PROCEDURAL PROBLEMS OF INITIATING A SEARCH AND INSPECTION OF A PERSON’S HOME OR OTHER PROPERTY

Abstract

In the article, based on the research of the legal framework, the opinions of scientists and the judicial practice of 2022, the current procedural problems of initiating a search and inspection of a person's home or other property were investigated. The author notes that the specifics and complexity of initiating and conducting a search are related to its coercive nature and the inevitable limitation of a person’s rights during its conduct. Typical errors of investigators and prosecutors when initiating a search or inspection of a residential premises, legalization of the data of investigative (search) actions after they were carried out without a decision of the investigating judge were analyzed. The analysis of the materials of the practice of investigating judges showed that the typical problems of initiating a search or inspection of a residential premises are as follows: the petition does not prove that the wanted items are in the premises specified in the petition and the need for a search is not proven; the petition does not specify things or items that may be of evidence value in criminal proceedings; non-appearance of the initiator of the search or examination before the court without a valid reason; replacement of the concepts “search” and “review’, etc. The above indicates that some investigators and prosecutors do not take their duties seriously enough. The problems of “delayed” initiation of a search or inspection of a person's home or other possessions are the unjustified reference to martial law as a basis for entering the premises without a warrant; lack of reference in the petition to specific exceptional circumstances provided for in Part 3 of Art. 233 of the CPC of Ukraine; an effort to legalize a home inspection conducted with the consent of his home. At the same time, investigators and prosecutors successfully overcome the difficulties associated with the armed aggression of the Russian Federation and the legal regime of martial law. The bodies of the pre-trial investigation actively and reasonably use the powers provided for in Clause 2, Part 1 of Article 615 of the Criminal Procedure Code of Ukraine and Part 4 of Art. 223 of the CCP of Ukraine.