Самостійне залучення експерта стороною захисту: труднощі і перспективи

The problematic issues of conducting examinations during pre-trial investigations under current legal regulations have been investigated. The purpose of the study was to determine the possibility of the defense party exercising its right to independently engage experts on contractual terms to conduct an examination, including a mandatory one. It should be noted that the legislator granted such a right to the defense, but did not grant it to other participants in criminal proceedings, who are also empowered to collect and present evidence and participate in their direct examination during court proceedings. A range of scientific research methods (dialectical, historical, comparative, systemic-structural, comparative-legal and other methods) were used to achieve the goal. They were used to analyze the legal norms of the current legislation, which touched on the research topic, scientific sources, and the formulation of the author’s conclusions and proposals. Contradictions in the Criminal Procedural Code of Ukraine regarding the defense’s independent involvement of experts on contractual terms for conducting an examination are analyzed (Part 2 of Article 243 of the Criminal Procedure Code of Ukraine). The granted right is evaluated from the point of view of the possibility of its implementation in conditions when the defense party is deprived of the possibility of conducting procedural actions aimed at preparing the object and materials for expert research. Attention is drawn to the fact that granting such a right contradicts part 3 of Art. 93 of the Criminal Procedure Code of Ukraine, according to which the defense party carries out independent collection of evidence by demanding and receiving things and documents from legal entities and individuals. As for investigative (search) actions, the defense party has only the right to initiate them, as well as to take part in their implementation by submitting a corresponding petition to the investigator, the prosecutor, which is considered in the prescribed manner. Conducting an expert examination is an investigative action, the preparation of which requires a number of procedural actions (removal of the object of expert investigation, sampling, provision of materials necessary for the investigation of criminal proceedings, etc.) assigned to the competence of the pre-trial investigation body. The proposals presented in the literature regarding the granting of the right to perform the specified procedural actions by lawyers by analogy with conducting investigative (search) actions are critically evaluated. Attention is drawn to the fact that the implementation of these proposals inevitably leads to the creation of several subjects of pre-trial investigation and the destruction of the state’s monopoly on the use of coercion in criminal proceedings. Ways to eliminate the indicated contradictions of the current criminal procedural legislation are proposed.