Representation of the victim of a road traffic accident at the subsequent stage of the pre-trial investigation

An important procedural criterion for conducting an investigative experiment is the requirement of Part 6 of Article 240 of the CPCU to draft a protocol of this investigative (detective) action with the obligatory indication of the conditions and results. Compliance with all the requirements for drafting such a protocol is a mandatory element of the control and advisory work of the representative of the road accident victim. Inaccuracies, mistakes, errors, and non-compliance with the procedural form in their entirety may later become the basis for the defence to declare the evidence inadmissible. This statement was supported by 90.5% of the lawyers surveyed.

The analysis of criminal proceedings for road safety offences shows that other shortcomings in the design of the investigative experiment protocol are also widespread, including the following: unclear in-dication of the purpose, inconsistency of the experiments conducted and the results obtained; the de-scription of only the first experiment (indicating the total number of experiments and the identity of the results obtained); the investigator's own assessment of the results of the experiments (Chychyrkin, 2020).

Appointment and conduct of expert examinations during the investigation of a road traffic accident. Proof in the category of criminal proceedings under study is based mainly on the conclusions of various examinations. However, representatives of road accident victims have much narrower opportunities than the prosecution and defence in terms of engaging specialists, appointing, and conducting examinations. Their procedural powers to use the institute of special knowledge in criminal proceedings are extremely limited. This opinion was shared by 89.5% of the surveyed lawyers. This leads to adverse consequences for the protection of the rights and legitimate interests of road accident victims.

Under current conditions, at the subsequent stage of pre-trial investigation, representatives of road ac-cident victims are unable to properly influence the use of special knowledge (including these scientific achievements) in criminal proceedings to perform their tasks, due to the shortcomings of the criminal procedural law. To remedy this situation, it is necessary to amend Articles 71 (Parts 2 and 3), 242 (Part 1), 243 (Part 1), 244 (Parts 1 and 2) of the CPCU, making provision for the rights of the victim (equal in scope and content to the rights of the defence) to engage specialists and conduct examinations.

Prior to such amendments, the representative of the road traffic accident victim should: firstly, estab-lish and maintain constructive interaction with the investigator; secondly, have a suitable level of training in the relevant fields of knowledge (motor vehicle engineering, trace evidence, forensic medicine, etc.); thirdly, establish personal contacts with specialists (preferably experts) in these fields of knowledge. All this allows: correctly assessing the forensic situation and concluding on the need to involve specialists and/or experts; providing the investigator with recommendations in this regard that will be accepted by them (with the possibility to recommend a particular specialist, with ensuring their appearance when the investigator cannot ensure it themselves); including in the list of quest ions posed to the expert those the answers to which are important for protecting the rights and interests of the road accident victim; effectively using the conclusions provided by specialists and experts to perform their own tasks within criminal proceedings; preventing procedural errors of the investigator in terms of organising the process of using specialised knowledge.

In the absence of constructive interaction with the investigator and unsatisfactory organisation of the process of using specialised knowledge in criminal proceedings, the representative of the road traffic accident victim may use procedural tools (request for an expert examination as an investigative action, followed by an appeal against the investigator's refusal or inaction) and non-procedural (formal and informal notifying of the head of the pre-trial investigation body, procedural supervisor, head of the National Police).

Detective activities of the road accident victim's representative at the subsequent stage of the pre-trial investigation. The involvement of a road traffic accident victim's representative in investigative (detective) actions and the initiation of their conduct are mostly covered by the control and advisory and procedural components of their activities. In this part, the search component is present only in the form of an analysis of the investigative situation and the trial lawyer's search for new factual data important for the performance of the tasks of representation during investigative (detective) actions.

At the same time, the search component of representing a road traffic accident victim at the subsequent stage of the pre-trial investigation is expressed in unassisted activities independent of the investigator. Thus, if a lawyer-representative enters the case some time after the start of the pre-trial investigation, it is advisable for them to personally visit the accident scene and examine it. This is necessary to form a clear picture of the accident mechanism. Furthermore, based on the results of the examination of the accident scene, the victim's representative may identify important circumstances that were not reflected in the criminal proceedings and verify the data obtained by the investigation. In some cases, it is worth not only examining the scene of an accident, but also observing it for some time, which helps the trial lawyer to understand the specific features of road traffic organisation, their connection with the terrain, vegetation, architecture, as well as the impact of these factors on the actions of drivers and pedestrians. Based on the data obtained in this way, the lawyer-representative may conclude that certain investigative actions are necessary. This includes a repeat inspection of the scene of the incident if the initial inspection did not include factual data on circumstances that are important for the purpose of the representation.

