REVIEW OF JUDICIAL PRACTICE ON THE CONDUCT OF COVERT INVESTIGATIVE (SEARCH) ACTIONS

Abstract

It has been emphasized that secret investigative (search) actions in
accordance with criminal procedural legislation are means of proof in criminal
proceedings, which are carried out by an appropriate subject, on the grounds and
in the manner determined by the Code of Criminal Procedure of Ukraine, with
observance of human rights and freedoms (although associated with their
restriction) and are aimed at obtaining factual data about the circumstances that
are subject to proof and are significant for criminal proceedings, the reliability or
unreliability, the possibility or impossibility of using other evidence. It has been
emphasized that an important task in criminal proceedings is to ensure due legal
procedure and prevent violations of the rights, freedoms and legitimate interests
of participants in criminal proceedings during procedural actions related to the
restriction of the rights and freedoms of a person, including secret investigative
(search) actions. It has been stated that, taking into account the interdisciplinary
nature of covert investigative (search) actions, due to the combination of secret
methods and forms of their conduct, inherent in operational-search measures,
with the scope of their application – criminal proceedings (criminal procedural
activities), in practice, unfortunately, there are incorrect interpretations and, as a
result, the application of the norms of current legislation. It has been emphasized
that in order to correct the situation, as well as further streamline both scientific
provisions and practical recommendations regarding the application of the norms
of criminal procedural law, which regulate the procedure for conducting covert
investigative (search) actions and the use of their materials in criminal
proceedings, it is worth regularly reviewing the relevant judicial practice. It has
been found out that today the legal positions of the Supreme Court have been
formed regarding: the presence of grounds for conducting a covert investigative
(search) action; the presence of the authority of a person to conduct a covert
investigative (search) action; compliance with the procedure for recording the
progress and results of covert investigative (detective) actions; the possibility of
using the results of covert investigative (detective) actions for evidence, other
purposes, or to transfer information; distinguishing provocation of a crime from
permissible behavior of law enforcement agencies; etc.