Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido el 14/06/2021 Aceptado el 28/08/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 39, Nº 70 (2021), 368-384
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Obtaining the testimony of a minor
during the pre-trial investigation under
the laws of Ukraine
DOI: https://doi.org/10.46398/cuestpol.3970.23
Viktoriia Zarubei *
Yuliia Komarynska
**
Andrii Babenko ***
Yuliia Sukhomlyn
****
Nataliia Kononenko
*****
Abstract
The scientic article, based on the provisions of the theory
of criminal procedure, criminology, psychology, reveals the
problems of obtaining the testimony of a minor during the pre-
trial investigation according to the laws of Ukraine. It is noted
that the method of obtaining testimony should be based on the
age and procedural status of the minor, which requires a special approach
considering the vulnerable state, social immaturity, and the risk of violation
of the rights and freedoms of such persons. The study used general scientic
methods to determine certain legal categories that characterize the
interrogation procedure of a minor, as well as special methods. The practice
of introducing «green rooms» in the eld of criminal justice is recognized
as promising, as the child’s environment during relevant procedural
actions is extremely important for establishing contact with the child. It
is concluded that the lack of desirability of classifying a minor suspect as a
subject for questioning in court during a pre-trial investigation is justied,
as it would be contrary to the requirements of the law on the immediacy of
the examination of evidence in court.
* Candidate of legal sciences, Professor, Professor of the Department of Criminal Procedure, National
Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0001-6690-967X.
Email: zarybey@bigmir.net
** Candidate of legal sciences, Associate Professor, Deputy Director of the Educational and Scientic
Institute № 3 for educational and methodological and scientic work, National Academy of Internal
Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-1747-1816. Email: ubk2006@ukr.net
*** Doctor of Law, Professor, Professor of the Department of criminal law and criminology, Odesa State
University of Internal Aairs, Odesa, Ukraine. ORСID ID: https://orcid.org/0000-0002-9498-2484.
Email: an.babenko@ukr.net
**** Candidate of legal sciences, Associate Professor, Associate Professor of Criminal Procedure, National
Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-5699-6914.
Email: sjulia25@ukr.net
***** Candidate of legal sciences, senior lecturer at the Department of Criminology and Forensic Medicine,
National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-0298-
3958. Email: natashakononenko26@ukr.net
369
CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 368-384
Keywords: test; youthful testimony; interrogation of a minor; pre-trial
investigation; juvenile legislation in Ukraine.
Obtención del testimonio de un menor durante la
investigación previa al juicio bajo las leyes de Ucrania
Resumen
El artículo cientíco, basado en las disposiciones de la teoría del
procedimiento penal, criminología, psicología, revela los problemas de
obtener el testimonio de un menor durante la investigación previa al juicio
según las leyes de Ucrania. En particular, se observa que el método de
obtención del testimonio debe basarse en la edad y situación procesal del
menor, lo que requiere un enfoque especial teniendo en cuenta el estado
vulnerable, la inmadurez social y el riesgo de vulneración de los derechos
y libertades de tales personas. El estudio utilizó métodos cientícos
generales para determinar ciertas categorías legales que caracterizan el
procedimiento de interrogatorio de un menor, como también métodos
especiales. La práctica de introducir «salas verdes» en el campo de la justicia
penal se reconoce como prometedora, ya que el entorno del niño durante
las acciones procesales pertinentes es extremadamente importante para
establecer contacto con el niño. Se concluye que, la falta de conveniencia
de clasicar a un menor sospechoso como sujeto para ser interrogado en
el tribunal durante una instrucción previa al juicio está justicada, ya que
sería contrario a los requisitos de la ley sobre la inmediatez del examen de
las pruebas en el tribunal.
Palabras clave: prueba; testimonio juvenil; interrogatorio de un menor;
averiguación previa al juicio; legislación de menores en
Ucrania.
Introduction
In order to quickly and fully disclose a crime, expose the perpetrators
and ensure the correct application of the law, the person conducting the
pre-trial investigation must have indicative and evidentiary information,
which is «collected by means of criminal procedure law and from sources of
evidence, material evidence. documents, expert opinions” (Part 2 of Article
84 of the Criminal Procedural Code of Ukraine) (Criminal Procedural Code
of Ukraine, 2012).
370
Viktoriia Zarubei, Yuliia Komarynska, Andrii Babenko, Yuliia Sukhomlyn y Nataliia Kononenko
Obtaining the testimony of a minor during the pre-trial investigation under the laws of Ukraine
Investigative (search) actions, which are enshrined in a logical sequence
in Section III of the Criminal Procedural Code of Ukraine, are one of the
main ways to gather factual information for further evidence. They are the
measures consisting of a set of search cognitive and certifying techniques,
conducted by a subject authorized by the criminal procedure law in the
manner prescribed for each of them in order to identify and consolidate
factual data and information about their sources to obtain evidence in
criminal proceedings and their verication.
In Part 1 of Art. 223 of the Criminal Procedural Code of Ukraine
stipulates that investigative (search) actions are actions aimed at obtaining
(collecting) evidence or verication of already obtained evidence in a
particular criminal proceeding. The content of the Criminal Procedural
Code of Ukraine shows the existence of such types of investigative (search)
actions as interrogation (Articles 224-226, 232 of the Criminal Procedural
Code of Ukraine); presentation for identication (Articles 228-232 of the
Criminal Procedural Code of Ukraine); search (Articles 234-236 of the
Criminal Procedure Code of Ukraine); review (Articles 237-239 of the
Criminal Procedural Code of Ukraine); investigative experiment (Article
241 of the Criminal Procedure Code of Ukraine); examination (Articles
242-245 of the Criminal Procedural Code of Ukraine) (Criminal Procedural
Code of Ukraine, 2012).
1. Methodology of the study
A comprehensive study of the method of obtaining the testimony
of a minor during the pre-trial investigation is possible only through a
combination of dierent methodological studies. The methodological basis
of the scientic article is a system of general scientic and special methods
of cognition. General scientic methods used in the scientic article include
the dialectical method, deductive and system method, methods of analysis
and synthesis.
With the help of the dialectical method it became possible to learn the
content of such categories as «interrogation», «testimony», «evidence»,
«minor» and others. Methods of analysis and synthesis allowed to select
and analyze information on the research topic, provided the formulation of
intermediate conclusions in the article.
The essence of the systemic method is that the process of investigating
war crimes is seen as a certain system that is included in a broader system,
performs certain functions and is associated with various connections.
The systematic approach made it possible to analyze the investigative and
judicial practice of investigating juvenile delinquency.
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CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 368-384
Special scientic methods used in writing a scientic article include
hermeneutic, formal-legal method, sociological and statistical methods.
The application of the hermeneutic method allowed to qualitatively
analyze and clarify the content of legal documents, including the provisions
of the Criminal Procedure Code of Ukraine, which regulate the legal
relationship between the investigator and the juvenile who testies. The
formal-legal method was used to interpret certain legal concepts and
categories. Sociological and statistical methods were used in the study
of materials of law enforcement practice and generalization of scientic
results.
2. Analysis of recent research
The study of scientic literature shows that the study of issues related to
the peculiarities of the investigative (search) actions with the participation
of a minor or a juvenile in criminal proceedings, actively engaged in such
scientists as O.G. Babenko (Babenko, 2020), E.V. Vasque (2010), S.W.
Kuznetsova, Т.С. Kobtsova (2004), D.B. Sergeeva (2018), S.I. Smyk (2018),
O.S. Starenkyy (2018), G.O. Chorniy (1998), O.B. Yakovina (2020) and
others. However, in the conditions of constant amendments to the current
the Criminal Procedural Code of Ukraine, development of investigative and
judicial practice, the need to fulll Ukraine’s international legal obligations,
some theoretical issues need to be revised and brought into line with the
new conditions of criminal proceedings.
Carrying out investigative (search) actions against minors requires
a special approach, taking into account the vulnerable state, social
immaturity and the risk of violation of the rights and freedoms of such
persons (Babenko, 2020). Thus, there is a need to cover these issues,
provide scientically sound proposals for their solution and, on this basis,
the specics of the evidentiary activities during the pre-trial investigation
by conducting investigative (search) actions based on standards of rights
and legitimate interests of minors as participant in criminal proceedings.
3. Results and discussion
The complex and multifaceted nature of the interrogation of minors
(regardless of their procedural status) is that it covers procedural, tactical,
organizational, psychological, pedagogical, and ethical aspects (Kuznetsova
and Kobtsova, 2004).
