TEACHING THE CRIMINAL PROCESS: ISN’T IT TIME TO REFUSE FROM THE METHODOLOGICAL LEGACY OF THE CRIMINAL PROCESS OF THE TOTALITARIAN ERA?

Abstract

It substantiates the need to replace and rethink the methodologically outdated and unjustified regulations formed in the legislation of the Soviet era, which will more effectively contribute to the reform of legal education. It is emphasized while teaching the criminal process, it should be taken into account that the current CCP of Ukraine consists of separate regulations of the Anglo-Saxon, French, and German and “fragments” of the Soviet criminal process. There are a number of fundamental regulations previously unknown to the national law, concerning the beginning and content of the pre-trial investigation, the powers of the prosecutor, the problem of evidence, proof, coercion, notification of suspicion and so on. The attention is paid to the fact that in textbooks, manuals, scientific and practical commentaries on the criminal process, in classes in student classrooms educational material related to the problems of evidence is often presented in accordance with theoretical schemes of the Soviet criminal process, and the requirements of paragraph 2 of Art. 23 of the CCP is not even mentioned. Therefore, the legal awareness of young lawyers continues to be formed on the basis of outdated legal concepts, which will not contribute to the effective implementation of the provisions of European legislation in the Ukrainian realities. It is noted the need to modernize the concept of evidence in criminal procedure. The current definition of evidence in the current CCP of Ukraine as the collection, verification and evaluation of evidence simplifies its content. Beyond it remains the logical, psychological, semantic communication components of this type of activity. At the same time, it distorted the nature of the evidence in the criminal proceedings. It is clear to professionals that it is not evidence that is being collected, but information about traces of a socially illegal and socially dangerous act. According to the pre-trial investigation authorities, they can only be the factual basis of future court evidence. The conclusion is substantiated that in the course of criminal procedural activity there is modelling with the use of legal constructions of the past social reality (presumed crime) both on factual and legal grounds in the mode of judicial communication between participants in criminal proceedings. Therefore, the social event (act) described in the court verdict and recognized as a crimeare two completely different phenomena: historical fact and knowledge formed in court with a claim to authenticity. Therefore, to put a sign of equality between them seems incorrect.