scholarly journals ON THE ESSENCE AND LEGAL NATURE OF THE FORENSIC EXAMINATION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 5-16
Author(s):  
V. Tishchenko ◽  
L. Belik ◽  
O. Samoilenko ◽  
Yu. Tishchenko
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Science ◽  
Forensic Examination ◽  
Legal Nature ◽  
Forensic Expert ◽  
The Law ◽  
Definition Of

The article is devoted to the study of aspects of the essence and legal nature of forensic examination in criminal proceedings. It is analyzed the provisions of the Law of Ukraine “On Forensic Examination”. The norms of the Criminal Procedure Code concerning the grounds for the appointment and conduct of forensic examination have been investigated. It has been established that many scientists in the field of civil procedural law, criminal procedural law, criminology and forensic examination paid attention to the legal content of the forensic examination. The nature of occurrence of forensic examination has been investigated. It has been established that at the legislative level, the term “forensic expert activity” is used only in the Law of Ukraine “On Forensic Examination”. In the specified normative legal act there is no clear definition of this concept, scientists through the analysis of some norms of law reveal its content. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. The article analyzes the criminal procedure form of appointing a forensic examination. Key words: forensic examination, criminal proceedings, forensic expert activity, forensic expertology, criminal procedural form.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals TO THE QUESTION OF ACCESSORIES OF JUDICIAL EXAMINATION TO INVESTIGATIVE ACTIONS

2019 ◽  
pp. 58-68
Author(s):  
I. Pyrih
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Forensic Examination ◽  
Preparatory Stage ◽  
The Subject ◽  
Characteristic Features ◽  
Definition Of ◽  
Selection Of

The article deals with problematic issues related to the norms of criminal procedure legislation, considering the involvement of an expert as an investigative action. Among criminal scientists and proceduralists there is no consensus on the procedural definition of forensic examination. Most of them include forensics to investigative actions. By the definition of a forensic examination, it is clear that an integral feature of a procedural action is to conduct it exclusively by officials of state bodies authorized by law to conduct criminal proceedings. These include: employees of the operational units, an investigator, a prosecutor, a judge. The subject of the examination is an expert – a person not authorized by law to conduct investigative actions. That is why, in our opinion, it is impossible to refer an examination to investigative actions. Proponents of referring a forensic examination to investigative actions most often mean it as «the appointment and conduct of a forensic examination». It is argued that actions regarding the appointment and conduct of the examination are different in nature and subjects of conduct. If we consider the stage of appointment of the examination, and for the current Criminal Procedure Code of Ukraine – the involvement of an expert, then its subject is the investigator. The subject of the examination is an expert. Considering the characteristic features of the investigative action, it can be concluded that the stage of appointment of the examination or the involvement of an expert, which scientists consider as preparatory to the examination, has all the signs inherent in an independent investigative action. It is governed by the rules of procedural law, carried out in the framework of criminal proceedings, authorized by the person. When an expert is involved, the investigator conducts certain actions, the result of which is reflected in the ruling of the investigating judge. The purpose of the examination is to obtain, research and verify evidence. Considering the involvement of an expert as a separate investigative action, we define its content, divided into generally accepted stages: preparatory, working and final. To the preparatory stage, we include such actions: the decision to conduct an examination; selection of an expert institution or a private expert; determination of the type of examination and subject of study; determining the order of appointment of examinations in relation to the same objects; timing of appointment examination. The following should be attributed to the working stage: selection of objects for examination; receipt of the decision of the investigating judge for the examination. The final stage consists of the following stages: determining the circle of persons who may be present during the examination; referrals and necessary materials to the expert institution. Key words: investigative (search) action, forensic examination, appointment of expertise, involvement of an expert.

scholarly journals Problematic issues of judicial control in the criminal process of Ukraine

2021 ◽  
pp. 284-287
Author(s):  
Y. Voitovych
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Judicial Control ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
The Law ◽  
Definition Of

