Criminal Procedural Code Of Ukraine Research Articles

On the issue specificity of criminal proceedings concerning minors

The article is devoted to the study of the specifics of criminal proceedings involving minors, in the context of the norms of national legislation and certain scientific works. It has been determined that the special procedural position of children in criminal proceedings is determined by the age peculiarities of these субʼєктів. The actual international standards concerning the procedure of criminal procedural activity in proceedings involving minors are considered. It is noted that at the national level, the specificity of proceedings in cases of minors is represented primarily in the isolation of the legislative regulation of criminal procedural relations with the participation of these individuals, as evidenced by the provisions of Chapter 38 of the Criminal Procedure Code of Ukraine «Criminal proceedings against minors.».
 During the study, the opinions of domestic scientists on the most problematic issues related to the procedural features of criminal proceedings against persons who have not reached the age of majority were analyzed. As a result of a comprehensive analysis of the legal norms of criminal procedural legislation, it was proved that certain procedures and rules of criminal proceedings are adapted specifically to the needs of minors, although their basis are general legal norms. In particular, this fact is evidenced by the dualistic representation of the interests of the juvenile suspect and the accused, the special субʼєктний composition of the participants in criminal proceedings against minors and certain specific aspects both at the stage of pre-trial investigation of juvenile crimes and during subsequent court proceedings. The article also identified a number of problematic aspects related to the implementation of these provisions at the practical level, in the context of which it is proposed to introduce certain additions and changes to the Criminal Procedure Code of Ukraine.
 It is considered necessary to consolidate the special principles of criminal proceedings against minors at the legislative level in the form of a separate article. The conclusion focuses on the fact that despite the existence of certain shortcomings in the legal regulation of proceedings in cases of minors, the criminal procedure legislation of Ukraine is developing in the right direction.

Interaction of law enforcement agencies within the framework of international cooperation during the gathering electronic evidence of the commission of a crime

The article deals with issues related to the interaction of law enforcement agencies within the framework of international cooperation during the gathering of electronic evidence of the commission of a crime. Some aspects of the procedural order of providing/receiving a request for international legal assistance and the procedural activities of joint investigative groups have been analyzed.
 Such features of electronic evidence of the commission of a crime as resistance to external interference and the time of preservation of electronic information on a certain medium, which directly affect the vectors of interaction of law enforcement agencies, are singled out.
 Attention was drawn to certain normative and legal provisions of the Criminal Procedure Code of Ukraine; Instructions on the organization of the interaction of pretrial investigation bodies with other bodies and units of the National Police of Ukraine in the prevention of criminal offenses, their detection and investigation; of the Second Additional Protocol to the Convention on Cybercrime, which relate to issues of law enforcement cooperation and international cooperation.
 The shortcomings of the legal consolidation of certain procedural actions within the framework of international cooperation, which affect the subject of interaction of law enforcement agencies during the gathering of electronic evidence of the commission of a crime, in particular in emergency situations, are indicated. It was established that as a result of gaps in the law, which relate to the procedure for collecting electronic evidence during the investigation of crimes, in some cases, law enforcement agencies are forced to find ways to interact with other subjects on a voluntary basis. However, in the absence of voluntary consent from the other party, such an approach is not effective, and in combination with the overly bureaucratic order of international cooperation, the time spent on its compliance and the peculiarities of electronic evidence may lead to the loss of such evidence.
 Taking into account the shortcomings of the legislation, appropriate proposals for amendments and additions to the Criminal Procedure Code of Ukraine were provided.

Regulation of the institute of concepts in the active criminal procedure code of Ukraine

The article examines the issues related to the procedural institute of participation of concepts in criminal proceedings, its appearance, development and legislative regulation at different historical stages. It is noted that since its origin, this institution of procedural law has been observed as a guarantee of ensuring the rights and interests of participants of investigative actions against harassment by the investigating authorities. A number of procedural rules which contain information on the participation of concepts in pre-trial proceedings allow us to conclude that the institute of witnesses is present in the current Code of Criminal Procedure.
 The authors analyse the opinions of scientists on the viability of keeping the institute of concepts in the current CPC, due to the modern technical opportunities for objective and complete fixation of the course and results of the investigative action. The authors conclude that the legislator has a reasonable attitude to the use of the traditional institute of concepts and the use of modern technical devices for recording investigative actions. The authors note that keeping the institute of concepts in the current CPC of Ukraine requires further regulation. The classification of a concept as a participant in criminal proceedings requires appropriate modifications to the CPC and an independent article among other participants in criminal proceedings. It is proposed to define this participant in the process in the relevant provision, indicating his procedural status (list of rights and obligations), the range of persons who cannot be involved as witnesses, and the right of participants to the investigative action to challenge the concept.
 Based on the analysis of scientists’ opinions, doubts are expressed about the ability of concepts to create conditions for an objective and, moreover, proper proceeding of the investigative action, to ensure the legality of its performance. In most cases, witnesses are random persons who are not interested in the case. The author analyses the proposals of scientists regarding the competitive recruitment by local self- government authorities of individuals who are trustworthy and passing their lists to law enforcement authorities for the purpose of engaging concepts. The authors justify the proposals for further regulation of the institute of concepts.

