, this development is necessary for various industries, including police investigations. Thus, with the proper use of “smart” technologies, law enforcement agencies can predict, prevent and solve crimes.

This paper discusses the process of obtaining and identifying important information that digital devices located at the crime scene can provide the police investigation. After analyzing which, the investigating authorities conducting pre-trial investigations can use it to identify and catch criminals, and in the future even to prevent crimes from happening.

The issue of protecting privacy in the Internet era and the regulation at the legislative level of the work of investigative and law enforcement agencies in the field of digital technologies is touched upon.

As a result of the study, the author concludes that with the advent and introduction of “smart” technologies, increasing the professionalism of police officers requires constant updating of knowledge and skills, the exchange of innovative developments with specialists from other countries, mastering the latest methods, mechanisms, and tools for conducting forensic research.

Forensic investigators involved in crime scene investigations must be able to recognize and professionally retrieve hybrid (digital) devices to preserve possible information stored in them for further digital forensics.

Key words: smart technologies, digital devices, digital forensics, privacy, police investigation, forensic intelligence.

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THE UNITED NATIONS IN THE MODERN WORLD AND ISSUES OF FORENSIC EXAMINATION IN ITS ACTIVITIES

DOI: https://doi.org/10.33994/kndise.2022.67.11

T. Kryvak

The role of forensic science and the work of an expert in the activities of the United Nations is considered. The author analyzes the main and most popular areas of involvement of forensic experts, the requirements for their qualifications, as well as guarantees for the protection of their activities. It is noted that the United Nations is increasingly emphasizing the importance of further increasing the role of forensic science in the administration of criminal justice and the need to further develop the international relations of forensic institutions in the world.

It is concluded that the considered United Nations approaches to the issues of forensic examination and examples of the use of forensic expertise in the activities of this Organization and the participating States in the implementation of the provisions of the United Nations Charter and international treaties are not exhaustive.

Every year the need for forensic experts at the level of the United Nations and other international organizations is increasing, including the need for specialists in new areas of forensic research. In addition, the requirements and standards for forensic experts are being tightened, taking into account the challenges of the time and realities, their methods of work are being improved, the principles of international cooperation are changing, which, in turn, will indicate an improvement in the quality of forensic activities in general.

Key words: forensic examination, forensic and expert field, United Nations.

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CURRENT PROBLEMS OF LEGAL REGULATION OF THE STATUS OF A SPECIALIST IN THE CONTEXT OF INTRODUCING CHANGES TO THE CRIMINAL PROCEDURAL LAW

DOI: https://doi.org/10.33994/kndise.2022.67.10

S. Kukhareva, D. Kalnoi, A. Kaminskyi

The article deals with the latest changes in the Criminal Procedure Code of Ukraine regarding the powers of a specialist as a participant in criminal proceedings.

The issue of involving a specialist in criminal proceedings when copying information and taking readings of technical devices and technical means that have the functions of a photo, filming, video recording or means photo, filming, video recording has been studied.

According to the Criminal Procedure Code of Ukraine, a specialist is one of the other participants in criminal proceedings and assists the parties, the victim, the court in the implementation of the tasks of criminal proceedings through the use of his special knowledge and skills in the use of technical or other means, as well as by providing them with advice, explanations, references and conclusions during the pretrial investigation and trial on issues, the clarification and solution of which require special knowledge and skills.

The investigation of mass cyber-attacks on web resources, databases of state authorities and local governments, etc., especially those committed in wartime, requires an appropriate response, in particular, legal regulation of the interaction of specialists with other participants in the criminal process to help increase the effectiveness of such investigation.

The involvement of a specialist in accordance with the Criminal Procedure Code of Ukraine is mandatory both in the case of copying information from a computer system for the owner of the property (if the corresponding computer system is temporarily withdrawn) and in the case of copying information for the investigator or prosecutor (if the corresponding computer or other system remains with its owner).

It is concluded that it is expedient to change the wording of the relevant requirements of the legislation, leaving the investigator or the prosecutor the right to determine the need to involve a specialist or the possibility of carrying out the specified copying without his participation.

It is advisable to amend the legislation in order to secure the requirement for mandatory motivation by the court of refusal to take into account the explanations, and consultations provided by a specialist involved in the defense.

It also seems necessary to determine the basic requirements for the content of a specialist’s certificate (for example, the name of the criminal proceedings and its registration number; information about the relevant means present during the taking
of testimony, and the period of time for which such testimony was taken).

Key words: specialist, reference, explanation, copying of information, photography, video recording, testimony, pre-trial investigation, investigator.

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ON “CORRECT” CLASSIFICATION OF TASKS OF FORENSIC EXAMINATION

DOI: https://doi.org/10.33994/kndise.2022.67.09

О. Humenskyi

To date, the issues of classification of the tasks of forensic examination are debatable, there are several points of view on the problems covered in the article, and all of them are related to the differentiation of these tasks, that is, ultimately, to the establishment of the boundaries of the methods that are used to solve them.

