Блог

DOI: https://doi.org/10.33994/kndise.2019.64.26

O. V. Plakhotnik

The purpose of this article is to reveal the possibility of using game theory in the criminal process of Ukraine. The article deals with the adversarial principle of the criminal proceedings. The presence of conflicting interests of both sides gives rise to the procedural interests of each of them. Defending legal positions with due regard for procedural interests leads to rational behavior of the both sides. Such activities can be called strategic, and the process of achieving the interests of the both sides in criminal proceedings is the strategy of the sides to criminal proceedings. Both sides in criminal proceedings will develop optimal strategies for achieving the appropriate procedural goal. The choice of the optimal strategy of the prosecution or the defense allows you to use game theory, as the theory of mathematical models for making optimal decisions in the context of a divergence of interests of the both sides in criminal proceedings. The article provides a definition of strategy and a definition of Game Theory. Conflicts that are considered in game theory are compared by analogy with a dispute in a criminal proceeding. The work of B.D. Leonov “The role of the theory of strategic behavior (game theory) in the regulation of the fight against terrorism” about the fact that game theory helps to choose the best strategies, taking into account ideas about other participants, their resources and possible actions. The work of A.A. Shiyan “Game Theory: Basics and Applications in Economics and Management” about the need to master the skills and abilities to apply game theory. The work of O.Y. Baev “Selected Works on the Problems of Criminalistics and Criminal Procedure” about the fact that, from the standpoint of the categorical apparatus of game theory, the adversarial principle completely fits into the so-called antagonistic game of two players. It was analyzed the work of O.G. Yanovskaja “Effective implementation of the functions of the prosecution and defense as a condition of adversary criminal proceedings” about the strategy and tactics of advocacy from the perspective of using the concept of solving game theory. It was analyzed the work of Y.A. Tsvetkov “The game of justice: How to increase the gain?” which examines the practical application of game theory in criminal proceedings using the Nash matrix and algorithms for making optimal decisions. It is concluded that the adversarial principle can be applied using ready-made mathematical models to make optimal decisions in criminal proceedings in order to achieve Nash equilibrium and, in general, increase the predictability of the outcome of criminal proceedings.

Key words: game theory, criminal proceedings.

DOI: https://doi.org/10.33994/kndise.2019.64.25

O. Plakhotnik

The purpose of this article is opening of necessity of application of ECHR practice in the decisions of the investigating judge to increase the value of judicial control over the observance of rights, freedoms and interests of individuals in criminal proceedings. The article includes analysis of the current legislation on the definition of judicial review at the pre-trial investigation stage. Judicial control is revealed through the powers of the investigating judge in criminal proceedings. There were examined opinions of scientists in relation to determinations of judicial control and function of investigation judge on the stage of pre-trial investigation. It is possible to draw conclusion from the analysis of the last scientific researches, that expansion of scopes of judicial control in a criminal production, it is a next step to rethink the value of judicial control in criminal proceedings. Decisions taken by the investigating judge should be based on the principles of legality and rule of law. The conclusion about the need to study the application of ECHR investigating judges to strengthen the role of the court at the stage of pre-trial investigation and reduction of procedural errors that can become new ECHR judgments against Ukraine. Judicial statistics and decision of consequence judges content are analysed with the use of practice of ECHR for 2018 and beginning 2019 years. Out of analysis of judicial statistics a conclusion is made that tendency on application of practice of ECHR in 2019 is slowly, but grows. The necessity of wide use of practice of ECHR courts is examined during realization of judicial control in a criminal proceedings. The estimation is given to expansion of the list of proceedings that must be carried out with the permission of the investigating judge. It is analyzed the shortcomings of the application of the ECHR practice courts and disadvantages such as the decision by the investigating judge ruling, not under criminal procedural rules. The practice of the Grand Chamber of the Supreme Court is analysed. It is given the risks of the work of the investigating judge, who can relate to undue interference in the work of law enforcement. It is noted the decision of the ECHR “Volokhi against Ukraine” dated November 2, 2006. It is concluded that the judicial review of the investigative actions should also include the application of the ECHR practice, and application of ECHR in the activities of the investigating judge at the pre-trial investigation stage is a prerequisite for respect for the rule rights in criminal proceedings and the strategic task for Ukraine.

Key words: European Court of Human Rights, court control, criminal proceedings.

DOI: https://doi.org/10.33994/kndise.2019.64.24

Yu. Prykhodko; S. Lutsenko

This article analyzes the capabilities of the technical forensic support for the investigation of crimes related to the use of explosive devices and explosive materials. Technical and forensic support for the investigation of criminal offenses related to the use of explosive materials requires the use of certain scientific knowledge and approaches. Applied scientific and technical means for forensic research, along with already existing scientific knowledge, are diverse. In some cases, these connections are direct if scientific provisions are used for forensic research without appropriate revision (for example, scientific statements on the theory and practice of an explosion, the properties of explosives and means of detonation, methods of handling them and the nature of the explosion process). In other cases, these links are indirect when scientific provisions are improved and special tools, techniques and methods are developed on their basis.

