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.