CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS: A BALANCE BETWEEN COERCION AND CONSTITUTIONAL RIGHTS

Abstract

The article examines the issues of the essence of investigative (search) actions carried out in criminal proceedings, the admissibility of coercive measures against persons who have committed illegal acts, as well as the observance and protection of the constitutional rights of persons involved in the relevant procedural actions. The author focuses on the procedural regulation of investigative (search) actions, the grounds for their conduct, and the procedural order of conduct. It is concluded that virtually every investigative (search) action is ensured by measures of state coercion, and therefore the greater the restrictions on the constitutional rights of participants to criminal proceedings, the higher should be the level of their validity. The author highlights the specifics and peculiarities of such investigative (search) action as a search, as well as its difference from other similar procedural measures. The author analyses the issues of personal search of a person and the specifics of coercion. The author focuses on the issue of search in urgent cases without prior permission of the investigating judge. The author considers certain aspects related to the regulation of such investigative (search) actions as inspection, interrogation, investigative experiment, identification in a person’s house or other property, and emphasises the problems associated with the lack of clear rules in the CPC of Ukraine on conducting these actions in a house, which leads to certain difficulties in their implementation in practice. The author emphasises the inadmissibility of both complicating the procedure for conducting investigative (search) actions and weakening the guarantees of the rights and legitimate interests of participants to the investigative action. The author highlights negative practices in conducting investigative (search) actions which may pose a potential threat to the constitutional rights of persons who become participants in such actions. With a purpose of building logical and clear actions of the investigator and prosecutor in case of necessity to conduct investigative (detective) actions, the author provides relevant proposals to the criminal procedure legislation of Ukraine.