PROVIDING THE INVESTIGATING JUDGE OF EVIDENCE DURING GRANTING PERMISSION TO TEMPORARY ACCESS TO ITEMS AND DOCUMENTS
Authors:   Taras Shevchenko National University of Kyiv, Kyiv, Ukraine, Serhieieva D. , Tsyktich V. ,   Shevchenkivsky District Court of Kyiv
Published: May 2024

Judicial control is one of the key guarantees of legality and reasonableness of restriction of rights, freedoms and legitimate interests of a person in criminal proceedings, guaranteed by the Constitution of Ukraine. Judicial control in criminal proceedings is entrusted to the investigating judge. The effectiveness of the examination by investigating judges of petitions, complaints, allegations of procedural actions related to the restriction of rights, freedoms and legitimate interests of persons in criminal proceedings, evaluation of evidence on which they are based, as well as fairness, legality, motivation and validity of investigators relevant rulings and the legitimacy of the restriction of the rights, freedoms and legitimate interests of individuals in the course of their implementation certainly depends on the proper provision of evidence by investigating judges in criminal proceedings. The purpose of the article is to develop theoretical provisions and practical recommendations aimed at providing the investigating judge with evidence in criminal proceedings during the granting of permission for temporary access to things and documents. Problematic issues of providing the investigating judge with evidence during the granting of temporary access to things and documents have been identified: the lack of legal opportunity for the investigating judge to hear any witness, victim or to demand things or documents during the consideration of petitions; non-compliance by the parties to the criminal proceedings with the requirements of Part 2 of Art. 160 of the CPC of Ukraine during the preparation, submission and consideration of applications for temporary access to things and documents; the investigating judge does not have the authority to return petitions for temporary access to things and documents in case of their non-com-pliance with the requirements of Art. 160 of the Criminal Procedure Code of Ukraine; the absence in the CPC of Ukraine of a rule on the mandatory consideration of requests for temporary access to things and documents that contain a secret protected by law, in a closed court session; uncertainty in the CPC of Ukraine of the period during which the investigating judge must consider the request for temporary access to things and documents. It is concluded that the investigating judge, providing evidence when granting permission for temporary access to things and documents, when checking them in terms of legality and reasonableness must establish: 1) compliance of the request for temporary access to things and documents to the requirements, provided by 160 of the Criminal Procedure Code of Ukraine; 2) information contained in things and documents may be used as evidence in criminal proceedings; 3) if it is impossible to prove in other ways the circumstances which are supposed to be proved by means of these things and documents; 4) there is a real threat of alteration or destruction of things and documents that are important for criminal procedural evidence; 5) if they cannot be obtained as a result of the use of other means of obtaining evidence (demand of things and documents, conducting SRD and NSDS); 6) evidence confirming the arguments of the petition of the parties to the criminal proceedings.