III.1. Discussion

Scientific periodicals rightly emphasize that the legislative regulation of the procedure of examination is imperfect, since the purpose and objectives of this investigative (search) action are not clearly defined, which leads to confusion of these concepts in the scientific legal literature; the types of examination and the procedure for their implementation remain insufficiently defined; the factual grounds for its holding are not clearly formulated in the law; there is no procedural regulation of the procedure for conducting a compulsory examination. This allows pre-trial investigation agencies to interpret some provisions of the law at their own discretion, which creates conditions for unjustified restriction of the rights and freedoms of the participants in criminal proceedings involved into investigative (search) actions (^{Klochuriak, 2013}). At the same time, according to V. ^{Topchiy and N. Karpenko (2015}, p. 159), it is inexpedient to specify the factual grounds for the examination in the Criminal Procedural Code of Ukraine, since it is impossible to predict all possible cases of this investigative (search) action.

E. ^{Iskenderov (2017}, p. 49) made a well-considered conclusion that the procedure for conducting examination within criminal proceedings provided by the Art. 241 of the Criminal Procedural Code of Ukraine contains a number of problematic issues, the presence of which leads to ineffective realization of criminal procedural guarantees of the prosecution as the subject of proving in the pre-trial investigation.

III.2. Results

Criminology has developed a number of rational recommendations as conditions for examination: (i) examination can be made only after initiating a criminal case; (ii) examination is appropriate when there is no need to appoint a forensic examination; (iii) persons to be examined are the accused, the suspect, the victim, the witness; (iv) if necessary, an expert is involved in the production of examination. What is the difference between examination and inspection or expert study? What caused this new investigative procedure to appear and gain recognition? The answer seems obvious: speed, combined with the lack of surplus criminal procedural regulations, and simplicity arising from the maximal visibility of traces of the crime. It is these features that determine the direction and content of the tactics of examination (^{Akhmedshin, 2016}).

Success in the process of investigating criminal proceedings in many cases depends on the timeliness and quality of such an investigative (search) action as an examination. The conduction of examination in Ukraine has qualitatively changed with the reform of legislation (^{Dufeniuk & Kuntiy, 2015}, p. 298). Nowadays, the procedure for conducting an examination by an investigator or a prosecutor must clearly meet the requirements of the Art. 241 of the Criminal Procedural Code of Ukraine. The analysis of the procedural requirements enshrined in this Article makes it possible to single out the problematic aspects of the regulation of a person’s examination.

The first problematic issue is related to the definition of the limits of coercion that may occur during the examination, namely the conditions of interference with the rights of individuals (acts of psychological or physical coercion). The possibility of compulsory examination is provided in Part 3 of the Art. 241 of the Criminal Procedural Code of Ukraine, which stipulates that coercion can be used only if a person refuses to be examined voluntarily. It should be noted that the law establishes a norm on the prevention of actions that degrade the honor and dignity of a person or are dangerous to his/her health. However, the outlined categories are quite estimative. Therefore, the raised issue is surely the interest of scholars. The differentiation of certain conditions for the use of coercion by some processualists should be considered appropriate and relevant (^{Topchiy & Karpenko, 2015}, pp. 50-51; ^{Lukianchykov, 2015}, p. 143). We believe that coercive actions are carried out only in case of refusal of a person (suspect, victim, witness) to pass the examination voluntarily. In particular, coercion may be accompanied by the detention of a person. Thus, application of measures of physical influence (force), special means is possible only if there are grounds provided by the Art. 43-45 of the Law of Ukraine “On the National Police”. The use of chemicals or medical devices that are hazardous to a person’s health is not permitted.

In the context of the raised issue, there is the question concerning the expediency of conducting a compulsory examination of the victim and the witness. This aspect provokes a lively scientific discussion. Proponents of the legislator’s position (on the use of coercion to examine the victim, witness) are convinced that both the suspect, accused and victim, witness may be subject to compulsory examination. This position is, for example, held by S. M. ^{Stakhivskyi (2009}, p. 32), I. M. ^{Yanchenko (2008}, p. 126) and others. In this regard, D. O. ^{Savytskyi (2012}, p. 25) points out that the grounds for compulsory examination of the victim should be substantiated suspicion of falsity of the testimony and the availability of sufficient data to believe that this will reveal factual data to confirm or refute such a suspicion. Compulsory examination of a witness is possible, if there is evidence to believe that traces of the crime or other evidence relevant to establishing the circumstances of the crime, as well as assessing the veracity of the testimony may be found on his/her body. As we can see, the researcher relates the possibility of a compulsory examination to the verification of the veracity of the testimony of the victim or witness.

Opponents of the expediency of compulsory examination of the victim and witness justify their position by the fact that these persons are not subject to criminal prosecution, they do not commit criminal acts, do not violate the law, which could equate them with criminals who are subjects of permissible and desirable coercion and isolation from society (^{Antonov, 2003}, p. 167).

