Appropriate subject of obtaining evidence of a criminal offense in the opinion of the court

Abstract

The article considers the collection of evidence by the prosecution, because it is in this order that the evidence base of criminal proceedings is most often formed. Thus, the prosecutor, investigator (investigator) acting under Articles 36, 40, 401 of the Criminal Procedure Code of Ukraine, as well as an employee of the operational unit pursuant to Article 41 of the Criminal Procedure Code of Ukraine on behalf of the investigator or prosecutor have the right to collect evidence. The purpose of the article is to study the affiliation of the subjects of evidence collection as part of the procedural form of the criminal process of Ukraine, taking into account the analysis of court decisions, namely the assessment of the evidence base as a basis for deciding on the merits of criminal proceedings. Cases of involvement of an improper subject in the pre-trial investigation, which are common and typical, are systematized. There are two types of improper subjects within the investigative (search) or procedural actions, namely the subject: 1) is not appointed in the manner prescribed by law, although according to current legislation according to the list of its powers may be appropriate; 2) does not have the authority under the law to make a specific decision or to conduct investigative (search) or procedural actions. An analysis of court decisions according to which courts provide an assessment of the procedural activities of the subjects of evidence collection in criminal proceedings at the stage of pre-trial investigation, including their relevance and admissibility. Thus, attention is paid to the assessment of courts on the legality of the presence of persons during investigative (investigative) or procedural actions; the correctness of fixing such a presence. In addition, the situations of appointment of relevant subjects in criminal proceedings to fulfill their powers are considered. It is proposed to supplement the first part of Article 236 of the Criminal Procedure Code of Ukraine with a provision that clarifies the grounds for the stay and authority of the employee of the operational and investigative service during the search.