Aspects of implementing the principle of proportionality in the execution of a decision on a search permit for a personʼs home or other property

Abstract

Trust in the state is an urgent problem for the countries of Central-Eastern and Eastern Europe. Since building partnerships between the state and society is possible only if the principle of procedural fairness is observed, restriction of a personʼs right to inviolability of housing or other property in criminal proceedings is one of the most pressing problems of modern Ukrainian legislation. The purpose of the study is to highlight certain legislative and enforcement aspects of the procedure for executing a decision on permission to search a personʼs home or other property that do not comply with the requirements of the principle of proportionality and create problems for ensuring a reasonable balance of private and public interests. Empirical, general, heuristic, and special legal methods of scientific knowledge were used to achieve this goal. It is established that the insufficiently regulated by the legislator issues concerning the determination of subjects authorised to comply with the decision on permission to search a personʼs home or other property, the seizure of property, the impossibility of prompt appeal against such a court decision, create an imbalance between private and public interests in criminal proceedings. It is generalised that the restriction of rights in the execution of a decision on permission to search a personʼs home or other property cannot be conducted if the means of restriction are not commensurate with the goal that the investigator or prosecutor seeks to achieve. A procedural situation in which the principle of proportionality can be violated in favour of not only the public interest but also the private one was modelled, which allowed outlining opportunities for potential abuse by a person, the rights of which were restricted. The study analyses the specific features of implementing such a resolution under martial law and highlights the criteria compliance with which will contribute to the implementation of the principle of proportionality. Recommendations for solving the problems outlined above are proposed. The results of the study will be useful not only for improving the relevant provisions of the Criminal Procedure Code of Ukraine and investigative practice but also for the possibility of developing additional guarantees of legitimate restriction of a number of other rights guaranteed by the Constitution of Ukraine during the implementation of the decision on permission to search a personʼs home or other property in criminal proceedings

Keywords

• balance of interests
• inquirer
• pre-trial investigation
• individual rights
• law enforcement
• prosecutor
• investigator