Abstract
The purpose of the article is to determine the features and legal grounds for the use of tools of operational and search activities in the pre-trial investigation. Subject of research: The subject of research is covert investigative (search) actions and operational and search measures. Methodology: dialectical method, formal logic methods, logical and semantic method, system analysis method, theoretical method, normative and dogmatic method, legal modeling method. The results of the study: Distinguishing between investigation and search measures, we apply the following principle: if the object of operational activities is already known to law enforcement officers we are talking about search measures, if not – about investigation measures. Practical consequences: The possibility of legal regulation of the use of tools of operational and search activity at the stages of criminal proceedings is determined. Value / originality: It is concluded that the list of operational and search measures also includes those that have no analogues with the CISAs and therefore operational and search measures do not duplicate the CISAs, but perform the task of ensuring the possibility of fulfilling the investigator’s instructions to conduct the CISAs.
Highlights
The Criminal Procedure Code of Ukraine (Law of Ukraine No 4651-VI, 2012) has introduced the concept of “covert investigation actions” into the pre-trial investigation procedure, the system and methodology of which, even before the Code was approved, had been the subject of scientific debate
CISA, enshrined in Chapter 21 of the CPC of Ukraine (Law of Ukraine No 4651-VI, 2012), in the nature and content of the activities carried out are correlated with the operational and search activities, enshrined in Part 1, Art. 8 of the Law of Ukraine “Operational and Search Activities” (Law of Ukraine No 2135-XII, 1992); both types of activities are conducted in cases, in which information about the offense and the perpetrator cannot be obtained in any other way and only in criminal proceedings for serious or serious criminal offenses
A number of other scientists believe that the practice has just begun to work out tactics for operational and search measures under current CPC of Ukraine and exploring the theoretical aspects of the application of these measures and CISAs in the new criminal procedure legislation, there was no opportunity to analyze the practice of their application. We partially considered this issue in the study of the process of formation of the institution of CISAs in the criminal justice system of Ukraine, resulting in the conclusion that: on the one hand, the use of CISAs results in criminal proceedings differs from similar simplified mechanism that eliminates the need for additional legalization and promotes the efficiency of the use of documents drawn up as a result of covert investigation actions, but on the other hand – the lack of clear regulation of these procedures directly in the CPC of Ukraine significantly reduces the effectiveness of their implementation and use of the results obtained (Tarasenko et al 2021, p. 469)
Summary
The Criminal Procedure Code of Ukraine (hereinafter – the CPC of Ukraine) (Law of Ukraine No 4651-VI, 2012) has introduced the concept of “covert investigation (search) actions” (hereinafter – CISA) into the pre-trial investigation procedure, the system and methodology of which, even before the Code was approved, had been the subject of scientific debate. According to Art. 246 of the CPC of Ukraine, CISA is a kind of investigative (search) actions, information about the fact and methods of which are not subject to disclosure, except as provided for in the CPC of Ukraine. CISA, enshrined in Chapter 21 of the CPC of Ukraine (Law of Ukraine No 4651-VI, 2012), in the nature and content of the activities carried out are correlated with the operational and search activities, enshrined in Part 1, Art. 8 of the Law of Ukraine “Operational and Search Activities” (Law of Ukraine No 2135-XII, 1992); both types of activities are conducted in cases, in which information about the offense and the perpetrator cannot be obtained in any other way and only in criminal proceedings for serious or serious criminal offenses. Цінність / оригінальність: Робиться висновок про те, що до переліку оперативно-розшукових заходів, відносяться також ті, що не мають аналогів з НСРД і тому оперативно-розшукові заходи не дублюють
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