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10.04.2023

Investigative (search) actions and covert investigative (search) actions: the practice of the Supreme Court

How does the procedure for conducting investigative (search) actions and covert investigative (search) actions affect the process of proof? The answer to this question can be found in a number of judicial decisions of the Supreme Court, which were discussed by Supreme Court judge of the Cassation Criminal Court, Oleksandra Yanovska, during an online legal workshop.

The speaker drew attention to the general requirements for conducting a pre-trial investigation, which are directly related to ensuring the proper legal procedure for conducting investigative (search) actions and NSRD. According to her, in almost every third cassation appeal submitted to the CCS of the Supreme Court, most often the defense side, and sometimes the prosecution side, point out the problems related to confirming the powers of bodies, persons who carried out pre-trial investigation and procedural guidance in specific criminal proceedings.

Oleksandra Yanovska recalled that a few years ago, the joint chamber of the Supreme Court of the Supreme Court clearly defined that the decision on the appointment of a prosecutor who will exercise the powers of a prosecutor in a specific criminal proceeding, and if necessary, a group of prosecutors who will exercise the powers of a prosecutor in a specific criminal proceeding, must must necessarily be adopted in the form of a resolution. And the absence of such a resolution is a reason to consider the evidence obtained within the framework of this criminal proceeding inadmissible, since it was obtained by unauthorized persons (the resolution of the OP of the Supreme Court of Justice of February 22, 2021 in case No. 754/7061/15, proceeding No. 51-4584kmo18).

This position was developed by the OP KKS in another of its resolutions, reaching the conclusion that the resolutions of the head of the pre-trial investigation body on the determination of an investigator or a group of investigators, a senior group of investigators who carried out a pre-trial investigation, can be provided by the prosecutor and announced during the trial, if during the investigation evidence, the participants of the proceedings will have doubts about their authenticity, given the fact that this evidence was collected by unauthorized persons. If this issue was not raised in the court of first instance, but arose during the appeal or cassation proceedings, such procedural documents may be submitted to the court of appeal or cassation within the scope of the review of the arguments presented in the appeal or cassation complaints (resolution of the OP of the Supreme Court of Justice of February 14, 2022 year in case No. 477/426/17, proceedings No. 51-4963kmo20).

In the question of the correctness of determining the responsibility, the authority of the body or person conducting the investigation, conducting separate investigative actions, it is necessary to take into account the resolution of the Grand Chamber of the Supreme Court of August 31, 2022 in case No. 756/10060/17 (proceedings No. 13-3кс22). It articulates the position that finding evidence inadmissible is not an automatic process. Thus, the VP of the Supreme Court noted that in the case of declaring the evidence inadmissible, the court must motivate its conclusions about a significant violation of the requirements of the criminal procedural law, noting exactly which and whose rights and freedoms were violated and how this was expressed. Evaluating evidence for admissibility in accordance with the criteria established by the criminal procedural law, the court proceeds from the circumstances of a specific case and must also motivate its decision.

In addition, the speaker focused on the recently adopted resolution of the Supreme Court of Appeals of Ukraine (from January 24, 2023 in case No. 663/3293/20, proceedings No. 51-4894km21), which contains the following legal position: the decision of the head of the pre-trial investigation body to entrust the implementation of the pre-trial investigation to a specific investigator in the form of a mandate, the content of which meets the requirements for a procedural decision in the form of a resolution, provided for by the Code of Criminal Procedure of Ukraine, is not considered a significant violation of the requirements of the criminal procedural law.

During the coverage of the practice of the Supreme Court, which concerns the conduct of investigative (search) actions, Oleksandra Yanovska reminded about the changes to the Criminal Procedure Code of Ukraine introduced in connection with the martial law (it concerns, in particular, the peculiarities of the procedure for conducting such investigative actions as interrogation, search or review).

Talking about the practice of the Supreme Court in conducting NSRD, the speaker drew attention to the two starting positions of the Supreme Court of the Supreme Court on opening materials to the other party, expressed in resolutions that were adopted back in 2019 (resolutions of the Supreme Court of the Supreme Court of January 16, 2019 in case No. 751/7557/ 15-k, proceedings No. 13-37ks18; dated October 16, 2019 in case No. 640/6847/15-k, proceedings No. 13-43ks19).

You can read more about these resolutions, as well as other judicial practice of the Supreme Court on issues related to the conduct of investigative (search) actions and covert investigative (search) actions, in Oleksandra Yanovska's presentation at the link https://bit.ly/40OFsxL .

Legal online workshop "Investigative (investigative) actions and covert investigative (investigative) actions: the practice of the Supreme Court. The right to respect for private and family life, housing and correspondence in the practice of the ECtHR" was organized by the legal portal "Ratio Decidendi" and the legal journal "Law of Ukraine".

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