The article considers the peculiarities of the legislative regulation of the institution of judicial control in the criminal process of Ukraine. The authors who paid attention to the research of this institute of criminal procedural legislation, the purpose of the research are determined. In particular, as a result, the definition of judicial control as an independent institution of procedural law has been clarified, taking into account both recent changes in procedural legislation and taking into account current changes. It is pointed out the imperfection of certain terms of the procedural law, which, among other things, affect the content of the institution of judicial control. The inconsistency of the content of the Criminal Procedure Code of Ukraine with the principles that preceded its adoption was emphasized. A gap in the procedural law has been identified, which consists in the lack of regulation of the actions of officials of the prosecution in the event of a court decision such as returning the indictment to the prosecutor as not meeting the requirements of the law. A comparative analysis of the criminal procedural norms that regulated the institution of additional investigation during the CPC of the USSR, with the rules that give the court the right to return the indictment to the prosecutor as one that does not meet the requirements of the law. The procedural powers of the investigating judge outside the stage of pre-trial investigation in criminal proceedings have been defined, and their inadequacy to restore the constitutional rights of a person, which could potentially be violated, has been criticized. The constitutional prescriptions that define human and civil rights are analyzed, their implementation is assessed in terms of the problem covered; It is concluded that the requirements of the Criminal Procedure Law do not comply with the Constitution of Ukraine, in particular, attention is focused on the possibility of restricting the constitutional rights of a person in the absence of an effective mechanism for their renewal. The conclusion was made on the basis of the analysis of constitutional norms and doctrine of law with regard to the definition of justice. Certain provisions of the law have been criticized, and suggestions for their improvement have been made. As a result, it is proposed to define judicial control as a direct verification by an investigating judge of the legality and validity of decisions, actions or omissions of the prosecution and other state bodies in criminal proceedings.

scholarly journals TO THE QUESTION ABOUT THE CONCEPT «PROCEDURAL COSTS IN CRIMINAL PROCEEDINGS»

Issues of Law ◽  
2020 ◽  
Vol 20 (4) ◽  
pp. 89-93
Author(s):  
S.M. Darovskikh ◽  
◽  
Z.V Makarova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Procedural Costs ◽  
The Russian Federation ◽  
Definition Of ◽  
Article 5

The article is devoted to the issues of formulating the definition of such a criminal procedural concept as «procedural costs». Emphasizing the importance both for science and for law enforcement of clarity and clarity when formulating the definition of criminal procedural concepts, the authors point out that the formulation of this concept present in the current Criminal Procedure Code of the Russian Federation is far from being improved. Having studied the opinions on this issue of the Constitutional Court of the Russian Federation, a number of procedural scholars, the authors propose their own version of the definition of the concept of «criminal procedural costs» with its allocation in a separate paragraph of Article 5 of the Criminal Procedure Code of the Russian Federation.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

scholarly journals ДЕЯКІ ПРОБЛЕМИ ТИМЧАСОВОГО ВИЛУЧЕННЯ ТА АРЕШТУ МАЙНА ЯК ЗАХОДІВ ЗАБЕЗПЕЧЕННЯ КРИМІНАЛЬНОГО ПРОВАДЖЕННЯ

2019 ◽  
Vol 13 ◽  
pp. 520-528
Author(s):  
І. В. Гловюк
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Definition Of

Стаття присвячена дослідженню проблемних питань застосування тимчасового вилу­чення майна та арешту майна як заходів забезпечення кримінального провадження із урахуванням наявної судової практики. Указано та обґрунтовано некоректність норма­тивного визначення тимчасового вилучення майна. Відмічено прогальність нормативного визначення арешту майна в аспекті об'єктів, на які може бути накладено арешт. Сфор­мульовано пропозиції щодо внесення змін та доповнень до ч. 1 ст. 167 КПК щодо ви­значення поняття «тимчасове вилучення майна» та ч. 1 ст. 170 КПК щодо осіб, на майно яких може бути накладено арешт.   The article is dedicated to the research of problematic issues of exercise of temporary seizure of property and arrest of property as means for ensuring criminal proceedings considering relevant judicial practices. Author mentioned and justified his point of view regarding incorrectness of the normative definition of seizure. Author also indicated whitespaces of the regulatory definition of arrest of property in the aspect of objects that may be the subject for the arrest. Proposals for amendments and additions to the part 1 of the Art. 167 of the Criminal Procedure Code regarding the definition of «temporary seizure of property» and part 1 of the Art. 170 of the Criminal Procedure Code regarding the scope of persons whose property may be arrested have been made.

scholarly journals Forensic medical aspects of the problematic issues of legal nature arising in the work of the department of forensic medical examination of corpses

2016 ◽  
pp. 69-74
Author(s):  
Vasyl Grigoriychuk
Keyword(s):  
Medical Service ◽  
Death Certificate ◽  
Criminal Procedure ◽  
Medical Examination ◽  
Legal Documents ◽  
Forensic Examination ◽  
Legal Nature ◽  
Legal Document ◽  
The Law ◽  
Medical Examiners

This survey article presents a review and analysis of the most pressing problematic issues of legal nature arising in the work of the department of forensic examination of corpses of medical examiner’s offices of Ukraine with reference to relevant legal documents, orders and regulations. In our opinion such topical issues causing debates are: contents of article 238 (part 4) of the Criminal Procedure Code of Ukraine, regarding the issue of when the corpse can be handed over for burying - only after performing (that is, completion) of forensic medical examination and establishment of the cause of death with drawing up the “Medical examiner’s conclusion”, or after the autopsy of the body, to whom exactly the corpse has to be handed over; to whom medical certificate of death has to be issued, taking into consideration provisions of item 2 of the “Regulations for filling out and issuance of medical death certificate”, who is to establish relatives of the deceased in compliance with the effective laws and how to understand the definition “a person who is undertaking to bury the deceased”; how to deal with the letters and inquiries pertaining to the disclosure of data obtained in the result of forensic medical examination sent to the bureau’s address by the “not judicial-investigative authorities”, presence or absence of legal documents, regulating actions of the medical examiner connected with the procedure of performance (or non-performance) of forensic medical examination of corpses of the nationals of foreign countries. At the same time conclusions have been made from this article pertaining to the vision of the ways for resolving the presented problematic issues in order to make easier, improve and optimize functioning of the department of forensic examination of corpses. The main legal document the most often referred to in the work of the department of forensic examination of corpses is the Code of Criminal Procedure of Ukraine (with amendments made in accordance with the Law #5076-VI of 05.07.2012) that brought in new requirements and innovations in the work of forensic medical service of Ukraine. It should be noted, that in this legal document we have found 19 articles that deal directly or indirectly with the work of doctors medical examiners. Aside from this document we must also take into consideration the following effective legislative acts: “Regulations for filling out and issuance of medical death certificate (Form #106/o)”, approved on the order of the Ministry of Public Health of Ukraine #545 of 08.08.2006; “The procedure of carrying out investigation and registration of casualties, occupational diseases and industrial accidents”, approved by the Decree of the Cabinet of Ministers of Ukraine #1232 of 30.11.2011; the Law of Ukraine “On advocacy and legal practice”, the Law of Ukraine “On burial and undertakers’ business”. Conclusions: to improve the quality of work of the department of forensic medical examination of corpses in particular and forensic medical service in general, to avoid and bring down to the minimum the problems of legal nature arising in practical work of doctors-medical examiners it is necessary, in our opinion, to resolve the following problematic issues: To provide explanation of contents of article 238 (part 4) of the Code of Criminal Procedure of Ukraine in the part stating, that “the corpse can be handed over … only after performing forensic medical examination and establishing the cause of death”. Solicit competent authorities to make additions or amendments to article 238 of the Code of Criminal Procedure of Ukraine binding indication of the name of person to whom the corpse can be handed over from the morgue for To resolve the problem of responding to the inquiries from various enterprises, establishments and organizations requesting to provide results of the performed forensic medical examination of corpses, copies of the conclusions of expert examination taking into consideration provisions of article 69 (part 5) and article 222 (parts 1, 2) of the Code of Criminal Procedure of Ukraine. Resolve the problem of legal aspects of performing forensic medical examination of corpses of foreign

scholarly journals Penal Mediation as the Concept of Restorative Justice in the Draft Criminal Procedure Code

