DOI:
Med. pravo., 2014; 2(14): 48-57
UDC: 343.1:614.23/.2
ROHALSKY IHOR OLEHOVYCH
candidate of medical sciences, associate professor, head of the Department of medical law of the I. Ya Horbachevskyi Ternopil State Medical University
KALYNIUK NATALIYA MYKOLAIVNA
candidate of medical sciences, associate professor, head of the Department of medical law of the I. Ya Horbachevskyi Ternopil State Medical University
Procedural and Tactical Features of Involving a Physician During the Investigative (Detective) Actions
Article focuses on certain aspects of improving procedural and forensic regulation of investigative (detective) actions involving doctors. Current legislation on doctors` participation in investigative (detective) actions both as a specialist and expert is analyzed. Procedural rules which determine the forms of expertise usage in criminal proceedings are discussed.
Conclusions contain theses that the doctor who takes part in investigative (detective) actionsas an expert is a subject of forensic tactics of procedural acts. The one is not a subject of proving. The purpose is to help investigator to reveal the facts which are impossible to find by investigator. In this case the expertise is implemented by the person, who possess it. Therefore, it is not allowed to use the specialist interrogation in investigative (detective) actionswhile pre-trial investigation process. If thedoctor is involved to the investigative (detective) actionsas an expert it should be considered that expert conclusion is a procedural source of evidence.
However, the evidence of doctor-expert is procedural source of evidence as well, unlike the data ofdoctor who is attracted as a specialist. Herewith, the evidence can be oral or written during interrogation (art. 84, 95, 356 Criminal Procedural Code of Ukraine).A specialist assists to operate proofs, and pays attention to certain conditions, and explains expertise. Expert is involved to examine certain phenomena and give conclusions on the problems while criminal proceedings in the sphere of his competence. Specialist can ask the questions and make statements on identifying, securing, retrieving and examination of evidence.
Explanation and statements of specialist differ from the expert conclusion or his explanation basing on their procedural essence i. e. the data and written explanation of doctor-specialist who is involved to the investigative (detective) actionsare not allowed to be considered as an evidence source according to part.2Article84 of Criminal Procedural Code of Ukraine.Qualitative procedural and forensic tactics of particular investigative (detective) actionsare considered as possible while correct forensic and medical knowledge is used, which means the involvement of various forms of expertise (expert, specialist). The subjects of procedural and forensic investigative (detective) actions are the follows: 1) physicians who are involved to the procedural actions as a specialists (the persons who possess an expertise and skills to use technical or other means and can consult during pre-trial investigation on issues which needs appropriate knowledge and skills); 2) physicians who take part in the forensic proceedings as an experts (the persons who possess scientific, technical or other knowledge, and are allowed by current legislation to perform expertise, and are instructed to perform investigation of objects, phenomena and processes which include data on criminal offence and to give the conclusions on the issues of criminal proceedings and are related to his sphere).
During pre-trial investigation the procedural forms of involving physicians to investigative (detective) actions are specialist and expert. Their participation can be obligatory or optional depending on the conditions of certain criminal case.Clearly definition the procedural position of a physician and his involvement to the criminal proceedings as a specialist or expert is the basis to increase the efficiency of tactics of certain investigative (detective) action.
Key words:criminal proceedings, investigative (detective) actions, tactics, expertise, specialist, expert, physician
Reference list
1. Kryminalnyy protsesualnyy kodeks Ukrayiny vid 13 kvitnya2012 r. 4651a-17. Retrieved from http://zakon3.rada.gov.ua
2. Kalynyuk N.M. (2012) Taktyka provedennya ochnoyi stavky. dys. kand. yuryd. nauk. 12.00.09. Natalya Mykolayivna Kalynyuk. K. KNU im. T.H. Shevchenka.
3. Shepitko V.Yu.(2007) Kryminalistychna taktyka (systemno-strukturnyy analiz) monohrafiya. V.Yu. Shepitko. Kh. Kharkiv yurydychnyy.
4. Arkhiv Ternopilskoho miskrayonnoho sudu Ternopilskoyi oblasti. 2004. Krymin. spr. 1-228-13.
5. Kochenov M.M. (1984) Psykholohyya doprosa maloletnykh svydeteley metod. posobye. Moskva.