Considering the specificity of this type of crime, the sets of technical means used in the inspection of the scene of the incident after the explosion, as well as those technical tools that are used in detecting, neutralizing explosive objects and their research in forensic laboratories. In the description of technical and forensic means, a modern special equipment used in the investigation of criminal explosions, with a description of the possibilities of its use, is in a separate category. The information presented in the article may be useful for the improvement of existing technical means and the development of new ones, taking into account their use in the investigation of criminal explosions.

DOI: https://doi.org/10.33994/kndise.2019.64.23

J. Liodorova; J. Ievitis

The concept of the “Fraud Triangle” is not an innovation to identify fraudulent transactions and in the auditing and to detect criminals acts of an economic nature in the practice of foreign countries. This concept is recommended for use in the European Union countries, including Latvia. Analyzing the “Fraud Triangle” model, the authors did not determine inconsistencies of this concept with Latvian legislation prohibiting its use for the detection of economic crimes.

Based on the scientific studies and practical recommendations of professional organizations, the authors identified indicators of the elements of the “Fraud Triangle” and approach to their determination, suitable for investigating a criminal act and a person who is capable a committing it. Analyzing the identified indicators and ways to identify them, as well as based on the complexity and transnationality of economic crimes, the authors showed that investigation of such crimes requires a comprehensive approach of at least two specialties – a lawyer and an economist.

The authors recommend expanding the scope of application of the “Fraud Triangle” concept and starting its practical application to detect economic crimes in Latvia, as well as continuing to study this concept in the scientific filed.

Key words: of the “fraud triangle”, motive, opportunity, self-justification, element indicators, and economic crimes.

DOI: https://doi.org/10.33994/kndise.2019.64.22

I. Voytenko

The concept, legal support, significance and procedure of forensic examination in the investigation of fraud committed with the use of bank payment cards are analyzed. The value of the technical and forensic expert research of bank payment cards is determined. The knowledge of objects of forensic examination of bank payment cards is noted. The article notes the importance of the examination of electronic signature in these cases. The order of appointment of forensic accounting examinations in the investigation of fraud committed with the use of bank payment cards is analyzed. The objects of expertise here are the primary documents and financial statements. The importance of the expert’s conclusion as a source of evidence in the investigation of fraudulent use of bank payment cards is analyzed.

Key words: fraud, bank payment cards, document, forensic accounting expertise, software and technical expertise.

DOI: https://doi.org/10.33994/kndise.2019.64.21

B. Lukianchykov; O. Usenko

The article analyzes the current state of providing the forensic units of the National Police of Ukraine with technical and forensic means of protecting places of investigation. First of all, we are talking about the inspection of the scene of the incident and the use of mobile screens and tents. Their use allows to protect the scene of the incident and the objects located there both from the negative effects of a natural character (sun, rain, snow), and from free access by outsiders, as well as the curious eyes of interested people. Attention is drawn to the regulatory framework governing the use of data of forensic means of protection. The author analyzes the opinions of well-known domestic and foreign forensic scientists and proposes his own vision of resolving this issue, based on the regulatory framework in Ukraine.

The author reasonably comes to the conclusion that the main condition for the use of mobile protective equipment (tents and screens) of the places of investigation is strict observance of the rules and norms of international and domestic legislation that regulates activities in the field of criminal procedure.

Also the article speaks about the possibility of using improvised means and objects for protection against various influences of physical evidence at the scene, but it is stated that it is much more convenient to have such means prepared in advance in a patrol car.

It is analyzed the domestic and foreign market of such portable means of protection of accident sites (protective screens and tents), special attention is paid to the study of the materials, from which they are made and design features. It is noted that these devices should be light and allow one person to control them. On the basis of research, the author came to the conclusion that all sets of mobile protective structures (tent, screen) should be made of durable, non-transparent, impermeable, but easily breathable material. The design should allow easy connection of individual elements in order to increase the area of protection, both around the perimeter and in height.

All of the above allows us to conclude that the improvement and updating of the arsenal of special technical tools used by police officers to preserve the situation at the scene of incident are the necessary realities of today.

Key words: scientific and technical means, event protection, technical and forensic equipment.

DOI: https://doi.org/10.33994/kndise.2019.64.20

A. M. Padalka

The article deals with theoretical approaches to the definition of the concept of traces of a crime, their forensic meaning and properties. It is determined that one of the most important elements of revealing the mechanism of criminal activity is a forensic description of crimes. It reflects the features of the method, as well as the signs of other elements of the structure of criminal activity.

In view of this, in the structure of forensic characterization of tax crimes committed by an organized criminal group, we have formulated the features of this class of crime, its traces at certain stages of organized crime, which allows you to establish the basic element of forensic characteristics – the way of committing a crime, as well as place, time it committing and direct participants in organized crime activities. Key words: traces of crimes, forensic characteristic, organized criminal activity, taxation.

DOI: https://doi.org/10.33994/kndise.2019.64.19

G. Avdeeva

А competition between the criminal procedure parties and equality rights in presentation their evidences to the court, the availability of accused right to defense himself are among the basic principles of legal procedure in Ukraine. Despite the fact that in Art. 22 of the Criminal Procedure Code of Ukraine states that «criminal proceedings are carried out on the basis of the adversarial procedure», the parties of criminal procedure in Ukraine do not have equaling rights and opportunities to gather evidence through the using of special knowledge.

