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CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 462-474
No. 1001-05, 1960) did not directly indicated the possibility of using the
materials of operational and investigative activities as reasons and grounds
for initiating a criminal case, conducting certain investigative actions and
making other procedural decisions, as well as for obtaining factual data that
may be evidence in a criminal case, the content of a number of its norms
(Articles 65, 66, 78, 83, 94, 103, 104, 106, 177, 178, etc.) provided for such
a possibility (Serhieieva 2014, p.153). Later, the Law of Ukraine of June 21,
2001 (Law 2670-III, 2001) amended and supplemented Art. 187, 187-1 of
the Criminal Procedural Code of Ukraine of 1960 (Law No. 1001-05, 1960);
the list of investigative actions was expanded by withdrawal of information
from communication channels, seizure of correspondence, which created
the legal basis for the application of this covert method for obtaining
information about a crime in criminal proceedings. Part 2, Art. 65 of the
CPC of Ukraine was supplemented by the provision stating that the actual
data constituting the content of the evidence is established, including
protocols with relevant annexes, drawn up by the authorized bodies as a
result of operational and investigative activities.
However, this did not change the basic approach to the fact that covert
measures were carried out exclusively by operational within operational
and investigative activities; covert pre-trial investigation was aimed
primarily at ensuring the interests of the State and created a duplication,
which the Council of Europe experts considered to be as “a cumbersome,
with numerous replications, a three-stage criminal process of the Soviet
type” in the conclusion of November 2, 2011 (Council of Europe, 2011).
Besides, the institution of operational and investigative activities required
a certain reformation, transition from Soviet, secret methods of obtaining
information about the crime, as the established procedure for obtaining
information about illegal activities of individuals was increasingly
recognized by the court as inadmissible evidence (Salo, 2018).
The historical retrospective of the development of Ukrainian society
required nding a compromise between the need to eectively combat crime
and the principle of justice, ensuring the realization of constitutional rights
and freedoms of an individual and citizen, saving forces, means, funds,
etc. In fact, Ukraine faces a dilemma – on the one hand, totalitarianism is
capable to overcome the criminalization of society, but its consequences can
be compared with the consequences of crime for most people; on the other
hand democratic society is more focused on individual rights and freedoms,
but it does not help to reduce crime rate. Thus, the question of introduction
and consolidation of «secret activities» directly into the criminal process,
which would make it possible to obtain evidence in a procedural (albeit
tacit) way and use the information obtained in evidence, has come up to the
legislators. At the same time, the introduction of the institution of covert
investigations provided that it was the pre-trial investigation body that
would obtain evidence at the stage of pre-trial investigation by both overt
and covert methods and techniques (Salo, 2018).