Suchergebnisse

The purpose of this article is to develop propositions for improving legal regulation of the use of DNA analysis in criminal proceedings of Ukraine. System-structural, comparative-legal and formal-logical methods of research, analysis of theory and practice are used. The article proposes to apply an integrated approach to the development and introduction of the field-oriented legislation after public discussion on the problems of protecting genetic data in law enforcement practice based on European standards. It is already necessary to separate the concepts of biological material and genomic information in the current legislation of Ukraine, to establish the terms of their storage and the rules for destruction after they are no longer needed. The legislation should also differentiate the methods of obtaining biological samples with defining the priorities for obtaining samples for DNA analysis by the way of buccal scraping (genal swabbing). We should provide separate rules for the permissible scope of molecular genetic testing for suspects (convicts) and other persons. It is also necessary to limit the possibility of unofficial obtaining DNA profiles and to establish procedural rules for mass genetic testing to detect especially grave crimes.

The fight against corruption in Ukraine is one of the main tasks of law enforcement agencies. However, the process of proving corruption crimes in criminal cases is accompanied by problems that negatively affect the quality of the pre-trial investigation. The purpose of the article is to identify and study typical investigative errors and develop recommendations on the proper use of means and methods of proof in criminal cases of corruption crimes, taking into account the norms of national legislation and international criteria for ensuring human rights in criminal proceedings. To achieve this goal, a comparative and systemic structural analysis of international and domestic regulatory legal acts and court decisions, a selective study of materials from criminal cases on corruption crimes were made. It has been established that the process of proving in cases of corruption crimes in Ukraine will fully comply with international standards for ensuring human rights, provided that operational officers, investigators, and prosecutors comply with the admissibility criterion of evidence, especially when using secret measures. Investigative errors that take place at the stage of pre-trial investigation in this category of criminal cases lead to the restriction of human rights and freedoms and consist in significant violations of the criminal procedural law when collecting, checking, and evaluating evidence, as well as when opening the collected materials to the defense. Preventing such violations requires strict adherence to the general requirements for conducting undercover activities, formulated in the decisions of the European Court of Human Rights and domestic courts. The proof must take into account the "fruit of the poisonous tree" doctrine of the inadmissibility of evidence derived from materials collected in violation of the law. The defense side should be provided with timely access to the materials of covert events, including the documents that served as the basis for their implementation. It is important not to allow actions that are regarded as a provocation (incitement) of the suspect to commit a corruption offense.

The importance of molecular genetic examinations which analyze traces of biological origin increases in the practice of the investigation of crimes in Ukraine. One of the important stages of the expert study and its use in the evidence is the evaluation of the expert's conclusion. As a result of studying scientific and methodical literature, as well as materials of criminal cases of premeditated murders, it was established that expert, investigative and judicial evaluation of conclusions of molecular genetic examinations do not fully meet the needs of criminal proceedings in Ukraine. The work is based on the analysis of the procedural legislation of Ukraine and forensic literature on DNA analysis, the results of the study of the conclusions of molecular genetic examinations in 180 criminal proceedings on deliberate murders, the study of the practice of inviting experts to court to clarify the conclusions of the examination. In the study, a system of methods of scientific knowledge was used: system-structural, comparative-legal, analysis, synthesis, analogy and others. In order to improve the effectiveness of the evaluation of molecular genetic expertise based on the results of DNA analysis, the expert should formulate accessible conclusions about the origin of biological traces, for which it is necessary to develop criteria for the coincidence of comparable objects. In order to admit the conclusions of the genetic expert as evidence, criminal procedural legislation of Ukraine should be improved by developing special rules for the selection of biological samples for DNA analysis by the investigator, the court and their voluntary giving by citizens. It should also be possible to carry out verification studies at the pre-trial stage of investigation and develop expert methods to solve questions about the mechanism of DNA penetration into objects.