Peculiarities of certain investigative actions and procedural guidance of the prosecutor during martial law

On 24 February 2022, a full-scale war broke out and martial law was introduced throughout Ukraine by Presidential Decree No. 64/2022 in connection with the military aggression of the Russian Federation. The efficiency and effectiveness of criminal proceedings during the martial law regime depends on the quality of criminal procedural rules.
 The armed conflict initiated and supported by the Russian Federation on the territory of Ukraine since 2014 has created new challenges for the system of both international and national justice. The article draws attention to the fact that with the introduction of martial law in Ukraine on 24 February 2022 in connection with the military aggression of the Russian Federation, a number of significant changes were made to both the «military» section IX-1 and other sections of the Criminal Procedure Code of Ukraine. The nature of violations of these provisions requires a different approach not only at the level of legal qualification, but also in the process of organisation and procedural guidance of the pre-trial investigation by the prosecutor.
 The author emphasizes that the testimony obtained during the interrogation of a suspect, including simultaneous interrogation of two or more already interrogated persons, in criminal proceedings conducted under martial law may be used as evidence in court only if a defence counsel participated in such interrogation and the course and results of the interrogation were recorded using available video recording equipment.
 The author draws attention to the fact that prosecutors who provide procedural guidance in criminal proceedings concerning crimes committed in the context of armed conflict should record the testimony of victims and key witnesses, in particular, on issues relating to the role of the Russian Federation and its subordinate formations in the context of armed conflict on the territory of Ukraine, including the temporarily occupied territories.
 Pre-trial investigations of criminal offences committed in the context of armed conflict can take a long time, and it is therefore important for law enforcement investigators and prosecutors to take measures to preserve information, primarily the testimony of victims and witnesses.
 When organising procedural guidance, prosecutors should take into account the peculiarities of conducting and recording the course and results of investigative (detective) actions under martial law.

Covert procedural means of investigator`s cognitive activity

The article deals with the problematic issues of regulatory framework for covert procedural means of investigator’s cognitive activity. It is emphasized that operative-search activities and covert investigative (search) actions have the same cognitive focus, but are regulated by different legislative acts. Covert investigative (search) actions are regulated in more detail than operational search activities which are carried out in accordance with the Criminal Procedure Code of Ukraine. It was determined that, despite the identity of covert means of knowledge, there is an epistemological contradiction, when the investigator cannot conduct covert investigative (search) actions, which are analogs of operational investigative measures, which can be implemented before entering the relevant information into the Unified Register of Pretrial Investigations, before the start of the pre-trial investigation. In addition, there are often cases when the investigator does not conduct covert investigative (search) actions on his/ her own, citing a heavy workload, which reduces the effectiveness of cognitive actions in the process of detection and investigation of criminal offenses. Other problematic aspects that exist within the provisions of the current operational and investigative legislation, as opposed to the criminal procedure law, are also noted. The greatest threat of imperfect regulatory regulation is the difficulty of further use of the materials of operational and investigative activities in the course of procedural proof. Therefore, it is considered a rational decision to provide for the possibility of covert investigative (search) actions by investigators before entering information into the Unified Register of Pretrial Investigations. According to the results of the study, it is noted that for the effective fulfillment of the tasks of criminal proceedings, as well as for the proper observance of human rights, freedoms and legitimate interests, the provisions of the criminal procedure law seem to be more favorable in terms of regulating the covert means of investigator’s cognitive activity.

