УЧАСТИЕ СПЕЦИАЛИСТА В СЛЕДСТВЕННЫХ И ПРОЦЕССУАЛЬНЫХ ДЕЙСТВИЯХ (АСПЕКТЫ УГОЛОВНОГО СУДОПРОИЗВОДСТВА)

The article is devoted to clarifying the issue of subjects of procedural actions in criminal proceedings, the level of legislative regulation of their implementation, and the definition of the concept of “procedural actions” in the criminal procedure of Ukraine. The emphasis is on the fact that the criminal procedural law, using the concept of “procedural actions”, mainly (with some exceptions) connects them with the activities of the investigator, inquirer, prosecutor (in the cases established by the Criminal Procedural Code of Ukraine – also an officer of the criminal intelligence unit), investigating judge, the court in criminal proceedings. At the same time, it is emphasized that in the doctrine of criminal procedure there are both supporters of the statement that procedural actions can be performed only by the subjects listed above, and supporters of the statement that procedural actions in criminal proceedings are performed by various participants in criminal proceedings. Based on the analysis of the provisions of criminal procedural legislation and doctrinal sources, the author divides procedural actions in the criminal procedure of Ukraine into the following groups: 1) procedural actions, the performance of which is attributed only to the powers of officials of government authorities specified by the criminal procedural law; 2) procedural actions that can be performed by various participants of criminal proceedings (not only by officials of government authorities authorized in the criminal procedure); 3) procedural actions that can be performed only by those participants who are not authorized officials of government authorities in the criminal procedure. The author emphasizes that certain provisions of the Criminal Procedural Code of Ukraine, in which the legislator uses the general concept of “procedural action”, “meaning” only a procedural action, which certain officials of government authorities are authorized to perform in criminal proceedings, need clarification. The author agrees with the statements of researchers that the level of legislative regulation of procedural actions in criminal proceedings is not the same. He clarifies that the implementation of procedural actions, depending on their essence, is either regulated in sufficient detail by criminal procedural legislation, or is partially regulated by criminal procedural legislation, with respect to some procedural actions or only the purpose of their implementation, the Criminal Procedural Code of Ukraine contains only a mention, or the possibility of conducting procedural actions for certain participants is allowed due to the absence of relevant prohibitions in criminal procedural legislation. As a result, the author defines procedural actions in the criminal procedure of Ukraine as actions provided for and / or not prohibited by criminal procedural legislation, which constitute the essence of the direct implementation by participants in criminal proceedings of their procedural rights, obligations, and powers to achieve the objectives of criminal proceedings.

Special knowledge is important in the formation of the evidence base in criminal proceedings. With the help of special knowledge, it is possible to establish facts and reproduce events that cannot always be determined through the testimony of participants in the process or through investigative actions. The use of special knowledge is regulated by law, but in practice there are examples of inappropriate compliance with the procedure for attracting specialists and experts as carriers of special knowledge, assigning and conducting examinations and special studies, and correctly assessing the results obtained. In this connection, the purpose of scientific research is to study the procedural requirements for the use of special knowledge in criminal proceedings and to identify problems that arise in law enforcement practice. The authors used methods of comparative analysis, formal logic and documentary control in the research process. As a result, the authors formed their view on the use of special knowledge in criminal proceedings in order to assist specialists in assessing evidence and their sources at the stage of pre-trial proceedings, presented criteria for analyzing the quality of the use of special knowledge (expert and specialist opinions) and the materials of a criminal case that influence their quality, used in the conclusions of experts and specialists in accordance with the requests of legal practice. The value of the study lies in the fact that the authors proposed independent solutions to overcome problems associated with the use of special knowledge in criminal proceedings.

