ON THE ADVERSARIAL OF THE PARTIES IN CONDUCTING A JUDICIAL EXAMINATION

Abstract

The article examines the implementation of the adversarial principle in the examination in criminal proceedings. Attention is drawn to the existing contradictions contained in the current Criminal Procedure Code of Ukraine regarding the declared equality of the parties in the collection and submission of evidence to the court. The imperfection of the legal regulation of the procedure of independent involvement of experts by the defense party on contractual terms for examination is stated. Scientific publications are analyzed, where this problem is considered and the actual inequality of the parties is stated. The proposals of scientists on granting lawyers the right to conduct independent investigative actions (detection of objects and documents and their seizure, inspection, interrogation of persons, conducting experimental actions) are evaluated. The purpose of endowing lawyers with such powers is to ensure that they properly prepare competitive (alternative) expertise. The article predicts the negative consequences of giving the defense equal with the prosecution powers to conduct proceedings during the pre-trial investigation. It is stated that giving the defense the right to conduct investigative actions will in fact create two parallel pre-trial investigations. This will make it impossible to establish the truth in criminal proceedings and restore the rights violated by the crime. Attention is drawn to the fact that the parties in criminal proceedings solve competitive problems. The prosecution has the task of identifying the perpetrator and gathering evidence for the court to pass a conviction. The ultimate task of the defense is to have the court acquitted. This goal is achieved by lawyers by identifying procedural errors in the investigation and declaring accusatory evidence inadmissible. Therefore, it is important not to ensure full equality of rights of the parties to criminal proceedings to conduct examinations, but to balance such rights in the light of the tasks they solve. The proposal to grant the defense not only the initiation of the examination, but also the right to exercise legal control over the examination by the prosecution is substantiated. This presupposes the obligatory acquaintance of the suspect in the presence of the defense counsel with the decision of the investigator (prosecutor) on the appointment of an expert examination with the right to file a petition. It must also be the responsibility of the prosecution to acquaint the defense with the expert’s opinion and submission to the investigating judge in the event of disagreement or doubt as to the authenticity of the expert’s opinion. Procedures for reviewing these procedural documents must be recorded in the relevant protocols certifying compliance with these rights of the defense. It is concluded that with such a legal regulation of the examination procedure, there is no need to independently involve an expert in defense on contractual terms and to spend personal funds on it. To implement these proposals, an improved version of articles 242-244 of the Criminal Procedure Code of Ukraine is proposed.