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DOI: https://doi.org/10.33994/kndise.2020.65.23

O. Baulin

The article discusses the proof of improper performance of professional duties by a medical worker. It is noted that rare cases of criminal prosecution of medical workers for failure to perform or improper performance of their professional duties, which are reflected in judicial statistics against the background of numerous complaints of victims in health facilities, are caused by the lack of evidence for the prosecution.

According to the verdicts, evidence of the commission of these crimes are testimonies, documents and conclusions of examinations. The originals of medical documents are especially important, which, in order to be admissible in proof, should appear on the side of the prosecution in accordance with the law, including the one that regulates medical activities, storage and access to documentation, which may contain information that constitutes medical confidentiality.

It is recommended to involve specialists in the field of medicine to participate in procedural actions, as they expertly help the investigator to collect traces of the use of medicines and find out other issues. Commission forensic medical examination in cases of professional activity violations by medical workers is mandatory, as it solves the issue of the presence of defects in their actions.

It is noted that the Rules for the Commission of Forensic Medical Examinations, approved by the Ministry of Health of Ukraine in 1995, provide for the possibility of inclusion in the commissions, along with experts, specialists of other specialties, which was allowed by the Criminal Procedure Code of Ukraine in 1960. Since the Criminal Procedure Code of Ukraine of 2012 does not provide such an opportunity, the conclusions obtained by such commissions should not be used in making procedural decisions.

To solve this problem, it is proposed to fix in the Code of Criminal Procedure of Ukraine the procedure for attracting to conduct comprehensive and commission forensic examinations necessary to ensure their objectivity and completeness of specialists from among those who are not forensic experts.

The proposed changes to the law, as well as the recommended approach of the investigator and the prosecutor to determine the means of evidence will contribute to a better and faster investigation of the non-fulfillment or improper performance of medical duties by medical workers and will strengthen the prosecution’s position in court when considering cases of this category.

Key words: features of criminal procedural evidence; improper performance of professional duties by a medical worker; commission forensic medical examination

DOI: https://doi.org/10.33994/kndise.2020.65.22

L. Borysova, P. Bilenchuk, M. Malii, V. Vynohradova

The article is noted that investigators are not able to track all technological changes in the field of information technology and to study the traces of this type of crime, special attention is paid to the use of examination of computer systems and computer media (order of the Ministry of Justice of Ukraine dated 08.10.98, No. 53/5).

During the examination, it is advisable to solve the following problems:

– identification, that is the diagnosis of system processes and system behavior; system identification; multivariate analysis and reconstruction of the circumstances of the event place (by methods of mathematical analysis and computer simulation); diagnostics of the functional purpose of individual elements of a computer system, an intelligent hacking system; identification of the author of the computer text (they seem more important for the investigation and the court);

– non-identification, that is determination of the structure and functions of telecommunication networks and e-mail facilities; reconstruction and prediction of system behavior; determination of the reliability and resilience of computer systems; classifying information as software; classifying specific programs as harmful; definition of semantics and grammar of controversial texts; diagnostics and classification of printers, faxes, copy machines according to the text that was made from them.

It is advisable in the expert’s conclusion to display the facts of fixing information traces about the actions of malicious programs and search for seized files, parts of files that were specially removed at the beginning of the review or accidentally during the review; results of verification of system, protection, and application logs using documents that govern the rules for archiving logs; audit results (operators, privileges, objects).

To the conclusion, it is necessary to attach reports that were generated by the corresponding software, copies on machine media that were obtained during physical fixation. In the case of using a computer document as evidence, there is a need to specify: the means of collecting and processing information; type of system used; control tools that are built into the system for guaranteed detection and correction of errors, determining the level of professional training of individuals in the field of programming and working with computer equipment.

Key words: transnational computer crimes, examination, identification and nonidentification features.

DOI: https://doi.org/10.33994/kndise.2020.65.21

I. Pyrih

The article deals with the peculiarities of conducting an inspection of the scene of crime with the participation of specialists, the types of activity of specialists in carrying out this investigative (search) action. Possibilities of conducting on-site trace investigations and problematic issues related to the fixation of specialist research activities are identified. It is emphasized that the use of specialized knowledge, along with the use of modern scientific and technical devices is a prerequisite for conducting a site inspection. Their use is required not only during the detection, fixation and removal of traces, but also for the overall assessment of the location of the event, conducting preliminary investigations at the scene aimed at explaining the facts of the occurrence of certain traces, their location and time of occurrence, etc., which may indicate the mechanism of the event as a whole.

