Вісник Харківського національного університету внутрішніх справ (Dec 2023)
Legal and tactical basis for conducting a search of a person’s residence or other property: identifying the ways to resolve the controversial issues
Abstract
A search of a person's residence or other property is one of the most typical and, at the same time, the most complex investigative ( search) actions. Its purpose is to identify, record factual data on the event of a criminal offence or related event, find and seize the instruments of a criminal offence, property acquired by illegal means or items excluded from use by law, as well as to establish the location of the wanted persons. This investigative (search) action is associated with the restriction of the rights of the person in whose residence or premises it is conducted, who may not even be involved in the commission of a criminal offence. For this reason, it is important to ensure that the search is conducted in compliance with a number of legal and organisational principles, as well as using a set of effective tactical techniques. The legal basis for conducting a search is determined by the current criminal procedure legislation of Ukraine and the provisions of international legal treaties ratified by the Verkhovna Rada of Ukraine. With regard to the grounds for conducting a search, the actual grounds are the need to achieve the purpose set out in part 1 of Article 236 of the Criminal Procedure Code of Ukraine, and the legal grounds are the existence of a reasoned court decision in the form of a ruling by an investigating judge. At the same time, a large number of legal and normative regulations are subject to contradictions, which is why it is important to eliminate ambiguity in them, as well as to introduce into the practice of conducting searches proven tactical methods of applying this investigative (search) action. Today, it is important to resolve the issues of unification of the provisions of the criminal procedural legislation of Ukraine in terms of regulating the procedure for technical recording of a search, determining the scope of recording of actions and circumstances of the search, as well as determining the powers of the defence counsel to involve a specialist in the search, etc. Given the importance and controversy of this issue, it requires further in-depth and comprehensive research.
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