Order forensic examination in criminal proceedings against the defence initiative (according to the criminal procedure code of Ukraine)

Abstract

In the article on the basis of this collection and examination of regulatory, scientific, reference, information sources, etc. The comparative analysis of the current legislation regarding the appointment and conduct forensic examinations on the initiative of the defense. By examining the provisions of the Criminal Procedure Code, 2012, identified some positive and negative aspects related to innovation, in particular, with the position of the right hand to protect yourself involve experts on a contractual basis for the examination, including mandatory (part 2 Art. 243 of the Criminal Procedure Code of Ukraine «Procedure for attracting expert»). Thus, the negative side of the gap has been attributed to the lack of definition of the form of attraction expert by the defense. Norms of the CCP is not fixed, which document is the basis for the examination — order, request, request an attorney and / or other document, which should contain information about the person involved as an expert; asked the expert; list of materials (samples of documents), provided for the study; warning about the criminal liability of the expert and the like. Analyzed part 3 art. 93 Code of Criminal Procedure, according to which the defense is entitled to collect evidence by claim and get things, copies of documents, expert opinions, etc., as well as initiate an investigation (search) and other legal proceedings. It was found that, despite the provisions of Part. 2 art. 22 Code of Criminal Procedure, which establishes the equality of rights of the parties to collect and provide to the court belongings, documents and other evidence, the defense actually deprived of equal opportunity to the collection and presentation of evidence. Defender can only initiate the investigator, prosecutor, investigating judge investigative (search) Action undercover investigation (search) action to obtain the necessary information. Summarizing the above, we can say that today the position of the initiation of the examination by the defense as a means of guaranteeing equal rights of litigants, is declarative in relation to the conduct of the examination by the prosecution and does not work in full. According to the results of the study in order to resolve issues of appointment and conduct forensic examinations on the initiative of the defense, it is proposed to amend the Law of Ukraine «On the Judicial Review», the Instruction on the appointment and conduct forensic examinations and expert studies, approved by order of the Ministry of Justice of Ukraine from 08.01.1998 № 53/5, as well as to create a mechanism for applying the defense provisions of Art. 243 Criminal Procedure Code by developing a clear order fixing its procedural rules, drawn up in the form of proposals and / or recommendations for providing them to the High Specialized Court of Ukraine for consideration of civil and criminal cases in order to further review and processing.