PROBLEMATIC ISSUES OF CONDUCTING A BODILY EXAMINATION BY AN INVESTIGATOR THAT IS ACCOMPANIED BY THE EXPOSURE OF THE EXAMINED PERSON, AND THE WAYS OF THEIR LEGISLATIVE REGULATION

Abstract

The article examines problematic issues of law enforcement practice arising during the conduct of such an investigative (search) action as the bodily examination of a person, in particular in cases where it is accompanied by the exposure of the person being examined. Criminal procedure legislation of Ukraine, regulating the procedure for conducting investigative (search) actions, pays special attention to ensuring the rights, freedoms and legitimate interests of persons involved in criminal proceedings. One of the most specific and delicate investigative (search) actions is the bodily examination of a person, which by its legal nature implies interference with the sphere of personal non-property rights, bodily integrity and the right to respect for human dignity. A thorough analysis is conducted of the provisions of Part 3 of Article 241 of the Criminal Procedure Code of Ukraine, which prohibit the inquirer, investigator, and prosecutor from being present during the bodily examination of a person of the opposite sex if it involves the need to expose the person being examined. The author emphasises that the current criminal procedure legislation of Ukraine does not contain a clear, regulated, and unambiguous mechanism for the procedural formalisation of the transfer of criminal proceedings to another investigator of the same sex as the person to be examined for the purpose of conducting the relevant investigative (search) action. The existing options for resolving this issue in the practice of pre-trial investigation are analysed: the issuance by the head of the pre-trial investigation body of a reasoned decision on the transfer of materials of criminal proceedings to another investigator, or the creation of a group of investigators of different sex. The substantial procedural and organisational shortcomings of each of these options are clarified. In particular, when the head of the pre-trial investigation body transfers criminal proceedings to another investigator, controversial issues of organisational and procedural nature may arise regarding the scope of procedural powers of such an ‘engaged’ investigator. The creation of a group of investigators, while more procedurally defined, is not always a swift process and requires compliance with legal formalities. Particular attention is paid to the issue of the admissibility of evidence obtained as a result of a bodily examination conducted in violation of the requirements of Part 3 of Article 241 of the Criminal Procedure Code of Ukraine, as well as to the risks of such evidence being declared inadmissible in court proceedings. An analysis of the judicial practice of the Criminal Cassation Court of the Supreme Court of Ukraine indicates that the defence repeatedly raises the issue of inadmissibility of evidence obtained from bodily examinations conducted in violation of the procedural order. It is proposed to supplement the current criminal procedure legislation of Ukraine with a special mechanism for transferring criminal proceedings under special investigative jurisdiction for the one-time conducting of an investigative (search) action in the form of a bodily examination accompanied by the exposure of the person. Specific amendments are formulated to Articles 216 and 241 of the Criminal Procedure Code of Ukraine: in cases where the investigator conducting the pre-trial investigation is of a different sex than the person to be examined, and the examination is accompanied by the need to expose the person, the proceedings for the one-time conduct of this investigative (search) action shall be transferred under special investigative jurisdiction to an investigator of the same sex as the examined person, on the basis of a reasoned decision agreed with the head of the pre-trial investigation body. The advantages of the proposed mechanism include: acceleration of the transfer of criminal proceedings for the onetime conduct of the investigative (search) action; procedural savings of time, forces and means; clear legislative regulation reducing the risk of evidence being declared inadmissible; and real compliance with the requirements of Part 3 of Article 241 of the Criminal Procedure Code, promoting respect for human dignity and non-interference in private life in accordance with Articles 11 and 15 of the Criminal Procedure Code of Ukraine. The proposed changes are consistent with the principles of criminal proceedings provided for in Articles 7–29 of the Criminal Procedure Code, including the rule of law, legality, respect for human dignity, and non-interference in private life