Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities
The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secr...
Ausführliche Beschreibung
Gespeichert in:
| Autor*in: |
Eugene Hladii [verfasserIn] |
|---|
| Format: |
E-Artikel |
|---|---|
| Sprache: |
Englisch |
| Erschienen: |
2021 |
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| Schlagwörter: |
control over the commission of a crime |
|---|
| Übergeordnetes Werk: |
In: Юридичний часопис Національної академії внутрішніх справ - National Academy of Internal Affairs, 2023, 11(2021), 2, Seite 38-44 |
|---|---|
| Übergeordnetes Werk: |
volume:11 ; year:2021 ; number:2 ; pages:38-44 |
| Links: |
Link aufrufen |
|---|
| Katalog-ID: |
DOAJ099360861 |
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| 520 | |a The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven | ||
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(DE-627)DOAJ099360861 (DE-599)DOAJ58432ee6695f4cfaabbc539941ea4af8 DE-627 ger DE-627 rakwb eng K201-487 K5000-5582 K623-968 K7000-7720 KZ2-6785 Eugene Hladii verfasserin aut Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities 2021 Text txt rdacontent Computermedien c rdamedia Online-Ressource cr rdacarrier The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven control over the commission of a crime special investigative experiment provocation of a crime admissibility of evidence proof Jurisprudence. Philosophy and theory of law Public law K3150 Criminal law and procedure Civil law Private international law. Conflict of laws Law of Europe KJ-KKZ Law of nations In Юридичний часопис Національної академії внутрішніх справ National Academy of Internal Affairs, 2023 11(2021), 2, Seite 38-44 (DE-627)DOAJ090667484 25194313 nnns volume:11 year:2021 number:2 pages:38-44 https://doi.org/10.56215/04212202.38 kostenfrei https://doaj.org/article/58432ee6695f4cfaabbc539941ea4af8 kostenfrei https://lawjournal.com.ua/en/article/download/viznannya-nedopustimimi-dokaziv-otrimanikh-u-khodi-kontrolyu-za-vchinennyam-zlochinu-u-kriminalnikh-provadzhennyakh-shchodo-zlochiniv-u-sferi-sluzhbovoyi-diyalnosti kostenfrei https://doaj.org/toc/2519-4216 Journal toc kostenfrei https://doaj.org/toc/2519-4313 Journal toc kostenfrei GBV_USEFLAG_A SYSFLAG_A GBV_DOAJ GBV_ILN_62 AR 11 2021 2 38-44 |
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(DE-627)DOAJ099360861 (DE-599)DOAJ58432ee6695f4cfaabbc539941ea4af8 DE-627 ger DE-627 rakwb eng K201-487 K5000-5582 K623-968 K7000-7720 KZ2-6785 Eugene Hladii verfasserin aut Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities 2021 Text txt rdacontent Computermedien c rdamedia Online-Ressource cr rdacarrier The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven control over the commission of a crime special investigative experiment provocation of a crime admissibility of evidence proof Jurisprudence. Philosophy and theory of law Public law K3150 Criminal law and procedure Civil law Private international law. Conflict of laws Law of Europe KJ-KKZ Law of nations In Юридичний часопис Національної академії внутрішніх справ National Academy of Internal Affairs, 2023 11(2021), 2, Seite 38-44 (DE-627)DOAJ090667484 25194313 nnns volume:11 year:2021 number:2 pages:38-44 https://doi.org/10.56215/04212202.38 kostenfrei https://doaj.org/article/58432ee6695f4cfaabbc539941ea4af8 kostenfrei https://lawjournal.com.ua/en/article/download/viznannya-nedopustimimi-dokaziv-otrimanikh-u-khodi-kontrolyu-za-vchinennyam-zlochinu-u-kriminalnikh-provadzhennyakh-shchodo-zlochiniv-u-sferi-sluzhbovoyi-diyalnosti kostenfrei https://doaj.org/toc/2519-4216 Journal toc kostenfrei https://doaj.org/toc/2519-4313 Journal toc kostenfrei GBV_USEFLAG_A SYSFLAG_A GBV_DOAJ GBV_ILN_62 AR 11 2021 2 38-44 |
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(DE-627)DOAJ099360861 (DE-599)DOAJ58432ee6695f4cfaabbc539941ea4af8 DE-627 ger DE-627 rakwb eng K201-487 K5000-5582 K623-968 K7000-7720 KZ2-6785 Eugene Hladii verfasserin aut Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities 2021 Text txt rdacontent Computermedien c rdamedia Online-Ressource cr rdacarrier The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven control over the commission of a crime special investigative experiment provocation of a crime admissibility of evidence proof Jurisprudence. Philosophy and theory of law Public law K3150 Criminal law and procedure Civil law Private international law. Conflict of laws Law of Europe KJ-KKZ Law of nations In Юридичний часопис Національної академії внутрішніх справ National Academy of Internal Affairs, 2023 11(2021), 2, Seite 38-44 (DE-627)DOAJ090667484 25194313 nnns volume:11 year:2021 number:2 pages:38-44 https://doi.org/10.56215/04212202.38 kostenfrei https://doaj.org/article/58432ee6695f4cfaabbc539941ea4af8 kostenfrei https://lawjournal.com.ua/en/article/download/viznannya-nedopustimimi-dokaziv-otrimanikh-u-khodi-kontrolyu-za-vchinennyam-zlochinu-u-kriminalnikh-provadzhennyakh-shchodo-zlochiniv-u-sferi-sluzhbovoyi-diyalnosti kostenfrei https://doaj.org/toc/2519-4216 Journal toc kostenfrei https://doaj.org/toc/2519-4313 Journal toc kostenfrei GBV_USEFLAG_A SYSFLAG_A GBV_DOAJ GBV_ILN_62 AR 11 2021 2 38-44 |
