Issue: № 12, 2023
Doi: https://doi.org/10.37634/efp.2023.12.25
The obligation of a witness to give truthful testimony during the pre-trial investigation and trial is subject to a number of exceptions set forth in the CPC of Ukraine. These exceptions are the right of a certain category of witnesses to refuse to testify in situations expressly provided for by law, and they are an integral part of the «witness privilege», which means both the release of a witness from the obligation to testify and the release of a person from the procedural status of a witness. The existence of personal witness privileges in the legislation is one of the signs of Ukraine's compliance with the requirements of a legal, democratic state. However, despite all its positive aspects, the institute of witness privileges and immunities is still not free from certain drawbacks. The purpose of the paper is to analyze the problematic aspects and identify the ways to improve witness privileges. In the course of the study, we proposed to: 1) to expand the circle of persons referred to in clause 1, part 1, art. 3 of the CPC of Ukraine, including: all other relatives by the lateral line of kinship children of siblings; cousins; siblings of parents; parents, siblings of husband and wife; 2) to make a reservation in the CPC of Ukraine that a witness is obliged to testify against a deceased close relative or family member only if it is necessary for the rehabilitation of other persons; 3) to provide for mandatory participation of a defense counsel in criminal proceedings in all cases where the rights of a minor are concerned. To do this, it is necessary to supplement Part 2 of Article 52 of the CPC of Ukraine with paragraph 10 as follows: «with regard to minors who, due to their age, are unable to fully exercise their rights, from the moment the fact of minority is established»; 4) to introduce «asymmetry of the rules of admissibility of evidence» into the criminal procedure legislation of Ukraine. Currently, there are still some issues in Ukraine regarding the normative delineation of the circle of family members who enjoy witness privileges, and there is also a need to improve guarantees for the realization of privileges for minors.
Keywords : witness, duty of a witness, rights of a witness, testimony, defense counsel, privileges
References:
1. Bodnarchuk O.V., Habrelian A.Y. Development of the insurance system of bank deposits of Ukraine. Economics. Finances. Law. 2023. No. 6. рр. 50-55. (in Ukrainian).
2. Vereshchagina M.A. Asymmetry of rules on the admissibility of evidence. Bulletin of the South Ural State University. Series: Law. 2007. No. 28. pp. 22-24. (in Russian).
3. Habrelian A.Y. Prostitution in modern Ukrainian realities. A new look at the problem. Economics. Finances. Law. 2016. No. 12. pp. 28-32. (in Ukrainian).
4. Habrelian A.Y. Feasibility of legalizing prostitution in Ukraine: arguments «for». Modern issues of economics and law: coll. of science works. 2018. Issue 2(8). pp. 135-143. (in Ukrainian).
5. Habrelian A.Y. Disadvantages of draft law No. 3139. Rule of Law. 2020. No. 1. pp. 36-43. (in Ukrainian).
6. Habrelian A.Y. Legal aspects of classifying sex work (prostitution) as a legal type of economic activity. European perspectives. 2020. No. 1. pp. 45-50. (in Ukrainian).
7. Habrelian A.Y. The object of the offense provided for in Art. 181-1 of the Labor Code of Ukraine. Journal «ScienceRise: Juridical Science». 2020. No. 3 (13). pp. 27-33. (in Ukrainian).
8. Hanenko I.S. On the issue of immunity of close relatives and family members of the suspect (accused). Our right. 2019. No. 3. pp. 111-117. (in Ukrainian).
9. Hanenko I.S. Immunities in the criminal process of Ukraine: diss. … PhD in legal sciences: 12.00.09. Kryvyi Rih. 2020. 199 p. (in Ukrainian).
10. Constitution of Ukraine dated June 28, 1996. No. 254k/96-VR. Information of the Verkhovna Rada of Ukraine. 1996. No. 30. Art. 141. (in Ukrainian).
11. Criminal Procedure Code of Ukraine dated April 13, 2012 No. 4651-VI. Information of the Verkhovna Rada of Ukraine (VVR). 2013. No. 9-10. No. 11-12. No. 13. Art. 88 (in Ukrainian).
12. On the application of the Constitution of Ukraine in the administration of justice: Resolution of the Plenum of the Supreme Court of Ukraine dated November 1, 1996 No. 9. URL: https://zakon.rada.gov.ua/laws/show/v0009700-96#Text (in Ukrainian).
13. On the judicial system and the status of judges: Law of Ukraine dated June 2, 2016 No. 1402-VIII. Information of the Verkhovna Rada (VVR). 2016. No. 31. Art. 545 (in Ukrainian).
14. Strashok A.A. Procedural position of the subjects of the criminal process who perform the function of facilitating criminal proceedings: PhD in legal sciences: 081. Kharkiv. 2022. 275 p. (in Ukrainian).
15. Chepel O.V., Habrelian A.Y. Testimony of a witness in a criminal trial: concept, content, requirements. Analytical and comparative jurisprudence. 2023. No. 4. pp. 451-458. (in Ukrainian).