The definitions of the location review and its tasks have been analyzed. It is concluded that almost all scientists consider the task of reviewing the detection, fixation, removal and investigation of material objects at the scene. The consequence of these tasks is to obtain information about the mechanism of the crime and its participants. Most of these tasks can be solved only after a thorough study of the situation of the scene, which involves various specialists.

The problems that exist during the course fixation and the results of the site inspection are analyzed and highlighted. It is noted that the material objects discovered and removed during the investigative (search) action are described in the protocol and properly packed. Information on the technical means used during the investigative (search) activities and the results of their application are also contained in the protocols or annexes thereto. However, the results of on-site investigative actions conducted by both the investigator and the specialist involved and which form the basis for the investigation version are not always recorded in the protocol. Forensic recommendations for drafting the review protocol do not prohibit any opinions, comments or explanations from their participants. According to the author, the fixation of research activities, especially by a specialist, as well as their results in the form of categorical conclusions or versions, should be recorded in writing. The results of any investigations, judgments, versions, assumptions made by the specialist about the circumstances to be ascertained and proven, based on the use of his or her specialized knowledge and which may facilitate the investigation of the crime, should be recorded.

It is proposed to change the traditional approaches to the content of the investigative (investigative) action protocol. After a detailed description of the on-site investigations, with all the methods and tools used, the results and conclusions obtained after the investigations should be recorded in the protocol, even in probable form. Such conclusions will be the logical conclusion to a part of the protocol that describes ways to detect and remove traces. It is emphasized that the fixation of research actions is important in the conduct of forensic (mainly forensic) examinations, the objects of which are objects removed during the examination of the scene.

Key words: criminal proceedings, investigative (search) action, scene inspection, footprints, specialist, forensic examination.

DOI: https://doi.org/10.33994/kndise.2020.65.20

O. Tilmak

At the present stage of investigative activities modernization, there is a need to improve the methodological support of pre-trial investigation of criminal offenses. The investigating authorities of the pre-trial investigation of the National Police of Ukraine have a large number of methods in their arsenal; however, there are methods that have not found a theoretical and methodological justification and description. Among these methods the method of factual analysis it should be highlighted.

The author considers the factual analysis as a method of extracting facts (or individual elements, parts, parts of factual data) from an array of criminal offense data for their further aggregation (holistic association) and establishing the degree of evidence.

The article deals with an algorithm for applying the method of factual analysis during the pre-trial investigation of criminal offenses. It is determined the main tasks and the main conditions for their quality solution at the preparatory, main and final stages of the implementation of the method. It is noted that in the general context, the algorithm for the implementation of the method of methodological analysis occurs in five interrelated areas of activity of subjects of pre-trial investigation, namely: search-forming, primary factor analysis, program and factographic, presentation and secondary factor analysis.

It is noted that during the pre-trial investigation of a criminal offense, the application of the method of factual analysis will allow:

1) to clarify the components (parts, segments, elements) of the actual data due to the multidimensional presentation of logical connections;

2) to identify the components (parts, segments, elements) associated with a criminal offense;

3) to identify the relationship between the components (parts, segments, elements) of the actual data;

4) to identify various non-obvious (hidden) connections and graphically interpret the degree of intensity of these connections;

5) to investigate the internal structure of the components (parts, parts, elements) of the actual data;

6) graphically represent the relationship between the various components (parts, segments, elements) of the actual data;

7) conduct multidimensional comparisons of components (parts, parts, elements) – from two to four;

8) to identify the relationships of individual factors that have causal relationships;

9) to systematize a large array of data and their components (parts, parts, elements), etc.

Therefore, the expected results from the process of applying the method of factual analysis is that it will contribute to the factual proof that the available body of evidence about the facts and circumstances of the criminal offense are appropriate, permissible and reliable evidence; interconnected and sufficient to make an appropriate procedural decision.

Key words: factual analysis, method, pre-trial investigation, directions of implementation, evidence, criminal offense.

DOI: https://doi.org/10.33994/kndise.2020.65.19

I. Basysta

This publication is the author’s attempt to conduct academic and practical research on the intersection of civil and criminal procedural law of Ukraine to answer the following key questions: can the fact of inaction of an investigator and the head of investigations department in a criminal proceeding on theft, established by the court, be a basis for them to bear liability to the victim of the crime for the damages caused by it, equal to the value of the stolen property? What are the differences in establishing the damages caused by a crime and of the damages caused by investigators’ inaction? Is it possible to apply part six of Article 1176 and Article 1177 of the Civil Code of Ukraine in an integrated fashion in the cases on collecting property damages from the state where such damages are caused to the property of a legal entity as a result of a criminal offence, if the perpetrator was never identified due to inaction of a pre-trial investigation body?