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(DE-627)DOAJ099360861 (DE-599)DOAJ58432ee6695f4cfaabbc539941ea4af8 DE-627 ger DE-627 rakwb eng K201-487 K5000-5582 K623-968 K7000-7720 KZ2-6785 Eugene Hladii verfasserin aut Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities 2021 Text txt rdacontent Computermedien c rdamedia Online-Ressource cr rdacarrier The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven control over the commission of a crime special investigative experiment provocation of a crime admissibility of evidence proof Jurisprudence. Philosophy and theory of law Public law K3150 Criminal law and procedure Civil law Private international law. Conflict of laws Law of Europe KJ-KKZ Law of nations In Юридичний часопис Національної академії внутрішніх справ National Academy of Internal Affairs, 2023 11(2021), 2, Seite 38-44 (DE-627)DOAJ090667484 25194313 nnns volume:11 year:2021 number:2 pages:38-44 https://doi.org/10.56215/04212202.38 kostenfrei https://doaj.org/article/58432ee6695f4cfaabbc539941ea4af8 kostenfrei https://lawjournal.com.ua/en/article/download/viznannya-nedopustimimi-dokaziv-otrimanikh-u-khodi-kontrolyu-za-vchinennyam-zlochinu-u-kriminalnikh-provadzhennyakh-shchodo-zlochiniv-u-sferi-sluzhbovoyi-diyalnosti kostenfrei https://doaj.org/toc/2519-4216 Journal toc kostenfrei https://doaj.org/toc/2519-4313 Journal toc kostenfrei GBV_USEFLAG_A SYSFLAG_A GBV_DOAJ GBV_ILN_62 AR 11 2021 2 38-44 |
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(DE-627)DOAJ099360861 (DE-599)DOAJ58432ee6695f4cfaabbc539941ea4af8 DE-627 ger DE-627 rakwb eng K201-487 K5000-5582 K623-968 K7000-7720 KZ2-6785 Eugene Hladii verfasserin aut Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities 2021 Text txt rdacontent Computermedien c rdamedia Online-Ressource cr rdacarrier The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven control over the commission of a crime special investigative experiment provocation of a crime admissibility of evidence proof Jurisprudence. Philosophy and theory of law Public law K3150 Criminal law and procedure Civil law Private international law. Conflict of laws Law of Europe KJ-KKZ Law of nations In Юридичний часопис Національної академії внутрішніх справ National Academy of Internal Affairs, 2023 11(2021), 2, Seite 38-44 (DE-627)DOAJ090667484 25194313 nnns volume:11 year:2021 number:2 pages:38-44 https://doi.org/10.56215/04212202.38 kostenfrei https://doaj.org/article/58432ee6695f4cfaabbc539941ea4af8 kostenfrei https://lawjournal.com.ua/en/article/download/viznannya-nedopustimimi-dokaziv-otrimanikh-u-khodi-kontrolyu-za-vchinennyam-zlochinu-u-kriminalnikh-provadzhennyakh-shchodo-zlochiniv-u-sferi-sluzhbovoyi-diyalnosti kostenfrei https://doaj.org/toc/2519-4216 Journal toc kostenfrei https://doaj.org/toc/2519-4313 Journal toc kostenfrei GBV_USEFLAG_A SYSFLAG_A GBV_DOAJ GBV_ILN_62 AR 11 2021 2 38-44 |
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Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities |
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The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven |
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The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven |
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The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven |
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<?xml version="1.0" encoding="UTF-8"?><collection xmlns="http://www.loc.gov/MARC21/slim"><record><leader>01000naa a22002652 4500</leader><controlfield tag="001">DOAJ099360861</controlfield><controlfield tag="003">DE-627</controlfield><controlfield tag="005">20240414024921.0</controlfield><controlfield tag="007">cr uuu---uuuuu</controlfield><controlfield tag="008">240414s2021 xx |||||o 00| ||eng c</controlfield><datafield tag="035" ind1=" " ind2=" "><subfield code="a">(DE-627)DOAJ099360861</subfield></datafield><datafield tag="035" ind1=" " ind2=" "><subfield code="a">(DE-599)DOAJ58432ee6695f4cfaabbc539941ea4af8</subfield></datafield><datafield tag="040" ind1=" " ind2=" "><subfield code="a">DE-627</subfield><subfield code="b">ger</subfield><subfield code="c">DE-627</subfield><subfield code="e">rakwb</subfield></datafield><datafield tag="041" ind1=" " ind2=" "><subfield code="a">eng</subfield></datafield><datafield tag="050" ind1=" " ind2="0"><subfield code="a">K201-487</subfield></datafield><datafield tag="050" ind1=" " ind2="0"><subfield code="a">K5000-5582</subfield></datafield><datafield tag="050" ind1=" " ind2="0"><subfield code="a">K623-968</subfield></datafield><datafield tag="050" ind1=" " ind2="0"><subfield code="a">K7000-7720</subfield></datafield><datafield tag="050" ind1=" " ind2="0"><subfield code="a">KZ2-6785</subfield></datafield><datafield tag="100" ind1="0" ind2=" "><subfield code="a">Eugene Hladii</subfield><subfield code="e">verfasserin</subfield><subfield code="4">aut</subfield></datafield><datafield tag="245" ind1="1" ind2="0"><subfield code="a">Recognition of inadmissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceeding in the field of official activities</subfield></datafield><datafield tag="264" ind1=" " ind2="1"><subfield code="c">2021</subfield></datafield><datafield tag="336" ind1=" " ind2=" "><subfield code="a">Text</subfield><subfield code="b">txt</subfield><subfield code="2">rdacontent</subfield></datafield><datafield tag="337" ind1=" " ind2=" "><subfield code="a">Computermedien</subfield><subfield code="b">c</subfield><subfield code="2">rdamedia</subfield></datafield><datafield tag="338" ind1=" " ind2=" "><subfield code="a">Online-Ressource</subfield><subfield code="b">cr</subfield><subfield code="2">rdacarrier</subfield></datafield><datafield tag="520" ind1=" " ind2=" "><subfield code="a">The purpose of the study is to consider the problems of ensuring the admissibility of evidence obtained in the course of monitoring the commission of an offence in criminal proceedings concerning crimes in the sphere of official activities. Attention is focused on the fact that the institute of secret investigative (search) actions has a double operational-search and criminal procedural content, since operational-search measures were the basis of secret (investigative) search measures by transforming the procedure for their implementation, which differs in the subjects and directions of further use of the information obtained. It is noted that the complex and underinvestigated procedural essence of control over the commission of crimes causes problems in ensuring the admissibility of evidence obtained during its conduct. It was found out that the Criminal Procedure Code of Ukraine defines a special criterion for the inadmissibility of evidence obtained during the control over the commission of a crime as a result of provoking a person to commit this crime by law enforcement agencies. Based on the analysis of materials of criminal proceedings, it is established that provocation of a crime is often a circumstance that excludes the admissibility of evidence, and becomes the basis for passing acquittals. It is proved that, according to the practice of the European Court of Human Rights, provocation of a crime exists when law enforcement officers do not limit themselves to passively establishing the circumstances of a person's possible commission of a crime in order to collect relevant evidence and, if there are grounds for it, bring a person to justice, but incite that person to commit a crime, undermining the principle of fairness of proceedings. The study argues for the need to apply criteria for distinguishing permissible interference and provocation in the course of monitoring the commission of a crime, which are formed according to the practice of the European Court of Human Rights. Typical violations of the requirements of the Criminal Procedure Law during control over the commission of a crime are considered, which entails, in particular, an insufficient level of regulation by departmental bylaws of the procedure for conducting and recording secret investigative (search) actions. Such violations based on the results of the analysis of investigative and judicial practice include: 1) provocation of a crime – cases when officials involved, who are either employees of security agencies, or persons acting on their behalf, do not limit their actions only to the investigation of criminal proceedings in essence in an implicit way, but influence the subject to commit a crime that would otherwise not have been committed, in order to make it possible to detect a crime, that is, to obtain evidence and open criminal proceedings (in accordance with the practice of the