Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.40 N° 73
Julio
Diciembre
2022
Recibido el 06/04/2022 Aceptado el 20/06/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Co mi té Edi tor
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 73 (2022), 403-416
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Procedural and organizational and
tactical features of the search
DOI: https://doi.org/10.46398/cuestpol.4073.21
Igor Gorbanov *
Olena Marchenko **
Dmytro Lisnichenko ***
Vadym Piaskovskyi ****
Liliia Matiiek *****
Abstract
In the scientic article on the basis of the analysis of the
current legislation and points of view of scientist’s procedural
and organizational and tactical features of carrying out search are
investigated, essence and maintenance of activity of participants
of the specied investigative (search) action is found out. A
methodological system is used, which includes the following levels:
philosophical, general scientic and special scientic. Emphasis
is placed on maintaining a balance between the tasks of protecting the
rights of the individual during investigative (search) actions in the home or
other property of the person and the eective ght against crime. Based on
the analysis of procedural legislation and scientic literature, the rights and
responsibilities of the suspect and other participants in the investigative
(search) action are summarized. Emphasis is placed on increasing the
importance of the investigator in providing procedural guarantees to the
person during the search, as well as on improving the tactics of the specied
investigative (search) action. Relevant proposals have been submitted to the
criminal procedure legislation of Ukraine and to the tactics of conducting
a search.
Keywords: investigation; criminal proceeding; investigative (search)
actions; evidence; search.
* Candidate of legal sciences, Associate Professor, dekan of the faculty of training specialists for pre-trial
investigation bodies, Odessa State University of Internal Aairs, Odessa, Ukraine. ORСID ID: https://
orcid.org/0000-0002-0100-1107
** Candidate of legal sciences, Associate Professor of Criminal Procedure, Odesa State University of
Internal Aairs, Odessa, Ukraine. ORСID ID: https://orcid.org/0000-0002-5258-0647
*** Candidate of legal sciences, Associate Professor at the Department of Criminal Procedure, Odesa State
University of Internal Aairs, Odessa, Ukraine. ORСID ID: https://orcid.org/0000-0001-6562-6651
**** Ph. D in Law, Associate Professor, Professor of Department of Criminalistics and Forensic Medicine of
National Academy of internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0001-7954-
1018
***** Prosecutor of the Department of Procedural Guidance in Criminal Proceedings of Investigators of
the Territorial Department of the State Bureau of Investigation of the Ternopil Regional Prosecutor's
Oce, Ternopil, Ukraine. ORСID ID: https://orcid.org/0000-0002-1277-8894
404
Igor Gorbanov, Olena Marchenko, Dmytro Lisnichenko, Vadym Piaskovskyi y Liliia Matiiek
Procedural and organizational and tactical features of the search
Características procedimentales y organizativas y
tácticas de la búsqueda
Resumen
En el artículo sobre la base del análisis de la legislación actual y
los puntos de vista de los cientícos, se investigan las características
procesales, organizativas y tácticas de la realización de la búsqueda; se
encuentra la esencia y el mantenimiento de la actividad de los participantes
de la acción (búsqueda) especicada de investigación. Se utiliza un sistema
metodológico que comprende los siguientes niveles: losóco, cientíco
general y cientíco especial. Se hace hincapié en mantener un equilibrio
entre las tareas de protección de los derechos de la persona durante las
acciones de investigación (cateo) en el hogar u otros bienes de la persona y la
lucha ecaz contra el delito. Con base en el análisis de la legislación procesal
y la literatura cientíca, se resumen los derechos y responsabilidades del
sospechoso y otros participantes en la acción de investigación (búsqueda).
En las conclsuiones del caso, se hace hincapié en aumentar la importancia
del investigador para brindar garantías procesales a la persona durante
la búsqueda, así como en mejorar las tácticas de la acción investigativa
(búsqueda) especicada. Se han presentado propuestas pertinentes a la
legislación de procedimiento penal de Ucrania sobre las tácticas de realizar
un registro.
