USE OF THE RESULTS OF COVERT INVESTIGATIVE (DETECTIVE) ACTIONS FOR OTHER PURPOSES - THE LIMITS OF WHAT IS PERMISSIBLE

Abstract

The article examines some aspects of the mechanism introduced in the criminal procedure legislation for using the results of covert investigative (detective) actions in another criminal proceedings or for another purpose. The author emphasises that covert investigative (detective) actions in criminal procedure legislation are considered to be exceptional and may be carried out only in cases where it is impossible to obtain information in any other way, subject to certain conditions and guarantees provided for by current legislation. Based on the case law of the ECHR and national courts, the author examines the general principles, reasons and conditions for ensuring the guarantees provided for, aimed at achieving a balance between the interests of the State and human rights and freedoms. In particular, the author points out that the right of the prosecution to use the results of covert investigative (detective) actions containing information about a criminal offence which is not being investigated in the proceedings in which such covert investigative (detective) actions were conducted is provided for in Article 257 of the CPC of Ukraine and is limited by the introduced judicial control. The general rule set out in this article provides that any information not related to a criminal offence that is the subject of a pre-trial investigation in criminal proceedings in which covert investigative (detective) actions were conducted, as a result of which it was obtained, requires a prior request from the prosecutor to the investigating judge. The investigating judge is obliged, among other things, to investigate the legality of obtaining such information, the sufficiency of the grounds indicating signs of another criminal offence. It is established that this gap in the legislation is a prerequisite for abuse by investigators and prosecutors when obtaining permits for covert investigative (detective) actions, as well as for their direct conduct and use of the results as evidence in criminal proceedings. In addition, the author proposes to introduce a mechanism for controlling the storage, use and destruction of information obtained during covert actions, if it is not to be used in the interests of criminal proceedings, and to develop and implement clear criteria for the possibility of using information obtained as a result of covert actions.