INVESTIGATIVE SITUATIONS OF INTERROGATION OF A VIOLENT CRIMINAL DEFENDANT

The article examines the problems of the tactics of interrogating the defendant when the court considerscriminal cases of violent crimes against the person. The urgency of such a study is substantiated. Theimportance of the interrogation of the defendant in the establishment by the court of the circumstances ofthe criminal event in question is noted. Typical situations of judicial investigation are determined, dependingon the position of the defendant. The differences of such situations from investigative situations emerging atthe stage of preliminary investigation are revealed. The features of investigative situations of interrogation ofthe defendant, their significance for the construction of the tactics of the judicial investigation are considered.The peculiarities of the formation of the testimony of the defendant during the judicial examination ofcriminal cases of violent crimes, the factors influencing their formation are revealed. Highlighted the typicalversions put forward by the defense when the court is considering criminal cases of violent crimes. Tacticalrecommendations for organizing the interrogation of the defendant are formulated, the circumstancesthat require clarification during interrogation are indicated, tactical techniques that can be used by theprosecution to ensure the effectiveness of the interrogation are determined.

FORENSIC MEDICAL ASSESSMENT OF INJURY SEVERITY OF LARYNX AND HYOID BONE BASED ON PRE-JUDICIAL AND JUDICIAL INVESTIGATION

Victims with fatal and non-fatal closed blunt trauma of the larynx and hyoid bone often become the object of forensic medical service during the pre-judicial and judicial investigation. The purpose of this study is to analyze the features of expert qualification of bodily injuries in victims with closed blunt trauma of the larynx and hyoid bone, depending on the nature and severity to determine ways to unify its forensic diagnosis. Materials and methods. The study was based on the conclusions of 35 forensic medical examinations of cases of closed blunt trauma of the larynx and hyoid bone, obtained from the leading expert institution of the Kharkiv region. Results. We determined the peculiarities of estimating the degrees of severity of above bodily injuries. Severe injuries were found in 12 (34.4%) cases of death of the victims from mechanical asphyxia, in one case of reflex cardiac arrest, and in one case of traumatic shock. Injuries of moderate severity were established by experts in 6 (17.1%) cases of lethal and in 6 (17.1%) cases of non-lethal cases with laryngeal cartilage fractures; in 2 (6.2%) cases of non-lethal injuries with acute oedema, hematoma, laryngeal stenosis of the second degree. 7 (20%) cases of non-lethal laryngeal injuries with further development of acute posttraumatic laryngitis were qualified as simple injuries. Conclusion. There are no clear morphoclinical criteria for objective assessment of injuries of the larynx and hyoid bone that can lead to pre-diagnostic expert errors. According to the results of the work, the ways to unify forensic medical assessment and diagnosis of such injury was determined.

The “Magnificent Seven Errors” in Forensic Autopsy Practice: The Italian Context

According to the Italian legal system, forensic autopsies are performed by a medical doctor specialized in legal medicine, otherwise known as a medicolegal expert (MLE), who has a range of very complex responsibilities. Indeed, the quality of forensic autopsy activity is always questioned in courts of law; incorrect assessments are dangerous because they can jeopardize the validity of a criminal investigation and thus affect the outcome so that a real culprit may be acquitted or an innocent person convicted. Nonconformities also discredit the professionalism of the specialist who performs the autopsy. The work of a MLE implies a series of assignments and duties that should be given constant consideration, but when certain aspects of this activity are underestimated or overlooked, this can lead the expert to make mistakes with irreparable consequences for the judicial investigation. In this article, for the first time, we present a summary of seven known errors related to autopsy activity following death by unnatural causes, with the purpose of alerting MLEs who work under the Italian judicial system to the potential dangers of such errors. These relate to: oversights in autopsy technique, incorrect collection of photographic and video material, unauthorized attendance at the autopsy, missing/mistaken reporting at any stage of the forensic activity, failure to notify the party forensic consultant, using histological or toxicological nonaccredited laboratories for forensic activities, and lack of observance of the chain of custody.

