Judicial control over investigative (search) actions that require prior permission

Vasyl Nastyuk,Vitalii Kondratenko,Oleksandr Mikhailov,Ekaterina Izbash

doi:10.34069/ai/2020.28.04.18

Abstract

The purpose of the article is to investigate the peculiarities of judicial control during investigative (search) actions that require prior permission on the basis of the analysis of legislation and modern theoretical concepts of the science of criminal process. Special research methods were also used in the work, in particular, comparative legal; special legal, logical-legal and systematic. The article is devoted to specific issues of judicial control, which, in accordance with the current legislation of Ukraine, is carried out when granting permission for investigative (search) actions that require it. The investigative (search) actions that require the prior permission of the investigating judge are identified. The norms of the international and national legislation are analyzed, which enshrines guarantees from illegal entry into the dwelling or other property of a person and carrying out of procedural actions there. Attention is drawn to the need for a clear delineation of investigative (search) actions, such as inspection and house search or other property of a person, since their substitution will lead to the court finding the evidence inadmissible. The position of the European Court of Human Rights on the criteria for the lawfulness of the search is outlined. Emphasis is placed on the specifics of conducting a house search or other property of a lawyer. It is concluded that the effective provision by the investigating judge of the rights, freedoms and interests of persons whose housing or other property is planned to be searched is a necessary condition for the realization of the principles of criminal proceedings.

Highlights

Ukraine's orientation towards European Union integration implies a commitment to the international community to ensure that the national legal system conforms to the standards of the European community, including the creation of an effective mechanism for the protection of human rights and citizens (Arakelian, Ivanchenko, Todoshchak, 2020, p. 61)
Special research methods were used in the work, in particular: a) comparative legal - to analyze the norms of the Constitution of Ukraine, the case law of the European Court of Human Rights and the current criminal procedural legislation concerning the judicial control over investigative actions, which require prior permission; b) special legal - contributed to a detailed examination of the current state of the legislative provisions, which resulted in the development of proposals for overcoming the existing theoretical and legal contradictions and collision in the legislative acts
Every criminal procedure is repressive by nature. This means that when aiming to disclose a crime, find the perpetrator and obtain evidence needed to make a decision on indictment issues, a legal regulation is employed to legitimize actions and measures that interfere with human rights and freedoms

Summary

Introduction

Ukraine's orientation towards European Union integration implies a commitment to the international community to ensure that the national legal system conforms to the standards of the European community, including the creation of an effective mechanism for the protection of human rights and citizens (Arakelian, Ivanchenko, Todoshchak, 2020, p. 61). According to Article 14 of that Agreement within the framework of cooperation in the area of justice, freedom and security importance is attached to the consolidation of the rule of law and to the strengthening of institutions of all levels, including the judiciary In this area, cooperation should be aimed at strengthening the judiciary, enhancing its effectiveness, guaranteeing its independence and impartiality, which should be based on the principle of respect for human rights and fundamental freedoms. Granting of permission by the investigating judge to conduct individual investigative (search) actions at the stage of pre-trial investigation was not an exception to this issue This issue has become relevant since the entry into force of the Criminal Procedure Code of Ukraine, 2012 (hereinafter - the CPC of Ukraine). One of the legislative innovations was the introduction of a new participant in criminal proceedings - an investigating judge

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