European Court of Human Rights); 2) lack of proper procedural documents in the materials of criminal proceedings certifying the right of operational employees to exercise control over the commission of a crime; 3) violations in the choice of methods and procedures for recording the progress and information obtained during the control over the commission of a crime. It is summed up that the imperfection of normative regulation of control over the commission of a crime in the provisions of the Criminal Procedure Code of Ukraine and subordinate acts leads to procedural and tactical errors on the part of the prosecution in the process of conducting them. In turn, this leads to the inadmissibility of using the information obtained in court proceedings when proving it. As a result, the efforts and resources of the law enforcement system are nullified, and the constitutional rights of a person not to be subjected to criminal punishment are violated until the guilt is legally proven</subfield></datafield><datafield tag="650" ind1=" " ind2="4"><subfield code="a">control over the commission of a crime</subfield></datafield><datafield tag="650" ind1=" " ind2="4"><subfield code="a">special investigative experiment</subfield></datafield><datafield tag="650" ind1=" " ind2="4"><subfield code="a">provocation of a crime</subfield></datafield><datafield tag="650" ind1=" " ind2="4"><subfield code="a">admissibility of evidence</subfield></datafield><datafield tag="650" ind1=" " ind2="4"><subfield code="a">proof</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">Jurisprudence. Philosophy and theory of law</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">Public law</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">K3150</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">Criminal law and procedure</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">Civil law</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">Private international law. Conflict of laws</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">Law of Europe</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">KJ-KKZ</subfield></datafield><datafield tag="653" ind1=" " ind2="0"><subfield code="a">Law of nations</subfield></datafield><datafield tag="773" ind1="0" ind2="8"><subfield code="i">In</subfield><subfield code="t">Юридичний часопис Національної академії внутрішніх справ</subfield><subfield code="d">National Academy of Internal Affairs, 2023</subfield><subfield code="g">11(2021), 2, Seite 38-44</subfield><subfield code="w">(DE-627)DOAJ090667484</subfield><subfield code="x">25194313</subfield><subfield code="7">nnns</subfield></datafield><datafield tag="773" ind1="1" ind2="8"><subfield code="g">volume:11</subfield><subfield code="g">year:2021</subfield><subfield code="g">number:2</subfield><subfield code="g">pages:38-44</subfield></datafield><datafield tag="856" ind1="4" ind2="0"><subfield code="u">https://doi.org/10.56215/04212202.38</subfield><subfield code="z">kostenfrei</subfield></datafield><datafield tag="856" ind1="4" ind2="0"><subfield code="u">https://doaj.org/article/58432ee6695f4cfaabbc539941ea4af8</subfield><subfield code="z">kostenfrei</subfield></datafield><datafield tag="856" ind1="4" ind2="0"><subfield code="u">https://lawjournal.com.ua/en/article/download/viznannya-nedopustimimi-dokaziv-otrimanikh-u-khodi-kontrolyu-za-vchinennyam-zlochinu-u-kriminalnikh-provadzhennyakh-shchodo-zlochiniv-u-sferi-sluzhbovoyi-diyalnosti</subfield><subfield code="z">kostenfrei</subfield></datafield><datafield tag="856" ind1="4" ind2="2"><subfield code="u">https://doaj.org/toc/2519-4216</subfield><subfield code="y">Journal toc</subfield><subfield code="z">kostenfrei</subfield></datafield><datafield tag="856" ind1="4" ind2="2"><subfield code="u">https://doaj.org/toc/2519-4313</subfield><subfield code="y">Journal toc</subfield><subfield code="z">kostenfrei</subfield></datafield><datafield tag="912" ind1=" " ind2=" "><subfield code="a">GBV_USEFLAG_A</subfield></datafield><datafield tag="912" ind1=" " ind2=" "><subfield code="a">SYSFLAG_A</subfield></datafield><datafield tag="912" ind1=" " ind2=" "><subfield code="a">GBV_DOAJ</subfield></datafield><datafield tag="912" ind1=" " ind2=" "><subfield code="a">GBV_ILN_62</subfield></datafield><datafield tag="951" ind1=" " ind2=" "><subfield code="a">AR</subfield></datafield><datafield tag="952" ind1=" " ind2=" "><subfield code="d">11</subfield><subfield code="j">2021</subfield><subfield code="e">2</subfield><subfield code="h">38-44</subfield></datafield></record></collection>
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