The article highlights the problem related to the imperfection of the normative and legal regulation of the use of covert investigative (detective) actions and operational search measures for obtaining evidence in criminal proceedings, which in practice creates conditions for abuse of the right by the prosecution (investigator, prosecutor) and restrictions (violations) of human rights and freedoms.

The purpose of the article is to study certain aspects of distinguishing the grounds for conducting covert investigative (detective) actions and operational search measures, as well as other related issues that lead to abuse by the investigator, the prosecutor of his right to initiate of conducting covert investigators (detective) actions in the absence of actual grounds for their implementation.

The article examines the problematic of documenting a crime, the commission of which is only planned within the framework of criminal proceedings with the help of covert investigative (detective) actions, and not within the scope of an operational search case by conducting operational search measures. Attention is focused on the need for a clear distinction between the grounds for operational search measures and covert investigative (detective) actions. It is noted that the mixing of investigative and criminal procedural activities creates prerequisites for abuse by investigators and prosecutors of their right to initiate of conducting covert investigative (detective) actions against a person for whom there is no information (evidence) about the commission of a crime. Such actions lead to an unjustified restriction of the constitutional rights and freedoms of a person and even to their violation. It has been proven that the mechanism for ensuring the rights and freedoms of a person during the conduct of covert investigative (detective) actions is ineffective, because due to the peculiarities of the conditions in which they are conducted and the lack of guarantees of proper informing of a person about the temporary restriction of his constitutional rights, to prevent their inappropriate and unfounded conduct, actually impossible.

In order to avoid abuses on the part of the investigator, the prosecutor needs to strengthen the guarantees of obtaining a permit to conduct covert investigative (detective) actions and to improve the procedure for acquainting the persons against whom such actions were conducted with the decisions on the basis of which they were conducted. It would be effective to provide for judicial control over the implementation by the prosecutor of the provisions of Art. 253 of the Criminal Procedure Code of Ukraine by establishing the duty of the latter to inform the investigating judge about the proper notification of persons with the attachment of confirmation of such notification, since, as practice shows, it does not seem possible to check the implementation of these provisions. At the same time, increasing the responsibility of the prosecutor for non-fulfillment or improper fulfillment of the duty to ensure human rights during the covert investigative (detective) actions would contribute to ensuring human rights.

Bibliography

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Theses

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