ON THE LEGALITY OF A SEARCH AND / OR INSPECTION OF HOUSING OR OTHER PROPERTY OF A PERSON ON ORDER OF AN INVESTIGATOR, A DETECTIVE, A PROSECUTOR

Abstract

The search and / or inspection of a person’s home or other property on behalf of an investigator, a detective, or a prosecutor is often challenged by defense attorneys, as in the process of these investigative (search) actions there are many cases of non-compliance with criminal procedural requirements. At the same time, even when these violations are in fact absent, the grounds for appeal are not exhausted, because in the CPC of Ukraine the formation of certain articles is such that a priori provides for different interpretations. Thus, today there is no agreed position among theorists, nor the unity of judicial practice concerning the search and / or inspection of housing or other property of a person on behalf of the investigator, a detective, a prosecutor. According to mentioned before situation, this publication attempts to refute the thesis that the search and / or inspection of housing or other property of a person is unacceptable on behalf of an investigator, a detective, a prosecutor. The author’s arguments concerning such a position that such investigative (search) actions as search and inspection of housing or other property of a person in criminal proceedings should be carried out not only by an investigator or a prosecutor but should be carried out within the meaning of Articles 40, 41, 234, 236, 237 of the CPC of Ukraine. It is proved that based on the existing case law and to providing its unity, it is urgent and necessary for the Supreme Court to develop in its own legal positions such approaches that would follow not from the interpretation of the content of the CPC rules provided by Chapter 20, but from legal expediency as well as the tactical need to entrust in certain cases the conduct of investigative (search) actions to employees of operating units, including the implementation of a search and inspection of housing or other property of a person. Own approaches to the acceptability of the position are formulated in the article, when the investigating judge, understanding the depth of the above issues, acting within the current CPC of Ukraine, performing criminal proceedings and exercising judicial control over the rights, freedoms and interests of persons in criminal proceedings (paragraph 18 Article 3 of CPC of Ukraine), in its own decision to conduct a search of housing or other property of a person or related investigative (search) activities indicates that it gives permission to conduct a search along with an investigator, a detective, a prosecutor and operatives responsible or other authorized person on behalf.