ETHICAL LEGAL ASPECTS OF EVIDENCE COLLECTION BY THE PARTIES, THE DEFENCE AND PROSECUTION
Journal Title: Правовий часопис Донбасу - Year 2016, Vol 55, Issue 1
Abstract
The article analyzes the ability of the defense to gather their own evidence. The issues about the conditions of abuse by the investigator and the prosecutor during the combination of security and prosecution functions are considered. The first problem is characterized by the following: current criminal procedural law of Ukraine declares the right of a suspect to collect evidence and then present it to the investigator, prosecutor, investigating judge find the court. In particular, Article 93 of the Criminal Procedure Law, says that the suspect, the accused, the advocate and the victim carry out the collection of evidence. In our opinion, such a disposition of these norms, misleads the stakeholders, including the suspect, the accused and defense counsel, because it is practically impossible to realize this right these participants of criminal proceedings. The second, very important issue is joining functions of prosecution and defense in the person of the prosecution (prosecutor or investigator). Thus, Section 4, paragraph 1, Article 91 of the Criminal Procedure Lav states that circumstances aggravating or mitigating punishment must be proved. It excludes criminal responsibility or is a ground to close criminal proceedings. Paragraph 5 of the same standards, mutations circumstances which may be grounds for discharging of the accused person from prosecution or punishment. Thus, the legislator had misled the members of the criminal proceedings, having declared in 3/Arificle of criminal procedure? Code of Ukraine, functions on the side of the prosecution that are completely opposite goals. To solve these problems it is proposed to give to the advocate of the suspect, accused the authority to conduct investigative actions with the collection of evidence, or to use the services of private detectives. To solve the second problem it is proposed to deprive the prosecution of protecting function, putting it well on the defense.
Authors and Affiliations
Andriy Shulga
Keywords
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