Article 226 of the Criminal Procedural Code of Ukraine, which regulates
the specics of interrogation of minors during pre-trial investigation
372
Viktoriia Zarubei, Yuliia Komarynska, Andrii Babenko, Yuliia Sukhomlyn y Nataliia Kononenko
Obtaining the testimony of a minor during the pre-trial investigation under the laws of Ukraine
(including suspects), provides that the interrogation of a minor or a
juvenile is conducted in the presence of a legal representative, teacher or
psychologist, and if necessary - a doctor. Prior to the interrogation, they are
explained the obligation to be present during the interrogation, as well as
the right to object to questions and ask questions. Also, when conducting
investigative (search) actions with the participation of a minor or a juvenile,
the participation of a legal representative, teacher or psychologist is provided,
and if necessary - a doctor. Prior to the beginning of the investigative
(search) action, the legal representative, teacher, psychologist or doctor is
explained their right to ask clarifying questions to an underage or a minor.
In exceptional cases, when the participation of a legal representative may
harm the interests of a minor or juvenile witness, victim, investigator,
prosecutor at the request of a minor or juvenile or on its own initiative
has the right to limit the participation of a legal representative in certain
investigative (search) actions. in criminal proceedings and involve another
legal representative instead (Article 227 of the Criminal Procedural Code of
Ukraine) (Criminal Procedural Code of Ukraine, 2012).
The interrogation of a juvenile in criminal proceedings in accordance
with the current Criminal Procedural Code of Ukraine is carried out in the
general order under the rules of Art. 224 of the Criminal Procedural Code
of Ukraine, but with certain features. In particular, a doctor is involved in
the interrogation of a juvenile (minor) witness or victim, if as a result of a
criminal oense, a witness (victim) of which he was, the latter developed
temporary mental disorders or physical health disorders.
The interrogation as an investigative (search) action is conducted by
a specially authorized investigator. This conclusion, according to the fair
statement of D.B. Sergeeva and O.S. Starenkogo man, follows from Part 2 of
Art. 484 of the Criminal Procedural Code of Ukraine, in particular criminal
proceedings against a minor, including if criminal proceedings against
several persons, at least one of whom is a minor, are carried out by an
investigator specially authorized by the head of the pre-trial investigation
body to conduct pre-trial investigations against minors (Starenkyy and
Sergeeva, 2018).
The Joint Order of the Ministry of Internal Aairs and the Prosecutor
General’s Oce of Ukraine «On Improving Cooperation on the Rights and
Interests of Minors in Criminal Proceedings» of August 9, 2013 № 79/867
provides that criminal proceedings against minors are carried out by a
specially authorized investigator with no investigative experience. less than
three years (On The Peculiarities Of The Performance Of The Functions
Of The Prosecutor’s Oce On The Protection Of The Interests Of Children
And Combating Violence, 2020).
Despite the fact that the current the Criminal Procedural Code of
Ukraine does not establish appropriate requirements for the specialization
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CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 368-384
of prosecutors as procedural leaders in criminal proceedings against
minors. However, paragraph 5 of the Order of the Oce of the Prosecutor
General «On the peculiarities of the functions of the prosecutor’s oce on
the protection of the interests of children and combating violence» from
04.11.2020. № 509 denes the duty of the juvenile prosecutor to ensure
the performance of the functions of the prosecutor in criminal proceedings
provided by the Criminal Procedural Code of Ukraine: in the eld of child
protection; in which a minor is involved in the proceedings as a victim or is
a person whose rights and interests have been violated or may be violated
as a result of a criminal oense; in respect of a minor, including if criminal
proceedings are instituted against several persons, at least one of whom
is a minor, in respect of a person who has not reached the age of criminal
responsibility (On The Peculiarities Of The Performance Of The Functions
Of The Prosecutor’s Oce On The Protection Of The Interests Of Children
And Combating Violence, 2020).
Given that the principle of legality requires that laws and other regulations
of Ukraine, the provisions of which relate to criminal proceedings, comply
with the Criminal Procedural Code of Ukraine (Part 3 of Article 9 of the
Criminal Procedural Code of Ukraine), D.B. Sergeeva and O.S. Starenkyy
The old man gives convincing arguments to supplement Art. 484 of the
Criminal Procedural Code of Ukraine provisions on the conduct of pre-
trial investigation of minors not only the relevant investigator, but also the
prosecutor, who is specially authorized to provide procedural guidance in
criminal proceedings against minors (Starenkyy and Sergeeva, 2018).
