Блог

DOI: https://doi.org/10.33994/kndise.2019.64.06

Ye. Tyshchenko

Article 518 of the Code of Criminal Procedure of Ukraine for the first time regulated the production of forensic examination regarding the legality of attributing information in the field of defense, economics, science and technology, foreign relations, state security and law enforcement to state secrets, changing the secrecy of this information and its declassification damage caused to the national security of Ukraine in the event of the disclosure of classified information or the loss of material carriers of such information. This definition is cumbersome, that is why it is advisable to call the expertise at issue broader in content and more laconic in form – “in matters of state secrets”.

The appointment, support and conduct of forensic examinations on this issue is accompanied by lengthy and still not completed scientific discussions and related practical problems, which include subjects which are able to conduct examinations on state secrets, and the methodology for conducting them.

Thus, the disposition of Part 1 of Art. 518 Code of Criminal Procedure of Ukraine regarding the subject of the examination on state secrets do not correspond to the content of other applicable laws and regulations.

Also, no certified and registered by the established procedure methodology for conducting forensic examination on state secrets’ issues has been established.

In order to comply with the rule of law and legality as basic criminal proceedings according to Art. Art. 7, 8, 9, 22 Code of Criminal Procedure of Ukraine:

– it requires forming by authorized order the type of forensics as a state secret forensic and a type of relevant expert specialty;

– it is advisable to expand the circle of subjects of expertise on state secrets’ issues at the expense of other specialists who are knowledgeable in matters of state secrets. They can be members of expert commissions under state secrecy experts, if at the same time complying with the set of normatively defined requirements for judicial experts who are not employees of state specialized agencies conducting forensic examinations. These requirements must also be met by state secrecy experts. In the future, a crucial step could be to consider the assignment of the functions of judicial experts on state secrets’ issues to the Security Service of Ukraine staff, which is entrusted with Article 2 of the Law of Ukraine “On the Security Service of Ukraine” to ensure the protection of state secrets and which is a specially authorized state body in the field of ensuring the protection of state secrets in accordance with Part 5 of Article 5 of the Law Of Ukraine “On State Secrets”;

– authorized state bodies are obliged to solve the problem of developing, certifying and state registration of a methodology for conducting a forensic examination on state secret issues. Key words: state secret, forensic examination.

DOI: https://doi.org/10.33994/kndise.2019.64.05

V. Khosha

In the article, in order to formulate the essence of the administrative-legal regulation mechanism in the field of accreditation of forensic institutions of Ukraine, the general legal foundations of the accreditation system in Ukraine are defined theoretically, as well as the characteristics of a wider category – “legal regulation”, taking into account the peculiarities of public relations in accreditation of conformity assessment bodies.

The mechanism of administrative and legal regulation of accreditation of forensic institutions of Ukraine is a combination of legal means (legal norms, legal relations, acts of interpretation and application of legal norms, etc.) of influencing the relations between potential and accredited conformity assessment bodies ensuring a uniform technical policy in the field of conformity assessment; ensuring consumer confidence in conformity assessment activities; creating conditions for mutual recognition of the results of accredited bodies at the international level, etc.

The legal basis for the accreditation of forensic institutions of Ukraine is a set of output cross-cutting ideas enshrined in legal norms that define legal necessity and create conditions for accreditation and monitoring of conformity assessment bodies, directly determine legal, organizational and tactical provisions of the organization and implementation of relevant activities. The legal regime of accreditation is a type of permissive administrative and legal regimes. It is based on the principles of accessibility, voluntariness, professional competence, equality, transparency, confidentiality, participation of executive bodies and public organizations, independence and impartiality, non-transferability of special accreditation powers to others, control (the latter principle should be included in the list of basic principles of accreditation activities, which are defined in Article 5 of the Law of Ukraine “On Accreditation of Conformity Assessment Bodies”). The accreditation procedure is carried out according to the rules that are publicly available and free to use. Accreditation bodies should periodically confirm their competence, this is usually done with the help of other accreditation bodies. Key words: accreditation, forensic institutions, legal framework, legal regulation.

