Judicial control over the implementation of special pre-trial investigation: procedural limits and problems of implementation

Abstract

The article examines the current problems of exercising judicial control in special pre-trial investigation as a special differentiated form of criminal proceedings in conditions of martial law, armed aggression against Ukraine and temporary occupation of parts of its territory.

The regulatory and legal principles of special pre-trial investigation, stipulated by Chapter 24-1 of the Code of Criminal Procedure of Ukraine, as well as individual provisions of Articles 139, 281 of the Code of Criminal Procedure of Ukraine, which provide for the grounds, conditions and procedural order for carrying out this procedure, are analyzed. It is noted that the legislative regulation of the special pre-trial investigation on the sufficiently detailed regulation of individual procedural issues with the presence of evaluative categories, in particular the concept of "concealment from the pre-trial investigation bodies and the court", gives a legal definition that determines the heterogeneity of law enforcement practice.

The content of procedural inter-judicial controls in the special pre-trial investigation is revealed and it is proven that they have a complex, multi-level nature. It is emphasized that when considering a petition for permission to conduct a special pre-trial investigation, the investigating judge must verify the presence of well-founded beliefs, the fact of concealment of a person, the appropriateness of the notification of suspicion, as well as compliance with other procedural requirements. At the same time, it is substantiated that such a check cannot be reduced only to formal control, but should not be transformed into an assessment of evidence on the merits of the check, which is the subject of judicial review. In this regard, we propose to consider judicial control in this category of proceedings as a model of “limited substantive control”, for which the investigating judge assesses the sufficiency of factual data to form a well-founded conviction, without going beyond the limits of his functional powers.

It is outlined that the main problems of implementing judicial control in a special pre-trial investigation are and it is proven that the effectiveness of judicial control in this area is the ability to ensure a balance of the interests of the state in bringing the guilty to criminal liability and observing the fundamental rights of the individual.

It is indicated that the criminal procedural legislation of Ukraine needs to be improved by means of normative consolidation of the criteria for concealment of a person, unification of approaches to assessing a well-founded opinion, clarification of the powers of the investigating court and further implementation of international standards of fair trial in national criminal procedural law.