Evidence obtained during the proceedings in criminal proceedings
against a minor by an ocial who by virtue of Part 2 of Art. 484 of the Criminal
Procedural Code of Ukraine is not authorized to conduct investigations into
minors. Thus, the decision of the appellate court changed the verdict of the
court of rst instance against A. and B., whose actions were reclassied by
the appellate court under Part 2 of Art. 187 of the Criminal code of Ukraine
on h. 2 Art. 186 of the Criminal code of Ukraine. The cassation appeal,
among other things, raised the question that the forensic examination to
determine the severity of injuries to the victim is inadmissible evidence, as
this examination is based on the decision of an ocial who by virtue of Part
2 of Art. 484 of the Criminal Procedural Code of Ukraine is not authorized to
investigate minors. The Supreme Court upheld the impugned decision, inter
alia, stating that the prosecution had not proved on appeal that Investigator
V. had been authorized to conduct the said criminal proceedings against the
minors A. and B. On the basis of the above, the Court of Appeal found that
that the forensic medical examination to determine the severity of injuries
to the victim is inadmissible evidence, as it is appointed on the basis of the
decision of the ocial, which by virtue of Part 2 of Art. 484 of the Criminal
Procedural Code of Ukraine is not authorized to conduct investigations
into minors. The prosecutor’s arguments that the investigator, who was not
374
Viktoriia Zarubei, Yuliia Komarynska, Andrii Babenko, Yuliia Sukhomlyn y Nataliia Kononenko
Obtaining the testimony of a minor during the pre-trial investigation under the laws of Ukraine
authorized to investigate minors, had an investigator who had such powers
as to ensure the legality of investigative (search) actions, were declared
incompetent by the Supreme Court and the decision of the appellate court
was lawful, substantiated. and motivated (Resolution Of The Supreme
Court, 2018 in case № 158/2313/15-k).
Interrogation is the most common investigative (search) action, which
is repeatedly conducted in each criminal proceeding, and the results of his
testimony contain numerous references in both indictments and verdicts.
The specied investigative (search) action is «a universal action by means
of which the investigator can obtain evidentiary information in almost
all circumstances of the subject of evidence» (Solov`ev, 2002). The main
purpose pursued by the investigator during interrogation is to obtain
from the juvenile interrogated by giving him the testimony of reliable,
comprehensive factual data (evidence) on the circumstances known to the
interrogated, which are relevant to criminal proceedings.
The interrogation of a juvenile suspect is an important means not
only of verifying the legality and validity of criminal prosecution and
protection against the reported suspicion, but also a means of establishing
those circumstances of the crime that were unknown to the investigator
or of which he had only reasonable assumptions. adult accomplices, other
criminal episodes, etc.).
The interrogation of a juvenile suspect is a process of communication
(interaction) involving the investigator, the prosecutor and the interrogated
(juvenile suspect), during which the authorized person inuences the
juvenile, prompting him to provide information about the circumstances
that are or may be relevant to the proper criminal investigation. oense.
From the forensic point of view, it is important that the specied investigative
(search) action is a means of collecting and verifying not only evidence but
also indicative information that the authorized person receives from the
interrogated through verbal and non-verbal communications.
The criminal procedural aspect of the signicance of the interrogation
of a juvenile suspect is determined by the fact that the testimony obtained
is a source of evidence. It should be emphasized that they should not be the
main evidence or the «queen of evidence», as was the case until recently,
when investigations in individual cases had to be completed within ten days
and, accordingly, only the testimony of the accused was sucient for an
indictment.
Manifestation of increased legal protection of minors in criminal
proceedings is their double representation because the law allows the
simultaneous representation of the interests of a minor by a lawyer and
legal representative, given the incomplete legal capacity of the juvenile and
the fact that the legal representative is responsible for the upbringing and
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CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 368-384
conduct of a minor (Larin et al., 1997). If a lawyer provides qualied legal
assistance to a juvenile in criminal proceedings, the legal representative is
called upon to provide the juvenile primarily with moral and psychological
support.
The legal representative is involved in criminal proceedings on the part
of the defense if the suspect, accused is a minor or a person recognized
incapacitated or partially incompetent in the manner prescribed by law
(Part 1 of Article 44 of the Criminal Procedural Code of Ukraine). The
Criminal Procedural Code of Ukraine establishes the range of persons
involved as a legal representative: parents (adoptive parents), and in their
absence - guardians or trustees of the person, other adult close relatives
or family members, as well as representatives of guardianship authorities,
institutions and organizations, under the guardianship or custody of a
minor, incapacitated or partially incapacitated (Part 2 of Article 44 of
the Criminal Procedural Code of Ukraine) (Criminal Procedural Code of
Ukraine, 2012).
The legal representative of the juvenile suspect, as well as the defense
counsel, not only has the right, but also the obligation to be one-sided,
to prove only the circumstances that justify the juvenile, mitigate his
punishment, as he performs the procedural function of protection. As
the literature rightly points out, the suspect’s legal counsel and legal
representative are obliged to protect the interests of minors, who appear to
them to be legitimate from the standpoint of a unilateral acquittal approach
to the assessment of circumstances and evidence in criminal proceedings.