The fundamental rights, freedoms and legitimate interests of a person, being subject to the greatest restrictions during criminal proceedings, are guaranteed by the existence of substantive and procedural rules in the legislation aimed at protecting, defending and implementing procedural guarantees of participants in criminal proceedings. The dynamics of social, political, economic and legal life, the social mentality of today, as well as convergence processes determine the adaptation of national criminal procedure legislation to International law. However, the issues of adaptation of national legislation to the provisions of foreign legislation in terms of guaranteeing each participant in criminal proceedings the protection, defence and realisation of their rights, freedoms and legitimate interests in accordance with international standards remain controversial. At the same time, there are a number of gaps and inconsistencies in the provisions of the criminal procedure legislation, the gradual elimination of which will allow Ukraine to reach the international level as a state that guarantees each participant in criminal proceedings the protection, defence and exercise of their rights, freedoms and legitimate interests in accordance with European standards, as well as reduce the number of applications to the European Court of Human Rights. Based on the results of the study, and on the basis of a selective analysis of foreign experience of certain countries, the article identifies the existing problematic issues related to the guarantee of the rights of participants to criminal proceedings, and also formulates proposals for improving criminal procedure legislation in this area, using international experience. The problematic areas of guaranteeing the rights of participants to criminal proceedings include the legal status of individual participants to criminal proceedings, compensation for damages, and the use of procedural terminology. In order to improve and bring the criminal procedure legislation of Ukraine closer to international standards in terms of protection, safeguarding and realisation of the rights, freedoms and legitimate interests of participants in criminal proceedings, the following proposals have been presented: to establish a unit, body or organisation for the protection of the rights, freedoms and legitimate interests of witnesses with the development of appropriate programmes for their protection; to introduce the use of separate procedural terminology; to develop a procedure for granting and exercising the right to free legal aid to victims, civilians as well as the procedure for compensation for damage caused by a criminal offence.

Improving the activities of pre-trial investigation and judicial review largely depends on the increased use of special knowledge in forensic investigative practice and, above all, the involvement of an expert and their analysis. The relevance of the subject matter is explained by the need to introduce new forms and approaches to evaluating the reliability of expert opinions, in particular with the involvement of independent specialists of the corresponding speciality. The purpose of this study was to provide arguments regarding the expediency of attracting knowledgeable persons as reviewers to evaluate the objectivity and completeness of forensic analysis, the correctness of the methods and techniques applied by the expert, and the validity of the opinion. To achieve this purpose, the following general scientific and special research methods were used: Aristotelian, comparative legal, functional, sociological, statistical, system and formal legal analysis, legal modelling, and forecasting. It was established that in the vast majority of countries of the world, except Ukraine, an independent, knowledgeable person with special knowledge in the corresponding field is involved to help evaluate the reliability of an expert opinion. It was proved that contacting knowledgeable persons to evaluate the objectivity, validity, completeness of expert research helps establish the causality between the identified features of the object of analysis and the fact that is subject to establishment, and also gives grounds for determining the affiliation, admissibility, reliability, and sufficiency of the expert opinion. At the same time, a specialist's review cannot serve as a source of evidence, but only has an auxiliary (advisory, technical) nature and can serve as a basis for appointing a second (additional) forensic analysis or a cross-examination of the expert and the reviewer. To exercise the rights of individuals to fair justice, it is proposed to introduce this procedure for evaluating the reliability of expert opinions in Ukraine, with the necessary changes in the current procedural legislation of Ukraine to provide an opportunity for participants in criminal proceedings and the victim to attract knowledgeable persons as reviewers of expert opinions

Introduction. Section II of the CPC of the RF “Participants of criminal proceedings” does not contain a complete list of persons involved in criminal proceedings. The analysis of the norms of criminal procedural legislation and law enforcement practice indicates a rather extensive list of persons actually involved in criminal proceedings, but their procedural status is not clearly defined. In this regard, this article is devoted to the issue of procedural consolidation of the general status of participants of the preliminary investigation stage. The purpose of the research is to propose amendments to the current criminal procedural legislation related to the introduction of a norm regulating the rights and obligations of all persons involved in criminal proceedings at the stage of preliminary investigation, but not specified in Section II of the CPC of the RF. Methods. In order to comprehensively analyse the issues related to the procedural status of persons whose legal status is not fixed in the criminal procedural legislation, general scientific methods were used: formal-logical, generalisation, analysis, description, and the legal-technical as a private-scientific method made it possible to propose changes in the legislation. Results. The author concluded that the participants of criminal proceedings, who do not have a procedural status regulated by law, have equivalent procedural opportunities. This allowed to suggest fixing a norm regulating the rights and obligations of all participants of the stage of preliminary investigation in the CPC RF.

