Law Journal of the National Academy of Internal Affairs

In theoretical and practical aspects, an analysis of problem issues related to the concept, subjects, objects of observing of a person, thing or place as a covert investigative (search) action in a criminal proceeding is carried out. With a premise on scientific works, the authors point out that the mixing of operative-search and criminal-procedural activities is dangerous. They note that such combination was previously ruled unacceptable because of the negative impact on the objectivity of the investigation and the validity of the findings in the criminal proceedings. They express their conviction regarding the appropriate approaches to be applied in a democratic society in order to ensure the impartiality and objectivity of the investigation, and to prevent investigatory errors related to violation of constitutional rights and freedoms. The authors definition of the observation of the person, thing or place is proposed. It is a covert investigative (search) action consisting in conducting by the specially authorized subjects of the prosecution party (investigator or operative subdivisions) in publicly accessible places of direct visual observation or visual observation using video recording, photographing, special technical means for observation. The propositions concerning the amending the national criminal procedure legislation are given in the article. The authors suggest to exclude the investigator’s right to conduct covert investigation (search) actions by the corresponding changes to the Part 6 of the Art. 246 of the Criminal Procedure Code of Ukraine. Based on the analysis of the system of national legislation the authors prove the inconsistency of the provision giving the investigator the right to involve persons with whom confidential cooperation was established, to conducting covert investigations (search) actions, and substantiatedly delaying its removal from the law.