PROBLEMS OF USING FORENSIC MEDICAL EXAMINATION IN THE ACTIVITIES OF THE PROSECUTION AND DEFENSE IN CRIMINAL PROCEEDINGS

The article highlights the doctrinal and legal problems of using forensic medical examinations to ensure justice. Based on an integrative analysis of the legislative framework and forensic medical expert practice, the article proposes to unify the existing system of legislative acts and to develop and adopt a "Code of Forensic Expert Activity" and a "Medical Code of Ukraine". The system of guarantees for the activities of a medical expert requires significant improvement. The principle of humanity should be enshrined in the legal framework of Ukraine at the level of constitutional norms and sectoral legislative acts. With regard to the expert and the physician, the principle of the presumption of professionalism, conscientiousness and good faith should be introduced. Ensuring the effectiveness of using forensic medical examinations in the field of justice requires strengthening the guarantees of independence and protection of the expert. It is advisable to establish a rule that, in the event of conflict situations arising from expert opinions or means of medical care, criminal proceedings against a physician or expert may be initiated only by the regional prosecutor or a prosecutor of the relevant or higher level, and that the participation of a defence counsel (attorney) in such proceedings would be mandatory. A physician or expert should be granted the right to refuse to testify in court proceedings on matters relating to the performance of their professional duties. Arrest of an expert or the application of other preventive measures against them may be carried out only on the basis of a ruling of an investigating judge issued upon a motion of the regional prosecutor, a higher-level prosecutor, or a prosecutor of the Specialized Anti-Corruption Prosecutor's Office. Legal fictions, which often create a collapse in the field of justice, need to be eliminated from the legal framework. This requires systematic improvement of legislation, from clarifying the concept of evidence and the rules of its admissibility to providing a precise legal definition of the terms used (such as "irreparable disfigurement of the face", etc.). In legislative acts on expert examination, particularly in the context of forensic medical examination, it is necessary to define the categorical apparatus and provide answers to the following questions: (a) What constitutes a "face"? (b) What constitutes an irreparable injury to the face? (c) What facial injury constitutes its disfigurement (mutilation)? Solutions to these issues are proposed. In terms of resolving the problems of using expert opinions in criminal proceedings in general, and forensic medical examinations in particular, it is necessary to ensure systematic improvement of legislation: to clarify the concept of the parties to criminal proceedings; to define a separate status for the investigator as an independent subject of criminal proceedings performing the function of an objective investigation, and to remove them from the list of participants belonging to the prosecution side; to distinguish between the concepts of defence and legal assistance, thereby establishing the status of a person providing legal assistance; to replace the existing concept of "suspect" with the status of "person under investigation", and, in compliance with the provisions of international legal instruments, to restore the status of "accused" to the stage of pre-trial investigation in the legal framework, which would better realise the principle of adversarial proceedings between the parties in criminal procedure, thereby benefiting justice.