DOI: https://doi.org/10.33994/kndise.2019.64.04

N. Nestor  

The article distinguishes three concepts: «standardization», «accreditation» and «certification». All three aspects are tools for ensuring control over the quality, reliability and scientific authenticity of expert studies. Standards of forensic activities are fixed in the methods of conducting expert research; it has been considered the possibility of unifying the methodological support of expert research and related activities.

Foremost, the standards of forensic activities are fixed in the methods of conducting expert research, which are, relatively, programs for solving expert problems and a list of sequential operations. It is the methodological aspect of the quality of forensic examinations that is the focus of this article.

Standardization of individual areas of expert research is often considered as the next step after accreditation of forensic institutions to implement international standards in expert justice.

Most expert institutions both in Ukraine and internationally are accredited. However, the accreditation procedure is reduced to the issues of documentation and management and to a large extent leaves aside the scientific and methodological aspects of the implementation of expert activities.

Standardization of forensic activity should be understood as an activity to achieve optimal orderliness of forensic expert activity by unifying the methodological support of expert research and related activities. It is important to understand that standardization is a continuous process, and involves the development of new standard techniques with the advent of new types of examinations.

Key words: forensic expert activity, standardization, unification, accreditation, attestation, judicial practice, methodology.

DOI: https://doi.org/10.33994/kndise.2019.64.03

I. Pyrih

The article deals with problematic issues related to the norms of criminal procedure legislation, considering the involvement of an expert as an investigative action. Among criminal scientists and proceduralists there is no consensus on the procedural definition of forensic examination. Most of them include forensics to investigative actions. By the definition of a forensic examination, it is clear that an integral feature of a procedural action is to conduct it exclusively by officials of state bodies authorized by law to conduct criminal proceedings. These include: employees of the operational units, an investigator, a prosecutor, a judge. The subject of the examination is an expert – a person not authorized by law to conduct investigative actions. That is why, in our opinion, it is impossible to refer an examination to investigative actions.

Proponents of referring a forensic examination to investigative actions most often mean it as «the appointment and conduct of a forensic examination». It is argued that actions regarding the appointment and conduct of the examination are different in nature and subjects of conduct. If we consider the stage of appointment of the examination, and for the current Criminal Procedure Code of Ukraine – the involvement of an expert, then its subject is the investigator. The subject of the examination is an expert. Considering the characteristic features of the investigative action, it can be concluded that the stage of appointment of the examination or the involvement of an expert, which scientists consider as preparatory to the examination, has all the signs inherent in an independent investigative action. It is governed by the rules of procedural law, carried out in the framework of criminal proceedings, authorized by the person. When an expert is involved, the investigator conducts certain actions, the result of which is reflected in the ruling of the investigating judge. The purpose of the examination is to obtain, research and verify evidence.

Considering the involvement of an expert as a separate investigative action, we define its content, divided into generally accepted stages: preparatory, working and final. To the preparatory stage, we include such actions: the decision to conduct an examination; selection of an expert institution or a private expert; determination of the type of examination and subject of study; determining the order of appointment of examinations in relation to the same objects; timing of appointment examination. The following should be attributed to the working stage: selection of objects for examination; receipt of the decision of the investigating judge for the examination. The final stage consists of the following stages: determining the circle of persons who may be present during the examination; referrals and necessary materials to the expert institution.

Key words: investigative (search) action, forensic examination, appointment of expertise, involvement of an expert.

DOI: https://doi.org/10.33994/kndise.2019.64.02

N. Klymenko

The article deals with the concept of a general theory of forensic expertology, the conditions for its creation, the place of forensic expert science in the system of legal sciences, the limits of its subject matter, the issues of interaction and the relationship of the science of forensic science and forensic expertology. The system and structure of the general theory of forensic expertology and its tasks are given.

Separate articles of the Criminal Procedure, Civil Procedure, Administrative, Economic, Customs and Other Codes of Ukraine, the Law of Ukraine “On Forensic Expertise” of 1994 and the constitutional confirmation (article 92, paragraph 14 of the Constitution of Ukraine) of the legislative provision of forensic expertise are the further legal basis development of legal, organizational and managerial directions of forensic expertology.

