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25.01.2022

The difference between covert investigative investigative actions and “overt” investigative investigative actions

During an event to improve the qualifications of lawyers at the Higher School of Advocacy on the topic "Peculiarities of the grounds for conducting secret investigative (search) actions (NSRD) and declaring their results inadmissible", Maksym Panchenko, lawyer, doctor of legal sciences, member of the Committee for the Protection of Lawyers' Rights and Guarantees of the Bar activities of NAAU spoke about the concept and general characteristics of clandestine (investigative) investigative actions. Considered the difference between covert investigative (search) actions and "overt" investigative (search) actions.

In connection with the adoption of the new Code of Criminal Procedure of Ukraine in 2012, a new institute of covert investigative (search) actions was introduced into the domestic criminal process.
Chapter 21 of this Code discloses in detail the concept of secret investigative (search) actions, the grounds, subjects and terms of their conduct, the procedure for making decisions and carrying out these actions, the requirements for the request of the investigator, the prosecutor to the investigating judge and the decision of the investigating judge on permission to conduct an emergency (R)D, requirements for the resolution of the investigator, prosecutor on the conduct of undercover investigative (search) actions, the list and characteristics of the types of undercover investigative (search) actions, the procedure for recording the course and results of NS(R)D and their use in evidence during criminal proceedings .
According to Part 1 of Art. 246 of the Code of Criminal Procedure of Ukraine, secret investigative (search) actions are defined as a type of investigative (search) actions, information about the facts and methods of which are not subject to disclosure, except for cases provided for by the Code of Criminal Procedure.
One of the peculiarities of NS(R)D, which significantly distinguishes them from other investigative (search) actions, is that the order and methodology of their conduct are regulated not by the criminal procedural law, but by separate subordinate regulatory legal acts of the bodies, which include the relevant authorized operational subdivisions The peculiarity of NS(R)D is also that they are conducted in cases where information about the crime or the person who committed it cannot be obtained in any other way.
In almost all cases, they are conducted exclusively in criminal proceedings for serious or particularly serious crimes.
The difference between covert investigative (search) actions and "overt" investigative and search actions:
  • have an undisclosed (non-obvious, hidden, hidden) nature, when information about the fact and methods of their implementation are not disclosed and not reported to the persons in respect of whom such actions are carried out;
  • the clandestine nature of these actions implies the possibility of using confidential means and methods during their conduct, including special technical means of clandestinely obtaining information about the preparation or commission of a crime, as well as about persons who are preparing or have committed a crime (Cabinet Resolution No. 669 dated 22.09.2016 r a list of special means of secretly obtaining information is provided);
  • the direct order, tactics and methods of conducting secret investigative (search) actions are not regulated by the Code of Criminal Procedure, but by separate departmental or interdepartmental normative legal acts of bodies that include units authorized to conduct these actions (e.g., the Instruction on the organization and conduct of the NSRD and the use of their results in criminal proceedings dated November 16, 2012);
  • permission to conduct secret investigative (search) actions that temporarily restrict constitutional persons is granted exclusively by the decision of the investigative judge of the court of appeal;
  • information obtained as a result of secret investigative (research) actions shall not be disclosed;
  • the protocol on the conduct of secret investigative (search) actions, together with its appendices, no later than 24 hours after their termination, are submitted to the prosecutor, who decides on the possibility of using their results for evidence in criminal proceedings;
  • the presence of other special procedural powers of the prosecutor when making a decision, conducting and using the results of NS(R)D in criminal proceedings (Article 131-1 of the Constitution of Ukraine, it is the prosecutor who is responsible for observing legality and human rights when conducting NSRD);
  • the possibility of additional investigation by the investigator, the prosecutor of the information obtained as a result of secret actions carried out with the use of special technical means, about which a separate protocol is drawn up (Article 266 of the Code of Criminal Procedure);
  • the possibility to check the reliability of the results of secret investigative (research) actions by an expert in any case.
The above-mentioned features determine the conduct of NSRD exclusively in secrecy, i.e. subject to compliance with a special procedure for receiving, processing and storing the received information in accordance with the requirements of the legislation regulating the protection of state secrets, including a special procedure for the classification and declassification of material carriers of information regarding the conduct of NSRD.
The ratio of covert investigative (research) actions and operational-research measures:
  • In contrast to covert investigative (research) actions, operational investigative activities are primarily regulated by the relevant Law, which defines them as a system of overt and covert search, intelligence measures
  • Operative and investigative activities are carried out before the start of the pre-trial investigation, and NS(R)D is carried out exclusively after the start of the pre-trial investigation
  • In the case of detection of signs of a crime, the operative unit is obliged to immediately send the collected materials to the relevant body of pre-trial investigation, and with regard to secret investigative (search) actions, the recording of the course and results of these actions corresponds to the general rules of recording criminal proceedings
  • The task of investigative activity is to find and record factual data about the illegal actions of individuals and groups, and in the case of NS(R)D, their actions are aimed at obtaining (collecting) evidence or checking already received evidence
The decision to conduct secret investigative (research) actions is taken by:
  • cooler
  • the head of the pre-trial investigation body
  • prosecutor
In the cases provided for by the Criminal Procedure Code of Ukraine, if the implementation of the specified actions is connected with the temporary restriction of the constitutional rights of a person, the decision on their implementation is taken by the investigating judge of the appeals court at the request of the prosecutor or at the request of the investigator who agreed with the prosecutor (the practice of refusing to satisfy the specified petitions, which was not the case before).
The investigator is obliged to inform the prosecutor about the decision to carry out certain secret investigative (search) actions and the obtained results. The prosecutor has the right to prohibit the conduct or stop the further conduct of secret investigative (search) actions. Only the prosecutor has the right to make a decision to carry out such an undercover investigative (search) action as control over the commission of a crime.
The following have the right to conduct covert investigative (search) actions:
  • an investigator who carries out a pre-trial investigation of a crime;
  • on the written instructions of the investigator, the prosecutor – authorized operative units of the National Police, security agencies, NABU, SBI, bodies that control compliance with tax and customs legislation, bodies of the State Criminal Enforcement Service of Ukraine, bodies of the State Border Guard Service of Ukraine;
  • by decision of the investigator or prosecutor, other persons may be involved in such actions (Part 6 of Article 246 of the Criminal Procedure Code – confidential information).
The prosecutor is not the subject of the NSRD, but he is the main most important figure and is responsible for everything related to the NSRD (can stop the NSRD at any time, destroy the results, checks the presence of provocation and substantiates its absence in petitions , resolutions on the conduct of the NSRD, within 24 hours from the end of the NSRD, the protocol based on the results of the NSRD with attachments is sent to him, he can recheck the results of the NSRD and draw up his protocol based on the results of the NSRD, , initiates the issue of declassification of the protocols based on the results of the NSRD, etc.) .
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