N. Nestor, O. Baulin
The article discusses the procedure for conducting a forensic examination in criminal proceedings provided for by the current legislation of Ukraine. It is noted that when proving the circumstances of criminal offenses, not a single pre-trial proceedings or trial can do without such a source of evidence as an expert opinion. The role of forensic examination as an investigative (search) action and the significance of its results during pre-trial investigation and trial are constantly increasing. At the same time, investigative and judicial practice is full of repeated and additional examinations, facts of abuse by the parties in the application of the norms of the institute of forensic examination, as well as examples of unsuccessful use of the possibilities of forensic examination.
The authors of the article draw attention to the significant shortcomings of the legal regulation of the procedure for appointing and conducting a forensic examination in criminal proceedings, which has been modified three times since the introduction of the Criminal Procedure Code of Ukraine in 2012. Violation of the procedure established by law for involving a forensic expert in a criminal process may subsequently lead to the recognition by the court of the inadmissibility of using the expert’s opinion as a source of evidence. The authors propose ways to solve these problems.
In particular, it is proposed to find a place in the decision-making mechanism for the production of a forensic examination for the victim, the implementation of whose procedural rights has become completely dependent on the discretion of the pre-trial investigation bodies and the prosecutor’s office. This position of the victim does not meet the requirements of several international documents on the treatment of victims of crimes. The early introduction of the amendments proposed by the authors to the Criminal Procedure Code of Ukraine will bring the legal institution of forensic examination in Ukraine closer to international standards.
Key words: criminal proceedings; forensic examination; the procedure for appointing a forensic examination; conducting a forensic examination; special knowledge; procedural action; investigative (search) action; proof; source of evidence; expert opinion.