Legislative regulation of criminal liability of judges for passing an unjust or illegal judgement

The article provides an analysis of the legislative regulation of criminal prosecution of judges for making a deliberately unlawful decision or in violation of procedural law. International standards on of criminal liability of judges and judicial immunity, as well as judicial decision, and generalized approaches of legislators of other states to criminalization of rendering an unjust, illegal and/or unreasonable or biased judgement, and for comparison and other acts related to the performance of judicial duties. The article examines the provisions of the Criminal Procedure Code of Ukraine regarding the legality and validity of a court decision. A court decision is based on the principles of the rule of law, it must be made by a court in accordance with the substantive law and in compliance with the procedural law, and must meet the objectives of the relevant legal proceedings, but if it is made on the basis of insufficiently and comprehensively clarified circumstances, then it is an unreasonable court decision that is not deliberately unjust.
 The study was also based on the case law of national and international courts. The issue of interpretation of “criminal liability” was based on the study of the practice of the Constitutional Court of Ukraine. Compliance with the procedural procedure for bringing judges to criminal liability contributes to the observance of guarantees of their inviolability and independence, plays an important role in the resolution of criminal proceedings on the merits and is a prerequisite for observance of the general principles of criminal proceedings and the delivery of a lawful, reasoned and motivated court decision.
 The article highlights that the concepts of “injustice”, “illegality” and “unreasonableness” are not synonymous and have different procedural content.

Certain aspects of the realization of the suspect’s right to defense in the criminal process of Ukraine

The article is devoted to the consideration of certain aspects of the implementation of the suspect’s right to defense in the criminal process of Ukraine. It is noted that one of the principles of criminal proceedings is ensuring the right to defense. Thus, according to Article 20 of the Criminal Procedure Code of Ukraine, a suspect, accused, acquitted, convicted person has the right to defense, which consists in giving him the opportunity to provide oral or written explanations about the suspicion or accusation, the right to collect and submit evidence, to take personal part in criminal proceedings, to use the legal assistance of a defender, as well as to exercise other procedural rights provided for by this Code.
 The author emphasized the multifaceted approaches to defining the definition of «protection», which is evidenced by the diversity of viewpoints of scientists on this issue.
 The article emphasizes that a person’s right to defense is connected with the initiation of criminal proceedings, namely from the time of entering information into the EDDR or informing a person of suspicion of committing a criminal offense and acquiring the status of a suspect.
 The participation of a defense attorney in the criminal process is an important guarantee of ensuring the suspect’s right to defense. An essential feature of the lawyer’s procedural status is the obligation to use the procedural rights granted to him in the interests of his client.
 It is noted that in European countries attention is paid to the principle of early access to legal aid. In order to effectively implement the suspect’s right to defense in the criminal process of Ukraine, it is also necessary to apply the precedent practice of the ECtHR.
 The author draws attention to the fact that among the main violations related to the participation of the defense counsel in criminal proceedings, it is appropriate to single out: failure to ensure the mandatory participation of the defense counsel in cases provided for by law; restriction of the right to freely choose a defense counsel; obstacles to the implementation of procedural rights, which are associated with obtaining free legal aid.

ШЛЯХИ ВДОСКОНАЛЕННЯ НОРМАТИВНО-ПРАВОВОГО ЗАБЕЗПЕЧЕННЯ ВИКОНАННЯ СУДОВИХ РІШЕНЬ ЩОДО ЗАСУДЖЕНИХ У МІСЦЯХ НЕСВОБОДИ

The article states that the Russian-Ukrainian war had a profound impact on important state decisions regarding the reform of the criminal justice system and its transformation into a penitentiary system. This was especially evident with the opening of new correctional colonies for prisoners of war of the Russian Federation and the serving of punishment for war crimes as servicemen of the armed forces of the Russian Federation and collaborators among citizens of Ukraine. The improvement of legal and regulatory enforcement of court decisions regarding convicts in places of imprisonment is determined by the need to revise the existing legal and regulatory framework, with the aim of bringing it into line with the new needs of the socio-economic and political-legal development of Ukraine. It is noted that the following problems have been identified in the practical sphere of bodies and institutions for the execution of punishments in terms of the execution of court decisions regarding convicts in places of imprisonment: a) the execution of court decisions by prison personnel is complicated by the fact that the bodies and institutions for the execution of punishments receive court decisions on various categories of convicts: first-time convicts, previously convicted, women, men, minors, and therefore their reception has its own peculiarities; b) description of the mechanism of execution of court decisions by the staff of places of imprisonment in the precedent practice of the Supreme Court and its analysis in terms of harmonization with national legislation and the practice of the ECHR; c) ensuring the correct interpretation of the mechanism of execution of court decisions by the staff of places of imprisonment and developing the necessary legislative initiatives on this basis; d) working out the mechanisms for the execution of court decisions by the staff of places of imprisonment by improving the criminal-executive legislation, taking into account the content of its reformatory changes, introduced amendments, prescriptions of the Constitutional Court of Ukraine, provisions of international legal acts, decisions of the ECHR and the precedent practice of the Supreme Court, which are often in the situation dynamic changes and incomplete systematization. The solution to these problems requires the Ministry of Justice of Ukraine to introduce legislative amendments to improve the current criminal-executive legislation, corrections to the functioning of the criminal-executive system, cooperation with state and non-state organizations as part of the proper execution of court decisions regarding convicts in places of imprisonment. Our analysis of the source base of the research proved the need to develop an effective concept of execution of court decisions regarding convicts in Ukraine, as various difficulties arise in practice, the causes of which are both the imperfection of domestic legislation and the reluctance of the staff of the penal institutions to comply with them. The need to introduce changes and additions to the Criminal Procedure Code of Ukraine and the current legal acts of the Ministry of Justice of Ukraine regarding the improvement of the proper execution of court decisions regarding convicts in Ukraine is substantiated. Key words: improvement, execution, court decision, convict, places of imprisonment.