Palabras clave: investigación; proceso penal; acciones de investigación
(cateo); prueba; registro.
Introduction
Of particular importance in criminal proceedings are investigative
(search) actions that may be carried out in the home or other property of a
person, as their conduct is always associated with restriction of constitutional
rights to inviolability of housing or other property, privacy, inviolability of
property rights. It is during their implementation that the state must create
the necessary conditions for the fullest possible realization of constitutional
rights, no one should interfere in the eld of human rights, except in cases
expressly provided by law.
One of the important procedural means of obtaining evidence is a search,
the procedure for which is determined by Art. Art. 234 236 of the Criminal
Procedure Code of Ukraine. The essence of this investigative (search) action
is to forcibly inspect housing, other property of a person, individual citizens
in order to nd and seize objects relevant to criminal proceedings, as well as
to establish the location of wanted persons and their detention.
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Vol. 40 Nº 73 (2022): 403-416
The main dierence between a search and other investigative (search)
actions is its coercive and investigative nature (Shepitko, 2007). First of
all, it is about the application of criminal procedural coercion, i.e., the
set of responsibilities of the participants in criminal proceedings and the
implementation of the tasks of the judiciary. The investigator, regardless of
the consent of the searched person, will conduct an inspection of the premises
and things belonging to him (Byshevets, 2015). The admissibility of such
measures is determined only by a reasoned court decision (Constitution
of Ukraine, 1996). The law stipulates that no one has the right to enter a
person’s home or other property for any purpose. This can happen only
with the voluntary consent of the person who owns them, or on the basis of
the decision of the investigating judge, except in urgent cases provided for
in Art. 30 of the Constitution of Ukraine (Constitution of Ukraine, 1996),
parts 1, 3 of Art. 233 of the Criminal Procedure Code of Ukraine (Criminal
Procedure Code of Ukraine, 2012).
In law enforcement practice, there are numerous examples of non-
performance or improper performance of duties by authorized and other
professional participants in criminal proceedings during this investigative
(search) action, which negatively aects the rights and legitimate interests
of other participants in criminal proceedings, achieving each criminal
proceeding. Some violations and omissions are the result of imperfect
legal regulation of the search procedure, others – incorrect (conscious or
unintentional) interpretation of legal provisions by authorized subjects of
criminal proceedings, there are many cases of choosing the wrong tactics.
These aspects of procedural and organizational and tactical nature actualize
their research.
1. Methodology of the study
The methodological basis of the article consists of general and special
methods of scientic knowledge, the use of which is determined by the
purpose, object and subject of research (Vasylevych et al., 2021). General
scientic methods are presented in the work mainly by methods of formal
and dialectical logic (analysis and synthesis, methods of induction and
deduction, ascent from concrete to abstract and from abstract to concrete,
system-structural method and others). The dialectical method provided
clarication of the essence and content of the search in the system of
investigative (search) actions, rights and responsibilities of its participants.
The formal-logical method was used in determining the basic legal
concepts and categories that make up the content of a scientic article, to
interpret the concepts of «commonwealth», «housing», «tactics», to identify
problems that arise during the search, and develop ways to solution. With
406
Igor Gorbanov, Olena Marchenko, Dmytro Lisnichenko, Vadym Piaskovskyi y Liliia Matiiek
Procedural and organizational and tactical features of the search
the help of system-structural, formal-dogmatic and hermeneutic methods
the analysis of norms of the current criminal procedural legislation and
practice of its application, interpretation of provisions of the corresponding
normative-legal acts and materials of judicial practice is carried out. The
method of theoretical and legal modeling allowed to substantiate the
proposals aimed at improving the procedural order and tactics of the search.
2. Analysis of recent research
Various aspects of the researched issues in the criminal process are
the subject of scientic works of criminologists and proceduralists of the
modern period (Klymchuk, 2021; Ilyuk, 2020; Dyakov, 2016; Budzievsky,
2013; Dekhtyar, 2014; Saltevsky, 2006). Despite the signicant amount of
research devoted to the search, many issues related to the conduct of this
investigative (search) action remain controversial or partially resolved.
