International standards for mediation in criminal proceedings have been defined; the process of development of the institution of mediation in criminal proceedings in Ukraine has been characterized; propositions on improving the procedure for mediation in criminal proceedings have been expressed. It has been established that the introduction of mediation in criminal proceedings, as a necessary condition for the development of the national legal system, was reflected in many international legal instruments that Ukraine had undertaken to execute. The traditional system of criminal justice cannot offer an effective solution to the problem of dealing with persons who committed a criminal offense. It has been proved that the urgent need of our state is to create new effective alternatives to official criminal prosecution, in particular mediation. The analysis of legislative activity on introducing mediation in Ukraine has been carried out. Representatives of the legislative initiative on the need to consolidate the possibility of conducting a mediation procedure at the legislative level by adopting the draft Law of Ukraine “On Mediation” dated from May 19, 2020 No. 3504 in the second reading. It has been defined that mediation in Ukraine is not fully implemented, since there is no legal basis. At the same time, some measures have been implemented in Ukraine to introduce mediation in criminal proceedings. Thus, the Criminal Procedural Code of Ukraine provides the possibility of concluding a conciliation agreement between the victim and the suspect, the accused. At the same time, allowing the possibility of concluding a conciliation agreement, the criminal procedural legislation does not directly regulate the mediation procedure. It has been substantiated that the procedure for mediation during criminal proceedings should be regulated by: 1) adoption of the Law of Ukraine “On Mediation”; 2) making systemic amendments to the Criminal Procedural Code of Ukraine. Particular attention has been paid to the fact that, despite the lack of a legal basis, our country has experience in applying the mediation procedure in criminal proceedings. Starting from 2019, two pilot projects have been implementing in Ukraine, which demonstrated positive results in this direction: “Restorative Program of Juveniles Suspected in Committing a Criminal Offense” and “Implementation of Restorative Justice in Ukraine”. The results of the implementation of these projects have proved that the mediation procedure has indisputable advantages over punitive justice.
Taking into account the need to regulate the procedure of exchanging persons as prisoners of war within the framework of criminal proceedings, the legislator fully justified and timely regulated this issue by adopting on July 28, 2022 the Law of Ukraine “On Amendments to the Criminal and Criminal Procedural Codes of Ukraine and other legislative acts of Ukraine regarding the regulation of the exchange procedure persons as prisoners of war” No. 2472-IX. The addition of the new Article 201-1 to the Criminal Procedure Code of Ukraine contributed to the establishment of the procedure for the cancellation of a preventive measure in connection with the adoption by an authorized body of a decision on the transfer of a suspect, an accused person for exchange as a prisoner of war. The legislative amendments regarding the procedure for canceling a preventive measure in connection with the adoption by an authorized body of a decision to hand over a suspect, an accused person for exchange as a prisoner of war, have been analyzed. The procedural order of such cancellation has been defined and attention has been focused on the decision to transfer the suspect, the accused for exchange as a prisoner of war as a basis for such cancellation. Problematic issues regarding the normative regulation of the cancellation of a preventive measure in accordance with Art. 201-1 of the Criminal Procedure Code of Ukraine and their solution has been proposed. Revealing the issue regarding the order of implementation of Art. 201-1 of the Criminal Procedure Code of Ukraine, it has been determined that the cancellation of the preventive measure is carried out by the investigating judge, the court at the request of the prosecutor. The basis for the prosecutor’s appeal to the investigating judge, the court with the relevant request is the decision of the authorized body to transfer the suspect, the accused for exchange as a prisoner of war. At the same time, the law does not require the decision of the authorized body to transfer the suspect, the accused for exchange as a prisoner of war to the investigating judge, the court; the prosecutor must provide materials confirming the adoption of such a decision. The peculiarity of such a petition consideration is that the law does not require the participation of a person in respect of whom an authorized body has made a decision to exchange as a prisoner of war during the court session. It has been proven that the normative regulation of the cancellation of a preventive measure needs improvement, in particular with regard to: 1) the title of Article 201-1 of the Criminal Procedure Code of Ukraine, which should be read as “Cancellation of a preventive measure in connection with the adoption by an authorized body of a decision on the transfer of a suspect, accused for exchange as a prisoner of war”, since its current title is broader than its content; 2) legislative settlement of the consequences of the cancellation of a preventive measure in the event that the exchange of a prisoner of war is not carried out.
Objective: The aim of the article is to analyze the various legal and theoretical provisions related to the determination of legal content of the concept of finding evidence inadmissible due to substantial violation of human rights and freedoms. Method: The authors use general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, generalization and logical, are applied. Results: The problematic issues of the procedure for finding evidence inadmissible due to substantial violation of human rights and freedoms in the criminal proceedings of Ukraine are studied. Some essential violations in collecting evidence by the prosecution are under focus. The ECHR’s case-law with regard to procedure for finding evidence inadmissible is analyzed. The implementation of the doctrine of "fruit of the poisonous tree" and specificity of its application to direct and derivative evidence by domestic courts and the case law of the ECHR is considered. Conclusions: The authors argue that the investigator is required to comply with the procedure for investigative actions prescribed by the provisions of the CPC of Ukraine in order to ensure human rights and freedoms. The analysis of the application of provisions of the CPC of Ukraine and the ECHR’s case law regarding the issue raised enables to formulate sound conclusions.
The problems related to the procedure of detention by an authorized official without the decision of the investigating judge or court, of a person suspected of committing a crime have been studied, namely: the uncertainty about who is authorized to detain persons under Art. 208 of the Criminal Procedure Code of Ukraine; lack of understanding or authority of the above-mentioned persons to detained persons before entering information into the Unified Register of Pre-trial Investigations, to execute search warrant of detained person and to carry out temporary seizure of things and documents and whether further evidence obtained during such proceedings will be declared inadmissible; the lack of an effective mechanism for ensuring the rights of detainees, in particular, round-theclock urgent linguistic assistance for persons under criminal prosecution, etc. The purpose of the study is the new scientifically substantiated results of detention by an authorized official without the decision of the investigating judge, of a person suspected of committing a crime, as well as formulating on their basis scientifically based proposals and recommendations for improving criminal procedure law and practices of its application in the aspect of the subject of research. It is concluded that in today’s actuality it is possible to change the practice of detention only by taking comprehensive measures. The first aspect is related to legislative changes. We believe that the law should be clear. Consequently, the CPC of Ukraine must clearly define, first, the procedural status of a detained person, with the provision in a separate rule of his concept, rights and responsibilities; second; the issue of legality of detention before entering information into the Unified Register of Pre-Trial Investigations has been resolved; thirdly, the procedure for searching of a detained person has been regulated. The second aspect is related to the development of bylaws on the algorithm of actions of the authorized official, which would clearly define his powers; the order of interaction between different services and units during the detention of a person. The third aspect is related to the continued implementation of pre-trial investigation and pre-trial detention facilities in all units of the Custody Records system, which allows recording of all actions of a detainee from the moment of his/her actual detention until the issue of choosing a measure of restraint against him/her is resolved, in particular – and during the explanation of the rights of the detainee by the officials responsible for the stay of the detainees. The fourth area is to strengthen the measures of respect of the rights of the detained person and, in particular, the need to develop a procedure for hiring an interpreter through the Centers for Free Secondary Legal Aid and an effective round-the-clock mechanism for providing urgent linguistic assistance to detainees who do not speak the language of criminal justice.
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