PECULIARITIES OF DETERMINING THE SUBJECTIVITY OF MILITARY CRIMINAL OFFENSES

Abstract

The article examines the features of determining the subject of investigation in criminal proceedings regarding military criminal offenses under martial law and the transformation of the criminal justice system of Ukraine. It is substantiated that the correct determination of the subject of investigation is a key prerequisite for ensuring the effectiveness of the pre-trial investigation, its timeliness, completeness and impartiality, as well as an important element of guaranteeing the rights of participants in criminal proceedings. The scientific approaches to understanding the subject of investigation as a legal category and the conditions of the pre-trial investigation are analyzed. It is established that in the domestic doctrine, subject of investigation is traditionally considered as a set of legally established features of criminal proceedings that determine the competent body of the pre-trial investigation. The approach is supported, according to which subject of investigation should be interpreted as a system of rules for determining the authorized body, which allows to reconcile different scientific positions. The normative regulation of the subject of investigation of military criminal offenses, provided for in Article 216 of the Code of Criminal Procedure of Ukraine, is investigated. It was established that the formal certainty of the subjectivity of such offenses under the State Bureau of Investigation is incomplete due to the presence of exceptions and conflicts with the provisions defining the competence of the Security Service of Ukraine. Particular attention is paid to the problem of delimiting subjectivity for criminal offenses provided for in Art. 422 and Art. 435-1 of the Criminal Code of Ukraine. The judicial practice on determining subjectivity, as well as its impact on the admissibility of evidence in criminal proceedings, was analyzed. It was established that violation of the rules of subjectivity may cast doubt on the admissibility of evidence, but does not always automatically entail their recognition as inadmissible. The heterogeneity of law enforcement practice on determining the pre-trial investigation body in proceedings under Art. 435-1 of the Criminal Code of Ukraine and the presence of actual competition between different bodies were revealed. The conclusion was made on the need to eliminate legislative conflicts and clarify the rules of subjectivity of military criminal offenses. It was proposed to amend Art. 216 of the Criminal Procedure Code of Ukraine in order to clearly define the competence of pre-trial investigation bodies, in particular by excluding from the jurisdiction of the State Bureau of Investigation of Criminal Offenses, provided for in Art. 422 and Art. 435-1 of the Criminal Code of Ukraine. It is substantiated that such changes will contribute to increasing legal certainty and efficiency of criminal proceedings.