Блог

Y. Lukianchikov; B. Lukianchikov

Summary

Paper analyzes the regulations of the Criminal Procedural Code of Ukraine, devoted to the use of special knowledge in criminal proceedings. Attention is paid to procedural forms of the use of special knowledge in the process of pre-trial proceedings and consideration of materials in court. It is noted that the current Criminal Procedural Code of Ukraine, with a purpose for fully implementation of the adversarial principle, has expanded the procedural possibilities of the defense side. Along with the side of the prosecution, the defense can get an expert to take part in court on contractual terms, if special knowledge is required to resolve issues.

Methods of obtaining samples for the expertise by the defense side are analyzed. Particular attention is paid to obtaining biological specimens of the human body excretions. It is noted that such specimens cannot be received according to the rules for temporary access to objects and documents, since they cannot be recognized as such ones.

The receipt of biological specimens is suggested to be carried out according to the rules of such an investigative action as an examination and only by those participants of the process who are entitled to the right to proceed. If such actions are associated with the need of the exposure of human body regions, the sampling should be carried out by a person of the same sex. Taking into account the specificity of biogenic specimens, it is proposed to fix in the Criminal Procedural Code the mandatory participation of a medical examiner or a doctor in the cases of inability to involve a forensic pathologist.

А. Ruvin; А. Poltavskyi

Summary

The article deals with a relatively new direction for standardization of the state — the regulatory activity at the level of state standards of Ukraine of technical and criminalistics (detection, fixation, seizure, transportation and storage of evidence) and forensic expert provision of justice.

The article analyzes the prerequisites for the international standardization of forensic science, the main one of which was the report of the National Academy of Sciences of the USA “Strengthening of Judicial Science in the US: the way forward”, which covered the problems of forensic medical examination, including examples of other types of forensic examinations hands, human hair, bit signs, handwriting) with concrete proposals aimed at eliminating the raised problems at the level of Congress and the President of the United States. This report gave impetus to the development of national standards, primarily by Australia, whose National Standardization Agency (Australian Standards), after the development of its own standards, proposed the establishment of the Project Committee in 2012 under the auspices of the International Organization for Standardization, and in 2012 the ISO/TC Technical Committee 272 “Forensic Sciences”. To date, this committee has developed one international standard; five more standards are under development.

Throughout the years 2012-2016 the Subcommittee on Standardization in the Security Industry of the Information of Joint Technical Committee (ISO/IEC JTC 1) of the International Organization for Standardization and the International Electro-technical Commission has developed five international standards that deal with working with digital evidence.

In addition, in the year 2012, the Project Committee of the European Committee for Standardization CEN/PC 419 “Forensic Science Processes” was established, which is developing a standard for the collection of physical evidence.

The need to standardize the jurisprudence was also confirmed by the work of the international commission of forensic experts within the framework of the scientific investigation into the causes of the crash of the Malaysian Boeing MN-17.

Part of the accepted international standards is harmonized by the method of confirmation in Ukraine as DSTU (National Standards of Ukraine). However, there is a real need to harmonize international standards by reprinting with the use of the method of specification.

In this regard, Kyiv Scientific Research Institute of Forensic Expertise of the Ministry of Justice of Ukraine, a member of the European Network of Forensic Science Institutes, which is a monopoly representative of European criminalistics, initiated the creation of “Forensic Sciences” Technical Committee of the National Standardization Agency.

At the end of the article it is determined that the activity on the introduction of quality management systems in accordance with international standards harmonized in Ukraine; participation in the work of international commissions; direct or indirect participation in the activities of international institutions; the work begun on the standardization of forensic science, primarily on the harmonization of international standards; the development of national standards will become the most important prerequisites for improving the normative support of the processes of collecting and investigating judicial evidence for the reliable provision of justice in Ukraine.

M. Shcherbakovskyi

Summary

Consultations of persons who have special knowledge are traditionally implemented during the investigation of crimes. In the current CPC of Ukraine, the use of special knowledge in the form of obtaining consultations and explanations of a specialist has acquired legislative fixing. Taking into account the content of concepts, the necessity of uniform application of procedural terminology, it is expedient to use the term “explanation” instead of the terms “consultation” and “elucidation” in the law.

