O. Baulin; V. Shevchuk
The article is devoted to the analysis of Ukrainian legislation in force which regulates the rules of ordering and carrying out judicial examination in criminal proceedings, and the state of its enforcement in contemporary investigative and judicial practice.
The article discloses the procedure for attracting an expert to conduct an expert examination by the parties to a criminal proceeding and using the expertise available at the stage of pre-trial investigation established by the procedural law. Attention is drawn to the essential difference between the mechanism for attracting an expert to carry out the examination by the parties to criminal proceedings and the shortcomings in using the expertise possibilities in proving the circumstances of the commission of a criminal offense at the pre-trial investigation stage in cases when its production is initiated by the defense. The study of the provisions of the Criminal Procedure Code of Ukraine in 2012, the laws of Ukraine “On Forensic Examination” and “On the Bar and Advocacy”, by-laws and regulations that regulate the appointment and production of expertise, as well as examples of their application in the practice of pre-trial investigative bodies, the prosecutorʼs office and the court allowed the authors to draw substantiated conclusions about the existence of a significant imbalance in the possibilities of the prosecution and defense parties in using the results of the judicial ex persistence in the process of proof. The authors of the article note typical shortcomings in implementing the partyʼs defense of their right to engage an expert to conduct an examination during the pre-trial investigation and the main reasons for ignoring the investigators and prosecutors during the proof of the pre-trial investigation of the conclusions of experts brought by the defense. In general, there is a lack of reliable procedural guarantees for the implementation of the right of the defense to engage an expert to conduct an examination during the pre-trial investigation. In order to change this situation in practice and to improve the legal mechanism for ensuring the right to protection by authors, it is proposed to make appropriate changes to the current legislative acts.