THE PROCEDURAL NATURE AND THE PROCEDURE OF RECEIVING PERMISSION FOR FORCED TAKING THE PERSON’S BIOLOGICAL SAMPLES BY INVESTIGATOR DURING A PRE-TRIAL INVESTIGATION

Abstract

Differentiation in approaches to the interpretation of the legal nature of taking the person’s biological samples provided by Art. 245 of the Criminal Procedure Code of Ukraine causes the different views on the proper procedure for its implementation in the pre-trial investigation. This article examines several main justifications of scientists regarding this issue. The author’s opinion about the expediency of defining sampling as a separate and independent investigative (research) action has been formulated and substantiated here. Although the function of this action is considered as auxiliary one in some cases, but its performing can significantly affect the further pre-trial investigation. Furthermore, it involves a significant invasion of the human rights and freedoms guaranteed by the Constitution of Ukraine. Therefore, it requires a responsible approach of both the legislator and the relevant bodies, which will carry out such investigative action. The matters of the theoretical justification of taking samples cause the presence of practical difficulties in the implementation of such action. Therefore, the author has studied the investigative and judicial practices regarding the investigator’s request to the judge for permission to carry out the forced sampling. Also the reasons for refusing to grant such requests have been analyzed in this article. Therefore, the article presents the practical algorithm for implementing the above-mentioned request proposed by the author. The worked out algorithm will increase the quantitative indicator of requests granted by the judge for the purpose to optimize the pre-trial investigation of criminal offenses in general.