Difficulties in the application of Part 11 of Article 615 of the Criminal Procedural Code of Ukraine

Abstract

The article examines some problematic aspects of the implementation of the provisions of Part 11 of Article 615 of the Criminal Procedural Code of Ukraine. In particular, it determines the method of resolving the problem of the contradiction between the interrogation protocol and the video recording of the interrogation, which sometimes occurs, in the case of applying Part 11 of Article 615 of the Criminal Procedural Code of Ukraine, and also finds out the question of how the courts explain the possibility of applying Part 11 of Article 615 of the Criminal Procedural Code of Ukraine.

The study used the methods of analysis and synthesis, analogy, and the formal legal method.

The publication emphasizes that in practice there are sometimes cases when the information specified in the interrogation protocol contradicts that contained in the video recording of the interrogation, that is, the appendix to the interrogation protocol, instead of detailing this protocol, actually conflicts with it. In such cases, the courts that apply Part 11 of Article 615 of the Criminal Procedural Code of Ukraine, face the question of which of these forms of recording the interrogation should be taken into account. And this issue is resolved in judicial practice in different ways. Based on the analysis of judicial practice, the specifics of the formulation of the relevant legislative provisions and doctrinal sources, it is stated that in the case of using in court the testimony that was obtained taking into account the conditions stipulated in Part 11 of Article 615 of the Criminal Procedural Code of Ukraine, in the presence of discrepancies in the video recording of the interrogation and the interrogation protocol, the courts should take into account that the legislator in Part 11 of Article 615 of the Criminal Procedural Code of Ukraine emphasizes the video recording. In the context of the implementation of Part 11 of Article 615 of the Criminal Procedural Code of Ukraine, it is considered appropriate to apply by analogy the provisions of Paragraph 3 of Part 2 of Article 104 of the Criminal Procedural Code of Ukraine (formulated in the law on search) in such a way that information about the circumstances of the interrogation, information provided during the interrogation that was not recorded in the video recording of the interrogation cannot be included in the interrogation protocol and used as evidence in criminal proceedings.

The article, based on the analysis of court decisions and doctrinal sources, states that courts, implementing the provisions of Part 11 of Article 615 of the Criminal Procedural Code of Ukraine, do not always explain what determines such expediency in the relevant criminal proceedings. At the same time, the position of the researchers on the need for such an explanation is supported.