The search component of representing a road traffic accident victim at the subsequent stage of the pre-trial investigation includes identifying and interviewing still unknown witnesses to the accident. It should be practiced when the representative of the road traffic accident victim lacks factual data to perform their tasks and there is a possibility of finding witnesses to the accident and its consequences (this statement was supported by 87.5% of the surveyed lawyers). Such a search is carried out in the same way as at the initial stage of the investigation, namely through announcements in the press, reports on local television channels, appeals to local residents through social media groups created on a territorial basis, interviews with residents of nearby buildings and employees of local businesses. Such a search should be focused not only on identifying eyewitnesses to the accident, but also those who did not perceive it directly but witnessed the subsequent events. Testimony about the post-criminal behaviour of the perpetrator of the accident is important for establishing the circumstances that mitigate and aggravate the punishment and characterise their personality. Having found the witnesses to the accident, the lawyer-representative should first interview them following Part 3 of Article 93 of the CPCU1 and Item 7, Part 1 of Article 20 of the Law of Ukraine “On the Bar and Practice of Law” . This was agreed by 61.5% of the surveyed lawyers.

The search component of representing a road traffic accident victim at the subsequent stage of the pre-trial investigation also includes the search and analysis of criminal proceedings related to road traffic accidents that occurred in analogous circumstances, possibly in the same place. This helps the victim's representative determine their legal position. Naturally, there are no two identical road accidents, but there are so-called typical situations, and, accordingly, the legal positions of courts of various instances on their resolution. The level of support for this approach among the surveyed lawyers is 77%.

We consider consultations with experts to be a separate element of the search component of repre-senting a road traffic accident victim at the subsequent stage of the pre-trial investigation, which help to correctly formulate the questions in the petition for an expert examination, assess the technical capacity of the testimony of witnesses and the suspect, timely warn about the lack of initial data for the examination, etc. 94.5% of the surveyed lawyers agreed with the expediency of such a step.

The search activities of a road traffic accident victim's representative also include the collection of various information about the identity of the suspect, which must be considered by the court when passing a verdict. Such information includes, among other things, criminal records, facts of administrative liability, specifically for violation of traffic rules. Information about the property belonging to the suspect is also important, as it may be seized to secure a civil claim. Various open registers and lawyer's requests are tools for obtaining this information.

Comparison of the expert opinions obtained during the survey with the work of scientists helped to supplement the results of the study. As for the interrogation of victims, special requirements for their interrogation should be imposed if they are minors. These requirements are both legal (statutory) and psychological in nature. The representative of such a victim should take steps to ensure that the inves-tigator or prosecutor follows such requirements. As pointed out by V. Zarubei et al. (2021), at the further stage of the investigation of a criminal road accident, it is advisable to rely on the researchers' conclusions that the method of obtaining testimony should be based on the age and procedural status of the minor, which requires a special approach given the vulnerable state, social immaturity, and the risk of violation of the rights and freedoms of such persons. O.Y. Guseva et al. (2021) emphasise that in each case of interrogation of an underage victim, it is advisable to ensure that the interrogation is conducted by an investigator specially trained for this purpose and of the same sex as the victim; the questions to be asked are clear, simple, and without alternative; and that specialists in age-related pedagogy and age psychology are consulted and present during the interrogation. The author also supports the practice of introducing “green rooms” in the field of criminal justice, as the child's environment during the relevant procedural actions is crucial for establishing contact with the child (Zarubei et al., 2021).

Regarding the continuous video recording of interrogation, which according to the survey is not always used by investigators, important aspects are noted by I. Miroshnykov et al. (2022). The scientists argue that an additional useful effect of video recording during the interrogation of a suspect is that it will be possible to investigate all their non-verbal and par- averbal reactions to questions and evaluate the veracity of their answers based on behavioural patterns. Furthermore, scholars fairly point to the possibility of using other means of detecting lies in the testimony of a suspect that are extra-procedural in nature, namely, polygraph examination (Miroshnykov et al., 2022). A suspect may, in an attempt to avoid punishment, provide deliberately false testimony. Therefore, if doubts regarding the veracity of the suspect's testimony are confirmed, the representative of the road accident victim may initiate the use of procedural means of expos-ing false testimony, to which scholars rightly include repeated interrogation, additional and simultaneous interrogation of previously interrogated persons, and an investigative experiment (Mohilevskyi, 2022).