Classification of expert tasks is conducted on the basis of the “vector of induction of expert tasks” (hereinafter referred to as VIET), which is directed from the most “private” task of establishment of individual identity to the most universal task of establishing causative connections of the explored objects and phenomena with the purpose of establishment of a mechanism of an incident; as well as from the establishment of particular features of an individual object, as the basis for achieving the goal of the study, to the determination of the maximum possible set of all features and properties of several studied objects and their relationships.

The division of tasks of judicial examinations based on VIET enables their “correct” classification, in that sense, that vector is those “rule”, by which monosemantic classification of tasks is real depending on their position on the scale of this vector and, as a result, monosemantic attributing of any concrete expert task to the certain kind.

Certain by us: 1) multitude set of identification tasks with a subset of group identification of the first type; 2) classification tasks; 3) group identification of second type (classification and diagnostic tasks); 4) diagnostic (with a subset of causally-diagnostic); 5) situational tasks of forensic examination.

The following definitions have been adopted.

Identification is the process of establishing (excluding) the identity of the identified and identifying objects by a combination of general features. Considering the influence of the ratio of general and features when making a decision about identity, we dwell on the position that identification can be individual and group.

Expert diagnostics is a scientific method of cognition, the essence of which is to recognize the typical state of the diagnosed object, as well as the presence or absence of a deviation from the norm.

Classification is the assignment of an object to one of the established classification groups. The group, judging from the above definition, must be strictly defined.

Classification can be based on groups of different degrees of generality, but it does
not cease to be a classification.

Situational examination – a type of examination that establishes the mechanism of an incident in its tracks, objects, and environment and is implemented as part of comprehensive studies.

Key words: classification of tasks of forensic examinations, vector of induction of expert tasks, identification, classification, group identification of second type, diagnostics, situational tasks.

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INFORMATION AND TECHNICAL AND FORENSIC PROBLEMS OF IMPROVING THE ACTIVITIES OF EXPERT INSTITUTIONS

DOI: https://doi.org/10.33994/kndise.2022.67.08

O. Zherebko

The priority activity of state law enforcement agencies in combating crime and, in particular, investigating and solving serious crimes is to increase the efficiency and effectiveness of the actions of each of the participants in this process. An important role in the implementation of such a complex task of the state belongs to forensic institutions and their staff. The article is devoted to information and technical and forensic problems of improving the activities of forensic institutions. The conditions for the improvement and development of forensic activities are determined.

It is concluded that the study of the issues of using the modern scientific and technical potential of expert activity creates conditions for its improvement and development. This is largely due to the fact that the use of modern scientific and technological achievements in forensic activities, and with its help in the detection, investigation and prevention of crimes, does not occur automatically, but requires proper study and support.

Ways to improve forensic activities are defined: increasing the level of technical and forensic support for the disclosure, investigation and prevention of crimes; increasing the level of efficiency of the participation of employees of expert units in the conduct of investigative actions and operational-search activities; improvement of research activities for the development, development and implementation in practice of new technical and forensic tools, forensic methods and techniques; improvement of expert research methods, forensic accounting, analytical and organizational work based on the introduction of modern automated systems and technologies; generalization and dissemination of best practices and analysis of expert practice on the effectiveness of methodologies for the study of physical evidence, the use of methods of technical and forensic support for the disclosure, investigation and prevention of crimes; improving the selection, training and placement of employees of expert units, strengthening service and performance discipline; intensification of interaction between the expert service of the Ministry of Internal Affairs of Ukraine with other divisions of the internal affairs bodies, as well as with other law enforcement agencies, including at the interstate level.

Key words: expert, expert research, handwriting examination, examination of documents, photo-portrait examination, examination of phonograms.

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DEVELOPMENT OF A PROFESSIONAL STANDARD “FORENSIC EXPERT” AS ONE OF THE AREAS FOR IMPROVING FORENSIC ACTIVITIES