The article analyzes individual issues of implementation of the right to access to pre-trial investigation materials by participants in criminal proceedings. It was determined that the right of the participants in the criminal proceedings to access the materials of the pre-trial investigation is a necessary condition for ensuring their constitutional rights, freedoms and legitimate interests in the criminal proceedings. Considering the content of Clause 25, Part 1, Art. 3 of the Criminal Procedure Code of Ukraine stipulates that all participants in criminal proceedings are given the appropriate procedural status, while the common thing for them is that they all participate in criminal proceedings in one form or another, enter into procedural legal relations with each other. Analyzing the concepts of "legitimate interest" and "self-interest" in criminal proceedings, it was established that although the participants in criminal proceedings who contribute to the achievement of its objectives do not have an interest in the outcome of criminal proceedings, they do not lack self-interest when participating in criminal proceedings, respectively they may be interested in obtaining access to the materials of the pre-trial investigation for review in the part that concerns their interests. It is noted that the realization of the victim's right to familiarize himself with the materials of the pre-trial investigation is complicated in comparison with the procedural capabilities of the parties to the criminal proceedings, which, in particular, manifests itself at the end of the pre-trial investigation in the form of an appeal to the court with a request for release from criminal liability. In connection with this, the question arises about the need to identify the victim's opinion regarding the release of the accused from criminal liability. On the basis of the outlined problematic aspects, it was determined that the procedural procedure for providing access to the materials of the pre-trial investigation contains a number of practical problems, the solution of which will contribute to the effective performance of the tasks of criminal proceedings as a whole.

The scientific article deals with some aspects of the investigation of crimes against morality. The peculi-arities of the use of special knowledge in the investigation of this category of criminal offenses are con-sidered. The author emphasizes that during criminal proceedings at the stage of both pre-trial investigation and in court, questions may arise, which, due to their narrow specialization and unlawful nature, may not be within the power of the investigator and the court. In such cases, other participants in the criminal process are involved in the process of proving - persons who have special knowledge sufficient to make a qualified solution to the problem. It is noted that special knowledge is a set of theoretical knowledge and practical skills in the field of science, technology, arts, crafts obtained as a result of vocational training and professional education used for the prevention and investigation of criminal offenses. The view is maintained that the following should be attributed to independent forms of the use of specialized knowledge: the direct application of specialized knowledge in science, technology, art and craft by the judge himself; appointment of examinations; appointment of audits; knowledge that is inherent in various types of professional activity, except knowledge that is professional for the investigator and the judge, and is used in the investigation of crimes and criminal proceedings in court in order to facilitate the establishment of the truth of the case in cases, forms and procedures determined by criminal- procedural legislation; consulting assistance of a specialist without involving him personally in court actions; expert's participation in court actions. It is emphasized that specialized knowledge can be used directly and indirectly by an authorized person. Based on the analysis of judicial investigative practice, the following were distinguished among the main forms of use of special knowledge in the investigation of crimes against morality: direct (use of special knowledge by investigators in carrying out individual procedural actions); mediated (appointment of forensic expertise and involvement of relevant specialists in individual procedural actions).

The investigation of criminal offenses, especially in modern conditions, is difficult to imagine without the assistence of persons with special knowledge in various fields of science, technology, art, craft and more. The main forms of using such knowledge are the involvement of specialists in criminal proceedings (Article 71 of the CPC) and forensic examinations (Articles 242–244 of the CPC). A significant number of works of scientists have been devoted to the development of theoretical aspects of the institute of special knowledge in criminal proceedings, but the unity of opinion on the relationship between general knowledge and special knowledge has not been achieved. Special knowledge is considered to be knowledge that is not common, well-known, but only those acquired by professionals in a particular field of science, technology, art, crafts, and so on. It should be noted that the attribution of certain knowledge to the well-known is conditional. Some thing that was for some time considered to be unknowable, becomes widespread over time, becomes public. The use of special knowledge facilitates a full, objective and comprehensive investigation, ensures the collection of information and the formation of the necessary evidence base. Information is the substantive side of court evidence, which is established from sources due to the order prescribed by law. Sometimes this information is called evidence. However, in criminal proceedings, not only the information that constitutes the essence of the evidence is used. The problem of information support of the investigation has become especially important in connection with the adoption of the Law «On Amendments to Certain Legislative Acts of Ukraine to Simplify the Pre-trial Investigation of Certain Categories of Criminal Offenses». The authors of the article consider the peculiarities of the special knowledge using during the pre-trial investigation of criminal offenses in the form of inquiry. According to the current CPC of Ukraine, the investigator may conduct an inspection of the scene and a medical examination before entering the information into URPI. The means of information support of the inquiry, which requires the use of special knowledge in the field of medicine, should include a medical examination (paragraph 2, part 3 of Article 214 of the CPC). It can be conducted before the information is entered into the URPI, and its results are recognized as a source of evidence (Article 298-1 of the CPC). Unfortunately, the legislator did not specify the purpose of the medical examination and the procedural document, which should reflect the results of this procedural action. Establishing the condition and features of the human body requires appropriate research, which is the subject of forensic examination. The use of special knowledge in the process of information support criminal offenses investigation, requires further research and regulation. A clear distinction at the regulatory level requires the purpose of examination and forensic examination. As this issue arises at the initial stage of the proceedings, changes are required to the CPC of Ukraine, as the authors note in this article.