(Nikandrov, 1993). The legal representative must also be explained his /
her rights during the interrogation, other investigative (search) action:
to object to the questions and ask questions; with the permission of the
investigator before the beginning of the investigative (search) action to ask
clarifying questions to a minor or juvenile witness (Panchuk, 2013).
Here is an example from case law, which shows the inadmissibility
of evidence obtained during the investigative (search) action with the
participation of a minor in the absence of a lawyer and a legal representative.
In particular, the verdict of the court of rst instance found A. not guilty of
committing a crime under Part 1 of Article. 309 of the Criminal Code. The
decision of the appellate court upheld the sentence. In his cassation appeal,
the prosecutor relied on an inadequate assessment of the evidence, which
led to A.’s unfounded acquittal of the charges. Assessing as evidence the
scene inspection report, the trial court took into account that during the
investigation with the participation of a minor A. were absent as a legal
representative and defense counsel, whose participation in this criminal
proceeding is mandatory from the moment of establishing a minor or
occurrence any doubt that the person is an adult, as established by the
requirements of paragraph 1 of Part 2 of Art. 52 of the Criminal Procedural
376
Viktoriia Zarubei, Yuliia Komarynska, Andrii Babenko, Yuliia Sukhomlyn y Nataliia Kononenko
Obtaining the testimony of a minor during the pre-trial investigation under the laws of Ukraine
Code of Ukraine. In view of this violation of A.’s right to defense, the court
concluded that the evidence had been obtained as a result of a violation of his
rights and freedoms, and therefore the use of the facts obtained during such
an investigative action was reasonably inadmissible. The Court of Appeal,
having considered the criminal proceedings on the prosecutor’s appeal,
reasonably concluded that there were no grounds for its satisfaction. The
Supreme Court also agreed with this decision (Resolution Of The Supreme
Court. 2018 IN CASE № 760/13866/15-k).
We consider the proposal of OV to be reasonable. Panchuk on
supplementing the Criminal Procedural Code of Ukraine with the provision
on the provision of free legal aid to: a witness who does not have sucient
funds to pay for the services of a lawyer; a minor witness deprived of parental
care; a witness to whom security measures are applied. (Panchuk, 2013).
Providing such legal assistance is one of the types of legal activity, which
consists in providing the witness with legal information, consultations and
explanations on legal issues, participation in the interrogation of the witness
and other procedural actions, preparation of statements, complaints aimed
at interests of the witness, prevention of their violations, as well as to
facilitate their recovery in case of violation (Panchuk, 2013).
The presence of outsiders during interrogation contradicts moral
norms and requirements. Investigative practice is aware of cases when
the investigator invites an interrogator for questioning so that during the
interrogation, when receiving data in criminal proceedings, they could be
immediately veried. You cannot invite a stranger because his presence
at the interrogation violates the atmosphere of trust, which is necessary
during the interrogation of a minor, prevents the minor from gathering his
thoughts, keeps him in constant mental stress, limits him.
The evidentiary value of the testimony of a juvenile suspect is determined
by two factors. First, the suspect is usually better than anyone else aware
of all the circumstances of the criminal oense. Therefore, he has the most
complete evidence. However, on the other hand, the suspect is often more
than anyone interested in concealing this information or distorting it,
because the fate of the case depends on the outcome of the case (Orlov,
2000). Therefore, the investigator has a dicult task to obtain from the
suspect complete and reliable information about how everything was.
Indications may correspond to real events, partially correspond and not
correspond to them. Depending on whether the juvenile suspect gives true
testimony, their informational nature depends. The testimony of a juvenile
suspect includes information that not only relates to the criminal oense.
Among other evidence, they help to understand the etiology of criminal
encroachment, in particular, to nd out how the idea of committing
a criminal oense was formed, whether it was prepared in advance,
considered, and what circumstances contributed to its commission.
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It is necessary to distinguish several variants of conict situations: 1)
when the juvenile does not admit his guilt, and there are gaps in the system
of evidence; 2) when a juvenile pleads guilty, there is some evidence of
his involvement in the criminal oense, but the investigator has reason to
believe that the teenager is stipulating himself; 3) when the juvenile does
not plead guilty, but the investigator has all the evidence of his guilt.