Smuggling “in the new way” or analysis of the latest legislative changes

The article examines the changes made to the CC by the Law of Ukraine “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine regarding the criminalization of smuggling of goods and excise goods, as well as false declaration of goods” dated 09.12.2023 № 3513-IX. It not only brought back criminal responsibility for smuggling of goods as an independent component of the crime, also made several other changes to Chapter VII of the Special Part of the CC. The purpose of this article is to analyze the legislative amendments regarding the recriminalization of smuggling of goods, excise goods and to develop a proposal for further improvement of the provisions of Art. 201, 201-1, 201-3 and 201-4 of the CC.
 The analysis of the novels made it possible to establish that, on the one hand, the recriminalization of the smuggling of goods is a rather successful decision of the legislator, since for a long time it was an urgent need that both scientists and practitioners talked about. On the other hand, the adoption of Law № 3513-IX, first of all, violated the system of norms located in Chapter VII of the Special Part of the CC. It seems that in Art. 201 of the CC should establish criminal liability for smuggling of goods, while in Art. 201-1 of the CC should provide for criminal liability for the smuggling of goods that have specific conditions for their export/import (excise goods, timber or lumber of valuable and rare tree species, unprocessed timber), as well as items that are prohibited to be exported from Ukraine (cultural values, other timber that is prohibited for export outside the customs territory of Ukraine). Provisions on the smuggling of other items should be fixed in Chapter IX or XIII of the Special Part of the CC of Ukraine. It is not possible to agree with the minimum amount of contraband goods established by the legislator, which is related to their total value. The sanction for smuggling goods is subject to criticism, as it does not take into account the requirements of Part 2 of Article 53 of the CC. There is also a question regarding the final punishment in cases of smuggling of goods and other items provided for in Art. 201, 201-1 and 201-4 of the CC. It is also appropriate to exclude points 1 and 2 of the footnote to Art. 201 of the CC, which provides definitions of methods of committing the smuggling of any items.

Criminal procedural consequences of the court’s return of an indictment to the prosecutor

The article analyses the criminal procedural consequences which will occur under the current Criminal Procedure Code of Ukraine if the court returns an indictment to the prosecutor. Based on a comparison of the provisions of the Criminal Procedure Code of Ukraine of 1960 and the current Criminal Procedure Code of Ukraine, it has been established that the current consequences of returning an indictment by a court are different from those which existed when a case was returned for additional investigation under Article 246 of the Criminal Procedure Code of Ukraine of 1960 by a judge's decision. It has been argued that no practical attempts should be made, contrary to the provisions of the current Criminal Procedure Code of Ukraine, to impose on the existing (albeit not perfect) procedural procedure for the prosecutor to eliminate the deficiencies of the indictment, the features of additional investigation which are not inherent to it.
 It has been determined that the return to the prosecutor of an indictment or a petition for the application of compulsory medical or educational measures due to the fact that they do not meet the requirements of paragraph 3 of Part 3 of Article 314 of the Criminal Procedure Code of Ukraine does not resume the pre-trial investigation, nor does it restore the course of its term. It has been proved that after returning the said procedural documents to the prosecutor, the prosecution should act without unreasonable delays and should not conduct new investigative (search) actions or other actions related to the collection of evidence. Such a return does not exclude the possibility of the prosecutor performing certain procedural actions which are of an organisational nature or are necessary to ensure the execution of a court order and to correct the deficiencies of an indictment, or a request for the application of compulsory medical or educational measures. It has been argued that a prosecutor may not, by abusing his/her rights (powers), i.e. contrary to the scope and procedure for exercising his/her discretionary powers, use the return of the above documents to actually continue the pre-trial investigation and eliminate its shortcomings. It has been concluded that in case of the opposite development of events, due to the commission of a criminal procedural offence by the prosecutor, there will be grounds for criminal procedural consequences, for example, the court's declaring the evidence inadmissible or those provided for in paragraph 10 of Part 1 of Article 284 of the Criminal Procedure Code of Ukraine.