It is indicated that ensuring human rights and freedoms in conditions of armed conflicts is one of the most pressing issues of modern international law and national legal systems of many states. The article examines the system of participants in international criminal proceedings and their functional role in ensuring international justice in the context of modern challenges, in particular the Russian- Ukrainian war. The author analyzes the evolution of the subject composition of international criminal courts from the Nuremberg Tribunal to the modern International Criminal Court, emphasizing the relevance of the study in the context of full-scale armed aggression of the Russian Federation against Ukraine. The study reveals the specifics of international criminal proceedings as the activities of specialized subjects who participate in the process, regulated by the norms of international law, in accordance with the requirements of international criminal law. The author analyzes the founding documents of international criminal jurisdiction bodies, in particular the Rome Statute of the ICC, revealing the lack of unified terminology regarding the subjects of criminal proceedings. Special attention is paid to the classification of participants in international criminal proceedings according to their procedural status and functional purpose. The five-member classification of T. Syroid is considered, which includes bodies and officials with authority, parties to the proceedings, persons who facilitate the administration of justice, states as subjects of the proceedings, and subjects of legal aid. The author emphasizes the complex nature of this system, which combines traditional participants in the criminal proceedings and specific international legal subjects. The study reveals that the subjects of international criminal proceedings are characterized by various grounds for involvement in procedural relations - from the performance of official duties to the exercise of their own rights and interests. The author justifies the need to rethink the role of various categories of participants in the judicial process in the context of ensuring effective cooperation between states and international judicial bodies, especially during the investigation of mass crimes in modern armed conflicts.

The article examines the state of scientific development of the problem of human rights communication of the victim in the criminal proceedings of Ukraine. According to Article 2 of the Criminal Procedure Code of Ukraine, the primary task of criminal proceedings and the essence of the criminal procedure are the protection of the victim, their rights, freedoms, and legitimate interests. The right of the victim to human rights communication is understood as the possibility provided by the criminal procedural law for the victim, their representative, legal representative, or successor to receive information about criminal proceedings, exchange information about the state of criminal proceedings, and influence criminal proceedings in order to protect and restore the violated rights, freedoms, and legitimate interests of the relevant participant in criminal proceedings. The problem of human rights communication of the victim is intended to thoroughly and holistically integrate numerous aspects related to the protection of the rights and legitimate interests of the victim. It also strives to direct new impulses of scientific research in the field of protection of victim rights to the improvement of the mechanism for the implementation of relevant rights in the adversarial criminal process based on a victim-centered approach. This article examines the issues that have not been raised in scientific works yet but are essential for criminal procedure theory and law enforcement. The article emphasizes that it is relevant to substantiate and study the victim’s right to procedural communication and the concept of human rights communication of the victim in criminal proceedings. It also highlights communicative equality as a fundamental value, which permeates the rules of criminal law and procedure, the criminal procedure activity of the victim, and communication guarantees and barriers that contribute to or interfere with the latter.

