Abuse of the right to initiate separate investigative (search) and undercover investigative (search) actions without the permission of an investigating judge.

Abstract

The article examines the problems of abuse of the right to initiate separate investigative (search) and undercover investigative (search) actions without the permission of an investigating judge. In criminal proceedings, abuse of the right is considered as a type of legal, though wrongful behaviour of a participant in criminal proceedings. At the same time, it is judicial control during the pre-trial investigation that is a balancing factor in relation to the powers of the prosecution, including discretionary ones. Attention is drawn to the fact that the vast majority of investigative (search) actions and undercover investigative (search) actions related to the restriction of the constitutional rights and freedoms of a person can be carried out only if there is a legal basis — a decision of an investigating judge. It is emphasized that the effective and prompt execution of tasks of criminal proceedings is sometimes impossible or can be significantly complicated without a timely start, avoiding unnecessary delays. Evidence of this is the enshrining of certain norms in the Criminal Procedural Code of Ukraine, they guarantee the possibility of starting some investigative (search) actions and undercover investigative (search) actions in the absence of a decision of an investigating judge, but on the condition that it is subsequently obtained within the framework of the following judicial control. It concerns legal prescriptions enshrined in Part 3 of Art. 233 of the CPC and Art. 250 of the CPC. It is emphasized that a key component in the mechanism for preventing a party from abusing the procedural powers provided for in Part 3 of Art. 233 of the Criminal Procedure Code, and Part 1 of Art. 250 of the Criminal Procedure Code, is retrospective judicial control, provided it is thorough and meaningful, without a formal approach. It is noted, that in order to ensure legal certainty in the issue of possibility of carrying out separate investigative (search) actions directly with the aim of preventing loss, damage, destruction of physical evidence, and undercover investigative (search) actions — in order to prevent the commission or termination of a serious or particularly grave crime — it is considered appropriate to introduce some legislative corrections.