Actual issues of the search of housing or other possession of the person

Abstract

Problem setting. One of the basic human rights, enshrined in the Constitution of Ukraine, is the right to inviolability of housing or other possession. The Basic Law stipulates that no penetration into a home or other possession of a person, inspection or search in them is allowed differently than according to a motivated court decision. This provision means that the state is authorized to reasonably restrict the above law. However, according to law enforcement practice, such restriction of the right to inviolability of housing or other possession is not always reasonable and there is an unequal and improper application of regulatory provisions regulating the procedure for carrying out this investigative (investigative) action. This, in turn, requires a comprehensive analysis of problematic issues that arise during the search and a unified approach to their solution. The object of research is legal relations arising during a search of housing or other possession of a person. The subject of the study are regulations that regulate the grounds, conditions and procedural procedure for conducting a search of housing or other possession of a person. Analysis of recent researches and publications. In the scientific literature, certain aspects of the search of housing or other possession were the subject of scientific research of such scientists as: V. Goncharenko, I. Hlovyuk, V. Zaborovsky, V. Noor, O. Kaplina, O. Komarnytska, O. Shvykova, M. Shumylo etc. Target of research is to study problematic issues arising during the search of housing or other possession of a person and to develop on its basis proposals for improving the current criminal procedural legislation. The scientific novelty of the research is to express proposals for improving the current criminal procedural legislation, which relate to the procedural procedure for the search of housing or other possession of a person, the announcement of a break in its conduct and the peculiarities of fixing its results. Article’s main body. The scientific research is devoted to the analysis of the grounds, conditions and procedural procedure for conducting a search in a dwelling or other possession of a person, guarantees of protection of the rights and freedoms of a person during this investigative (search) action, features of fixing the course of conducting a search of a home or other possession of a person. Conclusions and prospects for the development. Based on the analysis, we conclude that it is appropriate to apply to the decision of the Supreme Court of 02.09.2020. № 591/4742/16-k, which states that the protocol of the search of housing is unacceptable evidence, if it does not contain information about the employees of the operational units involved in it, the sequence of all actions during the search and packaging of seized items, as well as if during the search at the time of detection of equipment intended for the manufacture of narcotic drugs (subject of crime), were not present understood, invited investigators after the discovery of such equipment.

Untitled

“…Ye. Povzyk (2021) determines the proper recording of its individual features not only when obtaining permission from the investigating judge to conduct a search but also when directly conducting this investigative (search) action as another essential component of the implementation of the principle of proportionality in the seizure of property, in particular in the relevant protocol. I. Osypenko & K. Myshasta (2021) draw attention to the fact that it is the investigator, the prosecutor who executes the decision that should examine the evidentiary value of the property that is planned to be seized and check the ownership of the actions of the persons involved in conducting this investigative (search) activity since they, not having information about the pre-trial investigation as a whole, can allow procedural abuses in the context of property seizure.…”