Review

The Article gives a decent attention to the institute of witness immunity in criminal proceedings of two different countries, Ukraine, which belongs to the Romano-Germanic legal family, and England, a representative of Anglo-Saxon legal family, relying on techniques of the comparative-legal analysis. It carefully explores the existing national studies of the issue, which mostly fail to ensure the full disclosure of the immunity of witness in the criminal proceedings and its classification that in turn prevents from solving all current problems of law enforcement in Ukraine.

To promote a deeper understanding of what is lacking, this Article summarizes the existing theory of criminal procedure law on the content and type of immunity of witnesses existing in Ukrainian legislation and offers perspective ways to categorize the notion of witness immunity. Accordingly, the Article proposes to divide the immunity of witness into two distinctive groups: a) the personal direct immunity of witness and b) the mediated lawful immunity of witness. Similarly, the Article examines the institute of witness immunity represented in the country with Anglo-Saxon (precedent) system of law, England, expanding on its broad interpretation and extensive experience. Although in England the privileges of witness are legally established, their provision in some way depends on the judge’s discretion, whereas in the Ukrainian criminal procedure a witness who referred to immunity right may insist on it and refuse to give evidence on a legitimate basis. Finally, the Article draws conclusion highlighting distinctive features of witness immunity in both countries and offers suggestions of further improvement of the institute in Ukrainian legislation. Particularly, the normative definition of the circle of family members baring witness immunity should be clearly defined in Ukrainian legislation as well as the guarantees of the implementation of immunity for minors are to be strongly established.

References

1. 1. The Constitution of Ukraine: Law of Ukraine dated June 28, 1996 No. 254к / 96-ВР accessed 04.05.2018 (in Ukranian).
2. Criminal Procedural Code of Ukraine: Law of Ukraine dated April 13, 2012 No. 4651-VI accessed 04.05.2018 (in Ukranian).
3. David R, The main legal systems of our time (Moscow 1967) 400 (in Russian).
4. A modern dictionary of foreign words (St. Petersburg: Duet 1994) 752 (in Russian).
5. Shmareva T A, Witness in the Russian criminal trial (Moscow, Yurlitinform 2014) 144 (in Russian).
6. Budnikov V L, The immunity of a witness in a criminal trial (Volgograd, Publishing house Volgograd. state. University 1998) 32 (in Russian).
7. Litvintseva N Yu, Witness immunity in the Russian criminal proceedings (Irkutsk, Publishing house of BSEEP 2014) 72 (in Russian).
8. Smolkova I V, Actual problems of secrets protected by federal law in Russian criminal proceedings (Moscow, Yurlitinform 2014) 352 (in Russian).
9. Malishev B V, Sudoviy precedent for the legal systems of England (theoretical and legal aspect) (Kyiv National National University Taras Shevchenko 2002) 229 (in Ukranian).
10. Romanov A K, Legal system of England: Academy of National Economy under the Government of the Russian Federation.2 ed. (The case 2002) 343 (in Russian).
11. Allen M, Criminal law (London 1991) 105–110 (in English).
12. Mitchell, Richardson P J, Thomas D A, Archbold: pleading, evidence and practice in criminal cases. 43d éd. (London 1994) 290–312 (in English).
13. Ashworth A, Sentencing and Criminal Justice. 2d ed. (London, Dublin, Edinburgh 1995) 289 (in English).
14. Ashworth A, The criminal process. An evaluative study (Oxford 1994) (in English).
15. Ball H, The Federal Court System. Encyclopedia of the American Judicial System. Vol. II (1987) (in English).
16. Gunn M, Bailey S, Smith and Bailey on the modern English legal system. 2d ed. (London 1991) 34–37 (in English).
17. Lovegrove A, The framework of judicial sentencing. A study in legal decision making (Cambridge 1997) 370 (in English).
18. Niblett J, Disclosure in criminal proceedings (London 1997) 45–46 (in English).
19. Litvintseva N Yu, ’Witness immunity as an element of the principle of protection of rights and freedoms of a person and citizen in criminal proceedings’ (2015) 1 Siberian Criminal Procedural and Criminalistic Readings 17–27 (in Russian).
20. Daev V G, ’Immunities in Criminal Procedural Activities’ (1992) 3 Jurisprudence 48–52 (in Russian).
21. Molchanov V V, ’Witness immunity in civil procedural law’ (2006) 2 Journal of Higher Education: Jurisprudence 112–113 (in Russian).
22. Saushkin S A, Grishina E P, ’Legal support of witness immunity: current state and development issues’ (2002) 5 Advocacy practice 28–30 (in Russian).
23. Lopatin V N, Fedorov A V, ’Witness Immunity’ (2004) 6 State and Law 49–57 (in Russian).
24. Litvishko P A, ’The Institute of the Crown Witness in Combating Organized Crime: A Brief Comparative Analysis of the Legislation of Russia and Certain European Countries’ (2010) 2(8) Bulletin of the Investigative Committee of the Prosecutor’s Office of the Russian Federation 21–29 (in Russian).
25. Low E, ’Accessing the Judicial System: The State’s Response’ (1994) 30 The Book of the States 405–412 (in Russian).
26. Petukhov E N, ’Contradictions in the new Criminal Procedure Code of Russia’ Problems of application of the new criminal procedural legislation in pre-trial proceedings: materials of scientific-practical. Conf. In 2 hours Part 1. (Barnaul, Barnaul. jurid. Institute of the Ministry of Internal Affairs of Russia 2002) 79–85.
27. Barannik R V, The right of the individual to freedom in the self-covetousness, detection member of the family or of close relatives in the criminality process of Ukraine (dis. Cand. Sc., K., 2002) 20 (in Ukranian).
28. Volkotrub S G, ’Actual nutrition in the criminal justice in criminal courts’ accessed 04.05.2018 (in Russian).