Problems of proving in criminal proceedings based on violations of war laws and customs

Shulzhenko, A. V.

doi:10.32631/v.2022.2.23

“…A.V. Shulzhenko (2022) identified the problems of proving the objective side of violating the laws and customs of war. I.V.…”

Section: ■ Introductionmentioning

confidence: 99%

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2023

Naukovij vìsnik Nacìonalʹnoï akademìï vnutrìšnìh sprav

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The relevance of the study is conditioned by the importance of expert investigations into war crimes committed on the territory of Ukraine. Since many of these crimes result in the death or injury of victims, forensic examinations play a key role in investigations under the Criminal Procedure Code. The purpose of the study was to update the significance of the results of forensic medical examination in proceedings on war crimes, and to identify problematic aspects of the appointment of such an examination simultaneously with proposals for ways to overcome them. The methodological basis of the study was general scientific (dialectical, analysis, synthesis, induction and deduction) and special methods (system and structural, comparative legal, formal logical). It is established that modern capabilities of forensic medical examination contribute to achieving the goal of pre-trial investigation of military torts in limited conditions of forming a high-quality evidence base for such proceedings. However, the effective use of the potential of forensic medical examinations is hindered by a number of problems caused not only by the consequences of active military operations, but also by shortcomings in the legal regulation of this type of forensic examination, imperfect organisation of the structure and functioning of forensic medical institutions during the time of emergency. Possible ways to overcome the identified difficulties are proposed: reorganisation of the structure of forensic medical institutions, in particular, by establishing a department for forensic examination of corpses within a mobile military hospital with the involvement of specially trained forensic experts; simplification of the procedure for processing documents where the results of external examination of the corpse are recorded; updating the regulatory support for the activities of forensic doctors during martial law. The practical significance of the study lies in the fact that the conclusions obtained will help expand the understanding of pre-trial investigation officers of the possibilities of forensic medical examinations in the investigation of war crimes, and will also help identify the problems arising when appointing such examinations and suggest ways to solve them

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Circumstances to be proved in the investigation of violations of the laws or customs of war

Taran¹,

Zapototskyi²,

Starenkyi³

2022

Naukovij vìsnik Nacìonalʹnoï akademìï vnutrìšnìh sprav

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Investigating violations of the laws and customs of war is a relatively new area of activity for law enforcement agencies in Ukraine. Although some experience of such investigations has existed since 2014, the international armed conflict that began on February 24, 2022, identified almost all forms (methods) of violation of the laws and customs of war, which requires a comprehensive analysis and correct understanding of the rules of international humanitarian law that define the rules for participants in armed conflict. The purpose of the research is to define some circumstances to be proved in the course of the investigation of violations of the laws and customs of war and to disclose their content with due regard for the rules of international humanitarian law which determine the specifics of the object of proof in such criminal proceedings. The research employs philosophical (dialectical and hermeneutical), general scientific (systemic, historical, functional), and special scientific (comparative jurisprudence, technical-legal, and interpretation of legal provisions) methods of cognition. The work is based on the provisions of the treaty and customary law of armed conflict, the practice of its application at the national and international level, national law providing for liability for violation of the laws and customs of war, the procedural procedure for investigating criminal offences, and forensic recommendations for investigating particular types of crimes. Based on the results of the research, the author develops several circumstances to be proved in the course of investigation of the laws and customs of war as separate but related to other elements of the object of proof, namely: lawful combatants, combatant's immunity; territorial and time limits of international humanitarian law; legitimate purpose, military necessity. Their content, evidentiary value, and relationship are covered

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Topical issues of forensic medical examination in the investigation of war crimes

Vozniuk,

Hryha

2023

Naukovij vìsnik Nacìonalʹnoï akademìï vnutrìšnìh sprav

3

0

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The relevance of the study is conditioned by the importance of expert investigations into war crimes committed on the territory of Ukraine. Since many of these crimes result in the death or injury of victims, forensic examinations play a key role in investigations under the Criminal Procedure Code. The purpose of the study was to update the significance of the results of forensic medical examination in proceedings on war crimes, and to identify problematic aspects of the appointment of such an examination simultaneously with proposals for ways to overcome them. The methodological basis of the study was general scientific (dialectical, analysis, synthesis, induction and deduction) and special methods (system and structural, comparative legal, formal logical). It is established that modern capabilities of forensic medical examination contribute to achieving the goal of pre-trial investigation of military torts in limited conditions of forming a high-quality evidence base for such proceedings. However, the effective use of the potential of forensic medical examinations is hindered by a number of problems caused not only by the consequences of active military operations, but also by shortcomings in the legal regulation of this type of forensic examination, imperfect organisation of the structure and functioning of forensic medical institutions during the time of emergency. Possible ways to overcome the identified difficulties are proposed: reorganisation of the structure of forensic medical institutions, in particular, by establishing a department for forensic examination of corpses within a mobile military hospital with the involvement of specially trained forensic experts; simplification of the procedure for processing documents where the results of external examination of the corpse are recorded; updating the regulatory support for the activities of forensic doctors during martial law. The practical significance of the study lies in the fact that the conclusions obtained will help expand the understanding of pre-trial investigation officers of the possibilities of forensic medical examinations in the investigation of war crimes, and will also help identify the problems arising when appointing such examinations and suggest ways to solve them.

show abstract

Problems of proving in criminal proceedings based on violations of war laws and customs

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Circumstances to be proved in the investigation of violations of the laws or customs of war

Topical issues of forensic medical examination in the investigation of war crimes

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