CONCERNING THE DEFINITION OF THE CONCEPT AND CONTENT OF THE OPERATIVE AND INVESTIGATIVE ENFORCEMENT OF THE IMPLEMENTATION OF CRIMINAL PROCEDURAL GUARANTEES BY THE PROSECUTING PARTY
Authors:   Educational and Scientific Institute of Law, Interregional Academy of Personal Management, Iskenderov E. F. , Pohoretskyi M. M. ,   National Academy of the Security Service of Ukraine, Kiev, Ukraine
Published: April 2024

One of the priority areas of Ukraine’s development as a state governed by the rule of law is the protection of the legitimate interests, rights and freedoms of man and citizen. Law enforcement agencies, special services, courts are the key institutions on whose activities the protection of the rights, freedoms and legitimate interests of citizens, security and law and order depend. The level of law and order in the state and society depends on the strict observance of the current legislation by the mentioned institutions. In this context, the strict observance by investigators, operatives and the court of the norms of the legislation regulating the conduct of covert investigative actions, in particular a special investigative experiment, acquires special significance. The purpose of the article is to determine the permissible limits of behavior of an investigator or operational officer during a special investigative experiment. The study shows the significant shortcomings of current legislation governing the conduct of a special investigative experiment and the practice of its application. As a result it is offered: 1. Given that a special investigative experiment is carried out on crimes that are being prepared or committed, as well as the practical impossibility of distinguishing between conditions that should contribute to the manifestation of existing intentions of the object of the case and conditions that contribute to the formation of such intentions and their implementation active actions to create conditions conducive to the development of a crime or the formation of criminal intent. 2. Since the experiment differs from observation by active interaction with the object under study, the very concept of «special investigative experiment» and its definition are given in the Instruction on the organization of covert investigative (search) actions and use of their results in criminal proceedings. It is proposed to replace the term «special investigative experiment» with the term «special investigative control» or «passive investigative experiment» and define it as observation of a person whose actions show signs of a serious or especially serious crime in order to verify the real intentions of such person and obtain information and documents relevant to the pre-trial investigation. 3. Concerning a special investigative experiment in the understanding of the Instruction, ie regarding active actions to create conditions that contribute to the development of certain events. Such methods of operative-search or counter-intelligence activities, as shown above, are quite acceptable and, under certain conditions, are effective means of detecting and preventing crimes. However, their results cannot be used as evidence in criminal proceedings. This is not a criminal procedure, it is an operational search or counterintelligence activity. With this content of these measures, it is necessary to abandon the concept of «special investigative experiment» and return to the concept of «operational experiment», which should be applied and defined in departmental regulations. suspect on behalf of the investigator, prosecutor; implementation of a complex of measures for operative and investigative support of criminal proceedings. Operational investigative provision of criminal procedural evidence affects guarantees of human rights both in operational investigative activities and in criminal proceedings. It is proved that the successful investigation and disclosure and investigation of any crime can be carried out only under the conditions of its organizational-tactical operational-search support. It is justified that, based on the fact that in the course of operational-investigative measures during the operational-investigative implementation of criminal procedural guarantees of the prosecution, human rights are often violated, there is a need to strengthen their guarantees both in ORD and in pre-trial proceedings and, in particular, due to the strengthening of departmental and judicial control and prosecutorial supervision of operational investigative activities and pre-trial proceedings.