To resolve conict situations, it is important to identify a number of
procedural actions, the conduct of which in court will allow to establish the
maximum amount of information, to refute false testimony. The analysis
of typological groups of juvenile defendants signicantly inuences the
determination of tactics of proof aimed at refuting false testimony. In
particular, depending on the nature of anti-social orientation, based
on motivation, there are: a) violent type, which is characterized by a
pronounced negative attitude towards the human person and its vital
benets: life, health, physical and sexual integrity; b) selsh, whose
behavior is characterized by a selsh tendency, disrespect for all forms
of ownership, ignoring the rules of distribution of funds established in
the state; c) malicious socially disorganized, which is characterized by a
negative attitude to various socially established requirements, as well as
any prohibitions; d) careless, characterized by careless irresponsibility,
careless attitude to their responsibilities and possible consequences of
behavior (Turkot and Shcherbakova, 2015).
In our opinion, the resolution of the conict depends on how well the
investigator was prepared for interrogation, how much he studied the
materials of the criminal proceedings, how much he knows the psychological
characteristics of the juvenile suspect, the investigator’s ability to penetrate
the teenager’s inner world, plans and intentions.
Testimony obtained in a conict-free situation should be claried
and detailed as carefully as evidence obtained in a conict situation. The
main tactics for this, in our opinion, are: asking additional questions; use
methods to activate memory and obtain explanations about the evidence
available in criminal proceedings.
It is indisputable that the fact of the defense counsel’s participation
disciplines the investigator, forcing him to be stricter in the formation of
evidence, to take a more critical approach to the evaluation of evidence
(Grishchenko, 2021). Defendant who participates in the interrogation of a
juvenile suspect is obliged to respond to any violations of the law and the
rights of the interrogated that are allowed by the investigator (for example,
asking investigators leading questions). The literature rightly states that a
lawyer must stop any interrogations that are inadmissible in relation to a
minor: harsh tone, threats to bring parents to justice, etc. (Kuznetsova and
Kobtsova, 2004). To this should be added the right of a lawyer to warn a
minor that he should not answer questions posed with procedural violations
or with the use of unauthorized tactics (Enikeev, 2002).
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Obtaining the testimony of a minor during the pre-trial investigation under the laws of Ukraine
In accordance with Part 1 of Art. 107 of the Criminal Procedural Code of
Ukraine the decision on xing of procedural action by means of technical
means during pre-judicial investigation, including during consideration of
questions by the investigating judge, is accepted by the person who carries
out the corresponding procedural action. At the request of the participants
in the procedural action, the use of technical means of xation is mandatory.
The peculiarity of recording the course and results of the interrogation
of juvenile suspects is that the protocol of this investigative (search) action
should be drawn up after the oral part of the interrogation, and not during
it. It is impractical to draw up a report at the same time as the juvenile’s
testimony: rst, the investigator thinks more about how to record the
testimony, instead of listening carefully to the adolescent and critically
evaluating what he said; secondly, such interrogation technique leads to
the weakening or loss of psychological contact with the adolescent, distracts
him, adds tension to the interrogation, creates the impression of supercial
interest in the information transmitted to minors. Parallel drawing up of the
report by the formality can frighten the teenager, inuence the maintenance
of his testimony. Therefore, you must rst listen to the teenager, making
the necessary notes, and then draw up a report. In this regard, we consider
the correct recommendation of L.L. Kanevsky, who noted that during the
interrogation of the suspect it is impractical to enter his testimony in the
record, as it distracts the interrogated and prevents the investigator to focus
on the implementation of the tactical plan of interrogation (Kanevsky,
1978).
Video and audio recordings of adolescents’ testimonies provide greater
opportunities for verication and evaluation of evidence, including
investigations of the facts reported by the juvenile respondent, as he said,
in response to which the content and form of the question was a statement.
Thus, video and sound recording make it possible to control the correctness
of the investigator’s interpretation of the statements of a minor suspect.
Noting the usefulness of sound recording during the interrogation of
minors, A.A. Levy rightly points out that the need for sound recording “...
is due to the fact that the vocabulary and language features of children and
adults are dierent. The child is often inclined to tell what he or she thinks
the investigator would like to hear. It is possible to understand all this only
as a result of the detailed analysis of indications (Levi et al., 1987).
The best option for recording the testimony of juvenile suspects is video,
as an additional means of recording the interrogation report. The video
enhances the persuasiveness of the investigative (search) action, allows
the investigator and the court to directly perceive the process of testifying
to juvenile suspects, contribute to the so-called «presence eect». At the
same time, it should be emphasized that video and audio recording do not
replace traditional logging, they should be considered as an additional tool
that facilitates logging, making it more complete.
