Interaction of investigator, prosecutor and investigating judge in deciding the question of conduction searches with Code of Criminal Procedure of Ukraine

Abstract

Procedural relationship that discussed in this article arise between the investigator, the prosecutor and the investigating judge in the preparation and decision an application for a search in the home or other possession of the person as the investigative action. Controversial and not fully defined in the Criminal Procedure Code of Ukraine questions, when the prosecutor refuses to agree to the investigator requests for the production of their planned search or a search is made in urgent cases reviewed here, but prosecutor believes that the grounds for its holding are missing. Attention focuses in missing absence of real opportunities for the investigator to appeal against actions or decisions of the prosecutor and the investigating judge. The legislation of Ukraine on appeal investigator actions prosecutor to a higher prosecutor investigated in the context of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 of November 1950 and the decisions of the European Court of Human Rights. The procedural rules were analysed, were the possibility of penetration in the home based on the determination of the investigating judge only once was fixed. Unsuccessful revision of rules of procedural law based on situations, when a search can not be completed within one day and an investigator in its production is forced to take a break, and the next day is repeatedly performed penetration into the room was showed on the examples from the practice of investigation of criminal offenses. It payed attention on inadmissibility of engaging in search warrant special forces and law enforcement agencies argued that the seizure of power facilities should be viewed as a gross violation of the law and legal rights of citizens. In the presence of such facts all givens, that were obtained during the search, should be recognized invalid, court can’t rely on them, in proceedings before the court. According to the results of the study, propositions to change certain articles of the Criminal Procedural Code of Ukraine were formulated. In particular, it was proposed legislation to strengthen the procedural autonomy of the investigator and give him the opportunity to petition the investigating judge to conduct a search in the house or other possession of the person in the event of a prosecutor to agree such a request; to change the content of the procedural rules with regard to penetration once the dwelling or other property of a person with a view to determining the investigating judge extended only for one period of production of the search.