Evaluation of evidences when applying the "reasonable suspicion" standard of proof by investigating judges

The article is devoted to the problem of establishing the factual circumstances of the case at the stage of court control when applying the "reasonable suspicion” standard of proof. The crux of the problem is that, in practice, the vast majority of investigating judges understand this standard of proof as one that relieves them of the obligation to fully evaluate and examine the evidence and provides an opportunity to establish the reasonableness of the suspicion thanks to the so-called "reasonable evaluation of the evidence”. By making such a "reasonable assessment”, the investigating judge, without resorting to a detailed assessment of the person's actions, supposedly only has to make sure that the reported suspicion is well- founded. At the same time, the provided evidence is not subject to the same high requirements as when formulating the final indictment when the case is sent to court. Thus, without evaluating the evidence, investigating judges do not establish the factual circumstances of the case.
 The fallacy of dividing the evaluation of evidence into preliminary and final is substantiated. It is noted that the term "reasonable evaluation of evidence” is not defined either in legislation or in court practice. It is proved that at the stage of court control there is a local subject of proof, which differs from the subject of proof at the stage of consideration of criminal proceedings on the merits. It is substantiated that the evaluation of evidence is an integral part of the process of proving. The internal conviction of the investigating judge (as a result of the evaluation of the evidence), necessary for making a decision on the case, can be formed only as a result of the evaluation of the evidence according to the criteria defined by Art. 94 of the Criminal Procedure Code of Ukraine. "Reasonable evaluation of the evidence” without a detailed assessment of the person's actions and without "high requirements for the provided evidence” does not make it possible to establish the set of circumstances that are part of the local subject of proof and which are necessary for the correct resolution of the relevant procedural issue, and to form the appropriate internal conviction of the judge (as the result of the evaluation of the evidence). Decisions of investigative judges, which are made as a result of the so-called "reasonable evaluation of evidence”, cannot be considered reasoned in the sense of Part 3 of Art. 370 of the Criminal Procedure Code of Ukraine.

Problems of normative regulation of procedural means of cognitive activity of the investigator

The article examines the cognitive orientation of investigative activity during pre-trial proceedings. It emphasizes that cognitive activity in the process of disclosing and investigating a criminal offense is determined by the provisions of the current Criminal Procedure Code of Ukraine, procedural means primarily aimed at understanding the circumstances to be established. Undoubtedly, these means should contribute to obtaining new knowledge about circumstances relevant to criminal proceedings, but in accordance with Part 8 of Article 223 and Part 5 of Article 280 of the Criminal Procedure Code of Ukraine, if pre-trial investigation is completed, the terms have expired, or it has been suspended, the investigator's activity related to understanding past events ceases due to the prohibition on conducting investigative (search) actions. However, investigative (search) actions also include measures to ensure criminal proceedings, such as detention, temporary access to items and documents, temporary seizure of property, and property arrest. However, since the regulatory framework for investigative (search) actions and measures to ensure criminal proceedings remains vague, the question arises about the possibility or impossibility of using these measures outside the deadlines of pre-trial investigation to obtain evidence in criminal proceedings without violating the general principles of criminal proceedings (primacy of law, legality, reasonableness of deadlines). Based on this, it is suggested that the cognitive nature of some measures to ensure criminal proceedings reflects the imperfection of the regulatory distinction between investigative (search) actions and measures to ensure criminal proceedings, considering their general definition in the norms of criminal procedural law. Finally, the question is raised about the investigator's ability to obtain information about the circumstances of committing a criminal offense through measures to ensure in a suspended criminal proceeding.