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It should be noted once again that the interrogation of a minor should
be preceded by careful, based on knowledge of the age and psychological
characteristics of a particular child, preparation. The core of this training
is the study of the adolescent’s personality, the motives of his criminal
behavior, deciding who will be present at the interrogation, determining
the place of interrogation, drawing up an interrogation plan.
It is also important to determine the range of investigative (search)
actions that, in the circumstances of criminal proceedings, it is advisable
to conduct before the interrogation of a minor or immediately after it.
According to investigative and judicial practice, the results of some of
them immediately before the interrogation of the adolescent may aect
the formation of specic conditions in the juvenile, which contribute to
the decision to give truthful testimony. Such investigative actions should
include the presentation of a suspected juvenile for identication to victims
and witnesses, a search of the place of residence or place of study (if the
juvenile lives and studies in a special institution).
To ensure the rule of «immediacy of the examination of testimony, things
and documents» during the interrogation of a juvenile who is «de jure»
suspected of committing a criminal oense (after notication of suspicion),
OG Babenko proposes to take testimony from him in accordance with the
requirements of Art. 225 of the Criminal Procedural Code of Ukraine, by
interrogation during the pre-trial investigation in court. According to the
researcher, the proposed judicial procedural form of taking evidence in
the pre-trial investigation will avoid re-interrogation of the juvenile during
further trial (Babenko, 2020). We consider the position of the scientist
questionable, given that this provision would contradict the requirements
of Art. 23 of the Criminal Procedural Code of Ukraine on the immediacy of
the examination of evidence in court. Therefore, it is impractical to classify
a juvenile suspect as a subject to be questioned in court during a pre-trial
investigation.
It is necessary to indicate the value of the testimony of the suspect
and from the standpoint of their evaluation when choosing a measure of
restraint. Thus, in one of the criminal proceedings, based on the assessment
of the available evidence and testimony of the suspect, the prosecutor
concluded that there were insucient grounds for detention. Denying
the request for detention, the prosecutor pointed to the inconsistency of
evidence, insucient verication in a number of cases of the suspect’s
arguments, the need to obtain additional evidence (Palyukh, 2016).
Interrogations of juvenile witnesses and victims are, for the most part,
conict-free. Therefore, during their implementation a set of tactics is used,
based on the psychology of the investigator’s relations with the participants
of investigative (search) actions in conict-free situations: stress relief;
creation and constant maintenance of psychological contact with the
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Viktoriia Zarubei, Yuliia Komarynska, Andrii Babenko, Yuliia Sukhomlyn y Nataliia Kononenko
Obtaining the testimony of a minor during the pre-trial investigation under the laws of Ukraine
interrogated; formation of a mental task; settings; expectation; analysis of
indications, etc. (Chorniy, 1998.).
Unlike a witness, the victim is interested in the relevant results of the
pre-trial investigation because he was harmed. As V.V. Pyaskovsky noted,
such interest has two sides: on the one hand - the desire of the victim to solve
the crime, and on the other - the reason for its possible bias (Pyaskovsky,
2004).
The tactics of interrogating a juvenile victim and the range of issues
to be claried are determined by the personal qualities of the child,
adolescent, psychological state and position (in particular, the willingness
to actively assist the investigation). Therefore, during the preparation
for this investigative (search) action it is necessary to collect information
about the identity of the victim, his behavior before and after the crime,
the relationship with the suspect and others, using knowledge of forensic
characteristics of the crime (Yakovina, 2020). Thus the investigator needs
to show special delicacy and respect to the victim. It is inadmissible to exert
any pressure on the victim during the interrogation.
False testimonies of juvenile victims may be the result of a good faith
mistake caused by strong emotional anxiety, fear, confusion as a result
of criminal encroachment. In this regard, the investigator must take into
account the psychological state of the victim during the interrogation and
carefully check the information provided by him. During the interrogation
of a minor victim in a conict situation, it is advisable to use techniques
aimed at exposing lies. E.V. Vaske includes: waiting, consistency,
suddenness, use of «weak spots» of the interrogated person, forced pace of
interrogation, distraction, inertia, creating the impression of awareness of
the investigator, creating «emptiness», etc. (Vasque, 2010).
Due to the increased attention to juvenile delinquency and the search for
ways to solve them, the state and the international community are trying
to nd humane ways to solve the problem of juvenile delinquency. This
includes the creation of so-called «green rooms» - a system of measures to
ensure the rights and freedoms of the child in investigative and procedural
actions through the creation of modern conditions and the introduction
of European standards in communication between police ocers and a
child who has witnessed or suered a crime or is in conict with the law
(Kovalenko et al., 2013). This approach has long been used in countries
such as Estonia, Georgia, Germany and Poland.
