THEORETICAL BASIS OF DETERMINING THE PRINCIPLES OF CONDUCT OF SECRET INVESTIGATIVE (SEARCH) ACTIONS

Abstract

The effective achievement of the tasks of the SISA directly depends on the observance of the grounds (principles) of the conducting of the secret investigative (search) actions. At the same time, a comprehensive studying of the legal nature of the SISA, as well as the development of the directions for improving the mechanism of their implementation, is impossible without defining the guiding principles, conceptual foundations on which they are based. In this regard, it becomes necessary to determine the system of the grounds (principles) of the conducting of SISA and clarify their essence. After all, it is precisely the establishment of the grounds (principles) of their conducting allows to correctly and effectively apply the rules of the criminal procedural law, to ensure the effective effectiveness of state coercion in the investigation and prevention of crimes, while simultaneously combining the protection of rights and freedoms and their legitimate interests. The necessity of the assignement of a system of the grounds (principles) of the conducting of SISA and the study of their peculiarities is determined by the following reasons: the necessity of the forming of the effective mechanism of the provision of human rights during the conducting of secret investigative (search) actions; the necessity of the improving of the criminal procedural legislation of Ukraine in the field of ensuring human rights and citizen, its legitimate interests during the conducting of the SISA, that essentially depends on the set of principles defined in the legislation, those determine the direction of rule-making in this area of criminal-procedural legal relations; the necessity of the improving of the criminal procedural activity that is carried out by the relevant authorized persons in the field of the ensuring human rights and citizen, its legitimate interests during the conducting of the SISA on the basis of well-established principles; the necessity of the effective protection and protection of the constitutional rights and freedoms of a man and a citizen, as well as its legitimate interests as an important component of the system of protection of the rights of the state. The system of the principles of the conducting of SISA consists of four groups of principles, in particular: general scientific, general legal principles or constitutional principles; the branch principles of criminal procedural law that are inherent in this area of law, its institutes, and special, including the secret investigator (search) actions. The third group of the principles of the conducting of SISA is the special principles – principles that are limited by the relevant institution of the criminal procedural law. They reflect the specifics and features of the legal regulation of the SISA. The specific principles of the conducting of SISA include the following: the principle of inadmissibility of provocation of a crime during the SISA; proportionality of human rights interference; impartiality in supervising the implementation of the SISA; the validity and motivation of the decision to conduct the NSDS. It is concluded that the principles of the conducting of the SISA are the basis of the implementation of the latter, the basis on which the procedure for their implementation should be based. At the same time the conducting of the SISA can be effective and achieve the set goal only taking into account by the authorized persons of criminal proceedings the principles that were established by us.