These include: the procedural impossibility of conducting a search at
the initial stage of the investigation in the absence of sucient information
about the identity of the searched person; identication of things and
documents that need to be removed; tactics of simultaneous searches in
one criminal proceeding, etc.
The purpose of the article is to study the criminal procedural status
of persons involved in the search, highlight the features of tactical and
regulatory nature to ensure the constitutional rights of participants in this
investigative (investigative) action, the admissibility of their restrictions,
identify gaps in legislation that require doctrinal analysis and regulatory
settlement.
3. Results and discussion
The main purpose of the search is to identify and obtain documents and
items relevant to criminal proceedings. Thus, in accordance with Part 1 of
Art. 234 of the Criminal Procedure Code of Ukraine search is conducted
in order to identify and record information about the circumstances of a
criminal oense, nding a weapon of criminal oense or property obtained
as a result of its commission, as well as establishing the location of wanted
persons» (Criminal Procedure Code of Ukraine, 2012).
We share the view of some scholars on the need to improve the legal
regulation of the search by expanding the purpose of its search – nding
other items and documents relevant to criminal proceedings or securing a
civil lawsuit (Shevchishen, 2018). After all, this is the goal of the investigator
in many cases.
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Among the ocials authorized to conduct investigative (search)
actions in the home, the exclusive role belongs to the investigator. He is a
representative of the state and a person who is endowed with state powers,
is responsible for the legality and timeliness of the investigative (search)
action. During the pre-trial investigation, all investigative (search) actions
are performed by the investigator in charge of the relevant materials of the
pre-trial investigation.
In particular, in Art. 236 of the Criminal Procedure Code of Ukraine refers
to the exclusive right of the investigator and prosecutor to execute a decision
on a permit to search the home or other property of a person (Komarnytska,
2016). The Supreme Court in its decision in case № 466/896/17 of 29
January 2019 noted that the Criminal Procedure Code clearly denes the
range of persons entitled to be present during the search, and also clearly
indicates that the search is authorized to be conducted exclusively by an
investigator or prosecutor who has been granted such a right by a court
decision.
If the search is carried out by persons other than the investigator or the
prosecutor, these actions should be considered a signicant violation of the
conditions of the search, the results of such a search, in accordance with the
requirements of Art. Art. 86, 87 of the Criminal Procedure Code of Ukraine,
cannot be used during the adoption of procedural decisions, and the court
cannot refer to them as evidence during the adoption of a conviction (case
№ 466/896/17 of January 29, 2019).
In practice, there are often cases in which the decision of the investigating
judge on the permission to search the home or other property of the person
indicates the name of the investigator or prosecutor to conduct it. However,
the investigator or prosecutor is later joined by a group of self-proclaimed
police operatives, joined by a group of prosecutors, masked special forces
and machine guns not mentioned in the ruling. What can a person do in
such circumstances? Next to nothing. While the investigator reads the
decision to the person or gives it to him to get acquainted with himself, the
search has already begun.
Often, the person who gives the decision for review is not the investigator
specied in the decision, but is only the investigator in the established
investigative task force. In this case, in our opinion, the person has the
right to request a decision to establish an investigative task force and check
whether the decision states the name of the investigator. At the same time,
people who are not specied in the resolution are already in the person’s
home or other property. Thus, in practice, the requirements of Part 1 of Art.
236 of the Criminal Procedure Code of Ukraine are often not enforced.
There are cases when an investigator arrives for the purpose of a search,
whose name is not specied in the decision of the investigating judge,
408 Igor Gorbanov, Olena Marchenko, Dmytro Lisnichenko, Vadym Piaskovskyi y Liliia Matiiek
Procedural and organizational and tactical features of the search
and presents a decision to establish an investigative task force in which
he appears, but this decision does not contain any initial data, ie may be
printed in an unknown place, and the decision itself is forged. Given the
current criminogenic situation in the country, any unknown persons may
enter the apartment, who may later kill the owner or cause bodily harm or
illegally deprive him of his property.