Problem setting. One of the tasks of criminal proceedings is to protect the rights and legitimate interests of participants in criminal proceedings. Additional guarantees should be created for juvenile participants in criminal proceedings, taking into account their age, physical and psychological characteristics, taking into account the principle of the best protection of the interests of the child enshrined in Article 3 of the UN Convention on the Rights of the Child. However, despite significant scientific developments in the issue of guarantees for the protection of the rights of minors and the relevant regulatory support, there are still difficulties in law enforcement on this issue, which, in turn, requires scientific analysis. The state of research of the problem. Issues related to proceedings involving minors are the work of many procedural scientists: I.V. Glovyuk, Y. M. Groshevoy, Z.Z. Zinatullina, O.P. Kuchinskaya, L.M. Loboyko, V. T. Nora, M.A. Pogoretsky, V.V. Romanyuk, S.M. Smokova, L.D. Udalova, O.G. Shilo, D.O. Shingarev and others. The purpose of the scientific article is to study the guarantees of protection of the rights of minors and juveniles during their interrogation in the pre-trial investigation and to develop proposals based on it to improve the current criminal procedure legislation. Article’s main body. The research is devoted to determining the status of a minor in criminal proceedings, features of interrogation with his participation, analysis of additional guarantees of protection of his rights and interests during interrogation, features of specialization of subjects of such investigative (search) action and requirements to other participants of interrogation. It is noted that at the stage of pre-trial investigation, the method of interrogation of a minor is effective - "Green Room." This technique is developed to introduce the best experience of interrogation of the child, when the child is not injured and provide an opportunity to collect all the necessary evidence in criminal proceedings. It is stated that despite the positive impact of this technique, cases of interrogation of the child by the "Green Room" method are not frequent, given the small number of such "Green Rooms," and, therefore, the significant remoteness of law enforcement agencies from such specially equipped premises. The scientific novelty of the study is to make suggestions for improving the current criminal procedure legislation, which relate to the application of additional guarantees for the protection of the rights of minors, specialization of juvenile prosecutors, mandatory participants in the interrogation of minors. Conclusions. Among scientists and practitioners, the issue of mandatory and conditionally mandatory participants of interrogation of a minor listed in Part 1 of Article 226 of the CPC of Ukraine remains debatable. In our opinion, it is appropriate to apply to the motivational part of the Resolution of the United Chamber of the Cassation Criminal Court of the Supreme Court of 18.11.2019. resolution of the scope of documents confirming the authority of the defender to participate in a particular criminal proceeding (listed in Art. 50 of the CPC of Ukraine). The resolution states that: … para. 2 of Part 1 of Article 50 of the CPC is formulated using a syntactic construction in which homogeneous members of the sentence, namely: "order," "contract" and "errands," are connected by a relentless separation, and between the last two used a connector "or," which clearly indicates an alternative list, that is, the possibility of choosing one of the three mentioned in In addition, if such a list presents the conditions for the occurrence of a certain legal consequence, the use of a separating connector "or" indicates that the consequence occurs in the presence of at least one of the listed conditions.... ". Thus, taking into account such a syntactic design, formulated in part 1 of Article 226 of the CPC of Ukraine, we consider it mandatory to interrogate a minor or legal representative, or teacher, or psychologist, and conditionally mandatory - a doctor (if necessary).

The lack of sufficient legal regulation of criminal procedural activity at the stage of initiating a criminal case causes the constant appeal of theorists and practitioners to the study of this stage. At the same time, the legislator has not yet made the necessary changes to the Code of Criminal Procedure of the Russian Federation. This study analyzes the methods of verifying reports of a crime, in particular, the problems of proper process fixing of received objects and documents when using such methods of collecting evidence as reclamation and presentation. Based on the analysis of theoretical provisions and investigative practice, problems are posed and conclusions are drawn about the need to fix the possibility of seizure in the Criminal Procedure Code of the Russian Federation when checking a crime report. The issues of the legal status of participants in the stage of initiating a criminal case at the stage of receiving and registering reports of a crime, during the production of investigative actions are also studied. Conclusions are drawn about the need to make changes to the Code of Criminal Procedure of the Russian Federation aimed at consolidating the legal status of the applicant, the victim, eyewitnesses and other participants in criminal proceedings.

