Application of the European Court of Human Rights practices by the investigator during the search

Abstract

The European Court of Human Rights has long been issuing judgments in which it has argued that human rights and freedoms are violated by the authorised state bodies in their professional activities, specifically in such a complex investigative (search) action as a search, which demonstrates the relevance of investigating the issues of applying the practice of this court by investigators during a search. The purpose of this study was to determine the basis for the investigator to apply the practices of the European Court of Human Rights during a search and to formulate relevant recommendations for investigative practice. To fulfil this purpose, the following scientific methods were employed: philosophical (dialectical), general scientific (analysis, induction, deduction, comparative legal, analogy, formal legal), and special forensic (forensic versioning, forensic planning, criminal analysis of the situation) methods. The study found that the application of the practices of the European Court of Human Rights by an investigator during the col- lection of evidence, specifically during a search, is regulated by the national legislation of Ukraine. It was emphasised that the investigator is authorised to apply the judgments of the European Court of Human Rights, delivered both against Ukraine and other states, during the search. Based on the analysis of several judgments of the European Court of Human Rights concerning Ukraine and Bulgaria, the study found that they reflect not only the criminal procedural aspects of search (compliance of the criminal procedure leg- islation of Ukraine and Bulgaria with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols; clear requirements for conducting procedural actions), but also the forensic aspects (contain an indication of the optimised tactical behaviour of investigators in cer- tain situations; prescribe the mechanism, method of detection, recording and seizure (obtaining) of forensi- cally relevant information). The study identified the stages of a search and the specific features of applying the practices of the European Court of Human Rights within their framework. Based on the findings of the study, certain forensic recommendations for investigators during a search were developed based on the practices of the European Court of Human Rights. The findings of the study will be useful for improving the relevant provisions of the criminal procedure legislation of Ukraine and investigative practice