Problems of the Criminal Prosecution of Persons Who Committed Actions Constitution Implication in a Crime

The paper discusses highly latent actions constituting implication in a crime. The goal of this study is to identify the problems of criminally prosecuting persons who committed actions constituting implication in a crime, to qualify them and to develop recommendations for their elimination. Formal legal and comparative legal methods were used to obtain and process results relevant for the research, the statistical method was used to collect and analyze data on the examined crimes, and the sociolo­gical one — to conduct a survey of experts. An analysis of criminal cases made it possible to state that the problem of criminally prosecuting persons who committed actions constituting implication in a crime is connected with the problems of their qualification, and with widening the institute of implication through failure to report a crime; this action is included in the Criminal Code of the Russian Federation in connection with the topical issues of terrorism threat, a growing number of terrorist crimes and the necessity to protect the society from them. The authors believe that it is reasonable to recognize 16 years old as the minimum age of criminal responsibility for failure to report a crime. It is proven that the criminal character of implication in a crime could be based not only on the guilty verdict for the main case, but also on other procedural acts. It is concluded that implication in a socially dangerous act is possible for a person who does not possess the attribute of a subject of a crime due to his/her mental incompetence, and is also possible for a crime committed in complicity. It is stated that concealment of a crime is constituted by actions to conceal the event of the main crime, its traces, the objects obtained through criminal means, or the person who committed the main crime. It can be committed not only through physical, but also through intellectual actions. The authors suggest differentiating between criminal liability for the concealment of grave and especially grave crimes. The analysis of judicial investigation practice made it possible to identify typical models of qualifying actions constituting implication in a crime, as well as psychological, moral, criminological and criminal law features of a person who conceals a crime or fails to report it. Based on the authors’ position, a formulation of the decree of the Plenary Session of the Supreme Court of the Russian Federation «On some issues of implication in a crime» is suggested.

Rare (uro-)genital pathologies in young girls mimicking sexual abuse

Examinations of young children for suspicions of sexual abuse are challenging for the involved medical specialists because the consequences of the interpretation of the findings can be severe and dramatic. A broad knowledge of differential diagnoses including rare pathologies like urethral prolapse and failure of the midline fusion of the perineum, known as perineal groove, is essential in order to avoid unnecessary diagnostics and treatment, prejudgment, and to reduce patient family’s anxiety. We report two independent cases of girls aged 7 months and 5 years suffering from these rare pathologies, one presenting with painless lower genital tract bleeding, the other showing a lesion of the perineum as random finding during a neuropediatrician’s consultation. In both cases, the pathologies were initially misdiagnosed as injuries due to sexual assault, and judicial investigation procedures were initiated. In this paper, the characteristic symptoms and morphology of urethral prolapse and perineal groove are presented to enhance the awareness of these pathologies among forensic experts and help to establish the correct diagnosis.

THE ISSUE OF THE FORMATION OF PERSONAL EVIDENCE IN THE JUDICIAL INVESTIGATION IN A CRIMINAL CASE

An investigative model is included in the modern approach to criminal procedural proof. This is most clearly manifested in the process of generating personal evidence. Its central elements are interrogation and other investigative actions, which are aimed at obtaining evidentiary information from persons. The judicial phase is not required in the formation of personal evidence. The court may be satisfied with the knowledge gained by the investigator from different persons. Such information is presented in the form of investigative actions records and other materials of the criminal case. This technology for the formation of personal evidence does not meet the standards of a fair trial, which requires that only the court is authorized to form the final form of evidence from their primary sources. Direct and cross-examination should be recognized as the main elements of the formation of personal evidence in a criminal case. All other means (documents in written or electronic form) may have just secondary evidentiary value. Therefore, testimony given during the pre-trial proceedings should be disclosed only in cases where the defense denies the accusation. The procedure for presenting or examining derivative personal evidence is acceptable in undisputed cases where interrogation may not take place. The transition to an adversarial model of the personal evidence formation in court involves a change in the form of accusation: from investigative to judicial and procedural presumption that any information obtained by the parties before the trial should be orally and adversarial examined during the trial.