Problematic issues of legal regulation of participation of an advocate in criminal proceedings for the provision of professional legal assistance to participants in such proceedings

The article determines that, at first glance, the legal regulation of the activities of an advocate in criminal proceedings is well regulated, complies with international standards and does not require any adjustment.
 The article determines that, at first glance, the legal regulation of the activities of an advocate in criminal proceedings is sufficiently regulated, complies with international standards and does not require any adjustment. However, as practice shows, many problems arise in the implementation of criminal procedural law based on conflicts and gaps in it. Among them, a major place is occupied by the problems of defense, representation and other types of professional legal assistance to participants in criminal proceedings by an advocate.
 The article examines the state of legal regulation of participation of an advocate in criminal proceedings to provide professional legal assistance to the participants of such proceedings. The authors analyze the absence of the right of the victim and his/her representative to engage an expert in criminal proceedings on contractual terms, other restrictions on the rights of the victim and his or her representative to collect evidence, the right to review the pre-trial investigation materials before its completion, no right to receive a copy of the notice of suspicion and indictment, no right to file a request to the investigating judge for temporary access to things or documents, as well as the right to appeal against a preventive measure applied to a suspect/accused on the grounds of its leniency, etc.
 The article also analyzes the rights of a representative of a civil plaintiff or a civil defendant in criminal proceedings in relation to the rights provided for by the Civil Procedure Code of Ukraine, the author draws attention to the need to provide representation for another owner or possessor of property in legal relations regarding the right to file a petition to cancel the arrest of property in whole or in part, and considers the procedural status of a witness's advocate and a whistleblower's advocate.
 The article proposes amendments to the provisions of the Criminal Procedure Code of Ukraine in the context of legal regulation of participation of an advocate in criminal proceedings to provide professional legal assistance to the participants of such proceedings.

The use of evidence in criminal proceedings as a component of the evidetiary process

The article is devoted to elucidating the essence and content of the use of evidence, as well as to justifying the identification of such a category as a separate component of evidentiary process in criminal proceedings. It was found that despite the absence of the category "use of evidence” among the provisions of Part 2 of Art. 91 of the Criminal Procedure Code of Ukraine, the term is used by the legislator in a number of articles of the current CPC of Ukraine. The positions of domestic scientists regarding the essence of the use of evidence were analyzed. It was found that the majority of doctrinal definitions of this term boil down to the understanding of the use of evidence as the manipulation of it (evidence, their procedural sources, evidentiary information) for the performance of intermediate and final tasks (that is, the achievement of certain positive results) in criminal proceedings.
 Based on the study of the provisions of the current legislation and doctrinal sources, it was established that evidence is used by justifying, making, and implementing decisions in criminal proceedings. The following forms of evidence use are singled out: procedural decisions, decisions on submitting evidence to the court and substantiating legal positions with them, on submitting motions and complaints during the pre-trial investigation, tactical decisions of the prosecution and other subjects of evidence. The general mechanism of making the listed decisions and the place of use of evidence in the system of components of evidentiary activity are considered.
 The use of evidence is defined as a component of the evidentiary process, a set of logical and instrumental operations consisting in justifying with evidence (evidential information), making and implementing decisions by the subject of proof in order to fulfill their own tasks in criminal proceedings.
 Further research prospects in the analyzed field are related to the scientific and theoretical study of the essence, types and mechanism of decision­making in criminal proceedings as a form of evidence use.

Peculiarities of conducting an examination during the investigation of sexual criminal offenses

It has been emphasized that during the formation of the methodology of the investigation of sexual criminal offenses, it is necessary to highlight the procedural and tactical features of conducting individual investigative (search) actions. The necessity of distinguishing and characterizing the peculiarities of conducting an examination during the investigation of sexual criminal offenses has been substantiated. The importance of examination during the investigation of sexual criminal offenses has been revealed. It has been noted that the procedural procedure for conducting an examination during a pre-trial investigation of the investigated category of criminal offenses is defined in Part 3 of Art. 214, Art. Art. 223, 233, 237-239, 615 of the Criminal Procedure Code of Ukraine. It has been found that the main tasks of the review during the investigation of sexual criminal offenses are: the search for traces of biological origin that could have been left by the offender and may later become objects of his identification, the detection of technical means of recording sexual acts and their broadcast, the detection of pornographic products , draft records, etc. Forensic recommendations on the tactics of conducting an examination have been formed, taking into account the type of criminal offense under investigation, the specifics of the trace picture, the type of examination and the stage of its conduct. It has been determined the peculiarities of the inspection of the area, which is the place of the event; the premises, which is the place of the event; things and documents (clothes and shoes of the victim and the suspect, notebooks, photos and videos, computers, mobile phones, etc.). The specifics of the review tactics of information and telecommunication systems, computer equipment and devices with a telephone function, which were used as means of preparation, direct commission and concealment of sexual criminal offenses, have been clarified..