The specialist in the form of explanations provides the parties and the court with certificates and consultations. The reference contains special general information without reference to the circumstances of the criminal proceedings. Consultation is a council, expert opinion, which is provided to the requestor on the basis of familiarization with the materials of criminal proceedings and concerns circumstances directly related to the investigated event. The specialist does not replace the expert, because his explanations are not based on the study of objects and do not matter the proof. The specialist provides explanations either verbally or in writing in the process and outside the conduct of investigative (investigative) or judicial actions. The meaning of oral explanations during the conduct of investigative actions is that the investigator receives promptly qualified assistance on special issues. The oral explanations of a specialist help the investigator to evaluate the evidence, timely decide on the appointment of an expert examination, and determine the questions to the expert. The written form has explanations that are attached to the procedural protocol in which the specialist participated and the explanations that are made out during the trial.

Analysis of the current procedural law, investigative and judicial practice testifies to the admissibility of obtaining explanations from a specialist on legal issues. The current CPC provides for the possibility of providing legal assistance to professional participants in criminal proceedings. Specialists of the Scientific Advisory Council under the Supreme Court of Ukraine shall provide the judge-rapporteur of the Supreme Court of Ukraine with a scientific conclusion regarding the relevant rule of law.

Providing explanations for special and legal issues is a direct embodiment of the advisory function of a specialist. The ultimate purpose of using explanations is to justify the parties, the court adopting procedural and organizational and tactical decisions.

N. Klymenko; I. Hladchuk

Summary

The article deals with controversial issues (there are given definitions different criminologists) connected with the purpose, concept and content of forensic expertsʼ activities and their information support at the modern stage of development of the society. It is given legal regulation and organization of expertsʼ activities in the Codes and the Law of Ukraine “On Forensic Examination” and the ways to increase its efficiency are suggested as well.

Y. Chornous; O. Lopata

Summary

The public need for effective investigation of crimes requires increasing the effectiveness of forensic work by improving the forensic expertise of pre-trial investigation and judicial review, improving the legal regulation of forensic expert activity, expanding the range of expert tasks to be solved, developing of expert methodologies in accordance with international standards, European and world experience. The success of the solution of the set tasks depends to a large extent on the implementation of appropriate international cooperation in the field of forensic expert activity.

International cooperation in the field of forensic expert activity is realized according to certain directions, levels and forms. The study of legislation, scientific works, testifies to the absence of a single coordinated approach to their coverage. In a scientific article, a view is formed on the clarification of the question posed.

Based on the results of the research, the following areas of international cooperation in the field of forensic expert activity are highlighted: in criminal proceedings; civil proceedings; economic production; administrative production; enforcement proceedings; international cooperation, the implementation of which is carried out outside production on the scientific and educational-methodical direction.

The following levels of international cooperation have been singled out: a regional (participation in regional international forensic expert organizations (ENFSI)) international (participation in international forensic expert organizations of the global level), bilateral cooperation (between forensic institutions of states).

The main forms of international cooperation in the field of forensic expert activity are described: the definition and provision of international standards for forensic expert activity, forensic expertise in the form of international legal assistance, the recruitment of specialists from other states to solve forensic tasks and participation in such events of domestic judicial experts; maintenance of functioning and use of the data of criminalistics accounts and information retrieval systems; information exchange; holding classes, internships, conferences, advanced training, etc.