It was established that only under the combination of following conditions: 1) it was proven based on the established procedure, that there was a fact or facts of inaction of officials in the pre-trial investigation in a criminal proceeding; 2) fact(s) of inaction of officials show(s) evidence of damages caused by their inaction, that is, there is a causal relationship between such inaction and the damages, we can discuss the existence of the grounds for the investigator and investigations department head to be held liable to the victim for damages, the amount of which needs to be supported by evidence. With absence of such element of the delict as the causal relationship, one should state that it is not a legally defined civil offence.

The claimant with a claim on recovering damages based on Article 1173 of the Civil Code of Ukraine needs to prove both the inaction itself, and the presence, nature, and amount of damages, as well as the causal relationship between the two, which is the definition of the civil offence.

The value of the stolen property is the damage caused by the crime, and must be compensated by the person who caused it, not by the defendants.

The Criminal Procedural Code of Ukraine provides for the guarantee of indemnification of damages to the victim, who in the criminal proceeding, if he or she files the relevant claim, acquires the status of a civil claimant. The burden of proving the type and amount of damages caused by the criminal offence is on the prosecution (the prosecutor, the body that conducts pre-trial investigation).

In the cases on indemnification by the state for damages caused to the legal entity due to a criminal offence, if due to a pre-trial investigation body’s inaction the perpetrator who committed the crime was not identified, we cannot apply part six of Article 1176 and Article 1177 of the Civil Code of Ukraine in an integrated fashion, and the same was confirmed by the Grand Chamber of the Supreme Court in the ruling as of September 3, 2019, for the case No. 916/1423/17, proceeding No.12-208гс18.

Key words: established fact of inaction, investigator, liability for damages to the victim, placing responsibility on the defendants, damages caused by the crime, damages from inaction in criminal investigation.

DOI: https://doi.org/10.33994/kndise.2020.65.18

E. Lukianchykov, B. Lukianchykov, S. Petriaev

The investigation of crimes, as an informational-cognitive process, takes place in the face of active opposition from persons who take all measures to evade responsibility. The humanization processes in the field of criminal justice did not have a positive impact on the state of crime and the improvement of the work of law enforcement agencies in the disclosure and investigation of crimes. The crime detection rate in 2019 was 43.2 %. Despite the significant expansion of the tools of cognitive activity for solving crimes, in connection with the adoption of the new Criminal Procedure Code of Ukraine in 2012, a number of problems remain unresolved for scientists and practitioners. Foremost, this is deals with new procedural institutes, one of which is the institute of covert investigative (search) actions, which requires further scientific research, which determines the relevance of this article.

The problem of covert investigative (search) actions (in some countries they are called special) attracts the attention of scientists and practitioners who have created a reliable scientific foundation for further research. The most significant contribution to the development of investigative actions belongs to such domestic and foreign scientists as V. P. Bakhin, R. S. Belkin, V. I. Halahan, A. Ya. Dubynskyi, V. Ye. Konovalova, A. M. Larin , I. M. Luzhin, N. A. Pohoretskyi, S. A. Sheifer, V. Yu. Shepitko, etc. At the same time, a number of problematic issues require further research and resolution.

The purpose of the undertaken research is to establish the essence of covert investigative (search) actions, determine their list and place in the system of means of generating judicial evidence, the subjects of their conduct and execution of the results. The attention is focused on the duties of state bodies to protect citizens and the state from illegal encroachments. To do this, they must use the entire arsenal of tools and methods for obtaining and storing information. The Criminal Procedure Code of Ukraine in 2012 significantly expanded the tools of cognitive activity of the investigator by unspoken investigative (search) actions. It is proved that they are not a kind of operational-search measures, despite the fact that the production methods of the first and second use the same methods and techniques for working with regulated by independent laws, and are carried out in the form prescribed by law.

The authors consider the points of view on the list of covert investigative actions, the order and subjects of their conduct, the procedure for fixing their process and results, as well as the use of the information obtained in the process of proving.

The conclusions propose the definition of covert investigative (search) actions substantiates the expediency of fixing the list of such actions in the corresponding article of the Code of Criminal Procedure of Ukraine, substantiates the feasibility of delimiting the competence of investigators and detectives.

Key words: investigative actions, covert investigative (search) actions, investigation, criminal proceedings, investigator, operational units, prosecutor, procedural controller, information.