Separate procedural aspects of the search

It is indicated that the tasks of criminal proceedings are to protect the person, society and the state from criminal offenses, to protect the rights, freedoms and legitimate interests of the participants in criminal proceedings, as well as to ensure a quick, complete and impartial pre-trial investigation and trial, so that everyone who has committed a criminal offense , was prosecuted to the extent of his guilt, no innocent person was charged or convicted, no person was subjected to unreasonable procedural coercion, and that due process of law was applied to each participant in the criminal proceedings.
 Accordingly, the article is devoted to the coverage of one of the most complex and strict investigative (search) actions in criminal proceedings, namely, the theoretical and practical issues of conducting a search and the role of participants in this procedural action during its conduct. The current legislation, which regulates the search, was analyzed, some changes and additions to the current Code of Criminal Procedure of Ukraine were proposed. The need for criminal procedural clarification of the circle of subjects who have the right to be present during the search was emphasized, it was noted that the application of the proper legal procedure will contribute to the protection of human rights and freedoms in criminal proceedings.
 Summing up, the article notes that during the search, the prosecution is empowered with broad powers provided for by the Criminal Procedure Code of Ukraine. Due to the fact that some procedural issues are not clearly regulated by the legislator, the person conducting the search uses procedural loopholes to his advantage. Precisely in order to specify the powers of the prosecuting party during the search, we propose to supplement Part 2 of Art. 235 of the CCP of Ukraine.

Actual problems of admissibility of evidence: issues of obtaining and use

The article reveals the problematic issues of admissibility of evidence, as well as the types and criteria of admissibility defined in the provisions of the Criminal Code of Ukraine.
 Proposals for improving the conceptual apparatus regarding the considered issues and provisions of the current legislation have been put forward. The relevance of the publication is determined by the need to improve the process of proof in the field of criminal justice and the development of effective mechanisms for the investigation of criminal offenses.
 The purpose of preparing the article was to reveal the main provisions of the content of admissibility of evidence in the criminal justice system of Ukraine, as well as some relevant issues that are directly related to this. The prerequisites for the formation of the specified goal were the modern problems that arise during the pre-trial investigation in criminal proceedings.
 The author used general scientific and special methods of scientific knowledge. Thus, from the general scientific methods, in particular, the system-structural method, the method of functional analysis, from the special ones - formal- legal, logical-procedural methods, the method of comparative jurisprudence were used. The main legislative norms related to the topic of the publication have been analyzed.
 The publication proves that the requirements that determine the procedure for obtaining evidence in relation to the possibility of their further use are conventionally divided into those that have a negative or positive content. Such a classification makes it possible to predict the behavior of an investigator, prosecutor or judge in implementing the relevant provisions of the Criminal Code of Ukraine. It is also proven that in part 1 of Art. 86 of the Code of Criminal Procedure of Ukraine, it is advisable to establish the provision that the evidence is recognized as admissible if it is obtained in the manner established by the criminal procedural legislation of Ukraine, and not only the Code of Criminal Procedure. It is also noted that in Art. Art. 87 and 88 of the Criminal Procedure Code of Ukraine recognize certain conditions of inadmissibility of evidence related to a significant violation of human rights and freedoms and groundless use of evidence and information related to the identity of the suspect or accused. At the same time, any other violations of the provisions of the Criminal Code of Ukraine can be considered relatively inadmissible, if only because of the insignificant nature of the legal consequences that arise and the real possibility of their elimination.

DIFFERENCES BETWEEN "SPECIALIST'S OPINION" AND "EXPERT RESEARCH OPINION" IN CASES OF FORENSIC MEDICAL EXAMINATIONS ON A CONTRACTUAL BASIS

