Legal Aspects of Conducting Molecular Genetic Testing in Criminal Proceedings

Abstract

In this article, the authors outline the main directions for improving the legal regulation of social relations related to molecular genetic testing for the purposes of criminal proceedings in Ukraine. The legal definition of the concept of forensic molecular genetic testing has been improved. The authors justify the need to eliminate gaps in the criminal procedural legislation of Ukraine related to the distinction between molecular genetic studies conducted by specialists and experts. The authors note that the concept of molecular genetic examination (research) enshrined in the Law of Ukraine ‘On State Registration of Human Genomic Information’ reflects only one purpose of the relevant research, namely, the establishment of human genomic information. However, with regard to forensic examination, this concept needs to be improved, taking into account the general legal purpose of all types of examinations, as well as the specific purpose of molecular genetic studies conducted for the purposes of criminal proceedings. The object of molecular genetic examination is always samples of biological material, and its tasks are to detect cellular material on certain objects, establish its biological nature and gender, establish genetic characteristics and determine suitability for identification, compare them, directly identify them, establish biological paternity and biological kinship between people. The Criminal Procedure Code of Ukraine should include a separate provision concerning molecular genetic testing, specifying the particulars of using such forms as involving experts and specialists, limiting the scope of participation of specialists to preliminary DNA testing in exceptional cases only.  Currently, molecular genetic testing in the forensic examination system in Ukraine is classified as both a type of criminalistic and forensic medical examination, which requires more precise regulation. In this regard, improving the organisational basis of forensic examination activities in this field is a promising area for further scientific research.