Review

The tasks of criminal proceedings cannot be carried out without the prosecutor's effective functions of prosecution. During the pre-trial investigation, these functions are conducted in the form of procedural guidance. In this, the part 2 of the article 36 of the Code of Criminal Procedure of Ukraine empowers the prosecutor with a wide range of powers, including ones relating to conducting CISA. The analysis of the judicial practice shows that the evidence obtained as a result of CISA is often considered as inadmissible as a result of the procedural order of its presentation violation. This indicates insufficient attention of the prosecutors (procedural heads) to the issue of adherence to the procedure established by the Code of Criminal Procedure of Ukraine for CISA.

The goal of the article – to define a list of specific prosecutor’s actions for preventing breaching the commitment procedure of CISA which can be further considered as a ground for admission of obtained evidence as inadmissible.

It is defined that the prosecutor, being the procedural supervisor of pre-trial investigation, have to provide the admissibility of evidence collected by the prosecution during pre-trial investigation, including CISA. The means to achieve it are: study and analysis of the documents necessary for comprehensive examination of the subject of prosecutorial supervision (petition for permission to conduct CISA, decisions of the investigating judge, decisions and orders of the investigator, protocols and annexes thereto); personal participation in CISA; providing guidance on conducting, suspending, prohibiting the implementation of CISA by investigative and operational units; determining the range of operational units to be involved in CISA, the need for investigator involvement.

The prosecutor have to prevent typical violations of CISA procedural order, the following shall be reckoned to such: failure to comply with the essential conditions of the investigative judge's decision regarding the time (duration) of CISA and range of its objects ‒ with their extension; the conduct of CISA with a breach of investigative jurisdiction and (or) by an entity not unauthorized to do it; completing and sending the results of CISA to the prosecutor by a person not authorized to do it and (or) in violation of the established requirements; holding CISA before the decision of the investigating judge is issued, without sufficient grounds; conducting CISA provided in the articles 260‒264 (in the part of actions carried out on the basis of the order of the investigating judge), the articles 267, 269‒272, 274 of the Criminal Procedure Code of Ukraine, in criminal proceedings for crimes of moderate or non-serious crimes, etc.

Keywords: admissibility of evidence, prosecution, prosecutor, covert investigative (search) actions, commitment procedure.