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Emmanuel Ariananto Waluyo Adi
Keyword(s):  
Law Enforcement ◽  
Restorative Justice ◽  
Criminal Procedure ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
The Public ◽  
Procedural Law ◽  
Private Realm ◽  
Procedure Code ◽  
The Law

The law recognizes both litigation and non-litigation settlement mechanisms, but it is almost not explicitly regulated for non-litigation settlement in criminal cases. Non-litigation in criminal recognizes the concept of restorative justice for the public interest, which is different from the private realm in civil. The concept of restorative justice exists to rehabilitate the state of criminals so that they are accepted back into the community. The concept of restorative justice is manifested in the mediation mechanism in criminal law in the form of penal mediation, but penal mediation does not yet have a legal umbrella. The non-progressive normative application of the law results in the overcapacity of prisons/remand centres. Currently, the Draft Criminal Procedure Code (hereinafter as RKUHAP) is being drafted, which does not yet regulate the application of non-litigation solutions. Later, it can be applied by law enforcement agencies so that problems such as overcapacity prisons are resolved and the creation of peaceful order in the community. This study aims to provide a view of the concept of penal mediation in criminal procedural law to serve as an aspiration for the consideration of the parties involved in the preparation of the substance of the RKUHAP. This paper uses a normative approach with technical analysis using hermeneutic analysis and interpretation methods.

ELECTRONIC EVIDENCE IN CRIMINAL PROCEEDINGS

2017 ◽  
Author(s):  
Anastasiia Antoniuk ◽  
◽  
Valeriia Rusetska ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Specialized Knowledge ◽  
Legal Proceedings ◽  
Electronic Evidence ◽  
Effective Implementation ◽  
Procedure Code ◽  
Definition Of ◽  
Developed World ◽  
Theoretical Issues

This article is devoted to the consideration of theoretical issues related to the introduction in Ukraine of the institution of electronic evidence of criminal proceedings. The article also raises the question of ways to obtain electronic evidence. The article notes that in the modern developed world there are more and more new types of crimes. In this context, we will consider crimes closely related to the use of information technology. Proving such crimes raises some difficulties. To date, it is relevant to consolidate the concept of electronic evidence in the Criminal Procedure Code of Ukraine and the formation of a methodology for their study. Also, the author of the article notes that among the unresolved and problematic aspects of using electronic evidence in criminal proceedings in Ukraine, scientists distinguish: the lack of a clear procedural procedure for obtaining them in accordance with the Criminal Procedure Code of Ukraine; lack of grounds for declaring electronic evidence inadmissible; difficulties in identifying and fixing electronic evidence due to the lack of specialized knowledge among investigators, which necessitates the involvement of specialists for conducting legal proceedings; lack of a developed methodology for studying such evidence; lack of uniform terminology and regulation at the legislative level. It is determined in the article that for the effective implementation of international law in the field of combating cybercrime, it is advisable to substantiate the need for a legislative definition of electronic evidence, sources of their formation, the admissibility of international cooperation through the exchange of electronic evidence, the expediency of using electronic methods of sending requests and responses about their implementation, the possibility application of control information supply for investigation of transnational computer crimes. Based on the above, the author offers his own definition of electronic evidence. It is concluded that it is necessary to legislatively consolidate the term "electronic evidence" and continue to study the category, the importance of developing a methodology for studying electronic evidence, the procedure for collecting and recording them.

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