We consider it appropriate in this discussion to express our own point of view. First, it is necessary from the practical point of view to carry out the examination of the witness and the victim, if they object to its conduction, and especially if an investigator or a prosecutor has doubts about the credibility of their testimony. Such a situation may arise, for example, in the course of investigating a crime under the Art. 152 of the Criminal Code of Ukraine (rape), when an investigator, a prosecutor has factual data that may indicate a simulation, staging of a criminal offense. Secondly, coercive actions are carried out only in case of a person’s refusal to pass the examination voluntarily. Therefore, the victim wanting the crime to be detected as soon as possible, will not probably refuse to be examined. Objections to any investigator’s actions indicate that the victim is trying to hide certain traces on his/her body.

In this context, it is necessary to cite the statement of the famous scholar I. L. ^{Petrukhin (1989}, p. 66) that the possibility of the coercion contained in the norms of criminal procedural law is not addressed to every participant in criminal proceedings. It is directed only against those who are not in solidarity with the law-its norms, prohibitions, permits and therefore seeks to evade the performance of the procedural duties. One should categorically agree with this statement. Therefore, we note that rights of the examined person must be guaranteed while carrying out this investigative (search) action without objecting to the possible use of coercion in the course of the examination of the victim and witness and emphasizing that such a need may be due to the practical need for collecting evidence. Coercion in the course of the examination both of the victim, the witness and the suspect may be applied only after all possibilities of convincing the person of the need to carry out this procedural action voluntarily have been exhausted.

The second problematic issue is related to the identification of the subjects of the examination. The examination may be conducted: (i) by an investigator (if there is a prosecutor’s decision), a prosecutor himself; (ii) by an investigator, a prosecutor with the participation of a forensic expert or a doctor; (iii) by a doctor (Part 2 of the Art. 241 of the Criminal Procedural Code of Ukraine). We should note that Part 2 of the Art. 241 of the Criminal Procedural Code of Ukraine stipulates that “the examination is carried out on the basis of a prosecutor’s decision”. Scholars express their critical remarks about such a legal requirement. Thus, V. I. ^{Galagan and O. I. Galagan (2013}, p. 17) note that there is a natural question in this case: how an investigator should behave, if there is an urgent need to conduct examination of the human body to collect evidence within criminal proceedings after the working day or when the need for the examination arose on a non-working day or a holiday. After all, cases of urgency in case of conducting the examination are not provided as an opportunity to conduct an examination in urgent cases without a prosecutor’s decision, followed by notification of a prosecutor about the results along the next working day and sending a copy of the minutes of this procedural action.

In addition, this provision creates a situation when practitioners try to record the traces of the crime by the crime scene search, because it is not always possible to ensure that a person not to destroy traces of the crime or to get rid of the object of illicit benefit before receiving such a prosecutor’s decision. However, the pre-trial investigation agency does not follow this rule in practice (^{Shumeiko, 2015}, p. 156). We subsequently pay attention to the procedure of the examination by a doctor, which according to the current Criminal Procedural Code of Ukraine, in our opinion, is ambiguous and contradictory. The possibility of carrying out this action by a doctor is evidenced by the provisions of Part 2 of the Art. 241 of the Criminal Procedural Code of Ukraine, according to which:

«Examination, which is accompanied by exposure of the examined person, is carried out by persons of the same sex, except for its conduction by a doctor and with the consent of the examined person. The investigator or prosecutor may not be present during the examination of a person of the opposite sex, when it is necessary to expose the person to be examined».

Thus, if it is necessary to conduct the examination of a person of the opposite sex than the investigator, prosecutor, there may be two options:

Examination by a doctor independently determines the following questions. First, what is the procedural status of the person conducting the examination? Secondly, what is the procedure for involving a doctor by an investigator or a prosecutor? Thirdly, what powers does a doctor have in case of independent examination? Fourth, what kind of procedural document should be drawn up by a doctor after the examination (minutes, conclusion or other)? Fifth, is the participation of attesting witnesses required in case of a doctor’s examination?

As one can see, legislative contradictions are manifested in the procedural form of consolidating the examination by a doctor, because the results of the examination must be recorded in the minutes. However, the doctor, as a person who conducts the examination independently, is not authorized to draw up such minutes. This thesis is substantiated by the fact that the minutes in accordance with Part 1 of the Art. 106 of the Criminal Procedural Code of Ukraine is drawn up during the pre-trial investigation by the investigator or prosecutor, who carry out the relevant procedural action. Therefore, we have a contradiction, which is manifested in the fact that, on the one hand, the doctor has the right to conduct the examination, and on the other hand, the doctor is not entitled to draw up minutes on the results of its conduction. The investigator has also no right to draw up minutes of the examination according to the doctor’s words, because the minutes are drawn up by the person who carries out the relevant procedural action in accordance with Part 3 of the Art. 106 of the Criminal Procedural Code of Ukraine. The solution to this situation would be the possibility to draw up the doctor’s opinion on the analogy with a specialist, provided in paragraph 7 of Part 4 of the Art. 71 of the Criminal Procedural Code of Ukraine. However, the expert’s opinion is not a procedural source of evidence (Art. 84 of the Criminal Procedural Code of Ukraine).

