Міжвідомчий Науково-методичний збірник
"Криміналістика і судова експертиза"
ISSN: 0130-2655
PDF Poliak Завантажень: 15, розмiр: 357.2 KB

DOI: https://doi.org/10.33994/kndise.2021.66.42

U. Polyak

The purpose of the article is to consider the issue of the need to supplement part 2 of Article 65 of the Criminal Procedure Code of Ukraine with a provision prohibiting the interrogation of persons who, due to their physical or mental disabilities, cannot correctly perceive the facts of evidentiary value and testify about them.
The author shares the opinion that the legislator unreasonably excluded from the list of persons not subject to interrogation as witnesses, persons who, according to the conclusion of the forensic psychiatric or forensic medical examination, due to their physical or mental disabilities, cannot correctly perceive the facts of evidentiary value , and testify about them.
It is proposed to prohibit the interrogation as witnesses of persons who, due to physical disabilities, are not able to correctly perceive the circumstances that are important for criminal proceedings. The author agrees with the proposal of scientists to amend part 2 of Article 65 of the Criminal Procedure Code of Ukraine, which cannot be interrogated as witnesses of persons who, according to the conclusion of a forensic psychiatric or forensic medical examination, through their mental or physical disabilities, cannot correctly perceive the facts, having evidentiary value, and to testify about them.
The analysis of the legislation showed that in the criminal procedure codes of many countries there is a provision prohibiting the interrogation as witnesses of persons who, due to their physical or mental disabilities, cannot correctly perceive the facts that have evidentiary value and testify about them. In addition, these codes contain norms that oblige the investigator and the court to appoint an appropriate expert examination to establish such a circumstance.
In the author’s opinion, part 2 of Article 242 of the current Criminal Procedure Code of Ukraine must be supplemented with the provision on the mandatory appointment and conduct of a forensic psychiatric or forensic medical examination to establish the mental or physical condition of a witness, if there is doubt about his ability to correctly perceive the circumstances that are important for criminal proceedings, and testify about them.
The introduction of amendments and additions proposed and justified by the author to the current criminal procedural legislation of Ukraine will allow to properly regulate the issue of prohibition of interrogation as witnesses of persons with physical or mental disabilities.

Key words: interrogation, witness, persons with physical or mental disabilities, witness immunity, testimony, incapacitated individuals, interrogation prohibition, mental or physical condition of the witness, forensic psychiatric examination, forensic medical examination.