根据乌克兰立法采集生物样本以获取专业知识及其符合欧盟标准

V. Rohalska, O. Bronevytska, H. Boreiko, Iryna S. Shapovalova, I. Serkevych
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引用次数: 0

摘要

对调查和司法实践的分析表明,一些律师认为,拒绝一个人自愿提供生物样本进行检查是行使了他/她不指证自己的权利。通过分析欧洲人权法院单独判决的规定,我们可以得出结论,一个人的身体完整性属于《保护人权和基本自由公约》第八条所保护的“私人生活”概念,涉及私人生活的最亲密方面,即使微不足道,也构成对这项权利的干涉。因此,本文提出了获取生物样品鉴定的刑事诉讼特征。提交人分析并回答了以下问题:哪些特定样本应属于生物样本,以及是否有可能根据实现不指证自己的权利而拒绝自愿提供生物样本进行检查。已经考虑了从非刑事诉讼当事人或未取得诉讼地位的人那里获取生物样本进行检查的可能性。该条还涉及在向预审调查统一登记册提交信息之前获取样本进行检查的合法性。提出了包括强制令在内的生物样品获取检测动作的算法。采用了以下一般的科学研究方法:法律现象的辩证法,借助于该方法研究了供检验的生物样品的概念和法律性质;比较法——在将《乌克兰刑事诉讼法》规范与欧洲人权法院规范和欧洲人权法院裁决进行比较的过程中。
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Taking of biological samples for expertise under the legislation of Ukraine and its conformity with EU standards
The analysis of investigative and judicial practice shows that some lawyers regard the refusal of a person to provide voluntarily biological samples for examination as an execution of his/her right not to testify against him/herself. Analysis of the provisions of separate Judgements of the European Court on Human Rights allows us to conclude that the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and concerns the most intimate aspects of private life, and compulsory medical intervention, even insignificant, constitutes an interference with this right. Therefore, the criminalprocedural characteristic of obtaining of biological samples for expertise is given in the article. The authors analyzed and answered the questions: which particular samples should be attributed to biological ones, and whether it is possible to refuse to voluntarily granting of biological samples for examination in accordance to the realization of the right not to testify against him/herself. The possibility of obtaining of biological samples for examination from a person who is not a party to criminal proceedings or has not acquired procedural status has been considered. The article as well deals with the legality of obtaining of samples for examination before submitting information into the Unified Register of Pre-trial Investigations. The algorithm of actions of obtaining of biological samples for examination, including the compulsory order, is proposed. The following general scientific research methods were used: the dialectical method of legal phenomena, with the help of which the concept and the legal nature of biological samples for examination were studied; the comparative method – in the process of comparing the norms of the Criminal Procedural Code of Ukraine (CPC) with the norms of the European Court of Human Rights (ECHR) and decisions of the ECHR, etc.
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