Provision of Immediate Conduction of a Medical Examination of a Person as a General Duty of a Judge for the Protection of Human Rights in Aspect of Article 206 of the Criminal Procedural Code of Ukraine
Authors: Buchkivska V. L. 
Published: January 2022

The Bangalore Principles for the Conduct of Judges of 19 May 2006, adopted by UN Economic and Social Council Resolution 27 July 2006 № 2006/23 [1], stipulate that a judge must exercise his or her judicial function independently, based solely on a factual assessment, in accordance with a conscious understanding of the law. , regardless of outside influence, motivation, pressure, threats or interference, direct or indirect, carried out by any party and for any purpose. It is also stated that the objectivity of a judge is a necessary condition for the proper performance of his duties. It is manifested not only in the content of the decision, but also in all the procedural actions that accompany its adoption.

In accordance with Principle V set out in Recommendation 94 (94) 12 “Independence, effectiveness and role of judges”, adopted by the Committee of Ministers of the Council of Europe at its 518th meeting of the Ministers' Deputies on 13 October 1994 [2], judges are required to the case is impartial, based on its own assessment of the facts and its own interpretation of the law; to ensure that each party has an equal opportunity to be heard and that the procedural rights of each party are respected in accordance with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Analysis of recent research and publications. Problems of judicial control and application of Article 206 of the CPC of Ukraine were studied by such scientists as VF Boyko, VS Zelenetsky, VT Malyarenko, OR Mykhaylenko. Some issues of the powers of the investigating judge were considered by VD Bryntsev, YM Groshevy, VI Shyshkiv, ME Shumylo, Glovyuk IV [3].

According to paragraph 18 part 1 of Article 3 of the CPC of Ukraine, the investigating judge is a judge of the court of first instance, whose powers include the exercise in the manner prescribed by this Code, judicial control over the rights, freedoms and interests of persons in criminal proceedings. , provided for in Article 247 of this Code, - the chairman or another judge of the relevant appellate court. The investigating judge (investigating judges) in the court of first instance is elected by the assembly of judges from among the judges of this court.

The main purpose of the investigating judge is to provide judicial protection of the rights and legitimate interests of persons involved in criminal proceedings, and to ensure the legality of the proceedings in the pre-trial stages. This determines the specific nature of his criminal function, which is to ensure the legality and validity of the restriction of constitutional human rights and freedoms in pre-trial proceedings [4].

Article 206 of the CPC of Ukraine defines the general responsibilities of a judge for the protection of human rights.

Thus, in particular, Part 6 of this article provides that if during any court hearing a person alleges the use of violence against him during detention or detention in an authorized public authority, public institution (public authority, public institution, which the law provides the right to detain persons), the investigating judge is obliged to record such a statement or to accept a written statement from the person and: 1) to ensure the immediate conduct of a forensic examination of the person; 2) instruct the relevant body of pre-trial investigation to conduct an investigation of the facts set forth in the person's application; 3) take the necessary measures to ensure the safety of the person in accordance with the law.

First of all, it should be noted that despite the title of the article "General responsibilities of a judge for the protection of human rights", in the article the legislator gives the duty to protect the human rights of the investigating judge and indicates the mandatory procedural steps to be taken. judicial protection of the rights and legitimate interests of persons involved in criminal proceedings. Such a procedural defect leads to different interpretations of this article and, as a consequence, different application in judicial practice. Correctly indicates AP Bushchenko that the "court hearing" in the context of this article is used in the broadest sense, so this duty of a judge exists during any court hearing [5].

It should be noted that on October 17, 2019, the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine to Improve Certain Provisions of Criminal Procedure Legislation" entered into force, according to which the parties to criminal proceedings received the right to independently involve an expert to conduct an examination.

For the unity of judicial practice, it is necessary to amend and detail the subjects who should be entrusted with the actions provided for in Part 6 of Article 206 of the CPC of Ukraine and specify in which cases the legal provisions of paragraph 1 of Part 6 of this Article apply. if during any court hearing a person alleges violence during detention or detention in an authorized public authority, state institution (public authority, state institution, which by law has the right to detain persons), the investigating judge is obliged to record such a statement or to accept a written statement from a person and to ensure an immediate forensic examination of the person. In addition, if we are talking about a forensic examination, then in this case should be considered that on the basis of this court decision should be conducted examination, because according to the legal requirements of Part 2 of Article 84 of the CPC of Ukraine is the expert's opinion.

Summarizing the above, it should be noted that Article 206 of the CPC of Ukraine, which defines the general duties of a judge to protect human rights, requires changes and details of certain provisions, in particular in determining the composition of the court, which has the right to judicial protection of rights and legitimate interests. involved in criminal proceedings; detailing the subjects who should be instructed to perform the actions provided for in Part 6 of Article 206 of the CPC of Ukraine and specifying the cases in which the legal provisions of paragraph 1 of Part 6 of this Article are subject to application; and an indication in the law as to whether court decisions adopted pursuant to Article 206 of the CPC of Ukraine are subject to appeal.