ATTORNEY AS A SUBJECT INITIATING FORENSIC EXAMINATION IN CRIMINAL PROCEEDINGS: PROBLEMS OF THEORY AND PRACTICE

Abstract

The article deals with the issue of initiation by a lawyer of forensic examination in criminal proceedings. The authors analyzed the current criminal procedural legislation and the doctrine governing the issue of initiation of forensic examinations by attorney during a pre-trial investigation, on the basis of which it was concluded that a lawyer in criminal proceedings can initiate an examination in several ways: firstly, by assignment – an independent application for conducting forensic examination (in particular, mandatory) on contractual terms; secondly, petitioning the investigating judge to conduct a forensic examination (exhaustive list of grounds defined by the Code of Criminal Procedure of Ukraine); thirdly, an appeal to the prosecutor/investigator to conduct a forensic examination. The main problems faced by attorney during the implementation of the defined function of an application for forensic examination in criminal proceedings are identified: firstly, the actual impossibility of getting acquainted with information that constitutes a state secret, in particular, participation in the conduct of secret investigative (search) actions that are carried out at the initiative of the defense party in accordance with the powers granted by the current criminal procedural legislation; secondly, the lack of regulatory approval of the procedure for requesting attorney to conduct forensic examinations; thirdly, the existence of certain inconsistencies between criminal procedural legislation and departmental acts regulating the activities of forensic experts.