As a participant in criminal proceedings, the interpreter plays an important role in realizing the right of access to court, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is the interpreter who is responsible for establishing proper communication between the parties to the criminal proceedings and ensuring fair and effective adversarial proceedings in cases where one or more participants do not speak the language of the proceedings. The article is devoted to a comparative analysis of the role, functions, legal status, and characteristics of the professional activity of translators in criminal procedural legal relations in Ukraine and the Republic of Poland. Given the steady and dynamic processes of globalization in the world, as well as the significant intensification of cooperation and growing integration between the two countries in many areas, this study is particularly relevant and practical. The authors draw attention to the similarities and differences in the legal status of interpreters as participants in criminal proceedings, comparing the procedural legislation of Ukraine and Poland. Thus, it was found that the Ukrainian Criminal Procedure Code describes the procedural legal capacity of interpreters in much greater detail and regulates their rights and obligations more thoroughly. In contrast, Polish legislation on these issues is not limited to the provisions of criminal procedural law, but applies a special law that focuses on the professional activities of translators. The article also compares and analyzes the pros and cons of both government approaches to setting standards, qualifications, and ethical requirements for professional translators who can be involved in criminal proceedings as fully-fledged participants. Based on the comparative analysis, the authors outline a list of urgent problems and current challenges in the field of translation in criminal proceedings. Theoretical and practical recommendations are provided on potential ways to resolve these issues.

Метою статті є виявлення недоліків правової регламентації порядку використання спеціальних знань співробітниками оперативних підрозділів за межами кримінального провадження та формування, з урахуванням зарубіжного досвіду, пропозицій щодо їх усунення.
 Наукова новизна полягає у комплексному дослідженні питань удосконалення правової регламентації використання спеціальних знань оперативними підрозділами вітчизняних правоохоронних органів під час здійснення ними діяльності з виявлення, припинення, попередження і розкриття правопорушень за межами кримінального провадження. Автором проаналізовано положення нормативно-правових актів, які регламентують правовий статус того чи іншого правоохоронного органу (державного органу спеціального призначення з правоохоронними функціями), а також актів, що регулюють здійснення їх оперативними підрозділами окремих різновидів оперативної діяльності (оперативно-розшукової, контррозвідувальної тощо). Досліджено досвід правової регламентації використання спеціальних знань в діяльності оперативних підрозділів правоохоронних органів країн, ментально близьких до України.
 Висновки. З урахуванням виявлених недоліків правової регламентації, а також зарубіжного досвіду законодавчого регулювання зазначених питань запропоновано внесення відповідних змін до законів України «Про контррозвідувальну діяльність» та «Про оперативно-розшукову діяльність» в частині доповнення повноважень підрозділів, наділених правом здійснення оперативно-розшукової і контррозвідувальної діяльності, положенням щодо їх права залучати спеціалістів, які володіють науковими, технічними та іншими спеціальними знаннями, під час виконання покладених на них завдань. Крім того, запропоновано здійснити окрему законодавчу регламентацію прав і обов’язків осіб зі спеціальними знаннями, які залучаються до участі в оперативних заходах.

One of the important features of the rule of law, the construction of which is proclaimed by the Constitution of the Republic of Kazakhstan, is the exercise of judicial control over the preliminary investigation. Most of the member countries of the Organization for Economic Cooperation and Development (OECD) adhere to this vector of development of criminal procedure legislation. Currently, international standards and principles governing the protection, protection, restoration of human rights and freedoms accumulate the most progressive, successfully tested legal concepts, which were the natural result of the tendency to strengthen guarantees of the rights of participants in criminal proceedings. The article is devoted to the problems of legal regulation of judicial control at the stage of preliminary investigation related to compliance with international standards. A selective analysis of the implementation of judicial control in foreign countries, in particular in the countries of continental Europe (France, Germany, Italy, England, Spain), identified similarities and differences from a similar system in the Republic of Kazakhstan, as well as put forward proposals to improve criminal procedure legislation in this direction. The author, examining the control powers of the court at the international level, tried to determine the importance of international standards and principles in ensuring the rights and legitimate interests of participants in criminal proceedings in the Republic of Kazakhstan. The article develops the idea of the need to implement the norms of international legal acts into national legislation, borrowing positive foreign experience in implementing the norms regulating judicial control. At the same time, it is noted that the introduction of positive experience of foreign countries, as well as international standards and principles into national legal mechanisms is possible only taking into account the peculiarities of the legal system and the system of state law. Keywords: international standards, foreign experience, protection of rights and