One of the main participants in the criminal proceedings, who may
be invited to conduct an investigative (search) action in the home, is the
suspect. In Part 1 of Art. 42 of the Criminal Procedure Code of Ukraine
denes a list of grounds for recognizing a person as a suspect, which is
exhaustive.
Thus, the suspect has the right to conduct the investigation of the
investigating judge’s decision on permission to conduct it, to check
the proper certication of the decision, the validity of the decision, the
correctness of the address, owner (owner) of housing or other property and
receive a copy; to check the IDs of law enforcement ocers who arrived to
conduct an investigative (search) action; require information about other
persons involved in its implementation.
Receive legal assistance from a lawyer; to ensure the safety of their lives
and health, respect and dignity; demand the replacement of witnesses in
case of their interest in the results of criminal proceedings; to use the native
language, to receive copies of procedural documents in the native or other
language of the person, and if necessary to use the services of an interpreter;
voluntarily give out things that are wanted; refuse to answer questions; give
explanations or refuse to give them at any time; ask questions, express their
suggestions, comments and objections to the search procedure, which are
recorded in the minutes; unimpededly record the conduct of investigative
(search) action with the help of video (in compliance with the law).
To appeal against decisions, actions or inaction of the investigator,
prosecutor; to declare petitions and objections; to get acquainted with the
protocol of the search, to demand inclusion in the protocol of all remarks
concerning violation of norms of the current legislation during its carrying
out; receive a second copy of the search report together with a description
of the seized documents and temporarily seized items attached to it; to
demand measures to prevent the announcement of the circumstances of
his private life revealed during the search; to ensure the safety of property
in housing or other property, and the inability of third parties to access it.
During the search of the suspect’s home, his responsibilities to ensure the
procedural order of the relevant action and the achievement of its purpose
by the investigator and prosecutor are also specic. The analysis of the
legislation allowed to single out the following responsibilities of the suspect
during the search of his home: if there is a request of the investigator, the
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CUESTIONES POLÍTICAS
Vol. 40 Nº 73 (2022): 403-416
prosecutor - must be present during the investigative (search) action; in
the case of a decision of the investigating judge on a permit to search a
dwelling or other property - to comply with the legal requirements of the
investigator, prosecutor regarding the possibility of unimpeded entry into
the dwelling or other property; not to interfere with search operations.
If there is a ban, do not communicate with other persons; to leave the
place of the search until its completion and to take any actions that interfere
with its conduct, without the permission of the investigator or prosecutor;
be subjected to a personal search; not to disclose without the permission
of the investigator, prosecutor information that became known to him in
connection with participation in the investigative (search) action, as well
as information that constitutes a secret protected by law; not otherwise
interfere with the search.
Taking into account the composition of persons who may be invited to
participate in the search, the legislator in the current Criminal Procedure
Code of Ukraine pointed to the possibility of involving a lawyer to participate
in this action. This possibility meets the requirements of international law,
which provide for the right of any person involved in criminal proceedings
to seek legal assistance.
The defense counsel’s request for his participation in the investigative
(search) action must be mandatory for the investigator. A person whose
home is searched, regardless of whether he or she is in the procedural status
of a suspect or a witness, requires the right to protection. The absence of a
report on an investigative (search) action should be considered a signicant
violation of the right to defense (Milova, 1998). If previously only a suspect
could use the right to legal aid during a search at the pre-trial investigation
stage, now other persons interested in this investigative (search) action,
including the homeowner, can count on it. The investigator, the prosecutor
has no right to prohibit the participants in the search to use the legal
assistance of a lawyer or representative. Thus, the investigator, prosecutor
is obliged to allow such a lawyer or representative to be searched at any
stage of its conduct (Part 3 of Article 236 of the Criminal Procedure Code of
Ukraine) (Criminal Procedure Code of Ukraine).
