Problems of the conceptual and terminological apparatus of the procedure for initiating forensic examination in criminal proceedings

Abstract

The article is devoted to the formulation of a stable conceptual and terminological apparatus of the procedure for initiating a forensic examination in criminal proceedings. The provisions of the current criminal procedural legislation regarding the procedures for initiating forensic examinations have been analyzed. It has been found that the specified procedures have at least nine different legally established names, which contradicts the requirements of the principle of legal certainty and may lead to confusion in practice. The artocle argues that the term “conducting an expertise” should refer exclusively to a forensic examination within the meaning of Art. 1 of the Law of Ukraine “On Forensic Expertise” and does not include the activity of the subjects of evidence regarding the initiation of such an examination or evaluation of the conclusion based on its results. The content of the wordings “appointment of expertise” and “order of expertise” has been considered in detail. It is emphasized that the first of them should be applied to the cases of initiation of the examination by the prosecution, the investigating judge and the court, while the second – to the procedures of initiation of the forensic examination by other entities on a contractual basis. The incorrectness of the wordings “engagement of an expert”, “assignment (for) conducting an examination” is indicated due to the traditional use of the words “engage” and “assign” in criminal proceedings in a different context. It is proposed to bring the provisions of the Criminal Procedure Code of Ukraine on the initiation of forensic examinations into a single system of concepts, and to bring other legal acts into compliance with the specified Code.

Keywords

• criminal proceedings
• forensic examination
• investigative (research) action
• conducting an expertise
• appointment of expertise
• order of expertise.