Окремі аспекти поняття «кримінальний проступок» у кримінальному процесі України

Abstract

У статті розкрито питання щодо визначення дефініції поняття «кримінальний проступок». Проаналізовано зміни, що внесені до законодавства у зв’язку з набуттям чинності Закону України «Про внесення змін до деяких законодавчих актів України щодо спрощення досудового розслідування окремих категорій кримінальних правопорушень», а також проблемні питання та прогалини у законодавстві, які є наслідком введення в дію поняття кримінального проступку. Досліджено погляди науковців щодо поняття «кримінальний проступок». The article reveals questions on the definition of the concept of «criminal misconduct.» The amendments made to the legislation in connection with the entry into force of the Act on Amendments to Certain Legislative Acts of Ukraine concerning the simplification of pre-trial investigations of certain categories of criminal offences, as well as problematic issues and gaps in legislation that are the result of the introduction of the concept of criminal misconduct, were analyzed. The views of scientists regarding the concept of «criminal misconduct» have been studied. Іt is specified that 01.07.2020 in Ukraine Laws of Ukraine «About Introduction of Amendments to Some Acts of Ukraine concerning Simplification of Pre-judicial Investigation of Separate Categories of Criminal Offences» of November 22, 2018 by No. 2617-VIII and «About introduction of amendments to some acts of Ukraine in connection with adoption of law of Ukraine «About introduction of amendments to some acts of Ukraine concerning simplification of pre-judicial investigation of separate categories of criminal offenses» of June 17, 2020 at No. 720-IX began to work, which, together with the Criminal Code and the Code of Criminal Procedure in force, have finally translated the institution of criminal misconduct into practice. Turning to the history of the establishment of the institution of criminal misconduct, it should be noted that the division of criminal acts into crimes and misdemeanors was known to the legislation of the Russian Empire since the adoption in 1845 of the Code of Penalties for Criminal and Correctional Offences, according to which all penalties were divided into criminal and correctional ones. Only correctional punishment was intended for misconduct. The allocation of criminal misconduct to a separate type of criminal offense was also preserved in the Criminal Code 1903 Under this regulatory act, they were punished with arrest or a fine. It focuses on the main innovations and issues of their application, began to operate in connection with the entry into force of the Law, which we spoke about at the beginning of our study. It is noted that if the investigating judge satisfies the prosecutor’s request to recognize the above materials as evidence for crimes, new sources for criminal offenses in general appear, and not only for misconduct, as indicated in Part 1 of Article 2298-1 of the Code of Criminal Procedure of Ukraine. If the sources of evidence are still used despite the refusal of the application, then this evidence will be recognized as admissible. This provision is reflected in the doctrine of «poisoned tree fruits,» which appeared in the United States and is that there is an exclusion rule according to which evidence is inadmissible in court if it was obtained thanks to evidence obtained illegally. An analysis of the norms of the Code of Criminal Procedure of Ukraine showed that there is no ban on the specialist on his own, of his own free will to collect the materials necessary for the study. With regard to the provision or refusal of a specialist’s opinion, the interpretation of the matter was mixed. Ch.2 of Article 71 of the Code of Criminal Procedure of Ukraine grants the right to the expert to provide consultations and conclusions in cases of attraction it at investigation of criminal offense, but on the other hand there is a duty of the expert to follow instructions of the party of criminal proceedings which attracted it, or vessels. The issue was therefore ambiguous and required further interpretation by the legislator.