A law № 2147-19 inured at the end of 2017 in Ukraine. The changes in the Criminal procedure law and Ukraine law «About a forensic examination» banned for lawyers and investigators to choose theyselves an expert establishment or experts. Investigators, public prosecutors and advocates have a right only to send a request to the judge about needing of a forensic examination. A judge personally chooses expert establishment or an expert. It is a cause of the substantial lowing of rights of lawyers and investigators in the collecting of proofs. These problems of regulation of expert activity in Ukraine do not correspond to the competitive European principles of the court. Part of these problems can be resolved if in Ukraine will adopt the Project of law № 8249. It is proposed in this law to return rights for the investigators and lawyers, which allow them personally to attract of experts. Also it is proposed to allow to nonstate experts and other specialists to conduct forensic examinations. This will bring the legislation of Ukraine closer to the legislation of the member countries of the European Union and will allow the principle of equality of parties rights of criminal procedure. A competition between state and non-state experts will lead to an increase of the quality and scientific level of expert conclusions.

Key words: criminal proceedings, special knowledge, competitive judiciary.

DOI: https://doi.org/10.33994/kndise.2019.64.18

A. Kofanov; V. Areshonkov

In the article, on the basis of the analysis of scientific literature and expert practice, the question of the use of modern information technologies in the prevention and investigation of crimes committed with the use of firearms is disclosed. The emphasis is placed on the fact that today in Ukraine due to the large number of crimes involving firearms, which has not significantly decreased in comparison with previous years, the issue of the introduction of modern IT technologies into expert work remains relevant, including the field of expertise of weapons and ballistic record keeping.

As a result of studying the experience of using IT-technologies in this industry in Ukraine, existing problems and certain ways of their solution are outlined. Among such problems it is necessary to note: firstly, the very slow introduction of ballistic systems by Ukrainian expert divisions. Today, these systems have a relatively small number of expert departments. Others continue to carry out identification tests in manual mode, do not mention the operational checking of records; secondly, the identification systems which used by expert units in Ukraine, in the vast majority, are, nevertheless, automatized, and not information retrieval, which in turn prevents the creation of a single data bank of image surfaces of bullets and sleeves with the subsequent automatic search. Thereafter, it is quite difficult to carry out inspections for the existing collection of bullets and cartridges in operational mode.

To solve these issues, it is necessary: firstly, if possible, to create its own automated information retrieval identification ballistic system which can be made on the basis of existing domestic automated ballistic systems, to implement it in the practical activities of all regional expert departments; second, to develop a single application software that would allow creating a single data bank of images of ballistic nature objects; thirdly, to ensure the interconnection and exchange of information between regional and central databases, and to ensure the protection of information from unauthorized interference; fourthly, to organize the training of relevant personnel and their studying.

Key words: genesis, prevention, crime investigation, IT technology, firearms.

DOI: https://doi.org/10.33994/kndise.2019.64.17

A. Tsilmak

In this article there were proposed author’s definitions for “testimonies verification” and “capability to perceive”. It was emphasized that testimonies verification is the way for determination the objective truth of fact or statement of a person relating to the circumstances of criminal offence.

A possibility to perceive – is the process of formulation of holistic subject subjective of criminal offence. It was pointed, that the process of perception is interrelated with such psychological cognitive processes of personality as aesthesia, memory, ideation, imagination and speech. That’s why, the certainty of information relating to the circumstances of criminal offence is conditioned by the ability of personality not only to perceive, but to: 1) feel; 2) order perceived objectively; 3) memorize, keep and reproduce perceived objectively; 4) form the subject’s image or phenomenon that is not being perceived at the moment, but it had been perceived before; 5) explain objectively that is subjectively perceived.

There were concretized by the author the primary tasks of investigator for testimony verification during certain stages of interrogation (preparatory, principal and final). It was mentioned, that the primary tasks on the preparatory stage are: 1) to research the circumstances of forensic offence; 2) to collect the data about the personality of witness that is about: a) the character of relations with suspect and victim; b) his reputation; c) the presence of chronic psychological disease, natural or acquired abnormalities of the development of perception bodies; d) his individual and psychological characteristics (type of character, peculiarities of psychological perceptional processes, level of intellectual development) and etc.; 3) the composition of questions’ list, that will provide the testimonies verification.

It was determined, that testimonies verification during interrogation may take place by means of testimonies comparison with available facts and methods of audiovisual psychodiagnostics.

On final stage (after interrogation) investigator`s tasks are the: 1) comparison of testimonies with other persons` evidences; 2) estimation of testimonies and determination their gaps and inaccuracies; 3) preparation of clarifying questions to the witness (on necessity); 4) collection of additional information, that concretizes and clarify the circumstances of criminal offence.

It was accentuated that verification’s method appliance is uninterrupted process, that comprises almost all investigative (inquiry) actions. That’s why, investigator should be aware of its essence and peculiarities of its appliance.

Key words: verification, testimonies, witness, investigator, task, criminal offence.