An investigator or prosecutor may invite a victim whose procedural
status is dened in Art. 55 of the Criminal Procedure Code of Ukraine.
The rights and obligations of the victim arise from the moment of ling
a statement about the commission of a criminal oense against him or a
statement about his involvement in the proceedings as a victim.
Usually, the victim’s participation in the search is carried out on his
initiative, namely on the basis of a request to be involved in this action.
The expediency and possibility of the victim’s participation in the search
shall be decided in advance by the investigator or prosecutor authorized to
conduct it.
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Igor Gorbanov, Olena Marchenko, Dmytro Lisnichenko, Vadym Piaskovskyi y Liliia Matiiek
Procedural and organizational and tactical features of the search
During the investigative (search) action in a person’s home, situations
may arise in which it is necessary to involve a person whose rights and
legitimate interests may be limited or violated during these actions (Part
3 of Article 223 of the Criminal Procedure Code of Ukraine). The legislator
has identied a new participant in criminal proceedings, namely another
person whose rights or legitimate interests are limited during the pre-trial
investigation, ie a person against whom (in particular, his property) the
procedural actions specied in the Criminal Procedure Code of Ukraine
(paragraph 161 part 1 Article 3 of the Criminal Procedure Code of Ukraine).
Nevertheless, the range of persons who fall under the criterion of
«another person whose rights or legitimate interests are restricted during
the pre-trial investigation» is not specically dened. We believe that such
persons during the investigative (search) action in the home may include:
the owner of the home or other property in which the investigative (search)
action is carried out; persons subject to pre-trial investigation but not
informed of the suspicion; extras during the identication; a person who is
in the home or other property at the time of the search, but is not its owner.
In our opinion, the legislator’s omission is the lack of a clear denition of
measures to be taken by the investigator to ensure the presence of relevant
persons. In accordance with the provisions of criminal procedure law, it
was concluded that such measures include: prohibition of investigators to
leave the place of search for the period of this procedural action if they were
already in housing or other property at the time of arrival of the investigator;
summoning investigators of these persons to participate in the investigative
(search) action.
At the same time, it is inadmissible to forcibly escort these persons
to the place of investigative (search) action or impose a ne on them in
case of non-appearance, as these measures to ensure criminal proceedings
apply only to the suspect, accused or witness (Part 1 of Article 139, Part 3 of
Article 140 of the Criminal Procedure Code of Ukraine).
Having identied the procedural features of initiating and conducting
a search in criminal proceedings, we turn to its organizational and tactical
aspects.
The necessary stage of the search is preparatory. This stage begins with
the collection, verication and evaluation of evidence that indicates that
items or items relevant to criminal proceedings are found in a particular place
or person. One of the necessary conditions is the imaginary construction
of a dynamic model of the planned investigative (search) action. This will
help to predict the situation of future action, the degree of participation
(movement) of objects and participants, their own actions, as well as their
behavior and other participants (Budzievsky, 2013).
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In accordance with Part 3 of Art. 234 of the Criminal Procedure Code
of Ukraine, the investigator in consultation with the prosecutor or the
prosecutor applies to the investigating judge with a request to conduct
a search and carries out a number of organizational measures (Criminal
Procedure Code of Ukraine, 2012). There are cases when the preparatory
stage of the search begins with the results of other investigative (search)
actions, including covert ones.
At the initial stage of the investigation, there may be cases when there is
a lack of sucient materials necessary to substantiate the grounds for the
search. Therefore, when applying to the investigating judge with a request
to conduct a search, the investigator and the prosecutor must be sure that
they will be able to justify the expediency of the search.
We consider it appropriate to increase the list of grounds for intrusion
into housing or other property of a person. To this end, Part 3 of Article 233
of the Criminal Procedure Code of Ukraine should be supplemented with
such grounds as «prevention of loss and destruction of material evidence
and traces of crime».
In view of our proposal, this article will be edited as follows «An
investigator, coroner, prosecutor has the right to enter the dwelling or
other property of a person until the decision of the investigating judge is
made only in urgent cases related to saving lives and property or directly
prosecuting persons suspected of committing a criminal oense, preventing
loss and destruction. material evidence and traces of the crime… ».