At the same time, modern Ukrainian and world science pays great attention to the narrowly pro-fessional aspects of conducting certain types of examinations in cases of crimes against road safety. Specifically, this refers to such types of expertise as forensic and automotive. For instance, in 2023, medical experts investigated the issues of assessing the severity of facial and general trauma in children and adolescents injured in road accidents (Xavier et al., 2023), as well as diagnosing facial fractures and determining the severity of associated injuries after motorcycle accidents (Chuang et al., 2023). The intro-duction into expert practice and use of the methods proposed in this study are important for the criminal law qualification of criminal road accidents, which largely depends on the severity of the injuries sustained by the victim. The same can be said about the methods of determining the cause of death within 24 hours of the accident (Kamabu et al., 2023) and determining the cause of death of road traffic victims in individual cases (Rastogi et al., 2023)

Automotive experts have recently also been investigating specific issues of conducting examinations in the field of their professional activity. This includes determining the speed of the vehicles before the initial contact (Serdiukov, 2018), which is important legally for establishing causal links between the actions of the road traffic participants and the harmful consequences of a car accident. Scientists have also developed methods for determining the technical failure of a vehicle's braking system (Koshkarov, 2020) and establishing indicators of the traction of a vehicle's wheels (tyres) to the road surface (Kashkanov et al., 2020). These techniques are important for determining the technical ability of a driver to avoid an accident, which in turn has a considerable impact on the decision on their guilt. To address this issue, in some cases, the results of examinations of automotive lubricants are important, which necessitates scientific research into their properties (Estevanes et al., 2023). The above-mentioned scientific achievements enrich expert and legal practice and are important for the representative of a road accident victim.

Conclusions

Based on the results of the survey, analysis of criminal proceedings and regulatory documents, a list of appropriate investigative actions for a road accident victim's representative was established. The results of the survey showed that, based on the forensic methods of investigating crimes against road safety, it is effective to determine the most suitable list and sequence of investigative (detective) actions necessary to complete the objectives of the representation, actively monitor the work of the investigator and provide them with advice or adjust their activities in a procedural manner.

As a result of the analysis of criminal proceedings, it was found that investigative (detective) actions carried out at the subsequent stage of pre-trial investigation of crimes against road safety may include re-inspection of the scene; additional interrogation of witnesses and the victim; interrogation of the suspect; interrogation of two or more previously interrogated persons, investigative experiment, and expert examinations. The survey showed that it is advisable for a representative of a road traffic accident victim to initiate a re-inspection of the scene of the accident if, during a preliminary personal inspection of the scene, they have discovered circumstances important to the criminal proceedings that were not established and recorded by the investigator during the initial inspection of the scene or when conflicting witness statements can be verified in this way. Additional interrogations, including interrogations of two or more previously interrogated persons, should be initiated by the victim's representative when it is necessary to clearly record or eliminate contradictions in the testimony of different witnesses or the suspect, as well as to identify the reasons for the inconsistency of their testimony with other factual data obtained in criminal proceedings.

In the opinion of experts and based on the results of the analysis of criminal proceedings, it can be ar-gued that the initiative of the road accident victim's representative to conduct an investigative experiment is appropriate when there are all the initial data and necessary conditions for its conduct, and the in-vestigator does not appoint it, as well as when the investigator asks the victim's representative for such an initiative for certain tactical reasons. The search component of the activities of the road traffic accident victim's representative at the subsequent stage of the pre-trial investigation, depending on the circumstanc-es, may include personal visit to the scene of the accident, its examination and observation; identification and interviewing of still unknown witnesses to the accident; search and analysis of criminal proceedings concerning road traffic accidents that occurred under analogous circumstances in the same place; consulta-tions with experts; collection of data characterising the perpetrator of the accident, information about their property; detection and exposure of attempts to unlawfully influence the victim and witnesses.

Prospects for further scientific research in this area are a detailed investigation of the institution of using special knowledge in criminal proceedings as an instrument of activity of a road accident victim's representative at the subsequent stage of pre-trial investigation.

Acknowledgements

The author of this study expresses their sincere gratitude to police officers (active and retired) and lawyers who, despite their busy schedules and intense workload, agreed to take part in the survey; Volody- myr Cherniei, the Rector of the National Academy of Internal Affairs, Serhii Cherniavskyi, the Vice-Rector, and Andrii Vozniuk, the Head of the Scientific Laboratory for Combating Crime for their aid in organising this study and publishing its findings; Olha Antipova, the Head of the Department for Preparation of Educational and Scientific Publications and all her subordinates for their support in the proper presentation of the findings of this study.

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