Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities

Abstract

The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven