Міжвідомчий Науково-методичний збірник
"Криміналістика і судова експертиза"
ISSN: 2786-7072 (Online); ISSN: 2786-7080 (Print)
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O. Shcherbyna


In this article, based on the analysis of expert practice, the study of normative, scientific and reference information sources is analyzed the content of the term “admissibility” of evidence in the system of legal evidence and, in particular, the admissibility of evidence in the performance of forensic analysis.

The purpose of the article is the development of the theory problems of forensic evidence, incl. their belonging, sufficiency and admissibility, with the aim of achieving the task of the criminal process aimed at protecting the rights, freedoms and legitimate interests of participants in criminal proceedings.

It is analyzed the existence of a number of conditions under which the actual data receive the status of evidence in the case, linking the admissibility of evidence with observance of the procedural order of their receipt.

By studying the provisions of the Criminal Procedure Code of Ukraine in 2012, some negative consequences were identified in terms of the failure to comply with the admissibility of evidence in criminal proceedings during the forensic examination. The procedural law states that the expertʼs conclusion cannot be based on evidence that is recognized by the court as inadmissible. At the same time, such cases are not taken into account when evidence can be recognized by the court already when the case is examined on the merits, and not at the stage of pre-trial investigation. That is, after the forensic examination, after the completion of the pre-trial investigation. In this case, as a consequence, when recognizing the evidence that was used in the forensic examination unacceptable, such an expertʼs conclusion will be recognized as inadmissible evidence in the case. Now the forensic expert, as a participant in the judicial process, is not authorized to identify and prevent the facts of the provision of the objects to the expert for a study whose source of origin is unknown or received with a violation of the procedural order of their receipt. In turn, the body (person) who appointed (a) carrying out of a forensic examination by the legislator is not obliged to confirm to the expert the source of the objectsʼ origin by providing documentary evidence in the form of procedural documents on the existence of powers and observance of the procedural order for obtaining such objects.

According to the results of the conducted research, the main problems at the stage of pre-trial investigation in criminal proceedings in the implementation of forensic examination are the following: lack of understanding when appointing a forensic examination about the need to strictly ensure the admissibility of evidence acting as research objects. There are needs at the legislative level to fix the duty, when appointing expertise to provide the expert not only with the objects of research, but with documentary evidence confirming the origin and legitimacy of obtaining such objects.

In the process of the article writing, the materials of the scientific articles of the scientists-processualists and forensic scientists, who worked on the problem of the admissibility of evidence, were used.

The materials of this article can be used for practical workers of law enforcement bodies and educational institutions of legal direction.

Proposals are submitted to the current Criminal Procedure Code of Ukraine based on the results of the analysis.