Open AccessOn the issue of the necessary establishment of special conditions for interrogating a person with mental disabilities as a witness in criminal proceedings
Author(s) -
Yevhenii Skulysh,
Sergiy Kuzmin,
Оleh Horai
Publication year - 2020
Publication title -
časopis kiïvsʹkogo unìversitetu prava
Language(s) - English
Resource type - Journals
ISSN - 2219-5521
DOI - 10.36695/2219-5521.2.2020.68
Subject(s) - witness , legislation , criminal procedure , cross examination , law , interrogation , political science , criminal code , norm (philosophy) , psychology , criminal law , context (archaeology) , criminology , paleontology , biology
The article presents the study of debatable issues of legal regulation of conditions for interrogating a person with mental disabi -lities as a witness in criminal proceedings, as well as the substantiation of the basic principles for the relevant draft norm.This problem is caused by the fact that national criminal procedural legislation of Ukraine does not contain a specific mechanismthat would be the basis for assessing the results of interrogating a person with mental disabilities as a witness.In particular, the Criminal Procedural Code of Ukraine enumerates persons who cannot be interrogated as witnesses. The relevantgrounds allow an investigator, prosecutor, investigating judge, or court to decide not to interrogate a person who is aware or may beaware of the circumstances to be proved in criminal proceedings. At the same time, the forensic expert findings on this person’s abilityto perceive the facts cannot be taken into account in order to assess the reliability of the testimony of a witness with mental disabilities,and such an expert examination in criminal proceedings cannot be prescribed.As a result, preconditions are formed for investigative and judicial errors, violation of rights and freedoms of citizens and legi -timate interests of individuals and legal entities, which is obviously unacceptable for the modern legal, social, and democratic stateUkraine seeks to become.The controversial issues on special conditions of interrogating a person with mental disabilities as a witness in criminal proceedingshave been studied in the context of scholarly analysis of the provisions of modern national criminal procedural legislation, historicalexperience, and relevant norms of foreign criminal procedure.As a result of the research, a proposal to amend the criminal procedural legislation in force is developed and substantiated. Inparticular, it is proposed to supplement the criminal procedural legislation of Ukraine with a norm on mandatory prescription of anexpert examination to establish the mental condition of a witness in case of doubt about the ability of this person to correctly perceivethe circumstances, relevant to criminal proceedings, and testify about them.