Tymoshuk V. Judicial inspection: procedural and criminological research

Українська версія

Thesis for the degree of Doctor of Philosophy (PhD)

State registration number

0822U100901

Applicant for

Specialization

  • 081 - Право. Право

23-08-2022

Specialized Academic Board

ДФ 35.051.077

Ivan Franko National University of Lviv

Essay

The topicality of the issue of judicial inspection is determined, on the one hand, by the lack of a common position of researchers on the legal nature of this procedural action, its tasks, and types, and on the other hand, by tactical mistakes and violations of criminal procedure law during the judicial inspection. It has been pointed out that inspection of the physical evidence, document review as well as on-site inspection are allowed during the trial. Such elements of criminal procedure in the court of the first instance have their procedural, tactical, organizational, and psychological peculiarities. At the same time, there are several provisions common to these types of procedural actions. In particular, the generic concept that unites them is a judicial inspection. It has been stated that a judicial inspection is a procedural action, which consists in the direct (and sometimes indirect) perception and examination by the court and participants in criminal proceedings of the objects, and in some situations obtaining information about them verbally so as to clarify the circumstances of a criminal offense, establishing the condition, features and properties of these objects, checking information about the circumstances that are relevant to criminal proceedings and subject to proof, as well as discovering other information relevant to the criminal proceedings, the course and results of which are reflected in the journal of the court hearing, and in the case provided by law – in the inspection report, with the possibility of recording them by technical means. It has been determined that at the beginning of the document review the chairman announces its type, name, date of compilation, registration number, information on the institution, organization, or body on behalf of which the document has been issued, its attributes. It has been established that the choice of the moment for the inspection of the physical evidence and documents depends on how they relate to the criminal offenses of the accused and is determined by the content of the testimony questioned during the pre-trial investigation. Examination of physical evidence and documents should not be carried out separately from the examination of other evidence, but in parallel with the latter, thus ensuring their complementarity and mutual confirmation of one another. It has been substantiated that the provisions of Part 1 of Art. 361 of the CPC of Ukraine, according to which the on-site inspection is carried out "in exceptional cases", introduces uncertainty and ambiguity in the understanding of its tasks, and therefore is superfluous. Moreover, it conflicts with the prescription of the same part of the mentioned article of the CPC of Ukraine, according to which a certain place during the trial is inspected if necessary. It has been stated that during the on-site inspection there takes place a peculiar kind of verification of the testimony of those who were participants in the event or its eyewitnesses. The division has been made of ways (methods) of recording the judicial inspection according to the way of displaying information into verbal (compiling a journal of the court hearing, recording), visual (photography, video), graphic (drawing diagrams), as well as substantive (making copies, samples of things and documents). It has been argued that the judicial inspection is performed in accordance with the general tactics developed by forensics for the inquest inspection.

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