METHODOLOGICAL DEFICIENCIES OF CURRENT LEGISLATION AS A FACTOR OF DESTRUCTIVE INFLUENCE ON THE PRACTICE OF LEGAL RELATIONS

Abstract

The article uses the example of a tragic shooting in the Cherkasy region to illustrate how a false national interpretation of the principle of the rule of law has a destructive effect on the interpretation of the norms of criminal procedural legislation that regulate the modern procedure for opening criminal proceedings and starting an investigation, and the possible consequences of this influence.

And since these shortcomings contradict the principle of legal certainty, and in practice legal relations can be used contrary to the principle of the rule of law, the authors made proposals aimed at improving the procedural regulation of these issues and relevant practice.

In particular, the author has proven that: 1) the institution of opening criminal proceedings is the implementation of the principle of publicity in the activities of authorized bodies and, on the one hand, serves to protect individuals, society, and the state from criminal offenses, and, on the other hand, is one of the essential guarantees of the inviolability of the person, proclaimed by the Constitution, and a means of ensuring the rights, freedoms, and legitimate interests of individuals and legal entities; 2) the initiation of criminal proceedings is a separate stage of the criminal process, and its procedure, as defined by law in accordance with the grounds provided for by law, is a condition for compliance with the principle of legality and the rule of law at this stage; 3) the stages of opening criminal proceedings and initiating an investigation differ significantly in terms of the tasks to be performed at each stage and in that criminal proceedings opened within the framework of administrative and legal relations, while investigations are conducted within the framework of criminal procedural legal relations; 4) the grounds for opening criminal proceedings are the existence of factual data and their sources specified by law, which give reason to conclude that a criminal offense may have been committed, and therefore they require analytical and practical processing for verification and clarification; 5) the grounds for initiating an investigation are the existence of sufficient data, which means both factual data and their sources, and regard the commission of a specific criminal offense; 6) in order to improve the legal regulation of these legal relations, in Article 25 of the CPC, the phrase «signs of a criminal offense» and in Article 214 of the CPC, the phrase/expression «circumstances that may indicate the commission of a criminal offense» should be replaced with the phrase «signs of a specific criminal offense», which would make it possible at the beginning of the investigation to determine the legal classification of the offense committed, its jurisdiction, and the choice of the appropriate investigation methodology.

References

1. Decision of the Constitutional Court of Ukraine dated 02.11.2004, No. 15-рп. URL: http://zakon3.rada.gov.ua/laws/show/v015p710-04

2. Report on the Rule of Law. Adopted by the Venice Commission at its 86th plenary session (Venice, 25–26 March 2011) on the basis of comments by Mr Pieter van Dijk, Ms Gret Haller, Mr Jeffrey Jowell, Mr Kaarlo Tuori. 16 p. URL: https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)003rev-e

3. Andrushko P. Establishing the absence of a criminal offense as a ground for closing criminal proceedings (certain criminal law and criminal procedural aspects). Part 2. Visnyk Prokuratury. 2014. No. 8 (158). P. 66–80.