In general, the practice of introducing «green rooms» in the eld of
criminal justice should be considered promising, as the child’s environment
during the relevant procedural actions is extremely important for
establishing contact with the child.
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When deciding on a simultaneous interrogation with the participation of
minors, the investigator, the investigating judge, rst of all, must take into
account the peculiarities of their psyche and the impact of these features
on the course and results of this investigative (search) action. Peculiarities
of the psyche of minors are associated with a lack of their life experience,
knowledge, ideas, the formation of adaptive behavioral skills. They are also
characterized by fantasy, emotional hyperbole of the event they saw, and this
often leads to their incorrect assessment of the event under investigation,
or its individual elements (Kovalenko et al., 2013).
In our opinion, simultaneous interrogation with the participation
of minors should be conducted only in the case when other methods of
establishing the disputable circumstances of a criminal oense have been
used and have not yielded results. In case of impossibility to eliminate
contradictions in another way before the investigating judge there is a
necessity of carrying out simultaneous interrogation with participation
of the minor in the presence of the bases dened in h. 1 Art. 225 of the
Criminal Procedure Code of Ukraine.
Peculiarities of the tactical component of simultaneous interrogation of
two or more interrogated persons is that taking into account the peculiarities
of the psyche of minors in preparation for this investigative (search) action
of great importance are the choice of venue (Shabalin, 1975.). We share the
position of SV According to Smyk, these recommendations do not apply
to the procedure of simultaneous interrogation of two or more already
interrogated persons at the stage of pre-trial investigation in court (not in
the oce, but in the usual places for minors (children’s institutions, etc.).
In this case, the investigating judge is somewhat limited in the possibility
of choosing the place of simultaneous interrogation of two or more already
interrogated persons at the stage of pre-trial investigation in court. This is
either the location of the court or the stay of a sick witness (Part 1 of Article
225 of the Criminal Procedural Code of Ukraine), or the place of the out-
of-court hearing (Part 2 of Article 225 of the Criminal Procedural Code of
Ukraine) (Smyk, 2018).
Conclusions
The study of the methods of obtaining the testimony of a minor during
the pre-trial investigation under the legislation of Ukraine allowed to reach
the following conclusions.
1. Among the methods of gathering evidence, such an investigative
(search) action as interrogation has the largest share. During the
investigation of criminal oenses against minors, or with their participation,
the need to consolidate existing and obtain new evidence by interrogating
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Viktoriia Zarubei, Yuliia Komarynska, Andrii Babenko, Yuliia Sukhomlyn y Nataliia Kononenko
Obtaining the testimony of a minor during the pre-trial investigation under the laws of Ukraine
victims, witnesses, suspects, simultaneous interrogation of these persons
and other investigative (investigative) actions. Their peculiarity is that the
taking of testimony should take into account the age and procedural status
of the minor, requires a special approach, taking into account the vulnerable
state, social immaturity and the risk of violation of the rights and freedoms
of such persons. The interrogation must be preceded by careful preparation
based on knowledge of the age psychological characteristics of a particular
child, the core of which is the study of the adolescent’s personality, motives
for his behavior, decision-making about the place and participants of
the investigative (search) action. Their peculiarity is that the taking of
testimony should take into account the age and procedural status of the
minor, requires a special approach, taking into account the vulnerable
state, social immaturity and the risk of violation of the rights and freedoms
of such persons. The interrogation must be preceded by careful preparation
based on knowledge of the age psychological characteristics of a particular
child, the core of which is the study of the adolescent’s personality, motives
for his behavior, decision-making about the place and participants of the
investigative (search) action.
2. We consider the practice of introducing «green rooms» in the eld
of criminal justice to be promising, as the child’s environment during
the relevant procedural actions is extremely important for establishing
contact with the child. The inexpediency of classifying a minor suspect
as a subject to be interrogated in court during the pre-trial investigation
is substantiated, as it would contradict the requirements of Art. 23 of the
Criminal Procedural Code of Ukraine on the immediacy of the examination
of evidence in court.
3. The investigator should remember that in addition to obtaining
the testimony of a minor through interrogation, at the stage of pre-trial
investigation may be necessary and extensive application of a set of other
investigative (search) actions, such as investigative examination, search,
examination, presentation for identication, investigative experiment,
forensic examination.
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