METHODS OF GATHERING EVIDENCE BY THE PROSECUTION AT THE STAGE OF PRE-TRIAL INVESTIGATION (IN THE ASPECT OF IMPLEMENTING CERTAIN PROVISIONS OF LEGAL CERTAINTY)

Abstract

The issues considered in the article correspond to such European standards of criminal justice as ensuring the right to an effective pre-trial investigation and the right to a fair trial. The article identifies certain problematic situations of proper regulation in the Code of Criminal Procedure of the types of methods of gathering evidence by the prosecution and the moment from which they can be conducted at the pre-trial investigation stage, in terms of the clarity and consistency of the Code of Criminal Procedure provisions and the unity of the practice of their application; the positions of the Supreme Court regarding the correct application of the provisions of the Code of Criminal Procedure and proposals for improving the provisions of the Code of Criminal Procedure are given. In particular, attention was paid to the following. The point at which the prosecution has the authority to collect evidence at the pre-trial investigation stage is not regulated sufficiently clearly and consistently in the Criminal Procedure Code. According to Clause 5, Part 1, Art. 3 of the CPC, Part 2 of Art. 214 of the Criminal Procedure Code, the pretrial investigation begins from the moment of entering information about a criminal offense into the Unified Register of Pretrial Investigations. However, a systematic analysis of the provisions of the Criminal Procedure Code (Part 1 and Part 3 of Article 214, Part 3 of Article 208, Article 300, Article 520, etc.) and the practice of the Supreme Court allows us to conclude that the collection of evidence by the prosecution has place already before entering the relevant information into the Unified Register of Pretrial Investigations (in the case provided for in Clause 1, Part 1, Article 615 of the Criminal Procedure Code – drawing up the relevant resolution). In order to ensure legal certainty in terms of the coherence of the provisions of the Code of Criminal Procedure, which establish the beginning of the collection of evidence, it is considered appropriate to make changes to the wording of the provisions of Clause 5, Part 1, Art. 3 of the CPC, Part 2 of Art. 214 of the CPC, noting: “The pre-trial investigation stage begins when the investigator, inquirer or prosecutor receives information in a lawful manner and from legal sources about the presence of signs of a committed or pending criminal offense or other socially dangerous act”. In part 3 of Art. 214 of the Code of Criminal Procedure does not specify all procedural actions, the possibility of carrying out which is provided for in other articles of the Code of Criminal Procedure before entering information into the register of the Unified Register of Pretrial Investigations. The decisions of the Supreme Court draw attention to the fact that the prohibition provided for in part 3 of Art. 214 of the Criminal Procedure Code, applies to the conduct of investigative (search) actions and covert investigative (search) actions as the main methods of gathering evidence. In view of the above, a proposal was made to make changes to the wording of the provisions of Part 3 of Art. 214 of the CPC, noting: “Prior to the entry of information into the Unified Register of Pretrial Investigations, it is not allowed to carry out investigative (search) actions, except in cases provided for by law”.