Also the necessary condition for a quality search is a thorough preparation
of the investigator to conduct it, which includes: a) preliminary collection
and analysis of the necessary information, including that characterizing the
person being searched; profession and occupation; skills, habits; lifestyle;
usual routine in the family, family composition, relationships in the family
and with neighbors, the presence of the cottage, garage, vehicle and their
location, connections and acquaintances, etc.); place of search (address of
the building, its planning; size and condition; possibility of covert approach;
nature of the area); wanted objects and documents (the most typical places
to hide them, possible methods of camouage, etc.); b) development
of a tactical plan (choice of search time and method of penetration into
the premises to be searched; selection of search participants, division of
responsibilities and their instruction; security measures; protection of the
search site; preparation of vehicles, etc.); c) providing the investigative and
operative group that will conduct the search with the necessary technical
means (investigator’s suitcase, ultraviolet illuminators, means of photo and
video shooting, means of packing the seized items, etc.).
The general provisions on search tactics set out in the forensic literature
make it possible to formulate certain recommendations of a preparatory
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Igor Gorbanov, Olena Marchenko, Dmytro Lisnichenko, Vadym Piaskovskyi y Liliia Matiiek
Procedural and organizational and tactical features of the search
nature in criminal proceedings: detailed organization of searches of several
objects in case of sucient grounds to believe that the crime was committed
by members of an organized criminal group; careful division of powers
among the members of the investigative task force, clarication of their
rights and responsibilities; application of technical means of xation.
In our opinion, the institute of those who are a relic of the past, because
now the use of technical means is able to completely replace these people
in the relevant investigative (search) action. We consider it appropriate to
exclude the obligation of witnesses when searching or inspecting a person’s
home or other property. To this end, paragraph 2 of Part 7 of Article 223
of the Criminal Procedure Code of Ukraine should be deleted, namely:
«Search or inspection of housing or other property of a person actions».
The search should be sudden (the oender can destroy things and traces)
and carried out at the appropriate stage of the investigation depending on
the current investigative situation (Denisyuk and Shepytko, 1999), and its
results can be used during further interrogation of suspects and others.
investigative (search) actions. The suddenness of the search is one of the
most important organizational and tactical principles. The search should
always be unexpected both for the searched person and for other persons
interested in the results of the investigation in the case (Saltevsky, 2006).
Before choosing the organizational and tactical methods of the search,
the investigator must solve a number of tasks, namely: to determine the
objects to be searched (search objects); items and documents to be searched
(search items); the sequence and specic timing of each investigative
(search) action. These tasks are solved on the basis of analysis of materials
of criminal proceedings. In the process of investigating criminal oenses,
the organizational and tactical features of the search of the suspect’s home
are important.
The objects of search are most often: stolen, misappropriated (things
and documents of the victim, vehicle or its parts); tools and means used
in committing a criminal oense; records and correspondence, which may
indicate the names of the participants and their possible location; clothes
and shoes that could be on the face during the commission of a criminal
oense; means of camouage of the person, as well as the stolen (for
example, fake license plates when stealing a vehicle).
It is impossible to conduct a search without the factual grounds specied
in the criminal procedure legislation. However, some scientists, for tactical
reasons, suggest conducting a search of the premises when the investigator
knows in advance that it does not contain objects that are important for
the investigation of a criminal oense. The investigator’s goal is to «lose
vigilance» of the searched persons, to hide the relevant search objects in
advance. In the future, after waiting for some time, the searched persons,
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being in a deception, are quite free to handle objects of interest to the
investigation. It is at this point that the investigator is recommended to
conduct a re-search (Ivanov, 2004). We strongly disagree with this position.
The expected eect can be achieved in another way. During the
interrogation of a person who has information about the location of the
searched objects, the investigator may say that he is aware of the futility of
the search, as interesting to the investigation weapons, objects, documents
and valuables that may be relevant to the criminal case.
