GUARANTEES OF THE RIGHTS AND FREEDOMS OF THE PERSON DURING THE CONDUCT OF SECRET INVESTIGATORS (RESEARCH) ACTIONS AND OPERATIVE AND INVESTIGATIVE MEASURES IN THE PRE-JUDICIAL INVESTIGATION UNDER THE CONDITIONS OF THE STATE OF MARTIAL, STATE OF EMERGENCY OR IN THE AREA OF ANTI-TERRORIST OPERATION (ATO)
Authors:   National Academy of the Security Service of Ukraine, Kyiv, Ukraine, Pohoretskyi M.M. 
Published: April 2024

The article substantiates that the current Criminal Procedure Code of Ukraine, having implemented the institution of covert investigative (search) actions and preserving the possibility of conducting operative and investigative measures in the interests of criminal justice, has significantly expanded the means of obtaining evidence in criminal proceedings. On the basis of the analysis of the materials of the practice of domestic law enforcement agencies and courts, the practice of the European Court of Human Rights, the norms of the current criminal procedural legislation, the legislation on operative-investigative activity and regulatory-legal departments, typical violations of the legislation in the conduct of undercover investigative (investigative) actions and their use are distinguished results in evidence by pre-trial investigation bodies and courts, which lead to the violation of human rights: 1) absence or groundlessness of factual and legal grounds for conducting secret investigative (search) actions; 2) violation of the deadlines for conducting secret investigative (research) actions; 3) incompleteness and violation of legislation when drawing up protocols of secret investigative (search) actions; 4) drawing up protocols of secret investigative (search) actions by unauthorized entities; 5) conducting or authorizing the conduct of covert investigative (search) actions by unauthorized entities; 6) the absence in the materials of the criminal proceedings of the decisions of the investigating judge on granting permission to conduct secret investigative (search) actions; 7) violation of the rules of admissibility and propriety when using the results of secret investigative (search) actions as evidence in a criminal trial; 8) violation of legality in the tactics and organization of secret investigative (search) proceedings. It is proved that the guarantees of legality and observance of human rights in the conduct of covert investigative (search) actions and investigative measures and the use of their results in evidence in criminal proceedings are: a mixed form of the domestic criminal process with the expansion of adversarial principles in the pre-trial investigation; procedural (legal) form of covert investigative (detective) actions and operative-detective measures; effective departmental control, prosecutorial supervision, judicial control; independence of the court; high professionalism of defenders, prosecutors, judges and pre-trial investigation bodies; low level of corruption of justice bodies and developed public control over their activities. Under the special regime in the conditions of martial law, state of emergency or in the area of anti-terrorist operation the guarantees of personal rights during the conduct of covert investigative (search) actions and operative-search measures are preserved.