ПРО НЕУЗГОДЖЕНІСТЬ ДЕЯКИХ НОРМ КРИМІНАЛЬНОГО ПРОЦЕСУАЛЬНОГО ЗАКОНОДАВСТВА І КОНКУРЕНЦІЮ ЩОДО ПРИЙНЯТТЯ ПРОЦЕСУАЛЬНИХ РІШЕНЬ СТОСОВНО ПРОВЕДЕННЯ НЕГЛАСНИХ СЛІДЧИХ (РОЗШУКОВИХ) ДІЙ

Abstract

The article is devoted to the problems of inconsistency of certain norms of the current criminal procedural legislation of Ukraine, which regulate the adoption of procedural decisions by investigators, prosecutors and investigating judges regarding the covert investigative (searching) activities. Thus, according to the author, the part 3 of Article 246 of the Criminal Procedure Code of Ukraine prescribes that an investigator is obliged to notify the prosecutor about procedural decision to conduct covert investigative (searching) activities. At the same time, the part 2 of Article 272 of the Criminal Procedure Code of Ukraine authorizes the investigator to make a procedural decision on the use of covert investigative (searching) activities in the form of a special task to detect a criminal activity of an organized group or a criminal organization only in agreement with the head of pre-trial investigation. The part 1 of Article 250 of the Criminal Procedure Code of Ukraine requires that the covert investigative (searching) activities must be initiated by the investigator prior to the decree of the investigating judge only by the decision agreed with the prosecutor, however, the part 4 of Article 268 and the part 3 of Article 269 of the Criminal Procedure Code of Ukraine allegedly allows the investigator to make a decision on allocation of the electronic device and surveillance over a person. Thus, the author makes proposals to amend these norms with the suggestions that make the dispositions of these norms of the current Criminal Procedure Code of Ukraine more consistent with each other. The article provides the concept of competition of the decisions. According to the author, the competition of procedural decisions in criminal proceedings is a way of resolving the same procedural issue by absorbing a procedural decision on the same procedural issue, a procedural decision of a participant in criminal proceedings, who is endowed with greater rights and powers. The preconditions for competition of procedural decisions, in the author's opinion, are contained in the Part 1 of Article 250 and Part 3 of Article 248 of the Criminal Procedure Code of Ukraine. The proposals are made for amendments and additions to these rules to resolve this issue.