The degree of persuasiveness of this argument depends on the level
of creative abilities of the investigator. However, a prerequisite for such
actions of the investigator is in fact not to conduct a search for some time.
It should be noted that in the situation of conducting a search with
the participation of defense counsel there is a problem with the quality of
recording the video of the progress and results of the investigative (search)
action. O. Shkilnyuk and V. Shmarovoz rightly point out that sometimes
a large number of documents are seized during searches, but it is not
standardized whether their content and details should be recorded in a
video recording.
It is allowed to use as video recording devices to record the search of
mobile phones or video recorders, which are the personal property of law
enforcement ocers. Because the memory cards of such video recorders
usually also store the personal information of the phone owner, this means
that only a copy of the search record is used.
This state of aairs contradicts Part 3 of Art. 107 of the Criminal
Procedure Code, because in the materials of criminal proceedings must be
kept original copies of the technical record of the search (Shkilnyuk and
Shmarovoz, 2018).
According to the analysis of criminal proceedings, video recordings
of searches in criminal proceedings are often carried out by operatives
who are unable to ensure their qualied conduct and proper use of video
equipment. Video recording of the whole process of investigative (search)
action is not always provided. The most common reason is the lack of
additional batteries and their qualied maintenance during long searches
(Shkilnyuk and Shmarovoz, 2018).
It should be emphasized that the right to unimpeded recording of the
search by video belongs to the defense, but it is clear that the subject of this
procedural right should be a representative of the person in whose home or
other possession is investigative (search) action (Vegera-Izhevskaya, 2018).
In our opinion, the involvement in the search of not only the suspect’s
lawyer, but also a representative of a natural or legal person, for example,
when it comes to searches in complex or multi-storey buildings, will not
414
Igor Gorbanov, Olena Marchenko, Dmytro Lisnichenko, Vadym Piaskovskyi y Liliia Matiiek
Procedural and organizational and tactical features of the search
only control the actions of authorized participants in criminal proceedings.
persons, but also contribute to the eectiveness of this investigative (search)
action. The legitimacy of such actions will be facilitated by the denition in
the criminal procedure legislation of the relevant rights of a natural or legal
person in the case of an investigative (search) action in the premises and in
the territory belonging to it.
Conclusions
Thus, what is stated in the article allows us to draw certain conclusions
of the procedural and organizational and tactical nature of the search.
The procedural procedure for submitting, considering and resolving
motions to conduct certain investigative (search) actions, as well as the
actual procedure for conducting them, has features related to the restriction
of the rights and legitimate interests of the person. Analysis of the provisions
of the Criminal Procedure Code of Ukraine, which regulate the procedural
procedure of search, shows that they have a vague terminological denition,
cause shortcomings in law enforcement in the activities of investigators,
limit the procedural capabilities of participants in criminal proceeding.
In our opinion, the search procedure in criminal proceedings needs to
be improved. In this regard, we have proposed and justied amendments
to the current criminal procedure legislation. In particular, we consider it
appropriate to increase the list of grounds for intrusion into the home or
other property of a person, as well as to exclude the obligation of witnesses
when searching or inspecting the home or other property of a person.
During the search, the priority is to respect the constitutional rights of
the individual, the inalienable conditions of legality, validity, expediency
and eectiveness of their conduct. The prosecution’s adherence to these
conditions determines the admissibility of the evidence collected, the
assertion and enforcement of procedural rights of the defense, other
participants in the investigative (search) action present during its conduct,
prevention of disproportionate restrictions on the constitutional rights of
relevant persons, and proper implementation of criminal proceedings.
The use by authorized subjects of the criminal process of relevant
systematic and generalized knowledge during the initiation and conduct
of a search, making legislative changes to the current criminal procedure
legislation will help achieve the purpose of the search and the objectives of
specic criminal proceedings.
415
CUESTIONES POLÍTICAS
Vol. 40 Nº 73 (2022): 403-416
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Esta revista fue editada en formato digital y publicada
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