Forensic expertology does not only preserves the “birthmarks” of forensic science, but also, in turn, influences the dialectics of the development of the subject of forensic science and the content of its scientific fields (forensic techniques, forensic tactics and forensic methos). In particular, it requires clarifying the well-established view of the unity of forensic techniques for the investigator and expert. The first is made to collect “trace information”, the second is used for its in-depth study based on special knowledge in order to turn it into evidence-based information. Different goals are provided with different means of content. It is more accurate to raise the question of interaction, the “docking” of two, although closely related, but independent branches of scientific and technical means serving justice.

The tasks of the general theory of forensic expertise (expert studies) are similar to the tasks of forensic science. They can be divided into general and special.

General task is the creation of a scientific base for the purpose of the functioning and development of the industry of the use of special knowledge in examinations for the needs of legal proceedings, assistance in the fight against crime and other offenses, resolution of civil law disputes.

Special task is the study of the laws of formation and development of specific types of forensic expertises, the expansion of their capabilities; development and improvement of expert technologies, tools, methods and techniques; the formation of the scientific foundations of new types of forensic expertises in connection with the emergence of new objects (computer, art history, etc.); developing expert crime prevention measures; development of an automated workplace software (AWS) for an expert of various types of research, study and implementation of advanced expert experience; forecasting expert practice processes and research tasks.

Specific tasks are the up-to-date tasks that the practice puts before so the science of expert science to meet the needs that have arisen.

Key words: forensic expertology, forensic expertise, legal science, theory.

DOI: https://doi.org/10.33994/kndise.2019.64.01

I. Kohutych

Some aspects of the philosophical ground of forensic science as a world-view basis of its general theory and methodology are specified in the article, as well as certain provisions of the prospects of “Philosophy of criminology” are given. The author supports the idea that this particular form of scientific and forensic cognition is the only possible solution and localization of most of the methodological problems of criminology, without which it risks disappearing as a science. The analysis of literature states that in modern conditions the role of philosophy as a scientific and methodological outlook is inevitably increased. And this, in turn, is the basis of the integration of sciences, the basis for comprehensive research on topical issues of modern practice and cognition. Being a science about the general laws of nature, society and human thinking, philosophy serves as a basis for building a separate scientific methodology, including such a variety as the general theory and methodology of criminology. Here philosophy carries out not only a special ideological function, which criminalistics does not have, but also a function of the philosophical method of cognition. It is also justified to assume that without reference to philosophical categories it would be impossible both the formation of forensic science, and its further improvement in the sense of formulating their own categories, that is, the most general concepts, in which, in general, the quintessence of the content of a separate branch of scientific knowledge is concentrated.

According to “The procedure of training applicants of higher education for the degree of doctor of philosophy and doctor of sciences in higher educational establishments (scientific institutions) these applicants in Ukraine will be called “doctors of philosophy”. In addition, the educational – scientific program should include the component which provides for the acquisition of such competence in accordance with the National Qualifications Framework, as “… mastering general scientific (philosophical) competencies aimed at forming a systemic scientific views, professional ethics and general cultural outlook. Therefore, this aspect does not only justify, but inexcusably argues the need for scientific assimilation of philosophical categories by future lawyers, including the highest scientific degree”.

One way or another, future lawyers, especially criminologists, must be aware of the reasons that led to the emergence and development of criminology; the factors that determined its methodological foundations and place in the system of scientific knowledge, in particular, in the system of criminal-law sciences; its tasks, social functions, the ways and mechanisms of their realization (in their philosophical comprehension).

In addition, the elimination of the so-called in the literature ground of the “idea of ​​crisis” which leads to allegations of the need to change the “forensic paradigm”, the departure from the traditional forensic theory and methodology, could also be possible, to a large extent, due to the philosophical aspect of securing the active and progressive development of criminology, taking into account the preservation and respect of the traditions of forensic science, as well as the criminologists who created it.

Key words: general theory, methodology, criminology, philosophy.