On competition at pre-trial investigation: theory and practice
Students Name: Pylypchak Vasyl Vasylovych
Qualification Level: magister
Speciality: Law
Institute: Institute of Jurisprudence and Psychology
Mode of Study: part
Academic Year: 2020-2021 н.р.
Language of Defence: ukrainian
Abstract: Pylypchak V.V. Huzela M.V. Competition in the investigative investigation: theory and practice. – Master`s thesis; Specialty 081 "Right". – L’viv Polytechnic National University, L’viv, 2020. In the master’s thesis the problem of competition is highlighted. A a court hearing will be fair if the trial is adversarial. Competitiveness, in accordance with the recommendations of the ECtHR, can be generalized to the following powers of the parties: 1) the parties to the defense and the prosecution must have the right to receive information; 2) the parties to the defense and the prosecution should have the legal opportunity to discuss the evidence presented by the opposing party. The first law stipulates that all evidence must be presented to the court in the presence of the accused, and the second that this evidence may be challenged during the trial by both parties, and indicates that the parties may question witnesses from the other side and comment on their testimony. The European Court of Human Rights has formulated a position according to which each party should have a real opportunity to present its position in the case on equal terms with the opposite party[2]. The defense party may exercise this right, for example, through a statement of motions to conduct investigative (search) actions. And in cases where the national court rejects such a request (for the summoning of witnesses and their interrogation), it must give reasons for its refusal. The conditions of the examination also apply to the right to receive information. The European Court of Human Rights states that the parties must be in such conditions, especially the defense party, that they do not have a significant disadvantage compared to the other party [1,4]. The right of the parties to the defense and the prosecution to have the opportunity to discuss the evidence presented by the opposing party shall be exercised primarily in the right to cross-examine witnesses by the defense and the prosecution. The European Court of Human Rights states that the defendant has the right to interrogate persons who testify against him, and also has the right to call witnesses who testify in his favor, and the conditions of interrogation of all witnesses must be equal[5]. Alexandrov A.S. emphasizes that the right to cross-examination is the most important right of the defendant, which he should be able to use even in cases where he has no defense counsel. In cases where the law provides that the defendant has no right to interrogate the witness, the court must provide him with a lawyer [3, p. 88]. At the same time, the European Court of Human Rights does not guarantee the parties to demand the summoning and interrogation of any witness, but only those who can testify, are able to strengthen the party’s position or lead to acquittal. Moreover, attention is drawn to the fact that the parties must explain the significance of the testimony of witnesses summoned to court in the circumstances of the case [1]. Ensuring the procedural security of persons who facilitate the administration of justice may conflict with the right of the parties to question witnesses[2]. However, the European Court of Human Rights has repeatedly stated that the right to an adversarial process is not absolute, and its scope may vary depending on the specific features of the case. With regard to this right of the parties, it is possible to speak about restrictions concerning, in particular, non-disclosure of the name of the subject or features of conducting investigation, including for ensuring national security. Key words: criminal proceedings, principles of criminal proceedings, the principle of adversarial proceedings in pre-trial investigation Referenses. 1. Dovidnyk iz zastosuvannia statti 6 Yevropeiskoi konventsii z prav liudyny. Pravo na spravedlyvyi sud (kryminalno-protsesualnyi aspekt). - Rada Yevropy/IeSPL, 2014. 72 s. 2. Lysenkova K.I. Rozvytok pryntsypu zmahalnosti storin u dosudovomu kryminalnomu provadzhenni \ Visnyk Natsionalnoi akademii prokuratury Ukrainy. 2015, № 2(40). S. 104-110. 3. Serdiuk V.V. Zmahalnist storin yak zasada sudochynstva v Ukraini \ Chasopys tsyvilnoho i kryminalnoho sudochynstva. 2016, № 2. S. 85-93. 4. Solovei H.V. Teoretychni aspekty pryntsypu zmahalnosti v kryminalnomu protsesi \ Forum prava. 2012. № 1. S. 883–887. 5. Tsyliuryk I., Zubach I. Vtilennia pryntsypu zmahalnosti yak zaporuka povnotsinnoi realizatsii funktsii zakhystu u suchasnomu kryminalnomu sudochynstvi \ Natsionalnyi yurydychnyi zhurnal: teoriia i praktyka (Respublika Moldova). 2015, berezen. S.131-135