I. Pyrih

Summary

On the basis of analysis of scientistsʼ opinions, the determination of concept of judicial expertology as a separate science is given in this article. Discussions in regard to an object and a subject of new science, its system, tasks and principles are continuing for today. In spite of variety of opinions of scientists in relation to the degree of forming of judicial expertology as separate science, for today we consider it as an independent science, that is the system of knowledge about realization conformities of judicial examinations and facilities and methods of research of different sort of material objects, processes or phenomena based on them. To our mind, the system of judicial expertology consists of general part as basis of theoretical knowledge and special, in which this theoretical knowledge is directed to the determination of problems of realization of examinations in practice. In general part must be included the following: forming and development of studies about forensic examination; object, system, task and principles of judicial expertology; its essence and place in the system of scientific knowledge; studies about the methods of expert research; systematization and classification of knowledge in judicial expertology; expert technique; theory of expert prognostication; expert prophylaxis; concept and general description of expert methodologies; psychological bases of expert research and expert errors. The special part must include methodologies of the implementation of separate types of forensic examinations: by criminalistics, technical, economic, commodity expert, in the field of intellectual property, psychological, study of art, ecological, military etc. Certainly, a structure of the special part is the dynamic system and can change with the origin of new types of forensic examinations. For today there are two conceptions in relation to essence and place of forensic expertology in the system of sciences. The most widespread is opinion of scientists of relatively legal nature of forensic expertology. Other conception consists of attributing of forensic expertology to the so-called synthetic or hybrid sciences that unite or synthesize in it the variety of other areas of knowledge. Forensic expertology has separated from criminalistics and became the independent science. Today there are discussions concerning legal nature of criminalistics. If it so, then to our mind, there cannot be any doubts relatively synthetic nature of forensic expertology, as exactly it accumulates knowledge of other areas of knowledge, foremost natural and technical sciences. In conclusion, it is possible to say that forensic expertology is the independent area of knowledge that is related to hybrid or integrative sciences and synthesizes in itself the complex of social, natural and technical sciences.

О. Oderii; I. Klechanovskyi; Yu. Klechanovska

Summary

The use of the provisions of Article 615 of the Criminal Procedure Code of Ukraine (CPC) during the pre-trial investigation showed some problems, which caused a scientific discussion. The experts expressed both positive comments on its influence on the adoption of procedural decisions during the pre-trial investigation in the anti-terrorist operation zone (ATO) and critical comments. The latter are connected with the fact that, in accordance with the current legislation, not only the prevention and combating of crime, but also the fight against terrorism, in particular in the ATO zone, must be based on the principles of legality and strict observance of human and citizen rights and freedoms, the priority of protecting life and the health of people endangered by being in the zone of terrorist activity. There has been conducted the theoretical analysis of the normative provision of Article 615 of the Criminal Procedure Code, as a result of which it was established that during the period from November 5, 2014 to December 2, 2015 there was a legal vacuum in the issue of determining the territory for conducting ATO, which is confirmed by the research of other scientists. There has been expressed the authorʼs position with respect to the provisions of Article 615 of the CPC concerning the term “relevant prosecutor”. It is determined that the judicial practice does not have a unified view of the results of using the provisions of the article mentioned, in support of which specific examples are given where the court has given the diametrically different estimates (from the defendantʼs justification and vice versa). Taking into account this fact, it is stated that the current situation is unacceptable and testifies to the imperfection of the criteria for applying Article 615 of the Criminal Procedure Code of Ukraine, which creates conditions for the restriction of human rights and freedoms. The authors draw attention to the fact that failure to comply with the provisions of international law and decisions of the Constitutional Court of Ukraine may lead in the future to appeals to the European Court of Human Rights regarding the violation of the right to a fair and public hearing of the case within a reasonable time by an independent and impartial court.

V. Galagan; Z. Udovenko

Summary

The article draws attention to the need to comply with the procedure for investigative actions, specified in the Criminal Procedural Code of Ukraine, especially those that may be related to the restriction of the rights and freedoms of participants in criminal proceedings. Such participants include not only the suspect, the accused, but also the victim, the witness, other persons taking part in the proceedings or performing their inherent procedural functions. The rights and legitimate interests of these and other persons may be limited during the search of housing or other possession of the person, examination, obtaining samples for examination and other procedural actions, the production of which may be related to the use of procedural coercive measures. During the production of these actions, it is important to take into account the correlation of rights and legitimate interests of participants in criminal proceedings with the definition of priority values to be protected by authorized state bodies. Ensuring the realization of the rights and freedoms of citizens is carried out through the use of various knowledge, including forensic knowledge. Now it is urgent to conduct an in-depth study of the problems associated with forensic support for the observance of citizensʼ rights and freedoms, guarantees and conditions for their implementation in criminal proceedings in Ukraine. In the pre-trial investigation, the science of criminology is designed, with the help of its inherent methods and means, to ensure the proper use of forensic knowledge to ensure the rights and freedoms of citizens. Therefore, it is important to not only procedural regulation of the implementation of criminal proceedings and individual procedural actions, but also the development of forensic recommendations with a view to minimizing the restrictions and violation of the constitutional rights of citizens.