DOI: https://doi.org/10.33994/kndise.2022.67.07

A. Poltavsky

The article is devoted to the problem of insufficient normative regulation of the relevant education, skill level, training, competencies and competencies of forensic experts. The current regulations are analyzed, in particular, the Law of Ukraine “On Forensic Expertise”, approved classification characteristics for the profession “Forensic Expert”. The latter were approved in 2007 and have not changed to this day, despite numerous changes in Ukrainian legislation.
From this point of view, publications were analyzed that analyze the regulation of education and requirements for the profession of Australia, Canada, the USA, Germany, Japan and other countries where professional standards (corporate, industry, regional, national and international) are developed, implemented, improved in the field:
– work to form and maintain a high professional level of employees, which meets the needs of production, determine the needs for workers and the level of their professional training;
– education for the development of educational standards and vocational training programs, methods for assessing and attesting the results of vocational training, effective and reasonable selection of personnel.
The use of professional standards, according to foreign politicians, practitioners, experts and researchers, is the engine for the development and functioning of both the labor and education sectors.
In connection with this, Ukraine did not stay aside either. Several normative acts of Ukraine, in particular the Code of Labor Laws, the Laws of Ukraine “On Education” and “On Vocational Education” were amended and supplemented, due to which the term “professional standard” appeared in the legal field.
A comparative analysis of the information contained in the classification characteristics for a profession and professional standards showed that the information in the standard is the most voluminous and detailed. The main differences between the characteristics and standards are that the latter are developed in accordance with the national and sectoral qualification frameworks, which, in turn, comply with the European qualification framework developed within the framework of the Bologna process, to which Ukraine joined in 2005. There is no professional standard “Forensic Expert” in the state, which makes it impossible to update the requirements for education, training programs, specialty passports, etc.
There is no professional standard “Forensic Expert” in the state, which makes it impossible to update the requirements for education, training programs, specialty passports, etc.

Key words: qualification, qualification characteristics, education, training, professional standard, forensic expert.

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ON THE CONCLUSION OF THE SPECIALIST

DOI: https://doi.org/10.33994/kndise.2022.67.06

L. Bielik

The article is devoted to the issues of modern legislative regulation regarding the grounds and requirements for the execution of a conclusion by a specialist in criminal proceedings. The scientific works of outstanding domestic and foreign scientists are analyzed and their great contribution to the study of this topic is indicated.
Since they conduct a fundamental analysis of the domestic and foreign heritage on this issue, they help to determine the further debatable direction and carry out the subsequent scientific search.
Articles of the Criminal Procedure Code of Ukraine and the Criminal Code of Ukraine regarding the requirements for drawing up a written conclusion of a specialist, as well as articles on the responsibility of an expert and a specialist for introducing false information into the conclusion of the study prepared by them, have been carefully researched and analyzed, and the boundaries of the emergence of a certain responsibility are indicated. It is indicated that the expert’s conclusion as one of the sources of evidence in the case allows, at the appropriate scientific level, to objectively and fully solve the designated tasks that require the use of special knowledge.
The norms of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine in connection with the adoption of the Law of Ukraine “On Amendments to Certain legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses” are analyzed. It is indicated that a written conclusion of a specialist can be obtained to clarify the circumstances of the commission of a criminal offense before entering information into the Unified Register of Pre-trial Investigations. It is also indicated that the conclusion of a specialist is recognized as a procedural source of evidence in criminal proceedings on criminal offenses with the proviso that such a procedural source of evidence cannot be used in criminal proceedings for a crime, except on the basis of a ruling by an investigating judge, which is issued at the request of the prosecutor. A comparative analysis was carried out regarding the content of the conclusions of the expert with the conclusions of the specialist. The general and distinctive positions in the written content of the conclusions of a specialist and an expert are indicated.

Key words: specialist, expert, the conclusion of a specialist, the conclusion of
an expert, criminal offense

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FUNDAMENTAL PRINCIPLES OF FORENSIC EXPERT ACTIVITY:THEORETICAL AND PRACTICAL ASPECTS

DOI: https://doi.org/10.33994/kndise.2022.67.05

V. Khomutenko, A. Khomutenko

The article provides an interpretation of the term “principle of forensic activity”. Theoretical approaches to the essence and legal nature of the principles of “legality”, “independence”, “objectivity”, “completeness” are disclosed. A comparative analysis of the principles of forensic activities defined in the bills submitted to the Verkhovna Rada of Ukraine. It has been established that the list of such principles is proposed to be expanded, and some of their names to be clarified. The study of the practice of forensic science activities allowed us to give examples of violations by forensic experts of certain fundamental principles. A systematic analysis of domestic legislative acts, methods for conducting forensic economic experts on relevant issues, specialized literature, as well as expert practice, made it possible to make separate proposals for improving the theoretical and legal foundations for conducting forensic examinations. It is substantiated that the expert opinion should contain a detailed description of the research conducted by the expert, the conclusions drawn from their results, reasonable answers to questions that are asked to the expert, however, his conclusion on them cannot go beyond the expert’s special knowledge in accordance with Part 4 of Art. 101 Criminal Procedure Code of Ukraine. It has been established that conducting a comprehensive, complete study and providing a reasonable and objective conclusion, in accordance with Art. 12 of the Law of Ukraine “On Forensic Expertise”, the main duty of an expert, for which the forensic expert must examine all objects submitted for examination in full, using all available methods of expert research recommended for practical application, namely: economic expertise of issues of causing material damage (registration code 11.0.22), Methods for investigating issues of misuse of budgetary funds by forensic economic expertise (registration code 11.0.12.2003).

Key words: forensic examination, principle, legality, independence, objectivity,
completeness, damage, the state budget.