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DOI: https://doi.org/10.33994/kndise.2022.67.04

V. Tertyshnyk, V. Varava

The article reveals the problems of forensic examination in the integrative doctrine of evidentiary law, taking into account the provisions of the Constitution of Ukraine, procedural legislation, the case-law of the European Court of Human Rights, and judicial precedents of the Supreme Court of Ukraine. In the context of the formation of its doctrinal principles and individual legal institutions, we propose to consolidate here the provisions of the following content: “The evidence is the factual data obtained in accordance with the procedure provided by law that meet the requirements of belonging to the case, admissibility and reliability”.

Factual data obtained during the conduct of expert studies, investigators or other procedural or regulated by separate laws of research actions can be used in legal evidence, provided that the source and method of their obtaining, the evidence obtained, are not “fruits of a poisonous tree” are clarified and can be verified. The peculiarities of the expert’s conclusions and written conclusions of specialists are disclosed, and a simplified procedure for assigning examinations and the formation of the results of expert research is proposed.
It is concluded that it is necessary to adopt a universal legislative act – the “Code of Evidence”. It is proposed to include in its conceptual model the norms of the general and special parts. In the general part, at the integrative level, intersectoral characters should be set out, norms common for all forms of legal proceedings, which will determine the concepts and types of evidence and the criteria for their admissibility. In a special part, modern norms should be laid down – standards of evidentiary law governing the receipt, research, verification, evaluation, and use of evidence, the production of forensic examinations.
It is proposed to differentiate art and humanitarian examination, the need to expand the types of examinations and the formation of the subject and features of such independent examinations as forensic and humanitarian, legal, stock market examination, environmental and land examination are being bypassed.

Key words: examinations, expert conclusions, evidence, evidentiary law

DOI: https://doi.org/10.33994/kndise.2022.67.03

N. Nestor, O. Baulin

The article discusses the procedure for conducting a forensic examination in criminal proceedings provided for by the current legislation of Ukraine. It is noted that when proving the circumstances of criminal offenses, not a single pre-trial proceedings or trial can do without such a source of evidence as an expert opinion. The role of forensic examination as an investigative (search) action and the significance of its results during pre-trial investigation and trial are constantly increasing. At the same time, investigative and judicial practice is full of repeated and additional examinations, facts of abuse by the parties in the application of the norms of the institute of forensic examination, as well as examples of unsuccessful use of the possibilities of forensic examination.

The authors of the article draw attention to the significant shortcomings of the legal regulation of the procedure for appointing and conducting a forensic examination in criminal proceedings, which has been modified three times since the introduction of the Criminal Procedure Code of Ukraine in 2012. Violation of the procedure established by law for involving a forensic expert in a criminal process may subsequently lead to the recognition by the court of the inadmissibility of using the expert’s opinion as a source of evidence. The authors propose ways to solve these problems.

In particular, it is proposed to find a place in the decision-making mechanism for the production of a forensic examination for the victim, the implementation of whose procedural rights has become completely dependent on the discretion of the pre-trial investigation bodies and the prosecutor’s office. This position of the victim does not meet the requirements of several international documents on the treatment of victims of crimes. The early introduction of the amendments proposed by the authors to the Criminal Procedure Code of Ukraine will bring the legal institution of forensic examination in Ukraine closer to international standards.

Key words: criminal proceedings; forensic examination; the procedure for appointing a forensic examination; conducting a forensic examination; special knowledge; procedural action; investigative (search) action; proof; source of evidence; expert opinion.

DOI: https://doi.org/10.33994/kndise.2022.67.02

O. Ruvin, A. Poltavskyi

The article shows the issues, which is the inadequate regulation of the functioning of methods of conducting forensic examinations.

Thus, at the time of creation in 2008 of the Register of methods of forensic examinations, the methodology was defined as the result of scientific work, which contains a system of research methods used in the course of successive actions of the expert to perform a specific expert task. Therefore, the Register included methods (sections, subsections) of manuals, methodological recommendations, final reports on research work, etc. as methods. These works were not methods. At that time, the concept of methodology as an official publication was not defined.

In the years 2010-2012 and the year 2020, research was conducted, during which the concepts of expert methodology, expert methodology as an official publication, their content and structure were defined. In 2013, the primary regulatory framework governing the operation of the Register was improved. At the same time, there was no audit of the methods for their compliance with the established content and structure, which is a consequence of the lack of normative established procedure for testing and revision of methods.

The authors propose to take as a basis the established procedure for verification and revision of normative documents, that is, state standards and codes of established practice, regulated by the state standard of Ukraine.

In accordance with the established procedure for standardization, regulatory documents are checked at least once every 5 years, unless there is a need to check them earlier. Based on the results of the inspection, a decision may be made on:
– the use of the normative document without revision:
– the use of the regulatory document with restriction of scope;
– the cancellation of the normative document;
– the revision of the regulatory document;
– the development of the project of changes to the regulatory document.

Subsequently, the National Standardization Body based on the results of the
inspection:
– issues an order to cancel the regulatory document;
– issues an order in which it determines the conditions of application and the scope to which the requirements of the regulatory document do not apply;
– considers a proposal to revise the regulatory document or develop changes to
the National Standardization Work Program.

The revision of the normative document can be made if it is necessary to make
changes in more than 50% of its volume.
It is suggested to regulate the procedure of functioning, including verification and
revision of methods, DSTU “Forensic expert activity. Rules for the development,
presentation, and design of methods of forensic examinations”.

Key words: normative regulation, inspection, revision, forensic examinations, functioning of expert methods.

DOI: https://doi.org/10.33994/kndise.2022.67.01

O. Kataraga, P. Petkovich, V. Prisekaru

In this article, the authors deal with a topic that does not have a single approach
at the international level. The issue concerns the impossibility conclusion formulated
by the forensic expert in the expert repor t, which is often confused with the refusal.

The authors provide gnoseological evidence regarding the delimitation of these two
forms of answers offered to the judicial process by the expert.

The importance of the issue discussed stems from the very role of forensic ex-
pertise in the administration of justice and to add value in this regard.

Keywords: forensic expertise, methodical study, conclusions of the expert,
impossibility, refusal, explanation, the result of the research.