Review

The article analyzes the existing practice of issuing by the detective, the prosecutor the resolutions on re-qualification of a criminal offense for the purpose of compliance with its requirements of the current criminal procedural law. It is indicated that this practice is widespread, but is not directly foreseen in the criminal procedural law.

The purpose of the article is to demonstrate that the practice of the detective, the prosecutor's decision to re-qualify a criminal offense is unlawful.

In particular, the author analyzes the notion of qualification of a criminal offense in criminal-law and criminal-procedural understandings, its place and significance in the criminal process in general and in the course of pre-trial investigation in particular. In this case, the procedural aspects of the implementation of criminal-law qualification in the CPC of Ukraine in the editions of 1960 and the current CPC of Ukraine are compared, their common and distinctive features.

The author examines the consistency of the existing practice of passing resolutions on re-qualification of a criminal offense with the provisions of the CPC of Ukraine in 2012 and subordinate legal acts. In particular, the legal nature of the decree on re-qualification of a criminal offense, which is made by the detective, the prosecutor, is analyzed. It is determined what circumstances encourage the authorized actors to pass resolutions on re-qualification of a criminal offense and what specific risks for the purposes of criminal proceedings entails the issuance of such decisions by the investigator, the prosecutor.

 It has been demonstrated that this practice is one of the abuses of the pre-trial investigation bodies, in addition, it is also found in judicial practice, and is also used by defenders through the filing of relevant petitions.

The author arrives at the conclusion that the evidence gathered after the adoption of the resolution on retraining can not be considered permissible, since the possibility of such a resolution is not provided for by the current criminal procedural law and is the product of the prosecution and investigative practice.

 In order to solve this procedural problem, the author proposed an alternative mechanism that is consistent with the current legislation, derives from the current provisions of the criminal procedural law, does not violate the rights of the parties and ensures the person's right to protection.

Key words: prosecutor, detective, resolution, qualification, retraining, pre-trial investigation, YRDR, admissibility of evidence, beginning of criminal proceedings, gaps, court, defender, crime, prosecution, assessment of an act.