IMPLEMENTATION OF THE RIGHT TO PROTECTION IN THE PROCEEDINGS OF THE INQUIRY IN AN ABBREVIATED FORM

The article deals with the problems of ensuring the right to protection of suspects in criminal proceedings on crimes investigated in a reduced form of inquiry. The authors draw attention to the need to exclude the formal approach in ensuring the right to a defense in the production of an inquiry in a shortened form, since subsequently the criminal case is considered in a court session in the order of chapter II. 40 of the Code of Criminal Procedure of the Russian Federation, in which there is no judicial investigation, in connection with which the accused, who does not understand the subtleties of the procedural form, becomes its hostage, the defender must ensure the protection of his rights. The authors substantiate the need for mandatory involvement of a defense lawyer to resolve the issue of conducting an inquiry in a shortened form and its subsequent mandatory participation in the criminal proceedings. The position on the inadmissibility of making a decision on the use of an inquiry in a shortened form in the presence of a lawyer on duty, in the presence of a lawyer by agreement, if the latter could not appear for the first interrogation of the suspect, is defended. The authors propose a procedure for admission to participation in the case of a defense lawyer in the course of conducting an inquiry in a reduced form, making a decision on the possibility of conducting an inquiry in this form, and highlight the features of exercising the right to a defense when familiarizing with the materials of a criminal case.

“JUDICIAL INVESTIGATION” IN CIVIL AND ARBITRATION PROCEDURE

In modern conditions, the abundance of various open sources of official information (mainly on the Internet) makes legally significant information on the case available to an indefinite circle of people. In the current reality, obtaining evidentiary information of this kind does not seem to be excessively labor-intensive for the court. The article discusses whether it is advisable to artificially restrict the court in obtaining this information only for doctrinal reasons of presenting evidence by persons participating in the case, and whether it is unacceptable for the court to collect evidence on its own initiative. The existing restriction seemed to be relevant in conditions where the evidentiary information was of an exclusive nature, and it was associated with certain efforts for the parties to obtain it. At the moment, the court is able to conduct a kind of “judicial investigation”, which is aimed at both discovering new information and verifying the information provided by the parties. By “judicial investigation” the author does not mean any formal procedure integrated into civil or arbitration proceedings, but rather a functional, cognitive aspect of judicial activity. Through “judicial investigation”, the court acquires a powerful tool for establishing and verifying the facts alleged by the parties. Considering possible arguments “for” and “against” such an investigation, the author leans in favor of its admissibility, despite the fact that it does not have a general character, does not turn into a purposeful search and collection by the court of information about the parties to the process and the case on the Internet, but turns into a targeted means of checking individual legally significant circumstances of the case.

Should the refusal of the prosecutor from the prosecution be mandatory for the Russian court?

The article examines questions about the right of the prosecutor to refuse from prosecution and the binding nature of such refusal for the court. Two doctrinal approaches to solving these problems are considered: the American, where the prosecutor has the right to refuse to charge and this entails the termination of the criminal case, and the continental (power of attorney theory), where the prosecutor cannot declare such a refusal in principle, since he is not vested with this authority on the part of society. The fundamental possibility of the prosecutor’s official refusal to be charged in the Russian criminal process is justified, provided that it is motivated, his statement is only after the judicial investigation and with the obligatory continuation of the court’s consideration of the merits after such refusal. At the same time, the question of the relationship of this approach with the principle of adversarial parties is considered, and it is concluded that there is no danger of reducing the guarantees of adversarial and equal rights of the parties in the subsequent consideration of the criminal case by the court on the merits.