Therefore, it should be noted that the procedure for a doctor’s examination is currently not defined. The issues of involving a doctor into this action, his status, the procedural form of recording the examination conducted by the doctor himself are not regulated. Besides, the examination by a doctor according to the study of the materials of the criminal proceedings is practically not carried out. Therefore, the provisions of Part 2 of the Art. 241 of the Criminal Procedural Code of Ukraine (concerning the examination by a doctor independently) is not actually used in investigative and prosecutorial practice.

Given the identified legal contradictions, we believe that the examination should be conducted by an investigator, a prosecutor with the involvement, if necessary, of a forensic expert or a doctor. Carrying out the examination by a doctor independently will indicate a violation of the procedural forms of recording, which, accordingly, may lead to the recognition of the evidence obtained during its conduction as inadmissible. Involvement of a forensic expert or a doctor into the examination provides an opportunity to combine legal and medical knowledge, on the one hand, to correctly and completely identify traces of a criminal offense, special features of the person, and on the other, to correctly reflect them in the minutes. Therefore, we are convinced of the need to make legislative amendments regarding the exclusion of a doctor as a subject that has the right to conduct the examination independently. In case of legislative exclusion of the provision on a doctor’s examination, there may be questions about the procedure of procedural actions, accompanied by the exposure of a person. We believe that the examination, which is accompanied by the exposure of the examined person’s body, can be carried out in two ways: (i) by an investigator, a prosecutor of the same sex; (ii) an investigator, a prosecutor of the opposite sex with the participation of a forensic expert or a doctor. Examination by a person of the opposite sex is possible only if the person being examined does not object. The stated suggestions make it necessary to amend Part 2 of the Art. 241 of the Criminal Procedure Code of Ukraine.

The third problematic issue is related to the involvement of attesting witnesses into the examination. In particular, representatives of the scientific community have questions about (i) the feasibility of involving attesting witnesses when a person is getting naked; (ii) participation of attesting witnesses in the examination of a person of the opposite sex. The emergence of these issues is a well-founded fact, since the conduction of this investigative (search) action is associated with the restriction of personal rights and freedoms. In this regard, respect for human honor and dignity must be ensured during the examination. The participation of outsiders (attesting witnesses), for ethical reasons, causes a sense of shyness. Thus, the raised issue leads to scientific controversy, the expression of diverse opinions, etc.

Systematic analysis of the provisions of Part 7 of the Art. 223, the Art. 241 of the Criminal Procedural Code of Ukraine leads to the understanding that the obligatory participation of attesting witnesses during the examination must be ensured, regardless of whether it is accompanied by the exposure of a person’s body or not. The conduction of the examination without participation of attesting witnesses is possible in case of application of a continuous video recording of the course of this investigative (search) action. Therefore, the raised issue is quite controversial and should be clarified by scholars. We try to express our own vision on the outlined issue. In general, we believe that the institution of attesting witnesses, not only during the examination, but also during the investigative (search) actions in general, should be revised, in particular, as an atavism of the Soviet period. This issue is not the subject of our study, so we will not consider it in detail. However, there are positive aspects of the participation of attesting witnesses. In particular, their involvement and certification of the fact of the investigative (search) action, its course and results may prevent illegal complaints about the investigator, prosecutor’s actions. In addition, the possible shyness of the person being examined should be taken into account, which can lead to a conflict situation. However, such shyness cannot be avoided in any case, because a person must expose his/her body.

Provisions of the Art. 241 of the Criminal Procedural Code of Ukraine guarantee the conduction of the examination with the participation of a forensic expert or a doctor or by a doctor independently. We believe that there is no need to involve attesting witnesses in these cases. However, such a restriction is not provided according to the current legislation, although it is clear that the participation of attesting witnesses in case of a doctor’s examination is inappropriate. Qualitative composition of attesting witnesses is important for the observance of the rights of the examined person. They should not be casual friends of the examined person, colleagues; it is desirable that they are close in age persons. The suggestion of V. H. ^{Drozd (2009}, p. 10) that the decision to invite attesting witnesses should be agreed with the person, primarily in view of ethical considerations, is theoretically substantiated, but the final decision should belong to the investigator. There may be also the question about the sex of attesting witnesses in the practical plane. Part 2 of the Art. 241 of the Criminal Procedural Code of Ukraine contains prohibition only for the investigator, prosecutor to be present during the examination of a person of the opposite sex, when it is necessary to expose the person’s body. The law does not contain a similar prohibition for attesting witnesses, at the same time we believe that for ethical reasons the investigator should guarantee the participation of attesting witnesses of the same sex with the examined person.