Міжвідомчий Науково-методичний збірник
"Криміналістика і судова експертиза"
ISSN: 2786-7072 (Online); ISSN: 2786-7080 (Print)
PDF vypusk_68-95-108 Завантажень: 43, розмiр: 339.3 KB

DOI: https://doi.org/10.33994/kndise.2023.68.10

I. Kohutych

The article is devoted to the analysis of the material, as a result of which the need for the development of an educational and typical method of investigating the violation of the laws and customs of war (a crime stipulated in Article 438 of the Criminal Code of Ukraine) has been announced.
On the basis of views generally known to the scientific community, it was established that, from a scientific point of view, the most important purpose of the methodology proposed for the development of the investigation of violations of the laws and customs of war should be the presentation of theoretical provisions and developed on their basis typical recommendations regarding providing the implementers of the pre-trial investigation of the specified crime with an appropriate system of procedural and extra-procedural (actually a forensically legalized) actions and measures of their optimal and effective activity to achieve the goal and tasks of criminal proceedings determined by it.
It is specified that the methodology updated in the process of development should cover the following main sections: 1) forensic characteristics of the crime provided for in Art. 438 of the Criminal Code; 2) typical investigative situations at the stage of identifying signs of violations of the laws and customs of war and the stages of its investigation; 3) forensic issues of initiation of criminal proceedings; 4) preparation (organization and planning) of the investigation; investigative versions, circumstances to be established by pre-trial investigation; 5) algorithm of investigative (search) public and private actions (other procedural and nonprocedural actions and measures); 6) peculiarities of the execution of the actions and measures provided for by this algorithm, as well as their complexes (tactical operations); 7) ensuring coordination of the activities of law enforcement agencies in the investigation and interaction with variously functioning state and non-state bodies, organizations, other subjects involved in this process; 8) forensic prevention measures.
Considerations regarding the general aspects of the organization of the investigation of violations of the laws and customs of war are outlined, with an emphasis on «operational and organizational issues». The essence of a) possible models of organization of the investigation of a violation of the laws and customs of war; b) principles of information and analytical work relevant to the investigation; c) unfavourable factors for the investigation in the conditions of war, related, first of all, to his qualification and adequate understanding of certain principles of criminal proceedings is partially revealed. Attention was drawn to high-profile cases of misunderstanding the purpose and tasks of the specified category of criminal proceedings, which led to reasonable doubts about the proper observance of the guarantees of the right to a fair trial.

Key words: war, war crimes, criminology, investigation methodology, investigation procedure, pre-trial investigation.