The article presents topical issues related to the appointment of forensic medical examinations and research at the request of the defense in criminal proceedings, as well as procedural features of the participation of specialists in expert work at the pre-trial investigation stage. Similarities and differences of subjects using special knowledge, namely specialist and expert, were studied. Ways to improve the participation of specialists in the pre-trial process are proposed.
 Aim of the work. The purpose of the work is to determine the differences between the "Specialist's Opinion" and the "Expert Research Conclusion" in cases of forensic medical examinations on a contractual basis.
 Results. It was established that "Expert's opinion", "Specialist's opinion", "Consultation" cannot correspond to the expert's opinion according to the following criteria: the qualification requirements for persons with special knowledge are different, and the qualification requirements for a specialist at the regulatory level are not defined at all. Similarities and differences of subjects using special knowledge, namely specialist and expert, were studied. Ways to improve the participation of specialists in the pre-trial process are proposed.
 Conclusions. If, in order to obtain a specialist's opinion, all the requirements inherent in an expert's opinion must be followed, then the question arises of the feasibility of obtaining such an opinion, instead of evaluating the evidence in a method proven by practice, namely, conducting a forensic medical examination. "Expert's opinion", "Specialist's opinion", "Consultation" cannot correspond to an expert's opinion according to the following criteria: the qualification requirements for persons with special knowledge are different, and the qualification requirements for a specialist at the regulatory level are not defined at all. It is expedient to amend Article 102 of the Criminal Procedure Code of Ukraine on the procedure for warning an expert about responsibility for a knowingly false conclusion and refusal without valid reasons to perform the duties assigned to him in the case of providing the conclusions of an expert study, on a contractual basis. Article 243 of the Criminal Procedure Code of Ukraine should be supplemented with paragraph 71 of the following content: "A copy of the agreement with the expert institution on conducting the examination, a copy of the receipt for payment of the appointed examination shall be attached to the decision of the investigating judge on the commission of the examination. In Article 71 "Basics of the legislation of Ukraine on health care" it is necessary to introduce a provision on the possibility of conducting a forensic medical examination at the request of the defense party or the victim.We consider it expedient to: 1) create in higher education institutions (medical universities) advisory groups of scientific and pedagogical workers (docents, professors), 2) have them undergo thematic improvement cycles in medical jurisprudence and the basics of forensic medicine.

Regarding the issue of using digital information obtained during counterintelligence and investigative activities in criminal proceedings

In this article, based on the analysis of scientific publications, the norms of the current legislation, the authors investigate the actual problems of using digital information obtained during counterintelligence and investigative activities in the criminal process. The norms of legislation in the field of ensuring state security and the Criminal Procedure Code of Ukraine regarding the possible use of digital information as evidence in court proceedings are analyzed. Scientific developments and international experience regarding the use of counterintelligence and investigative activity materials in digital form as evidence in criminal proceedings in the context of their admissibility are considered. The authors prove that the vast majority of digital information, which in the future may have evidentiary value, is obtained by conducting covert activities during the implementation of counterintelligence and investigative activities. Such digital information, according to the authors, can only serve as pretexts and grounds for starting a pre-trial investigation in criminal proceedings. The article notes that insufficient harmonization of criminal procedural legislation and legislation regulating counterintelligence and investigative activities negatively affects the effectiveness of operational units in performing their tasks. It is also noted that the further reform of the domestic law enforcement system should follow the example of leading Western countries and the USA, where the concept of “operational investigative activity” is absent at all. In most of the foreign democratic countries of the world, secret police investigation is a criminal procedural activity, which is overt and undercover procedural actions carried out under the direction of the prosecutor. The authors of the article conclude that in order to strengthen the counter-intelligence component in the activities of the Security Service of Ukraine and taking into account foreign experience in this area, it is necessary to create a separate, without reference to the requirements of the provisions of the Law of Ukraine “On Operational and Investigative Activities” and the Criminal Procedure Code of Ukraine, a mechanism for organizing and carrying out activities related to the temporary restriction of human rights and freedoms.

Specificity of special knowledge use by the defense attorney in criminal proceedings

This paper outlines the study of special knowledge use by defense attorney in criminal proceedings and its specificity. It is noted that defense effectiveness is directly determined by correct tactical decisions made within the criminal proceedings, namely structuring the defense algorithm to achieve the desired result. Selection of such tactical solutions depends, in particular, on the level of defender’s special knowledge or one’s awareness regarding its application by other authorized parties.
 The aim of this paper is to determine the specificity of special knowledge use in criminal proceedings by the defense attorney.
 Paper provides a linguistic and academic interpretation of the «special knowledge» concept. Authors note that it is necessary to take into account the purpose of its use (that is, not only for investigation, solving or prevention of criminal offenses, but also for the protection of rights, freedoms and legitimate interests of the suspect, accused and other subjects under Article 45 (1) of the Criminal Procedure Code of Ukraine) while defining the content of the specified concept. Attention is also paid to forms of special knowledge application by the defense attorney in criminal proceedings. It is emphasized that one may support the investigative process and justification of defense position based on the opinion of a specialist or expert with such justification grounded for the prosecution party.
 Author concludes that specificity of special knowledge use by the defense attorney in criminal proceedings stipulates: ability to directly apply it (independently), but with limits in comparison to pre-trial investigation bodies, and indirectly (involve a specialist or forensic expert (or request their opinions) via an investigator, inquirer, prosecutor, investigating judge, court to); use of knowledge backed by well-known constitutional principle «everything is allowed unless expressly prohibited by law» - authorized persons of pre-trial investigation bodies, though, use it only in accordance with a specific clause from a legal act of a different hierarchical level (based on legal force).